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Carll v. Terminix International Company2/21/2002
This is an appeal from a trial court order which denied Appellant's Petition to Compel Arbitration and to Stay Judicial Proceedings. We affirm.
This action was instituted by Appellees, Mr. and Mrs. Carll and their four children, claiming that they sustained numerous severe and permanent injuries as a result of Appellants' negligent application of pesticides in and around their home. Appellee also sought damages for the costs of relocating as well as punitive damages. In response Appellants filed a Petition to Compel Arbitration and to Stay Judicial Proceedings in which they asserted that their agreement with Appellees expressly provided that all matters in dispute shall be settled exclusively by arbitration. Appellees responded to the petition claiming that the agreement was a contract of adhesion and void as against public policy and that the arbitration provisions which included an exculpatory clause was unconscionable. Appellees further contended that these provisions were void due to a lack of mutual assent and that they were not applicable to the minor children who were not parties to the contract. The trial court accepted Appellees' arguments and entered its order denying the petition to compel arbitration. This appeal followed.
In this appeal Appellants question whether the enforcement of the arbitration provision is consistent with and favored by law and public policy, and whether the arbitration clause can be applied to the claims brought on behalf of the minor children. Additionally, Appellants claim the trial court erred in refusing to stay the entire action pending the outcome of an arbitration proceeding. An examination of the contractual provision at issue is necessary for a review of these claims. It provides:
ARBITRATION. The Purchaser (including anyone claiming through Purchaser) and Terminix agree that all matters in dispute between them, including but not limited to any controversy or claim between them arising out of or relating to this agreement or to the identified property in any way, whether by virtue of contract, tort or otherwise, shall be settled exclusively by arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules then in force of the American Arbitration Association. The arbitrators shall be bound by rules of substantive law and shall not be bound by the rules of evidence, whether or not set out by statute, except for provisions relating to privileged communications. The arbitrator shall give effect to any and all waivers, releases, disclaimers, limitations and other terms and conditions of this Agreement.
Therefore, the award shall not, and the arbitrator shall not have the power or authority to, hold Terminix responsible for (i) the repair or replacement of any damage to the identified property, (ii) loss of anticipated rents and/or profits, (iii) direct, indirect, special, incidental, consequential, exemplary or punitive damages, or (iv) damages or penalties relating to or arising out of any claim alleging any deceptive trade practice. Each party shall be responsible for paying any attorneys' fees, expert witness fees and other expenses it incurs on its behalf in connection with the arbitration, plus one half the arbitrator's fee and one half of any expenses incurred by the arbitrator, and the award shall assess the arbitrator's fees and expenses accordingly.... Neither party shall sue the other party with respect to any matter in dispute between the parties other than for enforcement of this arbitration provision or of the arbitrator's decision, and a party violating this provision shall pay the other party's costs, including but not limited to, attorneys' fees, with respect to such s
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