APC Homemaker Services, Inc. v. Elvira Pando, 08-14-00266-CV

Plaintiff Elvira Pando, a limited-English employee, alleged a work-related knee injury on July 19, 2012 and later had surgery; she filed suit May 13, 2014.
Employer APC introduced a mandatory, written arbitration agreement dated May 16, 2012; it was translated into Spanish and Pando signed a Spanish form but later disputed seeing or understanding the arbitration agreement.
The agreement: (1) set a general effective date of 5/16/2012 but provided that existing employees who continued working for more than 3 days after receipt would be deemed to accept on the fourth day (their effective date); (2) required arbitration of employment-related personal-injury claims arising after the effective date; and (3) imposed a one-year time limit to file a claim from the incident date.
APC moved to compel arbitration; Pando argued the injury predated the agreement’s effective date as applied to her and alternatively asserted unconscionability.
The trial court denied APC’s motion to compel; APC appealed claiming (a) the agreement was retroactively effective to May 16, 2012 and thus covered Pando’s claim, or (b) a “claim” is when a demand is made (e.g., filing suit) so arbitration applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the arbitration agreement cover Pando’s personal-injury claim given timing of effective date?	Pando: she was an existing employee; the clause makes the effective date the fourth day after notice, so the agreement became effective after her July 2012 injury.	APC: the agreement’s stated effective date was 5/16/2012, so it covers injuries after that date, including Pando’s.	Court: Specific clause for existing employees controls; effective date as to Pando was four days after notice, so her July 2012 injury predates the agreement and is not covered.
Does a “claim” “arise” when the employee files suit (demand) or at the incident (cause of action accrual)?	Pando: “claim” means a cause of action arising from an incident; the limitations clause ties filing to the incident date.	APC: “claim” can mean the act of making a demand; filing suit in 2014 occurred after the agreement’s effective date, so arbitration should apply.	Court: Read contextually; “claim” refers to the substantive cause of action arising from an incident, not merely the act of filing; Pando’s claim arose at the incident date and thus before her effective date.

Vista Quality Mkts. v. Lizalde, 438 S.W.3d 114 (Tex. App.—El Paso 2014) (standard of review and presumption favoring arbitration)
J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (arbitrability is a question of law reviewed de novo)
In re Halliburton Co., 80 S.W.3d 566 (Tex. 2002) (trial court abuses discretion by refusing arbitration when valid agreement covers dispute)
In re Odyssey Healthcare, Inc., 310 S.W.3d 419 (Tex. 2010) (non-movant bears burden to establish defenses to arbitration)
NuStar Energy, L.P. v. Diamond Offshore Co., 402 S.W.3d 461 (Tex. App.—Houston [14th Dist.] 2013) (specific contract provisions control over general ones)
Certain Underwriters at Lloyd’s of London v. Cardtronic, Inc., 438 S.W.3d 770 (Tex. App.—Houston [1st Dist.] 2014) (courts should avoid interpreting contract provisions as meaningless surplusage)