Crossville Medical Oncology, P.C. v. Glenwood Systems, LLC, 485 F. App'x 821

Crossville Medical Oncology contracted with Glenwood to arbitrate disputes under a billing services agreement.
Glenwood filed a counterclaim in arbitration against Crossville and Dr. David C. Tabor, Crossville’s sole shareholder.
During an Aug 2006 preliminary arbitration hearing, Dr. Tabor objected that he was not a proper party to the arbitration.
Dr. Tabor did not file a consent to arbitrate or otherwise assert further objections; he testified in his capacity as Crossville’s president and sole shareholder.
The arbitrator awarded Dr. Tabor $221,147.45 personally, finding breach of the agreement and individual liability for signing the agreement.
The district court confirmed the award, concluding that Dr. Tabor acquiesced to arbitration by not timely challenging arbitrability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who decides arbitrability?	Glenwood argues arbitrability is for the arbitrator.	Tabor contends arbitrability should be judicially determined because he objected.	Arbitrability is a judicial question unless clearly agreed otherwise.
Did Tabor clearly and unmistakably agree to submit arbitrability to the arbitrator?	Glenwood asserts silence or inaction supports submission to arbitration.	Tabor argues his explicit early objection reserved the issue for the courts.	No clear and unmistakable agreement by Tabor to arbitrate arbitrability.
Was Tabor’s objection sufficiently expressed to reserve arbitrability for judicial determination?	Tabor’s lack of written objection should not defeat submission to arbitration.	Tabor communicated an objection to the arbitrator’s authority, which suffices to reserve the issue.	Objection during preliminary arbitration reserved arbitrability for judicial determination.

AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643 (1986) (arbitrability decision generally for courts unless parties clearly agree otherwise)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (failure to agree to arbitrate arbitrability means judicial determination unless clearly agreed otherwise)
Interstate Brands Corp. v. Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135, 909 F.2d 885 (6th Cir. 1990) (silence and arbitration without reservation treated as submission to arbitrator)
Vic Wertz Distrib. Co. v. Teamsters Local 1038, 898 F.2d 1136 (6th Cir. 1990) (participation in arbitration without contesting arbitrator's authority implied submission)
Cleveland Elec. Illuminating Co. v. Util. Workers Union of Am., Local 227, 440 F.3d 809 (6th Cir. 2006) (waiver by submitting to arbitration without reservation; distinguishable from reserved arbitrability)
MCI Telecomm. Corp. v. Exalon Indus., Inc., 138 F.3d 426 (1st Cir. 1998) (contract formation governs, not AAA rules, unless parties agreed to arbitrate)
Smith Barney, Inc. v. Sarver, 108 F.3d 92 (6th Cir. 1997) (arbitrability not submitted simply by incorporation into an agreement)