This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Kerry Govan,



Viking Insurance Company of Wisconsin,


Filed July 22, 1997


Parker, Judge

Hennepin County District Court

File No. 9612104

Sharon L. Van Dyck, Paul E. Godlewski, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondent)

Jeffry C. Schmidt, Stempel & Schmidt, PLC, 41 12th Avenue North, Hopkins, MN 55343 (for appellant)

Considered and decided by Parker, Presiding Judge, Davies, Judge, and Foley, Judge.[*]



Appellant Viking Insurance Company challenges a district court order denying its motion to vacate an arbitration award to respondent Kerry Govan rendered under the mandatory arbitration provision of the No-Fault Act, Minn. Stat. § 65B.525 (1994). Viking appeals, arguing the arbitrator exceeded his authority in refusing to admit material testimony from its expert witness as to the cause of Govan's injuries. We affirm.


An arbitrator's award will be set aside only if it appears the conclusions and inferences upon which it is based are so contrary to any conclusions which might legitimately be drawn from the evidence as to imply bad faith or a failure to exercise an honest judgment. Cournoyer v. American Television & Radio Co., 249 Minn. 577, 580-81, 83 N.W.2d 409, 412 (1957).

The scope of judicial review of an arbitration award is extremely narrow. Office of the State Auditor v. Minnesota Ass'n of Professional Employees, 504 N.W.2d 751, 755 (Minn. 1993). Generally, arbitrators are considered the final judges of both law and facts. State by Sundquist v. Minnesota Teamsters Pub. & Law Enforcement Employees Union Local No. 320, 316 N.W.2d 542, 544 (Minn. 1982). Furthermore,

[a]n award will not be set aside merely because the court thinks the arbitrators erred either as to the law or the facts. If the rule were otherwise, arbitration proceedings, instead of facilitating the settlement of controversies, would serve but to delay the final determination of the rights of the parties.

Cournoyer, 249 Minn. at 580, 83 N.W.2d at 411-12 (citations omitted). Similarly,

"great flexibility" is afforded arbitrators to determine [evidentiary] admissibility, and the exclusion of evidence will not be grounds to vacate unless critical evidence is completely omitted.

Matzen Constr., Inc. v. Leander Anderson Corp., 565 A.2d 1320, 1323 (Vt. 1989) (citations omitted). Absent a clear showing that an arbitrator was unfaithful to his obligation, the court assumes the arbitrator did not exceed his authority. Hilltop Constr., Inc. v. Lou Park Apartments, 324 N.W.2d 236, 239 (Minn. 1982). The party challenging the arbitration award has the burden to demonstrate that the arbitrator exceeded his authority. Id.

Viking argues the arbitrator exceeded his authority by refusing to allow its expert to testify to the causation of Govan's alleged injuries and by excluding its expert's report as untimely. It contends the arbitrator's "made-up" rule regarding timeliness prohibited it from presenting material evidence in this matter. Alternatively, Viking contends that if Govan would have been prejudiced by admission of the report, a continuance could have been granted to allow Govan to solicit the opinion of his own expert.

Minnesota has adopted Rules of No-Fault Arbitration pursuant to the authority granted by Minn. Stat. § 65B.525. See generally Minn. R. No-Fault Arb. reprinted at 7 Minn. Stat. Ann. at 363-71 (West 1996). Rule 24 provides, in part:

The arbitrator shall be the judge of the relevancy and materiality of any evidence offered and conformity to legal rules of evidence shall not be necessary. * * * In receiving this evidence, the arbitrator shall consider any objections to its admission in determining the weight to which he or she deems it is entitled.

Id. at 368.

A few days before the arbitration proceeding, Viking brought an emergency motion to stay the arbitration. The district court deciding that motion found that Viking's request was based on a previously undisclosed expert witness report which could have and should have been obtained much earlier. The district court also found that Viking's evidence was insufficient to meet the threshold test for a stay.

In ruling on Viking's motion to vacate the arbitrator's award, the district court found that the arbitrator's conformity to the rules of evidence, although unnecessary, was not prohibited. The court noted that the arbitrator "must be accorded the discretion to conduct the proceedings effectively." The court also found that while the causation testimony of Viking's expert was excluded, Viking retained the ability to present other evidence supportive of its theory of the case. The court went on to note:

The ability to exclude evidence lacking in foundation, or to exclude evidence that has not been disclosed in a timely fashion is fundamental to the integrity of the arbitration process itself.

The district court then denied Viking's motion to vacate the award.

At the outset, we observe that Viking's claim that the arbitrator exceeded his authority by excluding its expert testimony solely on timeliness is misplaced. Viking's expert was prepared to render an opinion that no injury resulted from the impact of the vehicles. Because the expert was not qualified to give a medical opinion, the arbitrator refused to allow this testimony in evidence as lacking in foundation. We note that the arbitrator read the report and concluded there were internal inconsistences. The arbitrator concluded that, if allowed in at so late a date, it would be unfair to an unsuspecting Govan.

We hold that, inasmuch as the arbitrator's ruling was consistent with the district court's earlier determination, we cannot say that his refusal to admit the "last-minute" report of Viking's expert constituted an abuse of authority. Furthermore, we note that Minn. R. No-Fault Arb. 24 authorizes an arbitrator to determine "the relevancy and materiality of any evidence offered * * * ." A trial court has broad discretion in evidentiary decisions, and rule 24 would surely require at least as much deference be given when determining whether an arbitrator has abused his authority in making such rulings. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (whether to admit or exclude evidence is within the broad discretion of the trial court). We conclude, therefore, that the arbitrator did not exceed the authority given him by the rules and properly exercised that authority in refusing to admit this evidence.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.