Griggs v. Kenworth of Montgomery, Inc. et al
Filing
146
MEMORANDUM OPINION AND ORDER: Kenworth's 26 Motion to Compel Arbitration, 52 Motion to Compel Intervenor Yusef Brinson's Claims to Arbitration, and 133 Renewed Motion to Compel Plaintiff's Claims and Intervenor's Claims to Arbitration are GRANTED as further set out in the opinion and order. Signed by Honorable Judge Andrew L. Brasher on 12/26/2019. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALTON R. GRIGGS, JR.,
)
)
Plaintiff,
)
)
YUSEF BRINSON,
)
)
Plaintiff-Intervenor,
)
)
v.
) CASE NO. 2:16-CV-406-ALB-SMD
)
KENWORTH OF MONTGOMERY, )
INC.,
)
)
Defendant.
)
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant Kenworth of Montgomery,
Inc.’s (“Kenworth”) Motion to Compel Arbitration (Doc. 26) and Motion to Compel
Intervenor Yusef Brinson’s Claims to Arbitration (Doc. 52), which have been
reopened pursuant to remand from the United States Court of Appeals for the
Eleventh Circuit (Doc. 132), and Kenworth’s Renewed Motion to Compel Plaintiff’s
Claims and Intervenor’s Claims to Arbitration. (Doc. 133). Upon consideration of
Kenworth’s motions, Plaintiffs’ responses, and the evidentiary material in support
of and in opposition to the motions, Kenworth’s motions are GRANTED.
BACKGROUND
This case arises out of a 2015 tractor-trailer accident in Jackson County,
Alabama. Plaintiff Alton R. Griggs Jr., a commercial truckdriver, was driving the
tractor-trailer (the “truck”) when the truck allegedly lost power and the engine shut
down, causing Griggs to lose control of the truck and the truck to overturn and crash.
One passenger was in the truck at the time of the accident, Plaintiff-Intervenor Yusef
Brinson, and both Griggs and Brinson were injured as a result of the accident.
About one month before the accident, A.K.G. Freight Carriers, LLC
(“A.K.G.”) purchased the truck under warranty from Arrow Truck Sales, Inc.,
(“Arrow”) in Conyers, Georgia. Griggs and his wife, Kimberly Newson, are the only
members of A.K.G. On March 3, 2015, Griggs was driving the truck in Selma,
Alabama, when the truck allegedly experienced a sudden mechanical/electrical
failure, causing it to lose power. Griggs claims that Arrow instructed him to have the
truck towed to Kenworth’s repair facility in Montgomery, Alabama, and that Arrow
managed and participated in “all testing, test interpretation[,] and repair decision
making” related to the truck after it arrived at Kenworth’s facility. (Doc. 136 at 3).
Multiple repairs related to the truck’s Electronic Control Module (“ECM”)
were completed by Kenworth over the course of the next several days. On March 4,
2015, Kenworth attempted to fix the power loss issue by tightening a loose
connection to the ECM, which proved unsuccessful after the engine shut down
2
during a test drive. On March 5, 2015, Kenworth replaced the battery cable, which
also proved unsuccessful after the engine again shut down during a test drive.
Finally, that same day, Kenworth removed and replaced the ECM—a repair Griggs
alleges was authorized and directed by Arrow. On March 6, 2015, after the truck
was returned to Griggs, Griggs was driving the truck when it again lost power,
allegedly causing the accident that now forms the basis of this lawsuit.
Kenworth issued three separate repair orders and invoices for the repairs it
performed on the truck, all of which contained the same arbitration provision:
4. Arbitration.
Any controversy or claim arising out of or relating to this Invoice or
otherwise relating in any fashion to the purchase or sale of equipment,
parts or service thereon shall be submitted to arbitration in the county
in which the dealership is located in accordance with the rules of the
American Arbitration Association. Judgment upon any award rendered
in such proceedings may be entered in any court having jurisdiction
thereof, and the parties hereto submit to the jurisdiction of all state and
federal courts having venue in the county in which the dealership is
located.
(Docs. 133-1 at 6, 26-4 at 2, 26-5 at 2, and 26-6 at 4).
Griggs signed his individual name on the repair orders for the first two repairs
and on the invoice for the third repair, though each repair order and invoice has a
“Sold To” and “Ship To” section identifying A.K.G. as the customer. For the first
repair, Arrow paid $189.75, and Griggs paid $214.29 with his personal Visa card.
For the second repair, Griggs paid the entire repair cost—$429.64—with his
3
personal Visa card. For the last repair, Kenworth sent Arrow a quote for approval,
and Arrow paid $1,936.61. Brinson neither signed nor paid any of the repair orders
or invoices.
PROCEDURAL HISTORY
On June 1, 2016, Griggs filed this action against Arrow and Kenworth,
asserting (1) negligence, breach of express and implied warranties, and negligent
misrepresentation/fraud claims against Arrow and (2) negligence and negligent
misrepresentation/fraud claims against Kenworth. Generally, Griggs claims that the
truck had “an electrical system defect that the Defendants, at various times and
despite numerous opportunities, failed to repair.” (Doc. 136 at 5). With respect to
Kenworth, Griggs specifically asserts the following allegations in his Complaint:
20. After the replacement of the ECM, the subject tractor was returned
to GRIGGS with the assurance that the repairs that had been performed
would end the tractor's power loss and engine shut down problems. . . .
64. Defendant KENWORTH acted negligently and/or wantonly in
failing to effectuate and confirm all necessary repairs had been
performed, prior to relinquishing possession of the tractor to
GRIGGS. . . .
65. Defendant KENWORTH acted negligently and/or wantonly in
representing to GRIGGS that the subject tractor's performance
problems had been corrected, prior to relinquishing possession to
GRIGGS. . . .
74. Defendant KENWORTH falsely represented to Plaintiff that it had
inspected and tested the subject tractor sufficiently to identify the cause
of any major defects and corrected them. Defendant Kenworth also
falsely represented that the subject tractor was fully repaired and safe
4
to be driven. The representations made by the Defendant
KENWORTH were, in fact, false. The true facts were that the
inspection and testing performed were not adequate to ascertain the
cause of what was an intermittent problem with the
electrical/mechanical systems, that the tractor had not been fully
repaired and was not safe and that it would be dangerous for the
Plaintiff and others to drive the subject tractor until the cause of the
power loss and engine cut off and the effectiveness of the repairs were
conclusively tested and confirmed.
(Doc. 1, ¶¶ 20, 64-65, 74).
On August 25, 2016, Brinson filed a motion to intervene (Docs. 38 and 44),
which was granted. (Doc. 46). Like Griggs, Brinson asserts negligence claims
against both Arrow and Kenworth.1 (Doc. 50). With respect to Kenworth, Brinson
claims that Kenworth acted negligently and/or wantonly “in failing to adequately
evaluate, investigate and confirm the cause of the subject tractor’s performance
problems,” “in failing to confirm all necessary repairs had been performed,” and “in
failing to perform proper testing to ascertain the true cause of the performance failure
and confirm that they had been remedied.” (Doc. 50, ¶¶ 23-24, 27).
Kenworth moved to compel arbitration of Griggs’s and Brinson’s claims
under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), based on the
arbitration provision contained in the repair orders and/or invoices. (Docs. 26 and
52). On September 22, 2017, the district court denied Kenworth’s motions to compel
1
Griggs’s and Brinson’s claims against Arrow were transferred to the Northern District of Georgia
(Doc. 128), leaving only their claims against Kenworth before this Court.
5
arbitration “without prejudice and with leave to reinstate” following resolution of a
separate pending motion filed by Arrow. (Doc. 97). Kenworth timely filed an
interlocutory appeal in the Eleventh Circuit, arguing that the district court erred in
denying its motions to compel arbitration. (Doc. 105). On appeal, the Eleventh
Circuit determined that it could not conduct “meaningful appellate review” of
Kenworth’s motions based on the “summary nature of the district court’s order and
the current state of the record,” and thus the court vacated the district court’s decision
and remanded the case “for the court below to enter a reasoned opinion analyzing
the motions to compel arbitration.” (Doc. 132). Kenworth subsequently filed a
renewed motion to compel arbitration of Griggs’s and Brinson’s claims (Doc. 133),
and the Court held a telephone hearing on the motions on August 28, 2019. See Dkt.
Entry 139.
DISCUSSION
The FAA creates a presumption of arbitrability as to valid, enforceable
arbitration agreements so long as the agreement is connected with a transaction
involving interstate commerce.2 Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d
1325, 1329 (11th Cir. 2016); see Preston v. Ferrer, 552 U.S. 346, 349 (2008)
(recognizing that the FAA “establishes a national policy favoring arbitration when
2
Based on their briefing, Plaintiffs do not dispute that the repair orders and/or invoices satisfy the
FAA’s requirement that the contract containing the arbitration agreement involve interstate
commerce.
6
the parties contract for that mode of dispute resolution”). But “the presumption does
not apply to disputes concerning whether an agreement to arbitrate has been made.”
Bazemore, 827 F.3d at 1329. In other words, the presumption applies to the scope of
an arbitration agreement, not to whether the agreement exists. See id.
To decide a motion to compel arbitration under the FAA, the Eleventh Circuit
has adopted a two-step inquiry. Klay v. All Defendants, 389 F.3d 1191, 1201 (11th
Cir. 2004). First, courts must determine whether the parties agreed to arbitrate.
Whether an individual is a party to the arbitration agreement is “embedded within”
this inquiry. Coscarelli v. ESquared Hospitality LLC, 364 F. Supp. 3d 207, 215
(S.D.N.Y. 2019). Second, courts must determine whether “legal constraints external
to the parties’ agreement foreclosed arbitration.” Klay, 389 F.3d at 1201. The dispute
in this case centers solely on the first step of the inquiry.
Because arbitration is a matter of contract, courts apply state law principles
governing the formation of contracts to determine whether an enforceable arbitration
agreement exists between the parties. Bazemore, 827 F.3d at 1329-30; Caley v.
Gulfstream Aerospace Corp., 428 F.3d 1359, 1368 (11th Cir. 2005). To establish the
formation of a contract under Alabama law, the party seeking to enforce the contract
must show by a preponderance of the evidence (1) an offer, (2) an acceptance, (3)
consideration, and (4) mutual assent to the essential terms of the contract. Burch v.
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P.J. Cheese, Inc., 861 F.3d 1338, 1346 (11th Cir. 2017) (quoting Shaffer v. Regions
Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009)).
The Eleventh Circuit applies a “summary judgment-like standard” to decide a
motion to compel arbitration. Bazemore, 827 F.3d at 1333. That is, a district court
may decide as a matter of law whether the parties entered into an arbitration
agreement if “there is no genuine dispute as to any material fact” concerning the
formation of the agreement. Id. If a genuine dispute exists as to whether the parties
entered into an arbitration agreement, the court must proceed summarily to trial on
that issue. Id.; Burch, 861 F.3d at 1346 (citing 9 U.S.C. § 4).
A. Griggs’s Claims
Kenworth argues that Griggs’s claims are subject to arbitration because
Griggs is either a signatory to a valid, enforceable arbitration agreement between
Griggs and Kenworth, or alternatively, he is a non-signatory who is treated as a thirdparty beneficiary to the arbitration agreement and is thus equitably estopped from
avoiding arbitration. Griggs argues that he is neither a signatory in his individual
capacity nor a third-party beneficiary to the arbitration agreement, and thus his
claims cannot be compelled to arbitration.
1. Whether Griggs is a Party to the Contract
During the August 28, 2019 motions hearing, the parties agreed that the Court
must first determine whether the contract containing the arbitration provision—in
8
this case, the repair orders and/or invoices—is ambiguous as to whether Griggs is a
party to the contract, i.e., whether Griggs signed the contract in his individual or
representative capacity. Kenworth argued at the hearing that the contract
unambiguously has three parties: Griggs, A.K.G., and Kenworth. But, under this
interpretation, who signed for A.K.G.? It would have to be Griggs. So Kenworth
concedes that Griggs signed in his representative capacity: the only issue is whether
he also signed in his individual capacity. And that is where the contract is, at the
very least, ambiguous.
To determine in which capacity a party signed a contract, Alabama courts
“look to the consistency between the body of the contract and the signature block.”
David v. Shah, 426 F. App’x 725, 747-48 (11th Cir. 2011) (quoting Marriott Int’l,
Inc. v. deCelle, 722 So. 2d 760, 762 (1998)). “[A] signature block is unquestionably
probative of the capacity in which a person is acting when he or she signs an
agreement, but it is not dispositive.” Berliner Corcoran & Rowe LLP v. Orian, 563
F. Supp. 2d 250, 254 (D.D.C. 2008); 17A C.J.S. Contracts § 464. Further, “[l]oose
usage by an agent of such terms as “I,” “me,” “mine,” “we,” or “ours” in referring
to a business does not, standing alone, constitute a manifestation of assent to be
bound personally but may corroborate other evidence.” Restatement (Third) of
Agency, § 6.01 cmt. d. Though the parties’ rights are generally controlled by the
written contract, when the contract is ambiguous, parol evidence regarding the
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parties’ intent is permitted to clarify the contract. Marriott, 722 So. 2d at 762; Lee v.
YES of Russellville, Inc., 784 So. 2d 1022, 1027 (Ala. 2000) (finding parol evidence
admissible to show that signatory was acting as agent where contract was ambiguous
as to capacity in which he signed contract).
Here, there is no dispute that the “Sold To” and “Ship To” sections of the
invoices and repair orders identify A.K.G. as the customer. There is similarly no
dispute that Griggs signed his individual name on the repair orders and/or invoices
without any indication that he was signing in a representative capacity on behalf of
A.K.G. For these reasons, the Court finds that the contract is ambiguous as to the
capacity in which Griggs signed the contract and thus considers the parol evidence
submitted by the parties regarding their intent. See Marriott, 722 So. 2d at 762
(finding contract ambiguous because the body of the contract indicated the person
contracted in his individual capacity and the signature block indicated the person
contracted in his representative capacity); Lutz v. Van Heynigen Brokerage Co., 75
So. 284, 287-88 (Ala. 1917) (considering parol evidence where body of contract
indicated person signed in representative capacity but signature block indicated
person signed in individual capacity); see also Whitmore v. Hawkins, 217 F.3d 843
(4th Cir. 2000) (finding ambiguity in contract where introductory paragraph
identified individual as party in individual capacity but individual only signed
contract in representative capacity and had no individual signature line).
10
To support its argument that Griggs signed the contract in his individual
capacity, Kenworth relies on the following evidence: (1) that Griggs signed his
individual name to the contract without any indication that he was signing on behalf
of A.K.G., (2) that the contract includes personal obligations and limitation of
damages provisions, (3) that Griggs paid for some or all of two of the three repairs
performed on the truck with his personal Visa card, and (4) that Griggs was present
at Kenworth during the repairs, took pictures and videos of the truck when it was at
Kenworth for repairs, and met with and communicated directly with Kenworth’s
assistant service manager and mechanic multiple times regarding the repairs. See
Docs. 133-1 at 17-20 and 143 at 4.
Griggs, on the other hand, offers two affidavits to show that he signed the
contract only in his representative capacity. The first affidavit—his own—states in
relevant part that (1) Griggs told Kenworth that A.K.G. owned the truck and “would
be the purchaser of whatever parts and repairs the truck needed”; (2) Kenworth
provided price quotes and obtained pre-authorization from Newson for the work
performed; and (3) Newson “handled all the aspects of the transactions with
Kenworth.” (Doc. 30-4, ¶¶ 6, 9). The second affidavit—Newson’s, who is the
managing member of A.K.G.—states in relevant part that (1) Newson had multiple
conversations with both Arrow and Kenworth regarding the towing and repair of the
truck, (2) Newson identified herself to Kenworth employees “as the company’s
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manager” and asked that she be informed on the progress of the repairs, (3) Newson
received estimates and was asked by Kenworth to authorize repairs, and (4)
Kenworth and Arrow told Newson that the problem had been identified and that the
repairs performed would resolve the engine issue. (Doc. 30-5, ¶ 5). In addition,
Griggs argues that the repair orders and/or invoices generated by Kenworth
identifying A.K.G. in the “Sold To” and “Ship To” sections further indicate the
intent of the parties that A.K.G., not Griggs, be bound by the contract.
As an initial matter, that Newson was involved in the transactions on behalf
of A.K.G. or that Kenworth knew that A.K.G. was a customer is not dispositive of
whether Griggs signed the repair orders and/or invoices in his individual capacity.
See generally B&M Homes, Inc. v. Hogan, 376 So. 2d 667, 676 (Ala. 1979) (“It is
clear in Alabama the agent for a disclosed principal can personally bind himself to
the contract if he intends to add his personal guarantee.”). Again, Kenworth
concedes that Griggs signed the contract in his representative capacity. The question
is whether Griggs also signed the contract in his individual capacity.
Based on the evidence submitted by the parties, the Court finds that there is—
at the very least—a genuine dispute of material fact regarding the capacity in which
Griggs signed the repair orders and/or invoices. For instance, Griggs claims that he
told Kenworth that A.K.G. “would be the purchaser of whatever parts and repairs
the truck needed.” But Kenworth presented evidence that Griggs—not A.K.G.—
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paid some or all of two of the three repair orders and/or invoices with his personal
Visa card. In addition, the parties presented conflicting evidence regarding Griggs’s
involvement in the transactions and communications related to the repair work
performed by Kenworth. Because there is a genuine dispute of fact regarding
whether Griggs is an individual party to the contract, the Court cannot conclude as
a matter of law that an arbitration agreement exists between the parties.
2. Equitable Estoppel Exception
Ordinarily, this dispute of fact would end the Court’s inquiry, and the Court
would proceed to trial on the issue of whether Griggs signed the contract in his
individual capacity or only as an agent on behalf of A.K.G. See Burch, 861 F.3d at
1346; Lee, 784 So. 2d at 1028 (recognizing that whether the individual signed a
contract in his individual capacity or as an agent on behalf of sole proprietorship was
a question for the jury). But here, Kenworth argues that even if Griggs signed the
repair orders and/or invoices only in his representative capacity, Griggs’s claims are
still subject to arbitration under an equitable estoppel exception that subjects a nonsignatory’s claims to arbitration. The Court agrees.
Generally, a non-signatory to an arbitration agreement cannot be forced to
arbitrate his claims. Cook’s Pest Control, Inc. v. Boykin, 807 So. 2d 524, 526 (Ala.
2001). But Alabama recognizes three exceptions to this general rule: (1) when the
non-signatory is a third-party beneficiary to the contract, (2) when the non13
signatory’s claims depend on the existence of the contract such that he is equitably
estopped from avoiding arbitration, and (3) when a non-signatory seeks to enforce
the arbitration clause against a signatory in a dispute that is intertwined with or
related to the contract. Id. at 526-27; see also Ex parte Tony's Towing, Inc., 825
So.2d 96, 97 (Ala. 2002) (limiting intertwining claims exception to use by the nonsignatory in compelling arbitration of a signatory's claims). Only the second
exception arguably applies in this case.
Although Griggs does not argue that he is a third-party beneficiary to the
contract at issue, a non-signatory is “treated as a third-party beneficiary—and is
equitably estopped from avoiding arbitration—when he or she asserts legal claims
to enforce rights or obtain benefits that depend on the existence of the contract that
contains the arbitration agreement.” Custom Performance, Inc. v. Dawson, 57 So.
3d 90, 98 (Ala. 2010) (emphases in original). In other words, a plaintiff “cannot
simultaneously claim the benefits of a contract” and, at the same time, seek to avoid
the arbitration agreement within that contract. Custom Performance, 57 So. 3d at 98.
Whether a non-signatory is equitably estopped from avoiding arbitration is factspecific. Id. (stating that courts “must first determine whether, under the
circumstances of th[e] case, any of the legal claims asserted by [the plaintiff] are
dependent on the existence of the contract that contains the arbitration agreement”
(emphasis in original)).
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Here, the root of Griggs’s claims—and the basis for Kenworth’s alleged
liability—is that Kenworth had a contractual duty to repair the truck’s power loss
and engine shut down problems and failed to repair them. Griggs admits as much in
his Response to Kenworth’s Motion to Compel when he acknowledges that this suit
“asserts that the tractor had an electrical system defect that the defendants, at various
times and despite numerous opportunities, failed to repair,” which is “the underlying
basis for negligence and gross negligence claims against the Defendant[].” (Doc.
136 at 5) (emphasis added). Specifically, Griggs alleges in his Complaint (1) that
Kenworth made three failed attempts to repair the truck, describing the work
performed by Kenworth pursuant to the three repair orders and/or invoices (Doc. 1,
¶¶ 16-21); (2) that Kenworth assured him “that the repairs that had been performed
would end the [truck’s] power loss and engine shut down problems” (Doc. 1, ¶ 20);
(3) that Kenworth’s failure to repair the truck was the proximate cause of the truck’s
loss of power and engine shut down, which led to the accident giving rise to his
injuries (Doc. 1, ¶¶ 20-23); and (4) that Kenworth “fail[ed] to adequately evaluate,
investigate and confirm” the cause of the truck’s performance problems, “fail[ed] to
effectuate and confirm all necessary repairs had been performed,” and “falsely
represented” to him that the truck was fully repaired. (Doc. 1, ¶¶ 63-64, 74).
Even though Griggs couches his claims against Kenworth in negligence and
wantonness, his claims sound, if at all, in contract. These claims are based on
15
Kenworth’s alleged failure to perform its contractual duty to repair the truck. But
“Alabama does not recognize a tort-like cause of action for the breach of a duty
created by contract.” Blake v. Bank of Am., N.A., 845 F. Supp. 2d 1206, 1211 (M.D.
Ala. 2012) (quoting Vines v. Crescent Transit Co., 85 So. 2d 436, 440 (1956)).
Rather, “a negligent failure to perform a contract,” as Griggs alleges, “is but a breach
of the contract.” Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 1254 (Ala.
2005). Thus, Griggs’s claims are Alabama-law contract claims, not tort claims. They
necessarily depend on the existence of the underlying contracts at issue and require
arbitration.
But, even assuming Griggs’s claims were truly negligence claims, they would
still be close enough to contract claims to say that, in this particular case, he is relying
on the benefits of the underlying repair orders and/or invoices to establish his claims.
For example, in Olshan Foundation Repair Co. of Mobile, LP v. Schultz, the
defendant performed repair work on the foundation of the plaintiffs’ home pursuant
to two contracts containing the same or a substantially similar arbitration provision.
64 So. 3d 598, 599 (Ala. 2010). The plaintiffs, a husband and wife, filed an action
against the defendant, and the defendant moved to compel arbitration of their claims.
Id. The husband, but not the wife, signed the contracts containing the arbitration
provision, and the wife only asserted negligence and wantonness claims against the
defendant. Id. at 599-601. Specifically, the wife claimed that the defendant
16
negligently and wantonly performed work on the foundation of her house, causing
damage to her house. Id. at 607-09. The repair work on which she based her claims
was performed pursuant to the contracts containing the arbitration provision. Id. at
609. The Alabama Supreme Court concluded that the wife’s claims were subject to
arbitration under the equitable estoppel exception because the wife had not alleged
nor did the Court see how the wife could prove the existence of a duty owed by the
defendant without reference to the contracts containing the arbitration provision. Id.
at 610.
Under these circumstances, as in Olshan, it is difficult to see how Griggs could
prove his claims without the repair orders and/or invoices at issue. Griggs’s claims
are predicated on and arise out of Kenworth’s failure to repair the truck. And
Kenworth had a duty to repair the truck only because of the repair orders and/or
invoices. Accordingly, the Court concludes that Griggs’s claims sufficiently depend
on the existence of the repair orders and/or invoices such that he is equitably
estopped from avoiding arbitration.
Finally, Griggs’s claims can be compelled to arbitration only if the arbitration
agreement is broad enough to encompass his claims. The Court finds that it is. The
arbitration agreement specifically includes “[a]ny controversy or claim arising out
of or relating to this Invoice or otherwise relating in any fashion to the purchase or
sale of equipment, parts or service thereon.” On its face, this provision is not limited
17
to the parties to the contract and encompasses Griggs’s negligence claims, which
arise out of or relate to the repair work performed by Kenworth as identified in the
repair orders and/or invoices. Though Griggs argues that a later provision in the
arbitration agreement related to jurisdictional consent—that “the parties hereto
submit to the jurisdiction of all state and federal courts having venue in the county
in which the dealership is located”—limits the arbitration agreement to the parties
to the contract, this language at most creates doubt as to the scope of the arbitration
agreement. And to the extent there is doubt concerning the scope of the agreement,
that doubt should be resolved in favor of arbitrability. Moses H. Cone Memorial
Hosp., 460 U.S. 1, 24-25 (1983) (“The Arbitration Act establishes that, as a matter
of federal law, any doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration . . . .”); Bazemore, 827 F.3d at 1329 (same); AlliedBruce Terminix Companies, Inc. v. Dobson, 684 So. 2d 102, 107 (Ala. 1995) (same).
B. Brinson’s Claims
Unlike Griggs, it is undisputed that Brinson did not sign any of the repair
orders and/or invoices containing the arbitration agreement, either in an individual
or representative capacity. But Kenworth argues that Brinson’s claims are
nonetheless subject to arbitration under the same equitable estoppel exception
applicable to Griggs’s claims because Brinson, too, asserts claims to enforce rights
18
or obtain benefits that depend on the existence of the contract containing the
arbitration agreement.
For his part, Brinson did not respond to Kenworth’s renewed motion to
compel arbitration or the Court’s order requiring him to show cause as to why his
claims should not be submitted to arbitration.3 See Doc. 138. Brinson also failed to
appear at the telephone conference the Court held on Kenworth’s renewed motion
to compel arbitration. See Doc. 141. Accordingly, he has waived any opposition to
arbitration. See United States v. Lawler, 400 F. App'x 476 (11th Cir. 2010)
(recognizing that failure to respond to show cause order waives arguments in
opposition); Abraham v. Greater Birmingham Humane Soc., Inc., No. 2:11-cv-4358,
2013 WL 1346534, at *4 (N.D. Ala. Mar. 28, 2013) (“Generally, the failure to
respond to arguments constitutes abandonment or waiver of the issue.”).
Nonetheless, the same rule that compels arbitration as to Griggs also requires
Brinson’s claim to be arbitrated. Brinson, like Griggs, claims that Kenworth
negligently failed to repair the truck, which led to the accident causing his injuries.
Specifically, Brinson claims the following: (1) that Kenworth and Arrow “diagnosed
the cause of the malfunction and determined what repairs and replacement of parts
3
Brinson responded to Kenworth’s original motion to compel arbitration, but that was several
years ago before the Court’s denial of that motion, Kenworth’s appeal, and the Eleventh Circuit’s
ruling. Griggs’s counsel filed a brief in opposition to Kenworth’s renewed motion that addressed
the arbitrability of Brinson’s claims, Doc. 136, but Griggs’s counsel later clarified that they do not
represent Brinson and did not have authority to speak for him.
19
were to be made” and “controlled the time, place, manner, and nature of the tractor’s
inspection, diagnosis, and repair”; (2) that the “tractor’s loss of power and engine
shut down was a proximate result of Defendants’ negligence surrounding the
tractor’s inspection, diagnosis, and repair”; (3) that Kenworth “acted negligently
and/or wantonly in failing to adequately evaluate, investigate and confirm the cause
of the subject tractor’s performance problems” prior to returning the truck to Griggs;
and (4) that Kenworth “acted negligently in failing to confirm all necessary repairs
had been performed” prior to returning the truck to Griggs.” (Doc. 50, ¶¶ 11, 12, 23,
and 24).
As explained above, a claim for negligent failure to perform a contractual
duty, which is essentially Brinson’s claim, is nothing more than a contract claim.
And even if Brinson’s claims were in fact negligence claims, as with Griggs’s
claims, the Court is unable to see how Brinson can prove the required existence of a
duty owed by Kenworth to Brinson without the repair orders and/or invoices under
which Kenworth contracted to repair the truck. It is inapposite that Brinson is not a
family member, spouse, or agent of A.K.G. or Griggs. What matters is that Brinson’s
claims “depend upon the existence of the contracts containing the arbitration
provision.” And because the arbitration agreement is broad enough to encompass
Brinson’s claims for the same reasons discussed above, Brinson’s claims, like
Griggs’s, are subject to arbitration.
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CONCLUSION
Based on the foregoing reasons, Kenworth’s Motion to Compel Arbitration
(Doc. 26), Motion to Compel Intervenor Yusef Brinson’s Claims to Arbitration
(Doc. 52), and Renewed Motion to Compel Plaintiff’s Claims and Intervenor’s
Claims to Arbitration (Doc. 133) are GRANTED.
DONE and ORDERED this 26th day of December 2019.
/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES DISTRICT JUDGE
21
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