 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Flandreau Public School Dist. #50-3 v. G.A. Johnson Construction7/13/2005
ert's proposals for repair involved nothing more than painting, tuckpointing, or the installation of alternative surfaces to make the walls of the building appear differently.
[ .] We conclude that this evidence, the complaint, and the aesthetic exclusion are clear and unmistakable evidence that this dispute was not subject to arbitration. Furthermore, "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." See AT&T, 475 US at 650, 106 SCt at 1419, 89 LEd2d at 656 (citation omitted). Therefore, this dispute was not subject to arbitration and the circuit court was the proper forum to determine whether the parties had agreed to arbitrate. See id. at 652, 106 SCt at 1420, 89 LEd2d at 657-658 (noting that when there is an "express exclusion or other forceful evidence, dispute over the interpretation of [the agreement] ...is not subject to the arbitration clause. [If such evidence is present t]hat issue should decided by the [courts] and ... it should not referred to the arbitrator.").
Motion to Compel Alternative Dispute Resolution
[ .] Johnson alternatively argues that " nder the South Dakota Uniform Arbitration Act, ' ny action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under ยง 21-25A-5....'" See SDCL 21-25A-7. (Emphasis added). Johnson argues that the issues previously discussed (arbitrability, breach of contract, and product quality) involved non-aesthetic arbitrable matters that could not be severed from the aesthetic claim. However, we have previously concluded that none of these underlying issues were subject to arbitration. Because these underlying issues were not subject to arbitration, the trial court correctly concluded that Johnson was not entitled to compel arbitration.
[ .] Affirmed.
[ .] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, and ENG, Circuit Judge, concur.
[ .] ENG, Circuit Judge, sitting for SABERS, Justice, disqualified.
Page 1 2 3 4 5 6 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|