Arbitrator to Decide Waiver of Right to Arbitrate

Key v. Averett, et al., [Ms. 1210124, May 20, 2022] __ So. 3d __ (Ala. 2022). The Court (Mendheim, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and Stewart, JJ., concur; Mitchell, J., concurs specially) reverses the Shelby Circuit Court’s order denying James P. Key, Jr.’s (“Key”) motion to compel arbitration of his claims against Warren Averett, LLC, and Warren Averett Companies, LLC (collectively “WA”). WA argued that Kelly waived the right to compel arbitration in the subject personal services agreement (“PSA”) by substantially involving the litigation process when he filed suit against WA and several WA officers and members. Ms. *13. After the claims against the individual defendants were dismissed, the trial court denied Key’s motion to compel arbitration of his claims against WA. Ibid.

The Court concludes “Section 16 of the PSA requires that issues of arbitrability – including whether Key has waived his right to compel arbitration by substantially invoking the litigation process – must be decided by the arbitrator, not the court.” Ms. *18, citing Bugs “R” Us, LLC v. McCants, 223 So. 3d 913, 918-19 (Ala. 2016).

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