Defendant appeals a judgment on an arbitration award in plaintiffs’ favor. He assigns error to the trial court’s refusal to vacate the arbitrator’s award, arguing that thе arbitrator’s punitive damages award exceeded his authority and that the arbitrator was not impartial. We affirm.
In 1995, plaintiffs Mark and Kathryn Russell offered to purchase а house from defendant Paul A. Kerley. The offer was contingent on defendant replacing the roof and doing other necessary repairs, with total costs not to еxceed $4,500. Defendant countered with an offer to limit his total repair costs to $4,500 and to provide plaintiffs with an “as-is” disclaimer. Plaintiffs paid their earnest money, reserving a right to inspect. During inspection, a dry-rot problem was discovered. The parties then agreed that defendant would repair the problem at his own expensе, above and beyond the $4,500 budget set for the other repairs. The final agreement between the parties included an arbitration clause covering “all claims, сontroversies, or disputes, including statutory, contract or tort claims (including alleged misrepresentations, concealment, negligence, [and] fraud * * *).”
Defendant prоceeded to repair the dry-rot problem, and plaintiffs’ inspector approved the work. However, plaintiffs discovered after closing that the inspeсtion and report were inadequate and that a significant dry-rot problem remained, which they repaired at their own expense. Plaintiffs filed a claim against the inspector, which was resolved in their favor. They then filed an arbitration demand against defendant. The demand alleged fraud and violation of the Unfair Trade Practicеs Act (UTPA), alleging that defendant had concealed the true extent of the dry-rot problem and that he had done only enough repairs to pass inspection. The arbitrator awarded plaintiffs compensatory and punitive damages on both claims, as well as attorney fees on the UTPA claim. Defendant filed exceptions tо the award, but the trial court entered judgment in plaintiffs’ favor.
On appeal, defendant argues that the arbitrator exceeded his authority by making a UTPA award and by *650 awarding punitive damages. Plaintiffs contend that an arbitrator derives authority from the agreement of the parties, and that, in this case, the arbitration agreement permitted a punitive damages award.
ORS 36.355(l)(f) provides that the losing party in an arbitration may except to an award if “[t]he arbitrators awarded upon a matter not submitted to them, unlеss it was a matter not affecting the merits of the decision upon the matters submitted.” We described our role in reviewing such agreements in
Native Sun v. L & H Development, Inc.,
“We review such agreements as a matter of law, Sloan v. Journal Publishing Co.,213 Or 324 , 366,324 P2d 449 (1958), bearing in mind ‘Oregon’s policy * * * to cоnstrue general arbitration agreements broadly to enhance the arbitrability of disputes.’ Budget Rent-A-Car v. Todd Investment Co.,43 Or App 519 , 524,603 P2d 1199 (1979). As this court explained in Snow Mountain Pine, Ltd. v. Tecton Laminates Corp.,126 Or App 523 , 529,869 P2d 369 , rev den319 Or 36 (1994):
“ “Under that policy, arbitration is required, unless we can say with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute, and we resolve all doubts in favor of coverage.’ ”
Therefore, we first turn to the language of the arbitration agreement, which provides:
“ARBITRATION IN LIEU OF LITIGATION: [The parties] each agree that all claims, controversies, or disputes, including statutory, contract or tort claims (including alleged misrepresentations, concealment, negligence, fraud and claims for fees or commissions) between or among [the parties'] which arise out of or are related to this agreement, or which relate to the interpretation or breach of this agreement shall be decided by neutral binding arbitration in accordance with the rules of the American Arbitration Association, and not by court action. * * * The following matters are excluded from arbitration hereunder: (1) a judicial or non-judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage, or land sale contract, (2) a forcible entry and detainer action, (3) the filing or *651 enforcement of a statutory lien, (4) any matter which is within the jurisdiction of a probate court, or (5) an action for bodily injury or wrongful death. * * *
“ATTORNEY’S FEES: The prevailing party in the arbitration shall be entitled to recover reasonable costs and attorney’s feеs in connection therewith.”
Defendant argues that punitive damages are unavailable under the agreement because they are not specifically mentiоned. We disagree. The agreement does not specifically authorize compensatory or any other type of damages. By defendant’s reasoning, the
only
remedy available to plaintiff would be the “reasonable costs and attorney’s fees” explicitly mentioned. Such a result would be illogical.
See Gamble v. Sukut,
The agreement specifically grants to the arbitrator authority to decide “all claims,” whether statutory, contractual, оr in tort. Furthermore, the agreement here
specifically
includes fraud, a claim which permits recovery of punitive damages.
See, e.g., Smallwood v. Fisk,
Having so concluded, we next turn to the question of whether an arbitration agreement may lawfully provide for an award of punitive damages. At least one Oregon case has tacitly approved the award of punitive damages in an arbitration. Condliff
v. Priest,
Defendant also argues that the award should be vacated because the punitive damages and attorney fees award demonstrate that the arbitrator was impermissibly biased. In addressing this contention, we do not review the substantive correctness of the arbitrator’s decision.
Native Sun,
Finally, defendant makes an implicit due process argument fоr the first time on appeal. He reasons that an arbitrator should not have the power to award punitive damages, because the limited reviewability of such awards subjects the parties to the risk of unbridled recoveries. Without
*653
expressing an opinion on the merits of this argument, we decline to consider the question because defendant did not preserve the issue by raising it before the trial court.
See State v. Hitz,
Affirmed.