NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5388-16T3
MILAGROS ROMAN,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
September 24, 2018
BERGEN LOGISTICS, LLC and APPELLATE DIVISION
GREGG OLIVER,
Defendants-Respondents.
______________________________
Argued February 5, 2018 – Decided August 23, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2652-17.
Peter D. Valenzano argued the cause for appellant
(Mashel Law, LLC, attorneys; Stephan T. Mashel, of
counsel and on the briefs; Peter D. Valenzano, on the
briefs).
Jessica L. Sussman argued the cause for respondent
Bergen Logistics, LLC (Jackson Lewis PC, attorneys;
Richard J. Cino, of counsel; Jessica L. Sussman, on
the brief).
Kyle L. Wu argued the cause for respondent Gregg
Oliver (Margolis Edelstein, attorneys; Michael R.
Miller and Kyle L. Wu, of counsel and on the brief).
Thaddeus P. Mikulski, Jr., attorney for amicus curiae
National Employment Lawyers Association of New
Jersey, Inc. (Thaddeus P. Mikulski, Jr. and Richard M.
Schall, on the brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
Plaintiff Milagros Roman appeals from an order dismissing her sexual
harassment and retaliation complaint against defendants Bergen Logistics,
LLC and Gregg Oliver. Because we are convinced the court correctly
determined the complaint should be dismissed because plaintiff agreed to
arbitrate her claims, we affirm but modify the court's order to permit plaintiff
to pursue her punitive damages claims in arbitration.
I.
In September 2015, Bergen Logistics hired plaintiff as a human
resources generalist. Oliver was Bergen Logistics's Human Resources
Director and plaintiff's immediate supervisor. He terminated plaintiff's
employment on December 30, 2015.
In an April 2017 Law Division complaint, plaintiff alleged Oliver
sexually harassed her and created a sexually hostile work environment during
her employment. She also alleged that after she objected to his conduct and
sexual advances, he retaliated against her and terminated her employment. She
asserted causes of action against Bergen Logistics and Oliver under the New
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2
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and for
intentional infliction of emotional distress.
Defendants moved to dismiss the complaint, asserting plaintiff was
obligated to arbitrate her claims pursuant to the arbitration agreement she
signed when hired in September 2015. In support of their motion, defendants
relied on the agreement, which refers to plaintiff as "you" and Bergen
Logistics as the "Company, and provides in pertinent part that "[a]s an express
condition of" plaintiff's "hiring" and "continu[ed]" employment by Bergen
Logistics she agreed:
(i) all (past, present and future) disputes, controversies
and claims of any nature (whether under federal, state
or local laws and whether based on contract, tort,
common law, statute . . .) arising out of, involving,
affecting or related in any way to your . . .
employment . . . and/or termination of employment by
or from Company, the conditions of your employment,
or any act or omission of Company or Company's
other employees shall be resolved exclusively by final
and binding arbitration before the American
Arbitration Association . . . . This Agreement covers
all employment matters, including but not limited to
matters directly or indirectly related to wrongful
termination, . . . discrimination, harassment,
retaliation (in the whistle blower or any other context),
. . . and any other violation of state, federal or
common law . . . .
....
(iii) neither you nor Company shall file or maintain
any lawsuit, action or legal proceeding of any nature
A-5388-16T3
3
with respect to any dispute, controversy or claim
within the scope of this Agreement, including, but not
limited to, any lawsuit, action or legal proceeding
challenging the arbitrability of any such dispute . . . .
BY SIGNING THIS AGREEMENT YOU AND
COMPANY ARE WAIVING ANY RIGHT,
STATUTORY OR OTHERWISE, TO A TRIAL BY
JURY AND TO PUNITIVE AND EXEMPLARY
DAMAGES . . . .
....
YOU ACKNOWLEDGE AND AGREE THAT
YOU . . . READ THIS AGREEMENT AND . . . HAD
SUFFICIENT TIME TO STUDY AND CONSIDER
IT AND TO CONSULT WITH COUNSEL OF YOUR
CHOICE, THAT YOU UNDERSTAND ALL OF ITS
TERMS AND ARE SIGNING THIS AGREEMENT
KNOWINGLY AND VOLUNTARILY, AND THAT
IN DOING SO YOUR ARE NOT RELYING UPON
ANY OTHER STATEMENTS OR
REPRESENTATIONS BY THE COMPANY, ITS
AFFILIATE OR THEIR EMPLOYEES OR
AGENTS . . . .
Plaintiff opposed the motion, arguing the agreement was unenforceable
as against public policy because it barred her recovery of punitive damages
otherwise available under the LAD. See N.J.S.A. 10:5-3 (providing for the
recovery of punitive damages for LAD claims). Plaintiff also asserted the
agreement was unenforceable because she was unable to read it when it was
presented, it was not written in plain language and she did not read it before
signing it.
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4
After hearing argument, the court issued a written opinion finding
plaintiff knowingly signed the agreement, and that it contained an
unambiguous waiver of claims for "punitive and exemplary damages." 1 The
court found plaintiff's hiring and continued employment provided
consideration for the agreement, which covered the claims asserted in the
complaint, was binding and required submission of her claims to arbitration.
The court entered an order dismissing the complaint. This appeal followed.
II.
Plaintiff first contends the court erred by dismissing the complaint
because the arbitration agreement's punitive damages waiver violates the
public policy underlying the LAD, thereby rendering the agreement
unenforceable.2 Bergen Logistics and Oliver contend punitive damages
waivers do not violate public policy and therefore there is no basis to void
plaintiff's obligation to arbitrate her claims under the agreement's plain
language.
1
We note that although the arbitration agreement refers to "punitive and
exemplary damages," the two are one and the same. See Fischer v. Johns-
Manville Corp., 103 N.J. 643, 654 (1986) (referring to punitive damages and
exemplary damages interchangeably); Restatement (Second) of Torts § 908(1)
(Am. Law Inst. 1979) (noting that punitive damages are frequently called
"exemplary" damages).
2
Amicus curiae, National Employment Lawyers Association of New Jersey,
Inc., make the same argument.
A-5388-16T3
5
We review the court's order dismissing the complaint de novo because it
is founded on a determination of a question of law - the validity of the
arbitration agreement. Barr v. Bishop Rosen & Co., Inc., 442 N.J. Super. 599,
605 (App. Div. 2015). "Our review of a contract, generally, is de novo, and
therefore we owe no special deference to the trial court's . . . interpretation.
Our approach in construing an arbitration provision of a contract is governed
by the same de novo standard of review." Atalese v. U.S. Legal Servs. Grp.,
L.P., 219 N.J. 430, 445-46 (2014) (citations omitted).
The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, and the New
Jersey Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -32, reflect federal and
state policies favoring arbitration of disputes. Roach v. BM Motoring, LLC,
228 N.J. 163, 173-74 (2017); Hojnowski v. Vans Skate Park, 187 N.J. 323, 342
(2006). The FAA was enacted "to 'reverse the longstanding judicial hostility'
towards arbitration agreements and to 'place arbitration agreements upon the
same footing as other contracts,'" Roach, 228 N.J. at 173 (quoting Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)), and "preempts state
laws that single out and invalidate arbitration agreements," id. at 174 (citing
Doctor's Assocs. v. Casarotto, 517 U.S. 681, 687 (1996)). A court "'cannot
subject an arbitration agreement to more burdensome requirements than' other
contractual provisions." Ibid. (quoting Atalese, 219 N.J. at 441).
A-5388-16T3
6
"The preference for arbitration 'is not without limits,'" Hirsch v. Amper
Fin. Servs., LLC, 215 N.J. 174, 187 (2013) (quoting Garfinkel v. Morristown
Obstetrics & Gynecology Assocs., 168 N.J. 124, 132 (2001)), and "[t]he right
of freedom to contract 'is not such an immutable doctrine as to admit of no
qualification,'" Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 361
(2016) (quoting Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 388
(1960)). "[S]tate contract-law principles generally govern a determination
whether a valid agreement to arbitrate exists." Hojnowski, 187 N.J. at 342.
Thus, "[a]n arbitration clause may be invalidated 'upon such grounds as exist
at law or in equity for the revocation of any contract.'" Martindale v.
Sandvick, Inc., 173 N.J. 76, 85 (2002); see also Morgan v. Sanford Brown
Inst., 225 N.J. 289, 303-04 (2016) ("Under the FAA, an arbitration agreement,
like any contract, may be held invalid 'upon such grounds as exist at law or in
equity for the revocation of any contract.'"); Rent-A-Center, W., Inc. v.
Jackson, 561 U.S. 63, 68 (2010) (quoting Casarotto, 517 U.S. at 687) (finding
arbitration agreements "may be invalidated by 'generally applicable contract
defenses, such as fraud, duress, or unconscionability'").
Our courts have "recognize[d] that an individual may agree by contract
to submit his or her statutory LAD claim to alternative dispute resolution and
therefore different processes," Rodriquez, 225 N.J. at 364, and applied state
A-5388-16T3
7
contract law principles in enforcing agreements requiring arbitration of
employment-related claims, see, e.g., Martindale, 173 N.J. at 91-92 (finding an
arbitration agreement in an employment application constitutes a binding
contractual obligation); Young v. Prudential Ins. Co. of Am., Inc., 297 N.J.
Super. 605, 618 (App. Div. 1997) (enforcing an agreement to arbitrate LAD
claims and claims arising under the Conscientious Employee Protection Act,
N.J.S.A. 34:19-1 to -14).
Applying contract principles, our courts have also determined
agreements otherwise requiring arbitration of employment-related claims are
unenforceable. See, e.g., Leodori v. Cigna Corp., 175 N.J. 293, 302-07 (2003)
(finding an arbitration requirement in an employee handbook was not binding
because there was no evidence the plaintiff consented to it); Garfinkel, 168
N.J. at 132-36 (finding an arbitration agreement too ambiguous to constitute a
binding contractual obligation waiving the right to a trial by jury); Quiqley v.
KPMG Peat Marwick, LLP, 330 N.J. Super 252, 270-73 (App. Div. 2000)
(finding an arbitration agreement unenforceable as to the plaintiff's LAD
claims because the contract did not clearly cover such claims).
In Rodriguez, the Court determined an arbitration agreement provision
requiring the filing of an employee's LAD claim within six months of its
accrual was unenforceable under general contract principles because it violated
A-5388-16T3
8
the public policy embodied in the LAD. 225 N.J. at 363-66. The Court noted
that "the right of freedom to contract 'is not such an immutable doctrine as to
admit of no qualification,'" and "[t]he right must recede to 'prevent its abuse,
as otherwise it could be used to override all public interests.'" Id. at 361
(quoting Henningsen, 32 N.J. at 388).
The Court found the LAD "exists for the good of all the inhabitants of
New Jersey," and is "imbued with a public-interest agenda" of eliminating
discrimination. Ibid. Thus, the Court reasoned that a "contractual limitation
on an individual's right to pursue and eradicate discrimination of any form
prohibited under the LAD is not simply . . . a private matter," but instead
"would curtail a claim designed to also further a public interest." Ibid. The
Court found the two-year statute of limitations for the filing of a LAD claim
recognized in Montells v. Haynes, 133 N.J. 282 (1993), has been tacitly
approved by the Legislature, and is "woven . . . into the fabric of the LAD" and
"part of the statutory program and how it operates." Id. at 362.
The Court observed that although an individual may agree by contract to
submit his or her LAD claims to arbitration, "in permitting the submission of
an LAD claim to an alternative forum by operation of contract, the contract is
examined to determine whether substantive rights have been precluded." Id. at
364. The Court determined the arbitration agreement requiring that LAD
A-5388-16T3
9
claims be filed within six months was unenforceable because it "is contrary to
the public policy expressed in the LAD," ibid., "undermines the integrated
nature of the statutory avenues of relief and the election of remedies available
to victims of discrimination," id. at 362, and would "effectively eliminate[ ]
claims,"3 id. at 363; see also Van Duren v. Rzasa-Ormes, 394 N.J. Super. 254,
267-68 (App. Div. 2007) (finding an arbitration agreement provision
foreclosing judicial review of an arbitration award void as against public
policy).
Measured against the standard employed by the Court in Rodriguez, we
are persuaded the arbitration agreement's bar of punitive damages claims under
the LAD is unenforceable because it violates the public policy embodied in the
LAD. Our Supreme Court has "long recognized that the essential purpose of
the LAD is the 'eradication of the cancer of discrimination.'" Quinlan v.
Curtiss-Wright Corp., 204 N.J. 239, 258 (2010) (quoting Fuchilla v. Layman,
3
The Court also observed that "contracts, or discrete contract provisions,"
may be unenforceable because they are unconscionable. Id. at 366. However,
the Court found it unnecessary to decide if the arbitration agreement's
provision requiring that LAD claims be filed within six months was
unconscionable because it otherwise violated public policy. Ibid. We similarly
do not address whether the punitive damages bar under the arbitration
agreement is unenforceable as unconscionable, see Muhammad, 189 N.J. at 15
(explaining the standard for determining whether an arbitration agreement is
unenforceable as unconscionable), because we determine the provision is
unenforceable because it violates public policy.
A-5388-16T3
10
109 N.J. 319, 334 (1988)); accord Rodriguez, 225 N.J. at 361. The Court has
"been vigilant in interpreting the LAD in accordance with that overarching
purpose," Quinlan, 204 N.J. at 259, and "scrupulous in [its] insistence that the
[LAD] be applied to the full extent of its facial coverage,'" ibid. (quoting
Bergen Commercial Bank v. Sisler, 157 N.J. 188, 216 (1999)).
In 1990, the Legislature amended the LAD to permit the recovery of
punitive damages. L. 1990, c. 12. The amendment includes an unambiguous
declaration of public policy providing a substantive remedy to victims of
discrimination: "[t]he Legislature intends that [punitive] damages be available
to all persons protected by" the LAD. L. 1990, c. 12; N.J.S.A. 10:5-3.
"Awards of punitive damages [under the LAD] . . . serve particular
purposes, which [the Court has] described as 'the deterrence of egregious
misconduct and the punishment of the offender.'" Quinlan, 204 N.J. at 273
(quoting Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337-38
(1993)); see also Fischer, 103 N.J. at 657 (citation omitted) ("The doctrine of
punitive damages survives because it continues to serve the useful purposes of
expressing society's disapproval of intolerable conduct and deterring such
conduct where no other remedy would suffice."). Our Supreme Court "view[s]
the . . . scope of an employer's liability for compensatory and punitive
damages as a question of public policy," to be resolved in a manner
A-5388-16T3
11
"provid[ing] the most effective intervention and prevention of employment
discrimination." Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 625 (1993).
The availability of punitive damages serves the LAD's public policy of
eradicating employment discrimination by focusing on the deterrence and
punishment of particularly serious discriminatory conduct by certain
employees. See Fischer, 103 N.J. at 657 (noting that punitive damages "punish
the wrongdoer" and "deter both the wrongdoer and others from similar conduct
in the future"). Punitive damages may be awarded under the LAD only where
there is "proof that there was 'actual participation by upper management or
willful indifference,' and proof that the conduct was 'especially egregious.'"
Quinlan, 204 N.J. at 274 (quoting Rendine v. Pantzer, 141 N.J. 292, 313-14
(1995)). "[F]or an employer to be held liable for punitive damages under the
LAD, there must be some involvement by a member of the employer's upper
management." Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 117 (1999). The
Court has defined those employees who may be properly considered to be in
upper management, see id. at 128-29, and stated the "purpose of the definition
of 'upper management' is to 'provid[e] employers with the incentive not only to
provide voluntary compliance programs'" directed at eliminating workp lace
discrimination, "but also to insist on the effective enforcement of their
A-5388-16T3
12
programs . . . [,]" id. at 128 (alteration in original) (quoting Lehmann, 131
N.J. at 626).
In our view, a contractual provision barring an employee's access to
punitive damages under the LAD not only violates public policy by
eliminating a remedy the Legislature expressly declared is available to all
victims of discrimination under the statute, see Martindale, 173 N.J. at 93-94
(enforcing an agreement to arbitrate LAD claims in part because none of the
plaintiff's substantive rights and remedies under the statute were affected);
N.J.S.A. 10:5-3, it also eviscerates an essential element of the LAD's purpose –
deterrence and punishment of the most egregious discriminatory conduct by
employees who, by virtue of their position and responsibilities, see Cavuoti,
161 N.J. at 128-29 (providing the standards for inclusion in upper
management), control employer policies and actions that should prevent
discriminatory conduct in the workplace. An agreement barring the recovery
of punitive damages to victims of employment discrimination under the LAD
allows an employer's upper management to be willfully indifferent to the most
egregious forms of discriminatory conduct without fear of punishment and
without the incentive to stop or prevent the discriminatory conduct that the
availability of punitive damages is intended to provide. We find such a result
is contrary to the public policy underlying the LAD – the eradication of
A-5388-16T3
13
discrimination – and therefore the arbitration agreement's bar to the recovery
of punitive damages is unenforceable as against public policy. Rodriguez, 225
N.J. at 361; see also Estate of Anna Ruszala ex. rel. Mizerak v. Brookdale
Living Cmtys., Inc., 415 N.J. Super. 272, 298-99 (App. Div. 2010) (finding an
arbitration agreement provision precluding recovery of punitive damages
otherwise available under the Nursing Home Responsibilities and Rights of
Residents Act, N.J.S.A. 30:13-1 to -17, is "void and unenforceable under the
doctrine of substantive unconscionability").
As we determined in Ruszala, where we found an arbitration agreement
provision precluding the recovery of punitive damages unenforceable, "the
remedy here is to enforce our federal policy in favor of arbitration, while
excising . . . restrictions we have concluded are unenforceable." 415 N.J.
Super. at 300; see also Muhammad, 189 N.J. at 26 (finding an arbitration
agreement's class-arbitration waiver was unenforceable and severing the
waiver provision). We reject plaintiff's claim that severance of the
unenforceable provision barring recovery of punitive damages is not
appropriate because the arbitration agreement does not expressly provide for
severance. See, e.g., Muhammad, 189 N.J. at 26 (rejecting the argument that
severance of an unenforceable contract provision was inappropriate in part
because the agreement reflected an intention that the contract would be
A-5388-16T3
14
implemented without the unenforceable provision); Ruszala, 415 N.J. Super. at
300 (concluding severance of unenforceable contract provisions was
appropriate "as provided for in the arbitration agreement").
"[I]f a contract contains an illegal provision, if such provision is
severable [we] will enforce the remainder of the contract after excising the
illegal position." Naseef v. Cord, Inc., 90 N.J. Super. 135, 143 (App. Div.),
aff'd, 48 N.J. 317 (1966). In Van Duren, 394 N.J. Super. at 268, the arbitration
agreement did not address severability, but we nevertheless determined that an
unenforceable provision barring judicial review of an arbitration award should
be severed because "the agreement [was] otherwise valid and enforceable." As
the Third Circuit Court of Appeals stated in a similar context, "[y]ou don’t cut
down the trunk of a tree because some of its branches are sickly." Spinetti v.
Serv. Corp. Int'l, 324 F.3d 212, 214 (3d Cir. 2003).
We are satisfied the unenforceable prohibition against the recovery of
punitive damages should be severed from the otherwise valid agreement to
arbitrate the claims asserted in the complaint. The parties shall do so,
however, without any limitation on plaintiff's right to recover punitive or
exemplary damages.
A-5388-16T3
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III.
Plaintiff next argues that even if the punitive damages waiver provision
is valid or otherwise severable, the arbitration agreement is unenforceable
because she did not knowingly and voluntarily enter into an agreement to
arbitrate the claims asserted in the complaint. More particularly, she contends
the arbitration agreement did not include a sufficiently clear waiver of her
right to litigate her claims in court, her right to a jury trial and her right to
punitive and exemplary damages. She also argues she did not knowingly
waive any of her rights because she was not provided an opportunity to take
the document home, did not have legal counsel, was not told she was giving up
her right to proceed to court, and did not understand what the terms "punitive"
and "exemplary" meant. Last, she claims she was entitled to a plenary hearing
on her claim that she did not knowingly and voluntarily waive her rights by
entering into the arbitration agreement.
An arbitration agreement, "like any other contract, 'must be the product
of mutual assent, as determined under customary principles of contract law.'"
Atalese, 219 N.J. at 442 (citation omitted). "Mutual assent requires that the
parties have an understanding of the terms to which they have agreed." Ibid.
"This requirement of a 'consensual understanding' about the rights of access to
the courts that are waived in the agreement has led our courts to hold that
A-5388-16T3
16
clarity is required." Moore v. Woman to Woman Obstetrics & Gynecology,
L.L.C., 416 N.J. Super. 30, 37 (App. Div. 2010) (citation omitted).
"By its very nature, an agreement to arbitrate involves a waiver of a
party's right to have her claims and defenses litigated in court." Atalese, 219
N.J. at 442 (citation omitted). However, "an average member of the public
may not know — without some explanatory comment — that arbitration is a
substitute for the right to have one's claim adjudicated in a court of law." Ibid.
Plaintiff's claim that the agreement does not adequately state she waived
her right to proceed in court and to a jury trial is undermined by the
agreement's plain language. The agreement states that plaintiff and Bergen
Logistics agree not to "file or maintain any lawsuit, action or legal proceeding
of any nature with respect to any dispute, controversy or claim within the
scope of [the] Agreement," and that "BY SIGNING [THE] AGREEMENT
[PLAINTIFF] AND THE COMPANY ARE WAIVING ANY RIGHT,
STATUTORY OR OTHERWISE TO A TRIAL BY JURY." The agreement
also expressly states that any covered claims "shall be resolved exclusively by
final and binding arbitration." In Atalese, the Court held "the absence of any
language in the arbitration provision that plaintiff was waiving her statutory
right to seek relief in a court of law renders the provision unenforceable." Id.
at 436. Here, the arbitration agreement informed plaintiff that the exclusive
A-5388-16T3
17
forum for resolution of her claims was arbitration, she was prohibited from
filing any other lawsuits or legal proceedings and she waived her right to a
trial by jury.
The Court in Atalese provided "examples of language sufficient to meet
these expectations." Barr, 442 N.J. Super. at 606. Our Supreme Court noted
our decision in Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515,
518 (App. Div. 2010), where we "upheld an arbitration clause, which
expressed that '[b]y agreeing to arbitration, the parties understand and agree
that they are waiving their rights to maintain other available resolution
processes, such as a court action or administrative proceeding, to settle their
disputes.'" Atalese, 219 N.J. at 445.
In Atalese, the Court also cited an arbitration clause stating "the plaintiff
agreed 'to waive [her] right to a jury trial,'" and another where the arbitration
clause stated: "Instead of suing in court, we each agree to settle disputes . . .
only by arbitration," where "[t]here's no judge or jury." Id. at 444-45 (citations
omitted). A valid arbitration agreement does not require advice on all
component rights encompassed in a waiver of seeking relief in court. Such a
requirement would render arbitration clauses too complex, hard to understand,
and easy to invalidate, in contravention of the strong public policy favoring
arbitration. See Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464,
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480-81 (App. Div. 2015) (upholding an arbitration clause stating the parties
would not "be able to sue in court," and rejecting plaintiffs' argument that the
"the arbitration agreement must inform the parties of (1) the number of jurors,
(2) the parties' rights to choose the jurors, (3) how many jurors would have to
agree on a verdict, and (4) who will decide the dispute instead of the jurors.").
Here, the agreement made clear that the parties opted for arbitration to
resolve their disputes rather than "lawsuit[s], action or [other] legal
proceeding[s]," and the arbitration would be conducted before the American
Arbitration Association, not a court. The agreement expressly provided, in
bold letters, that plaintiff and Bergen Logistics waived their right to a trial by
jury. Thus, the record provides no support for plaintiff's claim the arbitration
agreement did not provide adequate notice plaintiff waived her right to
prosecute her claims in a court proceeding and to a trial by jury. An
enforceable arbitration agreement "at least in some general and sufficiently
broad way, must explain that plaintiff is giving up her right to bring her claims
in court or have a jury resolve the dispute." Atalese, 219 N.J. at 447. The
arbitration agreement meets that standard here. 4
4
Because we have determined the agreement's putative waiver of plaintiff's
right to seek punitive and exemplary damages is unenforceable, it is
unnecessary to address her claim she did not knowingly and voluntarily agree
to the waiver because the term "punitive and exemplary damages" was not
(continued)
A-5388-16T3
19
We also reject plaintiff's contention the agreement is not enforceable
because she was not provided an opportunity to read it, could not understand it
or was not informed of her right to confer with counsel. The argument is also
contradicted by the plain language of the agreement, stating that by its
execution plaintiff acknowledged and agreed she read it, had sufficient time to
study and consider it, had sufficient time to confer with counsel of her choice,
understood its terms, signed it knowingly and voluntarily, and did not rely on
any statements or representations by Bergen Logistics in doing so. In
plaintiff's submissions, she does not address this provision of the agreement or
contend she did not, or could not, understand it.
Moreover, "[a] party who enters into a contract in writing, without any
fraud or imposition being practiced upon him, is conclusively presumed to
understand and assent to its terms and legal effect." Rudbart v. N. Jersey Dist.
Water Supply Comm'n, 127 N.J. 344, 353 (1992) (quoting Fivey v. Pa. R.R.
Co., 67 N.J.L. 627, 632 (E. & A. 1902)). An employee who signs but claims
(continued)
explicitly defined in the agreement. We observe, however, that the damages
waiver was clearly and unequivocally stated in the agreement, and plaintiff's
inability to understand the term would not otherwise have been a defense to
the enforceability of the arbitration agreement. See New Gold Equities Corp.
v. Jaffe Spindler Co., 453 N.J. Super 358, 381 (App. Div. 2018) (noting the
general rule that a party to a contract is presumed to have read and understood
its terms absent a showing of fraud or misconduct).
A-5388-16T3
20
to not understand an arbitration agreement will not be relieved from an
arbitration agreement on those grounds alone. See Booker v. Robert Half Int'l,
Inc., 315 F. Supp. 2d 94, 101 (D.D.C. 2004) ("Failing to read or understand an
arbitration agreement, or an employer's failure to explain it, simply will not
constitute 'special circumstances' warranting relieving an employee from
compliance with the terms of an arbitration agreement that she signed.").
Thus, plaintiff's claims she was unable to read or understand the agreement
and, for some undisclosed reason, precluded from conferring with her counsel
are unavailing, and did not require a plenary hearing.
Plaintiff's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. 5 R. 2:11-3(e)(1)(E).
In sum, we affirm the court's order dismissing the complaint. The
parties may proceed to arbitration in accordance with the arbitration
agreement, but the provision barring recovery of punitive and exemplary
5
We note that at oral argument, plaintiff's counsel argued for the first time
that the arbitration agreement contained an unenforceable fee-shifting
provision, and that the combination of the fee-shifting provision and punitive
damages waiver constituted and integrated scheme that rendered the agreement
unenforceable. We do not address the fee-shifting argument either alone or as
it pertains to any purported scheme because it was not raised before the motion
court and does not involve jurisdictional or public interest concerns, Zaman v.
Felton, 219 N.J. 199, 226-27 (2014), and was not briefed on appeal, see
Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div.
2008) (finding that an issue not briefed on appeal is deemed waived).
A-5388-16T3
21
damages is unenforceable and void. Plaintiff shall be permitted to prosecute
her claims for such damages at arbitration.
Affirmed as modified.
A-5388-16T3
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MILAGROS ROMAN VS. BERGEN LOGISTICS, LLC (L-2652-17, BERGEN COUNTY AND STATEWIDE)
Combined Opinion