I respectfully dissent. Petitioner argues that the court of appeals erred in reversing the trial court’s order denying UBS’s request for arbitration of her claims. I agree, and would reverse the court of appeals’ decision.
In my view, this case is on all fours with this Court’s decision in Aiken v. World Fin. Corp. 373 S.C. 144, 644 S.E.2d 705 (2007). In Aiken, we held that an employee’s theft of a client’s identity was not a foreseeable risk contemplated by the contract. An arbitration clause does not cover every potential suit between the signing parties; instead, it only applies to those claims foreseeably arising from the contractual relationship. Because the harm to the client was not foreseeable, we held the claim was not subject to the agreed upon arbitration clause. Id., 373 S.C. at 151, 644 S.E.2d at 709.
The facts of this case are analogous to those in Aiken. In her complaint, Petitioner claims UBS breached its fiduciary duty by allowing its employee, Petitioner’s daughter, to steal Petitioner’s money and by failing to adopt, implement, and enforce policies and procedures to prevent employees from stealing and misappropriating clients’ funds. In my view, even though Petitioner’s daughter was her attorney-in-fact, her theft of the funds at issue was allegedly made possible because of her access to the accounts as an employee of UBS. The fact that Petitioner would be injured by UBS’s failure to enforce or implement policies and procedures to prevent the misappropriation of funds by its employees was not foreseeable to Petitioner at the time she entered into the contract with UBS. Therefore, in my view, Petitioner’s claims against UBS are not subject to the arbitration clause.
For this reason, I would reverse the court of appeals decision.