IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAVID W. NEWELL, M.D., an 

### ) No. 77659-2-I individual, Respondent, 

### ) ) DIVISION ONE v. 

### )

) UNPUBLISHED OPINION PROVIDENCE HEALTH & 

### ) SERVICES, a Washington non-profit 

### ) corporation, and SWEDISH HEALTH 

### ) FILED: June 24, 2019 SERVICES, a Washington non-profit 

### ) corporation, 

### ) Appellants. 

### ) __________________________________________________________________________________) MANN, A.C.J.

—After Providence Health & Services and Swedish Health Services (collectively Swedish) terminated Dr. David Newell, Newell sued Swedish alleging, among other things, breach of contract, breach ofthe implied covenant of good faith and fair dealing, violations of the Washington Consumer Protection Act (CPA),1 and violations oftheWashington LawAgainst Discrimination (WLAD).2 Pursuantto the parties’ employment contract, the dispute was sentto arbitration. The arbitratorfound in

Oh. 19.86 RCW. 2Oh. 49.60 ROW.No. 77659-2-112

Newell’s favor and awarded Newell damages and attorneyfees and costs. Swedish petitioned the superior courtto vacate or modifythe awards. The court denied Swedish’s motion to vacate and confirmed the awards. Swedish appeals. We affirm.

From 2012 through 2016, Newell worked as a physician and neurosurgeon with Swedish. His employmentwas governed bythe Swedish Health Services Physician EmploymentAgreement (employment agreement), which required Newell to notify Swedish “ofthe initiation, occurrence, orexistence of.

. . [amy criminal investigation of [Newellj.” On July 11, 2016, Newell was arrested forsoliciting prostitution. Newell ultimately pleaded guiltyto that charge, but did not notify Swedish of his arrest. On September20, 2016, Swedish terminated Newell allegedly due to his failure to inform Swedish that he was undercriminal investigation. Newell believed, however, that Swedish actuallyfired him as retaliation forcomplaints that he had made against Dr. Delashaw, the chairman of Swedish’s Neuroscience Institute. Newell sued Swedish alleging breach ofcontract, breach ofthe implied covenant ofgood faith and fair dealing, wrongful termination in violation of public policy, tortious interference with contact and business expectancy, violation ofthe CPA, and violation of the WLAD. Pursuantto the parties’ employment contract, the dispute was sentto arbitration. The parties agreed to use the Honorable Paris Kallas, retired, (arbitrator) to arbitrate Newell’s claims. Following a three-day hearing, the arbitrator issued her written arbitration award. The decision stated “[h]aving reviewed the evidence, testimony presented atthe hearing, and counsels’ argument, I find in favor of [Newell]

-2-No. 77659-2-1/3

on the following causes ofaction: breach ofcontract; breach of implied covenant of good faith and fair dealing; and retaliation in violation ofWLAD.” The arbitrator awarded Newell $16500000 lost earning and $1,000,000 emotional distress damages. The arbitrator also awarded Newell his attorneyfees, costs, and expenses for hisWLAD claims, which was laterdetermined to be $685,178.84, including a 1 .75 fee multiplier. Newell petitioned the superior courtto confirm both the initial arbitration award, and the supplemental attorneyfee award. Swedish contested both motions and petitioned the courtto vacate or in the alternative modifythe awards. The superior court denied Swedish’s motions and confirmed both the initial and supplemental awards. Swedish appeals.
“[A]rbitration in Washington State is governed exclusively by statute.” Broom v. Morgan Stanley DW Inc., 169 Wn.2d 231, 237, 236 P.3d 182 (2010). Washington courts accord substantial finalityto the decision ofan arbitrator, and thereforejudicial review ofan arbitration award is exceedingly limited. See Davidson v. Hensen, 135 Wn.2d 112, 118-19, 954 P.2d 1327 (1998). “[un the case ofan appeal from an arbitrator’s award, an appellate court is strictly proscribed from the traditional full review.” Barnettv. Hicks, 119 Wn.2d 151, 157, 829 P.2d 1087 (1992). Our ‘review of
an arbitrator’s award is limited to that ofthe courtwhich confirmed

. . . that award. The trial court’s review is confined to the question whetherany ofthe statutory grounds for vacation exist.” Cummings v. Budget Tank Removal and Envtl. Servs. LLC., 163 Wn. App. 379, 388, 260 P.3d 220 (2011).

-3-No. 77659-2-1/4

The Uniform Arbitration Act (UAA), chapter 7.04A RCW, provides the statutory grounds necessary to vacate an arbitration award: “the court shall vacate an award if.

. . [am arbitratorexceeded the arbitrator’s powers.” ROW7.04A.230(1)(d).3 But when reviewing such a claim, we are restricted to reviewing onlythe face ofthe award. Boyd v. Davis, 127 Wn.2d 256, 262-63, 897 P.2d 1239 (1995). We can vacate an arbitration award only if“the face ofthe arbitral award alone

. . . exhibit[s] an erroneous rule of law ora mistaken application of law.” Boyd, 127 Wn.2d at 263. “[T]he facial legal errorstandard is a very narrow ground for vacating an arbitral award

. . . courts may not search the arbitral proceedings for~y legal error; courts do not lookto the merits ofthe case, and they do not reexamine the evidence.” Broom, 169 Wn.2d at 239. “The errorshould be recognizable from the language ofthe award, as, for instance, where the arbitrator identifies a portion ofthe award as punitive damages in ajurisdiction that does not allow punitive damages.” Federated Servs. Ins. Co. v. Estate of Norberq, 101 Wn. App. 119, 124, 4 P.3d 844 (2000).

~ RCW 7.04A.230(1) provides: Upon motion ofa party to the arbitration proceeding, the court shall vacate an award if: (a) The award was procured by corruption, fraud, orother undue means; (b) There was: (i) Evident partiality by an arbitrator appointed as a neutral; (ii) Corruption by an arbitrator; or (iii) Misconduct by an arbitrator prejudicing the rights ofa party to the arbitration proceeding; (c) An arbitrator refused to postpone the hearing upon showing ofsufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to RCW 7.04A.150, so as to prejudice substantiallythe rights ofa party to the arbitration proceeding; (d) An arbitratorexceeded the arbitrator’s powers; (e) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under RCW 7.04A.150(3) not later than the commencementofthe arbitration hearing; or (f) The arbitration was conducted without proper notice ofthe initiation of an arbitration as required in RCW7.04A.090 so as to prejudice substantially the rights ofa party to the arbitration proceeding. -4-No. 77659-2-1/5

Swedish argues firstthatthe arbitrator ignored the requirements in the employment contract. Washington’s arbitration statute requires the courtto vacate an award ifthe arbitrator“exceeded the arbitrator’s power.” RCW 7.04A.230(1)(d). “The authority ofthe arbitration tribunal derives from the contract ofthe parties,” and the arbitratorcan “do no more than that authorized bythe contract.” Agnewv. Lacey Co ~jy, 33 Wn. App. 283, 287, 654 P.2d 712 (1982). As a result, when an arbitrator departs from the unambiguous language ofthe parties’ arbitration agreement, the arbitratorexceeds their powers. Kennewick Educ. Ass’n v. Kennewick Sch. Dist. No. 17, 35 Wn. App. 280, 282, 666 P.2d 928 (1983). Here, the contract between Newell and Swedish provides thatthe arbitration award “shall contain a briefstatement ofthe claim(s) determined and the award made
on each claim.” The arbitrator’s decision found “in favor of [Newell] on the following
causes ofaction: breach ofcontract; breach of implied covenant ofgood faith and fair dealing; and retaliation in violation ofWLAD.” Swedish argues that because the form of the award did not complywith the employment agreement, the arbitratorexceeded her authority. Further, Swedish asserts thatthe award was impenetrable and frustrates justice because it prevents Swedish from assessing whetherthe arbitrator misapplied the law. We disagree. First, Swedish invited the error it now complains ofon appeal. “The invited error doctrine prohibits a partyfrom setting up an error below and then complaining of it on appeal.” In re Marriage of Morris, 176 Wn. App. 893, 900, 309 P.3d 767 (2013). Prior to the hearing, Swedish submitted a proposed award which laid out each cause of

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action and, without any reasoning, found in favor of Swedish. For example, Swedish’s proposed award provided: “On the First Cause ofAction, ‘Breach ofContract,’ I rule in favor ofthe Respondents.” Then “[altthe arbitration hearing, counsel for Dr. Newell and [Swedish] represented thatthe parties agreed that onlythe briefest of ‘a briefstatement’
was requested and required underthe EmploymentAgreement.” Swedish’s proposed award, in conjunction with the parties’ oral agreement indicated to the arbitratorthatthe form of heraward complied with the employment agreement. Therefore the invited errordoctrine prohibits Swedish from now arguing thatthe form ofthe award is in error. Swedish disagreeswith this result and argues that it could not have agreed to a brief, summarized award because doing so violated the underlying employment contract. Butthe intent ofthe parties’ agreement is not properly before us. In Boyd, our Supreme Court analyzed whetherthe trial court erred by examining “the agreements entered into bythe parties in the course ofdetermining whetherthe arbitrator exceeded the scope of his power.” 127 Wn.2d at 258. “[T]he trial court [had] reviewed the

. . . agreements specificallyforthe purpose ofdiscerning [the parties’] intent. In effect, therefore, it interpreted those agreements.” Boyd, 127 Wn.2d at 261. But because the “court cannot search the four corners ofthe contractto discern the parties’ intent,” Boyd, 127 Wn.2d at 263, the Supreme Court ruled the trial court had erred in examining the underlying contract. “Such an undertaking [was] tantamountto trying the
case de novo.” Boyd, 127 Wn.2d at262. Swedish is asking this courtto conclude that it did not agree to the form ofthe arbitrator’s award because agreeing to an unexplained award would have violated the

-6-No. 77659-2-1/7

employment agreement. But because onlythe arbitrator is entitled to interpret the employment agreement, we are unable to reviewthe validity ofthe parties’ concessions below and musttake the arbitrator’s findings as consistentwith the employment agreement. Boyd, 127 Wn.2d at262. Second, we cannotvacate an award based on a perceived error in the form of the award. Ourabilityto vacate an award is limited to the grounds present in RCW 7.04A.230, which does not include an improperform ofthe award. “In the absence of
an errorof law on the face ofthe award, the arbitrator’s award will not be vacated or modified.” Davidson, 135 Wn.2d at 118. Instead, perceived errors in the form ofthe award are addressed in RCW 7.04A.240, which provides onlythat “the [superior] court shall modify or correctthe award if.

. . the award is imperfect in a matterofform not affecting the merits ofthe decision.” RCW 7.04A.240(c). See RCW 7.04A.O1O(4) (“Court’ means a court of competentjurisdiction in this state.”); Dayton v. Farmers Ins. Grp., 124 Wn.2d 277, 279, 876 P.2d 896 (1994) (emphasis added) (“The superior court may eitherconfirm, vacate, modify, or correct an arbitration award forthe specific reasons setfor in [the UAA.]”). Swedish failed to askthe arbitratorto modifythe arbitration award, see RCW 7.04A.200, and the superior court refused to do so. We are withoutthe statutory authorityto modifythe award based on Swedish’s perceived error in form. Finally, the face ofthe arbitration award does not exhibit an erroneous rule of law
or mistaken application of law. The only argument Swedish makes resembling an attackagainstthe face ofthe award is thatthe $1 000,000 emotional distress damages

-7-No. 77659-2-1/8

could not have been awarded under Newell’s contract claims.4 But because the WLAD allows such a recovery ofemotional distress damages, the arbitratordid not misapply the law. Gaglidari v. Denny’s Rests., Inc., 117 Wn.2d 426, 448, 815 P.2d 1362 (1991); Lords v. N. Auto. Corp., 75 Wn. App. 589, 596, 881 P.2d 256 (1994). IV. Swedish argues nextthatthe arbitrator’s evidentiary and discovery rulings prejudiced Swedish’s rights and revealed the arbitrator’s partiality compelling us to vacate the award. The UAA provides that an arbitration award shall be vacated ifthe arbitrator“refused to considerevidence material to the controversy, or otherwise conducted the hearing contraryto RCW7.04A.150, so as to prejudice substantiallythe rights ofthe partyto the arbitration proceeding.” RCW 7.04A.230(1 )(c). Washington courts have not defined the standard forvacating an award under RCW 7.04A.230(1)(c). In Kempfv. Puryear, 87 Wn. App. 390, 393 942 P.2d 375 (1997), the court affirmed an arbitrator’s decision against a challenge underthe analogous predecessor statute, RCW 7.04.160(3).~ The Kempfcourt held thatvacatur is warranted onlywhere the movant “was denied ~y opportunityto participate in the arbitration.” Kempfappears consistentwith federal authority construing the Federal Arbitration Act’s (FAA) analogous provision. Compare 9 U.S.C. 

### § 10(a)(3) with RCW

~Additionally, Swedish argues against a 12 percent post-judgment interest rate and against $16.5 million in lost earning damages. Butthese arguments ask us to reviewthe merits ofthe case, which we are forbidden from doing. See Davidson, 135 Wn.2d at 119 (“Judicial review of an arbitration award, therefore, does not include a review ofthe merits ofthe case. Ordinarily, the evidence before the arbitratorwill not be considered bythe court.”). Seea[so Cummings, 163 Wn. App. at 391 (“[I]n reviewing an arbitration award, a court does not insist upon oreven lookfora comprehensive explanation ofthe arbitrator’s reasoning. Findings offact and conclusions of law need not be stated.”).

~ Former RCW7.04.160(3) (1943) provided that an arbitrator’s award should be vacated where the arbitratorwas guilty of misconduct including “in refusing to hear evidence, pertinent and material to the controversy,

. . . bywhich the rights of any party have been prejudiced.” -8-No. 77659-2-1/9

7.04A.230(1)(c).6 Like Kempf, federal authority limits the grounds forvacatur and applies it in situationswhere only “parties are denied the opportunityto present any evidence, oral orwritten.” Fellus v. Sterne, Aciee & Leach, Inc., 783 F. Supp. 2d 612, 621 (S.D.N.Y. 2011). Here, the employmentagreement between Swedish and Newell provides insight into the properstandard of reviewforthis case. The employment agreement provides that there shall be no discovery.

. . butthe arbitrator may authorize such discovery as is necessaryfora fair hearing.

. . . The arbitratorshall not be bound bythe rules ofevidence orofcivil procedure but rather may considersuch evidence as reasonable business people would consider in the conduct oftheirday-to-day affairs

. . . .[T]he arbitratorshall limit live testimony and cross-examination

. . . to the extent he/she determines that can be donewithoutjeopardizing a fair hearing ofthe dispute. Therefore, we will notvacate the arbitration award unless we find thatthe arbitration hearing was fundamentally unfair.7 A. Swedish argues thatthe arbitrator improperly limited its abilityto cross-examine Newell on two differenttopics: Newell’s illicit behaviors priorto termination and Newell’s conversations with his criminal defense attorney. Swedish’s theory ofdefense was that Newell’s alleged emotional distress was really due to his personal life and not his termination. In an effortto explore this theory,

6This court “may lookto federal authority construing [that] analogous provision.., for guidance.” Jensen v. Misner, 1 Wn. App. 2d 835, 843, 407 P.3d 1183 (2017).

~ See also Century Indem. Co. v. Certain Underwriters at Lloyd’s London, 584 F.3d 513, 557-58 (2009) (‘[l]n making evidentiary determinations, an arbitrator need notfollow all the niceties observed by the federal courts

. . . rather, an arbitrator need only grantthe parties a fundamentally fair hearing.”). -9-No. 77659-2-1/10

Swedish attempted to ask Newell about his use of Backpage.com.8 Clerk’s Pages (CP) at 92-3. The arbitrator limited this line ofquestioning as irrelevant: “with the limited discovery, with the objection atthe discovery deposition, I’m not sure there’s any basis to ask it.” CP at 93. Swedish now argues thatthis was in error because “as a result, neither Swedish northe arbitratorwas able to learn how often Dr. Newell ~used the web to search out sexual liaisons orfrequented prostitutes.” Br. ofAppellant at 22. Butthe frequencywith which Newell engaged in illicit sexual activities is not related to any of his claims and therefore is not relevant. Therefore, especially because Swedish was able to introduce otherevidence on Newell’s behavior, the arbitrator’s refusal to allow Swedish to question Newell did not create an unfair hearing. See, e.g. CP at 52-68 (testimonyfrom Newell’s arresting office, Detective Gill); CP at 103-38 (Police report of Newell’s arrest); CP at 133 (Newell’s guilty plea). B. Swedish also asserts thatthe arbitratorallowed Newell to use his attorney client privilege with his criminal defense attorney as both a sword and a shield. On direct examination, Newell testified that he did not inform Swedish of his arrest based on instructions he received from his attorney. On-cross examination, Swedish asked: “What exactly did you ask [yourattorney] when you metwith him[,]” butthe arbitratordid not allow Swedish to proceed with this line ofquestioning.

8Awebsite where patrons can go to view advertisements and arrange services from prostitutes. See, e.g., J.S. v. Village Voice Media Holdings, L.L.C., 184 Wn.2d 95, 98, 359 P.3d 714 (2015) (a negligence action brought by sexual assaultvictims against Backpage.com showing howtheywere “boughtand sold forsexual services online on Backpage.com in advertisements that, [the victims] allege[d], the defendants help[ed] develop.”). -10-No. 77659-2-Ill I

Swedish asserts that Newell waived his attorney client privilege on direct examination, which should have allowed Swedish to cross-examine Newell aboutthis conversation. But, even if Newell’s statementwould have waived his attorney client privilege in a court of law, according to the employment agreementthe rules ofcivil procedure and evidence did not applyto the arbitration hearing. Therefore, the arbitratorwas not required to rely on the precise legal requirements ofattorney client privilege. In a similarcase, the United States Court ofAppeals forthe District of Columbia Circuit held thatthe arbitrator’s exclusion oftestimony did notwarrant vacation ofthe arbitrator’s award. Howard U. v. Metro. Camrus Police Officers Union, 512 F.3d 716, 721 (2008). The Federal Arbitration Act “provides a federal court may set aside an arbitration award when ‘the arbitrators were guilty of misconduct

. . . in refusing to hear evidence pertinent and material to the controversy.” Howard, 512 F.3d at 721 (citing 9 U.S.C. 

### § 1 0(a)(3)). There, the court determined thatthe “arbitratorwas not bound by the particulars offederal law governing attorney-client privilege.” Howard, 512 F.3d at 722. Because ofthat, the court concluded there was no misconductwhen the arbitrator excluded testimony about statements made in open negotiation, despite the fact that such testimony ordinarilywould not be privileged. “The question is notwhetherthe arbitratorcorrectly applied federal law; the question is whether herdecision

. . amounted to ‘misconduct.’ Plainly it did not.” Howard, 512 F.3d at 722. Similarly here, the arbitrator’s refusal to let Swedish inquire aboutthe precise communications between Newell and his criminal defense attorneywas not in error. While in a court of lawthe communications Swedish sought may no longer have been

—11—No. 77659-2-1/12

privileged, the same is not necessarilytrue in the context ofan arbitration. Instead, the arbitratorwas tasked with ensuring thatthe hearing was fairto all parties while limiting live testimony and cross-examination to the extent possible. Here, the arbitratordid preciselythat by determining thatthe details ofa conversation between Newell and his attorneywas not a propersubjectfor cross-examination. Since Newell admitted that he
never informed Swedish of his arrest, the arbitrator’s decision did not create a fundamentally unfair hearing. C. Swedish next contends thatthe arbitrator improperly prevented itfrom discovering Newell’s medical records. Swedish asserts that because Newell was claiming emotional distress damages, itwas entitled to discover his entire medical records to determine ifthe alleged emotional distress could have been due to factors otherthan Newell’s termination. The arbitratordetermined that “Swedish’s requestfor ‘complete copies’ of Dr. Newell’s medical records is denied. Dr. Newell has testified that he has not seen a health care provider about his alleged emotional distress. Given this testimony, producing the records is not necessaryfora fair hearing.” The arbitrator’s decision to prevent discovery of Newell’s medical records was not in error. Swedish asserted that it required Newell’s complete medical records because Newell voluntarily put his mental health at issue.9 Butthe scope ofdiscovery
was alreadydecided bythe parties in the employment agreement: “there shall be ~j.q discovery.

. . [except] as is necessaryfora fair hearing ofthe dispute.” (Emphasis

~ Swedish cites Lodis v. Cobris HoldinQs, Inc., 172 Wn. App. 835, 855, 292 P.3d 779 (2013), for this proposition. But Lodis is not an arbitration case and what may be relevant and required disclosures in a court of law is not necessarily required in an arbitration proceeding, especiallywhere, as here, the employmentcontractcalls forsignificantly limited discovery. -12-No. 77659-2-1113

added). Therefore, according to the employment agreement, the parties agreed that by default discoverywould be substantially limited. In Agnew, this court reversed the trial court’s order confirming an arbitration award. 33 Wn. App. at 290. There, the arbitrator refused to award the prevailing party its attorneyfees, despite the underlying contract providing that “the prevailing party in arbitration ‘shall be entitled’ to reasonable attorney’s fees.” Agnew, 33 Wn. App. at284. This court determined thatthe arbitrator’s decision was in error because “[t]he question ofwhether or not attorney’s fees should be awarded to the prevailing partywas not an issue submitted to the tribunal forarbitration

. . . having already been decided bythe parties by agreement, itwas not arbitrable.” Agnew, 33 Wn. App. at 288. Similarly here, the arbitratorwas following the parties’ guidance thatdiscovery should be substantially limited when denying discovery into Newell’s complete medical records.1° The arbitrator’s decision did not create a fundamentally unfair hearing. D. Swedish next argues thatthe arbitrator improperly allowed Newell to disclose that he was going to call a damages expertwitness and rely on thatwitness’s written report so late in discoverythat Swedish was unable to properly respond. Swedish argues thatwhile 10 days before the arbitration hearing Newell explained that his damages expertwould not be testifying, three days before the hearing that response changed. Thereafter, Swedish requested thatthe arbitrator prevent Newell from presenting experttestimony atthe hearing. The arbitrator denied that request because

10S~aj~ Bunch v. King County Dept. ofYouth Servs., 155 Wn.2d 165, 180, 116 P.2d 381 (2005) (“The plaintiff, once having proved discrimination [underthe WLAD], is only required to offer proof of actual anguish oremotional distress in orderto have those damages included in recoverable costs.”). -13-No. 77659-2-1/14

“Newell has complied with his discovery obligations.

. . [and] the aggressive and accelerated arbitration calendar[11] on which Swedish insisted warrants some leniency
as to the timing ofdisclosures.” This decision was not in error. Swedish was aware since the beginning ofthis dispute that Newell intended to retain a damages expert and that damages would be a significant issue atthe arbitration hearing. In Newell’s demand forarbitration, Newell asked for monetary, punitive, and liquidated damages. Then in Newell’s supplemental response to interrogatories a month later, Newell informed Swedish ofthe precise damages he was claiming and thatwhile he had notyet “retained an expertwitness in this matter, [he] reserves the rightto retain a damages expert.” Both ofthese informed Swedish that damages were going to be an issue at arbitration and that Newell was considering hiring a damages expert. Further, Swedish only asked the arbitratorto prevent Newell from relying on his expert. Swedish did not request a continuance to obtain its own expertwitness, designate a rebuttal witness, or otherwise objectto the arbitrator’s decision. Resp’t Br. at45; see AAA Rule 36 (“Any partywho proceeds with the arbitration after knowledge that any provision or requirement ofthese rules has not been complied with, and who fails to state objections thereto in writing or in a transcribed record, shall be deemed to have waived the rightto object.”); Kempf, 87 Wn. App. at 393 (the appellant “argues that the court properlyvacated the arbitration award because the arbitrators refused to hear certain evidence, [and] refused cross-examination

. . . [but he] did not object to any of the conduct he now complains of.”). This indicates that Swedish’s real desire was to

~1 Newell filed his demand forarbitration on June 15, 2017. The arbitration hearing occurred less than two months later, from July 31 to August 2, 2017. -14-No. 77659-2-1/15

improperly prevent Newell from utilizing a damages expert and not actuallyto obtain its
own expertwitness. E. Swedish next argues thatthe arbitrator’s rulings demonstrate prejudice and supportvacation ofthe award under RCW 7.04A.230(1)(b)(i). ROW 7.04A.230(1 )(b)(i) provides thatthe court shall vacate an award ifthere
was ‘[e]vident partiality by an arbitrator.” As this court recently explained, however, ROW 7.04A.230(1) is intended to remedy actual or apparent conflicts of interestthat existed before the arbitration that should have been, butwere not disclosed. Jensen v. Misner, I Wn. App. 2d 835, 846, 407 P.3d 1183 (2017). As we explained, Ohapter7.04A ROWdoes not define “evident partiality,” but provides clear guidance regarding arbitrator disclosures. In Washington, an arbitrator has a limited obligation to disclose. ROW7.04A.120(l) directs arbitrators to disclose any known facts that a reasonable person would consider likelyto affectthe impartiality ofthe arbitrator in the arbitration proceeding, including: (a) Afinancial or personal interest in the outcome ofthe arbitration proceeding; and; (b) An existing or past relationship with any ofthe parties to the agreementto arbitrate orthe arbitration proceeding, their counsel or representatives, witnesses, orthe otherarbitrators. ROW 7.04A. 120(5) provides that “[am arbitrator appointed as a neutral who does not disclose a known, direct, and material interest in the outcome ofthe arbitration proceeding ora known, existing, and substantial relationship with a party is presumed to actwith evidentpartiality under ROW7.04A.230(1)(b).” Jensen, 1 Wn. App.2d at 845. The Jensen court rejected the appellant’s partiality argument concluding, among otherthings, thatthe appellantfailed to (1) “establish a violation ofstatutory disclosure requirements”; (2) allege the arbitrator had “an interest -15-No. 77659-2-1/16

in the outcome ofthe arbitration proceeding ora known, existing, an substantial relationship with a party”; or (3) “show prejudice from nondisclosure.” Jensen, 1 Wn. App. 2d at 846-48. Jensen is consistentwith otherdecisions ofthis court interpreting RCW 7.04A.230(1)(b) as grounds forvacatur based on the arbitrator’s disclosure of, orfailure to disclose, conflicts of interest. Forexample, in S & S Const., Inc. v. ADC Properties LLC, 151 Wn. App. 247, 258, 211 P.3d 415, 421 (2009), Division Two explained that Established case law holds that under [RCW7.04A.230(l)(b)], an arbitrator has a general dutyto disclose a circumstance or relationship that bears on the question of impartialitywhere that relationship or circumstance creates a reasonable inference ofthe presence of bias or the absence of impartiality. When such an inference exists, the complaining party must showthe existence of prejudicefrom the nondisclosure. (Citing Hanson v. Shim, 87 Wn. App. 538, 943 P.2d 322 (1997)). Division Two went on to hold that “[a] party challenging the impartiality ofan arbitrator.

. . cannotwait to see whetherthe award is favorable to him before raising a challenge that he was aware of before the award was made.” S & S Const., 151 Wn. App. at 257. Swedish does not base its partially challenge on a preexisting conflict of interest between the arbitratorand Newell, as required under RCW 7.04A.230(1)(b). Here, the arbitrator provided a disclosure, which included her priordealing with both parties. Swedish did not object or allege impartiality priorto issuance ofthe arbitration award. In otherwords, Swedish “wait[ed] to see whetherthe award [was] favorable to [it] before raising the challenge” ofalleged evident partiality. S & S Const., 151 Wn. App. at 257. Swedish’s challenge under RCW7.40A.230(1)(b) necessarilyfails.

-10-No. 77659-2-1/17
V.

Swedish argues finallythatthe arbitrator exceeded her power by assessing a fee multiplieron Newell’s attorneyfees. The arbitratorconcluded that “Newell’s requestfor
a multiplierof 1 .75 isjustified underthe applicable case law. The contingentfee as well
as the high quality of legal representationjustifythe multiplier.” Swedish asserts that this violated the law because in Washington fee multipliers are exceedingly rare and only available for unusually good orexceptional legal work and notwhere the lawyers
are being paid on only a partially contingent basis. This issue is not properly before us on appeal. Under RAP 2.5(a), we may refuse to review any claim oferrorwhich was not raised before the trial court. Exceptions to the rule are narrow and include (1) lack oftrial courtjurisdiction, (2) failure to establish facts upon which reliefcan be granted, and (3) manifest error affecting a constitutional right. Swedish does not argue that any ofthe narrow exceptions apply. Swedish made a tactical choice below: it chose to rely on the merits of its case againstthe primary award and not raise specific issueswith the supplemental award of attorneyfees. Such a tactical choice neither presents the sort ofconcern overthe parties’ rights thatwould afford it a second bite atthe apple nor indicates thatthe argument presented here is sufficiently related to those raised below. We decline to consider Swedish’s unpreserved argumentforthe firsttime on appeal. VI. Newell requests his fees on appeal. The WLAD provides that “[amy person

. . injured by an act in violation ofthis chapter shall have a civil action in a court.

. . to
recoverthe actual damages sustained bythe person

. . . togetherwith the cost ofsuit

-17-No. 77659-2-1/18

including reasonable attorneys’ fees.” RCW49.60.030(2). Accordingly, upon compliancewith RAP 18.1 we award Newell his reasonable attorneyfees on appeal. We affirm.



## A~ WE CONCUR:

~ 

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# p

-18-