RENDERED: OCTOBER 6, 2000; 2:00 p.m. NOT TO BE PUBLISHED NO CA MR STACY H. WATHEN AND BRIAN A. WATHEN, HER HUSBAND

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1 RENDERED: OCTOBER 6, 2000; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth Of K entucky Court Of A ppeals NO CA MR STACY H. WATHEN AND BRIAN A. WATHEN, HER HUSBAND APPELLANTS APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE THOMAS O. CASTLEN, JUDGE ACTION NO. 96-CI WAYNE COUNTY FEED SUPPLY, INC. AND FARMLAND INSURANCE COMPANY, INTERVENING DEFENDANT APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: BUCKINGHAM, GUIDUGLI AND JOHNSON, JUDGES. JOHNSON, JUDGE: Stacy H. Wathen and Brian A. Wathen have appealed from a judgment of the Daviess Circuit Court that dismissed their motion to vacate an arbitration award. Having concluded that the Wathens are not entitled to relief from the arbitration award, we affirm. This case arose from an automobile accident that occurred on November 1, 1995, in Daviess County involving Stacy

2 Wathen and Robert Junior Tucker. Tucker was an employee of Wayne County Feed Supply, Inc., and he was driving a tractor-trailer rig for the corporation when it and the automobile driven by Wathen collided. The cause of this accident is strongly disputed by the parties. Wathen basically claimed that she had the right of way as she was driving her car in the right lane of a two-lane, oneway highway and that Tucker negligently made a right turn into her path from the left lane in order to make a right turn onto Dublin Lane, a perpendicular street. Wathen claimed that she was driving less than the 35 m.p.h. speed limit and that the tractortrailer rig struck her car as it made the right turn. 1 Tucker claimed to be traveling at a slow speed as he drove his rig westerly on West Second Street and attempted to turn north onto Dublin Lane. He admitted that he pulled into the left lane in order to make the right turn. He claimed that after he pulled into the left lane, he looked to his rear again and saw no traffic close enough to be affected by his right turn. Tucker claimed the rig was almost entirely on Dublin Lane when he felt the impact of Wathen s car hitting the trailer. A photograph that was relied upon by Tucker showed damage to the trailer on the right side in front of the back tandem wheels. 1 The tractor-trailer rig consisted of a 48-foot, aluminumsided trailer loaded with hogs and the semi-tractor. The total length of the rig was approximately 60 feet. -2-

3 The Wathens filed a complaint in the Daviess Circuit Court on October 3, 1996, wherein they alleged that Wayne County Feed Supply was vicariously liable for the damages they had suffered as a result of Tucker s negligent operation of the semi- 2 truck. After discovery was taken and settlement negotiations had failed, the parties, on April 7, 1998, entered into an arbitration agreement with Resolute Systems, Inc. Following a 3 hearing on May 1, 1998, the arbitrator, on May 14, 1998, issued a decision that was favorable to Wayne County Feed Supply. The Wathens sought relief from the arbitrator s adverse award by filing a motion to vacate the award in Daviess Circuit Court. The motion was denied on October 1, 1998, and this appeal followed. The findings by the arbitrator that are at the center of this appeal are as follows: The Plaintiff should have seen the Defendant s truck in time to stop her vehicle, & the driver of the truck did not turn his vehicle in an unreasonable safe manner. These conclusions are clearly established by all the physical facts, the most significant of which are as follows. The point of impact on the truck establishes that the truck driver was well with[in], and had virtually completed, his turn when struck by Plaintiff s vehicle. The evidence shows that all the many lights on the truck were more than ample, were operable & operating or burning, and were clearly 2 Brian Wathen, Stacy s husband, asserted a claim for loss of consortium. 3 Retired Judge William G. Fuqua. -3-

4 visible to Plaintiff. The slow speed of the truck, coupled with the point of impact on the truck, clearly show that Plaintiff was at the time the truck began its turn, sufficiently far behind the truck that the truck driver could reasonably begin his turn with safety irrespective of whether he did or did not see Plaintiff s car at that time [emphasis original]. The Wathens allege on appeal, as they did before the circuit court, that they are entitled to relief pursuant to KRS -4-

5 and Kentucky Rules of Civil Procedure (CR) The 4 Kentucky Revised Statutes (KRS) provides: (1) Upon application of a party, the court shall vacate an award where: (a) (b) (c) (d) (e) The award was procured by corruption, fraud or other undue means; There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; The arbitrators exceeded their powers; The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of KRS , as to prejudice substantially the rights of a party; or There was no arbitration agreement and the issue was not adversely determined in proceedings under KRS and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court is not ground for vacating or refusing to confirm the award. (2) An application under this section shall be made within ninety (90) days after delivery of a copy of the award to the applicant; except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known. (3) In vacating the award on grounds other than stated in paragraph (a) of subsection (1) of this section, the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by (continued...) -5-

6 Wathens ask that we consider five arguments: (1) The palpable errors contained in the arbitrator s findings warrant[] reversal of the arbitrator s decision ; (2) The arbitrator s findings violate KRS 417 ; (3) The arbitrator s findings are clearly inadequate by refusing to recognize and apply the statutory law ; (4) The arbitrator refused to hear material evidence ; and (5) By failing to apply the laws of the Commonwealth the arbitrator exceeded his powers. As we will discuss below, many of these 4 (...continued) the court in accordance with KRS , or, if the award is vacated on grounds set forth in paragraphs (c) and (d) of subsection (1) of this section, the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with KRS The time within which the agreement requires the award to be made is applicable to the rehearing and commences on the date of the order. (4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award. 5 CR provides: A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. -6-

7 arguments are related and overlap. For their palpable error argument, the Wathens rely 6 upon Carrs Fork Corp. v. Kodak Mining Co. In Carrs Fork, our Supreme Court held that a party was entitled to relief if the arbitration award is so grossly inequitable so as to allow the courts to reverse the judgment based on equitable powers. In applying CR 61.02, the Supreme Court stated that the error in the arbitrator s failure to recognize and apply the legal maxim 7 that the law abhors forfeiture meets this test. The Wathens argue that they are entitled to such relief in the case sub judice because the arbitrator failed to recognize the statutory duty of the defendant s driver. Wayne County Feed Supply responded: There were factual questions before the arbitrator that, if tried before a jury, would have required the jury to resolve issues of fact and consider all of the legal duties imposed upon the respective drivers. Otherwise, the case would have been appropriate for summary judgment prior to the parties entering into an arbitration agreement. Such was not the case and the arbitrator s decision resolving the facts and legal issues adversely to the Appellants does not constitute palpable error within the purview of Civil Rule The circuit court decision confirming the arbitrator s decision should be affirmed. In their second argument, the Wathens claim that the arbitrator s findings violated KRS in three ways: 6 Ky., 809 S.W.2d 699, 701 (1991). 7 Id. -7-

8 (1) His refusal to recognize the statutory duty of the truck driver rises to the level being so grossly inadequate or excessive as to be in effect a fraud and subject to vacation by a court although no actual fraud is claimed[;] (2) His refusal to hear the material evidence of Mr. Cambron s statements[;] and (3) He exceeded his powers by not applying the law of the Commonwealth of Kentucky to this proceeding. Wayne County Feed Supply replies by stating that [n]owhere in KRS is there any basis for setting aside a decision based upon the evidence not supporting the award or a party disagreeing with the arbitrator s interpretation of facts and all the applicable law. There were issues of fact concerning whether Stacy Wathen had complied with the duties imposed upon her in the operation of her vehicle. A reviewing court cannot set aside an arbitrator s decision where the evidence submitted to the fact finder supported a decision that Stacy Wathen violated legal duties imposed on her and such acts were the substantial factor in causing the accident. In their third argument, the Wathens assert that the arbitrator refused to recognize and apply the statutory law. 8 They rely upon KRS and the cases of Lockridge v. 8 KRS provides: (1) A person shall not turn a vehicle or move right or left upon a roadway until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided. (2) A signal indicating the intention to turn right or left shall be given (continued...) -8-

9 Mercer, Hall v. King, Riley v. Thomas, Louisville Transit Co. 8 (...continued) continuously for not less than the last one hundred (100) feet traveled by the motor vehicle before the turn. (3) A bus driver shall not stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal to traffic following the bus. (4) All signals required for a motor vehicle shall be given by signal lamps or mechanical signal devices. (5) A signal required for a vehicle that is not a motor vehicle may be given by, either hand signals, signal lamps, or mechanical signal devices. The signal shall be given intermittently for the last fifty (50) feet traveled by the vehicle before the turn. (6) Hand signals shall be executed in the following manner when operating a vehicle that is not a motor vehicle; (a) (b) (c) The hand and arm shall be extended horizontally from the left side of the vehicle to indicate a left turn; The arm shall be extended horizontally with the hand and arm extended upward from the elbow or the right arm and hand shall be extended horizontally to indicate a right turn; Either arm shall be extended horizontally with the hand and arm extended downward from the elbow to indicate a stop or decrease in speed. 9 Ky., 438 S.W.2d 486 (1968). 10 Ky., 432 S.W.2d 394 (1968). -9-

10 12 13 v. Gipe, Kentucky Bus Lines v. Wilson, and Yellow Cab Co. of Louisville v. Crume. 14 Wayne County Feed Supply responds by noting what it claims were Wathen s duties under KRS (1)(2) and (3) Ky., 310 S.W.2d 49 (1958). 12 Ky., 277 S.W.2d 52 (1955). 13 Ky., 258 S.W.2d 486 (1953). 14 Ky.App., 552 S.W.2d 662 (1977). 15 KRS (1)(2) and (3) provide: (1) Vehicles overtaking other vehicles proceeding in the same direction shall pass to the left of them and shall not again drive to the right until reasonably clear of those vehicles. Vehicles overtaking streetcars may pass either to the right or left when so directed by a police officer, when on a one (1) way street or where the location of the tracks prevents compliance with this section, with regard for other traffic. (2) The operator of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions: (a) (b) When the vehicle overtaken is making or about to make a left turn; Upon a roadway with unobstructed pavement of sufficient width for two (2) or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle. (3) The operator of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such (continued...) -10-

11 16 and KRS (2), (2) and Wayne County Feed Supply addressed some of the cases cited by the Wathens, and cited in support of its position the additional cases of Wittmer v. Jones, Ellison v. Begley, Pillsbury-Ballard, Division of 15 (...continued) movements in safety. Such movement shall not be made by driving off the roadway unless passing vehicle comes to a complete stop and such movement may be made safely. 16 KRS (2) states: In all cases of meeting, passing, or overtaking of vehicles such assistance shall be given by the operator and occupants of each vehicle, respectively, to the other as the circumstances reasonably demand, in order to obtain clearance and avoid accidents. KRS (2) states: An operator of a vehicle upon a highway shall not drive at a greater speed than is reasonable and prudent, having regard for the traffic and for the condition and use of the highway. KRS provides: (1) The operator of any vehicle upon a highway shall operate the vehicle in a careful manner, with regard for the safety and convenience of pedestrians and other vehicles upon the highway. (2) No person shall willfully operate any vehicle on any highway in such a manner as to injure the highway. 17 Ky., 864 S.W.2d 885 (1993). 18 Ky., 448 S.W.2d 371 (1969). -11-

12 19 20 Pillsbury Mills v. Scott, and Cook v. Gillespie. The Wathens also claim that by not referring to the statement and two affidavits of Nick Cambron the arbitrator ignored material evidence... that unequivocally demonstrated that the truck [driver] failed in [his] duty to look and [to] see vehicles with the right of way. Wayne County Feed Supply responded: The arbitrator s statement of irrespective of whether he did or did not see Plaintiff s car at that time clearly shows that the arbitrator was considering the issue of whether Mr. Tucker looked to the rear and saw no traffic close enough to be adversely affected by his turn as he testified, or whether the Plaintiff s vehicle was in the position reported by Nick Cambron in his various statements, or whether the Plaintiff s front bumper was even with the rear bumper of the truck as Stacy Wathen testified. Stacy Wathen s testimony was in direct contradiction to the testimony of Nick Cambron and the operator of the Wayne County vehicle, Robert Junior Tucker. There is no basis for saying the arbitrator failed to hear any evidence, much less, any material evidence. The Wathens final argument is that the arbitrator exceeded his powers by refusing to apply the statutory duty of the truck driver and fail[ing] to apply the law of the [C]ommonwealth to his decision. Wayne County Feed Supply did not specifically respond to this argument, although it had responded to it by responding to the previous four arguments. 19 Ky., 283 S.W.2d 387 (1955) Ky. 281, 82 S.W.2d 347 (1935). -12-

13 The Wathens reliance on Carrs Fork, supra, demonstrates the limited role that the courts have in reviewing an arbitration award. The Wathens difficult burden is enhanced by the requirement that in order to determine liability in an automobile negligence action there must be a factual determination made as to whether a party violated her duty and as 21 to what caused the collision. This question is often viewed in the context of whether a party is entitled to a directed verdict on liability or whether it is a matter that must be left to the 22 fact-finder. Under the facts in this case, we are of the opinion that reasonable minds could differ as to the factual determinations that were required to be made as to duty and causation. Thus, we cannot hold that the arbitrator s findings were such that they failed to recognize the duties of the two drivers or that his determination as to causation constituted a 23 mistake clearly appearing on its face. The arbitrator obviously believed from the evidence that at the time the truck blocked Wathen s lane of travel she was a sufficient distance from the truck that she should have avoided the collision. Clearly, others may strongly disagree with such a finding; 21 Scott, supra at Linden v. Davis, 309 Ky. 668, 218 S.W.2d 673 (1949); Bridge Transit Co. v. Leseuer, 304 Ky. 403, 200 S.W.2d 942 (1947). 23 Carrs Fork, supra at

14 nonetheless, determinations of this nature are understandably 24 left to the fact-finder. Since the arbitrator s findings were adequate, they cannot be vacated by judicial review. The judgment of the Daviess Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Jeanie Owen Miller Owensboro, KY BRIEF FOR APPELLEE: Van F. Sims Paducah, KY 24 Linden, supra; Leseuer, supra. -14-