Courthouse News Service has published this article discussing the Supreme Court of Wisconsin’s decision in Loren Imhoff Homebuilder, Inc. v. Taylor, in which the court was required to take up the awkward issue of an arbitrator who allegedly fell asleep multiple times during a five day hearing. Summarizing testimony by one of the parties during proceedings to vacate the arbitrator’s award, the court observed that:
The homeowners testified that his sleeping happened repeatedly and that “[t]here was never a day . . . where he was not sleeping.” Specifically, the homeowners noted that the arbitrator had “glazed eyes, haziness, drowsiness, and sometimes [went into a state of outright] sleep.” The homeowners further testified that the arbitrator’s sleeping prejudiced their case because it often coincided with their expert witness’s testimony.
The issue on appeal was whether the homeowners had waived their right to seek vacatur by waiting until after the close of evidence to raise the sleeping issue, as opposed to doing so contemporaneously at the time(s) when the arbitrator allegedly was dozing. Disagreeing with the appellate court, which found waiver, the Supreme Court found that it was sufficient that the homeowners flagged the issue before the arbitrator issued his award.
As the Courthouse News Service article explained, the homeowners’ counsel at oral argument explained “that they’d waited until after the hearing to bring it up because ‘figuring out a way to delicately raise [the issue of sleeping] during a hearing is difficult.’”
As for whether an arbitrator sleeping on the job warrants vacating an award, the Supreme Court has sent that issue back to the appellate court. Stay awake and stay tuned.