
    Paula E. Franzese v. John F. Dacey et al.
    Superior Court, Suffolk, SS
    No. CA 934189G
    Memorandum Dated March 16, 1995
   Doerfer, J.

The plaintiff, Paula E. Franzese, has moved to confirm an arbitration award and has requested the court to enter a judgment for costs and interest. The defendants oppose the motion as to the issue of costs and interest. For the reasons which follow, the plaintiffs motion to confirm the arbitrator’s award and to enter judgment with costs and interest is allowed.

DISCUSSION

In Reilly v. Metropolitan Property & Liability Insurance Company, 412 Mass. 1006 (1992), the Supreme Judicial Court held that, “in the absence of an explicit agreement to the contrary, pre-award damages claims, including interest” should not be allowed when a case is submitted to arbitration. Id. at 1007, quoting Sansone v. Metropolitan Property & Liab. Ins. Co., 30 Mass.App.Ct. 660, 662-63 (1991) (emphasis added). In the present case, the parties explicitly included a provision in the Agreement to Arbitrate (“the Agreement”) allowing the plaintiff to recover costs and interest. The Agreement provides that:

The plaintiff may apply to Court for confirmation of the award and entry of final judgment with interest and costs provided by law in the pending action in Superior Court No. SUCV93-01489.

Thus, because the parties explicitly agreed that the plaintiff could recover costs and interest, the Agreement, rather than the general rules of the Arbitration Program, is controlling.

The defendants’ contention that the arbitration award is the plaintiffs final and complete award is erroneous. The Agreement states in relevant part that:

It is agreed that this form, when executed, will not be communicated or disclosed to the arbitration panel by either party or by the administrator.

Thus, the arbitration panel had no knowledge that they were required to include costs and interest in their calculation of the award. Accordingly, the plaintiff is entitled to confirmation of the arbitrator’s award, costs, and interest calculated from the date of the filing of the complaint.

ORDER

For the foregoing reasons, the plaintiff Paula E. Franzese’s Motion to Confirm Arbitrator’s Award and to Enter Judgment with Costs and Interest is ALLOWED. The plaintiff is awarded damages, costs, and interest as set forth in her prayer for relief.  