NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, theref ore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran , 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23

- P

- 983

KAMILAH LAND

vs

.

SHATASHA A. AUGMON

.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

T he plaintiff filed a complaint against the defendant for

one count of negligence arising out of a motor vehicle accident

that occurred on November 22, 2017. The part ies subsequently

agreed to b inding arbitration. The record before the arbitrator

included an expert report from a physician. The plaintiff's

position, which she says was argued to the arbitrator, is that

in this expert report, the expert concluded that the plaintiff

suffered a permanent two percent impairment of her whole person.

The arbitrator issued an award that included the statement,

" Despite [ the plaintiff ' s] complaints of ongoing residuals

,

there are no medical supports from any doctor

, or primary care

physician referencing these c oncerns. " The plaintiff argues

that this is inaccurate. The plaintiff's counsel sent a2

postaward e

- mail message to the arbitrator that " I see no

reference [in the award] to the permanency report justifying

[ th e plaintiff's] complaints as testified to by [ the plaintif f 's

expert]

. " The arbitrator wrote back, " Thankyou [ sic ] for your

email. Although there is no reference to [the expert's] report

in the award I did read and consider it in my opinion. "

The p laintiff then filed a motion to vacate the arbitration

award in the Superior Court

. 1 A judge of that court denied the

motion and the plaintiff has now appealed from that order

.

It is well settled that the scope of review of an

arbitration award on a motion to vacate is narrow. Indeed, the

Supreme Judicial Court has said

, " When parties agree to

arbitrate a dispute, courts accord their election great weight.

T he strong public policy favoring arbitration requires us to

uphold an arbitrator's decision even where it is wrong on the

facts or the law, and whether it is wise or fo olish, clear or

ambiguous." Boston v. Boston Police Patrolmen's Ass ' n , 443

Mass. 813, 818 (2005).

1 At the time that the motion was filed, a judgment of

dismissal had entered based on the parties' failure to comply

with a nisi order. Although styled as a motion to vacate the

judgment of dismissal, we treat the postjudgment motion as a

motion to vacate t he arbitration award consistent with the

motion judge's decision on the merits and the parties' briefing

on appeal

.3

The plaintiff argues here, as she did below, that the

statement of the arbitrator that " there are no medical supports

from any doctor

, or primary care physi cian referencing "

permanent injury, in the face of a report that, we will assume

without deciding, asserts that there are, is no mere error of

fact. Rather, she argues, the arbitrator " refus ed to hear

evidence material to the controversy ," which is a ground for

vacating an arbitration award under G

. L. c. 251, § 12 ( a ) (4).

Assuming not only that the expert's report must be read as

the plaintiff would read it, and that the postaward e

- mail

mes sage exchange with the arbitrator should not be considered in

evaluating the question before us , we conclude that there was

nonetheless no refusal to hear material evidence in this case.

In Northland Inv. Corp

. v. Goodwin Procter LLP

, 82 Mass. App.

Ct. 272

, 273 (2012), construing identical statutory language, w e

held that

, when a " decision not to admit [what was presumed to

be material evidence ] was made by an arbitrator after a full

offer of proof and oral argument ," it did not amount to a

refusal to he ar the evidence

– - even though in that case, unlike

this, the arbitrator specifically ruled in excluding the

evidence that he would not hear it

. Likewise, we do not think

that the arbitrator's action here

– - whether characterized as

erroneously describing what is in the record in a way that

excludes some material evidence or failing to consider or4

understand a piece of material evidence that is in the record

- –

amounts to a "refus[al] to hear evidence material to the

controversy" within the meaning of the statute. G. L. c. 251,

§ 12 ( a ) (4). Consequently, the order enter ed July 5, 2023,

denying the motion to vacate the arbitration award is affirmed.

So ordered

.

By the Court (Rubin,

Englander & D'Angelo

, JJ. 2 ),

Clerk

Entered: June 27, 2024.

2 The panelists are listed in order of seniority.