Opinion
No. CV 04 0568982
January 31, 2005
The issue presented in the defendant's Motion to Dismiss or for Partial Stay of Proceedings and to Compel Arbitration is whether the language in the arbitration clause in this case providing that "[a]ny claim or controversy arising out of or relating to this Ageement . . . shall be resolved by arbitration" is broad enough to include plaintiff's "tort claims."
In count one of the complaint, the plaintiff in this case claims that the defendants have breached an employment agreement which he initially had with a company known as Renaissance Worldwide. He worked as a salary consultant under this agreement. Renaissance Worldwide was acquired by Aquent Inc. and Aquent, LLC., which also acquired the plaintiff's employment contract.
The plaintiff alleges that although he completed all of the terms and conditions of his employment contract with the defendants, the defendants breached the contract by failing to pay the salary and bonuses specified in the contract. The plaintiff also alleges that because he did not receive the promised salary and bonuses, he severed his relationship with the defendants, and entered into an employment contract with Golden Compass, LLC, a company engaged in the business by supplying consultants to businesses.
In Count two the plaintiff alleges that the defendants violated the implied covenant of good faith and fair dealing in the contract by failing to pay the salary and bonuses to which he is entitled.
The third Count is entitled "Tortious Interference with Contract." In this Count the plaintiff alleges, inter alia, that the defendants have evidenced an intent to interfere with the contractual relationship with his present employer, Golden Compass, LLC, by misrepresenting to it, inter alia, that his employment with Golden Compass violates a covenant not to compete in the original contract between the defendants and the plaintiff, and that he is performing the same job as he had been performing with the defendants.
The fourth count is entitled "slander per se"; the fifth count "intentional infliction of emotional distress;" and the sixth count is entitled "negligent infliction of emotional distress." In these counts the plaintiff alleges that the tortious acts occurred when the defendants made false, misleading and damaging statements to the plaintiff's employer by stating, among other things, that the plaintiff was in breach of a noncompetition agreement. Motion to Dismiss or for Partial Stay of Proceedings and to Compel Arbitration
On May 14, 2004 the plaintiff filed a Request for court approval to file an Amended Complaint. In the proposed Amended Complaint the plaintiff alleges that the defendants have committed the following additional tort: false light, invasion of privacy, Count IX; and, a statutory violation; namely, General Statutes § 31-128f, Count X.
The Request has not been claimed to short calendar, and has not been ruled upon by the Court. Because the requested amendment was filed 31 days after the original complaint the proposed Amended Complaint can not be viewed as an amendment as of right. Thus, this decision on the pending motion technically does not address the additional claims articulated in the proposed Amended Complaint.
The defendants have responded to the plaintiff's lawsuit by, pursuant to Conn. Gen. Stat. Sec. 52-409, filing a Motion to Dismiss or for Partial Stay of Proceedings and to Compel Arbitration based upon the language in the parties' Nondisclosure, Nonsolicitation and Noncompetition Agreement. This statute provides the court with authority to stay this case if the matter is subject to arbitration. The wording in the parties' Nondisclosure, Nonsolicitation and Noncompetition Agreement states in part that `"[a]ny claim or controversy arising out of or relating to . . . a claim that [the plaintiff has] violated any one or more of the restrictions set forth in [the] agreement shall be resolved by arbitration . . . in accordance with the Commercial Arbitration Rules of the American Arbitration Association." The plaintiff responds by arguing essentially that the tort claims are so separate from the contractual claims such that arbitration is not the appropriate method for resolving the tort claims.
Paragraph 7 of the parties' Nondisclosure, Nonsolicitation and Noncompetition Agreement states in material part that "[a]ny claim or conroversy arising out of or relating to this Agreement, including (without limitation) a claim that I have violated any one or more of the restrictions set forth in this Agreement shall be resolved by arbitration . . . in accordance with the Commercial Arbitration Rules of the American Arbitration Association."
It has been recognized that "[a]ny determination of whether a motion to dismiss should be granted or a stay should be ordered, in a case involving an arbitration clause, must begin with an examination of the actual language of the Agreement. Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question. Whether the parties intended an issue to be arbitrated, may be determined from an express provision to that effect, or from the use of broad terms." Springdale Fire Co. v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0197986 (August 24, 2004, Radcliffe, J). Moreover, "[t]he authority for arbitration must be derived from the agreement of the parties . . ." (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 194, 680 A.2d 1243 (1996). Courts are mandated to "look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties." (Internal quotation marks omitted.) Carlin Pozzi Architects, P.C. v. Bethel, 62 Conn.App. 483, 489, 767 A.2d 1272 (2001).
In matters concerning decisions of arbitrability, Connecticut applies the positive assurance test. Id. "Under this test, judicial inquiry is confined to whether the party opposing arbitration can show with positive assurance that the arbitration clause is not susceptible of any interpretation that covers the assigned dispute." (Emphasis added.) Springdale Fire Co. v. Stamford, supra, Superior Court, Docket No. CV 04 0197986, citing Board of Education v. Frey, 174 Conn. 578, 582, 392 A.2d 466 (1978). "Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 4 L.Ed.2d. 1409 (1960). The test is whether the court can determine with positive assurance that the issue was intended by the parties to be excluded from the arbitration agreement. See Carlin Pozzi Architects, P.C. v. Bethel, supra, 62 Conn.App. 489.
In the present case, the language of the arbitration clause dictates that "[a]ny claim or controversy arising out of or relating to this Agreement . . . shall be resolved by artitration . . . in accordance with the Commercial Arbitration Rules of the American Arbitration Association." Connecticut has previously viewed similar language in arbitration clauses as "all-embracing, all-encompassing and broad." Fink v. Golenbock, supra, 238 Conn. 196 ("any disputes"); see also Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 123, 318 A.2d 84 (1972) ("any disagreement"); Springdale Fire Co. v. Stamford, supra, Superior Court, Docket No. CV 04 0197986 ("any controversy" or "any dispute"). The inclusion of such broad language within arbitration clauses generally includes all claims, including tort claims. Springdale Fire Co. v. Stamford, supra, Superior Court, Docket No. CV 04 0197986 ("tort claims are included within such broad language.")
The language of the present arbitration clause is similar to the arbitration clause in Carlin Pozzi Architects, P.C. v. Bethel, supra, 62 Conn.App. 483. In that case, the arbitration clause stated that "[a]ll claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof, shall be decided by arbitration . . ." (Internal quotation marks omitted.) Id., 484. The court held that "it could not be determined with positive assurance that issues of timeliness were intended by the parties to be excluded from the arbitration agreement. Id., 489. The court held further that "[t]he broad scope of that contract provision precludes any exceptions so long as the claims, disputes or other matters in question between the parties arise out of or are related to the agreement or the breach thereof." Id., 490. Similarly, in this case, it cannot be said with positive assurance that the parties intended to exclude tort claims from the arbitration agreement.
Other cases have recognized the inclusion of tort claims within the realm of arbitration clauses. In Springdale Fire Co. v. Stamford, supra, Superior Court, Docket No. CV 04 0197986, the plaintiff, Springdale Fire Company, Inc. brought an action against the city of Stamford which included tort claims of fraudulent concealment, misrepresentation and negligent misrepresentation. The language of the arbitration clause at issue stated that "any dispute arising out of, or related to this Agreement" may be submitted to arbitration. Id. The court held that, "many factors mitigate in favor of resort to arbitration rather than litigation. The Agreement's language is broad, and all issues raised in the Plaintiff's complaint are encompassed within the very wide umbrella of issues arising out of or related to the Agreement." (Internal quotation marks omitted.) Id.
Similarly, in Fink v. Golenbock, supra, 238 Conn. 183 (1996), the Connecticut Supreme Court recognized the inclusion of tort claims and a claim for violation of the Connecticut Unfair Trade Practices Act within an arbitration clause which expressed the parties' agreement that "any disputes arising under this Agreement . . . shall be submitted to the American Arbitration Association . . ." Id., 196.
As a matter of policy, Connecticut "has long favored arbitration as a means of settling disputes." Hartford v. American Arbitration Association, 174 Conn. 472, 480, 391 A.2d 137 (1978). It has been recognized that Connecticut has a "strong commitment to the arbitration of disputes, especially when the parties have voluntarily agreed to arbitration, and . . . [have used] broad [arbitration] language . . ." Fink v. Golenbock, supra, 238 Conn. 197. Therefore, "[b]ecause public policy favors expeditious and autonomous alternative dispute resolution, arbitration tolerates only a minimum of judicial intrusion." Lupone v. Lupone, 83 Conn.App. 72, 77 n. 5, 848 A.2d 539, cert. denied, 270 Conn. 910, 853 A.2d. 526 (2004). A fitting quotation from the Supreme Court wording in Fink, supra, counsels the granting of relief sought by the defendants here.
Paragraph 8 of the Nondisclosure, Nonsolicitation and Noncompetition Agreement in this case specifically states that the agreement is not an employment contract. Nevertheless, the principle that the agreement (here non-disclosure, non-solicitation, and non-competition) establishes the contractual expectations out of which disputes may arise applies. Certainly, it is appropriate to follow the process (i.e. arbitration) set out in the parties' own agreement for the resolution of those very disputes.
The predicate for these claims is a dispute arising under the employment agreement . . . because it is this agreement that establishes the employment relationship from which the underlying conduct that forms the basis of the dispute stems.
Id. 196.
CONCLUSION
For the foregoing reasons, and upon the foregoing authorities, this court finds that the arbitration clause in this case covers the tort claims arising out of or related to the Nondisclosure, Nonsolicitation and Noncompetition Agreement in this case.
ORDERS
1. Re Arbitration: Connecticut General Statutes Sections 52-409
The court, pursuant to Conn. Gen. Stat. Sec. 52-409 orders that the parties submit to arbitration the claims in Counts 3, 4, 5, 6, 9 and 10 of plaintiff's Amended Complaint.
The defendants moved that these Counts be resolved by arbitration.
2. Stay of Action
The court, pursuant to Conn. Gen. Stat. Sec. 52-409, orders that further proceedings in this action be, and hereby are stayed pending arbitration, and any review thereof.
Clarance J. Jones, J.