from the Superior Court in Maricopa County No. CV2017-052727
The Honorable Susan M. Brnovich, Judge
Sherrets, Bruno & Vogt, LLC, Scottsdale By Jason M.
Bruno, Jared C. Olson, James D. Sherrets Counsel for
Cavanagh Law Firm, Phoenix By Timothy R. Hyland, Kimberly J.
Suciu Counsel for Defendant/Appellee
Presiding Judge James B. Morse Jr. delivered the opinion of
the Court, in which Judge Kent E. Cattani and Judge Lawrence
F. Winthrop joined.
Appellants Stefanie and Jeffery Fisher appeal a superior
court order affirming an arbitration award in favor of
Appellee USAA Casualty Insurance Co. ("USAA"). We
agree that the Fishers failed to file a timely objection;
therefore, their claim is waived, and we affirm the award.
AND PROCEDURAL HISTORY
The Fishers were involved in two low-speed car accidents
within one week of each other in the summer of 2012.
Following the accidents, Stefanie Fisher suffered
increasingly severe back and neck pain. She sought medical
treatment and eventually underwent surgery to fuse a
herniated disc. Stefanie attributed the pain to the car
accidents, and because the damages she claimed exceeded the
insurance limits of the other drivers, she filed an
underinsured motorist claim with her insurer, USAA. Pursuant
to the underinsured motorist policy, the claim was submitted
for arbitration before a single arbitrator.
The Fishers' original attorneys suggested the parties use
arbitrator Alan Goldman, and USAA agreed. One day prior to
the arbitration hearing, however, the Fishers' original
counsel voiced concerns about Goldman's potential
partiality. According to the Fishers, their counsel told them
that Goldman often served as an arbitrator for Jones, Skelton
& Hochuli ("JSH"), the law firm representing
USAA, and that this business relationship with the firm could
compromise his neutrality. Although counsel advised the
Fishers to settle, they chose to go forward with arbitration.
The arbitrator heard testimony from experts for both sides.
After weighing the evidence, he concluded that the low-impact
collisions did not cause Stefanie's extensive injuries.
Thus, the arbitrator did not award damages to the Fishers.
On December 8, 2016, through counsel, the Fishers filed a
motion to reconsider with the arbitrator. The motion
reiterated the evidence presented at the hearing but did not
mention any concerns over the arbitrator's impartiality.
The Fishers also demanded that their original counsel raise
the issue of conflict of interest, which caused the attorneys
to abruptly terminate their representation. Counsel's
motion to withdraw stated that the Fishers were pushing them
to take action that they considered unethical and repugnant.
On January 3, 2017, the Fishers filed a pro per motion for
reconsideration with the arbitrator and raised the issue of
partiality for the first time. After the arbitrator denied
that motion for reconsideration, the Fishers retained new
counsel and filed another motion to vacate the award due to
the arbitrator's alleged conflicts of interest and lack
of disclosure. In addition, the Fishers filed a motion to
allow discovery to investigate the arbitrator's possible
business relationship with JSH. The arbitrator did not rule
on the two motions, and the Fishers filed a motion to vacate
the arbitration award with the superior court.
With respect to the discovery issue, the court denied the
Fishers' motion, reasoning that the issue of partiality
may be waived, and case law does not support granting
post-arbitration discovery. On the motion to reconsider, the
court held further argument, and took the matter under
advisement. In its subsequent ruling, the court found that
the Fishers had waived their right to challenge the
arbitrator's alleged bias because they knew about the
arbitrator's relationship with opposing counsel prior to
the arbitration but did not raise any objection before or
during the arbitration hearing. The court went on to find
that, even absent waiver, the Fishers failed to show evidence
We have jurisdiction over the Fishers' timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution
and Arizona Revised Statutes ...