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An Ohio Appellate Court held that when a general contractor forgets to incorporate the arbitration clause from the master agreement into its subcontracts, it will not be allowed to compel the arbitration of disputes with its subcontractors.
In Barto v. Ben D. Imhoff, Inc., No. 06CA0025, 2006 WL 3544659 (Ohio App.9d. Dec. 11, 2006), Maibach Ford and Imhoff entered into a general construction agreement for construction of a new car dealership. The agreement contained an arbitration agreement. Maibach Ford and Al Barto entered into a subcontractor agreement for painting the dealership. Their agreement did not contain an arbitration agreement. Maibach Ford then informed Barto that it did not need its services.
Barto filed suit against both Maibach Ford and Imhoff. Maibach Ford and Imhoff moved to compel arbitration and stay litigation. The parties attempted to mediate the dispute, but did not succeed. The case was dismissed and then filed again. Maibach Ford and Imhoff again moved to compel arbitration and stay litigation. The trial court overruled the motion to compel arbitration. Maibach Ford and Imhoff appealed.
On appeal, the Court overruled Maibach Ford and Imhoff's assignment of error. It held that if Maibach Ford and Imhoff intended for any dispute with Barto to be resolved in arbitration, they should have put an arbitration agreement in its subcontractor contract. A party that has not agreed to arbitrate cannot be compelled to do so. The judgment overruling the motion to compel arbitration was therefore affirmed.
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