Morris v. Government Employees Insurance ( 1981 )

Thompson, J.,

dissents and votes to affirm the order of the Appellate Term, with the following memorandum: This situation requires examination of the difficult line which must sometimes be drawn between deference to an arbitrator’s award or to an administrative agency’s expertise in interpreting the laws, rules and regulations under which it operates and the duty of the courts to make sure that neither an arbitrator nor an agency exceeds its powers under those laws, rules and regulations. In the instant case, the question is whether an arbitrator’s award of expert witness fees in the amount of $350 in connection with an arbitration pursuant to section 675 of the Insuarance Law should be upheld. The gist of the majority’s position must be that the arbitrator’s award of an expert witness fee is not an unreasonable interpretation of the Insurance Law. The majority con-eludes that there is no inconsistency between the Insurance Law (which specifically permits only attorney’s fees) and the provisions of CPLR 7513 (which permits a court to reduce or disallow a fee awarded by an arbitrator). I cannot agree with the majority’s incomplete analysis. I believe that section 675 permits an arbitrator to award attorney’s fees, which are generally not recoverable in an ordinary action, but not other fees. CPLR 7513 does not authorize such an award. It does not enlarge an arbitrator’s power. The fact that CPLR 7513 is not inconsistent with another statute, here the Insurance Law, does not enlarge the arbitrator’s authority beyond that set forth in the Insurance Law. When an arbitrator attempts to award a fee not specifically provided for in an arbitration agreement or in the statute governing the arbitration, that attempt should not be permitted in deference to an arbitrator’s discretion. An arbitrator’s discretion cannot be permitted to amend a statute that sets forth specific areas of authority. The attempt to make such an award goes beyond the terms of the statute and thus crosses the line. The award of expert witness fees was made in excess of the arbitrator’s power and thus falls squarely under CPLR 7511 (subd [b], par 1, cl [iii]). As such, this portion of the award should be vacated. Matter of Country-Wide Ins. Co. (Barrios) (NYU, Feb. 11, 1976, p 6, col 4, mod 54 AD2d 879, affd 43 NY2d 685) does not require a different result. There Special Term permitted an award of witness fees to stand. The primary issue before that court, however, was the amount awarded for attorney’s fees. The question of the attorney’s fees was the only question specifically addressed by the appellate courts.