from the United States District Court for the Northern
District of Texas
SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE
an appeal of the district court's confirmation of an
arbitral award over the objection that the arbitrator had
exceeded his authority. We agree with the district court that
no such defect in the arbitration exists. AFFIRMED.
AND PROCEDURAL HISTORY
Corporate Services, Incorporated ("Kemper"), an
insurance company, hired Computer Sciences Corporation
("CSC"), a software developer and
technology-services company, to update its insurance
software. The parties entered into a multi-year
software-services contract, known as the "Exceed
Agreement." It contained provisions for arbitration. The
Exceed Agreement consisted of a Master Software License and
Service Agreement ("MSLSA"), Addendum No.1
("Addendum"), two work orders, and a product order.
Before the parties executed the Exceed Agreement, CSC advised
Kemper that it planned to update CSC's existing Exceed
computer program from COBOL language to a modern Java
parties agreed that "all disputes arising out of or
relating to [the Exceed Agreement], or the breach
thereof," must be submitted to nonbinding mediation. The
MSLSA provided that if a dispute was not resolved by
mediation, the parties could submit to binding arbitration
for a final determination. Section 9.3(e) of the MSLSA
With respect to any matter brought before the arbitrator, the
arbitrator shall make a decision having regard to the
intentions of the parties, the terms of this Agreement, and
custom and usage of the insurance and data processing
industry. Such decisions shall be in writing and shall state
the findings of fact and conclusions of law upon which the
decision is based, provided that such decision may not
(i) award consequential, punitive, special, incidental or
exemplary damages or any amounts in excess of the
limitations delineated in Section 7 of this agreement . . . .
limitations referenced in the above quotation from Section 9
of the MSLSA were the following:
7.2.2.Even if [Kemper's] exclusive remedies fail of their
essential purposes, CSC shall never be liable under this
agreement to [Kemper] or others for any economic loss or
consequential damages (including lost profits or savings)
indirect, incidental, special or punitive damages arising out
of this agreement . . . .
7.2.3. In no event shall [Kemper] be entitled to an award of
punitive, exemplary or multiplied damages for any breach of
this agreement by CSC.
(original in all capitals and boldface).
in the Addendum executed by the parties and incorporated into
the MSLSA, the parties agreed that
if for reasons not caused by [Kemper], CSC fails to make the
Java version of the [Exceed] program generally available to
its licensees within [the contractually agreed upon time
period, Kemper] may declare CSC in breach of the Agreements
and will be entitled to all remedies set forth in this
Addendum (including, without limitation, all payments made by
[Kemper] pursuant to the Agreements but without any
limitations based upon ...