I concur in the portion of the main opinion holding that it is for the arbitrator rather than the court to decide the "procedural arbitrability" of the claims by Consolidated Construction Company of Alabama ("CCC") against Rainbow Cinemas, LLC. I dissent as to the portion of the main opinion holding that it also is for the arbitrator to decide the "substantive arbitrability" of the claims by CCC against the individual defendants.
The latter issue arises in the context of nonsignatories-the individual defendants-seeking to require a signatory-CCC-to submit its claims against them to arbitration. As a general rule, one who is not a signatory to an arbitration agreement cannot enforce that agreement. An exception to this rule exists in cases where the signatory is estopped from asserting that an arbitration agreement cannot be enforced by a nonsignatory. This Court has stated that,
"[i]n order for a party to be equitably estopped from asserting that an arbitration agreement cannot be enforced by a nonparty [to an arbitration agreement], the arbitration provision itself must indicate that the party resisting arbitration has assented to the submission of claims against nonparties ... to arbitration. See Ex parte Napier, 723 So.2d [49] at 53 [ (Ala. 1998) ]. [What] is required is (1) that the scope of the arbitration agreement signed by the party resisting arbitration be broad enough to encompass those claims made by that party against nonsignatories, or that those claims be 'intimately founded in and intertwined with' the claims made by the party resisting arbitration against an entity that is a party to the contract, and (2) that the description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it."
Ex parte Stamey, 776 So.2d 85, 89 (Ala. 2000).
For the reasons explained by Justice Parker in his special writing, I agree that the decision as to the "substantive arbitrability" of the dispute between CCC and the individual defendants, under the above-stated standard, should be made by the court.