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ARBITRATION AGREEMENT - RETALIATORY DISCHARGE - SSC SELMA OPERATING COMPANY, LLC V. FIKES

SSC Selma Operating Company, LLC v. Fikes, [Ms. 1160080, May 19, 2017] __ So. 3d __ (Ala. 2017). This decision authored by Justice Bolin (Stuart, C.J., and Parker, Main, Wise, and Bryan, JJ., concur, and Murdock and Shaw, JJ., concur in the result), reverses the trial court’s order denying a nursing home’s motion to compel arbitration of a claim by its former employee alleging she was discharged in retaliation for filing a workers’ compensation claim. The issue before the Court was whether the employee met her burden of demonstrating that the retaliatory-discharge claim was not encompassed by the EDR program’s arbitration provisions. The EDR program had a carve out provision which provided that “disputes not covered under the EDR program relate to workers’ compensation, unemployment benefits, health, welfare, and retirement benefits, and claims by the [company’s] for injunctive relief to protect trade secrets and confidential information.” Ms. *5.

The Court held that the trial court erred in concluding that the retaliatory discharge claim was not within the scope of the arbitration requirement of the EDR agreement. While noting that a retaliatory discharge claim under § 25-5-11.1 arises out of a workers’ compensation fact pattern, “the claim is nevertheless a tort action and is governed by the general rules of tort law.” Ms. *8, citing Jackson’s Cty. Hos. v. Alabama Hosp. Ass’n. Trust, 619 So. 2d 1369 (Ala. 1993). The Court further reasoned that the plain language of the document establishing the EDR program expressed an intent to submit to arbitration tort claims typically resolved by jury trial as opposed to disputes governed by statutes where recovery is typically limited and resolution is non-jury. Ms. *8.

The Court further held that even if it assumed the existence of a latent ambiguity, “well settled [] federal policy ‘dictates that [any uncertainty or ambiguity] be resolved in favor of arbitration.’” Ms. *13, quoting Koullas [v. Ramsey], 683 So. 2d [415], 417 (Ala. 1996)]. Ms. *13.

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