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02/05/88 Edward M. Kalish, v. Education Association

February 5, 1988

EDWARD M. KALISH, PLAINTIFF-APPELLANT

v.

ILLINOIS EDUCATION ASSOCIATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

519 N.E.2d 1031, 166 Ill. App. 3d 406, 116 Ill. Dec. 816 1988.IL.144

Appeal from the Circuit Court of Cook County; the Hon. Harold Siegan, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal from a trial court order dismissing plaintiff Edward M. Kalish's petition to stay enforcement of and to vacate an arbitrator's award in favor of defendant, Illinois Education Association .

The record discloses that Kalish, after approximately 12 years' employment with the IEA, entered into a written agreement with the IEA on January 14, 1982. The agreement provided that Kalish's IEA employment would terminate and IEA would pay him monthly temporary disability benefits as provided in its retirement plan, until he qualified for permanent benefits. Arbitration of disputes was provided for in the agreement. Thereafter, Kalish attended law school. A dispute between the parties arose in July 1983 after Kalish informed the IEA that he would be gainfully employed on July 1, 1983, whereupon his benefits under the retirement plan were terminated. In fact, Kalish did not become gainfully employed and subsequently demanded that the IEA make payments, equivalent to the retirement fund payments, pursuant to a guarantor clause in the agreement. The IEA refused and the matter proceeded to arbitration.

After a hearing in August 1985, the arbitrator issued a 45-page opinion and award on December 11, 1985. In his opinion, the arbitrator noted that both parties agreed that the language in the guarantor clause was ambiguous. The actual award stated that Kalish, not the IEA, had violated the agreement and denied Kalish's claim. On January 2, 1986, Kalish filed a motion to reconsider with the American Arbitration Association, in effect, asking the arbitrator to reconsider the merits of the case and to modify the award.

On January 10, 30 days after the award was issued, the arbitrator sent a bill to Kalish requesting immediate payment of arbitration fees and expenses. There is no evidence in the record suggesting that the arbitrator was aware of the motion for reconsideration. Thereafter, Kalish sued to stay enforcement of the award. The trial court granted the IEA's motion to strike the petition, and Kalish now appeals.

On appeal, Kalish asserts that: (1) the arbitrator committed a gross error of law in finding that he had breached the contract by failing to reapply for temporary disability benefits; (2) the arbitrator exceeded his power by finding that Kalish had a contractual duty to reapply; (3) an arbitration proceeding is not finally concluded until the determination of a timely filed motion for clarification of the award; and (4) the arbitrator was guilty of misconduct which prejudiced Kalish's rights. For the following reasons, we affirm the trial court.

Arbitration proceedings and subsequent review are governed by the Uniform Arbitration Act adopted by Illinois in 1961. (Ill. Rev. Stat. 1985, ch. 10, par. 101 et seq.) Errors of judgment in law are not grounds for vacating an arbitrator's award. (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 427 N.E.2d 1199.) But, gross errors of judgment in law or mistake of fact can be used to vacate an award where the mistakes or errors are apparent on the face of the award. White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327.

Kalish argues that the arbitrator's imposition of a duty on Kalish to reapply for benefits, as expressed in the arbitrator's opinion, is not based on any duty expressed in the agreement. He relies on Michigan law for the proposition that the opinion and award are one and the same. No Illinois law supports this theory. In fact, this court noted in a similar case that faulty reasoning, even if disclosed, does not vitiate an award. (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 392 N.E.2d 198.) Moreover, the arbitrator in the present case noted that both parties agreed that the language in the guarantor clause was ambiguous as it related to other portions of the agreement, and proceeded to interpret the clause in conjunction with the rest of the agreement, the plan, and facts of the case. Even if, for the sake of argument, the arbitrator made a mistake of law in his reasoning, this would not constitute gross error on the face of the award so as to compel vacatur of the award.

The above Discussion also supports our determination that the arbitrator did not exceed his authority by finding that Kalish had a duty to reapply for benefits. It is settled law that the arbitration agreement between the parties controls which issues are subject to arbitration. (Schutt v. Allstate Insurance Co. (1985), 135 Ill. App. 3d 136, 478 N.E.2d 644.) The arbitration clause in this agreement gave Kalish the right to submit any dispute to final and binding arbitration under the rules of the American Arbitration Association. Absent express limitations, the parties are presumed to agree that everything, both as to law and fact, necessary to the ultimate decision is within an arbitrator's authority. Farmers Insurance Group v. Harris (1972), 4 Ill. App. 3d 372, 279 N.E.2d 789.

Kalish charged the IEA with breach of the agreement, thus empowering the arbitrator to determine whether a breach had occurred and, if so, by which party. By agreeing to arbitration, the parties unreservedly submitted all questions of fact and law relating to the disputed issue to the arbitrator and agreed that his decision would be final. (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, ...


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