United States District Court, M.D. Georgia, Columbus Division
UNITED STATES FOR THE USE AND BENEFIT OF METROPOWER, INC. D/B/A COLUMBUS POWER, Claimant,
DARWIN NATIONAL ASSURANCE COMPANY D/B/A ALLIED WORLD INSURANCE COMPANY and GSC CONSTRUCTION, INC., Respondents.
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Inc. brought two Miller Act actions against GSC Construction,
Inc. and its performance bond surety, Darwin National
Assurance Company d/b/a Allied World Insurance Company. Both
actions are based on construction projects performed at Fort
Benning, Georgia. The first project was the construction of
Buildings 2944 and 2945, and that project is the subject of
No. 4:18-cv-1. The second project was the construction of
Building 972, and that project is the subject of No.
4:18-cv-35. The parties agreed that both actions should be
stayed pending arbitration, and the Court granted the
parties' motions to stay. The arbitrator conducted a
consolidated hearing on both matters, receiving documentary
evidence and hearing testimony. The arbitrator issued a
written award concluding that the weight of the evidence
supports MetroPower's position with regard to both
projects. The arbitrator awarded MetroPower $56, 678.00
against GSC and Allied on the Building 972 project and $68,
691.00 against GSC and Allied on the Buildings 2944/2945
project. Arbitrator Award 6, 10, ECF No. 25-1 in 4:18-cv-1
& ECF No. 21-1 in 4:18-cv-35. Both awards are against GSC
and Allied jointly and severally.
Allied filed motions to vacate the arbitration award (ECF No.
27 in 4:18-cv-1 & ECF No. 22 in 4:18-cv-35). MetroPower
filed motions to confirm the arbitration award and for entry
of judgment in accordance with the arbitration award (ECF No.
29 in 4:18-cv-1 & ECF No. 24 in 4:18-cv-35). As discussed
below, the Court denies the motions to vacate and grants the
motions to confirm.
subcontracts at issue here state that they are subject to
arbitration pursuant to the Georgia Arbitration Code,
O.C.G.A. §§ 9-9-1 to 9-9-18, and the parties agree
that the Georgia Arbitration Code is the governing statute.
See Am. Compl. Attach. 1, Subcontract §
16.1(d), ECF No. 14-1 in 4:18-cv-1; Am. Compl. Attach. 1,
Subcontract § 16.1(d), ECF No. 7-1 in 4:18-cv-35. Under
the Georgia Arbitration Code, the “court shall confirm
an award upon application of a party made within one year
after its delivery to him, unless the award is vacated or
modified by the court as provided in this part.”
O.C.G.A. § 9-9-12. The Code “places strict limits
on the scope of a trial court's review of an
arbitrator's award and on any subsequent review by an
appellate court.” Brookfield Country Club, Inc. v.
St. James-Brookfield, LLC, 683 S.E.2d 40, 43 (Ga.Ct.App.
2009). The Code provides five exclusive grounds for vacating
an arbitration award based on the application of a party who
participated in the arbitration. See O.C.G.A. §
9-9-13(b). As the parties challenging the arbitration award,
GSC and Allied have the burden “to come forward with
evidence establishing the existence of one of the . . .
statutory grounds for vacating the award.” Greene
v. Hundley, 468 S.E.2d 350, 353 n. 24 (Ga. 1996).
GSC and Allied rely upon one ground for vacating the award:
the “arbitrator's manifest disregard of the
law.” O.C.G.A. § 9-9-13(b)(5). To establish
manifest disregard of the law, GSC and Allied must establish
disregard that is “both evident and intentional.”
ABCO Builders, Inc. v. Progressive Plumbing, Inc.,
647 S.E.2d 574, 575 (Ga. 2007). “An [arbitrator] that
incorrectly interprets the law has not manifestly disregarded
it. It has simply made a legal mistake. To manifestly
disregard the law, one must be conscious of the law and
deliberately ignore it.” Id. (quoting
Montes v. Shearson Lehman Bros., Inc., 128 F.3d
1456, 1461 (11th Cir. 1997)). “Therefore, to prove that
a manifest disregard of the law has occurred, a party wishing
to have an arbitration award vacated must provide evidence of
record that, not only was the correct law communicated to an
arbitrator, but that the arbitrator intentionally and
knowingly chose to ignore that law despite the fact that it
was correct.” Id. “[T]his showing is an
extremely difficult one to make[.]” Id. A
reviewing “court is prohibited from weighing the
evidence submitted before the arbitrator, regardless of
whether the court believes there to be sufficient evidence,
or even any evidence, to support the award.”
Greene, 468 S.E.2d at 354.
Allied assert that the arbitrator manifestly disregarded the
law in two ways: (1) when he concluded that MetroPower's
Miller Act payment bond claims were filed within one year of
MetroPower's last work on the subcontracts and (2) when
he based the arbitration award on change orders that GSC and
Allied argue were unsigned. According to GSC and Allied, the
“only credible evidence” before the arbitrator
established that the work was completed more than one year
and one day before MetroPower filed its Miller Act claims and
that the change orders “largely were not signed by GSC
or approved by the Army.” Resp't's Mot. to
Vacate 10, ECF No. 27 in 4:18-cv-1. Thus, GSC and Allied
challenge the sufficiency of the evidence supporting the
arbitrator's award. That is not enough to vacate the
arbitration award. Instead, “there must be concrete
evidence of [the arbitrator's] intent [purposefully to
disregard the law] either in the findings of the arbitrator,
if he or she chooses to make such findings, or in the
transcript of the arbitration hearing.” ABCO
Builders, Inc., 647 S.E.2d at 576. Here, the
arbitrator's written findings do not evidence an intent
to disregard the law. Based on the Court's review, the
record does not contain a transcript of the arbitration
hearing, and the parties did not point to anything else in
the record that indicates the intent of the arbitrator in
reaching the conclusion he did. In the absence of
“viable concrete evidence that the [arbitrator]
purposefully intended to disregard applicable law, ” it
would be error to vacate the arbitrator's award.
Id. (affirming court of appeals' decision to
reverse the ruling of a superior court vacating an
arbitration award because there was no evidence of a manifest
disregard of the law). The Court thus concludes that GSC and
Allied did not meet their burden of presenting evidence to
establish a basis for vacating the arbitrator's award.
reasons set forth above, the Court denies GSC and
Allied's motions to vacate (ECF No. 27 in 4:18-cv-1 &
ECF No. 22 in 4:18-cv-35). The Court grants MetroPower's
motions to confirm the arbitration award and for entry of
judgment in accordance with the arbitration award (ECF No. 29
in 4:18-cv-1 & ECF No. 24 in 4:18-cv-35). The Clerk is
directed to enter judgments in favor of MetroPower and
against GSC and Allied, jointly and severally, in the amount
of $56, 678.00 in 4:18-cv-35 and $68, 691.00 in 4:18-cv-1.
 Even if the Court were permitted to
weigh the evidence and determine whether MetroPower's
evidence supports the arbitrator's award-which the Court
is not permitted to do-the Court could not do so based on the
present record because the parties did not point to a
transcript of the arbitration hearing or any of ...