Opinion
No. 466931
December 14, 2004
MEMORANDUM OF DECISION
The plaintiff brought this action in six counts. The first count alleged that the defendants violated General Statutes § 31-72 by failing to pay him wages, as defined in General Statutes § 31-71a, pursuant to an employment agreement. The second count alleged that the defendants breached their contract with the plaintiff in failing to pay wages due him under the agreement. The third count alleges that the individual defendant, Mark Thimineur, intentionally misrepresented to the plaintiff that he would become an equal partner in the defendant Comprehensive Pain Headache Treatment Centers, LLC (LLC), that he was a partner or member and that he would receive bonuses, draws and distributions. The fourth count alleged that these representations were recklessly made. The fifth count alleged that they were negligently made. For these counts, the plaintiff seeks money damages and other relief. The sixth count alleges that the plaintiff was required to guarantee and provide security for loans incurred by the LLC. For this count, the plaintiff also seeks injunctive relief requiring the defendants to release all mortgages or other security encumbering the plaintiff's property and to enjoin the defendants from "drawing against any credit facility guaranteed and/or secured by the plaintiff . . ."
By pleading dated August 23, 2002, the defendants moved to stay the litigation pending arbitration. The motion was based on the parties' Employment Agreement which contained an arbitration clause that provides: "Any and all disputes arising out of, under, in connection with or [sic] relation to this Agreement shall be settled by Arbitration in the State of Connecticut before the American Arbitration Association in accordance with its rules then obtaining, and judgment upon the award rendered may be entered in any Court having jurisdiction thereof." After an evidentiary hearing, the defendants' motion was granted by the court (Hadden, J.T.R.).
The parties proceeded to arbitration where the defendants filed counterclaims. One counterclaim alleges that while the plaintiff was employed by the LLC, the LLC had a contract with St. Vincent's Medical Center and with Medical Anesthesiology Associates, P.C. which the plaintiff tried to displace, in breach of his fiduciary duty to the defendants. As a result, the LLC lost these contracts.
Second, the defendants allege that in breach of various duties, the plaintiff failed to account for and pay to the LLC all compensation received and attributable to his services as a physician.
Third, defendants allege the plaintiff sexually harassed two other employees, in violation of his fiduciary duty of loyalty to the LLC as an employee, exposing the defendants to civil liability. The defendants seek damages and an award requiring the plaintiff to indemnify them for any liability they incur in the sexual harassment case.
The plaintiff has filed a motion for determination of arbitrability of these counterclaims. The defendants have filed a memorandum in opposition to the motion. The motion raises two issues. The first issue is whether the question of arbitrability is a matter that has been reposed in the arbitrators or which remains with the court. The second issue is, if the issue of arbitrability is for the court to determine, are the matters contained in the counterclaim arbitrable.
"The law in Connecticut is clear. Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also . . . Whether the parties intended to submit the issue of arbitrability, as well as the merits of a claim, to an arbitrator clearly depends on the parties' intent. Whether the parties intended to arbitrate the issue of arbitrability may be determined from an express provision to that effect or from the use of broad terms . . . Unless the agreement shows such intent, the determination of the question of arbitrability remains a function of the court . . . The courts, however, must not fail to examine the plain language of the contract and look at it as a whole in determining the parties' intent." (Citations omitted; internal quotation marks omitted.) Scinto v. Sosin, CT Page 18828 51 Conn.App. 222, 227-28, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).
In Scinto, "the construction contract contained the following arbitration clause: `Any controversy or Claim arising out of or related to the Contract or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof, except controversies or Claims relating to aesthetic effect and except those waived as provided for in Subparagraph 4.3.5.'" Id., 226. As broad as this clause was, the Appellate Court held that it did not authorize the arbitration of arbitrability. Id., 230.
In Lupone v. Lupone, 83 Conn.App. 72, 76, 848 A.2d 539, cert. denied, 270 Conn. 910, 853 A.2d 526 (2004), "[t]he arbitration clause at issue . . . provide[d] that `[a]ny dispute, difference, disagreement, or controversy among the Partners arising out of or in connection with the Partnership or the interpretation of the meaning or construction of the Agreement, shall be referred to a board composed of one lawyer and one accountant agreed upon by the parties to such dispute. Such arbitration shall take place in New Haven, Connecticut, unless otherwise agreed upon by all of the parties. Every award or determination therein shall be final and binding upon all of the parties and the Partnership. There shall be no appeal from such award or determination and judgment thereon may be entered in any court [of] competent jurisdiction.'" (Footnote omitted.)
The Appellate Court held that this provision authorized the arbitration of arbitrability, stating: "In addition to defining broadly the scope of arbitration by use of the expansive prefatory phrase, `[a]ny dispute, difference, disagreement, or controversy among the Partners,' the clause expressly reserves to the panel the authority to decide any dispute arising out of `the interpretation of the meaning or construction of the Agreement . . .' The issue of arbitrability arises directly from the interpretation of the meaning of the arbitration clause contained in the parties' agreement. The terms of the clause, therefore, mandate that the issue of arbitrability be determined by the panel." Id.
The arbitration provision here, while very broad, is closer to the provision in Scinto than that in Lupone. The arbitration clause here does not expressly provide for the arbitration of arbitrability nor does it provide for arbitration of disputes involving the interpretation of the meaning or construction of the Agreement. The court holds that the issue of arbitrability is for the court, not the arbitrators. The court now turns to that issue.
Courts defer to the arbitration "method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the `positive assurance' test as set out in United Steelworkers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Under this test, judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." (Internal quotation marks omitted.) Sacred Heart Teachers' Assn. v. Sacred Heart High School Corp., 65 Conn.App. 195, 199-200, 782 A.2d 227 (2001). "When parties use expansive language in drafting an arbitration clause, presumably they intend all issues that `touch matters' within the main agreement to be arbitrated . . . while the intended scope of a narrow arbitration clause is obviously more limited." Louis Dreyfus Negoce S.A. v. Blystad Shipping Trading, Inc., 252 F.3d 218, 225 (2d Cir. 2001), cert. denied, 534 U.S. 1020 (2001).
The court cannot say with positive assurance that the arbitration clause in the parties' Employment Agreement is not susceptible of an interpretation that covers the matters alleged in the defendants' counterclaim filed with the arbitrators.
The motion for determination of arbitrability is granted and the court determines that the matters alleged in the defendants' counterclaim are arbitrable.
BY THE COURT
Bruce L. Levin Judge of the Superior Court