Eighth Circuit Enforces Arbitration Agreement in Employment Dispute
Berkley v. Dillard’s, Inc., No. 05-3523, 2006 WL 1626969
June 14, 2006
The Eighth Circuit Court of Appeals supported an agreement to arbitrate in an employment dispute where an employee refused to sign an acknowledgment form. The Court found that she accepted the agreement through her continued employment.
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Court Says Ex-NFL Player Should Arbitrate Dispute Over Career Ending Injuries
Redmon v. Society and Corp. of Lloyds, No. 3:05-CV-387-WKW, 2006 WL 1635435
June 16, 2006
In Redmon v. Society and Corp. of Lloyds, No. 3:05-CV-387-WKW, 2006 WL 1635435 (M.D. Ala. Jun 15, 2006), Redmon, a former player with the Atlanta Falcons, took out disability insurance policies with Petersen International and Certain Underwriters in the event his career ended due to injury. The policies excluded injuries to his left knee, and included a mandatory arbitration clause.
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A Person Is Not Party to an Arbitration Agreement Signed in Corporate Capacity
Wasserman v. Triad Securities Corp., No. 8:05-CV-1898-T-24TBM, 2006 WL 1644029
June 12, 2006
According to the Middle District of Florida, if a person signs an arbitration agreement exclusively in a corporate capacity, the agreement does not require the person to arbitrate in an individual capacity.
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Terminated Employee Not Bound by Arbitration Agreement When There Was No Evidence That Continued Employment Could Be Counted As Acceptance
Reheiser v. Terminix Intern. Co., Ltd. Partnership, No. 505CV263RSMD, 2006 WL 1653444
June 7, 2006
When a company conditioned continued employment on signing an arbitration agreement, an employee who was terminated for refusing to sign the agreement cannot be compelled to arbitrate his claims.
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Employee Agreed to Arbitration by Signing Form Acknowledging Receipt of Arbitration Rules
Attenborough v. Dillard’s Department Store, No. 1:06-CV-0291-TWT, 2006 WL 1663299
June 9, 2006
The District of Georgia enforced an employment arbitration agreement where an employee attended a meeting on the employer’s arbitration program and later signed a form acknowledging receipt of the arbitration rules.
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Right to Compel Arbitration Not Available to Party Who Earlier Refused to Participate
Cox v. Ocean View Hotel Corp., No. 05-00765, 2006 WL 897581
April 3, 2006
According to the District of Hawaii, if a party refuses to participate in properly initiated arbitration proceeding, the party foregoes its right to compel arbitration.
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Bankruptcy Court Sends Most Claims to Arbitration, Except for Claim That Creditor Violated Automatic Stay
In re Merrill, No. 05-22818, 2006 WL 1669758
June 16, 2006
The United States Bankruptcy Court for the District of Maine did not compel arbitration of a debtor’s claim that a creditor violated the bankruptcy automatic stay. However, the Court ordered arbitration of the debtor’s five other claims.
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Mississippi Court Enforces Unsigned Arbitration Agreement
Kuebler v. Union Planters Mortgage, Inc., No. 3:05CV125-D-A, 2006 WL 1666719
June 15, 2006
Even though the moving party never signed the arbitration agreement, the Northern District of Mississippi granted a motion to compel arbitration because the moving party’s course of conduct demonstrated assent.
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Nursing Home Patient Not Bound By Arbitration Agreement Signed By Family Member Who Lacked Authority
Mariner Healthcare, Inc. v. King, No. 4:04CV263, 2006 WL 1716863, June 19, 2006
JPMorgan Chase & Co. v. Conegie, No. 4:05CV212, 2006 WL 1666686, June 12, 2006
Mariner Healthcare, Inc. v. Green, No. 4:04CV246, 2006 WL 1626581, June 7, 2006
In three recent rulings, the Northern District of Mississippi denied a nursing home’s motion to compel arbitration of a former patient’s claims because the nursing home could not establish that the family member signing the agreement had authority to act as the patient’s agent.
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Motive Behind Arbitration Agreement Irrelevant to Its Enforceability
Murry v. Coldwell Banker Real Estate Corp., No. 4:04CV174, 2006 WL 1626596
June 7, 2006
The Northern District of Mississippi granted a motion to compel arbitration, noting that fraud is an issue for the arbitrator absent proof that the arbitration clause itself is a product of fraud.
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Arbitration Decision is Final and Bars Re-Filing Complaint in Texas Courts
Adumekwe v. Securitas USA, Inc., No. Civ.A. H-06-0659, 2006 WL 1662932
June 9, 2006
According to the District of Texas, res judicata bars the litigation of arbitrated claims and related claims that could have been arbitrated.
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Court Upholds Arbitrator’s Decision to Not Award Punitive Damages
Ashton Medical Services, Inc. v. Aetna Health Management, Inc., No. 2:05-cv-00023, 2006 WL 1674572
June 16, 2006
An arbitrator’s decision to not award punitive damages does not render the arbitration agreement unconscionable, the United States District Court for the Southern District of West Virginia held.
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State Cases
California Court of Appeal Finds Arbitration Demand Not Required and That Arbitration Was Not Waived Despite Filing of Lawsuit
Meyerman v. Burgess, No. E037902, 2006 WL 1682627
June 20, 2006
According to a California Court of Appeal, the California Code of Civil Procedure does not require an arbitration demand before a court can find that arbitration was refused, and the filing of a lawsuit is insufficient on its own to constitute a waiver of the right to arbitrate.
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California Appeallate Court Upholds Arbitration Award In Face of Multifaceted Appeal
Potter v. Yorba Park Medical Group, Inc., No. G036294, 2006 WL 1725563
June 23, 2006
The California Court of Appeal upheld an arbitration award over wide-ranging objections by the losing party.
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Decision of ADR Panel Not An Arbitration Award Where Parties Did Not Intend to Arbitrate Their Dispute
Sheppard, Mullin, Richter & Hampton v. Superior Court, No. B181857, 2006 WL 1738160
June 27, 2006
According to a California Court of Appeal, an arbitration panel’s decision affecting a settlement agreement did not constitute an arbitration award because the parties intended the decision to be “in aid of settlement” rather than a legally binding award.
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Arbitrators and Parties Need Not Disclose Their Relationship Unless "Significant" or "Substantial"
Sweidan v. Noble AMA Select IPA Medical Group, Inc. , No. G035538, 2006 WL 1554475
June 8, 2006
A party or his attorney must disclose a relationship with the arbitrator only if the relationship is “substantial” or “significant” according to the California Court of Appeal.
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Florida Appellate Court: Challenge to the Existence of a Contract with an Arbitration Provision To Be Decided by the Court, Not the Arbitrator
Rowe Enterprises LLC v. International Systems & Electronics Corp., No. 1D06-557, 2006 WL 1697633
June 22, 2006
The Florida District Court of Appeal held that the court, rather than the arbitrator, should decide a challenge to the existence of a contract containing an arbitration provision.
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Arbitration Agreement Is Broad Enough to Encompass Dispute Over Past Mortgage
American General Home Equity, Inc. v. Kestel, No. 2005-CA-000269-MR, 2006 WL 1652717
June 16, 2006
An agreement to arbitrate that invoked the arbitration rules of the National Arbitration Forum (“FORUM”) clause fairly included a dispute over a previous mortgage that lacked an arbitration clause, a Kentucky appellate court held.
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North Carolina Court Refuses to Compel Arbitration Where Claimant Was a Nonsignatory
Harco National Insurance Co. v. BDO Seidman, LLP, No. COA05-1429, 2006 WL 1677869
June 20, 2006
In two decisions issued the same day, the North Carolina Court of Appeals refused to compel arbitration where the claimant was a nonsignatory.
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Rhode Island Supreme Court Decides Parties’ Intent Based on the Agreement’s Expiration Date
Radiation Oncology Associates, Inc. v. Roger Williams Hospital, No. 2005-218-Appeal, 2006 WL 1689209
June 21, 2006
According to the Rhode Island Supreme Court, contract duration disputes are not arbitrable under a broad arbitration agreement if the contract includes an expiration date.
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Opt-Out Provision for Third-Party Beneficiary Does Not Violate Mutuality Requirement of Arbitration Agreement in Texas
In re Palm Harbor Homes, Inc., No. 04-0490, 2006 WL 1562546
June 9, 2006
The Texas Supreme Court held that an opt-out provision in an arbitration agreement did not violate the mutuality requirement because the provision only allowed a third-party beneficiary to opt out of arbitration.
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Arbitration Award Must Include Formula for Damage Calculation or Reasoning Behind Damage Amount for Court to Find “Evident Miscalculation”
Shahi v. Ascend Financial Services, Inc., 898 A.2d 116
Damages awarded by an arbitration panel will not be modified unless the award provides a formula for calculating the damages or reasoning behind the damage amount that shows evident miscalculation, the Supreme Court of Vermont ruled.
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Wisconsin Supreme Court Holds There is a Presumption of Arbitrator Impartiality
Borst v. Allstate Insurance Co., No. 2004AP2004, 2006 WL 1596123, 2006 WI 70
June 13, 2006
The Wisconsin Supreme Court has held that there is a presumption that arbitrators are to be neutral, but the presumption can be overcome by an express agreement of the parties. Furthermore, evident partiality is not overcome simply because the arbitrator discloses the relationship then declares himself impartial.
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ADR Legislation & Regulation
California AB 1584 (Introduced 02/22/2005)
Subjects: State Employee Mediation
This bill, entitled “The Excluded Employee Mediation Act,” was amended on June 22, 2006, to provide mediation as a the fifth step to the excluded employee grievance procedure. Mediation is available at the request of the excluded employee. The bill would require a standing panel of mediators or would allow the participants to choose mediators from the Conciliation Service within the Department of Industrial Relations. Mediation costs would be shared by the employee organization and the employer.
Delaware HB430 (Introduced 05/11/2006) Engrossed 06/28/2006 (passed House and Senate)
Subjects: Arbitration, Debt Management Services
Would enact the “Delaware Uniform Debt-Management Services Act.” An agreement between a consumer and debt manager may not: (1) provide for application of the law of any jurisdiction other than the United States and Delaware; (2) except as permitted by Section 2 of the Federal Arbitration Act, 9 U.S.C. Section 2, as amended, or the Delaware Uniform Arbitration Act, Chapter 57 of Title 10 of the Delaware Code, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than this chapter; (3) contain a provision that restricts the individual’s remedies under this chapter or law other than this chapter; or (4) contain a provision that limits or releases the liability of or indemnifies any person for not performing the agreement or for violating this chapter. A provision in an agreement which violates this chapter would be void.
Delaware HB 531 (Introduced 06/27/2006)
Subjects: Manufactured Homes, Mediation
Entitled the “Delaware Manufactured Housing Alternative Dispute Resolution (ADR) Act,” this bill proposes amending Title 25 of the Delaware Code to include a new section on resolving disputes between manufactured home community owners and tenants. According to the bill, if the Governor's Advisory Council on Manufactured Housing (Advisory Council) determines that a dispute between a community owner and a tenant or group of tenants should be mediated, the Advisory Council will refer the dispute to mandatory, nonbinding mediation. Neutrals will be selected, placed on a roster, and must serve without compensation.
Louisiana HB 265 (Introduced 03/13/2006) Signed by Governor 06/22/2006
Subjects: Mediation, Child Custody
AN ACT To amend and reenact R.S. 9:334, relative to child custody; to provide for the qualifications of mediators in child custody proceedings; and to provide for related matters.
Louisiana HB 266 (Introduced 03/13/2006) Signed by Governor 06/22/06
Subjects: Mediation, Child Custody
An Act to amend and reenact Children's Code Article 439(B) and to enact Children's Code Article 439(F)(7) and (H) through (K), relative to qualifications of a mediator for juvenile court disputes; to provide for mandatory qualifications and continuing education; to provide for the establishment and maintenance of a register of qualified mediators; to provide for the assessment of reasonable fees; to provide for definitions; and to provide for related matters.
Massachusetts SB 2607 (Introduced 06/29/2006)
Subjects: Public Works, Arbitration
This bill would establish a mandatory alternative dispute resolution program for contractually-based claims with a value of less than $10,000,000 in connection with the construction of public works and capital facilities for the commonwealth, and all its agencies, authorities and political subdivisions, excluding cities and towns. For claims with a value of at least $10,000,000, parties shall agree to participate in either the alternative dispute resolution program established in this section or mediation. The bill also allows for binding arbitration as a means of settling disputes.
New Jersey SB 2069 (Introduced 06/19/2006)
Subjects: Child Welfare, Mediation
An act establishing the Department of Children and Families as a principal department in the Executive Branch to replace the Division of Youth and Family Services in the Department of Human Services. Several changes were made to former mediation policies in order to protect the confidentiality of statements made during mediation, while still acknowledging certain privileges to reveal information related to the child’s safety and the safety of others.
Pennsylvania SB 1231 (Introduced 06/22/2006)
Subjects: Medical Liability System, Arbitration
The bill is called the Administrative Medical Liability System Demonstration Act and was introduced to help reduce the time necessary to make payments to injured patients, reduce legal fees, and promote patient safety. Participating health care providers must offer early mediation once disclosure of an avoidable error is made, and they are also required to appoint an independent administrator to administer an arbitration program related to claims brought according to the act.
Pennsylvania SB 1104 (Introduced 02/14/2006)
Subjects: Underground lines, Dispute Resolution
An Act created to protect the public by preventing excavation or demolition work from damaging underground lines used in providing electricity, communication, gas, oil delivery, oil product delivery, sewage, water or other services. A voluntary dispute resolution provision grants One Call System the authority to establish and administer a dispute resolution process which may be used by excavators, facility owners, designers, project owners, and other involved persons.
Regulation
Florida Reg 30701 (FAC 69J-2.002) (Proposed 02/24/2006) Rule adopted 06/06/2006
Subjects: Mediation, Residential insurance
Establishes a mediation program for the resolution of disputed commercial residential insurance claims resulting from the 2004 and 2005 hurricanes and tropical storms that affected the state. EFFECTIVE DATE: 06/26/2006
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