E. Glenn Robinson, Attorney at Law for claimant.
Donald L. Darling, Deputy Attorney General and Ann Ewart, Assistant
Attorney General for


This claim grows out of a written contract upon a printed form
designated AIA Document
A101, Owner-Contractor Agreement, incorporating AIA Document A201,
General Conditions
of the Contract for Construction, dated March 14, 1979, and duly
executed by the claimant and
respondent, respectively. The contract provides for the construction of
a Multipurpose Physical
Education Facility at Marshall University, in Huntington, for a fixed
sum of $3,162,173.00. The
contract was approved by: the Director of the Purchasing Division; the
Commissioner of the
Department of Finance & Administration; and, finally, by the Attorney
General on April 9, 1979.
Paragraph 7.9.1 of the General Conditions, pertaining to Arbitration,

"All claims, disputes and other matters in question between the
Contractor and the arising out
of, or relating to, the Contract Documents or the breach thereof, shall
be decided by arbitration
in accordance with the Construction Industry Arbitration Rules of the
American Arbitratim
Association then obtaining unless the parties mutually agree otherwise.
* * * The award
rendered by the arbitrators shall be final, and judgment may be entered
upon it in accordance
with applicable law in any court having jurisdiction thereof."
Subsequently, a dispute arose between the parties based upon a claim by
Hughes-Bechtol that
the respondent, on the one hand, had caused substantial delay in
performance of the contract
and, on the other hand, had refused to extend the time of performance.
When amicable
resolution of a dispute failed, with reference to additional costs
incurred after August 30, 1981,
Hughes-Bechtol filed a demand for arbitration at the Cincinnati Regional
Office of the American
Arbitration Association. On October 26, 1982, a demand for arbitration
was served upon the
respondent. Arbitrators were duly appointed, and a hearing upon the
merits was held on
February 22, 1983. On February 28, 1983, an arbitration award was made
to Hughes-Bechtol
in the sum of $398,685.85 upon its claims against respondent arising
after August 30, 1981, on
the project.

The matter now is before this Court upon the "Claimant's Second Motion
for Partial Summary
Judgment" enforcing the arbitration award. The gist of the respondent's
position, in opposition to
that motion, is that the quoted arbitration provision of the contract is
void and unenforceable
because this Court has exclusive jurisdiction of claims against state
agencies such as the
respondent and, for that reason, the respondent had no authority to
agree to arbitration. The
principal authority cited for that position is the case of J. L. Simmons
Company, Inc. v. Capital
Development Board, 424 N.E.2d 821 (Ill. 1981), a very similar case in
which enforcement of an
arbitration award was denied because the Illinois Court of Claims has
exclusive jurisdiction of
the matter arbitrated. An examination of the Illinois Statute cited in
that case, delineating the
jurisdiction of its Court of Claims, Ill. Rev. Stat. 1979, Ch. 37,
439.8, and upon which the
decision turned, however, discloses that it provides:

"The court shall have exclusive jurisdiction to hear and determine the
following matters: (b)All
claims against the State founded upon any contract entered into with the
State of Illinois. * * *"

In view of that statute, that decision could not have been otherwise.
West Virginia has no
similar statute.

West Virginia does have substantial statutory and case law on the
subject of arbitration and, if
nothing else is clear, it is certain that the policy of the law of this
State favors arbitration. In
Board of Education v. W. Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d
439 (1977) our
Supreme Court of Appeals stated:

Where parties to a contract agree to arbitrate either all disputes or
particular limited disputes
arising under the contract, and where the parties bargained for the
arbitration provision, then,
arbitration is tory, and any causes of action under the contract which
upon motion for s the
proper time. By the contract terms are made arbitrable are merged, in
the absence of fraud, with
the arbitration award and the arbitration award is enforceable upon a
complaint setting forth the
contract, the arbitration provision, and the award of the arbitrators
judgment made at [4]. The
important words in the new rule are that the agreement to arbitrate must
have been 'bargained
for.' * * *"
If the agreement to arbitrate in this case was not "bargained for", in
view of its various
approvals, it would be difficult to conceive one that was. See also
Barber v. Union Carbide
Corporation, 304 S.E. 2d 353 (1983).

In addition, West Virginia Code, 55-10-1, provides:
"Persons desiring to end any controversy, whether there be a suit
pending therefor or not, may
submit the same to arbitration, and agree that such submissions may be
entered of record in any
court. Upon proof of such agreement out of court, * * * it shall be
entered in the proceedings of
such court; and thereupon a rule shall be made that the parties shall
submit to the award which
shall be made in pursuance of such at. (emphasis supplied)"

The emphasized language 'any court' plainly is broad enough to include
this Court and it is
equally plain that the legislature could have excluded this Court from
the operation of that statute
had it wished to do so.
Finally, the general law appears to be to the effect that a state or
its agencies may enter a valid
contract with a private party providing for the arbitration of disputes
that may arise under the
contract. See 5 Am. Jur. 2d "Arbitration and Award" 67 and also 81A C.
J. S. "Arbitration"
168c, page 636, where it is stated:
"The parties to a contract for state improvements may agree to select an
umpire or arbitrator to
settle disputes as to the interpretation of the contract, and the rights
of the parties thereunder,
and his decision is binding in the absence of fraud or bad faith;"
Since there is no assertion of fraud or bad faith in this case, this
Court is obliged to grant the
pending motion and allow an award of $398,685.85.

Award of $398,685.85.
Judge Lyons dissents and reserves the right to file a dissenting