MPACT Construction Group, LLC v. Superior Concrete Constructors, Inc.

Attorneys for Appellant Attorneys for
Appellees
Steven S. Hoar Angela L. Freel
Evansville, Indiana James D. Johnson
R. Steven Krohn
Don L. Smith James E. Stoltz
Nashville, Tennessee Robert F. Stayman
Evansville, Indiana

Jerry D. Stilwell
Princeton, Indiana
____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 26S01-0307-CV-349

Mpact Construction Group, LLC,
Appellant (Defendant below),

v.

Superior Concrete Constructors, Inc.,
Appellee (Plaintiff
below),

and

Flying J, Inc., FJI Plaza Company III, LLC,
Lehman Brothers Holdings, Inc. d/b/a
Lehman Capital, a Division of Lehman
Brothers Holdings, Inc., Gary’s Plumbing
Service, Inc., Koberstein Trucking, Inc.,
Combs Landscape & Nursery, Inc, B & B
Electric Co., Inc., June Rinsch, in her
capacity as the Gibson County Treasurer,
Appellees (Defendants
below),

and

J.D. Music Tile Company, Inc., and
E & B Paving, Inc.
Appellees (Intervenors below).

_______________________________

Appeal from the Gibson Circuit Court, No. 26C01-0111-CP-142
The Honorable Keith A. Meier, Special Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 26A01-0209-
CV-345
_________________________________

February 4, 2004

Sullivan, Justice.

When the owner failed to pay for work and supplies on its travel
plaza, a subcontractor foreclosed on its mechanic’s lien. The general
contractor sought to compel arbitration among the owner, general, and all
subcontractors. While we acknowledge arbitration’s utility in this kind of
multiparty dispute, our inspection of the contract documents indicates that
the subcontractors did not agree to arbitrate the issues in dispute here.

Background

MPACT Construction Group, LLC, a general contractor, entered into a
contract with Flying J, Inc. to construct a travel plaza in Gibson County,
Indiana.[1] Flying J was the owner of the construction plaza at the time,
and it is now owned by FJI Plaza III, LLC. MPACT entered into several
contracts with subcontractors[2] (“Subcontractors”) to do the project work.
Flying J failed to pay for all of the work and supplies, and so MPACT and
some of the Subcontractors recorded mechanic’s liens against Flying J. One
of the Subcontractors, Superior Concrete Constructors, Inc., filed an
action to foreclose its mechanic’s lien. Several counterclaims and cross-
claims for the foreclosure of mechanic’s liens and for breach of contract
were filed among the various parties.

The contract between MPACT and Flying J is an American Institute of
Architects (“AIA”) Standard Form Agreement Between Owner and Contractor
(“General Contract”). Articles 1 and 9 of the General Contract incorporate
by reference the AIA General Conditions of the Contract for Construction
(“General Conditions”), and the General Conditions contain an arbitration
clause. However, the subcontracts were not AIA standard form contracts but
instead were contracts prepared by MPACT. After approximately six months
of preparing for litigation, MPACT filed a motion to stay litigation and
compel arbitration. The trial court summarily denied its motion. The
Court of Appeals reversed in part, granting the motion as to Flying J, and
affirmed in part, denying the motion as to the Subcontractors. MPACT
Constr. Group, LLC v. Superior Concrete Constructors, Inc., 785 N.E.2d 632,
639, 640. We reach the same result as the Court of Appeals.

Discussion

The main issue is whether MPACT and the Subcontractors agreed to
arbitrate disputes arising out of their business dealings. Because no
explicit arbitration provision is contained in the subcontracts, we must
determine if the arbitration provision in the General Conditions was
incorporated by reference into the subcontracts.

I

The Federal Arbitration Act (“FAA”) applies to written arbitration
provisions contained in contracts involving interstate commerce. 9 U.S.C.
§§ 1, 2 (2000). MPACT, Flying J, FJI Plaza III, LLC, and many of the
Subcontractors are from different states, and so this project constitutes
interstate commerce. See Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 400-01 (1967); Univ. Casework Sys., Inc. v. Bahre, 172 Ind.
App. 624, 634-35, 362 N.E.2d 155, 162 (1977); Pathman Constr. Co. v. Knox
County Hosp. Ass’n, 164 Ind. App. 121, 133-34, 326 N.E.2d 844, 852-53
(1975).

The FAA applies only if parties agree to arbitrate. The Supreme
Court has stated that both state law contract principles and federal
substantive law of arbitration apply to answering this question. First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (state law);
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)
(federal law). In dicta, the Court has said:

[T]he text of § 2 [of the FAA] provides the touchstone for choosing
between state-law principles and the principles of federal common law
envisioned by the passage of that statute: An agreement to arbitrate
is valid, irrevocable, and enforceable, as a matter of federal law,
‘save upon such grounds as exist at law or in equity for the
revocation of any contract.’ Thus state law . . . is applicable if
that law arose to govern issues concerning the validity, revocability,
or enforceability of contracts generally.

Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987) (quoting 9 U.S.C. § 2).
Recently, the Court clarified this statement, declaring that laws generally
applicable to contracts may be applied to arbitration agreements, but
“[c]ourts may not . . . invalidate arbitration agreements under state laws
applicable only to arbitration provisions.” Doctor’s Assocs., Inc. v.
Casarotto, 517 U.S. 681, 686-87 (1996); see also PaineWebber Inc. v. Elahi,
87 F.3d 589, 593 (1st Cir. 1996) (referring to Doctor’s Associates, the
court stated “the Supreme Court explained that if a state law is applicable
to contracts generally, it may be applied to arbitration agreements, but a
state law that is specifically and solely applicable to arbitration
agreements is displaced by the FAA”).

The Court of Appeals, the Seventh Circuit, a federal district court
applying Indiana law, and most other federal circuit courts of appeal have
concluded that state law contract principles apply to determine whether
parties have agreed to arbitrate. St. John Sanitary Dist. v. Town of
Schererville, 621 N.E.2d 1160, 1162 (Ind. Ct. App. 1993); Gibson v.
Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir. 1997);
Ziegler v. Whale Sec. Co., L.P., 786 F. Supp. 739, 741 (N.D. Ind. 1992);
Fazio v. Lehman Bros., 340 F.3d 386, 393 (6th Cir. 2003); Bank One, N.A. v.
Shumake, 281 F.3d 507, 513 (5th Cir. 2002), cert. denied, 537 U.S. 818
(2002); Mirra Co. v. Sch. Admin. Dist. #35, 251 F.3d 301, 304 (1st Cir.
2001); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d
411, 417 n.4 (4th Cir. 2000); Schooley v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 133 Lab. Cas. (CCH) ¶ 58,234, 1997 U.S. App. LEXIS 1884, at *5
(10th Cir. Feb. 5, 1997); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1198
(2nd Cir. 1996).

MPACT contends, however, that whenever state law presents an obstacle
to arbitration, federal law preempts the application of state law. It
argues that the Court of Appeals, in finding no agreement to arbitrate,
either misconstrued Indiana law or properly construed Indiana law but
should have applied federal law instead. The Subcontractors respond that
the “FAA only pre-empts state law which requires the parties to resolve
their disputes in a judicial forum when the contracting parties have agreed
to resolve their disputes through arbitration.” (Joint Br. in Resp. to
Pet. for Transfer at 6.) That is not the case here, they argue, because
there was no agreement to arbitrate.

“The FAA contains no express pre-emptive provision, nor does it
reflect a congressional intent to occupy the entire field of arbitration.”
Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489
U.S. 468, 477 (1989). Nevertheless, “state law may . . . be pre-empted to
the extent that it actually conflicts with federal law – that is, to the
extent that it ‘stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.’” Id. (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)). Preemption has been found in cases
where state statutes explicitly made certain arbitration clauses
unenforceable or placed serious burdens on the enforceability of
arbitration provisions. See, e.g., Doctor’s Assocs., 517 U.S. at 683, 688
(finding preemption where Montana law made arbitration clauses
unenforceable unless the first page of the contract contained in underlined
capital letters a statement that the contract was subject to arbitration);
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 269, 272-73, 282 (1995)
(reversing Alabama Supreme Court’s denial of arbitration based on a state
statute rendering predispute arbitration agreements invalid and
unenforceable); Southland Corp. v. Keating, 465 U.S. 1, 10-16 (1984)
(holding invalid on preemption grounds state statute making agreements to
arbitrate franchise claims unenforceable). But no such statute is involved
here. Nor is it the case that state law is hostile to arbitration.
Indeed, Indiana policy favors arbitration. PSI Energy, Inc. v. AMAX, Inc.,
644 N.E.2d 96, 98 (Ind. 1994) (stating that “Indiana was surely among the
first jurisdictions to sanction arbitration as a means of dispute
resolution” as it had a law allowing arbitration before Indiana became a
state in 1816); Ind. CPA Soc’y v. GoMembers, Inc., 777 N.E.2d 747, 750
(Ind. Ct. App. 2002) (“Indiana recognizes a strong policy favoring
enforcement of arbitration agreements.”); see also Uniform Arbitration Act,
Ind. Code § 34-57-2-1 (1998).

MPACT focuses solely on the result. It is just not true, however,
that preemption occurs every time a court finds that the parties did not
agree to arbitrate. If a court, fairly applying generally applicable state
law contract principles and not singling out arbitration agreements for
hostile treatment, finds that the parties did not agree to arbitrate, then
federal law does not preempt. See Perry, 482 U.S. at 492 n.9 (“A court may
not, in assessing the rights of litigants to enforce an arbitration
agreement, construe that agreement in a manner different from that in which
it otherwise construes nonarbitration agreements under state law.”); Scherk
v. Alberto-Culver Co., 417 U.S. 506, 511 (1974) (the intention of the FAA
was to put arbitration agreements “upon the same footing as other
contracts”) (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)).

For these reasons, we will apply Indiana law to determine whether the
Subcontractors agreed to arbitrate.[3]

MPACT further argues that even if Indiana law applies, the federal
policy favoring arbitration should influence the question whether the
parties agreed to arbitrate. The Subcontractors respond that a court “must
first determine whether the parties generally agreed to arbitrate
disputes.” (Joint Br. in Resp. to Pet. for Transfer at 2.) We agree with
the Subcontractors.

Whether the parties agreed to arbitrate any disputes is a matter of
contract interpretation, and most importantly, a matter of the parties’
intent. AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir. 2000) (“As with
any contract, the touchstone for interpreting an arbitration clause must be
the intention of the parties.”). “Courts in Indiana have long recognized
the freedom of parties to enter into contracts and have presumed that
contracts represent the freely bargained agreement of the parties.”
Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128, 1129 (Ind. 1998);
Cont’l Basketball Ass’n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.
1996). Consequently, imposing on parties a policy favoring arbitration
before determining whether they agreed to arbitrate could frustrate the
parties’ intent and their freedom to contract. The Supreme Court has made
this clear – “arbitration 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 Techs., Inc. v. Communications Workers of Am., 475 U.S. 643,
648 (1986) (quotations and citations omitted); accord Homes by Pate, Inc.
v. DeHaan, 713 N.E.2d 303, 306 (Ind. Ct. App. 1999).

Additionally, courts have regularly distinguished the treatment given
questions of the existence of an agreement to arbitrate and questions of
the scope of an agreed-to arbitration clause. In determining the scope of
an arbitration agreement, “due regard must be given to the federal policy
favoring arbitration, and ambiguities as to the scope of the arbitration
clause itself resolved in favor of arbitration.” Volt, 489 U.S. at 476;
accord Moses H. Cone, 460 U.S. at 24-25; Bank One, 281 F.3d at 513-14
n.24.[4] Because there was already an agreed-to arbitration clause in
these cases, applying federal policy in construing the arbitration clause
would not have frustrated the parties’ intent. Using the policy favoring
arbitration to decide whether the parties did in fact agree to arbitrate
does not answer the question but rather avoids having to decide it. Only
after it has been determined that the parties agreed to arbitrate their
disputes does the policy favoring arbitration play an important role. We
must determine, therefore, whether MPACT and the Subcontractors agreed to
arbitrate without resort to the federal policy favoring arbitration.

II

Whether MPACT and the Subcontractors agreed to arbitrate their
disputes depends on whether the arbitration clause in the General
Conditions of the General Contract was incorporated by reference into the
subcontracts. “It is well settled that, under the Federal Arbitration Act,
an agreement to arbitrate may be validly incorporated into a subcontract by
reference to an arbitration provision in a general contract.” Maxum
Founds., Inc. v. Salus Corp., 779 F.2d 974, 978 (4th Cir. 1985); R.J.
O’Brien & Assocs. v. Pipkin, 64 F.3d 257, 260 (7th Cir. 1995); cf. Wilson
Fertilizer & Grain, Inc. v. ADM Milling Co., 654 N.E.2d 848, 854-55 (Ind.
Ct. App. 1995) (finding that under the Uniform Commercial Code § 2-207, a
party cannot claim surprise to an arbitration clause incorporated by
reference into the contract), trans. denied. In deciding whether the
subcontracts incorporated by reference the arbitration provision, we must
look to the language of the contract documents.

MPACT points to two clauses in the subcontracts to support its
contention that the arbitration provision was incorporated by reference
into the subcontracts. The first reads:

[Article VI(b)] The Sub-contractor acknowledges that he has read the
General contract and all plans and specifications, together with all
amendments and addenda thereto, and is familiar therewith and agrees
to comply with and perform all provisions thereof applicable to the
Sub-Contractor. The intent of the Contract documents is to include
all items necessary for the proper execution and completion of the
work. The contract documents are complementary and what is required
by any one shall be as binding as if required by all. Work not
covered in the Contract documents will not be required, unless it is
consistent therewith and is reasonable [sic] inferable therefrom as
being necessary to produce the intended results.

The second reads:

Contractor has heretofore entered into a General Contract with [Flying
J], hereinafter called the Owner, to furnish and pay for all necessary
and required labor, materials . . . to perform all work required . . .
inclusive of, but not limited to the project plans and specifications
. . . schedules, drawings and amendments by addenda, as prepared by .
. . the Architect, and known as Flying “J” Travel Plaza, which are
hereby made a part of the General Contract between the Owner and the
Contractor and are hereby, made a part of this subcontract, as
applicable to the work stated therein and pursuant to this
subcontractor’s intent to enter into this sub-contractual agreement,
with reference to any and all of said work.

MPACT argues that these provisions, and particularly the sentence,
“The contract documents are complementary and what is required by any one
shall be as binding as if required by all,” show that the General
Conditions, which were incorporated into the General Contract between MPACT
and Flying J, were incorporated into the subcontracts. The Subcontractors
respond, and the Court of Appeals agreed, that provisions of the General
Contract were incorporated for the limited purpose of governing the work to
be performed. They emphasize that the sentence MPACT relies on is preceded
and followed by sentences pertaining specifically to work, and that this
limits the effect of that sentence.

While the cited provisions support both arguments, the larger context
suggests that the Subcontractors’ construction is correct. Allied
Structural Steel Co. v. State, 148 Ind. App. 283, 288, 265 N.E.2d 49, 52
(1970) (“The true meaning of a contract is to be ascertained from a
consideration of all its provisions, and a liberal or technical
construction of an isolated clause should not be indulged to defeat the
true meaning.”); Gen. Ins. Co. of Am. v. Hutchison, 143 Ind. App. 250, 254,
239 N.E.2d 596, 598-99 (1968) (“It is the general rule of law in our State
that words, phrases, sentences, paragraphs and sections of a contract
cannot be read alone.”). Of particular importance is the language
surrounding Article VI(b). Not only do the sentences within that provision
specifically discuss the work to be performed, but all other provisions in
the article of which it is a part relate to the work to be performed.
Clause (a) of Article VI requires that the Subcontractor “supply adequate
tools, appliances, and equipment, [and] a sufficient number of properly
skilled workmen” to ensure that the work gets done “efficiently and
promptly.” Clause (c) discusses the Architect’s control over the work to
be performed. Clause (d) addresses the Subcontractors need to get permits
and licenses. Taken as a whole, this article is about the work to be
performed and nothing more. If the parties intended to bind the
Subcontractors to arbitration, logic dictates that an incorporation by
reference clause clearly apply to the entire contract – or be in a separate
section on rights and remedies or at least with contract provisions on
liability and indemnification – rather than with provisions relating to the
work.

Other provisions are telling as well, though not conclusive. Article
5.3.1 of the General Conditions states:

By appropriate agreement, written where legally required for validity,
the Contractor shall require each Subcontractor, to the extent of the
Work to be performed by the Subcontractor, to be bound to the
Contractor by terms of the Contract Documents, and to assume toward
the Contractor all the obligations and responsibilities which the
Contractor, by these Documents, assumes toward the Owner and
Architect. Each subcontract . . . shall allow to the Subcontractor,
unless specifically provided otherwise in the subcontract agreement,
the benefit of all rights, remedies and redress against the Contractor
that the Contractor, by the Contract Documents, has against the Owner.

Viewing this provision with the language of the subcontract that, “[t]he
Sub-contractor acknowledges that he has read the General contract . . . and
is familiar therewith and agrees to comply with and perform all provisions
thereof applicable to the Sub-Contractor,” suggests that the Subcontractors
are required to submit to arbitration. The Subcontractors agreed to comply
with provisions of the General Contract applicable to them, and Article
5.3.1 of the General Conditions, as part of the General Contract, is
applicable to subcontractors. Although Article 5.3.1 was probably intended
to bind subcontractors directly, the language itself puts the burden on the
contractor to obtain an agreement from subcontractors to assume the same
responsibilities as the contractor assumes toward the owner. A comment
from the American Institute of Architects, drafters of the General
Conditions, provides some guidance. It first states, “A basic requirement
of the contract is that subcontractors be bound by the terms of the
contract documents. AIA Document A401 Standard Form Agreement Between
Contractor and Subcontractor, so provides.” Am. Inst. of Architects, A201
Commentary (1997). But the next sentence reads, “If other subcontract
forms are utilized, care must be taken to coordinate them with Subparagraph
5.3.1.” Id. This indicates that if the general contractor uses
subcontract forms other than those provided by the AIA – which MPACT did in
this case – it must in its own contract include a provision requiring the
subcontractors to assume the same responsibilities that it assumes toward
the owner.

MPACT may well have believed the language it used was sufficient to
bind the Subcontractors to arbitration. It cites several cases to support
its contention that the language in its subcontracts validly incorporated
the arbitration clause by reference. The Subcontractors respond that all
of those cases can be distinguished from this one. Uniroyal, Inc. v. A.
Esptein & Sons, Inc., 428 F.2d 523, 524 (7th Cir. 1970) (in section of
contract discussing general obligations, the subcontract stated that the
subcontractor agrees “to assume toward [the contractor] all the obligations
and responsibilities that [the contractor], by those documents, assumes
toward the Owner,” and that “[i]n the matter of arbitration, their rights
and obligations and all procedure shall be analogous to those set forth in
this Contract”); Kvaerner ASA v. Bank of Tokyo – Mitsubishi Ltd., 210 F.3d
262, 265 (4th Cir. 2000) (subcontract used the phrase the “the same rights
and remedies” and in a provision concerning default); Maxum, 779 F.2d at
979 (subcontract stated that “the Subcontractor shall be bound by, and
expressly assumes for the benefit of the Contractor, all obligations and
liabilities which the Contract Documents impose upon the Contractor”);
Exch. Mut. Ins. Co. v. Haskell Co., 742 F.2d 274, 275 (6th Cir. 1984)
(“Subcontractor hereby assumes the same obligations and responsibilities
with respect to his performance under this Subcontract, that Contractor
assumes towards Owner . . . .”); J.S. & H. Constr. Co. v. Richmond County
Hosp. Auth., 473 F.2d 212, 213-14 n.3 (5th Cir. 1973) (“Subcontractor
agrees to be bound to the Contractor by all of the terms of the agreement
between the Contractor and the Owner and by the Contract Documents and to
assume toward the Contractor all of the obligations and the
responsibilities that the Contractor by those instruments assumes toward
the Owner.”); Vespe Contracting Co. v. Anvan Corp., 399 F. Supp. 516, 520
n.4 (E.D. Pa. 1975) (“Subcontractor . . . shall assume towards Contractor
all the obligations and responsibilities that the Contractor . . . assumes
towards Owner.”). We agree that these cases are distinct from the case
here. In all of the other cases, the language incorporating the
arbitration provision is more clear and explicit than in the subcontracts
here.[5]

Courts are required to give effect to parties’ contracts and to do
so, courts look to the words of a contract. In contracting, clarity of
language is key. Here, however, provisions in the subcontracts support
both arguments, at least in part. When there is ambiguity in a contract,
it is construed against its drafter. Philco Corp. v. Automatic Sprinkler
Corp. of Am., 337 F.2d 405, 408 (7th Cir. 1964); Smith v. Sparks Milling
Co., 219 Ind. 576, 603, 39 N.E.2d 125, 135 (1942); Bicknell Minerals, Inc.
v. Tilly, 570 N.E.2d 1307, 1313 (Ind. Ct. App. 1991), trans. denied. In
this instance, the AIA Standard Form of Agreement Between Contractor and
Subcontractor was not used. MPACT instead drafted its own subcontracts.
It was therefore MPACT’s responsibility to ensure that its subcontracts
conformed to the requirements of the General Conditions and incorporated
the arbitration clause. MPACT did not do so.

The problem in this case seems to have resulted from poor contract
drafting and inadequate contract negotiations. Each side believed at the
time of contract execution that the contract provided for what it wanted –
in MPACT’s case, for arbitration, and in the Subcontractors’ case, not for
arbitration. Regardless, it is clear that arbitration was not sufficiently
discussed by the parties. This leads to one conclusion, that there was no
meeting of the minds between the parties on the issue of arbitration.
Consequently, we find that there was no agreement to arbitrate between
MPACT and the Subcontractors and the Subcontractors are not required to
arbitrate their disputes with MPACT.

MPACT also sought arbitration of its disputes with Flying J. The
Court of Appeals found that the disputes were governed by the arbitration
provision in the General Conditions of the General Contract, and held that
MPACT was entitled to arbitration with Flying J. We summarily affirm the
Court of Appeals on this point. Ind. Appellate Rule 58(A)(2).

III

The Subcontractors additionally argue that MPACT waived its right to
arbitrate, if such a right actually exists. Whether a party has waived the
right to arbitration depends primarily upon whether that party has acted
inconsistently with its right to arbitrate. Welborn Clinic v. Medquist,
Inc., 301 F.3d 634, 637 (7th Cir. 2002); St. Mary’s Med. Ctr. of
Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 588 (7th Cir.
1992); Kilkenny v. Mitchell Hurst Jacobs & Dick, 733 N.E.2d 984, 986 (Ind.
Ct. App. 2000), trans. denied, 753 N.E.2d 8 (Ind. 2001). This requires an
analysis of the specific facts in each case. Ernst & Young LLP v. Baker
O’Neal Holdings, Inc., 304 F.3d 753, 756 (7th Cir. 2002); St. Mary’s Med.
Ctr., 969 F.2d at 588; Kilkenny, 733 N.E.2d at 986.

Some facts suggest that MPACT may have waived its right to arbitrate
by actively participating in the litigation. Ernst & Young LLP, 304 F.3d
at 757-58; St. Mary’s Med. Ctr., 969 F.2d at 589. MPACT filed a cross-
claim against Flying J for breach of contract and filed cross- and
counterclaims against Flying J and the Subcontractors to foreclose its own
mechanic’s lien. MPACT also participated in telephone conferences and a
scheduling conference where summary judgment deadlines and a trial date
were set.

The filing of counterclaims and cross-claims does not always indicate
active participation in litigation. While all cross-claims are permissive,
some counterclaims are compulsory, that is, a party must bring them or
waive them. Ind. Trial Rule 13. A party should not be held to have waived
its right to arbitrate when, in response to a complaint filed against it,
it raises counterclaims in order to preserve them. Cf. Underwriting
Members of Lloyds of London v. United Home Life Ins. Co., 549 N.E.2d 67, 71
(Ind. Ct. App. 1990) (stating that participation in discovery did not
result in a waiver of arbitration because defendant was required by court
order to do so), adopted by, 563 N.E.2d 609 (Ind. 1990). MPACT’s
counterclaims in this case are compulsory. The cross-claims are not, and
to that extent, MPACT could be seen as actively participating in the
litigation. But that alone is not sufficient to establish a waiver,
particularly in light of the other facts.

In its answer filed March 29, 2002, MPACT stated that it was not
waiving its right to arbitration and in its affirmative defenses, requested
that the claims be submitted to arbitration. St. Mary’s Med. Ctr., 969
F.2d at 589 (finding that defendant waived the right to arbitrate because
in the ten months that passed since being sued, defendant filed a motion to
dismiss or for summary judgment and then did not raise arbitration until
losing its motion); Kilkenny, 733 N.E.2d at 987 (“This is clearly not a
case where a request for arbitration was plead in the initial complaint and
then not again asserted until discovery was complete or an unfavorable
result on the individual claims was imminent.”); Lloyds, 549 N.E.2d at 71
(finding no waiver because defendant “asserted its right to arbitrate
throughout the proceedings”). MPACT also did not file motions to dismiss
or for summary judgment before asserting its right to arbitrate. These
facts show that MPACT acted consistently with its right to arbitrate, if it
had one, and so its actions would not have constituted a waiver of that
right.
Conclusion

We grant transfer, summarily affirm the decision of the Court of
Appeals reversing the trial court’s denial of MPACT’s motion to stay
proceedings and compel arbitration as to Flying J, and affirm the trial
court’s denial of MPACT’s motion as to the Subcontractors. This case is
remanded to the trial court for further proceedings consistent with this
opinion.

Dickson and Rucker, JJ., concur.
Boehm, J., dissents with a separate opinion in which Shepard, C.J., joins.

Boehm, J., dissenting.

I respectfully dissent. This is a typical multiparty construction
litigation, where various parties are pointing fingers in various
directions and claiming that whatever went wrong with the project is
somebody else’s—anybody else’s—problem. I agree that state law governs the
formation of the contract and that nothing in the Federal Arbitration Act
requires that these disputes between subcontractors and the general
contractor be arbitrated unless the parties agreed to that method of
dispute resolution. I believe, however, that these agreements do call for
arbitration of the entire multiparty dispute among the owner, the general
contractor, and these several subcontractors.

The agreement between the general contractor and the owner is a
standard printed form AIA construction agreement. All agree that that
contract includes an enforceable arbitration clause, and an undertaking to
bind subcontractors to the same terms that obligate the general. The
general’s agreements with the subs provide that each sub acknowledges the
principal agreement and agrees to be bound by it. The principal agreement
provides, inter alia, that the general will impose conforming conditions on
all subs. These agreements are among businesses fully familiar with this
sort of arrangement, and fully cognizant that the last thing either the
general or the owner wants is piecemeal litigation with different subs.
The result the majority reaches produces an arbitration between the owner
and the general and litigation with one or more subs in a separate forum.
The majority concedes that the general intended to bind the subs to
arbitration, but points to imprecision in the language used to accomplish
that. It seems to me that the subs did understand, or should have, that
arbitration was intended. They should be held to have accepted arbitration
when they accepted these agreements. Accordingly, I would require
arbitration of this entire dispute in one proceeding.

The majority points to what I agree is less than elegant phrasing of
the agreement, and what it describes as “inadequate contract negotiations.”
I think these agreements, given the context, were sufficient to make clear
to the subs that they were expected to arbitrate their disputes with the
general or the owner. Particularly in an industry where arbitration is
widely used, ambiguity does not necessarily lead to the conclusion that no
meeting of the minds occurred. Rather, I would conclude that ambiguity
should be construed in favor of finding an agreement to arbitrate where
that is commonplace in the industry. We have on several occasions
expressed support for the policy under Indiana law favoring arbitration.
PSI Energy, Inc. v. AMAX, Inc., 644 N.E.2d 96, 99 (Ind. 1994); Sch. City v.
East Chicago Fed’n of Teachers, Local No. 511, 622 N.E.2d 166, 169 (Ind.
1993). These rulings also support finding an agreement to arbitrate where
the documents support that conclusion, albeit with less than precision.

Shepard, C.J., joins.

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[1] MPACT and Flying J also entered into a contract to construct a travel
plaza in Oklahoma. The Court of Appeals stated: “Because the Oklahoma
contract does not appear to have bearing on the present appeal, and based
upon counsel’s statements at oral argument, we do not expressly address it
herein.” MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc.,
785 N.E.2d 632, 635 n.3 (Ind. Ct. App. 2003). Similarly, we do not address
that contract here.

[2] The subcontractors are Superior Concrete Constructors, Inc., Gary’s
Plumbing Service, Inc., Koberstein Trucking, Inc., Combs Landscape &
Nursery, Inc., B & B Electric Co., Inc., J.D. Music Tile Company, Inc., and
E & B Paving, Inc.
[3] Some of the subcontracts included a choice of law clause stating that
Indiana law would apply and others stating that Tennessee law would apply.
Ind. Code § 32-28-3-17 (Supp. 2002), however, makes void any provision in
“a contract for the improvement of real estate in Indiana” that “makes the
contract subject to the laws of another state.” Therefore, we will apply
only Indiana law.

[4] Cf. First Options, 514 U.S. at 944-45 (requiring “clear and
unmistakable” evidence that parties agreed to submit to an arbitrator the
question who should decide whether the parties agreed to arbitrate, because
it is different from the question involving the scope of an arbitration
provision, in which “the parties [already] have a contract that provides
for arbitration of some issues”).

[5] MPACT also cited U.S. Fid. & Guar. Co. v. West Point Constr. Co., 837
F.2d 1507 (11th Cir. 1988), but the language in that case is conclusory and
as such, does not aid MPACT’s argument. Additionally, MPACT cited J & S
Constr. Co. v. Travelers Indem. Co., 520 F.2d 809 (1st Cir. 1975), but it
is not on point.