Metzler Contracting Co. LLC v. Paul Stephens

MEMORANDUM

Paul and Elle Stephens (“the Stephens”) appeal from the district court’s order denying their motion to vacate an arbitration award, and confirming the award. Metzler Contracting Co. (“Metzler”) appeals from the district court’s order denying its request for attorney fees. We affirm.

The Stephens sought vacatur on the ground that the arbitrator exceeded his powers in interpreting the contract. See 9 U.S.C. § 10 (a)(4). An award may not be vacated, however, so long as the arbitrator’s interpretation of the contract was “plausible.” Lagstein v. Certain Underwriters at Lloyd’s, London, 607 F.3d 634, 643 (9th Cir.2010) (citations omitted). The issue here involved the parties intended basis of payment. The arbitrator determined that the parties had entered into a cost-plus contract and concluded that the parties, through their acts and conduct, had waived the Change Order requirement of Supplemental Condition § 7.1.3.1. See Wilart Associates v. Kapiolani Plaza, Ltd., 7 Haw.App. 354 , 766 P.2d 1207, 1210-11 (Haw.Ct.App.1988). We have held that waiver is possible even where there is a contract provision purporting to limit the parties ability to waive contract provisions. See…