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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gilbert v. State Farm Insurance Company (11/09/2007) sp-6193
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| LOIS GILBERT, | ) |
| ) Supreme Court No. S- 12142 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-00-03681 Civil |
| ) | |
| STATE FARM INSURANCE | ) O P I N I O N |
| COMPANY, | ) |
| ) No. 6193 November 9, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Lois Gilbert, pro se, Anchorage,
Appellant. Jimmy E. White, Hughes Bauman
Pfiffner Gorski & Seedorf, LLC, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating].
FABE, Chief Justice.
I. INTRODUCTION
In 1994 Lois Gilbert was involved in an automobile
accident. Gilbert disagreed with State Farm Insurance Company,
her insurance carrier, over the extent of her injuries from the
accident. On January 12, 2000, pursuant to her insurance
contract, Gilbert submitted to arbitration a dispute with State
Farm over payment for the accident. The arbitrator found in
favor of State Farm. Gilbert appealed to the superior court,
which affirmed the arbitrators decision. Because the superior
court properly upheld the arbitrators decision, we affirm.
II. FACTS AND PROCEEDINGS
In 1994 Lois Gilbert was involved in an automobile
accident. Gilbert disagreed with State Farm over the extent of
her injuries from the accident. Pursuant to her insurance
contract, Gilbert submitted to arbitration her dispute with State
Farm over payment for the accident.1 Gilbert was represented by
counsel during the arbitration.2 On January 18, 2000, arbitrator
J. Justin Ripley issued a memorandum and award, finding that
Gilbert had failed to prove that the 1994 accident caused her
injuries and declaring State Farm the prevailing party. No
longer represented by counsel, Gilbert filed a motion for
reconsideration with the arbitrator. During the reconsideration
process, the arbitrator made significant procedural concessions
and allowed Gilbert to file an unusual volume of materials,
including photo copies and original photographs of the accident
car, of [Gilbert] as an active young person in the 70s, video
clips of [Gilbert] as a happy [child], and of TV commentator
Stone Phillips presenting a sharply divided panel discussion on
the subject of fibromyalgia. In May 2000 the arbitrator denied
Gilberts motion for reconsideration, confirming his previous
findings that Gilberts testimony was not credible and that she
had not met her burden of proof. The arbitrator awarded State
Farm augmented attorneys fees.
Appearing pro se, Gilbert filed a notice of appeal with
the superior court in June 2000. On September 7, 2001, the
superior court dismissed the appeal because Gilbert had not paid
her cost bond. Gilbert appealed to this court.3 On July 28,
2004, we reversed, holding that it was an abuse of discretion to
deny Gilberts motion to waive the cost bond requirement.4
On November 1, 2004, State Farm filed a motion to
confirm the arbitrators award and a motion for entry of judgment.
Gilbert opposed the motion and moved to vacate the arbitrators
award. On February 14, 2005, Superior Court Judge Michael L.
Wolverton heard oral argument on the motions. In the following
months, Gilbert filed additional motions requesting that the
court review supplemental materials and compel discovery. On
September 8, 2005, the superior court granted State Farms motion
to confirm the arbitrators award and denied Gilberts motions.
The court found that there [was] no evidence in the record of
bias or fraud to support Ms. Gilberts claims. Her frustrations
seem entirely based on a dissatisfaction with the Arbiters
ultimate decision, rather than any legitimate grievances
regarding the arbitration process.
Gilbert appeals.
III. STANDARD OF REVIEW
We review a superior courts decision to affirm an
arbitration award de novo, but [t]he arbitrators findings of both
fact and law . . . receive great deference and as a matter of
both policy and law, we are loathe to vacate an award made by an
arbitrator.5 As a result, we have held that the arbitrators
findings of fact are unreviewable, even in the case of gross
error.6
IV. DISCUSSION
A. Gilberts Arguments that She Was Injured in the 1994
Accident Are Not Properly Before this Court.
Gilbert identifies her first point on appeal as whether
Appellant was injured in the 1994 accident. But as State Farm
notes, that is a factual question that the arbitrator decided in
favor of State Farm. We do not review an arbitrators factual
determinations, even where gross error is alleged.7 Accordingly,
we will not consider Gilberts arguments that the arbitrators
decision was not supported by the evidence.
B. There Is No Evidence of Fraud, Undue Means, or
Arbitrator Bias.
Alaska Statute 09.43.120(a)(1) provides that a court
shall vacate an arbitrators award if the award was procured by
fraud or other undue means. Subsection (a)(2) provides for
vacating an award where there was evident partiality by an
arbitrator appointed as a neutral or corruption in any of the
arbitrators or misconduct prejudicing the rights of a party.
Gilbert contends that the arbitrators decision should
be overturned on the basis of fraud, undue means, and arbitrator
bias. She maintains that State Farm engaged in fraud by: (1)
presenting the arbitrator with a photograph taken in flat
lighting from the right rear of the car, which wasnt hit; (2)
withholding documents; (3) using a fraudulent medical review; (4)
using a fraudulent independent psychological review; and (5)
failing to pay her claim.
State Farm responds that there is no evidence that the
arbitrators decision was procured by fraud. State Farm contends
that Gilberts appeal results from her dissatisfaction with the
outcome of arbitration and her desire to relitigate the issues
decided. The superior court found no evidence in the record to
support Gilberts allegations of fraud or bias. We agree.
In Alaska State Housing Authority v. Riley Pleas, Inc.,
we examined the scope of AS 09.43.120(a)(1) and rejected the
housing authoritys claim that the statute authorized judicial
review for gross errors.8 We reasoned that fraud and undue means
connote affirmative wrongdoing by a party to the arbitration and
do not require a review on the merits of the controversy, while
gross error carries no connotation of affirmative wrongdoing and
is a review on the merits.9 Gilbert points to no evidence of
affirmative wrongdoing. Instead, her allegations of fraud
essentially amount to allegations of gross error.
Gilberts first claim is that State Farm engaged in
fraud when it presented the arbitrator with a photograph, Exhibit
X, taken in flat lighting from the right rear of the car, which
wasnt hit. Gilbert contests the arbitrators finding that
Exhibit X, and the additional left views produced by Claimant
during her testimony show merely rust and general lack of
maintenance, not collision damage. Gilbert attempts to buttress
this argument by pointing to evidence she believes contradicts
the arbitrators findings regarding damage to the vehicle. But
Gilbert points to no evidence that the photograph was false or
that State Farm knew it was false. At its root, Gilberts attack
on the photograph amounts to an allegation that the arbitrators
findings represent gross error and are inconsistent with the
evidence. But such a claim of error is not reviewable by this
court.10
Gilberts second claim is that State Farm engaged in
fraud by withholding documents. It is not clear from Gilberts
briefing which documents she contends State Farm fraudulently
withheld.11 Gilbert does not explain the exact nature of alleged
fraud. Moreover, she does not claim that State Farm failed to
produce documents that the arbitrator ordered it provide.
Rather, the essence of her argument appears to be a challenge to
the arbitrators decision that State Farm need not produce the
documents. Because the arbitrators legal rulings are entitled to
great deference,12 and because Gilbert points to no evidence of
fraud on the basis of withheld documents, her second claim for
fraud fails.
Gilberts third claim of fraud alleges that State Farm
used a fraudulent medical review. She maintains that State Farm
brought Dr. Bidgood from out of state to conduct the review and
sent him a letter falsely claiming there was no damage to her
car. She suggests that Dr. Bidgood then based his medical
conclusions on this letter. But as State Farm notes, Gilbert
points to no evidence of a letter, nor is there evidence to
support her claim that the letter was false.13 Nor can Gilbert
point to anything to substantiate her claim that Dr. Bidgood
based his medical conclusions on the alleged letter, as would be
required to establish a claim of fraud. Instead, the crux of
Gilberts argument is a dispute over the facts a dispute which
has been resolved by the arbitrators determination.
Gilbert next claims that State Farm engaged in fraud by
using a fraudulent independent psychological review. Gilbert
claims that Dr. Sperbeck, the expert who conducted the
independent psychological review, changed dates in his report.
But even if Dr. Sperbeck made changes or errors regarding dates
in her medical history, Gilbert points to no evidence that these
changes or errors were the result of fraud, rather than simple
mistakes. Moreover, it is not clear how these changes or errors
would have infected the process, given the wealth of information
available to the arbitrator. Gilbert also suggests that Dr.
Sperbeck fraudulently concluded that she was malingering. But
while Gilbert may feel that the evidence she presented is
inconsistent with Dr. Sperbecks conclusions, that does not
substantiate her allegation that his conclusions are the product
of fraud. Again, Gilberts fundamental concern is with the
arbitrators factual findings, not with any fraudulent conduct.14
Thus, the superior court correctly concluded that there was no
evidence the independent medical review was fraudulent.
Gilberts final claim of fraud alleges that State Farms
failure to pay her claim is in itself fraudulent. She points to
an episode of NBC Dateline, an article about fraud in an
insurance industry periodical, and several newspaper articles as
evidence to support her claim that State Farm fraudulently
refused to pay her claim. She demands that a jury hear this case
and make its own assessment of her credibility versus the
credibility of State Farm. Like her other claims of fraud, this
claim represents an attempt to relitigate the factual issues
decided by the arbitrator. As State Farm notes, Gilbert points
to nothing in the record to challenge the superior courts
conclusion that there was no evidence of fraud. We therefore
hold that the superior court properly rejected Gilberts claims of
fraud.
On the issue of arbitrator bias, Gilbert suggests that
the arbitrator showed partiality toward State Farm when he
allowed the accident report and damage inspection report to be
withheld. State Farm responds that Gilberts claim that the
arbitrator showed partiality toward State Farm is without merit.
As State Farm notes, Gilberts explanation that the arbitrator was
biased toward State Farm because insurance companies are frequent
customers of arbitration would call into question all insurance
arbitration decisions a result contrary to the liberal policy
favoring arbitration reflected in Alaskas Arbitration Act.15
The superior court correctly found no evidence that the
arbitrator treated Gilberts claim unfairly. As the superior
court noted, the arbitrator allowed Gilbert to file any and all
additional material she deemed appropriate to substantiate her
motion for reconsideration. Gilbert makes no claim that the
arbitrator had a specific relationship with State Farm that
compromised his partiality, and there is no evidence to suggest
that was the case. We therefore affirm the superior courts
decision to uphold the arbitrators findings.
C. Gilberts Rights Were Not Violated.
Gilbert argues that her constitutional rights were
violated. She refers to the Fourteenth Amendment to the United
States Constitution, the Alaska Constitution, the Americans with
Disabilities Act, and Alaska civil rights statutes, but points to
no specific instance of discrimination in violation of these
provisions. She first suggests that equal justice requires that
she receive leniency as a pro se litigant, but points to no
specific instance where she did not receive leniency. Gilbert
also points to Alaska civil rights statutes and claims a right to
be free from discrimination on the basis of disability. But she
fails to identify any basis for her allegation of discrimination
on the basis of disability.16 These claims are without merit.
Gilbert also contends that her right to be free from
discrimination on the basis of gender was violated. She points
to the fact that one of State Farms experts called her
hysterical. But she fails to explain how the use of this word by
a single expert one of sixteen experts whose reports,
depositions, and letters the arbitrator considered casts doubt
on the integrity and fairness of the arbitration proceeding
itself. Thus, Gilberts claims of discrimination and violation of
constitutional rights are lacking in factual and legal
foundation.
D. State Farm Need Not Produce Additional Documents.
Gilbert contests the superior courts denial of her
motions to compel discovery. She maintains that State Farm
should be compelled to produce documents, including
correspondence between State Farm and its doctors and records of
her previous accidents. She argues that she needs the evidence .
. . to show a jury why the 1994 accident was so disabling, and to
show State Farms fraudulent review process.
Gilbert filed two motions to compel discovery before
the superior court. The first motion, filed in September 2001,
requested that the court compel State Farm to produce the
videotape of Dr. Sperbecks testimony because he was acting very
nervous and wringing his hands during his deposition. Appellant
believes that this shows his consciousness of guilt about his
testimony. The second motion requested that the court compel
State Farm to produce all evidence withheld during Arbitration,
including its assessment of her car accident damage caused by the
1994 accident and the amount State Farm paid for that damage.
State Farm opposed these motions, arguing that there was no
pending discovery and that all discovery matters had been
resolved by the arbitrator. The superior court denied all [of]
appellant[s] pleadings in its final ruling.
We affirm the courts decision denying Gilberts motions.
Gilbert provides no specific basis for her allegation that these
documents should have been discoverable and does not argue that
she was prejudiced by the failure to provide them. Gilbert makes
no argument to this court as to why these documents are crucial
or even relevant to her attempt to substantiate claims of fraud
and arbitrator bias.
E. There Is No Basis for Sanctioning Gilbert for her
Appeal.
Finally, State Farm argues that Gilbert should be
sanctioned for what it calls her frivolous appeal. It contends
that there is no colorable basis for Gilberts claims and that
this Court [should] exercise its judgment in sanctioning Ms.
Gilbert. Given the latitude this court affords pro se litigants,17
sanctions are not justified in this case, where Gilbert has
proceeded in the superior court and before this court without an
attorney. Moreover, our memorandum order and judgment reversing
the superior courts dismissal order states that Gilberts
pleadings allege a sufficient basis for appellate review of the
arbitration proceeding under AS 09.43.120(a)(1).18 We therefore
decline to sanction Gilbert for her appeal.19
V. CONCLUSION
Because the superior court properly concluded that
there was no evidence of fraud, undue means, or arbitrator bias,
and because there is no basis for Gilberts constitutional claims
or for the discovery she seeks, we AFFIRM the decision of the
superior court to uphold the arbitrators award. Because State
Farms argument for sanctions is unpersuasive, we decline to
sanction Gilbert for her appeal in this case.
_______________________________
1 Gilbert v. State Farm Ins. Co., Mem. Op. & J. No. 1178
(Alaska, July 28, 2004), 2004 WL 1701109, at *1.
2 Id.
3 Id.
4 Id. at *4.
5 Kinn v. Alaska Sales & Serv., Inc., 144 P.3d 474, 482
(Alaska 2006) (alteration in original) (internal citation and
quotations omitted).
6 Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657,
661(Alaska 1995).
7 Alaska State Hous. Auth. v. Riley Pleas, Inc., 586 P.2d
1244, 1247-48 (Alaska 1978). Gilbert cites City of Fairbanks
Mun. Utils. v. Lees, 705 P.2d 457 (Alaska 1985) and Nizinksi v.
Golden Valley Elec. Assn, Inc., 509 P.2d 280 (Alaska 1973) for
the proposition that courts may intervene in cases of gross
error. But Lees and Nizinski were labor disputes and, as we
noted in Riley Pleas, labor disputes are expressly excluded from
Alaskas Arbitration Act. 586 P.2d at 1248. As a result, the
Acts provisions restricting courts review of arbitration awards
do not apply to labor arbitration. Similarly, Gilberts reference
to the more searching arbitrary and capricious standard that we
applied in Butler v. Dunlap is inapposite; it applies to
compulsory arbitration and not to arbitrations conducted pursuant
to the Act. 931 P.2d 1036, 1039 (Alaska 1997).
8 586 P.2d at 1247.
9 Id. at 1248.
10 Id. at 1247-48.
11 Her original filing with the superior court points to
State Farms failure to give her their accident file and
correspondence with medical personnel.
12 Kinn, 144 P.3d at 482.
13 Moreover, as State Farm notes, the alleged letter is
consistent with the arbitrators factual findings about the
accident.
14 Gilberts reply brief continues to focus on discrediting
the conclusions of Dr. Sperbeck, contending that they are
contradicted by other evidence. But simply offering evidence
that contradicts other evidence does not constitute fraud.
Gilbert points to no evidence that Dr. Sperbeck or State Farm
knowingly provided fraudulent evidence. Moreover, Gilbert had
ample opportunity to refute Dr. Sperbecks conclusions during the
arbitration proceedings.
15 See Lexington Mktg. Group, Inc. v. Goldbelt Eagle, LLC,
157 P.3d 470, 476 (Alaska 2007) (noting that Alaskas Arbitration
Act reflects strong policy in favor of arbitration).
16 Gilbert does argue in her reply brief that Dr.
Sperbeck, the individual who conducted the independent
psychological review, should have supplied her with a supportive
chair and that his failure to do so violated the Americans with
Disabilities Act and Alaskas Civil Rights Act. But not only does
she insufficiently brief this argument, she also fails to explain
how it is related to her contention that the arbitrators decision
should be overturned. She makes no argument that the arbitration
proceedings discriminated against her. We note that in a
separate lawsuit, Gilbert sued Dr. Sperbeck. In Gilbert v.
Sperbeck, we held that witness immunity barred Gilberts fraud and
misrepresentation claims against Dr. Sperbeck, that the Americans
with Disabilities Act did not provide for the relief she
requested, and that she had waived her civil rights claim. 126
P.3d 1057 (Alaska 2005).
17 See, e.g., Sperbeck, 126 P.3d at 1062 (noting that we
hold pro se litigants to less demanding standards).
18 Gilbert v. State Farm Ins. Co., Mem. Op. & J. No. 1178
(Alaska, July 28, 2004), 2004 WL 1701109, at *3.
19 We also note that the arbitrator awarded State Farm
attorneys fees and costs augmented to the level of 75% of the
actual designated costs.
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