Litton Bionetics, Inc. v. Glen Construction Co.

Davidson, J.,

dissenting:

Arbitration is the process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them. The arbitration process provides a speedy, informal, relatively inexpensive, and private procedure for resolving controversies arising out of commercial transactions, as well as a tribunal uniquely qualified to resolve such disputes. The arbitrator is not a public official imposed upon the parties by a superior authority, and he is not required to administer justice for a community which transcends the parties. Rather, he is a part of the system of self-government created by and confined to the parties and designed to serve their specialized needs. Schreiber v. Pacific Coast Fire Ins. Co., 195 Md. 639, 647 , 75 A.2d 108, 111-12 (1950); Dominion Marble Co. v. Morrow, 130 Md. 255, 260 , 100 A. 292, 293 (1917). See M. Domke, The Law and Practice of Commercial Arbitration, § 2.01 at 10 (1968); Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1016-18 (1955); Phillips, A Lawyer’s Approach to Commercial Arbitration, 44 Yale L.J. 31 , 40-41 (1934).

This Court has recognized that arbitration is a matter of contract which the parties should be allowed to conduct in accordance with their agreement and free of judicial interference. Indeed, with respect to the arbitration process, this Court, quoting then Chief Judge Cardozo, has said:

" 'The question is one of intention, to be ascertained by the same tests that are applied to contracts generally. * * * No one is under a duty to resort to these conventional tribunals, however helpful their processes, except to the extent that he has signified his willingness. Our own favor or disfavor of the cause of arbitration is not to count as a factor in the *58 appraisal of the thought of others.’ ” Continental Milling & Feed Co. v. Doughnut Corp. of America, 186 Md. 669, 675 , 48 A.2d 447, 450 (1946).

Here, the parties agreed that all claims arising out of their contracts should be decided by arbitration "in accordance with the Construction Industry Rules of the American Arbitration Association.” Those rules do not expressly authorize consolidation. Moreover, the American Arbitration Association has a long-standing policy of refusing to consolidate "absent the agreement of all parties or applicable contractual provisions authorizing joint arbitrations.” In my view, under the present circumstances, the parties intended that there be no consolidation unless the parties agreed.

Maryland Code (1974, 1980 Repl.Vol.) § 3-202 of the Courts and Judicial Proceedings Article provides:

"An agreement providing for arbitration under the law of the State confers jurisdiction on a court to enforce the agreement and enter judgment on an arbitration award.”

That section does not expressly authorize a court to order consolidation of arbitration proceedings.

This Court has repeatedly asserted that a statute may not be added to by judicial construction. Collier v. Connolley, 285 Md. 123, 128 , 400 A.2d 1107, 1109 (1979); Amalgamated Cas. Ins. Co. v. Helms, 239 Md. 529, 535-36 , 212 A.2d 311, 316 (1965). More particularly, we have reiterated that a court may not insert or omit words to make a statute express an intention not evidenced in its original form. Holy Cross Hosp. of Silver Spring, Inc. v. Maryland Employment Sec. Admin., 288 Md. 685, 698 , 421 A.2d 944, 950 (1980); Baltimore Gas & Elec. Co. v. Department of Health & Mental Hygiene, 284 Md. 216, 219 , 395 A.2d 1174, 1175 (1979); State Tax Comm’n v. Potomac Elec. Power Co., 182 Md. 111, 116 , 32 A.2d 382, 384 (1943).

Unlike my colleagues, I am unwilling to construe the words "enforce the agreement,” appearing in § 3-202, as expanding judicial jurisdiction to include authorization to *59 consolidate arbitration proceedings. I, therefore, find nothing in the language of § 3-202 that authorizes judicial interference with arbitration procedures established by the agreement of the parties. Accordingly, I respectfully dissent. I would hold that the trial court was without authority to consolidate the arbitration proceedings, and, therefore, I would affirm the trial court’s judgment. See, e.g., Consolidated Pacific Eng’r., Inc. v. Greater Anchorage Area Borough, 563 P.2d 252, 254-55 (Alaska 1977); Louisiana Stadium & Exposition Dist. v. Huber, Hunt & Nichols, Inc., 349 So.2d 491, 492-93 (La.App. 1977); Stop & Shop Companies Inc. v. Gilbane Bldg. Co., 364 Mass. 325, 329-31 , 304 N.E.2d 429, 431-32 (1973); J. Brodie & Son, Inc. v. George A. Fuller Co., 16 Mich.App. 137, 141-42 , 167 N.W.2d 886, 888 (1969); Balfour, Guthrie & Co. v. Commercial Metals Co., 93 Wash.2d 199, 202 , 607 P.2d 856, 857 (1980).

Judges Smith and Digges authorize me to state that they join me in the views expressed herein.