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17-P-184 Appeals Court

CENTRAL CEILINGS, INC. vs. SUFFOLK CONSTRUCTION COMPANY, INC., 

& others.1

No. 17-P-184.

Suffolk. January 10, 2018. - May 9, 2018.

Present: Blake, Neyman, & Ditkoff, JJ.

Arbitration, Award, Discretion of arbitrator, Scope of 

arbitration, Confirmation of award, Judicial review, 

Attorney's fees. Contract, Arbitration. Practice, Civil, 

Interest, Attorney's fees.

Civil action commenced in the Superior Court Department on 

January 31, 2008. 

A motion to confirm an arbitration award was heard by Peter

M. Lauriat, J., and a motion to correct and confirm as corrected

or to vacate an arbitration award was heard by Linda E. Giles, 

J.

Paul R. Mordarski (Margaret Capp also present) for the 

plaintiff.

Joel Lewin (John P. Connelly also present) for the 

defendants.

 

1 Fidelity and Deposit Company of Maryland, Safeco Insurance 

Company of America, and XL Specialty Insurance Company.
2

DITKOFF, J. The parties submitted a construction dispute, 

pending in litigation in the Superior Court, to arbitration 

under the Uniform Arbitration Act, G. L. c. 251, §§ 1 et seq. 

The arbitrator issued a substantial award in favor of the 

plaintiff, Central Ceilings, Inc., but purported to reserve the 

calculation of preaward interest to a Superior Court judge. The 

parties did not agree to this reservation. On the plaintiff's 

motion to confirm the arbitration award, the judge (remanding

judge) remanded the matter to the arbitrator for the calculation

of preaward interest. After the arbitrator awarded preaward 

interest well below that requested by the plaintiff, the 

plaintiff moved to correct or to vacate that award. The 

plaintiff now appeals from the order denying that motion. 

Concluding that an arbitrator may not reserve the calculation of 

preaward interest for a judge without the agreement of the 

parties, and finding no error in the failure to award attorney's 

fees, we affirm.

1. Background. The plaintiff was a subcontractor to 

defendant Suffolk Construction Company, Inc. (Suffolk), the 

general contractor, in a project for the renovation and 

construction converting the old Charles Street jail in Boston 
3

into the Liberty Hotel.2 On January 31, 2008, the plaintiff 

commenced an action in Superior Court against the defendants, 

raising various claims arising out of its subcontract with 

Suffolk. After discovery and pretrial proceedings, the parties 

filed a joint motion to stay the case in favor of resolving the 

dispute through arbitration. On October 8, 2013, the parties 

entered into an arbitration agreement governed by the Uniform

Arbitration Act, G. L. c. 251, §§ 1 et seq., expressly 

incorporating the Construction Industry Arbitration Rules of the 

American Arbitration Association. The arbitration agreement 

reached "all relevant issues appertaining" to the civil lawsuit 

and granted the arbitrator "full power and authority to award 

money damages and to grant such other relief, including without 

limitation reasonable attorney's fees and any other 

contractually authorized damages as he, in his sole discretion, 

shall deem just and proper" "[t]o the same extent as if he were 

a justice of the Massachusetts Superior Court." A judge allowed

the motion and stayed the case during the pendency of the 

arbitration.

 

2 The remaining defendants, Fidelity and Deposit Company of 

Maryland, Safeco Insurance Company of America, and XL Specialty 

Insurance Company, are the joint sureties on the payment bond 

covering the project.
4

After extensive arbitration proceedings, the arbitrator 

issued an initial award on the merits in favor of the plaintiff 

in a decision dated February 20, 2015, in the amount of 

$1,324,819.24, "with interest thereon in the amount ultimately 

assessed by the Court," plus attorney's fees and costs as set 

out in the subcontract between the parties.3

The parties filed timely cross motions with the arbitrator 

requesting modification, correction, and clarification of the 

initial award. The arbitrator denied the defendants' motion and 

allowed the plaintiff's motion. The modified award, dated April 

6, 2015, changed the award only to require an additional 

interest calculation. It continued to reserve the task of 

calculating interest on the $1,324,819.24 award to a judge, but 

also required that judge to calculate interest on a payment of 

$402,852 already made by Suffolk shortly after the parties 

agreed to arbitration and prior to any award.

On April 15, 2015, the defendants moved in Superior Court 

to vacate the arbitrator's award. The defendants soon 

reconsidered, paid the modified award plus postaward interest on 

June 24, 2015, and then withdrew their motion to vacate. 

 

3 The arbitrator also stated, "Should the parties fail to 

agree upon the amount due for attorney's fees and costs, the 

matter shall be submitted for determination by the Arbitrator 

pursuant to" the subcontract between the parties.
5

Meanwhile, the parties were unable to agree on the attorney's 

fees and costs owed to the plaintiff. The arbitrator awarded

attorney's fees and costs on July 20, 2015, which Suffolk paid 

within one month.

The parties, however, continued to dispute the issue of 

preaward (as opposed to postaward) interest, as neither the 

initial nor the modified award expressly stated that the 

interest to be calculated by a judge included preaward interest. 

The plaintiff maintained that the arbitrator either explicitly 

or implicitly awarded preaward interest from the commencement of 

the suit at the statutory rate of twelve percent, see G. L. 

c. 231, § 6C, and that the judge had the duty to calculate that 

interest. The defendants, in turn, asserted that only the 

arbitrator could calculate preaward interest.

On October 26, 2015, the plaintiff moved to confirm the 

modified award under G. L. c. 251, §§ 11, 14, 15, and to enter 

judgment against the defendants for the disputed preaward 

interest in the amount of $1,563,763.58 plus an additional 

$500.46 for every day after September 16 to the date of 

judgment. The defendants, conversely, asserted that the 

preaward interest had been submitted to the arbitrator and thus 

no additional preaward recovery was permissible.

After a hearing, the remanding judge concluded that,

although the arbitrator implicitly awarded preaward interest, 
6

the lack of any explicit agreement between the parties on the 

issue precluded its reservation for a judge. Accordingly, the 

remanding judge remanded the matter to the arbitrator pursuant 

to G. L. c. 251, §§ 9, 13, for the calculation of preaward 

interest.

On remand, the arbitrator explained that he had "mistakenly 

believed" that he lacked the authority to calculate the preaward 

interest. The arbitrator acceded to the remanding judge's order 

and issued a postremand clarification dated August 9, 2016. The

arbitrator awarded the plaintiff $287,036 in preaward interest, 

declining to adopt the statutory interest rate under G. L. 

c. 231, § 6C. Citing his broad discretion on the matter, the 

arbitrator instead considered "various factors" of the 

underlying dispute to award a "fair and equitable" amount based 

on the "totality of circumstances." Suffolk promptly paid that 

amount.

In response, on September 26, 2016, the plaintiff moved

under G. L. c. 251, §§ 12, 13, to "correct" the arbitrator's 

postremand award to $1,462,600, based on the twelve percent 

interest rate in G. L. c. 231, § 6C, and additionally to award 

the plaintiff supplemental attorney's fees and costs for the 

postarbitration court proceedings. The defendants opposed the 

motion, contending that (1) the plaintiff's motion was untimely; 

(2) the arbitrator did not exceed his authority; and (3) the 
7

plaintiff was not entitled to further attorney's fees and costs 

because the defendants were the "prevailing party" in the 

postremand litigation. A third Superior Court judge denied the 

plaintiff's motion, citing the reasons set forth in the 

defendants' opposition.

2. Remand to the arbitrator to calculate preaward 

interest. We review de novo a judge's decision on a motion to 

confirm an arbitration award under G. L. c. 251, § 11, Bolman v. 

Plymouth Rock Assur. Corp., 82 Mass. App. Ct. 135, 142 (2012), 

recognizing "that 'the entitlement of a party to preaward 

interest is a decision that is within the purview of the 

arbitrator[].'" Id. at 139, quoting from Connecticut Valley 

Sanitary Waste Disposal, Inc. v. Zielinski, 436 Mass. 263, 271 

(2002). "Generally, in a proceeding to confirm an arbitration 

award, a judge may not alter an arbitrator's decision that 

allows, denies or fails to mention pre award interest." Talty, 

Talty, & Braunstein, Methods of Practice § 38.20 (4th ed. supp. 

2017), quoting from Bolman, supra.4 If the award is simply 

silent as to preaward interest, the confirming court lacks the 

authority to add preaward interest. Reilly v. Metropolitan 

Property & Liab. Ins. Co., 412 Mass. 1006, 1007 (1992), citing

 

4 The calculation of postaward interest, of course, remains 

a judicial duty where the parties cannot agree. See Diaz v. 

Cruz, 76 Mass. App. Ct. 773, 774 (2010).
8

Sansone v. Metropolitan Property & Liab. Ins. Co., 30 Mass. App. 

Ct. 660, 662-663 (1991).

The calculation of preaward interest, however, may properly 

be reserved for a confirming court in certain conditions. 

Talty, Talty, & Braunstein, supra, citing Bolman, 82 Mass. App. 

Ct. at 140-141. Specifically, in Bolman, supra at 141, we 

decided that the issue of preaward interest may be properly 

reserved for the confirming court where "the reservation 

unambiguously was agreed to by the parties and the arbitrator." 

Here, there is no suggestion in the record that the parties 

agreed to this reservation. Both the arbitration agreement and 

the parties' own conduct, in fact, demonstrate the opposite. 

The arbitration agreement was broad enough to include the 

calculation of preaward interest within the arbitrator's 

authority, and in no way expressly reserved the issue for the 

confirming court. The plaintiff, moreover, specifically 

requested that the arbitrator calculate a sum certain award of 

preaward interest, and the defendants took the position in the 

Superior Court that they agreed for only the arbitrator to

calculate preaward interest.

We reject the suggestion that an arbitrator may reserve the 

calculation of preaward interest to a confirming court without 

the agreement of the parties. It is a "fundamental principle 

that the arbitrator's authority is defined by the parties' 
9

arbitration agreement." Lynn v. Council 93, Am. Fedn. of State, 

County, & Mun. Employees, Local 193, 51 Mass. App. Ct. 905, 905 

(2001). See Bolman, 82 Mass. App. Ct. at 141 ("the issue of 

preaward interest properly was reserved because the reservation 

unambiguously was agreed to by the parties and the arbitrator"). 

Cf. Perlin & Blum, Procedural Forms Annotated § 116:1 (6th ed. 

supp. 2017), citing Sansone, 30 Mass. App. Ct. at 662–663 ("In 

the absence of an explicit agreement to the contrary, pre-award 

damage claims, including interest must be considered to have 

been submitted to arbitration"). Moreover, when agreed to by 

the parties, there is a "strong public policy favoring 

arbitration as an expeditious alternative to litigation for 

settling commercial disputes." Massachusetts Hy. Dept. v. 

Perini Corp., 79 Mass. App. Ct. 430, 441 (2011), quoting from 

Plymouth–Carver Regional Sch. Dist. v. J. Farmer & Co., 407 

Mass. 1006, 1007 (1990). This strong public policy would not be 

honored if we allowed an arbitrator to reserve the calculation 

of preaward interest when the parties had agreed to arbitrate 

the issue. Furthermore, that course of action presumes that 

there will be further litigation, where the hope is that the 

losing party to the arbitration will comply with the 

arbitrator's award without the necessity of resort to the 

courts. See Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 

784, 794 (2016) (allowing parties to redefine "the scope of what 
10

a court was to review with respect to every arbitration award 

. . . would spawn potentially complex and lengthy case-within-acase litigation devoted to determining what the parties intended 

. . . . This is fundamentally contrary to the intent and 

purpose of our arbitration statute"). Indeed, the instant case 

demonstrates the complications that would arise if the parties 

could be required to return to court, rather than allowed simply 

to comply with the arbitrator's award.

Faced with an arbitrator's award that erroneously reserved

the calculation of preaward interest to the court, the judge 

properly returned the matter to the arbitrator for correction. 

General Laws c. 251, § 9, authorizes the direct submission from 

the court to the arbitrator for the modification or correction 

of an award pending confirmation if (1) there is an evident 

mistake or miscalculation; (2) the award was imperfect in a 

matter of form, not affecting the merits of the controversy; or 

(3) for the purpose of clarifying the award.5 G. L. c. 251, 

§§ 9, 13. Baxter Health Care, Corp. v. Harvard Apparatus, Inc., 

35 Mass. App. Ct. 204, 209 (1993). Here, because the award 

improperly directed the judge to calculate preaward interest

without the requisite agreement of the parties, it was imperfect 

 

5 Section 9 expressly allows resubmission to the arbitrator 

by the judge independent of a party's application; as a result, 

the plaintiff's argument on the basis of waiver is meritless.
11

as a matter of form, in a manner outside the merits of the 

underlying dispute.6 G. L. c. 251, § 13(a)(3). Accordingly, the 

issue of preaward interest was properly remanded to the 

arbitrator for calculation. See Baxter Health Care, Corp., 

supra at 210 (resubmission to arbitrator under § 9 "is within 

the discretion of the court, and may be upon such conditions as 

the court orders").

It follows from the preceding conclusion that the 

plaintiff's motion to "correct" the arbitrator's postremand 

award was properly denied. The plaintiff's motion essentially 

asked the judge to disregard the arbitrator's postremand 

decision and to calculate the postaward interest himself. 

Because, however, the remanding judge properly had remanded the 

matter to the arbitrator, the third judge also properly rejected 

this motion. See Bolman, 82 Mass. App. Ct. at 141. See also 

 

6 This is because the arbitrator awarded preaward interest 

but failed to calculate it. See Finn, Mone, & Kelly, Mediation 

and Arbitration § 19:172 (2017-2018 ed. 2017) ("The corrections 

and modifications may be made without affecting the merits of 

the award upon the issues submitted to the arbitrators" 

[emphasis supplied]). Cf. Bruner and O'Connor on Construction 

Law § 21:215 (2014) ("Courts are authorized to correct or modify 

awards that are 'imperfect in matter of form,' as long as doing 

so does not affect the merits of the controversy. As a general 

rule, courts have been reluctant to modify damage awards on this 

ground because changing the amount awarded affects the merits" 

[emphasis supplied]). By contrast, had the award merely been 

silent on the issue of preaward interest, the remanding judge

could not have remanded. See Reilly, 412 Mass. at 1007.
12

Bruner and O'Connor on Construction Law § 21:215 (2014) (courts 

generally reluctant to correct awards imperfect in matter of 

form when doing so would change the amount awarded).

3. Motion in the alternative to vacate the arbitrator's 

postremand award. We uphold an arbitration award even if the 

arbitrator's findings and conclusions "appear erroneous, 

inconsistent, or unsupported by the record at the arbitration 

hearing." Katz, Nannis & Solomon, P.C., 473 Mass. at 790, 

quoting from Lynn v. Thompson, 435 Mass. 54, 61 (2001), cert. 

denied, 534 U.S. 1131 (2002). "With respect to awarding 

damages, so long as the arbitrator 'do[es] not overstep the 

limits of the issues submitted to [him], a court may not 

substitute its judgment on the matter.'" Perini Corp., 79 Mass. 

App. Ct. at 435, quoting from Softkey, Inc. v. Useful Software, 

Inc., 52 Mass. App. Ct. 837, 839 (2001). "We do, however, 

vacate an award if '[a]n arbitrator exceeds his authority by 

granting relief beyond the scope of the arbitration agreement 

. . . or by awarding relief prohibited by law.'" Springfield v. 

United Pub. Serv. Employees Union, 89 Mass. App. Ct. 255, 257-

258 (2016), quoting from Lynn v. Lynn Police Assn., 455 Mass. 

590, 596 (2010).

General Laws c. 251, § 12, inserted by St. 1960, c. 374, 

§ 1, likewise, specifies that a judge shall vacate an 

arbitration award if:
13

"(1) the award was procured by corruption, fraud or other 

undue means;

(2) there was evident partiality by an arbitrator appointed 

as a neutral, or corruption in any of the arbitrators, or 

misconduct prejudicing the rights of any party; [or]

(3) the arbitrators exceeded their powers."

Here, the plaintiff does not allege corruption, fraud, or 

prejudice. Rather, the plaintiff contends only that the 

arbitrator exceeded his authority in the postremand award.

As previously discussed, however, arbitrators are 

authorized to grant preaward interest. See Bolman, 82 Mass. 

App. Ct. at 139. Indeed, arbitrators have substantial 

discretion to determine the scope of their contractual authority 

to fashion remedies, "unless expressly restricted by the 

agreement or the submission to arbitration." Perini Corp., 79 

Mass. App. Ct. at 443, quoting from Superadio Ltd. Partnership

v. Winstar Radio Prods., LLC, 446 Mass. 330, 339 (2006). An 

arbitrator's preaward interest award, moreover, "when made as a 

component of an award, is an integral part of the total remedy 

that he fashions and, as such, is not subject to the statutory 

provisions which apply to court-awarded interest on contract 

claims" (emphasis supplied). Id. at 434, quoting from Blue 

Hills Regional Dist. Sch. Comm. v. Flight, 10 Mass. App. Ct. 

459, 472 (1980), S.C., 383 Mass. 642, 644 (1981). See also 

Construction Industry Arbitration Rules and Mediation Practices 

R-48(d)(i) (2015) (arbitrator's award may include "interest at 
14

such rate and from such date as the arbitrator may deem 

appropriate").

The agreement in this case contained no such provision 

limiting the arbitrator's authority to award interest of any 

kind, nor prescribed interest rates. The arbitrator did not, as 

the plaintiff suggests, thereby exceed his authority in 

calculating preaward interest below the statutory rate under 

G. L. c. 231, § 6C. See Perini Corp., 79 Mass. App. Ct. at 446 

("once the parties resort to arbitration and legal proceedings 

to resolve payment of disputed claims, . . . the interest 

provisions of [the statute] are no longer controlling"). To the 

contrary, the determination was consistent with the Construction 

Industry Arbitration Rules incorporated into the arbitration 

agreement. See Construction Industry Arbitration Rules and 

Mediation Procedures R-48(a) (2015) ("The arbitrator may grant 

any remedy or relief that the arbitrator deems just and 

equitable and within the scope of the agreement of the 

parties"). The third judge thus correctly denied the 

plaintiff's motion to vacate the arbitrator's postremand award.7

 

7 The defendants had paid all existing obligations awarded 

by the arbitrator at the time of the plaintiff's motion. As a 

result, there was no need for the judge to confirm the 

arbitrator's postremand award pursuant to G. L. c. 251, § 12(d). 

See Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 533

(2003) ("confirmation of the award became moot because the 

obligation owed to the [prevailing party] had been satisfied").
15

4. Attorney's fees and costs. As a general rule, 

"litigants bear their own expenses unless a statute or a 

contract or other agreement provides otherwise." E. Amanti & 

Sons, Inc. v. R.C. Griffin, Inc., 53 Mass. App. Ct. 245, 258 

(2001). Here, the plaintiff claims supplemental attorney's fees 

and costs from the proceedings in the Superior Court to confirm 

the arbitrator's award pursuant to art. 8.16 of the subcontract 

between the plaintiff and Suffolk.8 In the absence of such an 

agreement, legal fees arising out of arbitration, including 

those to confirm, modify, or vacate an arbitration award, may 

not be awarded by a reviewing court. Finn, Mone, & Kelly, 

Mediation and Arbitration § 9:9 (2017-2018 ed. 2017), citing

Floors, Inc. v. B. G. Danis of New England, Inc., 380 Mass. 91, 

99-101 (1980). See Sun Fire Protection & Engr., Inc. v. D.F. 

Pray, Inc., 73 Mass. App. Ct. 906, 907-908 (2009) (declining to 

award attorney's fees and costs incurred solely in connection 

with obtaining award's confirmation). Rather, so far as the 

record before us reveals, the arbitration agreement confers on 

the arbitrator the sole power to award attorney's fees and 

costs. Accordingly, the parties have not demonstrated to us any 

error in the third judge's decision not to award attorney's fees 

 

8 The subcontract, while referenced by both parties, does 

not appear in the record before us.
16

for the litigation in Superior Court. Similarly, we do not 

award attorney's fees for this appeal.

5. Conclusion. The order dated November 10, 2016, denying

the motion to confirm and correct or vacate the postremand 

arbitration award is affirmed.

So ordered.