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Menna v. Plymouth Rock Assurance Corp.

January 21, 2010

MARK MENNA, APPELLANT,
v.
PLYMOUTH ROCK ASSURANCE CORPORATION, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CA-7261-06) (Hon. Gerald I. Fisher, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued March 10, 2009

Before GLICKMAN, KRAMER, and THOMPSON, Associate Judges.

Mark Menna appeals the trial court's denial of his motion to compel Plymouth Rock Assurance Corporation ("Plymouth Rock") to participate in arbitration. Although Menna and Plymouth Rock were signatories to an arbitration agreement, the court was persuaded by Plymouth Rock's claims that it had withdrawn from the agreement, and that Menna was barred by the statute of limitations, laches, and his own waiver from enforcing his contractual rights. Plymouth Rock's purported withdrawal did not render its arbitration agreement with Menna a nullity, however. There is no doubt that the agreement was a valid contract. We conclude that the trial court therefore should have enforced it, leaving Plymouth Rock's procedural objections to be determined in the arbitration.

I. Background

The dispute at the heart of this appeal is almost two decades old. In 1992, Mark Menna was injured when the taxi cab in which he was riding as a passenger was struck by another vehicle. The driver of that vehicle, Sarah Callahan, was insured by Plymouth Rock. On June 30, 1995, Plymouth Rock (as Callahan's agent) and Menna entered into a contract to arbitrate his claim under the auspices of United States Arbitration and Mediation of the Northeast, Inc. ("USA&M").

The contracting parties stipulated to liability; the only matters in dispute were the nature and extent of Menna's injuries and the amount of his damages.*fn1 The parties agreed that the arbitrator would be invested with "the authority to settle all points and controversies" in their dispute and would conduct the arbitration in accordance with District of Columbia law and the Rules of USA&M. By their terms, those Rules were deemed to be incorporated in the arbitration contract and Plymouth Rock and Menna were "legally bound to comply with" them. The Rules commit certain procedural matters to the "sole discretion" of the Arbitration Coordinator, including the determination of whether a party has "failed to proceed" with arbitration as contractually required,*fn2 the resolution of "procedural disputes," the imposition of "time limits on parties," and the decision of whether to "require a party to take action or refrain from taking action" in connection with the arbitration.*fn3

Following the selection of an arbitrator, a hearing originally was scheduled to be held in the fall of 1997. The hearing was postponed, however, allegedly because Plymouth Rock retained new counsel who requested additional time to prepare. Due to a conflict, a new arbitrator was selected in the summer of 1998, but a new hearing date was not set. Menna alleges that he periodically inquired and was told that USA&M would notify him when the arbitration hearing was scheduled. So far as it appears, this notification never came.

Instead, in September 1999, USA&M sent Menna a letter it had received from Robin Sacco, a Plymouth Rock claims representative. That letter, dated September 16, 1999, announced Plymouth Rock's decision to "withdraw" its agreement to arbitrate because of what it claimed was Menna's failure to proceed.*fn4 In light of that announcement, USA&M informed Menna that it had closed its file.

Upon receiving this news, Menna immediately contacted USA&M, which reinstated the arbitration on its docket. Menna also called Ms. Sacco, who allegedly promised to "let [him] know if they [Plymouth Rock] were going to go forward or not." Thus, Menna claims, he understood that Plymouth Rock had not yet made a final determination whether to withdraw from its agreement to arbitrate. Over the next few years, however, Menna heard nothing further from Plymouth Rock. He allegedly called USA&M every few months and was told that Plymouth Rock was still considering whether it would proceed with the arbitration. (The contract did not specify a time for performance.) Finally, according to Menna, on September 29, 2003, USA&M informed him that Plymouth Rock had made its decision. The company had decided it would not arbitrate.

Almost three years later, on September 26, 2006, Menna sued Plymouth Rock and Callahan in Superior Court. Menna alleged that Callahan was negligent in causing the automobile accident in 1992, and that the defendants breached the arbitration contract when Plymouth Rock finally refused to proceed with the arbitration in September 2003. The complaint sought monetary damages or, in the alternative, an order requiring the defendants to arbitrate. Plymouth Rock filed an answer denying Menna's claims.

Several months later, in mid-2007, Menna moved the court pursuant to the District of Columbia Uniform Arbitration Act*fn5 to order the parties to proceed with arbitration in accordance with their contract. Opposing that motion, Plymouth Rock argued that there was no contract for the court to enforce because the company withdrew from its agreement to arbitrate in September 1999. Because Menna waited more than three years after its withdrawal to file his lawsuit, Plymouth Rock contended, he was barred by the statute of limitations and by laches from asserting any rights under the contract. Moreover, the company asserted, Menna waived his contractual rights by failing to proceed with the arbitration prior to September 1999, when he had the opportunity to do so.

In reply, Menna argued that Plymouth Rock's claims raised factual disputes regarding the existence of a valid arbitration agreement that would have to be resolved by the court in a summary evidentiary proceeding, as contemplated by the Uniform Arbitration Act, after the parties completed appropriate discovery.*fn6 Relying on his own deposition (which Plymouth Rock had taken), Menna proffered that he had not abandoned his pursuit of arbitration before USA&M and that Plymouth Rock had retracted its September 1999 withdrawal when it subsequently advised him and USA&M that it was still considering whether to go forward with the arbitration.

On October 26, 2007, the trial court denied Menna's motion to compel arbitration. It did so without first conducting the evidentiary proceeding that Menna had requested. The court's order states only that the motion was "denied for the reasons set ...


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