King Motor Co. of Fort Lauderdale v. Jones5/18/2005
Appellee, Judith Jones, became a victim of identity theft when she purchased a car at a dealership. She sued King Motor Company of Fort Lauderdale, Inc. (King Motor), alleging that a King Motor's salesman used the information contained on her credit application to steal her identity and make fraudulent purchases and bank account withdrawals. Her complaint included claims for negligence, gross negligence, unfair and deceptive trade practices, and a violation of the Credit Services Organization Act. In this appeal, King Motor challenges the trial court's order denying its motion to stay and compel arbitration. Because we agree with the trial court's ruling that appellee's claims are not subject to arbitration, we affirm.
An order denying a motion to compel arbitration is generally reviewed de novo. See Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001). In determining whether a dispute is subject to arbitration, courts must consider three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int'l Co. L.P. v. Ponzio, 693 So. 2d 104, 106 (Fla. 5th DCA 1997)).
We first note that the validity of the written arbitration agreement is not in dispute. Second, though the parties below advanced arguments concerning waiver of the right to arbitration, the record does not reflect a ruling on this issue. Third, appellant's point on appeal, that the arbitrator, rather than the judge, should have decided the issue of arbitrability, was not properly raised below. Therefore, the sole issue for our review is whether an arbitrable issue exists.
The language in the arbitration clause is as follows:
Buyer/lessee acknowledges and agrees that the vehicle the buyer/lessee is purchasing or leasing from the dealer has traveled in interstate commerce. Buyer/lessee thus acknowledges that the vehicle and other aspects of the sale, lease or financing transaction are involved in, affect, or have a direct impact upon interstate commerce.
Buyer/lessee and dealer agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale/lease or financing of the vehicle, the terms and provision of the sale, lease, or financing arrangements, the arrangements for financing, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease or financing, shall be settled by binding arbitration, conducted pursuant to the provisions of the Federal Arbitration Act, 9. U.S.C. Section 1 et seq. and according to the commercial arbitration rules of the American Arbitration Association. Without limiting the generality of the foregoing, it is the intention of the buyer/lessee and the dealer to resolve by binding arbitration all disputes between them concerning the vehicle, its sale, lease or financing, and its condition, including disputes concerning the terms and conditions of the sale, lease, or financing, the condition of the vehicle, any damage to the vehicle, the terms and meaning of any of the documents signed or given in connection with the sale, lease or financing of the vehicle, or negotiations for the sale, lease or financing of the vehicle, or any terms conditions, representations or omissions made in connection with the financing, credit, life insurance, disability insurance, vehicle extended warranty or servi
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