Burgess

I. Introduction

In this case of contractual arbitration we hold that when a dispute arises over the appointment of an arbitrator, or between an arbitrator and one of the parties concerning the arbitrator’s fee, the remedy is to petition the court to resolve the dispute. Delay in seeking such relief which prevents the arbitration from going forward does not toll the five-year dismissal period for lack of reasonable diligence in bringing a claim to arbitration.

II. Background

Kaiser Foundation Hospitals provided obstetric medical services for Wendy Ann Burgess, who was bom on February 27,1981. Her parents, Ann Elizabeth Burgess Randall and Steven Rial Burgess, claim that as a result of medical negligence Wendy suffered oxygen deprivation during her birth, resulting in personal injury (including epilepsy and heart problems), the cause of which was not ascertained until 1986.

On April 24, 1986, the Burgesses served Kaiser with a demand for arbitration pursuant to the parties’ “Individual Medical and Hospital Service Agreement,” which contained an arbitration provision. The parties stipulated to arbitration on June 10, 1986.

The arbitration clause called for each party to…