IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-CA-01669-SCT
PRE-PAID LEGAL SERVICES, INC., BROOKS
WERKHEISER, DYRE LAW FIRM, PLLC AND
ARNOLD D. DYRE
v.
SAMUEL BATTLE, REGINALD BURKS, MYRTIS
HOLLIS, JAMES ROBINSON, BENNIE IRVIN, MARY
KEELER, WILLIE McKENNY, RENATA L. MILLER,
DAVID MILLS, ERIC NORWOOD, GENEVA SHELBY,
SHEMEKIA SHELBY, PASTELLA SPRATLEY,
GEORGE WILLIAMS, LEONARD BODDIE, JOHN C.
BURWELL, ANGELA HUDNALL, MINNIE MOSELY,
CAROLINE SMITH, THELMA LOUISE SMITH,
JIMMY GRANT, SYLVIA GRANT, TONY BARFIELD,
MARY HONEYSUCKLE, LONEDELL NICHOLSON,
PATRICIA WHITFIELD, CHARLES ALEXANDER,
KENNETH M. CROOK AND BEVERLY THOMPSON
DATE OF JUDGMENT: 08/19/2002
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: RICHARD L. JONES
ROBERT L. GIBBS
ANNIE C. SANDERS
ANDREA LA'VERNE FORD EDNEY
TESELYN AFRIQUE MELTON
EARNEST G. TAYLOR
JOHN BENTON CLARK
SHANDA L. LEWIS
C. MICHAEL ELLINGBURG
ATTORNEYS FOR APPELLEES: J. BRAD PIGOTT
J. DOUGLAS MINOR
BARRY W. GILMER
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED AND REMANDED - 04/01/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. This matter is on appeal after a ruling by the Circuit Court of the First Judicial District
of Hinds County granting the Plaintiffs’ Motion for Partial Summary Judgment and denying
the Defendants’ Motion for Summary Judgment. In essence, the trial court granted declaratory
judgment finding that the plaintiffs had no obligation to arbitrate their disputes with the
defendants, and the defendants thus filed this appeal. For the reasons stated below, we affirm
the trial court’s ruling.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. Pursuant to Miss. Code Ann. §§ 83-49-1 et seq., National Pre-Paid Legal Services of
Mississippi, Inc. (“National”) offered contracts for legal expense insurance to individuals for
a monthly fee. National is incorporated in Georgia and has its principal place of business in
Ada, Oklahoma. National, in turn, has contracted with Pre-Paid Legal Services, Inc. (“Pre-
Paid”), an Oklahoma corporation, to provide administrative services for National. National is
a subsidiary of Pre-Paid and has no employees.
¶3. In accordance with § 83-49-13(6), National has submitted two contracts and a Legal
Shield Addendum which have been reviewed and approved by the Mississippi Insurance
Commissioner. Both contracts are in a 9-point font size and contain the following provisions
on the fifth page of the six page contract under the Subheading “General Provisions”:
E. Specific Exclusions: The following items are specifically excluded and shall not be interpreted as included
benefits:
2
...
2. Any person or entity who initiates or participates in a lawsuit against the Company or any of its
affiliates, or is named as a defendant or respondent in a lawsuit initiated by the Company or any of
its affiliates, shall be specifically excluded from receiving coverage under this Contract for services
related to such lawsuit. All coverage under this Contract for services unrelated to a lawsuit either
initiated by or against the Company or any of its affiliates, shall be suspended during the pendency
of such lawsuit.
F. Attorney Client Contract: All benefits provided under this Contract, except Title I benefits [Legal
Consultation and Legal Assistance Services], shall be subject to the terms of an Attorney-Client Contract to be
executed by the Covered Person prior to the time services are rendered, which contract may require payment of
anticipated costs to the Provider Attorney to cover legal services not covered by this Contract. All
determinations of anticipated costs shall be made in the sole discretion of the Provider Attorney, and eligibility
for receipt of benefits hereunder is contingent upon payment of same prior to commencement of legal
representation by Provider Attorney.
G. Provider Attorney: Provider Attorney is defined as a law firm designated by the Company to provide the
benefits described in this Contract.
...
K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will
decide such dispute and that decision will be binding on all parties to such dispute.
Neither contract or addendum shield required a signature or acknowledgment from the person
or persons purchasing the pre-paid legal expense agreement.
¶4. This action was brought in Hinds County Circuit Court by twenty-nine plaintiffs who
entered into one or the other contracts with National. One plaintiff, Samuel Battle, also
entered into an agreement with Pre-Paid Legal Services, Inc., to market the legal services
contracts. This marketing agreement is not at issue in this appeal. Named as defendants in the
Second Amended Complaint were Pre-Paid Legal Services, Inc. (Pre-Paid), Harlan [sic] C.
Stonecipher, Brooks Werkheiser (collectively referred to as “the Pre-Paid defendants”), Dyre
Law Firm, PLLC, and Arnold D. Dyre (collectively referred to as “Dyre defendants”). When
filing the Second Amended Complaint, the plaintiffs withdrew the breach of contract claim
against National Pre-Paid of Mississippi, removed National as a defendant, and added a claim
for declaratory judgment of no obligation to submit to arbitration. The Plaintiffs’ Motion for
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Leave to File a Third Amended Complaint, adding one additional plaintiff has not yet been ruled
upon by the trial court.
¶5. Harland Stonecipher is the founder and CEO of Pre-Paid, and a member of the Board
of National. Stonecipher has a Motion to Dismiss for Lack of Personal Jurisdiction pending
in the trial court. Brooks Werkheiser is the former Vice President of Pre-Paid. The Dyre
defendants provided legal counseling to members in Mississippi. The Pre-Paid defendants
admit that they are not parties to the contracts with National, but maintain they are entitled to
enforce the arbitration clause of the contract.
¶6. Plaintiffs have asserted the following eight causes of action: (1) violation of
Mississippi Deceptive Advertising Statute (§ 97-23-30) (Pre-Paid defendants only); (2) tort
of deceit (or fraud) (Pre-Paid defendants only); (3) tort of civil conspiracy (all defendants);
(4) tort of professional negligence (Dyre defendants only); (5) tort of negligent
misrepresentation (all defendants); (6) breach of fiduciary duty (Dyre defendants only); (7)
illegal payments to the Dyre defendants (all defendants); (8) fraudulent inducement of sales
contract (Battle is the only plaintiff asserting this count against Pre-Paid defendants); and (9)
declaratory judgment that their claims are not subject to arbitration (against all defendants).
Thereafter, the defendants filed suit in the U.S. District Court alleging this matter posed a
federal question under the Federal Arbitration Act and that federal court is a more convenient
forum. The defendants requested a stay in the state court action pending the outcome of the
federal court action.
¶7. The circuit court refused to impose a stay and, instead, granted Plaintiffs’ Motion for
Partial Summary Judgment and denied defendants’ Motion for Summary Judgment.
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Specifically, the trial court declared that the defendants are not in a position to require
arbitration based on language in the National contract, that imposition of the arbitration
language would destroy certain legal rights of the plaintiffs, and there is no binding language
existing in the agreement between plaintiffs and National Prepaid.
STANDARD OF REVIEW
¶8. This Court reviews questions of law de novo. Russell v. Performance Toyota, Inc., 826
So.2d 719, 721 (¶ 5) (Miss. 2002). The underlying case was presented to the trial court by
way of summary judgment. This Court applies a de novo standard of review on appeal from a
grant of summary judgment by the trial court. Rush v. Ivy, 853 So. 2d 1226, 1229 (¶ 12)
(Miss. 2003) (citing Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss. 2001); Russell
v. Orr, 700 So.2d 619, 622 (Miss. 1997); Richmond v. Benchmark Constr. Corp., 692 So.2d
60, 61 (Miss. 1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss. 1995)).
Although we have not yet been confronted with a declaratory judgment finding against
arbitration, we have reviewed the grant or denial of a motion to compel arbitration under the
de novo standard of review. Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1169 (¶ 5)
(Miss. 2003) (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss. 2002) and Webb
v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir. 1996)).
DISCUSSION
¶9. Although the parties raise numerous issues on appeal, one issue is dispositive, and we
thus need address only that issue.
I. WHETHER THERE WAS AN AGREEMENT TO ARBITRATE.
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¶10. The critical issue before us today is whether the language contained in the pre-paid legal
services plan constitutes a binding arbitration provision. The Pre-Paid defendants contend that
the statute requires that legal expense plans contain an arbitration clause and that the contract
contains a binding arbitration provision for any disputes that arise. In the Mississippi statute
permitting pre-paid legal expense agreements, the Legislature has required that entities selling
legal expense insurance contain “[a] statement describing a procedure for settling disputes
between or among the sponsor, participating or staff attorneys, and the subscribers.” Miss.
Code Ann. § 83-49-13(2)(f). The Federal Arbitration Act provides that:
A written provision in any ... contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of such
contract or transaction ... shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2. This Court “will respect the right of an individual or an entity to agree in advance
of a dispute to arbitration or other alternative dispute resolution.” Russell v. Performance
Toyota, Inc., 826 So.2d at 721-22 (¶ 6) (citing IP Timberlands Operating Co., v. Denmiss
Corp., 726 So.2d 96, 104 (¶ 29) (Miss. 1998)).
In determining the validity of a motion to compel arbitration under the Federal
Arbitration Act, courts generally conduct a two-pronged inquiry. The first prong
has two considerations: (1) whether there is a valid arbitration agreement and (2)
whether the parties' dispute is within the scope of the arbitration agreement.
...
Under the second prong, the United States Supreme Court has stated the
question is “whether legal constraints external to the parties’ agreement
foreclosed arbitration of those claims.
East Ford, Inc. v. Taylor, 826 So.2d at 713 (¶¶ 9-10) (citing Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).
¶11. The provision in the pre-paid legal expense agreement provides as follows:
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K. Settlement of Disputes: In the event of a dispute, the parties will agree on
an impartial attorney who will decide such dispute and that decision will be
binding on all parties to such dispute.
This Court has not yet been faced with deciding whether such a statement is sufficient to
evidence an agreement to settle disputes through arbitration. However, the U.S. District Court
for the Northern District of Mississippi was faced with a remarkably similar situation to the
one in the present case. In an action concerning a life insurance policy, the plaintiff signed
only the application. The insurer moved to compel binding arbitration that included “all
disputes, claims, questions, and controversies of any kind or nature arising out of, or relating
any way to, this policy, its subject matter, its negotiation, issuance, or termination” which was
contained in the endorsement to the life insurance policy.
¶12. After setting forth the Mitsubishi standard, the district court held:
Even with these instructions in mind, this court has no hesitation in finding that
the parties never agreed to arbitration and that plaintiff did not waive her right
to seek adjudication of her claims in court. The application was the only
document plaintiff ever signed; there is, of course, no mention in its contents
of the arbitration endorsement. That endorsement is part of the insurance
contract which plaintiff received upon completion of the application process.
When plaintiff received the policy, she was given the option of "return[ing] it for
any reason," in which case, the policy was "void from the beginning...." There was
no notice, no discussion, and no negotiation of the arbitration endorsement,
circumstances, which, in this court's view, hardly signify either agreement or
waiver. The arbitration endorsement is therefore not enforceable, and this matter
may proceed in this court.
McCreary v. Liberty Nat'l Life, 6 F. Supp. 2d 920, 920-21 (N.D. Miss. 1998). As in
McCreary, the plaintiffs in the case sub judice signed only the application, which did not
contain an arbitration provision.
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¶13. "[A]rbitration is a matter of contract and a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit." AT & T Technologies, Inc. v.
Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418 (1986)
(citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct.
1347, 1353, 4 L.Ed.2d 1409 (1960), and United Steelworkers v. American Mfg. Co., 363
U.S. 564, 570-71, 80 S.Ct. 1343, 1364-65, 4 L.Ed.2d 1403 (1960) (Brennan, J., concurring)).
New Jersey courts require that an agreement must clearly foreclose any court remedies in
order to be enforceable. "If the defendant wanted to enter into an agreement to bind plaintiff
to arbitration under all circumstances, it should have written an inclusive arbitration clause."
Quigley v. KPMG Meat Marwick, LLP, 330 N.J. Super. 252, 270-71, 749 A.2d 405, 415-16
(N.J. Super. Ct. App. Div. 2000).
¶14. Other states give the benefit of the doubt to favor arbitration, even where the party does
not sign the agreement. Comvest, L.L.C. v. Corporate Secs. Group, Inc., 507 S.E.2d 21 (Ga.
Ct. App. 1998) (finding securities purchaser may be bound by agreement to arbitrate even in
the absence of his signature); Solle v. Western States Ins. Agency, Inc., 999 P.2d 328, 332
(¶ 23) (Mont. 2000) (holding that any doubts must be resolved in favor of arbitration).
¶15. In the case sub judice, we do not find a clear showing that the parties have agreed to
arbitration. In so doing, we must balance the intent of the parties with the constitutional right
to a trial by jury. Miss. Const. art. 3, § 31. We are persuaded by the district court’s reasoning
in McCreary. Just as in McCreary, here there was no notice, no discussion, and no
negotiation of the arbitration agreement. Further, based upon the language in this clause, we
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do not find that an average citizen would realize that he or she is giving up his or her right to
a trial by jury under the broad, general language contained in the pre-paid legal expense
agreement.
¶16. Additionally, the purported arbitration provision is contradicted because the contract
also contemplates a lawsuit being filed by either National or the plaintiffs. Both contracts
contain the following provision:
E. Specific Exclusions: The following items are specifically excluded and
shall not be interpreted as included benefits:
...
2. Any person or entity who initiates or participates in a lawsuit
against the Company or any of its affiliates, or is named as a
defendant or respondent in a lawsuit initiated by the Company or
any of its affiliates, shall be specifically excluded from receiving
coverage under this Contract for services related to such lawsuit.
All coverage under this Contract for services unrelated to a
lawsuit either initiated by or against the Company or any of its
affiliates, shall be suspended during the pendency of such lawsuit.
(emphasis added).
¶17. Based upon the foregoing, we find that there was not a valid, binding arbitration
agreement contained in the pre-paid legal expense agreement. Therefore, the trial court did
not err in granting the Plaintiffs’ Motion for Partial Summary Judgment and denying the
Defendants’ Motion for Summary Judgment.
CONCLUSION
¶18. Based on the prior decisions of this Court, there can be no doubt that when addressing
arbitration issues, we have readily acknowledged that there is a strong federal policy favoring
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arbitration. Russell v. Performance Toyota, Inc., 826 So.2d 719 (Miss. 2002); East Ford,
Inc. v. Taylor, 826 So.2d 709 (Miss. 2002); IP Timberlands Operating Co. v. Denmiss Corp.,
726 So.2d 96 (Miss. 1998). However, for the foregoing reasons, we affirm the trial court’s
grant of partial summary judgment and declaratory judgment finding that the plaintiffs’ claims
are not subject to arbitration, and we remand this case to the trial court for further proceedings
consistent with this opinion.
¶19. AFFIRMED AND REMANDED.
SMITH, C.J., WALLER, P.J., EASLEY, GRAVES AND DICKINSON, JJ.,
CONCUR. COBB, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ,
J., NOT PARTICIPATING.
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