On appeal from Superior Court, Law Division, Bergen County.
Antell, Joelson and McElroy. The opinion of the court was delivered by, Antell, P.J.A.D.
This appeal is from an order of the Law Division dated June 28, 1982 denying plaintiffs' application for modification of an arbitration award by the addition of pre-award interest.
Plaintiff James C. Rivers is an insured under two automobile policies issued by defendant. As the result of an accident on May 6, 1978 he served a claim notice for payment of uninsured motorists benefits. The policies provided that, failing agreement between the insured and the carrier, the determination of benefits shall be made by arbitration, and after an unproductive period of negotiation plaintiffs demanded arbitration on April 2, 1980. The issues submitted to the panel provided by the American Arbitration Association were the following: "(a) Whether or not the second policy applies in addition to the first policy; (b) The negligence, if any, of the driver; (c) The total value of all Personal Injuries, as a result of the accident which occurred on May 6, 1978. . . ."
Plaintiff concedes that his entitlement to pre-award interest was not included among the issues to be considered. Hearings were concluded on January 22, 1982 and an award in favor of plaintiffs for $75,000 was entered February 19, 1982 based upon total damages of $150,000 for which plaintiff was held 50% accountable.
On April 13, 1982 plaintiff's attorney wrote to the American Arbitration Association requesting that the panel entertain plaintiff's request for pre-award interest. Section 23 of the Rules of the American Arbitration Association provides that hearings may be reopened upon application of a party for good cause shown, "at any time before the Award is made." Accordingly, the tribunal administrator of the American Arbitration Association replied that in order to reinstate the authority of the arbitrator it would be necessary for plaintiff to secure the consent of his adversary. Since the application was opposed, plaintiff's request for reinstatement was denied by letter from the Association dated May 19, 1982. This action was thereupon instituted by complaint and order to show cause for "judgment modifying the Award of the Arbitration Panel to include pre-award interest and costs."
Plaintiff's argument on this appeal is presented in a dual aspect: (1) the award should be modified by the addition of pre-award interest as a discretionary measure by this court; (2) pre-award interest is mandated by R. 4:42-11(b) which directs the inclusion of pre-judgment interest as part of tort judgments entered in the Superior Court.
The grounds upon which a court may modify an arbitration award are narrowly limited. N.J.S.A. 2A:24-9 specifies that a court shall modify or correct an award in the following cases:
a. Where there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to therein;
b. Where the arbitrators awarded upon a matter not submitted to them unless it affects the merits of the decision upon the matter submitted; and
c. Where the award is imperfect in a matter of form not affecting the merits of the controversy.
The court shall modify and correct the award, to effect the intent thereof and promote ...