D. Appointment of the Party Arbitrators. In his May 31, 1991, demand letter, Mr. Rand requested that Kaiser's counsel contact him at the earliest convenience "so we may choose arbitrators ...." He repeated that request on June 14, 1991. On June 21, Kaiser's outside counsel, Willis McComas, indicated that Kaiser would provide the identity of its arbitrator only after receiving the Engallas' designation. >? Why wasn't this an actionable Breach of Contract? >? Why didn't P file suit Here? Mr. Rand objected to this staggered disclosure as not authorized by the arbitration agreement. Having heard nothing from Mr. McComas by July 8, Mr. Rand went ahead and designated Attorney Peter Molligan as the Engallas' arbitrator, again repeating his request that Kaiser do likewise "so that the two arbitrators can immediately commence efforts to identify and appoint the neutral arbitrator." It was not until July 17, 47 days after service of the claim, that Mr. McComas designated Kaiser's party arbitrator, Attorney Michael Ney. >? Breach of Contract, which says 30 days! Mr. McComas admitted that he had not calendered any of the deadlines for designation of the arbitrators, claiming "[t]here is no rule that requires that." Although he had designated Mr. Ney as his party arbitrator, Mr. McComas had not actually contacted Mr. Ney beforehand to see if he was available. >? Bad Faith? Instead, on the day he designated him, Mr. McComas wrote to Mr. Ney asking if he was available. In that letter, Mr. McComas advised Mr. Ney that the plaintiff was terminally ill, and that Mr. Rand had asked for an early arbitration date, but said that he had not responded to the request. Although Mr. McComas was aware of Mr. Engalla's terminal condition from the outset, and claimed that he had "cooperated in the appointment of the party arbitrator very early in the case," it was later revealed that he had been advised by Mr. Ney in July that Mr. Ney was "unable [to] accept any further assignments to act as a party arbitrator until late November, 1991," long after the expected (and actual) date of Mr. Engalla's death. >? Bad Faith? When the fact of Mr. Ney's unavailability came to light on August 15, Mr. Rand made repeated requests that Kaiser appoint another arbitrator, but Mr. McComas refused. >? Bad Faith? Mr. Rand also requested that Kaiser stipulate to a single neutral arbitrator, but that request was similarly refused. However, in late July, Mr. McComas did make arrangements for a backup arbitrator, Tom Watrous, who would step in if Mr. Ney was not available when the parties were ready to proceed with the arbitration hearing.n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Mr. Watrous was, however, planning a three-week European vacation during October which would have made him unavailable for much of the time period in which the Engallas were seeking to complete the arbitration. >? Bad Faith? - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -