1. LINDA M. CHAN KENT, represented by ROSITA MANALANG, vs. DIONESIO C.

MICAREZ, SPOUSES ALVARO E. MICAREZ & PAZ MICAREZ, and THE REGISTRY
OF DEEDS, DAVAO DEL NORTE
G.R. No. 185758
March 9, 2011
Facts:The herein petitioner institute a civil case on recovery of real property and
annulment of title before RTC. In her complaint, petitioner claimed that the residential
lot in Panabo City, which she purchased in 1982, was clandestinely and fraudulently
conveyed and transferred by her parents, respondent spouses Alvaro and Paz Micarez
(Spouses Micarez), in favor of her youngest brother, respondent Dionesio Micarez
(Dionesio), to her prejudice and detriment.
After the parties had filed their respective pre-trial briefs, and the issues in the
case had been joined, the RTC explored the possibility of an amicable settlement among
the parties by ordering the referral of the case to the Philippine Mediation Center (PMC).
On March 1, 2008, Mediator Esmeraldo O. Padao, Sr. (Padao) issued a Mediators
Report6 and returned Civil Case No. 13-2007 to the RTC allegedly due to the nonappearance of the respondents on the scheduled conferences before him. Acting on said
Report, the RTC issued an order on May 29, 2009 allowing petitioner to present her
evidence ex parte.
For plaintiffs and her counsels failure to appear during the mediation
proceeding, this instant case is hereby ordered DISMISSED.
Issues: 1. WHETHER OR NOT, THE HONORABLE COURT A QUO GRAVELY ERRED
IN DISMISSING THE CASE SIMPLY ON THE REASON THAT PLAINTIFF FAILED TO
APPEAR DURING THE MEDIATION PROCEEDING, ALTHOUGH PRESENT FOR TWO
(2) TIMES.
Held:
Yes. A.M. No. 01-10-5-SC-PHILJA regards mediation as part of pre-trial
where parties are encouraged to personally attend the proceedings. The personal nonappearance, however, of a party may be excused only when the representative, who
appears in his behalf, has been duly authorized to enter into possible amicable
settlement or to submit to alternative modes of dispute resolution. To ensure the
attendance of the parties, A.M. No. 01-10-5-SC-PHILJA specifically enumerates the
sanctions that the court can impose upon a party who fails to appear in the proceedings
which includes censure, reprimand, contempt, and even dismissal of the action in
relation to Section 5, Rule 18 of the Rules of Court.
Although the RTC has legal basis to order the dismissal of Civil Case No.
13-2007, the Court finds this sanction too severe to be imposed on the petitioner where
the records of the case is devoid of evidence of willful or flagrant disregard of the rules
on mediation proceedings. There is no clear demonstration that the absence of
petitioners representative during mediation proceedings on March 1, 2008 was
intended to perpetuate delay in the litigation of the case. Neither is it indicative of lack
of interest on the part of petitioner to enter into a possible amicable settlement of the
case.
In the light of the foregoing, the Court finds it just and proper that
petitioner be allowed to present her cause of action during trial on the merits to obviate
jeopardizing substantive justice. Verily, the better and more prudent course of action in
a judicial proceeding is to hear both sides and decide the case on the merits instead of
disposing the case by technicalities. What should guide judicial action is the principle
that a party-litigant is to be given the fullest opportunity to establish the merits of his
complaint or defense rather than for him to lose life, liberty or property on
technicalities.

2. CARGILL PHILIPPINES, INC., vs. SAN FERNANDO REGALA TRADING, INC.

G.R. No. 175404
January 31, 2011
Facts:
On June 18, 1998, respondent San Fernando Regala Trading, Inc. filed with
the Regional Trial Court (RTC) of Makati City a Complaint for Rescission of Contract with
Damages3 against petitioner Cargill Philippines, Inc. In its Complaint, respondent
alleged that it was engaged in buying and selling of molasses and petitioner was one of
its various sources from whom it purchased molasses. Petitioner, as seller, failed to
comply with its obligations under the contract which provides that payment was to be
made by means of an Irrevocable Letter of Credit payable at sight, despite demands
from respondent, thus, the latter prayed for rescission of the contract and payment of
damages.
On July 24, 1998, petitioner filed a Motion to Dismiss/Suspend Proceedings
and To Refer Controversy to Voluntary Arbitration. The petitioner alleges that the
contract stipulate that,
xxxAny dispute which the Buyer and Seller may not be able to settle by
mutual agreement shall be settled by arbitration in the City of New York
before the American Arbitration Association. The Arbitration Award shall
be final and binding on both partiesxxx. Pursuant to Sections 6 and 7 of
Republic Act (R.A.) No. 876, or the Arbitration Law.
The RTC denied the motion to dismiss. The RTC said that the provision
directed the court concerned only to stay the action or proceeding brought upon an
issue arising out of an agreement providing for the arbitration thereof, but did not
impose the sanction of dismissal. Petitioner filed its Motion for Reconsideration, which
the RTC denied in an Order. Petitioner filed a petition for certiorari with the CA.
CA rendered its assailed Decision denying the petition and affirming the
RTC Orders. CA held that the case cannot be brought under the Arbitration Law for the
purpose of suspending the proceedings before the RTC, since in its Motion to
Dismiss/Suspend proceedings, petitioner alleged, as one of the grounds thereof, that the
subject contract between the parties did not exist or it was invalid; that the said
contract bearing the arbitration clause was never consummated by the parties, thus, it
was proper that such issue be first resolved by the court through an appropriate trial;
that the issue involved a question of fact that the RTC should first resolve. Arbitration is
not proper when one of the parties repudiated the existence or validity of the contract.
Petitioner's motion for reconsideration was denied, hence, this petition.
Issue:
Whether or not the arbitration clause is valid, enforceable
and binding on the parties
Held:
Yes, we hold that the arbitration clause is binding on the parties.However,
notwithstanding our ruling on the validity and enforceability of the assailed arbitration
clause providing for foreign arbitration, it is our considered opinion that the case
at bench still cannot be brought under the Arbitration Law for the purpose of
suspending the proceedings before the trial court. We note that in its Motion to
Dismiss/Suspend Proceedings, etc, petitioner Cargill alleged, as one of the grounds

thereof, that the alleged contract between the parties does not legally exist or is invalid.
As posited by petitioner, it is their contention that the said contract, bearing the
arbitration clause, was never consummated by the parties. That being the case, it is but
proper that such issue be first resolved by the court through an appropriate trial. The
issue involves a question of fact that the trial court should first resolve.
Applying the Gonzales ruling, an arbitration agreement which forms part of
the main contract shall not be regarded as invalid or non-existent just because the main
contract is invalid or did not come into existence, since the arbitration agreement shall
be treated as a separate agreement independent of the main contract. To reiterate. a
contrary ruling would suggest that a party's mere repudiation of the main contract is
sufficient to avoid arbitration and that is exactly the situation that the separability
doctrine sought to avoid. Thus, we find that even the party who has repudiated the
main contract is not prevented from enforcing its arbitration clause.
Also, Arbitration before the Panel of Arbitrators is proper only when there is a
disagreement between the parties as to some provisions of the contract between them,
which needs the interpretation and the application of that particular knowledge and
expertise possessed by members of that Panel. It is not proper when one of the parties
repudiates the existence or validity of such contract or agreement on the ground of
fraud or oppression as in this case. The validity of the contract cannot be subject of
arbitration proceedings. Allegations of fraud and duress in the execution of a contract
are matters within the jurisdiction of the ordinary courts of law. These questions are
legal in nature and require the application and interpretation of laws and jurisprudence
which is necessarily a judicial function.
Vega v. San Carlos Milling Co. Ltd, 51 Phil 908 (1924)
Facts:
Plaintiff filed an action for the recovery of 32,959 kilos of centrifugal sugar, or its value,
P6,252, plus the payment of P500 damages and the costs. The lower court decided in
favor of the plaintiff.
The defendant company appealed from this judgment and contended that Sec. 23 of the
Mills covenant and Sec. 14 of the Planters covenant are stipulations on arbitration
which are valid, and therefore constitute a condition precedent, to which the plaintiff
should have resorted before applying to the courts. More so, if these two provisions are
read with the reciprocal covenant in Sec. 7 of the Mills covenant.
Said clauses are as follows:
23. That it (the Mill Party of the first part) will submit and all differences that
may arise between the Mill and the Planters to the decision of arbitrators, two of
whom shall be chosen by the Mill and two by the Planters, who in case of inability
to agree shall select a fifth arbitrator, and to respect and abide by the decision of
said arbitrators, or any three of them, as the case may be.
14. That they (the Planters--Parties of the second part) will submit any and all
differences that may arise between the parties of the first part and the parties of
the second part of the decision of arbitrators, two of whom shall be chosen by
the said parties of the first part and two by the said party of the second part, who
in case of inability to agree, shall select a fifth arbitrator, and will respect and

abide by the decision of said arbitrators, or any three of them, as the case may
be.

It is an admitted fact that the differences which later arose between the parties, and
which are the subject of the present litigation have not been submitted to arbitration
provided for in the above quoted clauses.
Issue:
WON the lower court erred in having held itself with jurisdiction to take cognizance of
and render judgment in the cause
Held:
NO.
The defendant is right in contending that clause 23 of the Mill's covenant and clause 14
of the Planter's Covenant on arbitration are valid, but they are not for that reason a bar
to judicial action, in view of the way they are expressed:
"An agreement to submit to arbitration, not consummated by an award, is no bar to a
suit at law or in equity concerning the subject matter submitted. And the rule applies
both in respect of agreements to submit existing differences and agreements to submit
differences which may arise in the future."
And in view of the terms in which the said covenants on arbitration are expressed, it
cannot be held that in agreeing on this point, the parties proposed to establish the
arbitration as a condition precedent to judicial action, because these clauses quoted do
not create such a condition either expressly or by necessary inference.
"Submission as Condition Precedent to Suit. Clauses in insurance and other contracts
providing for arbitration in case of disagreement are very dissimilar, and the question
whether submission to arbitration is a condition precedent to a suit upon the contract
depends upon the language employed in each particular stipulation. Where by the same
agreement which creates the liability, the ascertainment of certain facts by arbitrators is
expressly made a condition precedent to a right of action thereon; suit cannot be
brought until the award is made. But the courts generally will not construe an
arbitration clause as ousting them of their jurisdiction unless such construction is
inevitable, and consequently when the arbitration clause is not made a condition
precedent by express words or necessary implication, it will be construed as merely
collateral to the liability clause, and so no bar to an action in the courts without an
award." (2 R. C. L., 362, 363.)
Neither does the reciprocal covenant No. 7 of the Mills covenant expressly or impliedly
establish the arbitration as a condition precedent.
The expression "subject to the provisions as to arbitration, hereinbefore appearing"
does not declare such to be a condition precedent. This phrase does not read "subject to
the arbitration," but "subject to the provisions as to arbitration hereinbefore appearing."
And, which are these "provisions as to arbitration hereinbefore appearing?"
Undoubtedly clauses 23 and 14 quoted above, which do not make arbitration a
condition precedent.
Disposition. Affirmed.

California & Hawaiian Sugar Co. v. Pioneer Insurance & Surety Corp., 346
SCRA 214 (2000)
Facts:
On November 27, 1990, the vessel MV SUGAR ISLANDER arrived at the port of Manila
carrying a cargo of soybean meal in bulk consigned to several consignees, one of which
was the Metro Manila Feed Millers Association. Discharging of cargo from vessel to
barges commenced. From the barges, the cargo was allegedly offloaded, re-bagged and
reloaded on consignees delivery trucks.
Respondent, however, claims that when the cargo was weighed on a licensed truck
scale a shortage of 255.051 metric tons valued at P1,621,171.16 was discovered. The
shipment was insured with Pioneer against all risk in the amount of P19,976,404.00.
Due to the alleged refusal of petitioners to settle their respective liabilities, respondent,
as insurer, paid the consignee Metro Manila Feed Millers Association.
Pioneer filed a complaint for damages against petitioners. Petitioners filed a Motion to
Dismiss the complaint on the ground that respondents claim is premature, the same
being arbitrable.
The RTC ordered to defer the hearing of the MTD and directed petitioners to file their
Answer.
Petitioners filed their answer with counterclaim and crossclaim alleging that Pioneer did
not comply with the arbitration clause.
Petitioners filed a Motion to Defer Pre-Trial and Motion to Set for Preliminary Hearing the
Affirmative Defense of Lack of Cause of Action for Failure to comply with Arbitration
Clause, respectively.
The RTC denied.
The CA affirmed. It ruled that petitioner cannot set the case for preliminary hearing as
an MTD was filed. Also, the arbitration clause in the charter party did not bind Pioneer.
The right of Pioneer to file a complaint against petitioners is not dependent upon the
charter party, nor does it grow out of any privity contract. It accrues simply upon
payment.
Issue: WON the arbitration clause was binding upon Pioneer
Held:
YES. The CA erred when it held that the arbitration clause was not binding on Pioneer.
There was nothing in Pan Malayan, however, that prohibited the applicability of the
arbitration clause to the subrogee. That case merely discussed, inter alia, the accrual of
the right of subrogation and the legal basis therefor. This issue is completely different
from that of the consequences of such subrogation; that is, the rights that the insurer
acquires from the insured upon payment of the indemnity.

Pan Malayan: The right of subrogation is not dependent upon, nor does it grow out of,
any privity of contract or upon written assignment of claim. It accrues simply upon
payment of the insurance claim by the insurer.
MANUEL A. RAMOS, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and DOMINGO RAMOS, respondents.
G.R. No. L-85475 June 30, 1989

Facts:
Domingo Ramos authorized his brother Manuel Ramos to sell his share of certain
lands owned by them in common with their other brothers and sisters. Domingo revoked
the power of attorney and demanded an accounting from Manuel. Manuel refused.
Domingo then filed a complaint with the Punong Barangay of Pampanga, Buhangin
District, City of Davao. The Punong Barangay scheduled a hearing on March 14,
1987. Manuel appeared but Domingo did not. He was represented, however, by his wife
who said her husband wanted to avoid a direct confrontation with his brother. She
requested that the Punong Barangay issue a certification that no settlement had been
reached so a complaint could be filed in court. The Punong Barangay
complied. Thereupon, Domingo sued Manuel in the Regional Trial Court of Davao City,
also for accounting.
Manuel moved to dismiss the complaint on the ground of non-compliance with
the requirements of P.D. No. 1508. Specifically, he cited the failure of the Punong
Barangay to refer the dispute to the Pangkat ng Tagapagkasundo after the unsuccessful
mediation proceedings convened by him. The motion was denied. Manuel then filed
with this Court a petition for certiorari which we referred to the Court of Appeals. That
court denied the petition. It held that there was no need for such referral because
Domingo had clearly indicated, by his refusal to appear before the Punong Barangay,
that no extrajudicial settlement was possible between him and his brother.
Issue:
Whether or not there was non-compliance with the requirements of PD No. 1508.
Held:
Yes. It is clear that the dispute should not have ended with the mediation
proceedings before the Punong Barangay because of his failure to effect a settlement
between the brothers. One purpose of P.D. 1508 is precisely to effect a confrontation
between the parties in the hope that they can resolve their differences without resort to
the courts of justice. It was not for the Punong Barangay to say that referral to the
Pangkat was no longer necessary merely because he himself had failed to work out an
agreement between the petitioner and the private respondent. Indeed, it is possible that
the Pangkat could have exerted more efforts and succeeded in resolving the dispute.
The Punong Barangay could in fact have even issued summons to compel the
attendance of Domingo Ramos, who was the complainant himself in the mediation

hearing. In any event, the certification he issued was certainly premature and did not
authorize immediate recourse to judicial action.
In the case before us, it is Manuel Ramos, the respondent in the barangay
proceedings, who actually appeared therein and is now invoking the non-appearance of
Domingo Ramos, the complainant himself. Domingo, the herein private respondent, is
the party who did not appear to support his own complaint before the Punong Barangay.
He invoked the Punong Barangay's jurisdiction and then disregarded it. Under Section
4(d), he is now barred, as complainant in the barangay proceedings, "from seeking
judicial recourse for the same cause of action."
ANGEL L. BOLEYLEY, petitioner,
vs.
HON. CLARENCE J. VILLANUEVA, Presiding Judge, Branch 7, Regional Trial
Court, Baguio City, and ALBERT S. SURLA, respondents.
G.R. No. 128734 September 14, 1999
Facts:

On August 7, 1996, petitioner Angel L. Boleyley filed with the Regional Trial Court,
Baguio City, a complaint against private respondent for collection of a sum of money.
Private respondent Albert S. Surla filed with the trial court a motion to dismiss the
complaint on the ground that petitioner did not comply with the Revised Katarungan
Pambarangay Law requiring as a condition for the filing of a complaint in court referral
of the matter to the barangay lupon chairman or the pangkat, for conciliation or
settlement. Petitioner filed an opposition to motion to dismiss on the ground that private
respondent was not a resident of Baguio City so that the dispute involving the parties
was not within the authority of the lupon to bring together for conciliation or
settlement. The trial court issued an order dismissing the case for being premature, for
not having been referred to the barangay lupon. Petitioner filed with the trial court a
motion for reconsideration on the ground that private respondent could not invoke the
Katarungan Pambarangay Law because he was not a resident of Baguio City. The trial
court resolved to deny the motion for reconsideration for lack of merit, notice of which
denial was received by petitioner on March 4, 1997.
Issue:
Whether or not petitioner was bound to refer the dispute to the barangay lupon
or pangkat for conciliation or settlement before he could file an action for collection with
the Regional Trial Court.
Held:

No. It is a basic rule of procedure that "jurisdiction of the court over the subject
matter of the action is determined by the allegations of the complaint, irrespective of
whether or not the plaintiff is entitled to recover upon all or some of the claims asserted
therein. The jurisdiction of the court cannot be made to depend upon the defenses set
up in the answer or upon the motion to dismiss, for otherwise, the question of
jurisdiction would almost entirely depend upon the defendant. From the complaint filed,
it is obvious that the parties do not reside in the same city or municipality, and hence,
the dispute is exempted from the requirement of referral to the barangay lupon or
pangkat for conciliation or settlement prior to filing with the court. Consequently, we
rule that there is no need of prior referral of the dispute to the barangay lupon or
pangkat in the absence of showing in the complaint itself that the parties reside in the
same city or municipality. In thus dismissing the complaint for insufficiency of cause of

action or pre-maturity, the trial court committed grave abuse of discretion amounting to
lack or excess of jurisdiction, entitling petitioner to the relief prayed for.
The Court orders the trial court to forthwith deny private respondent's motion to
dismiss, and proceed to the disposition of the case with all deliberate dispatch.
G.R. No. 169332 February 11, 2008
ABS-CBN v. World Interactive Network Systems
FACTS:
Petitioner ABS-CBN Broadcasting Corporation granted World Interactive Network
Systems (WINS) Japan Co., Ltd., a foreign corporation licensed under the laws of Japan,
an exclusive license to distribute and sublicense the distribution of the television service
known as The Filipino Channel (TFC) in Japan. A dispute arose between the parties
when petitioner accused respondent of inserting nine episodes of WINS WEEKLY, a
weekly 35-minute community news program for Filipinos in Japan, into the TFC
programming. Petitioner claimed that these were unauthorized insertions constituting
a material breach of their agreement. Consequently, petitioner notified respondent of its
intention to terminate the agreement. Thereafter, respondent filed an arbitration suit
pursuant to the arbitration clause of its agreement with petitioner. The parties
appointed Professor Alfredo F. Tadiar to act as sole arbitrator who then rendered a
decision in favor of respondent holding that petitioner gave its approval for the airing of
WINS WEEKLY as shown by a series of written exchanges between the parties and that
petitioner threatened to terminate the agreement due to its desire to compel
respondent to re-negotiate the terms thereof for higher fees. He then allowed
respondent to recover temperate damages, attorneys fees and one-half of the amount
it paid as arbitrators fee. Petitioner filed in the CA a petition for review under Rule 43 of
the Rules of Court or, in the alternative, a petition for certiorari under Rule 65 of the
same Rules, with application for temporary restraining order and writ of preliminary
injunction. Respondent, on the other hand, filed a petition for confirmation of arbitral
award. The CA rendered the assailed decision dismissing ABS-CBNs petition for lack of
jurisdiction. Petitioner moved for reconsideration but the same was denied.

WON an aggrieved party in a voluntary arbitration dispute may directly avail of a

petition for review to the CA under Rule 43 or a petition for certiorari under Rule 65 of
the Rules of Court, instead of filing a petition to vacate the award in the RTC when the
grounds invoked to overturn the arbitrators decision are other than those for a petition
to vacate an arbitral award enumerated under RA 876.
HELD:
No. RA 876 itself mandates that it is the Court of First Instance, now the RTC,
which has jurisdiction over questions relating to arbitration, such as a petition to vacate
an arbitral award. As RA 876 did not expressly provide for errors of fact and/or law and
grave abuse of discretion (proper grounds for a petition for review under Rule 43 and a
petition for certiorari under Rule 65, respectively) as grounds for maintaining a petition
to vacate an arbitral award in the RTC, it necessarily follows that a party may not avail
of the latter remedy on the grounds of errors of fact and/or law or grave abuse of
discretion to overturn an arbitral award. Adamson v. Court of Appeals gave ample
warning that a petition to vacate filed in the RTC which is not based on the grounds
enumerated in Section 24 of RA 876 should be dismissed.

In cases not falling under any of the aforementioned grounds to vacate an award, the
Court has already made several pronouncements that a petition for review under Rule
43 or a petition for certiorari under Rule 65 may be availed of in the CA. Which one
would depend on the grounds relied upon by petitioner.
Nevertheless, although petitioners position on the judicial remedies available to it was
correct, we sustain the dismissal of its petition by the CA. The remedy petitioner availed
of, entitled alternative petition for review under Rule 43 or petition for certiorari under
Rule 65, was wrong. Time and again, we have ruled that the remedies of appeal and
certiorari are mutually exclusive and not alternative or successive.
A careful reading of the assigned errors reveals that the real issues calling for the CAs
resolution were less the alleged grave abuse of discretion exercised by the arbitrator
and more about the arbitrators appreciation of the issues and evidence presented by
the parties. Therefore, the issues clearly fall under the classification of errors of fact and
law questions which may be passed upon by the CA via a petition for review under
Rule 43. Petitioner cleverly crafted its assignment of errors in such a way as to straddle
both judicial remedies, that is, by alleging serious errors of fact and law (in which case a
petition for review under Rule 43 would be proper) and grave abuse of discretion
(because of which a petition for certiorari under Rule 65 would be permissible).
Wherefore, the petition is hereby denied. The decision and resolution of the CA directing
the RTC to proceed with the trial of the petition for confirmation of arbitral award is
affirmed.
Sheehan, et. Al. vs. Miller et.al.
FACTS:
The plaintiffs in the herein case appealed from a decision reducing an arbitrators
award for loss of use of damages from $120,000 to $4,500. It contends that the award
should be reduced, as (1) the award for loss of use within the arbitrators authority and
(2) it is too late for the defendant insurer to claim it is not bound by the arbitration. The
parties submitted themselves to adjudication as stated in the 1998 District Court
judgment. The plaintiffs sought and were awarded damages for an increased period of
time based on the stipulation where an injured party is unable to finance repairs and a
defendant refuses to pay. The defendants argue that the arbitrators exceeded their
authority because loss of use damage generally extend only for the time reasonably
necessary to repair a damaged automobile.
ISSUE: WON the award for loss of use was within the arbitrators' authority
HELD:
Yes. A review of the arbitrators' award is quite narrow. Scott v. Commerce Ins.
Co., 62 Mass.App.Ct. 416, 420 n. 8 (2004). Even a grossly erroneous decision is
binding.... Courts inquire into an arbitration award only to determine if the arbitrator has
exceeded the scope of his authority, or decided the matter based on fraud, arbitrary
conduct, or procedural irregularity. The issue of loss of use damages was before the
arbitrators by consent of the parties, as stated in the 1998 District Court judgment and
reinforced by this court in 2004 in a memorandum and order pursuant to our rule 1:28.
Contrary to the defendants' suggestion that the arbitrators based their award on
matters not before them, the award by its own terms is limited to loss of use. The
defendants argue that the arbitrators exceeded their authority under G.L. c. 251, 12( a
)(3), because loss of use damages generally extend only for the time reasonably
necessary to repair a damaged automobileThe plaintiffs sought and were awarded

damages for an increased period of time based on the situation where an injured party
is unable to finance repairs and a defendant refuses to pay. It suffices to say that this
relief was not prohibited by statute,, nor otherwise prohibited by law. Plymouth
Carver Regional Sch. Dist., supra. The defendants' argument therefore amounts to no
more than an assertion of error of law or fact, which is insufficient.
The Appellate Division held that Liberty had not been party to the arbitration and
therefore should not have been subject to the judgment. We disagree. The stipulation of
dismissal did not remove Liberty from the case, but instead dismissed any claims in
this action not disposed of by the binding arbitration, meaning that the arbitration
proceeding was fully preserved. At a hearing in 1998, an attorney representing both
defendants agreed that the loss of use issue had been sent back to the arbitrators, and
gave no indication that Liberty no longer considered itself a party despite Timothy J.
Sheehan, Jr.'s description of his adversary as the insurance company. The resulting
judgment entered against both Liberty and Miller and noted the parties'
acknowledgment that the arbitration panel has been requested to consider an
additional claim for damage for loss of use, and Liberty neither moved to amend the
judgment nor appealed from it. Instead, Liberty brought an action in Superior Court in
2000 in its own name, seeking to enjoin the arbitration, without mentioning its present
contention that it had no part in the arbitration. We held nearly a decade ago that this
suit was an impermissible collateral attack, that Liberty expressly acknowledged the
pendency of the [plaintiffs'] loss of use claim before the arbitration panel, and that
therefore the arbitration could proceed. The time for Liberty to raise its claim that it was
not bound by the arbitration is long past.