*1 “adequate knowledge, beyond competence his individual has that the witness or acquired by knowledge. Any opinions may formal education have Seeba whether otherwise, experience regarding possible and the in such offered defects appropriate proposes he to state any area in which in un- designs inappropriate would have been Compa- opinion.” Chemical an lay-opin- der even the most liberal view of Stauffer 702. 1099. See also W.R.E. ny, at testimony. Paiva, 892 ion United States v. 148, (1st Cir.1989). F.2d We would trial court did not abuse We hold that the helpful purpose expert defeat wit- refusing permit Seeba to discretion in its nesses, permit ad- W.R.E. if we expert an Seeba's were testify as witness. sys- simply experience qualify lack with similar those who fail to restate mitted testimony witnesses, opinions lay limited to information tems his their as W.R.E. 701. knowledge. personal acquired by permit- agree he with the trial court that We 602. W.R.E. ting testify design about deficien- Seeba to proper. cies not have been qualify failed as an
After Seeba expert, contended that architect III. Conclusion opportu denied it the improperly trial court testimony opinion nity to offer Seeba’s negli- properly applied The trial court Opinion testi testimony lay witness. gence standard determination under mony by lay witnesses allowed engineer breached its standard whether Wyoming law. implied-contractual of care an action testifying not as an If the witness is indemnity. Identifying applicable stan- opin- expert, testimony his the form of from ex- required testimony dard of care opin- to those ions or inferences limited were with me- pert witnesses who familiar (a) rationally ions or inferences which are engineering practices. chanical Additional- perception on the of the witness based ly, the trial court did its discre- abuse (b) understanding clear helpful to a evidentiary rulings. in its testimony or the of his determination Affirmed. a fact issue. 701. has that This Court cautioned W.R.E. tri
conclusory testimony hotly contested being issues be excluded as not
al facts in
helpful to a determination of the Manning v. R.A. Con
issue. McCabe Co., Inc., (Wyo.
struction
1983). read to W.R.E. 701 cannot be CORP., JBC OF WYOMING fails as an qualify a witness who allow corporation, Appellant expert opinion testimony “where offer (Plaintiff), question outside the lies experience requires of common realm CHEYENNE, Wyoming; and OF CITY knowledge.” skill 3 David W. special Utilities, Cheyenne Board Public B. FEDER MUELLER, & CHRISTOPHER LOUISELL (Defendants). Appellees (Supp.1992). 376 at 419 § Evidence AL special experience, such Topics demanding 92-32. No. appropriate design for as the mechanical Supreme Wyoming. Court conditioning sys heating and air atypical tem, testimony of a require Dec. 1992. special experience possessing that person Collectramatic, Randolph v. received. (10th Cir.1979). Inc., 590 F.2d the com- testimony indicated that
Seeba’s designs engineer
plex utilized
H91 Herschler, Salzburg Bruce A. Freu- denthal, Rideout, Chey- Salzburg, Bonds & enne, (argued), Stephen Dunham S. Foer- and Roxanne Jensen of Morrison & ster, Denver, CO, appellant. Lathrop Rutledge (argued), Kent & J. Rutledge, Cheyenne, appellees. Varra, THOMAS, JBC, MACY, C.J., engulf other issues and Before * Board, GOLDEN, (the Banner Associates architect CARDINE, URBIGKIT surety companies Project), and various JJ. federal litigation in state and costly CARDINE, Justice. courts, a settlement which lasted until part the eve trial. As reached on consequen- An awarded arbitrator *3 their process, of settlement and view (30%) thirty percent damages equal to tial the expensive experience with painful and due JBC in year unpaid the amounts per of en- appellees the system, court JBC and dispute with the defendants its contractual any re- agreement to tered into an submit (City) Cheyenne Cheyenne and City of maining disputes future be- and contractual (Board). This Board of Public Utilities binding to arbitration. tween them in addition paid to to JBC to amount was favor, and interest due the required other its Agreement awards The Submission appeal appoint repre- the court appellees them. An to district and JBC to on each authority. If of the with full settlement resulted reversal sentative any representatives damage Wyoming Corpora- agree the failed to award. JBC issue, they appoint were to a neutral third (JBC) the appeals now trial court’s tion party Subsequent to it. to execution damage decide the reversal Agreement, the numerous Submission award. already in problems in addition to those his Because the arbitrator abused discre- Project. the The controversy arose with consequential damage making this the 66- most serious of these concerned award, affirm the trial court’s order. ground pipe and 72-inch installed below at the before us as fol- JBC states issue pipe had de- Project the site. The become lows: fective, repairs $4.5 and estimated at over err Did the district court when found million were needed. neutral exceeded his that the arbitrator 10, 1987, filed in state July On JBC suit by awarding compensatory authority Board, against City, district court the the appellees’ damages for failure to mo- defendants, seeking named dam- and other appellant? nies owed failures, ages pipe design structural for the arises out construction action failures, quality prob- water embankment Pipe- Stage the II Little Diversion Snake lems, payment retainage due from and (Project) Encampment, near Project line City the and Board under the contract. general Wyoming. JBC was the contractor complaint The claims in tort stated both for, of, Project. City the and the the owner re- City The and Board and contract. the the construction Project The involved appli- sponded with a motion to dismiss and roads, miles 103 stream diversion and cation order of On October arbitration. structures, 120,000 and feet of collection 20, 1987, the trial determined that court in the mountains of the Medicine pipeline against City the and the JBC’s claims price Bow Forest. contract National previously-exe- Board were $20,485,000.00. The approximately was stayed It Agreement. cuted Submission provision requiring contained a contract City and as to Board suit disputes negotiate any between parties to against its ordered JBC to claims submit prior commenc- them under contract Agreement. them to arbitration under ing any litigation. Meanwhile, by August the end Project proceeded, problems pay- de- suspended progress
As the had Board subcontractors, veloped one of JBC’s ments under contract JBC. (Yarra). justified Companies, suspension Inc. JBC Yarra Board claimed “nullify” pre- brought against right to suit Varra after Varra al- under contractual its job.” of the construction legedly payments This suit vious because “walked off 4, 1987, re- September JBC expanded defects. On eventually to include numerous argument. * Chief at time of oral Justice originally due continue monies were that it was notifying the Board
sponded paid in full. until nonpayment. terminating the contract termination, pro- pursue any right this notice of After B. JBC retains its own Project at complete that have not been ceeded all of their claims expense. settled. 28, 1987, the Board JBC sent parties
On October dated June In a letter to the claims it intended to submit explained a list of this award Hunter further were di- process. These claims arbitration as follows: “Alternate A” categories: vided into two though I did not feel JBC was 2. Even A was a “Alternate B.” Alternate complete Total Cost Claim entitled to * * for the under the contract total cost claim *, they I were entitled to did feel plus a reasonable expenses of the work compensatory damages for the effects on due un-
profit. JBC estimated the amount *4 company that resulted from the mo- their Alternate A at million. $14.5 dbr-Alternate wrongfully withheld the Board. nies of individual of a number B consisted reasoning explained for this was My totalling million. $8.25 claims the decision. throughout is not interest. just 3. The It is a initially presented number 30% JBC com- the method I chose determine the B for res- under Alternate claims individual damages. process, pensatory through the arbitration olution However, resolved. of them were awarded as fair and some 4. The was 30% the Board’s with compensatory damages dissatisfied to JBC equitable became JBC after resolu- they claims nonpayment damages of these suffered because withholding of withholding wrongfully its continued and with of the Board 8, so on March I did not payments, due JBC. Because payments nullification have, cost claim” information be 1989, its “total nor the total presented JBC Hunter, settled, all $19,895,133.00 until all claims were to Warren available on needed to determine The claim was based of the information arbitrator. neutral damages, compensatory allowed amount for the contract which fixed provision it percentage method because contractor, nonpayment, I chose the in the event of present easily applied to the could be agreement and to receive to terminate any future and also to any known monies executed and “all work payment for [emphasis in may apply, monies that prof- plus a reasonable expense sustained original] claim, JBC stated: In a footnote to its it.” cost granted and total “If this claim court Board moved the trial City awarded, dispose of all cover and will Hunt- correcting vacating or for an order other claims.”
JBC’s damages. compensatory award of er’s 30% as disqualify Hunter They also moved to ruled that JBC May Hunter On arbitrator, grounds that neutral on the the total cost not entitled to exercise was Angered by toward JBC. he biased parties’ in the con- remedy provided for bias, resigned Hunter suggestion their However, “serious because of the tract. July 1989. the neutral arbitrator on withholding of of the Owner’s effects” holding order The trial court entered an JBC, ruled that: Hunter funds from abeyance. motion to correct the award must JBC an addi- The Owner A. arbitrator, Bar- appointed It a new Stuart (over and above the per year tional 30% tholomew, remaining individ- to hear JBC’s 101.16.04) Paragraph allowed interest ual claims. improp- to have been funds found on all claims were from the Contractor. After substantive erly withheld JBC’s decided, apply any funds not the interest also heard and ruling will considered, to be because amount remained paid the Contractor promptly court, extensive briefs budgetary prob- petitioned the purported the Owner’s exhibits, compensa- to confirm the amount will and 30% dollar The additional lems. remand for a tory damage award and to starting the date the calculated ciple free to fashion damages. The defendants that arbitrators are calculation of this motion and forms of relief which could not be ordered responded by opposing equity. arbitration 1—36— again moving that 30% court law W.S. 19, 1991, Furthermore, 114(a)(v). On December are award vacated. we reluctant Hunter exceeded just ruled that to a the trial court to disturb arbitrator’s solution making It authority in award. controversy, his 30% if it even differs from chosen, After trial court the award. might vacated had we resolution have just no cause for that there was place. certified in the arbitrator’s See Matter been 54(b),JBC took pursuant to W.R.C.P. delay 1172, 1175 Greybull, 560 P.2d Town of (Wyo.1977). from the trial appeal to this court timely voluntary As a method vacating the arbitrator’s order court’s disputes, resolution arbitration is embed award. public policy Wyoming and is ded T & M Properties favored court. Standard Review Planners, Architects and ZVFK setting (Wyo.1983). no cases have located We of review be followed out the standard court evaluating an order of trial when Authority? Did the Arbitrator Exceed His award. Our an arbitration which vacates l-36-114(a) Wyoming requires Statute not make clear whether we prior cases do application to vacate an upon the trial court de any deference to the trial court’s owe *5 where: arbitrator’s award grounds existed for vacat that termination (i) procured by corrup- The award was ing the award. tion, means; fraud or other undue power to set The trial court’s (ii) partiality by an There was evident anal award seems aside an arbitration best neutral, corrup- appointed as a arbitrator purposes of ogized for review to standard any or miscon- tion of of the arbitrators power grant judgment notwithstand its prejudicing rights any party; the of duct (JNOV). ing jury’s a verdict See W.R.C.P. (iii) pow- The arbitrators exceeded their 50(b). reviewing When the trial court’s ers; JNOV, a full a we “undertake entry of (iv) to postpone The arbitrators refused the without deference to review of record hearing being upon the sufficient cause the of the trial court.” Inter-Moun views shown, hear material refused to evidence Tu Threading, Hughes Inc. Baker tain controversy to the or otherwise conduct- Serv., Inc., (Wyo. 812 P.2d bular hearing prejudice ed as to substan- the 1991). question Like of a the whether rights party; or tially the entered, issue
JNOV should be (v) agreement, no arbitration There was his author whether the arbitrator exceeded adversely was not determined issue ity question of law. We owe primarily by provided by law a court as the trial court’s determina no deference to applicant participate did not the arbi- questions of law. Union Cf. Pacif objec- hearing raising tration without Equalization, Bd. ic R.R. Co. v. State relief such tion. The fact that the (no (Wyo.1990) deference 802 P.2d granted that could not or would not be questions to trial court’s determination equity or not a by a court of law agency appeal). of law vacating refusing ground for or to con- below, reviewing In the record award, [emphasis firm the added] grounds vacating for are mindful that considering remain a motion to va modifying an arbitrator’s award When or cate, voluntary, of its the trial court not limited scope. narrow Because nature, grounds listed in the also awards made in arbitra statute but informal reasons, for, scrutiny among other intensive vacate the award tion are less beyond are, “fraud, corruption, example, orders of admin behavior than justice, of author agencies. W.S. 16-3-114. bounds of natural excess istrative See or law reviewing prin- ity, or a manifest mistake fact The court must observe
H95 (a) the of the loss in the to him the face award.” value appearing upon party’s performance other caused its Corp. v. Fitzger- and Gas Texas West Oil failure or deficiency, plus (Wyo.1986),quot- ald, (b) loss, any including other Elec. Ass’n incidental Valley ing Riverton Pacific consequential loss, caused Co., Light Power and breach, less (Wyo.1964).
(c) any cost or other loss that he has having perform, avoided not [em- Recovery a. Double phasis added] if found The trial court 30% Arbitrator Hunter’s award was intended damage award allowed compensatory to cover such “incidental or recovery for the stand in addition loss,” as demonstrated in the following claims, would receive dou- individual statement from his decision letter: consequential damage recovery. ble contracting system Under our the Con- for the total cost award was a substitute is willing tractor to take on considerable claim, which in turn was alternative expend risk and their resources for basi- remedy cally individual claims. JBC one JBC’s reason—PAYMENT FOR pay- and received WORK PERFORMED. To withhold already had submitted very payment strikes at the heart of the many these individual claims. ment responsibility under the Owner’s con- recovery to double Since JBC is not entitled specifications tract. contract are injuries, its trial court held that the very explicit outlining payment re- damage award must be requirements of the Owner. Withhold- versed. ing payment places a tremendous hard- ship on the The restriction Contractor. Consequential damages, any project, of “cash one flow” course, necessarily double recovery are not project normally affects that but when awarded for foreseeable harm which *6 type sets off a of “chain reaction” that compensated by differs from that direct’ totally encompasses the affects and Con- damages. damages The awarded in an ac pointed As company. tractor’s entire out designed tion for of contract are to breach presentation, in “As a result JBC’s of the put plaintiff position in same if year’s Board’s failure to over one performed, prop the contract had been less work, capital of was im- worth JBC’s er deductions. Robert W. Anderson paired; its of credit was line reduced Excavating, v. Housewrecking and Inc. million; it 16 to 11 from million didn’t Trustees, 25, Board Sch. Dist. No. 681 of jobs; have resources to bid some its 1326, (Wyo.1984). P.2d 1333 measure reduced; to its backlog overall had damages recovery for of includes incidental by its interest note ½ lenders increased consequential by loss caused the breach. 1%; it reduction its bond- suffered a America v. City General Insur. Co. of ing capacity had to obtain new and 752, (Colo. Springs, 638 P.2d 759 Colorado bonding company.” Because of the se- 1981). Buhler, 235, In 770 Reposa v. P.2d consequences far-reaching vere and recognized (Wyo.1989), 237-38 the mea withholding Engineer and payment, the damages sure of for breach contract set must, therefore, also bear the tre- Owner Restatement, Second, out Contracts liability responsibility mendous (1981): 347 § action. repercussions of their Subject limitations Thus, to the stated on double re prohibition 350-53, injured party right prohibit covery necessarily has JBC did not §§ damages expectation in- recovering consequential on his damages based from will damages.1 As direct by terest addition its as measured any provision of the contract us questionable is at whether a claim for directed 1. It least damages of the consequential damages allows could have made which been one type At least other the arbitrator ordered. respect "with contract." JBC has not 1196 tives then deci-
discussed, real with the arbi- forwarded him for problem sion. that lies in the fact JBC trator’s award consequential dam- a claim for
never made JBC’s a claim conse- failure submit process. the claims submission ages under damages quential was consistent with its remedy
position
that
total
below
cost
a Claim
b. JBC’s Failure to Present
provided
remedy
contractual
to make JBC whole under the circum-
.
The broad freedom an arbitrator
con-
stances.
JBC never submitted a
Since
disputes and
reme
to resolve
fashion
has
sequential damage
according to the
claim
nature of
is limited
the contractual
dies
required
process,
seems almost self-evi-
agreement from which he
the arbitration
dent that the arbitrator could not make an
powers.
his
draws
consequential damages.
award of
dispute
right
to have a
submitted to
however,
argues,
its fail
JBC now
Panhandle
arbitration
contractual.
ure to
a claim for
submit
Smith,
Pipeline Company v.
Eastern
damages
prevent
would not
the arbitrator
(1981).
Wyo.,
An arbitra
637
1020
making
points
he did.
from
award
authority
limited
the bounds
tor’s
holding
us to
that an
cases
arbitrator
agreement, and courts
vacate
free
fashion relief additional to or differ
beyond
contrac
that extend
awards
requested by
parties,
ent from that
scope
tual
of arbitration.
International
questions
that the
for the arbi
submitted
Workers, Lo
Electrical
Brotherhood of
broadly
trator’s
should be
con
decision
Utility,
cal
v. Citizens Gas & Coke
1400
su
Greybull,
strued. Matter
Town
(1981).
1320
An
Ind.App., 428 N.E.2d
1172; Department
pra 560 P.2d
Public
powers
his
when he
arbitrator exceeds
Ass’n,
Safety
Safety Employees
v. Public
decides matters which
not submit
(Alaska 1987);
1090
Carte
Mar
Systems,
ted to him.
Inc. v.
Himco
Pte.,
(Singapore)
Blanche
Ltd. v. Carte
Inc.,
Electronics,
Ill.App.3d
quette
86
Int’l, Ltd.,
(2nd
F.2d
Blanche
888
260
Cir.
Ill.Dec.
407
1013
41
N.E.2d
Richmond,
1989);
v.
National Tea Co.
(La.1989); David
So.2d 930
Co.
Jim W.
Properties,
M
HQ7
agree-
ty
The terms of the submission
only
premised
claim.
can
duty
on a
indepen-
easily
so
ment here cannot be
satisfied.
dent of contractual duties.
Mar-
Preferred
substitute,
The total cost claim could not
keting
Hawkeye
Assoc. Co. v.
Nat’l Life
argues,
consequen-
Co.,
as JBC
for a claim for
(Iowa 1990).
Ins.
damages resulting THOMAS each files from an owner’s failure separate specially concurring opinion. sums due under a construction con tract. There are three for this. reasons THOMAS, Justice, concurring specially. First, policy recognize it is not our tort *8 purely damages. actions for economic I am in accord with the See decision of the Co., majority Ins. v. Page Engineering Continental to affirm the order of the trial 641, (Wyo.1989)(denying reversing 783 P.2d 647 re court the award of covery negligence liability damages by agree on and strict the the arbitrator. I failure). Second, simple product powers in ories arbitrator exceeded his this situ- recovery My portion tort based on the contractual rela ation. concern is about the tionship only majority opinion should be allowed where the of the that addresses independent injury consequential damages an in I do not breach constitutes tort. disappointment plain over and above of the find that the issue of dam- court, expectation ages properly interest. v. in tort is before this tiff’s Bowdish Assoc., 93, Ga.App. response arguments 200 406 and our of the Johns Creek 502, advisory Finally, parties clearly tort liabili- on the issue is an S.E.2d 504
1198
Commission, Wyo.,
portion
(1987);
P.2d
join in that
of the
737
1060
opinion. I cannot
majority opinion.
Superior,
Koontz v. Town
716
South
Hilzer,
(Wyo.1986);
P.2d 358
Knudson v.
majority
introducing
topic
In
(Wyo.1976);
whether
resulting
damages
laware),
from the
sequential
(Wyo.1981);
Brad
Tire Co. v. Gearhart Indus-
URBIGKIT, Justice, specially
tries,
(Wyo.1987).
concurring.
does
Our rule is that this court
not offer
I
of the court
concur
the decision
advisory opinions. Briggs Wyoming
segment regarding
conse-
except for
Bank,
(Wyo.1992);
Nat’l
IIQQ
essentially presented by
pending
is not
a
opinion discussion
dictum.1
briefing
pleading,
argument.
or
I do
oral
any effort
a direct concern about
I have
majority
not find the cited cases in the
the conse-
non-recovery
the
to broaden
v.
decision of Bowdish
Johns
Associ
Creek
Ins.
damage reach of
quential
Continental
(1991)
ates,
Ga.App.
200
13, 18, jurisprudence in our
Fundamental every wrong there principle that for party injured that an remedy damage compensated for all
should wrongdoer.
proximately caused from
Although recognize exceptions depar- principles, no fundamental
these unless there
ture should sanctioned strong necessity therefor. court’s
Consequently, I concur this
decision, but neither: foreclose case, proper if or within provident, limi provided limitation statutes
time
tation; nor, litigation, an for future create preclusion jurisdiction in this
absolute right party’s alternative
against injured provided by the tort
to the remedies payment particularized
delayed based purpose. Engi
malice or ulterior Salem Londonderry
neering Corp. Const. Dist., A.2d 1091 122 N.H.
School GLAZIER, Appellant
Mason G.
(Defendant), Wyoming, STATE (Plaintiff). Appellee
No. 92-49.
Supreme of Wyoming. Court 22, 1992.
Dec.