METROPOWER INC v. GSC CONSTRUCTION INC et al

Filing 30

ORDER denying (27) Motion to Vacate and granting (29) Motion for Judgment as a Matter of Law in case 4:18-cv-00001-CDL; denying (22) Motion to Vacate and granting (24) Motion for Judgment as a Matter of Law in case 4:18-cv-00035-CDL. Ordered by US DISTRICT JUDGE CLAY D. LAND on 7/18/2019 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
UNITED STATES FOR THE USE AND
BENEFIT OF METROPOWER, INC.
D/B/A COLUMBUS POWER,
Claimant,

*
*
*

vs.

*

DARWIN NATIONAL ASSURANCE
COMPANY D/B/A ALLIED WORLD
INSURANCE COMPANY and GSC
CONSTRUCTION, INC.,

*

CASE NOS.
4:18-CV-1 (CDL)
4:18-CV-35 (CDL)

*
*

Respondents.
*
O R D E R
MetroPower, 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
Case No. 4:18-cv-1. The second project was the construction of
Building 972, and that project is the subject of Case No. 4:18cv-35.

The parties agreed that both actions should be stayed

pending arbitration, and the Court granted the parties’ motions
to stay.
both

The arbitrator conducted a consolidated hearing on

matters,

testimony.

receiving

documentary

evidence

and

hearing

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.
GSC

and

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).
discussed below, the Court denies the motions

As

to vacate and

grants the motions to confirm.
DISCUSSION
Both 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 4:18cv-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

2

or modified by the court as provided in this part.”
§ 9-9-12.
trial

O.C.G.A.

The Code “places strict limits on the scope of a

court’s

review

of

an

arbitrator’s

subsequent review by an appellate court.”

award

and

on

any

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.
13(b).
and

See O.C.G.A. § 9-9-

As the parties challenging the arbitration award, GSC

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).
Here, GSC and Allied rely upon one ground for vacating the
award:

the

“arbitrator’s

O.C.G.A. § 9-9-13(b)(5).
law,

GSC

evident

and

and

Plumbing,

Allied

[arbitrator]

647

that

disregard

of

the

law.”

To establish manifest disregard of the

must

intentional.”

Inc.,

manifest

establish
ABCO

S.E.2d

disregard

Builders,
574,

incorrectly

575

interprets

Inc.
(Ga.
the

that
v.

is

“both

Progressive

2007).

“An

law

not

has

manifestly disregarded it. It has simply made a legal mistake.
To manifestly disregard the law, one must be conscious of the
law

and

deliberately

Shearson Lehman

ignore

it.”

Id.

(quoting

Montes

v.

Bros., Inc., 128 F.3d 1456, 1461 (11th Cir.

3

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
award.”

evidence,

or

even

any

evidence,

to

support

the

Greene, 468 S.E.2d at 354.

GSC

and

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

4

supporting the arbitrator’s award.1
the

arbitration

award.

That is not enough to vacate

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,

arbitration hearing.”
Here,

the

arbitrator’s

or

in

the

transcript

of

the

ABCO Builders, Inc., 647 S.E.2d at 576.
written

intent to disregard the law.

findings

do

not

evidence

an

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.
that

the

In the absence of “viable concrete evidence

[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.

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 the documentary evidence that was
presented to the arbitrator.

5

CONCLUSION
For the 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).

confirm

the

The

arbitration

Court

grants

award

and

MetroPower’s

for

entry

of

motions

to

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.
IT IS SO ORDERED, this 18th day of July, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

6