CONSECO FINANCE SERVICING CORP. (F/K/A GREEN TREE FINANCIAL SERVICING CORP. v. WILLIAM WILDER; CATHY WILDER; AND SOUTHERN LIVING HOUSING, INC.
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RENDERED:
MAY 18, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000276-MR
CONSECO FINANCE SERVICING
CORP. (F/K/A GREEN TREE
FINANCIAL SERVICING CORP.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 99-CI-00250
v.
WILLIAM WILDER; CATHY WILDER; AND
SOUTHERN LIVING HOUSING, INC.
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
Conseco Finance Servicing Corporation, appeals
from an order of the Bell Circuit Court denying its motion to
compel arbitration in an action filed against it by William and
Cathy Wilder.
For the reasons discussed below, we reverse and
remand.
In May 1995, the Wilders agreed to purchase a mobile
home from Southern Living Housing, Inc., a North Carolina
corporation with offices in Kentucky.
The home had been
manufactured by Gold Medal Homes, Inc., also of North Carolina.1
The Wilders made a down payment of $15,000.00 toward the purchase
price of approximately $60,000.00 and agreed to pay the balance
in monthly installments pursuant to a sales contract and security
agreement (the contract).
As part of the financing arrangement,
Southern Living assigned the contract to Green Tree Financial
Servicing Corporation, Conseco’s predecessor.
Conseco (as
apparently was Green Tree) is a Delaware corporation with its
principal place of business in Minnesota.
According to the
Wilders, the mobile home was marred from the time of its delivery
in July 1995 by both manufacturing and installation defects.
The
Wilders assert that they complained repeatedly to all three
companies involved in the sale, but after several months and the
failure of their complaints to elicit the repairs they wanted,
they ceased making payments.
Conseco brought suit under the
contract in March 1997 and soon thereafter repossessed the mobile
home.
The Wilders instituted the present action in June 1999.
Seeking to have the contract rescinded as well as other relief,
they alleged that the three companies breached warranties and
violated the Kentucky Consumer Protection Act (KRS Chapter 367).
Conseco responded in relevant part by moving to compel
arbitration pursuant to an arbitration clause in the contract.
By order entered January 31, 2000, the trial court found the
arbitration clause to be unconscionable and denied Conseco’s
1
Gold Medal is not a party to the arbitration agreement and by this Court’s order has been
dismissed as an appellee. Southern Living did not join in the petition to compel arbitration. As a
nominal party to the matter before us, Southern Living will not figure in our discussion.
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motion.
It is from that ruling that Conseco has appealed.
The
company contends that the trial court mischaracterized the
arbitration clause and in so doing interfered with the company’s
rights under both the Federal Arbitration Act (FAA) (9 U.S.C. § 1
et seq.) and Kentucky’s version of the Uniform Arbitration Act
(UAA) (KRS 417.045-240).
The contract at issue is on a three-page, preprinted,
fill-in-the-blank form.
In addition to a list of the parties
(buyer: the Wilders, seller: Southern Living Housing, Inc., and
assignee: Green Tree Financial Servicing Corporation) and an
indication that the Wilders are giving a security interest in the
mobile home, the first page includes details of the financing
arrangements.
The other terms, beginning with the make, model,
and serial number of the home, appear from the bottom of page one
to the middle of page three.
These terms specify the Wilders’
obligations to make timely payments, to maintain the home, and to
keep the home insured.
They include the seller’s/assignee’s
right to repossess the home should the buyer default.
include the arbitration provision at issue.
And they
The Wilders’
initials appear at the bottom of page two, and their signatures
at the end of their portion of the form2 in the middle of page
three.
Immediately above their signatures appears a warning to
buyers in large, bold type to read the agreement before signing
it.
The Wilders do not allege that they were denied an
opportunity to do so.
2
The bottom half of page three contains Southern Living’s assignment of the contract to
Green Tree.
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The arbitration clause provides in its entirety as
follows:
All disputes, claims or controversies arising
from or relating to this Contract or the
parties thereto shall be resolved by binding
arbitration by one arbitrator selected by you
[seller/assignee] with my [buyers’] consent.
This agreement is made pursuant to a
transaction in interstate commerce and shall
be governed by the Federal Arbitration Act at
9 U.S.C. Section 1. Judgment upon the award
rendered may be entered in any court having
jurisdiction. The parties agree and
understand that they choose arbitration
instead of litigation to resolve disputes.
The parties understand that they have a right
to litigate disputes in court, but that they
prefer to resolve their disputes through
arbitration, except as provided herein. THE
PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY
RIGHT THEY HAVE TO A JURY TRIAL EITHER
PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR
PURSUANT TO A COURT ACTION BY YOU (AS
PROVIDED HEREIN). The parties agree and
understand that all disputes arising under
case law, statutory law and all other laws
including, but not limited to all contract,
tort and property disputes, will be subject
to binding arbitration in accord with this
Contract. The parties agree that the
arbitrator shall have all powers provided by
law, the Contract and the agreement of the
parties. These powers shall include all
legal and equitable remedies including, but
not limited to, money damages, declaratory
relief and injunctive relief. Notwithstanding
anything hereunto the contrary, you retain an
option to use judicial (filing a lawsuit) or
non-judicial relief to enforce a security
agreement relating to the Manufactured Home
secured in a transaction underlying this
arbitration agreement, to enforce the
monetary obligation secured by the
Manufactured Home or to foreclose on the
Manufactured Home. The institution and
maintenance of a lawsuit to foreclose upon
any collateral, to obtain a monetary judgment
or to enforce the security agreement shall
not constitute a waiver of the right of any
party to compel arbitration regarding any
other dispute or remedy subject to
arbitration in this Contract, including the
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filing of a counterclaim in a suit brought by
you pursuant to this provision.
Conseco contends that this provision entitles it to
demand arbitration of the Wilders’ claims.
In support of this
contention, Conseco notes that both the United States Congress
and the Kentucky General Assembly have enacted statutes to govern
arbitration disputes: the Federal Arbitration Act (FAA), codified
at 9 U.S.C. § 1 et seq., and the Uniform Arbitration Act (UAA),
codified at KRS 417.045-240.
Both acts have been held to favor
arbitration agreements, at least to the extent of abolishing what
once was a widespread policy against them.3
And both acts are
meant to ensure that arbitration agreements are enforced
according to the standards applied to other contracts.4
To that
end, both acts declare that qualifying agreements5 are “valid,
enforceable and irrevocable, save upon such grounds as exist at
3
Southland Corporation v. Keating, 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984);
Kodak Mining Company v. Carrs Fork Corporation, Ky., 669 S.W.2d 917 (1984).
4
Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L. Ed. 2d 902, 116 S. Ct. 1652
(1996); Volt Information Sciences, Inc., v. Board of Trustees of Leland Stanford Junior
University, 489 U.S. 468, 103 L. Ed. 2d 488, 109 S. Ct. 1248 (1989); Valley Construction
Company, Inc. v. Perry Host Management Company, Inc., Ky. App., 796 S.W.2d 365 (1990).
5
The federal act applies to
[a] written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction, or refusal, . . .
9 U.S.C. § 2.
Kentucky’s applies to
[a] written agreement to submit any existing controversy to arbitration or a
provision in [a] written contract to submit to arbitration any controversy thereafter
arising between the parties . . . .
KRS 417.050.
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law for the revocation of any contract.”
U.S.C. § 2.
KRS 417.050.
Cf. 9
Both acts also provide for procedures whereby
disputes over the existence or enforceability of an arbitration
agreement may be addressed.
KRS 417.060 provides in pertinent
part that
(1) On application of a party showing an
agreement described in KRS 417.050, and the
opposing party’s refusal to arbitrate, the
court shall order the parties to proceed with
arbitration. If the opposing party denies
the existence of the agreement to arbitrate,
the court shall proceed summarily to the
determination of the issue so raised. The
court shall order arbitration if found for
the moving party; otherwise, the application
shall be denied.
Finally, because an ordinary appeal at the close of
litigation will not often provide an adequate remedy for the
wrongful denial of a right to arbitrate, KRS 417.220 provides in
pertinent part that
(1) An appeal may be taken from:
(a) An order denying an application to
compel arbitration made under KRS
417.060[.]6
Our jurisdiction to consider an appeal from what otherwise would
be an unappealable interlocutory order stems from this last
provision.7
It may also be well to note that our review of a trial
court’s ruling in a KRS 417.060 proceeding is according to usual
6
Cf. 9 U.S.C. § 16.
7
The trial court’s order does not resolve the litigation and was not declared final and
appealable pursuant to CR 54.02. Cf. Bridgestone/Firestone v. McQueen, Ky. App., 3 S.W.3d
366 (1999) (dismissing appeal from a similar order where the contract at issue did not come
within the terms of KRS 417.050).
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appellate standards.
That is, we defer to the trial court’s
factual findings, upsetting them only if clearly erroneous or if
unsupported by substantial evidence, but we review without
deference the trial court’s identification and application of
legal principles.
Apparently the trial court made no factual
findings in this case, but based its ruling solely on the
application of certain principles of contract law to the
arbitration clause quoted above.
Our review, accordingly, is de
novo.
The parties do not dispute that the Wilders’ contract
with Conseco comes within the general provisions of both the FAA
and the UAA.
It is a written contract incorporating a written
predispute arbitration agreement, and it “involves” interstate
commerce.8
Under either act, therefore, the clause is to be
enforced and arbitration compelled unless the agreement to
arbitrate did not encompass the Wilders’ claims or unless it may
be avoided “upon such grounds as exist at law or in equity for
the revocation of any contract.”9
(Emphasis in original.)
As set out above, the Wilders’ arbitration agreement
with Conseco applies to “[a]ll disputes, claims or controversies
arising from or relating to this Contract or the parties thereto
. . . .”
The Wilders’ claims against Conseco are all based on
8
Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 273-74, 130 L. Ed. 2d 753, 115 S.
Ct. 834, 839 (1995) (the meaning of “involving” in the FAA is broad, “the functional equivalent
of ‘affecting.’”).
9
Doctor’s Associates, Inc. v. Casarotto, supra, 517 U.S. at 686, 134 L. Ed. 2d at [], 116 S.
Ct. at 1656.
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Conseco’s alleged breach of duties imposed by the contract itself
or by statutes--Kentucky’s Consumer Protection Act, in
particular--that are brought into play by virtue of the contract.
The Wilders’ claims, therefore, “relate to” the contract and thus
are within the scope of the arbitration agreement.
Against this conclusion, the Wilders suggest, and the
trial court apparently agreed, that the Consumer Protection Act
(CPA) creates an overriding exception to the arbitration act.
We
are not persuaded, however, that the Wilders have substantiated
this suggestion.
To be sure, it is within the authority of the
General Assembly to override in subsequent legislation the
mandate of the UAA.
As the Supreme Court has noted, however, in
discussing the like power of Congress to override the FAA,
The burden is on the party opposing
arbitration . . . to show that Congress
intended to preclude a waiver of judicial
remedies for the statutory rights at issue. .
. . If Congress did intend to limit or
prohibit waiver of a judicial forum for a
particular claim, such an intent “will be
deducible from [the statute’s] text or
legislative history,” . . . or from an
inherent conflict between arbitration and the
statute’s underlying purposes.10
The Wilders have not met this burden.
They have
referred us to no express provision of the CPA limiting the
effect of the Arbitration Act, and they have advanced no reason
to conclude that arbitration is inherently incompatible with the
CPA’s purposes.
Even if the CPA did create an exception to
10
Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 227, 96 L. Ed. 2d 185,
107 S. Ct. 2332, 2337-38 (1987) (citations omitted). See Equal Employment Opportunity
Commission v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) (applying these rules
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(1) (1998)).
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Kentucky’s Arbitration Act, moreover, that exception would have
no bearing on Conseco’s federally established rights, for when
the FAA applies as we believe it does here,11 it supersedes
incompatible state laws.12
We conclude therefore that the
Wilders’ claims come within the scope of their arbitration
agreement and that arbitration is to be compelled unless, as the
Wilders next assert, the agreement is not to be enforced because
it is unconscionable.
As noted above, under the arbitration acts a dispute
within the scope of an arbitration agreement is subject thereto
unless the agreement may be avoided “upon such grounds as exist
at law or in equity for the revocation of any contract.”13
The
Wilders contend, and the trial court again agreed, that the
arbitration clause at issue here is not to be enforced because it
is unconscionable.
The trial court’s order indicates its concern
that only an abuse of Conseco’s superior bargaining position
could have resulted in the Wilders relinquishing their
constitutional right to present subsequent disputes to a jury.
Although we respect the trial court’s concern, we are not
persuaded that the arbitration clause has been shown to be
unconscionable.
11
Not only does the contract here involve interstate commerce and thus come directly
within the terms of the FAA, but by its own terms the arbitration agreement “shall be governed
by the Federal Arbitration Act at 9 U.S.C. Section 1.” In Volt Information Sciences, Inc., v.
Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 103 L. Ed. 2d 488, 109 S.
Ct. 1248 (1989), the Supreme Court held that choice-of-law provisions such as this one are
generally to be upheld.
12
Doctor’s Associates, Inc. v. Casarotto, supra; Southland Corporation v. Keating, supra.
13
9 U.S.C. § 2; cf. KRS 417.050.
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A fundamental rule of contract law holds that, absent
fraud in the inducement, a written agreement duly executed by the
party to be held, who had an opportunity to read it, will be
enforced according to its terms.14
The doctrine of
unconscionability has developed as a narrow exception to this
fundamental rule.
The doctrine
is used by the courts to police the excesses
of certain parties who abuse their right to
contract freely. It is directed against onesided, oppressive and unfairly surprising
contracts, and not against the consequences
per se of uneven bargaining power or even a
simple old-fashioned bad bargain.15
An unconscionable contract has been characterized as
“one which no man in his senses, not under delusion, would make,
on the one hand, and which no fair and honest man would accept,
on the other.”16
Unconscionability determinations being
inherently fact-sensitive, courts must address such claims on a
case-by-case basis.17
As the Wilders point out, several courts in sister
states have found arbitration agreements similar to the one
before us unconscionable primarily on the asserted ground that
the right to insist upon arbitration is unfairly one-sided.
14
In
Cline v. Allis-Chalmers Corporation, Ky. App., 690 S.W.2d 764 (1985).
15
Louisville Bear Safety Service, Inc., v. South Central Bell Telephone Company, Ky.
App., 571 S.W.2d 438, 440 (1978) (quoting Wille v. Southwestern Bell Telephone Co., 219 Kan.
755, 549 P.2d 903 (1976)).
16
Id. at 439 (quoting Black’s Law Dictionary, 1694 (4th ed. 1976)).
17
Forsythe v. BancBoston Mortgage Corporation, 135 F.3d 1069 (6th Cir. 1997).
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Ramirez v. Circuit City Stores, Inc.,18 for example, the
California Court of Appeals refused to enforce an arbitration
clause in what the court regarded as an adhesive employment
contract because the clause required arbitration only of disputes
initiated by the employee.
“It is by now well-settled,” the
court stated,
that an agreement that requires the weaker
party to arbitrate any claims he or she may
have, but permits the stronger party to seek
redress through the courts, is presumptively
unconscionable.19
Citing these cases and characterizing their contract
with Conseco as an adhesive consumer contract,20 the Wilders
argue that Conseco’s ability under the arbitration clause to seek
judicial redress of its likeliest claims while reserving the
right to arbitrate any claim by the Wilders renders the clause
oppressively one-sided and unconscionable.
18
90 Cal. Rptr. 2d 916 (Cal. App. 1999), rev. dismissed, 101 Cal. Rptr. 2d 199 (Cal.
2000).
19
Id. at 920 (citations omitted). See also Iwen v. U.S. West Direct, 977 P.2d 989 (Mont.
1999); Arnold v. United Companies Lending Corp., 511 S.E.2d 854 (W.Va. 1998); Williams v.
Aetna Finance Company, 700 N.E.2d 859 (Ohio 1998); Patterson v. ITT Consumer Fin. Corp.,
18 Cal. Rptr. 2d 563 (Cal. App. 1993).
20
A contract of adhesion is a standardized contract, which, imposed and drafted by the
party of superior bargaining strength, relegates to the subscribing party only the opportunity to
adhere to the contract or reject it. Patterson v. ITT Consumer Financial Corporation, 18 Cal.
Rptr. 2d 563, 565 (1993) (citation and internal quotation marks omitted). Adhesion contracts are
not per se improper. On the contrary, they have been credited with significantly reducing
transaction costs in many situations. See Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.
1997). Like all tools employed by humans, however, adhesion contracts are subject to abuse.
Oppressive terms ancillary to the main bargain have been concealed in fine print and couched in
vague or obscure language. In consumer transactions in particular, courts have been willing to
scrutinize such contracts and have refused to enforce egregiously abusive ones. Jones v.
Bituminous Casualty Corporation, Ky., 821 S.W.2d 798 (1991).
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Numerous other courts, on the other hand, have
addressed the same issue and held that arbitration clauses
identical or very similar to the Wilders’ arbitration clause were
enforceable.
In Harris v. Green Tree Financial Corporation,21
for example, the court discussed the distinction recognized in
many jurisdictions between procedural and substantive
unconscionability22 and held that Green Tree’s arbitration clause
did not fail either standard.
The fact that the clause appeared
single-spaced on the back of a preprinted form did not render it
procedurally unconscionable.
And the “fact that Green Tree
retain[ed] the option to litigate some issues in court, while the
Harrises must arbitrate all claims” did not render it
substantively unconscionable.23
Even if the Wilders’ contract is properly characterized
as an adhesive one,24 we agree with these latter cases that the
21
183 F.3d 173 (3rd Cir. 1999) (collecting cases).
22
Procedural, or “unfair surprise,” unconscionability “pertains to the process by which an
agreement is reached and the form of an agreement, including the use therein of fine print and
convoluted or unclear language. . . . [It] involves, for example, ‘material, risk-shifting’
contractual terms which are not typically expected by the party who is being asked to ‘assent’ to
them and often appear [] in the boilerplate of a printed form.” 183 F.3d at 181 (citations and
internal quotation marks omitted). The notion of procedural unconscionability thus includes
many of the concerns raised by contracts of adhesion. Substantive unconscionability “refers to
contractual terms that are unreasonably or grossly favorable to one side and to which the
disfavored party does not assent.” Id.
23
Id. at 183. See also Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000); Green Tree
Agency, Inc. v. White, 719 So.2d 1179 (Ala. 1998).
24
We note, however, that the Wilders have not alleged that they attempted to bargain for a
different or for no arbitration clause; nor have they alleged that the principal benefit they sought
from this bargain--credit to purchase a mobile home--was not reasonably available to them from
other sources.
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inclusion of the arbitration clause was not abusive or unfair.
The clause was not concealed or disguised within the form; its
provisions are clearly stated such that purchasers of ordinary
experience and education are likely to be able to understand it,
at least in its general import; and its effect is not such as to
alter the principal bargain in an extreme or surprising way.
The
Wilders do not deny, moreover, that they had an opportunity to
read it.
The manner of making this portion of the contract,
therefore, does not provide any ground for not enforcing it.
Nor does the substance of the clause provide such a
ground.
We note initially that there is no inherent reason to
require that the parties have equal arbitration rights.
The
principal consideration sought by the Wilders--financing and the
mobile home--is sufficient to support their ancillary agreement
to arbitrate disputes and to except certain claims by Conseco
from the arbitration clause.
unreasonable.
The exceptions, moreover, are not
Arbitration is meant to provide for expedited
resolution of disputes, but the claims the agreement permits
Conseco to litigate--basically claims asserting its security
interest--may be litigated expeditiously.
Such claims have come
to be heavily regulated by statute,25 allowing for streamlined
procedures and effective protections for both sides.
It does not
strike us as unreasonable, much less oppressive, to forego
arbitration of such claims.
Nor have the Wilders substantiated their suggestion
that the obligation to arbitrate is unfair because arbitration is
25
See for example KRS 355.9 parts five and six.
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prejudicial to their claims.
Indeed, the United States Supreme
Court has recently rejected a ruling by the Eleventh Circuit
Court of Appeals that this very Conseco/Green Tree arbitration
clause was unenforceable because it posed an undue risk that the
consumer would encounter prohibitive arbitration costs and thus
be denied a meaningful opportunity to vindicate her substantive
rights.26
In Green Tree Financial Corp.-Alabama v. Randolph, the
Court ruled that any presumption to the effect that arbitration
would be unduly burdensome is incompatible with the FAA.
Rather,
a party resisting arbitration on this ground bears the initial
burden of showing that there is a particular likelihood of
prohibitive costs, just as a party resisting arbitration on the
ground that the claim at issue is unsuitable for arbitration must
show that Congress intended to preclude arbitration of that
particular claim.
The Court held that Randolph, the consumer,
who had shown no more than that the arbitration clause was silent
with respect to costs and other obstacles, had not met that
burden.
The Wilders’ contention that their arbitration clause
is unfairly one-sided rests similarly on a presumption that
arbitration will not afford them an adequate opportunity to
vindicate their substantive claims.
Under both the FAA and
Kentucky’s UAA, such a presumption is not a proper basis for
refusing enforcement of an arbitration clause.
If arbitration
will afford the Wilders essentially the same opportunity to
26
Green Tree Financial Corp.-Alabama v. Randolph, ___U.S.___, 148 L. Ed. 2d 373, 121
S. Ct. 513 (2000).
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present their warranty, CPA, and other claims as would
litigation, there is no reason to believe that the agreement
limiting them to arbitration is unfair.
Should it transpire,
however, that the unspecified details of Conseco’s arbitration
procedure prevent or unfairly hinder the Wilders from
meaningfully presenting their case, the arbitration clause
consigning them to that procedure would appear in a different
light.
In that event, our ruling today would not preclude the
Wilders from renewing their objection to the arbitration clause
in circuit court on the ground that the clause had proved
unconscionable in practice.27
On the record before us, however,
there is no basis for such a conclusion.
Finally, the Wilders allege as an alternative ground
for affirming the trial court’s order that Conseco waived its
rights under the arbitration clause by pursuing its 1997
repossession action in court and by not moving to compel
arbitration of the Wilders’ current complaint until some three
months after it had filed its initial answer.
We are not
persuaded that either circumstance constitutes Conseco’s waiver.
As the Wilders correctly note, waiver is among those
grounds on the basis of which a court may refuse to enforce an
arbitration agreement.28
Waiver is commonly defined as
a voluntary and intentional surrender or
relinquishment of a known right, or an
election to forego an advantage which the
27
See, Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir. 2000).
28
St. Mary’s Medical Center of Evansville, Inc., v. Disco Aluminum Products Company,
Inc., 969 F.2d 585 (7th Cir. 1992) (citations omitted).
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party at his option might have demanded or
insisted upon.29
A waiver may be either express or implied, although waiver will
not be inferred lightly.30
Because Conseco did not expressly
waive its right to arbitrate, the issue here is whether the trial
court could have inferred waiver from Conseco’s actions.
Unlike
estoppel or laches, waiver may be found in the absence of
prejudice to the party asserting it.31
For this reason, among
others, some of the courts addressing claims that an arbitration
right has been waived have not required that the party asserting
the claim prove that it would be prejudiced were arbitration to
be ordered.32
The Seventh Circuit, indeed, in finding the more
strictly traditional meaning of waiver applicable in these cases,
has held that “an election to proceed before a nonarbitral
tribunal for the resolution of a contractual dispute is a
presumptive waiver of the right to arbitrate.”33
Other courts have treated the question of “waiver” in
this context as involving an amalgam of waiver, estoppel, and
29
Greathouse v. Shreve, Ky., 891 S.W.2d 387, 390 (1995) (quoting Barker v. Stearns Coal
& Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)).
30
Valley Construction Company, Inc. v. Perry Host Management Company, Inc., supra.
31
Greathouse v. Shreve, supra.
32
St. Mary’s Medical Center of Evansville, Inc., v. Disco Aluminum Products Company,
Inc., supra; Worldsource Coil Coating, Inc. v. McGraw Construction Company, Inc., 946 F.2d
473 (6th Cir. 1991); National Foundation for Cancer Research v. A. G. Edwards & Sons, Inc., 821
F.2d 772 (D.C. Cir. 1987).
33
Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir.
1995).
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laches principles and have required a showing of prejudice.34
These courts have inferred the waiver of arbitration rights where
a belated assertion of such rights prejudiced the opposition,
either by imposing undue delay and expense or by conferring an
unfair tactical advantage such as pretrial discovery not
available in arbitration.
We need not choose among these variations on the waiver
standard here, for, as measured by any of them, Conseco has not
waived its right to demand arbitration.
Conseco’s prosecution of
its repossession action in court was pursuant to what we have
found to be a valid provision of the arbitration agreement.
The
mere fact of the prosecution, therefore, cannot be construed as a
waiver of that agreement.
There is no indication, furthermore,
that its litigation of that matter was for the purpose of gaining
or had the effect of conferring any tactical advantage with
respect to the Wilders’ subsequent complaint.
Nor, in these circumstances, is Conseco’s three-month
delay in bringing its motion to compel so inconsistent with an
assertion of its arbitration rights as to raise a presumption of
waiver.
The delay itself was not unduly long, and during those
three months there was little activity in the case.
No pleadings
were filed except Gold Medal’s answer to the complaint, no
hearings conducted, no discovery undertaken.
34
The Wilders have
S & R Company of Kingston v. Latona Trucking, Inc., 159 F.3d 80 (2nd Cir. 1998); S &
H Contractors, Inc. v. A. J. Taft Coal Company, Inc., 906 F.2d 1507 (11th Cir. 1990); Fraser v.
Merrill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250 (4th Cir. 1987); Miller Brewing Co., v.
Fort Worth Distrib. Co., Inc., 781 F.2d 494 (5th Cir. 1986).
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failed, furthermore, to show that they will have been prejudiced
in any way if their agreement to arbitrate is now enforced.
For these reasons and those discussed above, we believe
the trial court erred by denying Conseco’s motion to compel
arbitration.
Accordingly, we reverse the January 31, 2000, order
of the Bell Circuit Court and remand for new proceedings
consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Linda J. West
Christopher M. Hill & Assoc.
Frankfort, Kentucky
R. Gregory Lathram
Law Offices of R. Gregory
Lathram, P.S.C.
London, Kentucky
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