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Flandreau Public School Dist. #50-3 v. G.A. Johnson Construction7/13/2005
ermination that the ... agreement does in fact create such a duty.
AT&T, 475 US at 649, 106 SCt at 1419, 89 LEd2d at 656 (citation omitted). Therefore, " ourts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea and unmistakabl ' evidence that they did so." First Options, 514 US at 944, 115 SCt at 1924, 131 LEd2d at 994 (citation omitted).
[ .] We now turn to Johnson's first argument that an arbitrator, rather than the circuit court, should have determined arbitrability in this case. Johnson contends that the Flandreau-Johnson agreement clearly expressed the parties' intent to have an arbitrator determine arbitrability. Johnson relies on Johnson v. Polaris Sales, Inc., 257 FSupp2d 300 (DMe 2003). Johnson argues that Polaris "held that an identical arbitration provision clearly and unmistakably evinced the parties' intent 'to submit questions regarding the scope of the ... arbitration clause [arbitrability] to the arbitrator.'"
[ .] Polaris did find "a clear and unmistakable intent on the part of the parties to submit questions regarding the scope of [that] Dealer Agreement arbitration clause to the arbitrator." Id. at 309 (emphasis added). However, the arbitration clause in that Agreement was significantly different than the one before us. Unlike this case, the parties in Polaris specifically agreed to arbitrate "arbitrability." Id. at 308. The Dealer Agreement stated:
that " ll disputes, controversies and claims arising out of or in connection with the ... interpretation ... of this Agreement, or of any provision of this Agreement (including without limitation this arbitration provision and the arbitrability of any issue) ... shall be solely and finally settled by arbitration...."
Id. (emphasis added). Considering this specific agreement to arbitrate "the arbitrability of any issue," the Polaris court understandably concluded that the parties intended that the arbitrator would initially determine arbitrability.
[ .] However, the Polaris finding of intent to arbitrate arbitrability is inapplicable to the Flandreau-Johnson construction agreement, which is silent on this subject. Because the Flandreau-Johnson agreement contains no language agreeing to arbitrate arbitrability, and because there is no clear and unmistakable evidence of intent to arbitrate arbitrability, the arbitrability of this dispute was not an issue for the arbitrator in the first instance, and the trial court properly decided this issue. First Options, 514 US at 944, 115 SCt at 1924, 131 LEd2d at 994.
[ .] We next consider the "whether" question; i.e. whether Johnson's remaining issues (workmanship, quality of materials, breach of contract, and failure to comply with industry standards) are arbitrable or whether they relate to aesthetic effect. On this question we believe that the reasoning of the Arkansas Supreme Court in May, 895 SW2d 521, demonstrates that none of these underlying issues are arbitrable.
[ .] May is instructive because it involved a similar arbitration agreement and a remarkably similar dispute over an aesthetic claim. In May, a school contended that newly constructed floors had an unacceptable appearance. Like the case before us, that school alleged that the unacceptable appearance was caused by breach of contract and the failure to comply with the plans and specifications. The school specifically alleged that the construction company had:
negligently failed to properly apply the substituted product, negligently failed to properly clean the pre-finished floors, negligently supplied a defective product, breached its implied warranty of merchantability, and breached its
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