*1 (Minn. tional, Inc., awarding punitive impetus for dam- 330 N.W.2d ages 1983). jury’s finding negli- stems from the gence infliction and intentional of emotion- supporting respon- no evidence There is" above, As al distress. discussed there is no Medico’s conduct allegation that dent’s findings, for these and thus is basis there The Borns mate- outrageous. extreme punitive damages. no basis for an award of Benjamin misrepresented Born’s rially $19,- proper only damage award is right had Medico status and medical 050.28, jury the amount the determined as policy. Minn.Stat. 60A.08 rescind the damages. (1984). Furthermore, failed DECISION testimony to substantiate

present medical physical Respondent, manifestations any individually, concrete failed meet Therefore, re- we find physical proof establishing appel- distress. her burden prov- meet her burden spondent failed to lants’ standard of care the elements of emotional dis- infliction necessary intentional intentional infliction of show tress, jury’s award of and we reverse Consequently, emotional distress. damages pain and damages damages extra-contractual are allowable associated suffering. Respondent, with breach contract.

personal representative of the estate of Born, Waiver Benjamin properly 3. is awarded dam- against ages Medico breach of contract. argues Appellant Medico that obligated Medico support jury is insufficient evidence policy. claims in accordance with the finding Medico waived verdict reviewing policy. the suffi rescind the AFFIRMED IN PART AND RE- evidence, ciency of the IN PART. VERSED light considered evidence must be [a]ll party, prevailing

most favorable to the unless it and a verdict must be sustained manifestly palpably contrary to the evidence. Insurance, v. Cobb Aetna Life (Minn.1979). 913-14 and consensual Waiver is the intentional COMPANY, Respondent, DAVID right. relinquishment a known How- v. ever, inferred “intent and consent be Erickson, Seavey from conduct.” CONSTRUCTION, MILLER JIM W. 889, 895 Minn. INC., Appellant. Medico sent a record shows that No. C6-88-327. letter dated stated Appeals Minnesota. Court of preex- Benjamin covered for Born was isting find this letter suffi- conditions. We Aug. 1988. support jury’s verdict. For this cient Review Granted Oct. reason, $19,050.28 in Medico is liable damages. Damage Award Punitive appropriate only

Punitive are “upon convincing clear and evidence indif- the acts of show willful defendant safety rights ference to the of others.” Minn.Stat. *2 Halverson, Hart,

Sue R. Bruner & O’Brien, P.A., Minneapolis, respondent. Martell, Moore, Ronald E. Costello & Hart, Paul, appellant. St. Heard, considered and decided SCHUMACHER, P.J., and RANDALL *, and MULALLY JJ.

OPINION

MULALLY, Judge. EDWARD D. (David

Respondent Co.) Company demanded arbitration of its claim of breach against of a construction contract Jim W. Construction, (Miller). Miller Inc. The arbi- trators awarded David Co. and awarded Miller the applied issue. David Co. for confirma- tion the arbitration award and Miller applied for vacation of the award. The trial court confirmed the arbitration entry judgment. award and ordered appealed Miller the order and appeal This court dismissed the and re- findings manded for detailed on the issue remand, arbitrability. On the trial court fact, findings issued conclusions of law denying and an order Miller’s motion and granting David Co.’smotion to confirm the January award on 1987. In an order filed March the trial court denied findings Miller’s motion for amended * Const, VI, Acting judge Appeals by ap- pointment pursuant of the Court of to Minn. art. law, judg- rity of project. amended the entire conclusions

fact and provided a new trial. Under Minn.Stat. that Miller should 1(3) (1986), return, and in accord- David Co. David Co. *3 31, of March convey court’s order property the ance with this was title to to Miller subsequent a 1987, authorizing appeal from clear of liens. free and Should David Co. award, confirming the arbitration land, order be unable deliver title the Miller 11, January 1987 order appeals Miller the damages. in 17, March order filed and the applied David Co. for confirmation of the applied arbitration award and Miller for FACTS the award and for a vacation unincorporated develop- is an Co. David hearing. type The trial “Schwartz” court by company formed Gunnar award, and confirmed the arbitration or- purchased Unger. Co. lake- David Sharon entry dered Big Lake in or- Detroit shore luxury townhomes. to construct der ISSUES architect, Unger, designed the Gunnar pow- 1. Did the exceed their arbitrators on the lot. David to be constructed units by awarding $884,476, ers David Co. in engaged Miller construct the town- Co. property? the title to contract between the The homes. pow- 2. Did arbitrators exceed their construction of provided for seven relief, by granting Co. ers David because I, 4, consisting of units townhomes. Phase right by its to relief David Co. waived 10, May completed by 6 & was be making payment? $345,055. price at a II, consisting of units 2 & was Phase 31, 1984, completed on at a

to be October ANALYSIS price of I 1,May I completed Miller Phase after comple- After before October powers Arbitrators’ paid Co. Miller the contract David dispute may arbitrability a Shortly completion, after David balance. challenged proceeding in a judicial be defects began Co. to discover construction Spira the arbitrators’ award. vacate Co. could not and nonconformities. David American Standard Insurance necessary repairs, and afford to make the pet. (Minn.Ct.App.1985), problem. a informed Miller of the At meet- (Minn. 1985). rev. denied Mar. in David Co. and Miller arbitrability dispute a is reason Where City Testing to hire Twin to investi- debatable, ably the trial court’s review is testing gate report con- the defects. Id. de novo. cluded that the defects were construction here claims On David Co. defects. November to arbitrate claim for were not authorized request for ar- demanded arbitration. compelled purchase of Re- claimed excess of bitration compelled spondent’s claim was not for by and contained a clause property; remedy purchase of that was expressly Co. reserved The issues fashioned arbitrators. amend demand arbitration. placed before clause accordance with arbitration contract, negligence and breach of were contract, selected arbi- misrepresentation. engineers who trators contractor two par- in the clause arbitration inspected expert and heard provides ties’ contract very testimony. ex- The arbitrators made claims, disputes and other matters All findings, including findings of code tensive materials, Contractor and the violation, question between the cheap substitution to, of, relating arising integ- out Owner that affect the and structural defects there- Documents or The courts Contract will set aside an arbi * * * tration of, the objecting par shall be decided when ty proof meets its burden of In- that the in accordance with the Construction arbi clearly trators have exceeded the dustry Arbitration Rules of the American * * granted agreement. them the arbitration Association *. The Arbitration Hospital, Children’s Inc. v. Minnesota award rendered the arbitrators shall Association, Nurses final, judgment may be be entered (Minn.1978). A court will not overturn an upon applicable init accordance with law merely disagrees because it with the having jurisdiction in any court thereof. arbitrators’ decision on the merits. Id. *4 The determination an of whether Absent a showing clear the arbitrators damages is enforceable relates to the mer were unfaithful to obligations, their it is decision, and not to assumed the arbitrators did not exceed arbitrability. the issue of E.D.S. Con powers. their Hilltop Construction, Inc. struction v. North End Health Co. Cen v. Apartments, 236, Lou Park 324 N.W.2d ter, Inc., 783, (Minn.Ct. 412 N.W.2d 785 (Minn.1982). 239 The fact that the relief (Minn. App.1987),pet. rev. denied Nov. was such that it could not or would not be 18, 1987). agree We with the trial court granted by a equity court of law or is not that David Co.’s claims arose out of and ground vacating refusing grant or to relate to contract documents or the 572.19, the award. Minn.Stat. 1 subd. § thereof, and thus fell within the (1982). scope agreement. of the arbitration The innovative, The fact that the relief was arbitrability, issue is not therefore not, unique, itself, or even provide does whether the arbitrators exceeded their grounds vacating refusing grant to fashioning remedy. the award. An may arbitration award be vacated may per- do what no other [Arbitrators where the pow- arbitrators exceeded their acting son capacity of one who .in 572.19, 1(3) (1982). ers. Minn.Stat. subd. judges do, can or has namely to power remedy to fashion a is a neces- they may intentionally contrary decide sary part of the jurisdiction, arbitrator’s judgment law and still have their * * * unless withdrawn from stand. have not [I]f specific language contractual between the applicable gov- insisted law shall byor a written submission of issues facts, ern the decision on the the arbitra- precludes fashioning remedy. of a may dispute according tors decide the City 2828, Bloomington v. Local 290 justice regard their notion of without (Minn.1980). N.W.2d 603 applicable law. asserts the pow- arbitrators exceeded their Zelle Chicago v. & North Western Rail- they ers when ordered Miller to way 242 Minn. 65 N.W.2d Co. and in receive title (1954). 589 Whether the acted with agreement limiting Absent the arbi power depends scope their on the authority, trators’ the arbitrators are final parties’ agreement. See E.D.S. Construc judges concerning of law and fact the mer (given scope 412 N.W.2d at 786 broad dispute, including interpreta its of the provision in of arbitration contract and sub tion of contract terms. State v. Berthi arbitrator, by parties dispute mission aume, (Minn.1977). 259 N.W.2d 910 liquidated damages award of was within overturned, An may not be if even a although authority, arbitrator’s arbitrator court believes it to be incorrect. liquidated damages Grudem referred to clause as Piping clause”). Brothers Co. v. Great “penalty Western Where the arbitrators 313, 316-17, Corp., restricted, 297 Minn. 213 N.W.2d are not the terms of the (1973); Construction, arbitration, 923 412 agreement E.D.S. to submit to to de law, according principles they N.W.2d at 785. cide 594 according damages). Where, awarding punitive own their make an award

may regard here, to the law. justice plain language without notion the arbitration Control Commission Metropolitan Waste dictates, agreement compelled to so we are Minnetonka, 308 Minn. City v. affirm the trial court’s determination that remedy pro N.W.2d powers. the arbitrators did not exceed their is exclusive of other in a contract vided Hospital, See Children’s at language possible remedies where clearly indicates an intent to in the contract Independent Consol make it exclusive. Appellant also asserts that within No. District Carl idated School meaning of Minn.Stat. strom, 277 Minn. 1(3), the arbitrators exceeded their authori ty “arbitrating involving claims the com parties' provided: pelled purchase of real in the ab by the arbitrators The award rendered purporting sence of a written final, judgment be en- shall be satisfy requirements minimal statute * * applica- upon with tered it in accordance *5 Appellant of frauds contends the having jurisdiction in any law court ble authority arbitrators had no to award Mil thereof. property ler the in Industry The Construction Arbitration conveyance because the the statute violates the Arbitration Associa- Rules of American frauds, of Minn.Stat. 513.04-.05 §§ by which to be the Appellant asserts that here there was no bound, following provide scope of conveyance written contract for the of the award: land, that the construction did not contract grant any remedy or arbitrator provide or purchase for the sale equitable just and relief which is property, and that the arbitration award of agreement within terms of of property policy violated the behind parties. expresses statute frauds. The statute Appellant contends the trial court public policy preventing the enforcement of A. by finding erred that under by never contracts that were made means Enterprises, Systems Inc. v. First Brooks perjury. To prevent of fraud and fraud Agencies, (Minn.Ct.App. 370 434 N.W.2d deny those would contract who an oral 1985), the within award was the arbitra made, actually permits the statute enforce- power. Basing part its decision in tors’ ment of an oral contract if there exists a strong preference up Minnesota for note or memorandum evidence of the holding finality an arbitrator’s Brenon, Radke v. 271 Minn. contract. award, the Brooks court affirmed the arbi 134 890 dating trators’ award of interest to the occurred, damage although daté statutes Appellant claims the arbitrators exceed- provide from interest date of re powers ed their con- because the order to port verdict until Since conflicts, vey property to Miller both agreement does not limit the with the statute of frauds and with the award, merely requires it important public policy dis- behind it. We just equitable, and to be within the agree. pre- The statute frauds exists to parties’ agreement, Brooks terms of the fraud, promote vent not to it. distinguishable this basis. See Wil not seeks invoke the statute of frauds to the Co., Supply loughby Roofing & Inc. v. respondent, injured party. detriment of Inc., International, Kajima F.Supp. 598 improperly did cre- not (N.D.Ala.1984) (where incorpo 353 ate an interest without follow- rating Industry Construction Arbitration ing requirements. prescribed statutory purported place no rules limits on the ordering conveyance does not arbitrators, authority remedial aibi- trators did exceed their violate the statute frauds. not

595 Appellant points damages, to other such II in profit, as lost that would have been Waiver prior respondent’s payment. curred However, exception for the waiver the arbitrators’ Appellant claims faulty specify, breach does not as does the must be vacated because provision, that it must be or defective work claims mak right to arbitrate waived its payment. discovered after final This case payment. full Carlstrom, by appellant, differs from cited right to of a contractual arbitra- Waiver provided pay where the contract that final question of fact and ordinarily a tion is all barred claims between the sup- question, if of this determination except faulty claims for defects due to evidence, binding ported by substantial materials, appear work or one within appellate court. on an year completion. from substantial Carl Renown, Phelps Construc- Inc. v. Hensel strom, 277 Minn. at 151 N.W.2d at Cal.Rptr. Cal.App.3d tion finding 787. We affirm the trial court’s Dist.1984) (affirming (1st trial no waiver. finding of on the basis that court’s waiver upon reason- had been discoverable defects DECISION (quoting inspection) Doers v. Golden able 1. The arbitrators did not exceed their Transportation Bridge, Highway & Gate powers by awarding appellant District, Cal.Rptr. 23 Cal.3d question, awarding respondent dam- (1979)). 839, 588 P.2d ages including purchase price *6 agreement provided parties’ property. making payment of final shall that Respondent not did waive by the a waiver of all claims constitute by making payment final on the except arising from unsettled owner those construction contract. liens; appearing faulty or defective work AFFIRMED. completion; failure of the after substantial requirements comply with the work to RANDALL, J., dissents. contract; any special war- and terms RANDALL, dissenting. required by Judge, ranties the contract. respectfully I dissent. The arbitrators portion Appellant claims that the $497,925. That is found the were May 1 to carrying costs from required should be the amount Miller faulty not for October was Company. requiring pay David Instead appearing work after substantial defective amount, pay that Miller to completion, because would have requiring are Miller to prior carrying of these costs to mak- known damages, and is more than the argues payment. Respondent Company’s then Miller is to receive David carrying delay, not for that the costs were I the arbitrators acted with- find expenses respondent incurred af- but were discretionary powers in com- in their broad completed, project ter the because for the puting damages, but find no reason defects and nonconformities made the units step transfer. additional specifically The trial court unmarketable. origin found of the contract was the does not disclose that The record disposition, of David Co.’s claims. Breach of contract this form of thing the same as “failure of the work to that the is nor does it disclose comply requirements with the of the Con- If Miller nets precisely worth sale, agree Documents.” We with the trial Miller will tract more than that from less finding “the does not include If Miller nets court’s have a windfall. than sale, Company will any delay perform- Miller’s from the amounts for poten- The amount of the despite promise complete have a windfall. ance Miller’s variables, subject to several by May I tial windfall Phase 1984.” market condi- limited to including not buyers partial-

tions, pool of limited ex- property, incidental ly completed rental debt holding for sale such as penses of work, utilities, realtors’ service, additional net from the sale fees, et cetera. I any accuracy. with predicted cannot be expose either side to the find no reason Since property transfer. of a unknown of dam- specific amount found arbitrators winning party the amount ages, that is losing party should should receive pay. argument that appellant’s

I do not reach I of frauds. the statute the award violates solely the issue the case would decide by the arbitra- fashioned that the award many to so variables tors, being subject record, scope excluded outside power. their $497,925 in found Since the alone, that, is' damages, pay respondent. should appellant amount *7 HARTER, Trustee Trust Under Elsie R. Regarding Agreement dat- Foreclosure Respondent, ed as of LENMARK, Voigt Estate O. Lenmark, S. Catherine deceased, Appellants, Bank, Savings Minnesota First F.S.B., Defendant.

No. C3-88-401. Appeals of Minnesota. Court of Aug. Review Granted Nov.