Cranney v. Mutual of Enumclaw Insurance , 145 Idaho 6 ( 2007 )

I, W. JONES, Justice,

specially concurring as follows.

I concur in the result of the majority Opinion because I agree I.C. § 7-913(a)(l) gives only limited authority to review or modify an arbitrator’s award for, among other things not pertinent here, an evident miscalculation of figures. I agree with the majority that the arbitrator’s award of prejudgment interest in this case was not a “miscalculation of figures,” even if arguably it was a mistake of law. It is clear that courts do not have the authority to modify an arbitrator’s award for an error of fact or law.

I concur with the Court’s Opinion, rather than joining in it to make clear that it, is my opinion that although an arbitrator has authority, unless otherwise agreed by the parties submitting the matter to arbitration, to award prejudgment interest under I.C. § 7-910 and American Foreign Insurance Company v. Reichert, 140 Idaho 394, 94 P.3d 699 (2004) and Dillon v. Montgomery, 138 Idaho 614, 67 P.3d 93 (2003),¹ that authority only extends to interest on the amount “due” by express contract as provided in I.C. § 28-22-104. In uninsured or underinsured motorist eases such as the present one, the amount of prejudgment interest is not “capable of mathematical computation” from the date of the accident or even from the date of the proof of loss because it is unknown what the amount “due” is until it is determined by the arbitrator. The arbitrator’s award can include past medical expenses and lost wages, but also can include damages for pain and suffering, future lost wages and future medical expenses, all of which are unknown until the arbitrator renders his decision. Moreover, in awarding future damages, the arbitrator will presumably discount the amount awarded for such future losses to present value. I agree with the dissent of Justice Walters in Schilling v. Allstate Insurance Company, 132 Idaho 927, 980 P.2d 1014 (1999) that “It is basically illogical, unjust and unconscionable to award prejudgment interest on sums of money representing damages which have not yet occurred, but which will only occur sometime in the future. To require Allstate [insurer] to pay interest in addition to the amount of the loss determined by the arbitrator clearly constitutes a double recovery by Schilling [plaintiff] for a portion of his loss.” In such cases, the arbitrator’s award gives the plaintiff the amount that will be sufficient to pay the future losses as they occur in the future. There is no justifiable reason for adding interest to that amount.

In summary, it is my opinion that Idaho law allows an arbitrator to grant prejudgment interest in uninsured and underinsured arbitration eases, but the prejudgment interest should apply only to liquidated amounts from the date the expenses are incurred and should not include prejudgment interest on unliquidated claims or future losses.

Chief Justice EISMANN concurs in Justice W. JONES’ special concurrence.

1 . It is clear this Court has held in these cases that I.C. § 7-910 grants an arbitrator the authority to award prejudgment interest. I was not a member of this Court at the time of those decisions, but feel bound to honor them, even though had I been a member of the Court at that time, I would have disagreed with the Court's conclusion on the grounds that I do not believe that prejudgment interest is an “other expense” of arbitration, which is the provision under which this Court determined the arbitrator had authority to award prejudgment interest.