Justice McDonald is right. When parties agree to arbitrate with a "high-low" award (with no disclosure to the arbitrator), and the arbitrator awards a sum above the "high" range, the losing party doesn't need to move to "correct" the award within 100 days because there's nothing to "correct". You simply pay the high amount.
The arbitrator didn't do anything wrong. S/he deliberately wasn't informed that the parties had capped defendant's exposure to the "high" amount (in return for agreeing to a minimum "low"). But the parties have agreed that the "high" is the high. So the proper remedy is simply to pay this amount. At which point, pursuant to the agreement of the parties, the award has been satisfied. Nothing more, nothing less.
The trial court (Judge Prager) gets it wrong. The Court of Appeal does not.
I might add that I'd be interested to know whether counsel for the "winning" party below -- San Diego attorneys James McCabe, Robert Hamparyan and Jon R. Williams -- were also counsel for that same party below. Because were I to have entered into an express high-low agreement with counsel for the other side, and then after the award was made, that attorney were to refuse to follow this agreement and accept payment of the stipulated high, I'd be pissed. As well as exceptionally hesitant to trust the word of those attorneys in the future.
Even after I beat that attorney in the Court of Appeal.
As for the merits, know that you can simply pay an arbitration award even if it's outside of the high-low range. Though, to avoid complexity, maybe just do it quickly. No need to give the other side an opportunity to try to get more by falling outside the 100-day "correction" window and require you to go to the Court of Appeal. Even if you're right.
