Cook's Pest Control, Inc. ("Cook's"), is a defendant in an action pending in the Mobile Circuit Court. It appeals from an order denying its motion to compel arbitration of the plaintiffs' claims. We affirm.
During the course of discovery, Allen learned that at the time of her alleged injury Cook's Pest Control was under contract to provide pest-control services to Knollwood. In July 2000, Allen amended her complaint to name Cook's as an additional defendant, alleging negligence, wantonness, and breach of contract (claiming standing as a third-party beneficiary of the contract between Cook's and Knollwood). On August 18, 2000, Cook's produced its contract with Knollwood, which contains an arbitration provision, and filed a "Motion to Dismiss or Alternatively to Compel Arbitration and Stay Litigation."
On the day before the scheduled hearing on the motion, Allen moved to amend her complaint, seeking to dismiss the breach-of-contract claim. She also filed an objection to the motion to compel arbitration, arguing that the arbitration clause was unconscionable, that Cook's had not demonstrated that the contract had a substantial effect on interstate commerce, and that her claims against Cook's were not based on the contract between Knollwood and Cook's. Cook's contends that at the hearing the trial court stated that it would not consider the amended complaint in connection with its ruling on the motion to compel arbitration. There is no record of the hearing; however, Allen does not contradict this contention. The record reflects that the trial court granted the motion to amend the complaint on September 12, 2000, and on September 13, 2000, entered its order denying the motion to compel arbitration. The propriety of allowing the amendment is not before us. For the purposes of this appeal, Allen's complaint stands as amended, and the sole basis of Cook's appeal is the order denying its motion to compel arbitration.
"ALTERNATIVE DISPUTE RESOLUTION. As an inducement to Cook's Pest Control, Inc. (Cook's) to enter into a service agreement with the customer, the parties hereto agree as follows: (1) ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE SERVICE AGREEMENT OR THE BREACH THEREOF OR ARISING OUT OF ANY PRIOR *526 OR FUTURE DEALINGS BETWEEN COOK'S AND CUSTOMER SHALL BE SETTLED BY ARBITRATION IN THE STATE OF CUSTOMER'S RESIDENCE AND IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. . . ."
(Capitalization original, emphasis added.)
This Court had earlier analyzed the issue whether a third-party beneficiary could be compelled to arbitrate, in Ex parte Dyess,
Cook's also relies on our recent opinion in Capitol Chevrolet Imports, Inc. v. Grantham,
Allen has specifically disavowed any status as a third-party beneficiary. Allen amended her complaint to remove any reference to her being a third-party beneficiary, the trial court allowed the amendment, and Cook's has not attempted to have this Court review the order allowing that amendment. Because Allen has not invoked the benefits of the contract, she cannot be considered a third-party beneficiary; thus, she is not burdened by the contract and cannot be compelled to arbitrate her claims against Cook's under a third-party-beneficiary theory.
Our cases recognizing "intertwining claims" as a basis for compelling arbitration have typically involved arbitration clauses broad enough to embrace intertwined claims (see the discussion in Subpart C., below) and allegations of a conspiracy between the nonsignatory and the signatory to the arbitration agreement. See Ex parte Isbell,
AFFIRMED.
Houston, Johnstone, and Woodall, JJ., concur.
Moore, C.J., concurs in the result.
