Opinion
No. COA05-603
Filed 21 March 2006 This case not for publication
Appeal by plaintiff from order entered 30 December 2004 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 December 2005.
Olive, Monnett Brown, PLLC, by Charles G. Monnett, III, for plaintiff. Morris, York, Williams, Surles Barringer, LLP, by Kimberly A. Gossage, for defendant.
Mecklenburg County No. 01 CVS 12258.
Plaintiff (Mary Sloop) appeals the trial court's order confirming an arbitration award in her favor for damages resulting from an automobile accident. The trial court confirmed the arbitration award, but denied plaintiff's claim for the addition of pre-judgment interest. We affirm.
The Amended Arbitration Award filed 24 May 2004 reads, in pertinent part, as follows:
The arbitration panel has unanimously answered the questions submitted as follows, namely:
1. Was the plaintiff, Mary Sloop, injured and damaged as a result of negligence of the defendant, Efrem T. Tesfazghi?
ANSWER: Yes.
2. What amount, if any, is the plaintiff entitled to recover for her personal injury?
ANSWER: $85,000.00.
The arbitration panel acknowledges that counsel for plaintiff made requests during the binding arbitration for pre and post-judgment interest from the date of filing of this action pursuant to North Carolina General Statutes Sections 24-1 and 24-5.
As a clarification of the previous arbitration award, the arbitration panel certifies that the original arbitration award of $85,000 did not include interest or costs.
The trial court's findings of fact in its order confirming the arbitration award read, in pertinent part, as follows:
1. On May 19, 1999, the Plaintiff and Defendant were involved in an automobile accident in Charlotte, North Carolina. As a result of that accident, the Plaintiff alleged that she sustained a rotator cuff injury and brought suit against the Defendant in Mecklenburg County Superior Court on June 22, 2001.
. . . .
5. The Plaintiff made a timely demand for binding arbitration on the underinsured motorist carrier.
. . . .
7. The binding arbitration took place on July 29, 2003 before a panel of three arbitrators.
8. As a result of the testimony and evidence presented at the arbitration, the arbitrators returned a unanimous arbitration award in which they awarded the Plaintiff $85,000.00. The arbitration award did not specify whether it included costs, interest or attorney's fees.
9. The Plaintiff sought an award of both pre-judgment and post-judgment interest pursuant to N.C.G.S. §§ 24-1 and 24-5 in her Complaint and to the arbitration panel prior to entry of the arbitration award. The arbitrators acknowledged Plaintiff's request for interest at the time the award was entered.
10. The Plaintiff subsequently filed a Motion to Confirm Arbitration Award with this Court. The Plaintiff's Motion to Confirm Arbitration Award asks the Court to add pre-judgment interest, post-judgment interest, costs and attorney's fees to the arbitration award. Plaintiff later abandoned her claim for attorney's fees.
. . . .
13. The arbitrators subsequently returned an amended arbitration award wherein they noted that interest and costs were not included in their original award of $85,000.00. The arbitration panel made no further changes to their original arbitration award.
14. The amended arbitration award was submitted to this Court.
. . . .
17. The Court in its discretion would allow Plaintiff's Motion for interest and costs but is of the opinion that it lacks the authority to do so based on the Court of Appeals' opinion in Eisinger v. Robinson, 596 S.E.2d 831 (June 1, 2004).
The trial court concluded as a matter of law that:
1. The Court lacks authority to amend or modify the arbitration award to add pre-judgment interest, post-judgment interest, costs or attorney's fees and, therefore, Plaintiff's motion for interest, costs and fees is denied;
2. The arbitration award of $85,000.00 issued by the arbitration panel shall be confirmed[.]
Plaintiff appeals the trial court's order confirming the amended arbitration award. Plaintiff's sole contention on appeal is that the trial court erred by refusing to include prejudgment interest in its judgment confirming the arbitration award of $85,000.00. We disagree.
While under N.C. Gen. Stat. § 24-5(b) (2005), "any portion of a money judgment designated . . . compensatory damages bears interest from the date the action is commenced until the judgment is satisfied[,]" it is well established that G.S. § 24-5(b) does not control the addition of prejudgment interest by a trial court to an arbitration award. See Eisinger v. Robinson, 164 N.C. App. 572, 596 S.E.2d 831 (2004); Palmer v. Duke Power Co., 129 N.C. App. 488, 499 S.E.2d 801 (1998). In Eisinger, this Court, quoting Palmer, stated,
"[w]e . . . reject plaintiff's argument that the arbitrator's award should be treated like a jury verdict, upon which a judge could then award prejudgment interest in entering judgment on that verdict. Plaintiff references and we have found no citation of authority for this proposition."
Eisinger, 164 N.C. App. at 576, 596 S.E.2d at 833 (quoting Palmer, 129 N.C. App. at 498, 499 S.E.2d at 807).
N.C. Gen. Stat. § 1-569.24 (2005), governs modification of an arbitration award and provides in pertinent part:
(a) Upon motion . . . the court shall modify or correct the award if:
(1) There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award;
(2) The arbitrator has made an award on a claim not submitted to the arbitrator, and the award may be corrected without affecting the merits of the decision on the claims submitted; or
(3) The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.
(b) If a motion made under subsection (a) of this section is granted, the court shall modify and confirm the award as modified or corrected. Otherwise, unless a motion to vacate is pending, the court shall confirm the award.
"[N.C. Gen. Stat. § 1-569.24] provides the sole means by which a party may have an award modified or corrected." Palmer, 129 N.C. App. at 496, 499 S.E.2d at 806 (citations omitted). "`[O]nly awards reflecting mathematical errors, errors relating to form, and errors resulting from arbitrators exceeding their authority shall be modified or corrected by the reviewing courts.'" Id. at 496-97, 499 S.E.2d at 807 (quoting Fashion Exhibitors v. Gunter, 41 N.C. App. 407, 414, 255 S.E.2d 414, 419 (1979)).
The plaintiff and defendant in Palmer submitted claims arising out of a motor vehicle collision to binding arbitration. Plaintiff filed a motion to confirm the arbitration award "including prejudgment interest[.]" Id. at 490, 499 S.E.2d at 803. The trial court confirmed the award, excluding prejudgment interest, and this Court affirmed. Addressing plaintiff's appeal, this Court concluded "that in requesting that `the Court . . . award prejudgment interest as required pursuant to N.C.G.S. § 24-5,' plaintiff implicitly made . . . a request [to modify the arbitration award]." Id. at 496, 499 S.E.2d at 806. After rejecting plaintiff's argument that G.S. § 24-5 controls the addition of prejudgment interest to arbitration awards, this Court in Palmer examined the terms of both the arbitration agreement and the arbitration award. The Palmer court found
neither the arbitration agreement nor the arbitration award . . . makes any provision for the award of prejudgment interest. Accordingly, confirming the award, the trial court was obligated to confirm the award as written, unless there was some mathematical error, error relating to form, or error resulting from the arbitrator exceeding his/her authority. . . . As the arbitrator's failure to include prejudgment interest was not due to mathematical error, error relating to form, or error resulting from his exceeding his authority, the trial court was without authority to modify the award to include prejudgment interest.
Id. at 498, 499 S.E.2d at 807-08.
Likewise, in Eisinger, the plaintiff and defendant agreed to settle claims resulting from an automobile accident through binding arbitration. Eisinger, 164 N.C. App. at 574, 596 S.E.2d at 832. "Plaintiff and defendant agreed at the time of the [arbitration] hearing that the award would be only for the value of the personal injury claim and would not include interest or costs." Id. Following entry of the arbitration award, plaintiff filed a motion for interest and costs. Id. In Eisinger, this Court concluded,
[t]hrough his motion for interest and costs, plaintiff essentially asked the trial court to modify the arbitration award which had been entered. . . . `[N.C. Gen. Stat. § 1-569.24] provides the sole means by which a party may have an award modified or corrected.' This statute allows for modification of an award by a court in only three limited situations: (1) evident miscalculation or evident mistake in a description, (2) arbitrators awarded upon a matter not submitted to them, or (3) the award was imperfect in form. Plaintiff's request for interest does not fall within any of these grounds permitting modification.
Id. at 577, 596 S.E.2d at 834 (quoting Palmer, 129 N.C. App. at 496, 499 S.E.2d at 806).
Plaintiff's request for prejudgment interest in the instant case was essentially a motion to modify the arbitration award. See id. We are bound by our previous decisions in Eisinger and Palmer. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.") (citations omitted). Following Eisinger and Palmer, we conclude "`the arbitrator[s'] failure to include prejudgment interest was not due to mathematical error, error relating to form, or error resulting from [the arbitrators] exceeding [their] authority[.]' Thus, the trial court was without authority to modify the award to include prejudgment interest." Eisinger, 164 N.C. App. at 577, 596 S.E.2d at 834 (quoting Palmer, 129 N.C. App. at 498, 499 S.E.2d at 808).
Plaintiff nonetheless argues that, because the amended arbitration award acknowledges plaintiff's request for prejudgment interest and explicitly states that the award does not include prejudgment interest, the amended award thereby "provides for the addition of prejudgment interest." We are not persuaded. Here, the amended arbitration award simply memorializes two facts, that plaintiff made a request for prejudgment interest and that prejudgment interest was not included in the award. Based on the express language of the arbitration award, we conclude the award in the case before us does not "make any provision for the award of prejudgment interest." See Palmer, 129 N.C. App. at 498, 499 S.E.2d at 807.
Because no grounds were established authorizing a modification of the arbitration award under G.S. § 1-569.24, the trial court did not err in confirming the arbitration award without the addition of prejudgment interest.
Plaintiff's assignments of error are overruled.
Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).