# Petition for Writ of Certiorari — Hartford Steam Boiler Inspection & Insurance v. Underwriters at Lloyd's & Companies Collective > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1279%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 544 U.S. 974 ## Text rr. 2 © Oh 916 JAN 3 ~ 2008 No. OFFICE OF THE CLERK In The Supreme Court of the Anited States -¢ HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, Petitioner, V. UNDERWRITERS AT LLOYD’S AND F COMPANIES COLLECTIVE, et ai., Respondents. ¢ On Petition For Writ Of Certiorari To The Supreme Court Of Connecticut ¢ PETITION FOR WRIT OF CERTIORARI « THOMAS E. BIRSIC . ROBERT L. BYER (Counsel of Record) PAUL K. STOCKMAN KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, Pennsylvania 15222 (412) 355-6500 MAURICE T. FITZMAURICE REID AND RIEGE, P.C. One Financial Plaza, 21st Floor Hartford, Connecticut 06103 (860) 240-1027 Attorneys for Petitioner Hartford Steam Boiler Inspection and Insurance Company COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED When arbitrators in rendering their award fail to comply with the parties’ arbitration agreement, and the agreed-upon time for rendering the award has expired, may the court remand the matter to the arbitrators for a post hoc corrective effort, even though Section 10(b) of the Federal Arbitration Act, 9 U.S.C. §10(b), clearly and unambiguously permits rehearing only when the time for rendering the award has not expired? PARTIES TO THE PROCEEDING The Petitioner is Hartford Steam Boiler Inspection and Insurance Company. The Respondents are Underwriters at Lloyd’s and Companies Collective, National Union Fire Insurance Company, International Fire Insurance Company, Aetna Casualty and Surety Company, Home Insurance Company, and Zurich Insurance Company. RULE 29.6 CORPORATE DISCLOSURE STATEMENT Petitioner Hartford Steam Boiler Inspection and Insurance Company is a wholly-owned subsidiary of the American International Group, Inc., a publicly-traded company. TABLE OF CONTENTS _ Page INE Tr OIE inincccnccccncdacsececccssstncsnonccoetatibichiies i Parties to the Proceeding «.....0...0.ccccccccccsescccceccssascoeees ii Rule 29.6 Corporate Disclosure Statement ............... ii I iia ol oc sna esehaeanngibaianenibaieninmhe iii Table of Authorities.......... Sidueketite aban eee v SIL TIT ssiinnuniisscnececsnonpesbesssacvcesccphiisbusubenstane 1 aN aisha ids ccebsangtnbhennberbeeanedeninnsesansadaehadtient 1 Se I a5 sind os ebcwisnepebtabsunseneneebeenienabianieniies 1 NIE CN MINIT i sccccnceccichiccebcsacisusdunsunsaneccsnvania 2 iis) UII 6 55d. siicdnehebnbeed Qebmcdpsdaceionabanteinadbudebige 2 II. The Underlying Arbitration Proceedings........ 3 ids... SEEN IDIIIIOD asiinacnccodecccchsandentcoevimanebasenpene 7 Reasons for Granting the Wit ...................ccccceeeeeeeees 11 I. The Decision Below, by Ignoring the Plain Language of the Federal Arbitration Act, Refuses to Follow This Court’s Commands Concerning the Interpretation of Federal Statutes................ 12 II. The Decision Below Conflicts with a Decision of the United States Court of Appeals for the Ninth Circuit, and Reflects a General Disar- ray in the Decisions of the Federal Courts of Appeals and Federal District Courts.............. 18 III. Judicial Displacement of the FAA’s Express Provisions with Implied Common Law Reme- dies Undermines Predictability and Threatens the Utility of Commercial Arbitration .............. 22 TEESE AL RT TSN FES ON PPE Te 27 iv TABLE OF CONTENTS -— Continued Page APPENDIX: Decision of the Supreme Court of Connecticut....App. 1 Decision of the Superior Court of Connecticut ....App. 28 v TABLE OF AUTHORITIES Page CASEs: Aetna Life & Cas. Co. v. Bulaong, 218 Conn. 51, 588 PDE COD sinicscsicictionsittincsiasieanuets (ad. 10 Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002).......... 17 Caminetti v. United States, 242 U.S. 470 Se Pieler 16 Chmielewski v. Aetna Cas. & Sur. Co., 218 Conn. OG, SPE AA TOS I iii St 10 Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 Wome Ol COR Che, SORE il ea 15, 21 Commissioner v. Gordon, 391 U.S. 83 OU tikacickadtat. 17 Connecticut Nat. Bank v. Germain, 503 U.S. 249 (RODD a ssnessccstinnisanakideiasinthhedcusteabdaii tiie scee et i ate 17 Continental Ins. Co. v. Acadia Ins. Co., 974 F. Supp. 371 (D. Vt. SIP E ) siisiinniinvanctminassinilih aia scile es el tae Mice ees 4 Cooper Indus., Inc. v. Aviall Serus., Inc., __ US. sees AMMO ES. Bs BIT CGY oss ngs ales oe oss 17 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 CLOT GD saisksnsononaiinnensseseeibissich ell lif chan. ees 11 Dean Witter Reynolds v. Byrd, 470 U.S. 213 (1985)....... 13, 24 Director, Office of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 UB. UBB NN hs ee 17 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)... 13, 24, 25 First Options of Chicago, Inc. v. Kaplan, 514 U.S. POD CET iscsi invcsnivacchincaninuncc ce ere 13, 23, 25 Galt v. Libbey-Owens-Ford Glass Co., 397 F.2d 439 (7 CO: BOD ici cissictinrtimtae cae ae 20 vi TABLE OF AUTHORITIES — Continued Green v. Ameritech Corp., 200 F.3d 967 (6th Cir. GED cacvcococacesnscvonnseneiianntnntaininiiniaiuenieipiasiiiainiiinaliaie 15, 20 Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1 (2000) ..........ccccccssscccccessssssccrsees 16 Hoffman v. Cargill, Inc., 59 F. Supp. 2d 861 (N.D. Iowa 1999), rev'd on other grounds, 236 F.3d 458 (Bide Cian SIGE wicccciececcnsiicnsctcskatcansectbillanbisivcbinsiaiaitcidiiied 21 International Bhd. of Teamsters, Local 631 v. Silver State Disposal Service, Inc., 109 F.3d 1409 (9th Gh BBG) ccercecesteserseincichiadethtecntaiasaadaes 15, 21 Lamie v. United States Trustee, 540 U.S. 526 (2004) ....... 16 La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d BOD GO Gils, BE? accecccitecncsttntgcainmetatictnntiaiiiaas 15, 21 M&C Corp. v. Erwin Behr GMBH & Co., 326 F.3d 772 (6th Cir. 2003)................ wescenscenescececsecssnceseensesess 15, 21 Mastrobuono v. Shearson Lehman Hutton, Inc., 514 CT, BD CID wreccecncscnecessnenceusbinsinachasdniacanaanenainiess 24 Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 (1981) ....................cccceceseee 18 Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614 (1985).........ccccccseesseseeeeees 12 Office & Prof’! Employees Int'l Union, Local 471 v. Brownsville Gen. Hosp., 186 F.3d 326 (3d Cir. ROBE ccncrcesccvescentsnnetionesinuinianiniicniainsineaanee 15, 21 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 CD, Fe Cree cccccassesestainstcctcstacsmaisenaneanl 25 Southland Corp. v. Keating, 465 U.S. 1 (1984)..............04. 1l State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983).......... 10 Vii TABLE OF AUTHORITIES — Continued 5 Page Sterling China Co. v. Glass, Molders, Pottery, GR GI Bop ei iccnssciccovsensictoiscubivttuntinmdibesiaeaekiate ae eT Stone Container Corp. v. Hartford Steam Boiler Insp. & Ins. Co., 165 F.3d 1157 (7th Cir. 1999)............... 4 Transamerica Mortgage Advisors v. Lewis, 444 U.S. Bb CORTON cncnnccacncnainitidinlincnbieidandiesiiaitacaitiaitidh acted ulti de 18 United States v. Ron Pair Enterprises, 489 U.S. 235 CED scniinkiisidincntahnicuslnsshepihdilitimedpiibapsibamleiile So secitil dae 16 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960)........... hodetneakions 13, 23 Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. RF Ca secentcesesaenvistanemtninisadens A hae 13, 14, 24, 25 Western Employers Ins. Co. v. Jefferies & Co., 958 F.2d 258 (9th Cir. 1992) .....................000000. 8, 14, 18, 19, 20 STATUTES: DU We vviaiecknicisistadeartindnteicabinddsRecaci te 1, 7, 23 CUM. 6 io ecvsitccce e 1,15 FP RAais UID aicanicctenmnscdendanscddolaenisbelisiakdenatinins taeel 14 © ULERES, © Ie ctettinsiinitiisinticisinieiieebtintotaaenes 14 9 U.S.C. § 10(a)(3) ......... easininaiaciasinaaniiadiataiaiiabasatiidseetihesiaaala 14 DF URed © SUID Sesssccsthenncntncassincincatiaediadiaienseuees 2, 14, 19 Ait Yi 3”. * SaRiRbRrrinetemt avai es passim BO TRIBAL. & BID scesessarseacaetseciniisevntichnngiaiineniacaemianat 1 TABLE OF AUTHORITIES — Continued Page COREE, GE SI: GS a ila icsetctinccinsaeiticcsinnintenseniniinss 7, 23 CONN. GEN. STAT. § 52-418(D) ..........:scccsssceesseeesseeesseeeeneeeees 9 CE, CE Bee i icennancnstanstencccntcasszinsstensascninsions 10 OTHER AUTHORITIES: 17A AM. JUR. 2D Contracts § 371 (2004) .........::esccceseseeeeees 22 Ian Ayres & Robert Gertner, Filling Gaps in In- complete Contracts: An Economic Analysis of Default Rules, 99 YALE L.J. 87 (1989) ........ceecececeseseeeees 23 17A C.J.S. Contracts § 348 (1999)............ccccssccccsssscccreeeees 22 Jane Massey Draper, Annotation, Coverage Under “All Risks” Insurance, 30 A.L.R.5TH 170 (1995).............. 4 2 E. Allan Farnsworth, FARNSWORTH ON CONTRACTS OD FB a i Be ccciacetitstetaintsnsiedshitanntisiiidbenphieliteiadasiai 23 Stephen L. Hayford, Law in Disarray: Judicial Standards for Vacatur of Commercial Arbitration Awards, 30 GA. L. REV. 731 (1996)................sssssscsssseeees 14 11 Samuel Williston & Richard A. Lord, A TREATISE ON THE LAW OF CONTRACTS § 30.19 (4th ed. 1999)........ 22 1 PETITION FOR A WRIT OF CERTIORARI Petitioner Hartford Steam Boiler Inspection and Insurance Company (“HSB”) respectfully prays that the Court grant a writ of certiorari to review the decision of the Supreme Court of Connecticut in Hartford Steam Boiler Inspection and Insurance Company v. Underwriter’s at Lloyd’s and Companies Collective, et al. & v OPINIONS BELOW The opinion of the Connecticut Supreme Court in this matter, Appendix (“App.”) 1-27, is reported at 271 Conn. 474 and at 857 A.2d 893. The opinion of the Connecticut Superior Court in this matter, App. 28-43, is reported at 32 Conn. L. Rptr. 659, and is available electronically at 2002 WL 31001841 and at 2002 Conn. Super. LEXIS 2634. 4 ~ JURISDICTION The Connecticut Supreme Court officially released its decision in this matter on October 12, 2004. App. 1. No party to the proceeding sought rehearing or reconsidera- . tion. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257(a). S STATUTES INVOLVED 9 U.S.C. § 10. Same [Award of arbitrators]; vacation; grounds; rehearing (a) In any of the following cases the United States court in and for the district wherein the 2 award was made may make an order vacating the award upon the application of any party to the arbitration — (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (b) If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. , Vv STATEMENT OF THE CASE I. Introduction. This case involves a recurring and unsettled question of federal arbitration law, on which the Connecticut Supreme Court and the United States Court of Appeals for the Ninth Circuit have disagreed: what is the proper remedy when an arbitration award fails to comply with requirements set forth in the parties’ arbitration agree- ment? The Federal Arbitration Act (“FAA”) plainly and unambiguously gives reviewing courts two options: they may either vacate the award, on the grounds that the arbitrators “exceeded their powers,” 9 U.S.C. § 10(a)(4), or they may (in their discretion) vacate and remand the matter to the arbitrators for rehearing, in order to correct any deficiency in the award, but only if “the time within which the agreement required the award to be made has not expired,” 9 U.S.C. § 10(b). 3 Some courts have faithfully applied these statutory commands, but many — including the courts below in this case — have permitted (even encouraged) a remand with- out regard to whether the arbitrators’ appointment has expired under the parties’ agreement. Such a result is flatly inconsistent with FAA’s plain terms. As such, it is also flatly inconsistent with this Court’s commands re- garding the proper interpretation of federal statutes. Such an ad hoc remedy is not merely wrong; engraft- ing such “common law” remedies onto a clear statutory regime effectively eliminates parties’ ability to predict or define ex ante the circumstances under which they may resolve their disputes, in a way that is inconsistent with the Congressional policies underlying the FAA. The disarray in the courts on this issue compounds this prob- lem, further threatening the predictable enforcement of arbitration agreements in transactions involving inter- state commerce. As a result, Petitioner HSB respectfully requests that the Court grant certiorari, and resolve definitively the circumstances under which the FAA permits courts to remand matters to arbitrators for clarifi- cation or supplementation. II. The Underlying Arbitration Proceedings. HSB and Respondents have stipulated to the essential facts. See App. 39-43. On August 11, 1993, there was a catastrophic explo- sion at Independence Steam Electric Station Unit Two (“ISES Unit Two”), a coal-fired power plant located near Newark, Arkansas, causing in excess of $28 million in damage. App. 40. The owners of ISES Unit Two promptly made claims for this loss under two insurance programs: 4 a boiler and machinery insurance policy issued by Peti- tioner HSB,’ and “all-risks” property insurance coverage underwritten by Respondents.’ App. 39-40. After investigating the loss, both HSB and Respon- dents denied coverage under their respective policies. App. 40. When faced with these reciprocal denials, the insureds invoked parallel “Loss Adjustment Endorsements” found in both policies, pursuant to which the policyholders were made whole. App. 40-41. Under the terms of the Loss Adjustment Endorse- ments, the coverage dispute between HSB and Respon- dents was then submitted to a panel of three arbitrators. App. 41. An initial arbitration hearing focused on the causes and progress of the explosion and on certain factual * Boiler and machinery insurance is “insurance of a specified, particular, definite and restricted kind.” Continental Ins. Co. v. Acadia Ins. Co., 974 F.Supp. 371, 374 (D. Vt. 1997) (internal quotation omitted). It “gives a manufacturer or other user of a narrow range of equipment in which [the B&M insurer] specializes additional protection for accidents involving the enumerated items, which besides moving or rotating machinery consists of steam boilers and closely related, specifically enumerated types of equipment.” Stone Container Corp. v. Hartford Steam Boiler Insp. & Ins. Co., 165 F.3d 1157, 1161 (7th Cir. 1999) (Posner, J.). * Respondents’ coverage is extremely broad, protecting the insureds against “all risks of direct physical loss or damage to the insured property,” unless specifically excluded. See generally Jane Massey Draper, Annotation, Coverage Under “All Risks” Insurance, 30 A.L.R.5TH 170 (1995) (“All-risks insurance . . . generally allows recovery for all fortuitous losses unless the policy contains a specific exclusion expressly excluding the loss from coverage.”). 5 questions relating to the application of policy language to technical design aspects of ISES Unit Two. App. 41. As a result of the panel’s resolution of these questions, it was clear that part of the loss fell within the coverage of Respondents’ “all risks” policies, and part of the loss fell within the coverage of HSB’s boiler and machinery insur- ance. App. 42. The award did not make it clear, however, how repair and restoration costs were to be allocated to each policy, and in the absence of such guidance, the parties were unable to agree on such an allocation among themselves. App. 42. Accordingly, HSB and Respondents re-submitted the matter to the arbitral panel for resolu- tion. App. 42. In connection with this submission, the parties and arbitrators agreed upon a set of “Revised Procedures to Govern the Phase II Arbitration Re: Allocation Issues.” App. 42. This contract defined the issues to be resolved in the second arbitration and established the duties of the arbitral panel. In essence, the arbitral panel was directed to allocate repair costs into five categories, and then was to “resolve all liability and allocation issues with respect to each category of costs ... , including, without limitation, all coverage issues.” App. 3. These agreed-upon procedures also provided that the panel was to render its award within thirty days after submission of the parties’ post- hearing briefs. Further, and of particular relevance to this case, these procedures required that “[t]he arbitration award shall be in writing and shall contain findings of fact and conclusions regarding the interpretation of the insur- ance policies that are the subject of this arbitration as necessary to support the award.” App. 4, 34 (emphasis - added). 6 This second-phase arbitration hearing took place on June 28 and 29, 2001 in Connecticut. App. 42. The panel rendered its award on January 24, 2002. App. 43.° ™ The panel concluded that $8,131,139.62 in costs were directly attributable to collapse. m™ The panel concluded that $7,563,239.90 in costs were directly attributable to excessive pressure within the furnace enclosure. = #86 The panel concluded, reiterating the parties’ agreement during the adjustment process, that $948,102.27 in costs were the sole 3s responsibility of Respondents, and that $1,012.80 in costs were the sole responsibil- ity of HSB. m@ The panel concluded that a total of $11,539,066.54 in costs were general project expenses that could not be attributable spe- cifically to collapse or overpressurization. See App. 4 n.3. The panel’s application of these factual conclusions to the matter at hand — the apportionment of the sum in dispute (as paid by HSB and Respondents) — reads in full as follows: b. The allocation of $21,182,461.13 paid under the Joint Loss Agreement has been resolved in accordance with policy coverages as follows: * Although the award would have been due by October 28, 2001, on October 24 — with four days remaining — this period was tolled at the panel’s request, in order for the arbitrators to consult an accountant. 7 ~ — Boiler & Machinery - $14,489,833.52 All Risk - $7,375,012.59 Total - $21,864,846.11 App 4. The award did not contain-any explanation as to how the arbitrators reached this conclusion, and had no expla- nation of how its interpretation of the language of the relevant policies led to this result. In consequence, HSB was denied the process it bargained for: an arbitration award that was the result of, and reflected, a disciplined and analytical adjudication, and that expressly took account of the relevant facts and the language of the two insurance policies at issue. Ill. Proceedings Below. Accordingly, HSB filed a petition with the Connecticut Superior Court, seeking vacatur of the January 24, 2002 award. App. 28, 31. Respondents asked the court to deny HSB’s motion and cross-moved to confirm the award. As an alternative, Respondents requested a remand to the arbitrators for clarification. App. 28, 31. In both instances, Respondents urged the Court to apply not the Connecticut Arbitration Act, CONN. GEN. STAT. § 52-418, but the essen- tially-identical terms of the FAA, 9 U.S.C. §10. The Superior Court held that both the Connecticut and Federal Arbitration Acts applied, App. 33, and concluded that under either statute the arbitrators had exceeded their authority by failing to comply with the requirements of the submission: Although the Panel in its Decision of Arbitrators dated January 24, 2002 recited the scope of the arbitration ... , there is no explanation or f, 8 resolution of coverage issues. Further, there are no facts that support the figures in paragraphs a and b on the last page of the Decision of Arbitra- tors. There are no supporting facts or allocation of liability or the reasons for the numbers that have been awarded as well as to which party li- ability should attach for each of these figures. Further in paragraph b there are neither sup- porting facts to adequately interpret the num- bers assigned to Boiler & Machinery nor the numbers assigned to All Risk. The findings are not sufficiently specific or comprehensive to com- ply with the requirement that all liability and al- location issues and all coverage issues be resolved, nor do the findings contain sufficient findings of fact and conclusions regarding the in- terpretation of the insurance polices that are the subject of this arbitration as necessary to support the award. App. 36-37. The court relied principally on Western Employers Insurance Co. v. Jefferies & Co., 958 F.2d 258 (9th Cir. 1992), which held that arbitrators exceed their authority where they fail to provide findings of fact and conclusions of law as required by the terms of the submis- sion. App. 34.* Even though the Superior Court agreed with HSB about the sufficiency of the award, the Court declined to vacate the award, as HSB requested, and as had been done in the Western Employers case. Instead, the court remanded the matter to the arbitral panel, nominally ‘ The Superior Court also rejected Respondents’ contention that HSB had, through statements of counsel at the arbitration hearing, waived its right to findings of fact and conclusions of law. App. 32. 9 pursuant to Section 52-418(b) of the Connecticut General Statutes, which provides that “If an award is vacated and the time within which the award is required to be ren- dered has not expired, the court or judge may direct a rehearing by the arbitrators.” App. 37-39. The court did so even though it found that “the time within which the award is required to be rendered” had already expired, declining to enforce that statutory limitation. App. 37-38. HSB appealed this determination, believing that a post hoc “backfill” of findings and reasoning to justify a predetermined conclusion was not ‘what it bargained for. In its appeal, HSB contended that both the plain language of the Connecticut Arbitration Act and the FAA’s identical provisions permitted remand only where the time to render an award had not passed. The Connecticut Su- preme Court, exercising its statutory authority, trans- ferred the appeal from the Court of Appeals to itself. App. 5. Respondents moved to dismiss the appeal, contending that appeals could lie only from orders “vacating” the award; they characterized the opinion below — even though it applied a statutory provision nominally requiring vacatur before remand — as a “simple remand” to the arbitrators for clarification, rather than a vacatur and remand.’ Consideration of the jurisdictional issue was postponed for resolution together with the merits of the appeal. * Respondents also cross-appealed, challenging the Superior Court’s finding that HSB had not waived its right to findings and conclusions. 10 The Connecticut Supreme Court agreed with Respon- dents. First, the court held that the FAA, and not the Connecticut Arbitration Act, governed the proceedings. App. 10-11. The court then ruled that “federal precedent ... informs us that a court may remand without vacating a case to an arbitrator for clarification of a final award, pursuant to the [Federal Arbitration Act].” App. 12-13.° “Having determined that the trial court had the authority to remand the case to the arbitration panel,” the court considered whether HSB “may appeal the remand order at this time.” App. 23. The court concluded that HSB could not, because “the trial court did not vacate the award, or otherwise confirm, modify or correct it.” App. 24 (paraphrasing CONN. GEN. STAT. § 52-423). The court also held that Connecticut’s analogue to the “collateral order” doctrine did not permit interlocutory review of the Supe- rior Court’s order. App. 24-26 (relying on State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566, 569-70 (1983), and its progeny). Accordingly — despite having ruled on the merits of the very question presented by HSB’s appeal, App. 5, 11- 23, and despite agreeing with HSB and the Superior Court that the award did not conform to the parties’ arbitration agreement, App. 27 — the Connecticut Supreme Court * In essence, the Court reached out to decide the issue as a matter of federal law, in order to avoid overruling two of its own precedents. Had the Court applied the Connecticut Arbitration Act, it would have been required to confront those decisions, both of which held — consis- tent with the statutory language — that courts could not remand matters to arbitrators where the time to render the award had expired. See Chmielewski v. Aetna Cas. & Sur. Co., 218 Conn. 646, 680, 591 A.2d 101, 118 (1991); Aetna Life & Cas. Co. v. Bulaong, 218 Conn. 51, 64 & n.11, 588 A.2d 138, 145 & n.11 (1991). Because of these precedents, there is no alternative state law ground that can support the holding here. 11 dismissed the appeal. App. 1, 27. HSB seeks review of this decision.’ . ¢ REASONS FOR GRANTING THE WRIT As noted, the Connecticut Supreme Court’s decision is flatly inconsistent with the unambiguous language of the Federal Arbitration Act, which expressly permits a remand to the arbitrators only where the award has first been vacated, and only when “the time within which the agree- ment required the award to be made has not expired,” 9 " Although further proceedings are contemplated, this matter nonetheless is final and ripe for review by this Court. First, as a practical matter, “the federal issue, finally decided by the highest court in the State,” inevitably “will survive and require decision regardless of the outcome of future state-court proceedings.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 480 (1975). This is because the Connecticut Supreme Court has precluded the arbitrators from altering the ultimate result of the arbitration, App. 13-14, leaving HSB aggrieved regardless of the outcome. Even if HSB is able, following the arbitra- tor’s supplemental findings, to obtain vacatur of the award on some ground not presently revealed in the record — a possibility that candidly appears far-fetched at present — this issue would remain as an alterna- tive ground justifying vacatur of the award in Respondents’ inevitable appeal. Second, “reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action,” and “a refusal immediately to review the state court decision might seriously erode federal policy.” Cox, 420 U.S. at 482-83 (1975); accord Southland Corp. v. Keating, 465 U.S. 1, 6-7 (1984). Here, as in Cox, the Connecticut Supreme Court’s judgment “is plainly final on the federal issue and is not subject to further review in the state courts,” 420 U.S. at 485, and, if the Court rules in HSB’s favor on the issue presented in this petition, “this litigation ends,” id. at 486. Further, the Court has previously held that the Federal Arbitration Act and its underlying policies effectuate a compelling federal policy and therefore justify immediate appellate review. See Southland, 465 U.S. at 7-8. 12 U.S.C. § 10(b). The decision below — relying on misguided decisions from other courts — effectively added a third extra-statutory option, permitting remand without regard to Section 10(b)’s limitations. Whatever merit this might conceivably have as a matter of policy, it is impossible to reconcile with the commands this Court has given regard- ing the construction of federal statutes. Compounding this error is the fact that it in turn manifests and aggravates an existing disarray in applica- ble case law. In particular, the decision below is impossible to square with a conflicting decision, on almost-identical facts, from the United States Court of Appeals for the Ninth Circuit. This confusion is not only troubling as an abstract matter: more practically, it effectively eliminates parties’ ability to predict or define ex ante the circum- stances under which they may resolve their disputes, in a way that is inconsistent with the Congressional policies underlying the FAA. Accordingly, this Court’s review is needed to give effect to the plain language of the FAA, and to vindicate the Act’s basic policy, which is “at bottom ... the enforce- ment of private contractual arrangements.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985). I. The Decision Below, by Ignoring the Plain Language of the Federal Arbitration Act, Re- fuses to Follow This Court’s Commands Con- cerning the Interpretation of Federal Statutes. This Court often has observed that the FAA’s essential purpose is to promote freedom of contract by guaranteeing that contracts are enforced according to their terms. 13 See, e.g., EEOC v. Waffle House, Inc., 534 U.S. 279, 289 (2002) (“The FAA ... ensures the enforceability of private agreements to arbitrate. ... ”); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Uni- versity, 489 U.S. 468, 476 (1989) (“the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate”); Dean Witter Reynolds v. Byrd, 470 U.S. 213, 221 (1985) (“The preemi- nent concern of Congress in passing the Act was to enforce private agreements into which parties had entered. .. . ”). As a necessary corollary to this fundamental Congres- sional purpose, this Court has long made it clear that “{ajrbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit.” See Volt, 489 U.S. at 479. Accordingly, the parties “may limit by contract the issues they will arbitrate,” Volt, 489 U.S. at 479, “may specify by contract the rules under which that arbitration will be conducted,” id., and “cannot be required to submit to arbitration any dispute which [they have] not agreed so to submit,” United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). Accordingly, although the grounds for avoiding an unfavorable arbitration result are few and narrow, and courts will set aside arbitration awards “only in very unusual circumstances,” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995), the FAA requires courts to invalidate arbitration awards where, inter alia, “the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award 14 upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4).* One such circumstance, courts and commentators agree, is when the arbitrators’ award fails to conform to the requirements set out in the parties’ arbitration agree- ment. See, e.g., Western Employers Ins. Company v. Jeffer- ies & Co., 958 F.2d 258, 262 (9th Cir. 1992) (where arbitrators “failed to arbitrate the dispute according to the terms of the arbitration agreement, they “exceeded their authority under” 9 U.S.C. § 10(a)(4), because “arbitrators can ... ‘exceed their powers’ ... when they fail to meet their obligations, as specified in a given contract, to the - parties”); Stephen L. Hayford, Law in Disarray: Judicial Standards for Vacatur of Commercial Arbitration Awards, 30 Ga. L. REV. 731, 753-54 (1996) (“If an arbitrator fails to comply with an express requirement set forth in the arbitration agreement as to the form, nature or content of the arbitration award, the award will be vacated.”). Indeed, if the courts were to enforce arbitration awards that are inconsistent with the parties’ agreement to arbitrate, it would be — in this Court’s apt words in an analogous context — “quite inimical to the FAA’s primary purpose of ensuring that agreements to arbitrate are enforced according to their terms.” Volt, 489 U.S. at 479. * This is the only express ground for vacatur of an award that relates to the substance of the arbitration award itself. The remaining grounds for vacatur are directed to the integrity of the arbitral process itself, requiring remand, for example, “where the award was procured by corruption, fraud, or undue means,” 9 U.S.C. § 10(aX(1); or “where there was evident partiality or corruption in the arbitrators,” 9 U.S.C. § 10(aX2); or “where the arbitrators were guilty of misconduct” in conducting the arbitration hearing, 9 U.S.C. § 10(a)(3). 15 When there is such a defective award, the FAA by its terms offers the reviewing court only two options. First, the court may vacate the award. 9 U.S.C. § 10(a). Second, the court “in its discretion,” may “direct a rehearing by the arbitrators,” but only if it vacates the award and “the time within which the agreement required the award to be made has not expired.” 9 U.S.C. § 10(b). To this exclusive list of options, the Connecticut Supreme Court — adopting the suggestion of other courts — added a third: it affirmed an order remanding the award, without vacating it, and without regard to any temporal limitation upon the arbitrators’ ability to act (as set forth in the arbitration agreement). App. 11-23. It did so by looking to Court of Appeals cases — principally from the Third and Sixth Circuits — which have held that remand is appropriate to clarify an ambiguous award. App. 11-23 (citing, inter alia, Sterling China Co. v. Glass, Molders, Pottery, Plastics & Allied Workers, Local 24, 357 F.3d 546 (6th Cir. 2004); M&C Corp. v. Erwin Behr GMBH & Co., 326 F.3d 772 (6th Cir. 2003); Green v. Ameritech Corp., 200 F.3d 967 (6th Cir. 2000); Office & Prof’ Employees Int'l Union, Local 471 v. Brownsville Gen. Hosp., 186 F.3d 326, 331 (3d Cir. 1999); International Bhd. of Teamsters, Local 631 v. Silver State Disposal Service, Inc., 109 F.3d 1409 (9th Cir. 1997); Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327 (3d Cir. 1991); La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569 (3d Cir. 1967)). The court did so even though it recognized that “there is no explicit provision in the [FAA] for such a remand,” App. 13 (quoting Colonial Penn v. Omaha Indemnity, 943 F.2d at 333-34). Further, the court expressly disregarded the temporal limitations in 9 U.S.C. § 10(b): because “the trial court remanded but did not vacate the award,” the 16 court reasoned, “any time limitation contained in § 10(b)” was rendered “inapplicable.” App. 21 n.16. Even so, the court approved such a “common law” remedy without hesitation, purportedly because it “is consistent with, and furthers, the federal and state policies “voring arbitration as a means for expedient resolution of disputes,” and (posited the court) will give the parties “an arbitration award in accordance with the terms agreed to in their governing procedures.” App. 21-23.” - By effectively rewriting the FAA in such a fashion, to insert an additional remedy for defective awards that bears none of the constraints otherwise imposed by the FAA’s express terms, the Connecticut courts (as well as other courts sanctioning remand outside the strictures of 9 U.S.C. § 10(b)) have fundamentally violated this Court’s directions for the proper construction of federal statutes. After all, as this Court has said time and again, when a statute’s language is plain — as it is in the case of 9 U.S.C. § 10(b) — the “‘sole function of the . . . courts is to enforce it according to its terms.’” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000), in turn quoting United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989), in turn quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). In that case, “‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’” * HSB disagrees: as noted above, see supra at 5, 7, it bargained for a principled arbitration award that was derived from and accompanied by findings and conclusions, not merely a set of post hoc justifications intended to support a predetermined conclusion. That is more appro- priately a matter for consideration on the merits, however. 17 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)). A court may not “add features” to a statu- tory scheme simply because it believes that those features “will achieve the statutory ‘purposes’ more effectively.” See Director, Office of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 136 (1995). Nor may a court “disregard requirements simply because it considers them redundant or unsuited to achieving the [statute’s] general purpose in a particular case.” Commissioner v. Gordon, 391 U.S. 83, 93 (1968). Furthermore, if courts may freely remand arbitration awards that are incomplete, ambiguous, or otherwise facially defective, without vacatur as a condition precedent and without regard to whether an arbitrator’s tenure has otherwise expired, that “common law” arbitration rule will swallow the more-restrictive provisions of 9 U.S.C. § 10(b). Why would courts rely on Section 10(b), with its limita- tions, when instead they can simply remand awards for clarification? As a result, the decision below contradicts another of this Court’s directions on statutory construc- tion, most recently reiterated just three weeks ago: the admonition that courts must, wherever possible, construe statutes to “give every word some operative effect,” and that courts conversely should not read a statute in a manner that would render part of it “entirely superfluous.” Cooper Indus., Inc. v. Aviall Servs., Inc., ___ U.S. __, 125 S. Ct. 577, 583-84 (2004). The implication of “common law” remedies is particu- larly inadvisable where, as here, there is a comprehensive statutory scheme, with an existing menu of remedial options for defective arbitration awards. “‘[I]t is an ele- mental canon of statutory construction that where a statute Bn ey 18 expressly provides a particular remedy or remedies, a court must be chary of reading others into it.’” Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 14-15 (1981) (quoting Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 19 (1979)). In such situations, this Court advises that we are “compelled to conclude that Congress provided precisely the remedies it considered appropriate.” Jd. at 15. Simply put, it was not the Connecticut Supreme Court’s job to rewrite a federal statute simply because it believed that an additional remedy may be useful or generally consistent with the law’s overall thrust. Such an effort contravenes this Court’s commands, and merits this Court’s intervention. : II. The Decision Below Conflicts with a Decision of the United States Court of Appeals for the Ninth Circuit, and Reflects a General Disar- ray in the Decisions of the Federal Courts of Appeals and Federal District Courts Law. Such an ad hoc remedy, though troubling, might perhaps be tolerable if courts were uniform in applying it. That is not the case, however: the Connecticut Supreme Court’s decision is squarely inconsistent with the Ninth Circuit’s decision in Western Employers Insurance Co. v. Jefferies & Co., 958 F.2d 258 (9th Cir. 1992), a case that is for all practical purposes indistinguishable. In that case, involving an arbitration dispute arising out of a securities trading agreement, the parties’ arbitra- tion agreement required that the award be accompanied by “findings of fact and conclusions of law.” 958 F.2d at 259. When the award was rendered without such findings 19 or conclusions, Western Employers filed a motion to vacate the award. Although the district court denied the motion, the Ninth Circuit disagreed, and directed the district court to vacate the award: We... believe that the circumstances underlying the dispute between Western and Jefferies impli- cate traditional principles of contract law, which are recognized in the Federal Arbitration Act. Under these traditional principles, Western had a right-to receive what it bargained for — arbitra- tion according to the terms of its contract with Jefferies. By failing to abide by the contract from which NASD derived its power to hear the dis- pute, the arbitrators exceeded their powers un- der [9 U.S.C. § 10(a)(4)] of the Act. Id. at 260. This case is no different: the arbitration agreement ~ here required “findings of fact and conclusions regarding the interpretation of the insurance policies” at issue, App. 4, 34, and no such findings or conclusions are present, as the Connecticut Superior Court and Supreme Court both held, App. 27, 36-37. Although the court below attempted to distinguish Western Employers, its efforts are unpersuasive. It grounded its refusal to follow Western Employers upon the fact that there was evidence in that case that the arbitra- tors had affirmatively refused to provide findings. App. 20- 21 n.15. Here, by contrast, there is nothing in the record to shed light on whether the arbitrators’ failure was a delib- erate refusal to abide by the arbitration agreement or was instead simply a negligent oversight. That is, however, a distinction without a difference: nothing in the text of the FAA conditions the remedy for a defective award on 20 whether the defect was the result of intentional miscon- duct or inadvertent mistake. In either case, the parties did not receive the benefit of their bargain, and in either case the FAA’s express terms provide that the appropriate remedy is vacatur, followed in appropriate cases by rehear- ing if (and only if) the arbitrator’s time to render an award has not expired. In reaching its decision, the Connecticut Supreme Court created directly a conflict that had previously arisen in principle in 2000, when the Sixth Circuit decided Green v. Ameritech. In that case, the arbitration agreement required that the award “explain” the arbitrator’s decision. 200 F.3d at 970. One of the litigants sought vacatur of the award on the ground that it did not conform to this re- quirement. The court held as an initial matter that the award did “explain” the arbitrator’s decision (albeit not as completely as the appellant had hoped), and distinguished Western Employers on that ground. Id. at 974-76. In dictum, however, the court suggested that the proper remedy for a defective award would not have been vacatur, but rather would have been a remand for “clarification.” Id. at 976-78. The court reached that ruling without citing Section 10(b). The court’s oversight in that respect was - essential to its reasoning, since the 21-day time limit within which the award was to have been rendered, see id. at 970 (quoting the arbitration agreement), had long expired. More broadly, the law remains in considerable disar- ray on this point. Some cases — too few, in light of the statute’s clarity — are faithful to the dictates of Section 10(b), either applying it in the course of directing remand or declining to remand because the time for rendering the award has lapsed. See, e.g., Galt v. Libbey-Owens-Ford 21 Glass Co., 397 F.2d 489, 442 (7th Cir. 1968); Hoffman v. Cargill, Inc., 59 F. Supp. 2d 861, 896 (N.D. Iowa 1999), rev'd on other grounds, 236 F.3d 458 (8th Cir. 2001). Most courts fail to cite Section 10(b) at all in the course of discussing remands to arbitrators. See, e.g., Sterling China Co. v. Glass, Molders, Pottery, Plastics & Allied Workers, Local 24, 357 F.3d 546 (6th Cir. 2004); M&C Corp. v. Erwin Behr GMBH & Co., 326 F.3d 772 (6th Cir. 2003); Office & Prof’ Employees Intl Union, Local 471 v. Brownsville Gen. Hosp., 186 F.3d 326, 331 (3d Cir. 1999); International Bhd. of Teamsters, Local 631 v. Silver State Disposal Service, Inc., 109 F.3d 1409 (9th Cir. 1997). In those instances, any. compliance with Section 10(b)’s temporal limitation is purely accidental. One decision, Colonial Penn Insurance Co. v. Omaha Indemnity Co., 943 F.2d 327 (3d Cir. 1991), went so far as to cite and discuss Section 10(b) — “we note that the Act itself provides for a remand to the arbitrators for purposes of rehearing in certain circumstances,” id. at 334 — yet inexplicably failed to apply it to the matter at bar. As a result, there now are at least two divergent lines of precedent as to the proper result when an arbitration award fails to comply with the parties’ agreement. Some courts will remand for “clarification,” on an ad hoc basis, without regard for the provisions of 9 U.S.C. § 10(b), while others are more faithful to the statutory text (whether deliberately or accidentally) and will vacate the award on * Many of these rely on (or vite cases that in turn rely on) the Third Circuit’s decision in La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569 (3d Cir. 1967). That case, however, never had occasion to consider the FAA at all; instead, it was ruling on the availability of a remand for clarification as a matter of Pennsylvania common law (which, the court determined, governed the arbitration at issue there). - a 22 the grounds that the arbitrators exceeded their powers. In order to resolve this direct conflict, and to ensure that the FAA’s language is given full effect by courts reviewing arbitration awards, this Court’s assistance is needed. III. Judicial Displacement of the FAA’s Express Provisions with Implied Common Law Reme- dies Undermines Predictability and Threat- ens the Utility of Commercial Arbitration. _ More broadly, this disarray in the law, as exemplified by the decision below, threatens to undermine one of the great values of arbitration — the predictability of non- judicial dispute resolution mechanisms — and is inconsis- tent with the federal policies underlying the FAA. It is, after all, an elementary principle underlying the law of contracts that private agreements should be en- forced according to their terms.” It is an equally elemen- tary principle of law that the parties’ contract terms are deemed to incorporate existing principles of law: “it is presumed that parties contract with knowledge of, or in reliance on, existing law; accordingly it is presumed that the parties had such law in contemplation when the contract was made.” 17A C.J.S. Contracts § 348 (1999); accord 11 Samuel Williston & Richard A. Lord, A TREATISE ON THE LAW OF CONTRACTS § 30.19, at 351-52 (4th ed. 1999); 17A AM. JUR. 2D Contracts § 371 (2004). These rules provide a predictability that is necessary for stable com- mercial relations: parties can be confident that their contractual rights will be enforced and can, when existing " As noted, see supra at 12-14, this is itself the core principle underlying the FAA. 23 “off the shelf” principles of law are inconsistent with their intention, negotiate around them (so long as their bargain does not offend other principles of public policy). See generally, e.g., 2 E. Allan Farnsworth, FARNSWORTH ON CONTRACTS § 7.16, at 351-52 (3d ed. 2004); Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Analysis of Default Rules, 99 YALE LJ. 87 (1989). Accordingly, the law necessarily discourages courts from implying additional contract terms or remedies, beyond those provided by the parties themselves or by well-defined principles of law. These principles apply with equal vigor to arbitration, a matter that is, as the Court has noted, “simply a matter of contract between the parties.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995); accord United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). If parties entering into an agreement providing for arbitration cannot determine, before a dispute arises, the manner in which the arbitra- tion will proceed and the circumstances under which an award will stand or fall - whether provided by the FAA, or other potentially-applicable statute,” or by the agreement itself — it may discourage the parties from resorting to arbitration. After all, one of the primary purposes of arbitration is to resolve disputes before capable arbitrators * As an aside, under the Connecticut Supreme Court’s reasoning, it is difficult to envision a circumstance under which a state arbitration act could continue to apply to a dispute. The Connecticut Arbitration Act as placed in issue here in no way can be said to be inconsistent with the FAA (the operative provisions relevant here are essentially identi- cal, compare 9 U.S.C. § 10 with CONN. GEN. Stat. § 52-418), yet the Connecticut court disregarded completely its own state statute (and its own precedents construing that statute). 24 in a manner that is more efficient and predictable than the vagaries of litigation before lay juries. The existing confusion in the law aggravates this concern. If extra-statutory remedies are applied inconsis- tently, the parties not only cannot rely on the unambigu- ous language of the relevant statute, but also lack even the ability to forecast the course of their arbitration using clearly-defined principles of common law. Admittedly, the creation of such ad hoc remedies is tempting, in order to clear judicial dockets and further the “federal policy favoring arbitration,” Volt, 489 U.S. at 476. The court below explicitly succumbed to this temptation, believing that it would “further[] ... policies favoring arbitration as a means for expedient resolution of dis- putes.” App. 21-22. Nevertheless, as this Court has often counseled, courts must not allow themselves to be seduced by such considerations. “[W]e must not ... allow the fortuitous impact of the Act on efficient dispute resolution to over- shadow the underlying motivation,” i.e., the “desire to enforce agreements into which parties had entered.” Dean Witter Reynolds v. Byrd, 470 U.S. 213, 220 (1985). See also EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002) (“we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is impli- cated”); id. at 293 n.9 (noting that the Court’s precedents “direct courts to respect the terms of the agreement without regard to the federal policy favoring arbitration”). Put otherwise, “the FAA’s proarbitration policy does not operate without regard to the wishes of the contracting parties.” Mastrobuono v. Shearson Lehman Hutton, Inc., 25 514 U.S. 52, 57 (1995). Or, more bluntly, the FAA was designed “to make arbitration agreements as enforceable as other contracts, but not more so.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12 (1967) (emphasis added). As a result, this Court’s precedents direct lower courts to abide by the parties’ agreement, even when it seems to the court to be inconsistent with its conception of the best way to proceed.” As this Court has observed, “we do not _ override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated.” EEOC v. Waffle House, 534 U.S. at 293. Or, stated other- wise, “the basic objective in this area is not to resolve disputes in the quickest manner possible, no matter what the parties’ wishes, but to ersure that commercial arbitra- tion agreements, like other contracts, are enforced accord- ing to their terms, and according to the intentions of the parties.” First Options v. Kaplan, 514 U.S. at 947 (cita- tions and internal quotation omitted). A clear understanding that remands to arbitrators are governed exclusively by Section 10(b) of the FAA, 9 U.S.C. § 10(b), with its limitations, will better enable parties to effectuate their contractual intentions in entering into - arbitration. That is because it will permit the parties to define for themselves the circumstances under which arbitrators will be permitted to revisit its award (by accepting the default statutory rule, or by expressly * Cf. Volt, 489 U.S. at 479 (holding that enforcement of the rules agreed upon by the parties, “is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward”). 26 providing such a right). (In the alternative, should Con- gress determine as a matter of policy that Section 10(b) is too restrictive, it may amend the law.) In sum, the existing disorder in the law — by causing uncertainty as to whether or how facially-defective arbitration awards can be remanded back to arbitrators for “clarification” — threatens the predictable enforcement of private arbitration contracts, in violation of the core policies undergirding the FAA. Therefore, this Court should step in and clarify that Section 10(b), 9 U.S.C. § 10(b), means what it says, and permits remand only if an award is first vacated, and only if the time in which the arbitrators are to act has not expired. ¢ 27 CONCLUSION For the foregoing reasons, this Court should grant a writ of certiorari to the Supreme Court of Connecticut. Respectfully submitted, THOMAS E. BIRSIC ROBERT L. BYER (Counsel of Record) PAUL K. STOCKMAN KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, Pennsylvania 15222 (412) 355-6500 MAURICE T. FITZMAURICE REID AND RIEGE, PC. One Financial Plaza, 21st Floor Hartford, Connecticut 06103 (860) 240-1027 Counsel for Petitioner Hartford Steam Boiler Inspection and Insurance Company App. 1 857 A.2d 893 Supreme Court of Connecticut. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY : v. UNDERWRITERS AT LLOYD’S AND COMPANIES COLLECTIVE et al. No. 17024. Argued March 22, 2004. Decided Oct. 12, 2004. Thomas E. Birsic, pro hac vice, with whom were Paul K. Stockman, pro hac vice, and Maurice T. Fitz-Maurice, Hartford, for the appellant-appellee (plaintiff). Linda L. Morkan, with whom were Clayton H. Farn- ham, pro hac vice, and, on the brief, Patrick J. Sweeney, Hartford, for the appellees-appellants (defendants). SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js. ZARELLA, J. The determinative issue in this appeal is whether the judgment of the trial court directing a rehearing by the arbitration panel to clarify the award constitutes a final judgment or an otherwise appealable interlocutory order, thereby implicating our subject matter jurisdiction. We determine that the trial court’s remand order does not constitute a final judgment or an appealable interlocutory order and, therefore, that we lack subject matter jurisdic- tion to review the merits of the claims of the plaintiff, Hart- ford Steam Boiler’ Inspection and Insurance Company (Hartford Steam Boiler), on its appeal and of the defendants, App. 2 Underwriters at Lloyd’s and Companies Collective et al.’ (underwriters), in their cross appeal. The following facts are relevant to this case. On August 11, 1993, a catastrophic explosion at an electrical generating facility near Newark, Arkansas, caused more than $28 million in damage. The owners of the facility, Arkansas Power and Light Company and others (collec- tively referred to as the insureds), submitted claims to two insurance providers, Hartford Steam Boiler, which pro- vided boiler and machinery insurance, and the underwrit- ers, which provided “all risks” property insurance. After investigating the losses, however, both providers denied coverage for the claims, determining that their respective policies did not cover such losses. Thereafter, the insureds invoked the “Loss Adjust- ment Endorsements” provisions contained in both policies. These provisions enabled the insureds to recover the total losses caused by the explosion by collecting one half of the amount in dispute from each insurance company. As a result, Hartford Steam Boiler paid $10,933,435.86 to the insureds and the underwriters paid $11,880,525.33. The loss adjustment endorsements also contained a provision enabling Hartford Steam Boiler and the underwriters, after payment to the insureds, to submit any dispute as to respective liability to arbitration, which they did. The initial arbitration, referred to by the parties as phase I, commenced in Memphis, Tennessee, in 1996, and * In addition to Underwriters at Lloyd’s and Companies Collective, the defendants include National Union Fire Insurance Company, International Fire Insurance Company, Aetna Casualty and Surety Company, Home Insurance Company and Zurich Insurance Company. App. 3 was governed by procedures agreed to by Hartford Steam Boiler and the underwriters. On January 9, 1997, the arbitration panel issued an interim award and, thereafter, it issued a supplemental clarified decision in response to the parties’ questions as to the meaning of the initial award. As a result of these decisions, Hartford Steam Boiler and the underwriters agreed that each of their policies covered a portion of the losses but they did not agree as to the apportionment of their respective liability. Because of this disagreement as to the allocation of the losses, Hartford Steam Boiler and the underwriters resubmitted the matter to the arbitration panel, thereby commencing phase II of the arbitration. The parties stipulated to a statement of issues, which was limited to a determination of: “1. which costs are directly attributable to the collapse of the coutant support structure (i.e., the ‘bottom’ costs); 2. which costs are directly attributable to explosion and/or overpressurization associated with Unit Two (i.e., the ‘top’ costs); 3. which costs are directly attrib- utable to fire, firefighting, or the explosion in D Mill; 4. which costs are common or general project costs that are not allocable into categories (a), (b) or (c); and 5. any costs whose purpose or allocation cannot be determined from available evidence, or that do not otherwise fall within categories (a), (b) or (c).” The statement of issues also called upon the panel to “resolve alli liability and allocation issues with respect to each category of costs identified in Paragraph 1, including, without limitation, all coverage issues.”” Hartford Steam Boiler and the underwriters also agreed to a revised set of general procedures that would * The statement of issues also set forth a procedural time line for the arbitration. App. 4 govern phase II of the arbitration. Among these proce- dures, the parties agreed that “[t]he arbitration award shall be in writing and shall contain findings of fact and conclusions regarding the interpretation of the insurance policies that are the subject of this arbitration as neces- sary to support the award.” After a hearing on the allocation issue in Windsor Locks, Connecticut, on June 28 and 29, 2001, the arbitra- tion panel issued a decision on January 24, 2002, in which it responded to each question set forth in the parties’ joint statement of issues. With respect to the first five issues, the panel presented dollar amounts reflecting the alloca- tion of costs corresponding to each question.’ The panel also determined that “[t]he allocation of $21,182,561.13 paid under the Joint Loss Agreement has been resolved in accordance with policy coverages as follows: Boiler & Machinery — $14,489,833.52; All Risk — $7,375,012.59; Total $21,864,846.11.” Subsequently, on February 22, 2002, Hartford Steam Boiler moved to vacate the award, and the underwriters moved to confirm the award or, alternatively, to remand the case to the panel for clarification. After a hearing on May 22, 2002, the trial court found in favor of the underwriters and * The panel determined the costs as follows: “[1.) $ 8,131,139.62 “[2.) $ 7,563,239.90 “(3.] $ 948,102.27 Agreed property loss for [the underwriters] (D Mill $95,829.14 not included) $ 1,012.80 Agreed Boiler loss “[4.) $ 11,539,066.54 “(5.] None 7 $ 28,182,561.13 Total without D Mill” App. 5 remanded the case to the arbitration panel for a rehearing to clarify the award, so that the arbitrators’ decision would include findings of fact and interpretations of the policies, as required by the governing procedures. Hartford Steam Boiler appealed from the judgment of the trial court and the underwriters cross appealed.* We transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. We will set forth additional facts as necessary. Hartford Steam Boiler claims that the trial court improperly remanded the award to the panel after the expiration of the applicable time period set forth in Gen- eral Statutes § 52-418(b),° and relies on our holdings in Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 588 A.2d 138 (1991), and Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 591 A.2d 101 (1991), to support this proposition. In addition, Hartford Steam Boiler claims that we have subject matter jurisdiction to review the ‘ In its cross appeal, the underwriters seek confirmation of the arbitrators’ award, claiming that the trial court improperly determined that Hartford Steam Boiler did not waive its right to contest the sufficiency of the arbitrators’ award. Specifically, the underwriters contend that Hartford Steam Boiler’s statement at the arbitration hearing that it sought a decision reflecting merely “a statement that someone pays someone and how much they pay,” constituted a waiver of Hartford Steam Boiler’s right to challenge the award on any basis other than the dollar amount allocated to each party. * General Statutes § 52-418(b) provides: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. Notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing unless either party affirmatively pleads and the court or judge determines that there is no issue in dispute.” App. 6 merits of this case pursuant to General Statutes § 52-423° because the trial court, in relying on § 52-418(b), “neces- sarily vacated the underlying award, in the course of directing a rehearing before the arbitrators.” Hartford Steam Boiler further argues that we have jurisdiction over this matter under our holding in State v. Curcio, 191 Conn. 27, 30-31, 463 A.2d 566 (1983), and that its claim is appealable because “if the Superior Court’s order remand- ing the case is read not to embody an implicit vacatur, then it is clear that the court exceeded its statutory authority under [§] 52-418(b)’s express terms (which of course require vacatur as a condition precedent to re- mand).” Hartford Steam Boiler also contends that § 52- 418(b) represents the sole means by which a court may remand an arbitration award for a rehearing. The underwriters claim that the trial court’s order remanding the award to the arbitration panel for rehear- ing does not constitute an appealable final judgment or interlocutory order, and, therefore, that we lack jurisdic- tion to entertain Hartford Steam Boiler’s appeal. Specifi- cally, the underwriters urge that: “(1) the appeal is not authorized by [§] 52-423 which covers appeals from arbi- tration decisions; and (2) the Superior Court order from which [Hartford Steam Boiler] seeks relief has only returned the case to the arbitrators for additional informa- tion, and therefore is not yet appealable.” They maintain that the language of § 52-423 does not include remands for rehearings within the class of appealable judgments, and * General Statutes § 52-423 provides: “An appeal may be taken from an order confirming, vacating, modifying or correcting an award, or from a judgment or decree upon an award, as in ordinary civil actions.” App. 7 that the remand does not qualify as an appealable inter- locutory order pursuant to State v. Curcio, supra, 191 Conn. 27, 463 A.2d 566. We agree with the underwriters. In order to determine whether we have jurisdiction to review the merits of this appeal, we first must ascertain whether the trial court rendered a final judgment or an otherwise appealable interlocutory order, or whether the court issued a nonappealable remand order. Thus, we must decide initially whether, in its memorandum of decision, the court intended to vacate the award and direct a rehearing pursuant to § 52-418(b) or whether it intended to remand the arbitrators’ award to the panel for clarifica- tion. In its memorandum of decision, the trial court deter- mined, and the parties do not dispute, that both the Federal Arbitration Act (arbitration act), 9 U.S.C. §1 et seq., and § 52-418, applied, noting that “[t]he language is essentially the same, and the criteria applied to the application to vacate is the same [and provides that an award may be vacated] ... ‘if the arbitrators have ex- ceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.’” The court determined that the arbitrators’ award failed to conform with the submission of the parties because the arbitrators did not specify the factual basis for the award.’ The court stated: “There are no supporting facts or allocation of liability or the reasons for the numbers that have been awarded as well as to which party liability should attach for each of these ” The trial court also determined that Hartford Steam Boiler had ~ not waived its right to assert its claims. App. 8 figures.... The findings are not sufficiently specific or comprehensive to comply with the requirement that all liability and allocation issues and all coverage issues be resolved, nor do the findings contain sufficient findings of fact and conclusions regarding the interpretation of the insurance policies that are the subject of this arbitration as necessary to support the award.” The trial court also concluded that “these submissions were not unrestricted submissions because the arbitrators were required to follow [certain] aforementioned requirements.” Cognizant of the lengthy history of the arbitration proceedings between the parties, the trial court stated that it was “reluctant to vacate the award because that would mean starting over again, and the parties would lose all the work, effort, etc. that covered six years of this arbitra- tion. In the interest of economy of the parties, the panel and judicial economy, it would appear that a remand to the arbitrators would be more practical and a better remedy than vacating the awards.” The court recognized that it “must have authority to [remand],” and, citing to § 52-418(b), stated that “(t]he pertinent part of the applicable statute is: ‘If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.’” The court then determined that “the award was rendered within the thirty day time limit.” In addressing Hartford Steam Boiler’s claim that “the time for making the award [had] expired because if the court [directed] a rehearing or a remand to the arbitrators it would be doing so beyond the January 24, 2002 deadline,” the court determined that “it would be impossible for the court to direct a rehearing by the arbitrators before the time for the award has expired. App. 9 If the award were made on the [twenty-eighth] day from submission of briefs, then the court would have only two days in which to make a decision for a remand assuming that the application to vacate could be filed and presented to a judge within the thirty day time limit. The law does not contemplate permitting something that is impossible to perform. ... Accordingly, the court finds that the time limit for making the award was fulfilled, but the time limit for the court to act was and is an impossibility, and there- fore, not applicable.” The court then “remandl[ed the case] to the arbitration panel for a rehearing by the panel and/or for a clarification of its awards so that it [would comply] with the requirements of the submissions and so that there [would] be a sufficient finding of facts and interpre- tations of the policies so as to fully comply with the sub- missions.”* Although the trial court cited to § 52-418(b), which requires a vacatur as a condition precedent for a rehearing within the necessary time period, we believe that the trial court’s memorandum of decision makes clear that the court intended only to remand the award to the panel for clarification, and did not intend to vacate the award. We need not discuss the legal basis for the remand because we conclude that the court had the legal authority to remand * The court also ordered the parties “for the benefit of the panel, to submit written interrogatories to the panel so that if answered, the parties will be satisfied that there are sufficient findings of fact and interpretations of the policies. The parties are further ordered to submit to the panel, for its benefit, proposed findings of facts and interpreta- tions of policies.... Upon the rehearing and submission of the inter- rogatories and proposed findings, the panel is ordered to clarify its decisions as stated above... .” App. 10 without vacating the arbitration decision under the arbitration act. The United States Supreme Court expressly has held that Congress “intended [the arbitration act] to apply in state and federal courts,” pursuant to the exercise of its commerce clause powers. Southland Corp. v. Keating, 465 U.S. 1, 15, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); accord Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 271- 72, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Hottle v. BDO Seidman, LLP, 268 Conn. 694, 702, 846 A.2d 862 (2004) (discussing applicability of arbitration act to states as set forth in United States Supreme Court precedent). Thus, where parties have entered into “a contract evidenc- ing a transaction involving commerce to settle by arbitra- tion a controversy thereafter arising out of such contract or transaction”; 9 U.S.C. § 2; the arbitration act applies. See Southland Corp. v. Keating, supra, at 14, 104 S.Ct. 852; Hottle v. BDO Seidman, LLP, supra, at 702, 846 A.2d 862. In its memorandum of decision, the trial court ex- pressly determined that the arbitration act applies to the present matter. Hartford Steam Boiler effectively has conceded that the arbitration act applies in this case by noting in its reply brief that “[t]he provision in the [arbi- tration act] authorizing a remand; 9 U.S.C. §10(b); is virtually identical to [§] 52-418(b).” Thus, Hartford Steam Boiler does not challenge the trial court’s finding that the arbitration act applies, but argues instead that “both under Connecticut and federal law, a court reviewing an arbitration award may only remand a matter to the arbitrators when the time for rendering the award .. . has not expired.” (Emphasis added.) We also note that the contract between the parties, which authorizes the parties App. 11 to institute arbitration proceedings in the event of a dispute, arises from a transaction involving commerce. Thus, we determine that the arbitration act applies to the present matter. We now turn to an examination of relevant federal precedent. Federal courts consistently have acknowledged that “[als a general rule, once an arbitration panel renders a decision regarding the issues submitted, it becomes functus officio” and lacks any power to reexamine that decision.” Colonial Penn Ins. Co. v. Omaha Indemnity Co., 943 F.2d 327, 331 (3d Cir.1991); accord Legion Ins. Co. v. VCW, Inc., 198 F.3d 718, 719 (8th Cir.1999) (“[t]he doctrine of functus officio prevents arbitrators from revis- iting a final award after the final award has been issued”); Hyle v. Doctor’s Associates, Inc., 198 F.3d 368, 370 (2d Cir.1999). Courts also have recognized, however, that the doctrine has limitations and contains three exceptions that * “Functus officio” has been defined as “having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force of authority.” (Internal quotation marks omitted.) Sterling China Co. v. Glass Workers Local No. 24, 357 F.3d 546, 553 (6th Cir.2004), quoting Green v. Ameritech Corp., 200 F.3d 967, 976 (6th Cir.2000). As one court has observed: “The policy which lies behind this [doctrine] is an unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion.” (Internal quotation marks omitted.) Green v. Ameritech Corp., supra, at 976-77, quoting La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3d Cir.1967). ° We note that “[dlespite certain distinctions between common law and statutory arbitrations ... the functus officio doctrine has been routinely applied in federal cases brought pursuant to the [arbitration act], 9 U.S.C. § 1 et seq.” (Citation omitted.) Colonial Penn Ins. Co. v. Omaha Indemnity Co., 943 F.2d 327, 331 (3d Cir.1991). App. 12 allow an arbitrator’s review of a final award.” Sterling China Co. v. Glass Workers Local No. 24, 357 F.3d 546, 554 (6th Cir.2004); accord Green v. Ameritech Corp., 200 F.3d 967, 977 (6th Cir.2000); Office & Professional Employees International Union, Local No. 471 v. Brownsville General Hospital, 186 F.3d 326, 331 (3d Cir.1999); International Brotherhood of Teamsters v. Silver State Disposal Service, Inc., 109 F.3d 1409, 1411 (9th Cir.1997). The three excep- tions to the rule of functus officio include: “(1) [where] an arbitrator can correct a mistake which is apparent on the face of his award”; (internal quotation marks omitted) Office & Professional Employees International Union, Local No. 471 v. Brownsville General Hospital, supra, at 331; such as “clerical mistakes or obvious errors in arith- metic computation”; Colonial Penn Ins. Co. v. Omaha Indemnity Co., supra, at 332; “(2) where the award does not adjudicate an issue which has been submitted, then as to such issue the arbitrator has not exhausted his function and it remains open to him for subsequent determination; and (3) [w]here the award, although seemingly complete, leaves doubt whether the submission has been fully executed, an ambiguity arises which the arbitrator is entitled to clarify.” (Internal quotation marks omitted.) Office & Professional Employees International Union, Local No. 471 v. Brownsville General Hospital, supra, at 331. With these exceptions in mind, federal precedent also informs us that a court may remand without vacating a case to an arbitrator for clarification of a final award, " The doctrine of functus officio serves as a default rule, and it applies only in the absence of an agreement between the parties to the contrary. Hyle v. Doctor’s Associates, Inc., supra, 198 F.3d at 370. aS ss ee —"_C=| a = - App. 13 pursuant to the arbitration act. “It is generally recognized that there are circumstances, albeit limited, under which a district. court can remand a case to the arbitrators for clarification.” Colonial Penn Ins. Co. v. Omaha Indemnity Co., supra, 943 F.2d at 333. “[MJany appellate courts have stated that an arbitration award under the [arbitration act] may be remanded for clarification if the award is ambiguous or incomplete”; Lanier v. Old Republic Ins. Co., 936 F.Supp. 839, 845 (M.D.Ala.1996); and it is clear that “the functus officio doctrine does not preclude a motion for remand for clarification under the [arbitration act].” Id., at 848; see Colonial Penn Ins. Co. v. Omaha Indemnity Co., supra, at 333-34 (“[a]lthough there is no explicit provision in the [arbitration act] for such a remand, courts have uniformly stated that a remand to the arbitration panel is appropriate in cases where the award is ambiguous”); see also M & C Corp. v. Erwin Behr GmbH & Co., 326 F.3d 772, 782 (6th Cir.2003) (“‘[a] remand is proper, both at common law and under the federal law of arbitration contracts, to clarify an ambiguous award or to require the arbitrator to address an issue submitted to him but not resolved by the award’ ”). Moreover, we note that when a court remands an arbitration award for clarification, “[t]he resolution of such an ambiguity is not within the policy which forbids an arbitrator to redetermine an issue which he has already decided, for there is no opportunity for redeter- -mination on the merits of what has already been de- cided.” La Vale Plaza, Inc. v..R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir.1967). On remand, “the arbitrator is limited in his review to the specific matter remanded for clarification and may not rehear and redetermine those matters not in question.” Paperhandlers Union No. 1, App. 14 International Printing Pressmen & Assistants Union, AFL- CIO v. U.S. Trucking Corp., 441 F.Supp. 469, 474 (S.D.N.Y.1977). In such a circumstance, “the arbitrators will act only to remove the cloud of doubt . . . and will in no way reopen the merits of the controversy.” La Vale Plaza, Inc. v. R.S. Noonan, Inc., supra, at 573. Thus, “[blecause of the limited purpose of such a remand, which serves the practical need for the ... court to ascertain the intention of the arbitrators so that the award can be enforced, there is not even a theoretical inconsistency with the functus officio doctrine.” Colonial Penn Ins. Co. v. Omaha Indem- nity Co., supra, 943 F.2d at 334.” ‘ Bearing in mind these principles, we believe that the rationale employed by the United States Court of Appeals for the Sixth Circuit in Green v. Ameritech Corp., supra, 200 F.3d at 976-78, and the United States Court of Appeals for the Ninth Circuit in International Brotherhood of Teamsters v. Silver State Disposal Service, Inc., supra, 109 F.3d at 1411, are particularly instructive in the matter before us. In Green, the defendant employers challenged the judgment of the District Court, vacating an arbitration award in favor of the defendants and remanding the case to a new arbitrator. Green v. Ameritech Corp., supra, at * Although courts have recognized that “remand for clarification is a disfavored procedure ... [wJhen possible ... a court should avoid remanding a decision to the arbitrator because of the interest in prompt and final arbitration.” (Internal quotation marks omitted.) Tri-State Business Machines v. Lanier Worldwide, 221 F.3d 1015, 1017 (7th Cir.2000), quoting Teamsters Local No. 579 v. B & M Transit, Inc., 882 F.2d 274, 278 (7th Cir.1989). “[I]f an award is unclear, it should be sent back to the arbitrator for clarification.” (Internal quotation marks omitted.) Tri-State Business Machines v. Lanier Worldwide, supra, at 1017, quoting Flender Corp. v. Techna-Quip Co., 953 F.2d 273, 279-80 (7th Cir.1992). App. 15 969. The underlying matter that led to arbitration in- volved a claim by the plaintiff, a former employee named Daniel Green, and other former employees,” that the defendants had engaged in race and age discrimination and retaliation in violation of state antidiscrimination laws. Id. Prior to trial, the parties had agreed to submit the matter to arbitration, which proceeded pursuant to the following relevant terms of the arbitration agreement: “The arbitrator’s award shall be accompanied by an opinion which explains the arbitrator’s decision with respect to each theory advanced by each [plaintiff and the arbitrator’s calculation of the types of damages, if any, awarded to each [p]laintiff. ... Any challenge to the award shall be made only for the reasons enumerated in section 10 of the [arbitration act] ... 9 U.S.C. §10.... This Agreement is made pursuant to and is governed by the [arbitration act], 9 U.S.C. § 1 et seq.” (Internal quotation marks omitted.) Id., at 970. In his decision in favor of the defendants, the arbitra- tor found that “[clonsidering all the evidence, the [aJrbitrator finds that [the plaintiff] has not met his burden of proof that the decision to terminate his employ- ment ... constituted age discrimination in violation [of the] Elliott-Larsen Civil Rights Act.” (Internal quotation marks omitted.) Id., at 971. The arbitrator employed identical language in determining that the plaintiff had * After the arbitration commenced, all of the former employees, except Green, settled their claims. Green v. Ameritech Corp., supra, 200 F.3d at 970. “* Although the case had originated in state court, the defendants removed the case to federal court. Green v. Ameritech Corp., supra, 200 F.3d at 970. App. 16 failed to meet his burden of proof with respect to his race discrimination claim. Id. In resolving the retaliation allegation, the arbitrator found that “[c]onsidering all the evidence, the [a]rbitrator finds that [the plaintiff] has not met his burden of proving, in accordance with the stan- dards set under the Elliott-Larsen Civil Rights Act, that retaliation for protected activity was a fector which made a difference in the decision to terminate his employ- ment. ... The [a]rbitrator finds no evidence to support the [pliaintiff’s position that retaliation was, in any way, a factor in the [plaintiff’s] termination.” (Internal quotation marks omitted.) Id. Thereafter, the plaintiff filed an appeal in the District Court, asking the court to vacate the award pursuant to the arbitration act, 9 U.S.C. § 10(a)(3) and (4). Id. Among his claims, the plaintiff contended that the arbitrator had violated the terms of the arbitration agreement by failing to explain the decision with respect to each of the plain- tiff’s theories. Id., at 972. Finding that the arbitrator had “exceeded his authority by failing to explain his decision,” the District Court vacated the award and remanded it to a new arbitrator. Id. In its memorandum of decision, the District Court reasoned that “[h]ere, the arbitrator did not explain his decision with respect to each one of [the] plaintiff’s theories, as the term explain is commonly understood. Rather, the arbitrator merely announced his decision with respect to each one of [the] plaintiff’s theo- ries. The arbitrator’s opinion is totally conclusory and insufficient according to the terms of the Arbitration Agreement.” (Emphasis in original; internal quotation marks omitted.) Id. The court rejected the defendants’ suggestion that it should remand the case to the arbitrator App. 17 for clarification of his award, concluding that the award was not ambiguous. Id. a On appeal to the Sixth Circuit, the defendants claimed, among other things, that the District Court improperly had refused to remand the case to the arbitra- tor for supplementation and clarification instead of vacat- ing the award. Id., at 976. In addressing this claim, the Court of Appeals noted that “[iJn its analysis, the district court misconstrued the governing law. The district court believed that remand to [the original arbitrator] was not an option; it stated that ‘[rlemand is available when an arbitration award is “ambiguous.” ... Finding that [the arbitrator’s] award was not ambiguous, the district court concluded that it could not remand for an explanation. As both parties noted in their briefs, the district court must have based its conclusion that it lacked the authority to remand to the original arbitrator on the doctrine of func- tus officio.” Id. After explicating the functus officio doctrine, its underlying policies and three recognized exceptions, the Court of Appeals propounded that “‘[a] remand is proper, both at common law and under the federal law of labor arbitration contracts, to clarify an ambiguous award or to require the arbitrator to address an issue submitted to him but not resolved by the award.’” Id., at 977, quoting Industrial Mutual Assn., Inc. v. Amalgamated Workers, Local No. 383, 725 F.2d 406, 412 n. 3 (6th Cir.1984). The court determined that “[iJn the instant case, the district court concluded, incorrectly in our view, that [the arbitra- tor] breached the arbitration agreement because he failed fully to execute his obligation to explain his award, and it refused to remand. Courts usually remand to the original arbitrator for clarification of an ambiguous award when App. 18 the award fails to address a contingency that later arises or when the award is susceptible to more than one inter- pretation. ... While a failure fully to explain an award does not leave such an interpretive gap, we believe that it would nevertheless authorize a remand based on this third exception to the functus officio doctrine. The purpose of this exception is to permit the arbitrator to complete an assigned task, and in this case the district court adjudged the arbitrator’s task incompletely executed.” (Citations omitted; emphasis added.) Green v. Ameritech Corp., supra, 200 F.3d at 977. The Court of Appeals further determined that “[rlemanding to [the original arbitrator] under these circumstances would not implicate any of the concerns underlying the functus officio doctrine, as he would simply be completing his duties by clarifying his reasoning, not reopening the merits of the case.” Id., at 977-78. Thus, even “if the district court were correct in its conclusion that [the arbitrator] failed to explain his award [within the terms of the arbitration agreement], the proper remedy would have been a remand to the same arbitrator for clarification.” (Emphasis added.) Id., at 978. We find equally persuasive the Ninth Circuit’s deter- mination in International Brotherhood of Teamsters uv. Silver State Disposal Service, Inc., supra, 109 F.3d at 1410. In that case, the defendant employer, Silver State Disposal Service, Inc., appealed from the judgment of the District Court, which had confirmed an amended arbitration award and rendered summary judgment in favor of the plaintiff union. Id. The defendant had discharged a mem- ber of the union, and the union filed a grievance on his behalf, claiming that the defendant had failed to comply with the terms of the collective bargaining agreement. Id. The parties submitted the grievance to arbitration, and App. 19 the arbitrator determined that the defendant had dis- charged the employee without just cause. Id. The defen- dant reinstated the employee, but a dispute arose as to whether the arbitration award entitled the employee to receive back pay. Id. Over the defendant’s objection, the union requested that the arbitrator clarify its decision. Id. In a letter to the parties, the arbitrator acknowledged that “my award was not clear in regard to the reinstatement of [the grievant]. ... In my award, I intended for [the griev- ant] to receive back pay from the date of termination until the date of reinstatement except for the period of the three day suspension.” Id. The union petitioned the District Court to confirm the award as amended, and the defen- dant filed a counterclaim, seeking enforcement of the initial award. Id. After both parties filed motions for summary judgment, the District Court confirmed the amended award and rendered summary judgment in favor of the union. Id. On appeal to the Ninth Circuit, the defendant claimed that it was entitled to judgment as a matter of law because the arbitrator lacked the authority to clarify the award, pursuant to the rule of functus officio. Id. The court disagreed and determined that the doctrine of functus officio did not preclude the amendment because the arbitrator’s initial decision had not been complete. Id. The court noted that it previously had recognized that “an arbitrator can ... complete an arbitration if the award is not complete,” and stated further that “[t]he completion exception to the doctrine of functus officio applies when an arbitration award fails to resolve an issue... .” (Internal quotation marks omitted.) Id., at 1411, quoting McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734 n. 1 (9th Cir.1982). In the case before it, App. 20 the Court of Appeals concluded that “the arbitrator’s - clarification was permissible because it completed the award. The arbitrator explained that she had intended to award back pay, but had failed to address the issue.” International Brotherhood of Teamsters v. Silver State Disposal Service, Inc., supra, 109 F.3d at 1411. Moreover, the court noted that the defendant “offered no evidence to refute the arbitrator’s explanation of her state of mind at the time she executed the initial award.” Id. The Court of Appeals concluded, therefore, that “[t]he district court did not err in affirming the arbitrator’s amended award because it is clear that the arbitrator’s award was incom- plete.” Id., at 1412. In the present case, as in Green, we believe that the trial court had the authority to remand the case pursuant to the arbitration act and federal precedent, without offending principles of functus officio. We also conclude, pursuant to International Brotherhood of Teamsters v. Silver State Disposal Service, Inc., supra, 109 F.3d at 1410, that the arbitration panel may, on remand, complete what we believe constitutes an incomplete award.” As the trial * Hartford Steam Boiler claims that the Ninth Circuit’s decision in Western Employers Ins. Co. v. Jefferies & Co., 958 F.2d 258 (9th Cir.1992), should control. We conclude, however, that Green and International Brotherhood of Teamsters are more persuasive. In distinguishing Western Employers Ins. Co., wherein the Ninth Circuit vacated an arbitration award when the arbitrators had failed to include requisite findings of fact and conclusions of law, the Green court found significant that “the arbitration panel in Western Employers [Ins. Co.] actually refused to make the requisite findings and conclusions, instead questioning whether they were bound by the parties’ agreement. ... ” (Emphasis in original.) Green v. Ameritech Corp. supra, 200 F.3d at 975. In the present matter, unlike in Western Employers Ins. Co., there is no evidence of wilfulness on behalf of the arbitration panel to ignore or (Continued on following page) App. 21 court found in the present matter, the arbitration panel’s only task on remand is to clarify the factual basis for its allocation of the sums representing each party’s liability; there is no question pertaining to Hartford Steam Boiler’s and the underwriters’ respective liability and the sums to be paid under the award because the arbitrators already have determined the dollar amounts representing the parties’ respective liability. Because the “third exception to the functus officio doctrine ... permit{s] the arbitrator to complete an assigned task”; Green v. Ameritech Corp., supra, 200 F.3d at 977; we believe that this exception, as well as federal precedent permitting a court to direct a clarifying remand, enabled the trial court to order a rehearing for clarification purposes without vacating the award.”* We note, moreover, that our determination that the trial court had the authority to remand this matter to the ‘panel is consistent with, and furthers, the federal and otherwise subvert the terms of arbitration agreement, and we therefore reject Hartford Steam Boiler’s reliance on Western Employers Ins. Co. © Hartford Steam Boiler claims that federal cases permitting the District Court to remand an award to the arbitrator are inapposite in the present matter because the cases do not “consider the temporal limitation on the court’s authority to remand set out in 9 U.S.C. § 10(b),” which provides that “[i]f an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.” 9 U.S.C. § 10(b) (formerly codified at 9 U.S.C. § 10[a][5)). We note that our determination that the trial court remanded but did not vacate the award renders inapplicable any time limitation con- tained in § 10(b). See Hoffman v. Cargill, Inc., 59 F. Sup.2d 861, 874 n. 7 (N.D.Iowa 1999) (noting that 9 U.S.C. § 10[a][5], now codified at 9 U.S.C. § 10[b], “will become pertinent here only if this court vacates the arbitration award in question here”), rev'd on other grounds, 236 F.3d 458 (8th Cir.2001). App. 22 state policies favoring arbitration as a means for expedient resolution of disputes. M & C Corp. v. Erwin Behr GmbH & Co., supra, 326 F.3d at 782; Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir.2002) (“[t]here is a strong federal policy favoring arbitration as an alternative means of dispute resolution”); State v. New England Health Care Employees Union, District 1199, AFL-CIO, 265 Conn. 771, 777, 830 A.2d 729 (2003) (“‘[blecause we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution’”). “By its very purpose, arbitration is designed to result in a speedy and final resolution of controversies”; Thompson v. Tega-Rand International, 740 F.2d 762, 764 (9th Cir.1984) (per cu- riam); Diapulse Corp. of America v. Carba, Ltd., 626 F.2d 1108, 1110 (2d Cir.1980) (“[t]he purpose of arbitration is to permit a relatively quick and inexpensive resolution of contractual disputes”); and, with this principle in mind, we are reluctant to erase the work surrounding this belabored arbitration proceeding, causing further delay, more time, and more resources to be expended, when a deficiency may be corrected by a simple clarification from the panel. Cf. Iowa Mold Tooling Co. v. Teamsters Local Union No. 828, 847 F.Supp. 125, 128 (S.D.Iowa 1993) (“[clourts are reluc- tant to reverse arbitration awards”). In addition, our conclusion likewise ensures that “private agreements to arbitrate are enforced according to their terms.” (Internal quotation marks omitted.) Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 688, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 479, 109 S.Ct. 1248, 103 App. 23 L.Ed.2d 488 (1989). By allowing the arbitration panel to clarify its decision and to complete its assigned task, both Hartford Steam Boiler and the underwriters will receive an arbitration award in accordance with the terms agreed to in their governing procedures. Having determined that the trial court had the authority to remand the case to the arbitration panel, we turn to the issue of whether Hartford Steam Boiler may appeal the remand order at this time. At the outset we note that “[t]he [arbitration act] has not been held to supersede state procedural laws”; (internal quotation marks omitted) Hottle v. BDO Seidman, LLP, supra, 268 Conn. at 697-98 n. 5, 846 A.2d 862, quoting Hottle v. BDO Seidman, LLP. 74 Conn.App. 271, 274 n. 4, 811 A.2d 745 (2002); and, therefore, we apply Connecticut law to deter- mine whether we have jurisdiction to review the claims presented in this appeal. Hartford Steam Boiler claims that the judgment of the trial court was a final judgment for the purposes of appeal, pursuant to § 52-423 and State v. Curcio, supra, 191 Conn. 27, 463 A.2d 566.” We do not agree. Our law relating to final judgments and interlocutory orders is well established. We previously have noted that “It]he right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of " We previously have applied both § 52-423 and the Curcio test in the context of arbitration appeals. See Success Centers, Inc. v. Hunting- ton Learning Centers, Inc., 223 Conn. 761, 766, 774, 613 A.2d 1320 (1992); Daginella v. Foremost Ins. Co., 197 Conn. 26, 30, 495 A.2d 709 (1985); see also Travelers Ins. Co. v. General Electric Co., 230 Conn. 106, 644 A.2d 346 (1994) (applying Curcio factors and holding that trial court’s denial of stay pursuant to General Statutes § 52-409 was not appealable order). App. 24 court for taking and prosecuting the appeal are met.” (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 733, 818 A.2d 731 (2003), quoting State v. Curcio, supra, 191 Conn. at 30-31, 463 A.2d 566. Moreover, “[t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments”; (internal quotation marks omitted) Rivera uv. Veterans Memorial Medical Center, supra, at 733, 818 A.2d 731, quoting State v. Curcio, supra, at 30, 463 A.2d 566; and we have observed that “[llimiting appeals to judg- ments that are final serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.” (Internal quotation marks omitted.) Lisee v. Commission on Human Rights & Oppor- tunities, 258 Conn. 529, 541, 782 A.2d 670 (2001), quoting Madigan v. Madigan, 224 Conn. 749, 752-53, 620 A.2d 1276 (1993). “Because our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.” (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, at 733-34, 818 A.2d 731, quoting State v. Curcio, supra, at 30-31, 463 A.2d 566. Hartford Steam Boiler’s assertion that § 52-423 provides us with jurisdiction to review its claims is prem- ised upon its argument that the trial court vacated the award. Because we have determined that the trial court did not vacate the award, or otherwise confirm, modify or correct it, the judgment does not constitute an appealable final judgment pursuant to the statute. The failure of the judgment to fall within the terms of § 52-423, however, does not end our inquiry. “In both criminal and civil cases ... we have determined certain App. 25 | interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. at 734, 818 A.2d 731, quoting State v. Curcio, supra, 191 Conn. at 30-31, 463 A.2d 566. “The first prong of the Curcio test . . . requires that the order being appealed from be severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.” (Internal quotation marks omitted.) Burger & Burger, Inc. v. Murren, 202 Conn. 660, 664, 522 A.2d 812 (1987), quoting State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). “If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy” the first prong of Curcio. State v. Parker, supra, at 653, 485 A.2d 139. Similarly, “[a] judgment by a trial court ordering further administrative proceedings cannot meet the first prong of the Curcio test, because, whatever its merits, the trial court’s order has not terminate[d] a separate and distinct proceeding.” (Internal quotation marks omitted.) Doe v. Connecticut Bar Examining Com- mittee, 263 Conn. 39, 46, 818 A.2d 14 2003), quoting Schieffelin & Co. v. Dept. of Liquor. Control, 202 Conn. 405, 409-10, 521 A.2d 566 (1987). The trial court’s remand for a rehearing to clarify the panel’s allocation award does not satisfy the first prong of the Curcio test. The very essence of the trial court’s order seeking clarification of the award “so that the court will know exactly what it is being asked to enforce”; Ottley v. App. 26 Schwartzberg, 819 F.2d 373, 376 (2d Cir.1987); is indica- tive of the ongoing and unfinished nature of the process leading to a final judgment by the court. Turning to the second prong of the Curcio test, we have recognized that it “focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court’s order threatens the preser- vation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal.” (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. at 734, 818 A.2d 731. “An essential predicate to the applicability of this prong is the identification of jeopardy to [either] a statutory or consti- tutional right that the interlocutory appeal seeks to vindicate.” (Internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 247, 811 A.2d 1272 (2002), quoting Daginella v. Foremost Ins. Co., 197 Conn. 26, 31, 495 A.2d 709 (1985). “Unless the appeal is authorized under the Curcio criteria, absence of a final judgment is a jurisdictional defect that [necessar- ily] results in a dismissal of the appeal.” (Internal quota- tion marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, at 734, 818 A.2d 731, quoting State v. Malcolm, 257 Conn. 653, 667, 778 A.2d 134 (2001). The trial court’s remand similarly does not satisfy Curcio’s second prong because the order does not implicate any statutory or constitutional right. After the trial court’s review of the arbitration panel’s clarifying decision, wherein it will confirm, modify, vacate or correct the award, both Hartford Steam Boiler and the underwriters will be free to appeal any adverse final decision by the court. App. 27 With respect to the underwriters’ cross appeal; see footnote 3 of this opinion; we note that the arbitrator did not, as the trial court found, fully comply with that portion of the submission requiring “findings of fact and conclu- sions regarding the interpretation of the insurance policies that are the subject of this arbitration as necessary to support the award.” Because we have determined that the trial did not confirm, vacate, correct or modify the award, pursuant to § 52-423, we lack jurisdiction to review this claim under the statute. Similarly, in applying the Curcio factors, we conclude that the trial court’s order neither terminated a separate and distinct proceeding nor threat- ened the preservation of a right that “will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal.” (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. at 734, 818 A.2d 731. Accordingly, we are precluded from reviewing the underwriters’ claim at this time. Because we conclude that the trial court’s order for a rehearing to clarify the arbitrators’ allocation award does not constitute a final judgment, and does not satisfy either prong of the Curcio test, we lack subject matter jurisdic- tion to review the merits of this case. The appeal is dismissed. In this opinion the other justices concurred. App. 28 2002 WL 31001841 (Conn.Super.), 32 Conn. L. Rptr. 659 UNPUBLISHED OPINION Superior Court of Connecticut. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, v. UNDERWRITERS AT LLOYD'S et al. No. CV020814620S. July 31, 2002. RITTENBAND, JTR. This case involves two claims. The plaintiff seeks to have the Court vacate an Arbitration Award and the defendants seek to confirm the award or in the alternative have the Court remand the case to the arbitrators for a rehearing and/or additional findings. FACTS The parties have agreed to a Stipulation of Facts dated on or about May 15, 2002 which Stipulation without exhibits is attached hereto and incorporated herein as Schedule A. In summary, however, the Court finds, in addition to the Stipulation of Facts, the following facts. 1. The plaintiff underwrote a policy of boiler and machinery insurance for Entergy Corporation and other named insureds to cover a coal-fired electrical generating facility located near Newark, Arkansas. Defendants underwrote a program of “all risks” property insurance for Entergy Corporation and other insureds. 2. On August 11, 1993, there was a catastrophic loss event at Independent Steam Electric Station Unit Two App. 29 (“ISES Unit Two”) which occurred at the facility located near Newark, Arkansas aforementioned. The owners of ISES Unit Two, Arkansas Power & Light Company and others promptly made claims against both the plaintiffs’ and the defendants’ policies, which claims were subse- quently denied. 3. Plaintiff contended that the cause of the loss was an explosion of gas or unconsumed fuel, a peril excluded from its coverage and covered under the defendants’ policy. 4. Defendants contended that the loss was the “breakdown of a fired vessel” excluded from the coverage provided by the defendants’ insurance and that the event did not involve a combustion explosion that would other- wise render it (in whole or in part) a covered loss. 5. The insureds invoked parallel “Loss Adjustment Endorsements” found in the plaintiff’s policy and the defendants’ policy. 6. Pursuant to the policies plaintiff paid $10,933,435.86, and defendants paid $11,880,525.33. The difference is attributable to certain amounts that the parties agreed were within their respective coverages: $948,102.27 in costs that defendants admitted were covered by their policy and $1,012.80 in expenses that plaintiff admitted were its responsibility. 7. The coverage dispute between the plaintiff and defendants was then submitted to a panel of three arbitra- tors, namely Edwin W. Whitmore, Larry E. Gordon and Frank W. Ockerby as the third arbitrator and umpire. 8. The arbitration was conducted pursuant to the agreed March 1996 “Procedures to Govern the Arbitra- tion.” App. 30 9. The initial arbitration hearing was conducted in Memphis, Tennessee. The parties stipulated to an October 25, 1996 “Joint Statement of Issues.” 10. On January 9, 1997 the Panel issued an interim Award on the factual questions set forth in the Joint Statement of Issues entitled “Decision of Arbitrators.” 11. In response to questions by the parties as to the meaning of the Award, on September 22, 1997 the arbitra- tors issued a “Supplemental and Clarified Decision to the Answer of Issue iv of the January 9, 1997 Decision of Arbitrators.” 12. As a result of the Panel’s resolution of these questions the parties agreed that part of the loss fell within the coverage of the defendants and part of the loss fell within the coverage of the plaintiff. 13. The parties were unable to agree on the manner in which repair and restoration costs were to be allocated to each policy. 14. Plaintiff and defendants then iesubmitted the matter to the Arbitration Panel for resolution subject to a July 19, 1999 stipulated “Statement of Issues and Proce- dural Time Line for Entergy Arbitration.” The parties and arbitrators also agreed upon a set of “Revised Procedures to Govern the Phase II Arbitration Re: Allocation Issues.” 15. This second phase of the arbitration hearing took place in Windsor Locks, Connecticut on June 28 and 29, 2001. 16. The Panel rendered an award entitled “Decision of Arbitrators” on January 24, 2002. App. 31 17. The award was in favor of the defendants, and on February 22, 2002 the plaintiff submitted an “Application to Vacate Arbitration Award.” Defendants filed an “Appli- cation to Confirm the Arbitration Award, or, in the alterna- tive, to refer to arbitrators for clarification.” 18. A hearing was held on May 22, 2002 before this Court on the two applications even though the defendants’ Application to Confirm Arbitration Award etc. does not appear to be in the file. However, it is addressed by both parties in the respective briefs and supplemental briefs the parties filed prior to May 22, 2002 and subsequent thereto. STANDARD OF REVIEW Plaintiff contends the arbitrators violated C.G.S. § 52- 418(a)(4) in that “... the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submit- ted was not made.” The determination of the issues before this Court has to be based upon the evidence submitted to it with the briefs of the parties. Further, it is plaintiff’s burden to produce sufficient evidence to invalidate the award. Awards based upon consensual arbitration are subject to only minimal judicial intervention. See Metropolitan District Commission v. AFSCME, 37 Conn.App. 1 (1995). Every reasonable presumption and intendment must be indulged in favor of the award. Cashman v. Sullivan & Donegan P.C., 23 Conn.App. 24 (1990). Unless the submis- sion provides otherwise, an Arbitrator has authority to decide factual and legal questions, and courts will not review the evidence, or where the submission is unrestricted, the App. 32 Arbitrator’s determination of legal questions. O & G/ O’Connell Joint Venture v. Chase Family Limited Partner- ship, 203 Conn. 133 (1987). “When the scope of the sub- mission award is unrestricted, the resulting award is not subject to de novo review even for errors of law so strong as the award conforms to the submission.” SCRRA uv. American Re-Fuel Co. of Southeastern Connecticut, 44 Conn.Sup. 482, 484, 485 (1997), affirmed, 44 Conn.App. 728 (1997). “The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of the issues, reserving explicit rights, or conditioning the award on court review.” Id. at 485. ISSUES 1. Was there a waiver of the present claims of the plaintiff by the plaintiff? “(Clourts should ‘indulge every reasonable presump- tion against waiver.’” Parker v. Wingo, 407 U.S. 514, 525 (1972). “Waiver presupposes a full knowledge of an exist- ing right or a privilege and something done designedly or knowingly to relinquish it” either directly or by reasonable inference. (Emphasis added.) Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 27 (1978). Defendants have cited statements made by the plaintiff’s counsel at the hearing of June 28, 2001 before the arbitrators. Attorney Stockman for the plaintiff stated on page 269 “The end point from the Panel is a statement that someone pays someone and how much they pay.” The Court considers that an offhand remark which is not all inclusive and does not amount to a waiver of “an existing right done designedly or knowingly to relinquish it” either directly or by reasonable inference. App. 33 (Emphasis added.) Defendants also claim that the submis- sion by the plaintiff to the Panel of its Decision Matrix is also a waiver by the plaintiff. This Court finds that the submission of said Matrix is not a waiver of an existing right or privilege and does not fit the category of “some- thing done designedly or knowingly to relinquish it.” Reinke, supra. There was no intent to relinquish any rights either directly or by inference. Therefore, the answer to the question posed above is “No.” The plaintiff did not waive its present claims. 2. Did the Arbitrators’ award(s) or decision(s) con- form to the submission(s)? The Court, after reviewing the transcript of the hearing before the Panel of June 28, 2001, Volume II, the transcript of the hearing before this Court on May 22, 2002, the submissions and briefs of the parties including exhibits and a review of the applicable law makes the following findings. (a) The Federal Arbitration Act, 9 U.S.C. § 1 et seq. and the State Arbitration Act, Chapter 909 of the Con- necticut General Statutes, specifically, C.G.S. § 52-418, both apply to this case. The language is essentially the same, and the criteria applied to the Application to Vacate is the same: “ ... if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submit- ted was not made.” (b) All of the proceedings regarding the arbitration is one continuous arbitration. It contains different phases, but is all the same arbitration. There is no “former” App. 34 arbitration. The arbitration is in Phase I and Phase II.’ The submissions to the arbitrators for both the January 9, 1997 Decision of Arbitrators and the Decision of the Arbitrators dated January 24, 2002 are the same. They both include the followin language: The arbitration award shall be in writing and shall contain findings of fact and conclusions re- garding the interpretation of the insurance poli- cies that are the subject of this arbitration as necessary to support the award. (Emphasis added). See Exhibit C attached to the Stipulation of Facts and Exhibit H to the Stipulation of Facts. The Court interprets the aforementioned language which states in pertinent part: “ ... conclusions regarding the interpretation of the insurance policies .. .” to be the same as the requirement of “conclusions of law” as set forth in the case of Western Employers Ins. v. Jefferies & Co., Inc. et al., 958 F.2d 258, 259 (9th Cir.1992). The interpretation of an insurance contract is the same as a legal conclusion of the applicabil- ity of an insurance policy. Courts interpret contracts which are insurance policies all the time, and that is considered an interpretation or a conclusion of law as to the policy. Therefore, the standard in the case at bar and in the Western Employers Ins. case, supra, are the same. The Court concludes that these submissions were not unre- stricted submissions because the arbitrators were required to follow the aforementioned requirements. Counsel for * The Stipulation of Facts includes both decisions and the events leading thereto. App. 35 both sides stated that nothing precludes the arbitrators from ruling on the law. TT page 8.” (c) It has been stated both in the briefs and in the hearing of March 22, 2002 that the courts are not permit- ted to vacate an award because of an alleged error in contract interpretation. That may be true, but the claim here is not that there was ercor in contract interpretation. The claim here is that there was no contract interpretation at all. (ad) In the hearing of May 22, 2002 plaintiff claimed that on issues of fact and interpretation, the arbitrators should have been more specific, and the defendants believe that the requirement is in general and does not have to be as specific as the plaintiff claims. (e) As of the First Joint Statement of Issues, Exhibit D to the Stipulation of Facts, four issues were presented, and in the Decision of Arbitrators, Exhibit E to the Stipu- lation of Facts, it is clear that the Panel voted no as to Issue 1, yes as to Issue 2 (both issues in No. 2), the finding on Issue 3 was (ii), and as to Issue 4 the issue was “Was the damage ... caused by (i) one or more explosions of gasses or unconsumed fuel (as HSB argues); or (ii) over- pressurization of the furnace enclosure due solely to the load imparted by steam flashing from ruptured tube ends (as the All-Risk Insurers argue)? The Panel found that both (i) and (ii) were the cause. It did not explain why this decision. was reached or how the costs were to be appor- tioned.” (Emphasis added.) 2? TT refers to the trial transcript of May 22, 2002. App. 36 (f) In the Supplemental and Clarified Decision of the Arbitrators to the answer of Issue No. 4 of the January 9, 1997 Decision of Arbitrators, Exhibit F to the Stipulation of Facts, the Panel expanded on its answer to the No. 4 Issue, but still did not apportion the liability between the parties and turther stated that no evidence was presented to the Panel to quantify the damages caused by steam or by combustion explosion(s). (g) The Court, therefore, finds that the facts as announced by the Panel are not as specific and as compre- hensive as was required. Further, the Court finds that there was insufficient interpretation of the insurance policies. However, this Court cannot totally fault the arbitrators on this because the Joint Statement of Issues merely mentioned the various sections of the policies which would lead the Panel to merely say yes or no as to the sections of the policies. The parties themselves to some degree limited the findings by improperly limiting the questions. (h) The problem of lack of specificity is more appar- ent in regard to the Decision of January 24, 2002, Exhibit K to Stipulation of Facts. In the Submission of Issues, Exhibit G to the Stipulation of Facts, the following lan- guage was also included: “B. The Panel must resolve all liability and allocation issues with respect to each category of costs identified in paragraph 1, including, without limitation, all coverage issues.” Although the Panel in its Decision of Arbitrators dated January 24, 2002 recited the scope of the arbitration including the aforementioned paragraph B, there is no explanation or resolution of coverage issues. Further, there are no facts that support the figures in paragraphs a and b on the last page of the Decision of Arbitrators. There are no supporting facts or App. 37 allocation of liability or the reasons for the numbers that have been awarded as well as to which party liability should attach for each of these figures. Further in para- graph b there are neither supporting facts to adequately interpret the numbers assigned to Boiler & Machinery nor the numbers assigned to All-Risk. The findings are not sufficiently specific or comprehensive to comply with the requirement that all liability and allocation issues and all coverage issues be resolved, nor do the findings contain sufficient findings of fact and conclusions regarding the interpretation of the insurance policies that are the subject of this arbitration as necessary to support the award. REMEDY The Court is reluctant to vacate the award because that would mean starting over again, and the parties would lose all the work, effort, etc. that covered six years of this arbitration. In the interest of economy of the parties, the Panel and judicial economy, it would appear that a remand to the arbitrators would be more practical and a better remedy than vacating the awards. However, the Court must have authority to do so. The plaintiff claims that there is no authority for a remand, and the defendants claim that there is. The pertinent part of the applicable statutes is: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.” The Court finds that the final briefs were submitted on September 28, 2001 thereby setting a deadline (30 days) of October 28, 2001 for the award. On October 24, 2001 the Panel sought a delay in order to obtain advice App. 38 from a Certified Public Accountant. The parties agreed to a delay from October 24, 2001 until January 24, 2002. Therefore, the thirty-day period was tolled from October 24 to January 24 as aforesaid and, therefore, the final award was made within thirty days of October 28, 2001. Accordingly, the Court finds that the award was rendered within the thirty-day time limit. Plaintiff claims that the time for making the award has now expired because if the Court directs a rehearing or a remand to the arbitrators it would be doing so beyond the January 24, 2002 deadline. However, it would be impossible for the Court to direct a rehearing by the arbitrators before the time for the award has expired. If the award were made on the 28th day from submission of briefs, then the Court would have only two days in which to make a decision for a remand assuming that the application to vacate could be filed and presented to a judge within the thirty-day time limit. The law does not contemplate permitting something that is impossible to perform. In this particular case, because there was a tolling of the time period, it would still be impossible for the Court to even review an application to vacate and then order a remand because the time p [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1279%3A1. Public record. Not legal advice.