Dickinson v. Kaiser Foundation Hospitals

Opinion

ASHBY, J.

Appellant Eugene Dickinson’s medical malpractice action against respondent Kaiser Foundation Hospitals was subject to arbitration pursuant to the agreement of the parties. The matter was arbitrated before a panel consisting of a neutral arbitrator and two ar

[954]

bitrators chosen by the parties. The arbitrators determined that respondent, its agents and. employees had been negligent, and awarded appellant damages of $655,200. The arbitration award provided: “Each party shall bear his or its own costs, fees and expenses.” Appellant petitioned the superior court to partially confirm and “to correct” the award on the ground the arbitrators exceeded their powers by not awarding costs to appellant. The trial court entered judgment confirming the award, concluding appellant was not entitled to costs on the arbitration.

Appellant contends that as the prevailing party in the arbitration he was entitled to an award of his costs, claimed to be cover $9,000. This contention is wholly without merit. Code of Civil Procedure section 1284.2 provides: “Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit.” (See 3 Cal. Law Revision Com. Rep. (1961) p. G-52.)

Appellant misplaces reliance upon Code of Civil Procedure section 1032, which relates to costs “[i]n the superior court.” In arbitration matters, the Legislature has carefully distinguished between costs incurred in the arbitration and costs incurred in superior court to enforce an arbitration award. (Cf. Code Civ. Proc., § 1284.2 with Code Civ. Proc., § 1293.2; see

McRae

v.

Superior Court

(1963) 221 Cal.App.2d 166, 171-172 [34 Cal.Rptr. 346, 98 A.L.R.2d 1239];