Rollings v. Thermodyne Industries, Inc.

fight damage the fire with minor building.”

The trier of fact in the instant case would heap

likewise be forced to conclusion

conclusion as to the course events would have system

taken if the 911 properly had worked conjecture

and have no more than mere as to damages plaintiff

what suffered reason of

defendant’s action. Plaintiffs claim of causa- speculative

tion is far too and too remote to presents sustained here. Plaintiff us with convincing argument

no why as to loss

chance relaxed standard of causation limited malpractice the Court to medical actions applied

should be here to reduce his burden. duty

We would be remiss in our if we

failed to application observe here that the

the lost chance of survival doctrine to these urged by plaintiff

facts as would cause a meaning

fundamental redefinition of the majority

causation in tort law. While the persuaded McKellips

the Court were particular facts and circumstances of that required creating exception

case an to the likely requirement

“more than not” of tradi- causation,

tional we refuse to effect a total

restructuring applying tort law the lost beyond

chance doctrine the established

boundary malpractice ordinary of medical

negligence actions. WILSON, C.J., KAUGER, V.C.J.,

ALMA LAVENDER, HARGRAVE, OPALA, WATT, JJ.,

SUMMERS and concur. J.,

HODGES, disqualified. ROLLINGS, Appellee,

Bill O. INDUSTRIES, INC.,

THERMODYNE corporation, Appellant.

No. 82774.

Supreme Court of Oklahoma.

Jan. “agreement

agreement also stated that a contract made under shall be deemed be Oklahoma, all laws of the State of and for entirety in purposes interpreted shall be its in accordance with the laws of said State.” parties expected this to be a Apparently venture, very profitable sales millions of dollars. arose, Rollings, dispute and after send- couple Thermodyne, filed

ing a of letters sought a declara- suit in District Court. He tory judgment, asking that deter- the Court ter- mine that the contract and license were Rollings sought prohibit minated. also manufacturing selling Thermodyne from using water heaters his more industrial design. patented compel- Thermodyne for an order moved ling pursuant to the clause arbitration Waddel, Bryant, L. Patri- The trial court denied Thermo- Patrick 0. David contract. Inc., Himes, Gotwals, request, holding that the arbitration dyne’s & cia Ledvina Gable Tulsa, in the contract was void because Appellant. for clause unconstitutionally the Oklahoma violated Abel, Jackman, Kevin M. Wil- J. Warren Constitution, 6 and Article Article Section Walker, Jackman, Caldwell, Pray, liam A. Appeals re- Section 8. The Court Tulsa, Marlar, Appellee. for & Williamson versed, holding the arbitration clause that Travis, Travis, Margaret E. Okla- Rex K. Constitution, observing not violate the did Hickman, City, R. Frasier & homa Steven subject to a arbitrator’s decision was Frasier, Tulsa, of Okla- Brief Amicus Curiae granted in the courts. We limited review Lawyers Trial Association. homa important question. to resolve this certiorari Rolling’s argument is that the arbitration SUMMERS, Justice: provision in the contract violates Oklahoma squarely has not Up to now the Court Constitution, 6 and Article Article Section private agree- question: Is a confronted this essence, argument is his 8.1 Section statutory disputes to ment to submit future unconstitutionally the arbitration clause that party on a to the for future deprives him of access to courts prefers court resolution over arbi- who now one. He claims such as this controversies tration? public policies regardless any modern design of a Rollings, patent holder of arbitration, Constitu- favoring the Oklahoma heater, into a water entered new industrial he cannot rights in stone which tion sets Thermodyne to manufacture contract with deprived. and of he cannot waive “[I]n The contract stated the water heater. Constitution, Article Section any dispute between the the event of 6, reads: par- relating Agreement, the hereto to this justice of the state shall be The courts of hereby agree to arbitrate such ties speedy and cer- open every person, and rules, guidelines regulations and under the every wrong and remedy tain afforded Arbitration Association.” the American curiae, Thermodyne Lawyers ings raised or briefed nor Oklahoma Trial 1. The amicus However, Association, 19 of the Oklahoma Constitution. urges the arbitration clause is mandatory City Bethany v. PERB we held to a because it waives unconstitutional O.S.Supp.1985 trial, required under 11 right guaranteed Article violate Art. Roll- 51-111 did not Constitution. Neither 19 of the Oklahoma every injury person, property, help repossession requiring or rather than re justice reputation; Martin, shall be course in the courts. Helfinstine sale, denial, delay (Okla.1977) (held administered without valid because prejudice. remedy self-help was available at com statehood). mon adopted law and thus was Article Section states: section, Interpreting this the Tenth Circuit contract, Any provision express aof plea bargains in validated criminal cases. by implied, any person, made Frazier, (10th Larsen v. 835 F.2d 258 Cir. of the benefits of this Constitution is 1987). waived, sought to be shall be null and void. dependent A violation of Section 8 is on the As for Section this Court has also de- abridgment of some other state constitutional construction, although clined a literal we Thus, right. if no other state constitutional closely deny have scrutinized actions which violated, right has been there is no Section 8 In access to courts. St. Paul Fire & Marine violation. Co., Getty Ins. v.Co. Oil 782 P.2d Thermodyne urges that Section 8 should (Okla.1989), “requires we held that Section 6 literally, interpreted not be and asks that it complainant that a given must be access to a applied broadly, technically “be not and re- if wrong court he has suffered a which is First, strictively.” Thermodyne points out recognized stayed in the law.” We also that the Uniform Arbitration 15 O.S. prior our operates observation that Section 6 seq., specifically 1991 801 et mandates en- judiciary as a mandate to the than rather agreements. forcement of the arbitration legislature. Wagoner limitation on the Thermodyne states that this statute can be Plunkett, County Election Bd. v. 305 P.2d (and aligned with Article Section 6 thus (Okla.1956). words, In other Section 6 8) Article because this Court has guarantee judiciary was intended to that the interpreted never access to courts to be abso- open would be and available for the resolu Next, Thermodyne urges lute. if it that even disputes, guarantee but not to courts, Rollings is a violation of access to any particular set of events would result in waived his to access the courts. Ther- Legislature may court-awarded relief.2 The modyne gives examples several of instances repeal behavior, actionability of certain rights in which the waiver of constitutional as it did with the causes of action for seduc (such as waiver of trial in a criminal tion and alienation of affections. 76 O.S.1991 proceeding) upheld. Finally, has been Ther- (Okla. 8.1; Still, Wilson v. 819 P.2d 714 modyne urges public policy that modern re- 1991). quires uphold validity this Court to clauses because is an effective Further, we have held that Section 6’s resolving and efficient disputes, method protection govern does not and should be favored this Court. immunity ment waive all in order to allow proceed Griggs suits to to court. v. State ex Under Section 8 we have invalidated Dept. Transp., rel. 702 P.2d agreements 1018-19 party to release a from all future (Okla.1985). liability arising Section 6 has most often personal injury. out of a insure, status, regardless used to Riggs, Pine Belt Lumber Co. v. 80 Okla. equal Chicago, permitted. 193 P. access to court is Ry. R.I. & P. Co. Jeffries Smith, State, 77 Okla. 188 P. 670 9 Okla.Crim. 132 P. 823 (it provision interpreted spirit But the has not violates been the letter and of Section 6 literally restrictively. deny example, pauper For we access to court because a agreement costs); an permitting pay have held valid self- cannot the fees and Fiedeer v. Appeals, bargain they 2. The Court of in Local Federal Bank v. held that the were free to JICO, (Okla. 1992), fit, was faced saw even if the results are harsh. The waiver question. guarantors with a Section 6 There the rights upheld. was See also Founders Bank & signed of a note an unconditional waiver which primary liability. (Okla. Upsher, Trust Co. v. established their The Guaran 1992) (upheld guarantor's waiver of —did tors asserted that the violated Section 6). not address the waiver in face of Section 8 and Section 6's access to courts. The court Fiedeer, are different kinds of arbitration. 140 P. 1022 There 42 Okla. required by a statute is consid- (married Arbitration given access to woman must be compulsory arbitration. Arbitration ered against action her hus- prosecute court agreed private parties is referred to as band). voluntary voluntary arbitration. It is arbi- Although legislature permitted in the tration which is involved case. legislation speedy to facilitate reso to enact has reviewed arbitration both differences, legislation cannot lution of voluntary compulsory setting. deny access to court. Johnson be used Dist. No. Mindemann v. Ind. School Scott, (Okla.1985), plaintiff (Okla.1989), P.2d 996 we invalidated an arbi incarcerated, brought a small claims was required tration the last level jail. action to retrieve some clothes left grievance procedure to be submitted judge appear. for failure to The dismissed provision The was to arbitration. legislature that set out a We held could required invalidated a statute that because in order procedure to follow for small claims decision-making board have the the school they quickly smoothly. proceed that power in such instance. We held that the However, procedure this could not be con away” “negotiate school could not its board deny plaintiff to a to strued thereafter, statutory Shortly duties. we in his claim. provision validated an arbitration because it

impermissibly delegated board’s the school authority reprimand to a teacher. Raines v. ARBITRATION (Okla. Indep. Dist. No. 796 P.2d 303 School adopted has the Uniform Oklahoma 1990). Act. 801 et Arbitration O.S.1991 City City, In Voss v. Oklahoma Act, seq. states that the The Section (Okla.1980), the issue was whether the making agreement of a written arbitration employee’s proceed to to District jurisdiction upon confers the courts the adoption Court had been waived any agreement enforce the to arbitrate exist agreement. bargaining the collective ing or future controversies.3 It further agreement an Court stated while may grounds states the serve as a controversy a was unlawful arbitrate reviewing basis to vacate the award a law, law did not at common the common (2) (8) (1) fraud, arbitrator, court: bias of an legislation, apply specific because of the Fire power, arbitrator exceeded his or her Thus, Arbitration Act. arbitra- and Police fairly, hearing was not conducted there controversy. cover a future tion could Clearly, agreement. was no arbitration upheld arbitration clause was as the exclusive judicial provides Uniform Arbitration Act grievances. adjusting method of review, albeit limited. arbitration, voluntary have also As for we have on several occasions reviewed We it in contexts. The most addressed several dealing Lane, with arbitration. various statutes is Cannon v. 867 P.2d 1235 recent trend, (Okla.1993). Cannon, Following employee we have stated a state generally “courts favor arbitration statutes.” faith. The HMO had sued an HMO for bad City, City provide with the state to medical Voss contracted (Okla.1980). the HMO was Arbitration allows for care. The issue was whether meaning of costly company within the speedy and less resolution of conflicts. insurance Act. We held that the Uniform Arbitration Id. 802(A) any equity contract. This for the revocation 3. Section states: bargaining apply act shall not to collective agreement apply A. This act shall to a written agreements to in- or contracts with reference controversy any existing to arbitra- submit except between surance for those contracts in a written contract to tion or companies. insurance any controversy thereaf- submit to arbitration parties. agree- arising ter between the Such irrevocable, manage- valid, an abbreviation for a health HMO is are enforceable and ments organization. grounds except exist at law or in ment was, company constitutionality and as an insurance it was of the arbitration clause be- expressly parties.5 excluded from the Arbitration Act. cause it was not raised legal had to effect of the We then decide voluntary agreement between the LEGAL APPROACHES OF Act HMO and the state. Because the was OTHER STATES rule, inapplicable applied we the common law Although thirty more than five states have uphold provi and refused to the arbitration adopted some form of the Uniform Arbitra- sion, stating “agreements fu submit no other state has a constitutional contrary public poli ture controversies are provision like Oklahoma’s Article cy,” citing Gregg, Wilson v. 208 Okla. Generally, upheld 8.6 courts have and en- (1953), Boughton 255 P.2d 517 v. Fann forced arbitration clauses.7 (Okla.1960). Exch., ers Ins. A few states have invalidated an arbitra- cases, Aside from these we noted that 15 pro- tion clause under the “access to courts” O.S.1991, § 216 makes void vision of the state constitution. State v. Ne- party’s right restricts enforce his Employees, braska Assoc. Public 239 Neb. rights by legal proceedings.” “usual 477 N.W.2d 577 Simon St. footnote, deciding we stated that we were not Center, Elizabeth Medical 355 N.E.2d 903 the constitutional issue of whether the arbi (Ohio 1976). Association, In Nebraska tration under was invalid provided Uniform Arbitration Act 8 of Article 23. arbitration when an arbitration clause was Shear, Reynolds In Dean v. Witter Inc. agreed parties to of a written con- (Okla.1990), party 796 P.2d 296 sued to Supreme tract. The Nebraska Court held agreement. enforce an arbitration The issue unenforceable, ruling the clause that Nebras- was whether Oklahoma’s fundamental law ka had never enforced contract governed the contract or whether the choice- rights controversy which waive before a has provision required of-law York that New law arisen. The Ohio found a Court limited re- directly be followed. We did not address the satisfy view did not the access to courts validity of the arbitration because requirement. Utah New Mexico were agreement governed by

we held was challenges faced with similar in Barnhart v. New York law. Co., Employees Civil Serv. Ins. 16 Utah 2d 398 P.2d 873 and Board Educ. DeGeer, Long (Okla.1988), v. 753 P.2d 1327 Harrell, v. 118 N.M. 882 511 presented regard another issue with to a Both courts held the statutes unconstitution- private contract which included an arbitra- al, based on lack of access to courts. upheld provi- clause. We the arbitration sion, states, however, stating on its face Most which have consid- right jury question showed a clear intent to waive constitutionality to ered the have specifically trial. upheld We did not address the arbitration statutes. a later Utah Minnesota, Missouri, Montana, Appeals, Michigan, 5. The Court of in Ditto v. Pre Ne- RE/MAX Properties, (Okla.Ct.App. braska, Nevada, Mexico, Carolina, 861 P.2d 1000 New North ferred 1993), uphold Dakota, refused to an arbitration clause Oklahoma, Pennsylvania, North South permit which did not both to have a voice Carolina, Dakota, Tennessee, Texas, Utah, South party seeking in the selection of arbitrators. The Vermont, Virginia, Wyoming. complete For a uphold provision urged to that arbitration that it citations, listing statutory various see the appeal rights provided was valid because of the preface to 15 O.S.1991 801. under the Uniform Act. Arbitration The Court of Appeals disagreed, holding regardless of the Klieforth, Corp. Communication v. 642 7.Benefits right appeal, impartiality of arbitrators (D.C.App.1994); Asphalt A.2d 1299 Des Moines was essential. The court refused to address the Ind., (Iowa 1993); v. Colcon 500 N.W.2d 70 challenges raised. Torrez, Mountain Plains Constructors v. 785 P.2d Co., (Colo.1990); Vukasin v. D.A.Davidson & 6. The states which have enacted a form of the (1990); Alaska, Arizona, 241 Mont. 785 P.2d 713 Docutel Uniform Arbitration Act are: Inc., Arkansas, Colorado, Delaware, Brady Systems Olivetti v. Dick (Utah 1986). District of Colum- bia, Florida, Idaho, Illinois, Indiana, Iowa, generally Kan- A.L.R.2d 432 sas, Maine, Massachusetts, Kentucky, Maryland, Co., Reicks, Broadnax, ease, supra; supra; City Engineers Constr. Lindon Elliott, (Me.1989); (Utah 1981), court Anderson v. 555 A.2d 1042 the Utah Co., dis- upheld an clause. The court Graham v. State Farm Mut. Auto. Inc. Barnhart, (Del.1989); stating that after Barn- 565 A.2d 908 Lumbermens Mu- tinguished Lease, legislature Corp. Bay had amended the stat- tual hart Cas. State Truck Inc., permit utes to the waiver of 366 Mass. 322 N.E.2d 737 Swedberg, controversies. Nordenstrom v. N.W.2d (N.D.1966).9 most did so in a conclu- While upheld has its arbitration stat- Colorado manner, sory Miller on the Delaware relied challenges. in the face of constitutional utes public policy case which held that the Broadnax, Farm v. State strongly state favored arbitration. (Colo.1992), requiring a statute challenged contracts was on the insurance Elliott, upheld supra, Anderson v. an arbi- jury to courts and denial of basis access attorneys required tration statute which urged The insurer that because the trial. arbitrate with their clients if there was a fee provide for novo review statute did not de dispute. approach, The court took a novel court, to courts. a district it denied access reasoning Supreme that because the Court Court, relying on con- The Colorado federal superintending had control Bar over the As- process, held that the statute did cepts of due members, it sociation and its was constitu- be- not violate the to access to courts Supreme tional Court arbi- meaningful oppor- gave cause it the insurer a tration. heard, tunity courts a to be allowed Although the cases are varied their re- award. limited review of the arbitrator’s sults, the trend favors arbitration. Arbitra- The court also held that good resolving tion is a method of cases trial was not violated. courts, without resort and Oklahoma has Hampshire Farm New Ins. Co. State recognized this with the enactment of the Co., (Del.1993) 643 A.2d 328 took a dif- Ins. Act, Uniform Arbitration the Police and Fire approach validating in their arbitra- ferent Act, requir- statutes Arbitration and various There, urged that tion statutes. the insurer ing arbitration for teachers. Most states arbitration denied access to courts. The have in a form similar to enacted UAA court held that access to court was not a by adopted Oklahoma. right. fundamental Under the lesser stan- scope believe that with the limited We basis, passed dard of rational the statute provided in the review as Oklahoma Uniform muster. Act, parties’ agreement Arbitration Corp., In v. Farmers Reicks Commodities pass sufficient to muster under Section (Iowa 1991), the commodities 474 N.W.2d completed the After arbitration has been contended that he was denied access broker parties may judicial obtain review jury compul- to court and a trial because of a This review insures that arbitration award. disagreed, sory clause. The court process will be conducted fair- and held that the effect of arbitration ly and bias. This resolution main- without does not make it unconstitutional.8 long-standing interpretation tains our of Sec- judiciary a mandate to the rather upheld have arbitra tion 6 as At least seven states legislature’s power than a limitation on the permissible infringement tion on the as jury Wagoner, 305 P.2d at trial. Miller v. Two State enact new laws. See Co., N.C.App. Constr. 455 S.E.2d Serv., Mahoney Surgical

8. See also Arbitration Act because it violated Doerhoff (Mo.1991) (constitutional 807 S.W.2d 503 under jury "For a form of alternative trial. jury provisions to the access to courts and trial muster, pass resolution to constitutional it must screening malpractice of medical place great right to a not too a restriction on the brought). claims before a lawsuit could be Id. at 1083. court indicated that trial.” might if the arbitration a different result obtain Williams, 110 Nev. 9. But see Williams v. voluntary. clause had been (1994), P.2d wherein the Nevada Su preme a section of the Uniform Court invalidated parties only if to have been violated. For THE OKLAHOMA CASES part of another the Constitution breached Lane, su- Rollings urges that Cannon can Section 8 be invoked. of cases it relied pra, and the line affording remedy every in “for validating the arbitration prohibit us from Legislature wrong” prohibit not does clause, operates to waive the clause because fixing the boundaries of what consti- arise in a future Paul, “wrong”. 782 P.2d at tutes a See St. Cannon, disagree. we controversy. We remedy every promise a for 919. It does not question did NOT that the contract held injustice; only “wrongs” recog- instead those Ar- of the Uniform fall within Legislature protected nized are Act, governed by our and was thus bitration Legislature’s Section 6. One of the elected well prior Boughton cases of and Wilson as jobs public policy is to make for the State. 15 O.S.1991 County Bd. Okla. Water Resources v. Texas not In the case the do Ass’n, Irrigation & Resources Water under the question that the contract falls (Okla.1985); 41 n. see also Stewart Act. provisions of the Uniform Arbitration (Okla.1990). Rood, 329 n. 13 expressly of the contract state The terms Legislature’s prerogative It is within the Thus, inapplicable, that it does. Cannon is change change the common to “reflect a law with a contract which specifically as it dealt Paul, 782 of time and circumstances.” St. subject to the Uniform Arbitration was not Legislature In this case the has P.2d at 919. Act. you may agree your dispute, said arbitrate so, you and once have done the courthouse prohibit Boughton nor Wilson this Neither you you open door stands if have been the long result. Those cases were decided be- fraud, bias, power, excess of victim Arbitra- fore the enactment of Uniform procedure. things are now the unfair Those began and before the courts to look tion “wrong” you judicial reme- for which have a eyes. The rea- on arbitration with favorable dy. Legislature In a similar sense the has soning invalidating an arbitra- Wilson given you “wrong” against builder for “they deprive provision was because injuries years sustained the first ten jurisdiction contrary to courts of and are construction, building’s of a O.S. policy.” longer No does public Id. deprived you “wrong” your of a and has fact, disfavor arbitration. we spouse’s seduction or alienation of affections strong public policy which favors it. have a § person. another 8.1 Wil- O.S.1991 Johnson, 896, Taylor v. (Okla.1991). Still, son v. (Okla.1985); City City, Voss v. Voss, in at 928. As we held review, Finally, statutory judicial prohibiting common law rule arbitration does limited, though provides as- court access to legislative apply specific there is not when your is not re- sure approval, such as there is here with the against you arbitrary, in an unfair solved Arbitration Act. enactment of the Uniform process pre- manner. Fundamental due logic Boughton and find the Wilson We served. contract, private executed inapplicable to pro- We therefore hold the arbitration legislative enactment of the Uni- after the Rollings in vision the contract between Act, parties in which the form Arbitration Thermodyne is enforceable. The Court provi- specifically agreed to an arbitration Appeals’ opinion is vacated. This matter is sion. proceedings remanded to the trial court for opinion. consistent with this fact remains that after we ana The results, lyze every other state’s arbitration V.C.J., HODGES, KAUGER, 23, only an Article we are still the state with HARGRAVE, LAVENDER, SIMMS and on the arbitra 8. What is its effect Section JJ., concur. analyzing in The solution lies tion clause? 6, WILSON, C.J., 2, meaning ALMA and OPALA the true of Article WATT, JJ., in provision argued by the concur result. Constitutional ALA, Justice, infirmity-dealing § promise give with whom ALMA text. A OP WILSON, Justice, joins, concurring up right yet a constitutional not Chief in existence clearly § par- within result. 8 interdiction. ty’s promise to submit contractual dis- upholds The court free from state con- —as putes operates to arbitration relinquish provision stitutional taint —a contractual constitutionally safeguarded access to the agreement’s signatories which calls application orderly courts for pro- forensic through disputes settle arbitration all inci- promise cess.5 It is for this reason that the performance. dental to the contract’s here suit falls within the class of obli- court reasons the Uniform Arbitration gations by § made inefficacious seq.,1 § 15 O.S.1991 801 et authorizes the parties promissory result, concurring today’s to make a waiver of their I While recede right pronouncement. of access to the courts.2 the court’s entire This Today’s pronouncement on a con- I must do because Oklahoma’s fundamen- —rested 23, 8, Const.,3 § struction of Art. Okl. consid- tal law6 condemns contractual 2, 6, conjunction § promissory ered in with Art. Okl. exact waivers of constitu- disregards plain language tionally safeguarded eourts;7 of the access to the Const.4— pertinent Georgia § 1. The terms of 15 O.S.1991 802 are: waiver. Id. at tor’s 800. The constitu- guarantees jury except to a trial apply agree- "A. act to a This shall written when the fail to demand a or "where any existing controversy ment to submit Const., 1983, no issuable defense was filed.” Ga. arbitration or a ain written contract ¶ I, Georgia § 11. The court realized that any controversy to submit to arbitration there- the Howard condemnation ran counter to its arising parties. agree- between the Such after imprimatur placed upon predispute earlier valid, irrevocable, ments are enforceable and agree- waiver of court access in an arbitration except upon grounds at law exist or in unwilling ment. Id. 800. It was nonetheless equity any for the revocation of contract....” conflict, clearly perceived pre- to harmonize the [Emphasis mine.] ferring to leave its resolution to the General Today's pronouncement promisor affords the Assembly. but one avenue of access to the courts—that of securing judicial vacation of the arbitrator’s pertinent terms Okl. For Const. Art. vacating award. Grounds for such awards are see "fraud, bias, statutorily confined to excess of power, procedure.” or unfair See 15 O.S.1991 open-courts In addition to the clause in Art. 812(A). Const., constitutionally safeguarded § Okl. ac- orderly judicial cess to institutions for resort to provides: 3. Okl. Const. Art. process may forensic be drawn from: contract, “Any provision express aof or im- Const., plied, by any person, by The terms of Art. Okl. which are: made life, person deprived liberty, "No sought shall be benefits of this Constitution is to be waived, properly, process without due of law.” [Emphasis shall be null and void.” Const., pertinent terms of Art. Okl. mine.] which are: pertinent 4. The terms of Okl. Const. Art. by jury "The of trial shall be and remain are: inviolate...." justice open 5, 46, Const., “The courts the State shall be pertinent terms of Art. Okl. everyperson, speedy remedy and and certain provide: every wrong every injury not, and afforded for for Legislature except "The shall as otherwise reputation; person, property, right Constitution, or and provided pass any in this local or sale, justice and shall be administered without authorizing: special law denial, delay, prejudice.” or of, Regulating practice jurisdiction or the or Today's construction of Art. 8—which changing judicial pro- of evidence in the rules executory promise-based sanctions waivers of courts, ceedings inquiry, justices or before the implicates constitutional a much broader — sheriffs, commissioners, peace, arbitra- range just agree- of contracts than tors, See, Howard, tribunals.... or other e.g., ments. Bank South v. 264 Ga. 444 S.E.2d In Howard the question promise to be decided was whether a actions; For limitation of civil or criminal (in document) loan-guaraniy a to waive a trial is enforceable when it is disconnected from a Providing change up- of venue in civil and contract to arbitrate. The court refused to for hold, grounds, guaran- on state the criminal cases.” prudential parties’ bar of restraint commands ture —that relates to the contractual today’s principal performance. issue —the state funda- validity promise arbitrate mental-law of a Thermodyne’s perfor Concerned about yet-to-arise controversy be resolved —not terms, Agreement’s mance under the Roll necessity; in advance of strict and since ings sought to have the district court declare jurisprudence U.S. teaches that the Federal Thermodyne terminated. pre- Arbitration Act8 [FAA] intended dispute’s moved for the submission to arbi empt state law if the latter interferes with prius tration. At nisi its motion met enforceability of arbitration clauses in ruling. Appeals adverse The Court of re commerce”,9 “involving contracts the Su- versed, holding that'under Art. Okl. premacy Clause of the U.S. Constitution10 Const., promise yet-to-arise to arbitrate a uphold commands that this court the arbitra- controversy granted We provision and suit rest its decision on enforceable.14 Today’s pronouncement certiorari. reverses the FAA’s mandate rather than on its answer Rollings. the trial court’s decision for promise passes to whether the arbitration 8 muster.11

II I THE TERMS OF ART. 8 RENDER ABSOLUTELY VOID ROLLING’S ANATOMY OF LITIGATION EXECUTORY EX CONTRACTU WAIVER OF HIS CONSTITUTION- invention, Rollings is the owner of an cov- AL RIGHT OF ACCESS TO THE patent, design ered of an COURTS Rollings industrial hot water heater. In 1991 Industries, Thermodyne Inc. [Thermo- dyne] licensing agreement into a entered [the validity Rollings’ The constitutional ex- Agreement] which transferred the exclusive manufacture, ecutory15 (promissory) ex contractu waiver market and sell indus- using patented of his design. trial heaters fundamental-law of access to Agreement12 requires signatories by giving key Their courts must be tested any dispute present to arbitrate13 fu- language commonly in Art. 8 its ac- — pertinence licensing Agreement's provided of the constitutional 12. The terms infra, set out in this note is discussed 11(C). section 7: clause any dispute "Remedies. In the event of be- Agree- relating tween the ment, hereto to this seq. §§ 8. 9 U.S.C. 1 et parties hereby agree to arbitrate rules, regulations such under pertinent 9. See the terms 9 U.S.C. guidelines of the American Arbitration Associa- provide: [Emphasis tion.” mine.] any "A written ... contract evi- dencing involving a transaction commerce accepted 13. Arbitration anis ancient and institu- controversy arising settle ... settling disputes. recognized tion for It has been out of such contract or ... transaction shall early the common law at least since the thir- valid, irrevocable, enforceable, save Powell, century. teenth Settlement Dis- grounds equity as exist at law or in putes by Fifteenth-Century Eng- Arbitration in [Emphasis the revocation of contract.” land, 2 Law & Hist.Rev. mine.] pertinent language 14. For the of Okl. Const. Art. Const., VI, 10. U.S. Art. cl. 2. 23, 8, supra § see note 3. Although petition Thermodyne 11. in its in error "Executory” obligation perfor did not invoke the Federal Arbitration it did 15. connotes an or press applicability page reply completed for its 10 the of mance which is to be in the future. timely-filed may Economy Roofing Insulating brief. For the rule that a brief See & Co. v. Zumar error, is, 641, (Iowa 1995); supply deficiency petition in the in see 538 N.W.2d 650 In re San Estate, Inc., Okl., 344, Whinery’s Bay Exposition, F.Supp. Markwell v. Real 869 Francisco 50 346 840, (1994). (N.D.Cal.1943). P.2d 843

1039 Agreements disputes to arbitrate meaning.16 The cepted nontechnical text future By meet the 8 standards. these cannot to be considered states: “knowing- can never agreements waivers be contract, express “Any provision of a or ly” “intelligently” or made in advance. Un- by any implied, person, made knowledge is had less one shown to have full of of the benefits this Constitution all the facts that one’s material establish waived, null and sought to be shall be right, an cannot be said to under- individual [Emphasis mine.] void.” appli- appreciate or the breadth of the stand being benefits surren- jurisprudence extant defines cable constitutional Oklahoma’s may relinquishment No be held to have waived as the intentional dered. one “waiver” contours, setting in showing rights outer in the rights under circumstances whose known surrendered, arise, they rights might are still unknown.21 the were the which that when waiving party knowledge had of its then ex B isting rights and of material facts language Recognized constitutional they depended.17 The 8 hermeneutics contractual, i.e., 28, promise- be dictates that the words Art. 822 interdicts conformity ordinary based, pledge interpreted in in form of a their waivers i.e., significance English language, in state surrender benefits given they commonly accepted their may become one’s due in the in meaning.23 parties’ dealings.18 nontechnical Fundamental-law course contractual practical construed in proscribe praesenti It not must be does one’s relin 19 right by plainly so intent quishment of a a manner manifested fundamental-law juristic may act.20 of its drafters be honored.24 888, Cir.1967); Wilson, (9th my position 776 16. 896 Evans v. For an extensive discussion of on 939, (Tenn.1989). 23, applicability 8 to S.W.2d 940 agreements, Wiegand, see Arbitration Clauses: Bad, Good, Ugly, 47 Okla.L.R. 627-36 21. Berman Fraternities Health & Accident v. (1994). 462, Assn., 368, (1910); A. 107 Me. 78 464 Enter- Schendel, 42, prise Sheet Worksv. 55 Mont. Metal Co., Faulkenberry Railway City 17. v. Kansas So. 1059, (1918); & 173 P. 1061 Danville Lumber 203, (1979). 206 See also Okl. 602 Schneck Co., 103, Mfg. Bldg. Co. v. 177 97 Gallivan N.C. Bustamonte, 218, 35, loth v. 412 U.S. 93 718, 234 - (1919); Michigan Ins. S.E. 720 Automobile 2041, 2051-52, (1973); L.Ed.2d 854 S.Ct. 36 Buskirk, 598, Co. v. Van 115 Ohio St. N.E. 155 464, Zerbst, 458, 58 v. 304 U.S. S.Ct. Johnson 186, (1927). 188 1023, 1019, 82 L.Ed. 1461 Schneck knowledge Court holds loth the that while not 23, 8, language of Art. 22. For see consent, prerequisite voluntary for a it is essen defined tial to an effective waiver that is as an relinquishment intentional of a known White, Okl., 255, Campbell 262 23. v. 856 P.2d 235, privilege. 412 U.S. at 93 S.Ct. at 2052. Brown, 526, Okl., (1993); 528 Wade v. 516 P.2d (1973); Sharpe Bar v. State ex rel. Oklahoma 206-207; Faulkenberry, supra 16 at See note Association, Okl., 301, (1968); 448 P.2d 306 6, Okl., Independent Raines v. School Dist. No. Hunt, Okl., Ogden 1088 State ex v. rel. V.C.J., 303, (1990) (Opala, 305 concur- 1, syls. 2 ring). writing My does not itself with 24. The of Oklahoma's constitution concern relin- drafters jurispru quishment of access to the courts to arbitrate an doubtless were aware of then-extant dispute. taught person can existing praesenti waivers that while a are not dence which contracts; By praesenti, they promissory. no one are not their waive constitutional away they pur- may [by agreement] his very within the "barter definition do not fall advance 23, States, rights.” Stange his of Art. v. United life or his freedom or substantial view Morse, 147, (20 Wall.) Company 51 S.Ct. 75 L.Ed. 335 Insurance 87 U.S. (1874); (1931); Engineering also & 365-368 see Bertelsen Petersen Co. v. 22 L.Ed. Hon, States, (1st Cir.1932). Neb. 60 F.2d Fire Ins. Co. United Hartford (1902); N.W. Wortman v. Montana Co., Ry. juristic designed P. 320-21 act is one to have a Cent. 22 Mont. Co., Mfg. private Cupples Irr. legal is an v. Alamo & effect. It act of a individual origin, Kan.App. & 51 P. 920 Baltimore to the surrender or alteration of directed Stankard, Collier, Inc., 46 N.E. right. O.R. Co. 56 Ohio St. See Gates v. P.F. F.2d 1040 disapproval §

Fear of universal should not explicitly predis- 8 which would validate today giving § dissuade us plainly pute agreements. from 8 its meaning. jurisprudence intended Extant It judges is to be doubted that of succeed- insight from rich elsewhere offers into what ing generations willing would be to view the happens plain when fundamental law’s meaning § of the 8 command as the court ordinary meaning judicially ignored is or at- today. does A likelihood of tomorrow’s less tempted to be written out of existence. The friendly response to the call for accommoda- Supreme Plessy Court’s 1896 decision tion, Brown,28 not dissimilar from that in Ferguson25 eloquent serves as a most not to be discounted. Business and labor Court, perceiving reminder. There the rely badly cannot security the needed of shocHng consequences from an evenhanded promises today’s Plessy-like their on bandaid exposition Clause, Equal Protection solution. forged separate-but-equal doctrine, though popular at the time —failed to which— pass scarcely muster six decades later when C it was revisited Brown v. Board of Edu- The court confines its decision to consider- Topeka, of County, cation Shawnee Kan.26 23, 2, 6, § ation of § Art. 8 and Art. OH.

I will Plessy. Const., not travel the road chosen giving impression the erroneous The text of Art. interpreted 8 is to be the two sections are the fundamental- without resort to technical fabrications of pertinent its law to the issue. Not so. language. plainly purpose promise manifested to submit a future to of If, divine, upheld.27 must be as I operates relinquish more than drafters management both vigorously just sup- general labor access to the courts. It serves port arbitration, concept regarding give of up promisor’s its constitutionally benefits indispensable expedi- as an safeguarded tool for procedure mode of that is em- inexpensive settling (access tious and disputes, 2, of courts), § bodied in Art. 6 Art. objective 2, (due their law) would be process 2, achieved with much 7 of and Art. 19 greater security through (right by jury). Moreover, amendment of to trial all these 577, (1897); Supreme 578-79 Council Order "No limiting law shall be enacted 52, Forsinger, Chosen Friends v. 125 Ind. 25 N.E. damages amount of to be recovered for caus- 129, 32, Lodge, Bauer v. ing Samson No. injury any person. Any or death of of P., (1885). K. 102 Ind. 1 N.E. any employe contract or waiving any right damages to recover Williams, op See also R.L. Constitution causing injury any employe the death or (1912), pp 301-302 which ascribes as shall be void.” 8, sources of following Old. Const. Art. pertinent provisions; 25.Plessy Ferguson, 163 U.S. 16 S.Ct. (1876): Colo. Const. Art. (1896). 41 L.Ed. 256 any "It person, compa- shall be unlawful for ny corporation require employés, or of its 26. 347 U.S. 74 S.Ct. employment as a L.Ed. 873 condition of their or other- (1954). wise, any agreement whereby contract or person, company, corporation such or shall discharged liability be released or from or 304; Sharpe, supra note 23 at Hines Win responsibility personal injuries on account of ters, Okl., See also ... and such contract shall be null and Cordell, Latting v. syl. 197 Okl. void.” There the court held: Mont. Const. Art. construction, object applied "The to a any person, compa- "It shall be unlawful for constitution, give ny corporation effect to the intent employes, or of its framers, people adopting it. employment as a condition of their or other- wise, This intent is to be found in the instrument agreement whereby contract or itself; person, and when the company, corporation text of a constitutional or shall ambiguous, discharged is not liability be released or courts ... liberty responsibility meaning are not at personal injuries to search for its on account of beyond [Emphasis ... mine.] and such instrument.” contract shall be null and void.” Wyo. (1889): Brown, Const. 28. See

1041 trability Rollings/Thermodyne dispute. guaranteed by of the procedural strictures stand When, here, legal clearly sought 5, relief § Art. 46.29 may grounds, be afforded alternative By mandating uniformity procedure, the of challenges is consideration of constitutional that all terms Art. 46 command citi- of inappropriate under self-erected equal state shall have access zens of the “prudential time-honored bar” of restraint.32 gener- legal application institutions process. ally ordinary forensic applicable comprise single litigants but a class.

Contract IV By persons have executed singling out who THE FEDERAL ARBITRATION ACT agreements for use of

predispute arbitration STATE WHICH PRE-EMPTS LAW trial, deciding a mechanism different ARBITRATION CLAUS- GOVERNS contrary division is dichotomous created — INVOLVING IN ES CONTRACTS 5, single litigating Art. class of 46—for COMMERCE parties. existing in the of an While context may protec- dispute, litigants 46 waive jurisprudence33 teaches Settled federal tion, respect disputes, that when a contract involves commerce34 23, Art. waivers offend the 8. arbitration, arbitrability calls for arising disputes of both and future

Ill solely by under its terms is to be determined Roll- the Federal Arbitration Act.35 The THE BAR OF RE- PRUDENTIAL ings/Thermodyne clearly calls for THAT COMMANDS THE STRAINT object manufacture arbitration and its —the CONSTITUTIONAL ISSUE STATE plainly sale in- of industrial heaters — BEFORE US BE RESOLVED NOT when it volves commerce is tested IN ADVANCE OF STRICT NECESSI- short, controlling federal-law norms. TY clearly suit is en- arbitration erroneously Appeals conclud- The Court purview of the FAA. within forceable Rollings’ ed it needed to reach constitu- litigation is found to challenge tional Uniform Once transaction Oklahoma’s Arbi- standards, e., i. com- principal the FAA “involve” tration Act30 to decide the issue in meet law, merce, apply cannot state law suit. A well-settled rule of federal dis- state courts below,31 agree- its absolutely invalidate arbitration cussed controls arbi- would 1, 5, 46, (1987); Keating, pertinent v. 465 U.S. 29. 426 Southland For the terms of see 15-16, 852, 860-61, supra Predispute agreements 79 L.Ed.2d 1 104 S.Ct. uniformity procedure mandated violate the promisees because 8 will not allow their 46 procedural regime benefit from different Allied-Bruce, 33, supra where the 34. See note generally which is accorded. than that meaning word in its FAA Court holds that than words "involves” is broader the often-found etseq. §§ 801 15 O.S.1991 the func art and is “indeed “in commerce" 30. ‘affecting’." equivalent 513 U.S. at tional -, IV, Court describes 115 S.Ct. at 839-40. The 31. See section infra. that of reach as coextensive with [FAA] the Act's Southland, supra note Clause. Chadha, 919, Commerce v. 462 U.S. (1983); 103 S.Ct. I.N.S. 14-15, 860; 33, Perry, 104 at 465 U.S. at S.Ct. 2764, 317 Ashwander 77 L.Ed.2d v. 490, supra S.Ct. at note 482 U.S. 107 Valley Authority, 56 Tennessee 297 U.S. determining call whether a contract The test for (1936) (Brandéis, J., 80 L.Ed. S.Ct. 688 purview ing for falls within the FAA's Westinghouse concurring). See also Smith v. inter involve Okl., "[does] the 'transaction' (1987); Corp., 732 467 n. 3 Elec. fact Allied-Bruce, supra note Diehl, Okl., state commerce.” 283 Schwartz at -, even S.Ct. at It is not 513 U.S. 115 Department Dablemont State Public necessary contemplated an inter Okl., Safety, 513 U.S. connection. Id. at state commerce -, at 843. S.Ct. Companies, Inc. v. Allied-Bruce Terminix Dob son, U.S. -, -, 838-40, 115 S.Ct. Thomas, seq. §§ note 9 for the Perry 1 et 35. U.S.C. L.Ed.2d 2520, 2525, applicable provisions of the FAA. 107 S.Ct. 96 L.Ed.2d upon ment.36 Mastrobuono v. Shearson Leh- grounds ble alternate upon rest —which explained: man Hutton37 firmly the Court principle established of federal law—consideration an unsettled state con- FAA not ‘declared a “[T]he national question stitutional inappropriate. would be arbitration,’ policy favoring but also ‘with- Rollings/Thermodyne contract is arbitra- power drew the the states to provisions ble under the of the Federal Arbi- judicial the resolution claims forum for jurisprudence tration Act and gov- contracting parties which agreed ” erns that Act’s outer reach. resolve [Emphasis arbitration’. mine.] [Citing Keating.38] Southland v. I hence concur in the result but recede today’s Plessy-like from escape linguis- jurisprudence Settled federal absolutely com- reality revealed, tic historicity and from if provisions mands that the of Art. 8—a dictated, by Populist not indeed roots of state constitutional antiarbitration hurdle— this State’s fundamental-law charter.42 yield to the of the FAA.39 y

SUMMARY

Were I today called to measure

validity of the arbitration clause the Roll-

ings/Thermodyne Agreement by the state standards, my

constitution’s opinion would CO., LTD., Appellee, P K& declare it violative of Rollings’ 8. promise to impermissible arbitrate is an ex- ecutory constitutionally waiver of his safe- OKLAHOMA DEPARTMENT guarded access to the courts. The text of MINES, Appellant. OF explicitly prohibits promise-based waiv- rights.40 ers of fundamental-law No. 75778. The U.S. Supremacy Constitution’s Clause Supreme Court of Oklahoma.

must control the dispositive resolution of the issue tendered this jurispru- cause. U.S. Jan. unequivocally contract,

dence41 holds that a (1) (2) involves commerce and contains promise disputes arbitration of to arise terms, governed by

under its federal law controls over infirmity state-law

drawn from the policy. State’s antiarbitration prudential bar of restraint demands that

when, here, legal clearly relief is afforda- Terminix, supra at -, (O'Connor, J.,

36. Allied-Bruce note 513 U.S. 115 S.Ct. at 844 at -, dissenting). 115 S.Ct. at 842. Okl., Massey Group, v. Farmers Ins. at -, -, 37. 513 U.S. S.Ct. 1215- C.J., (Opala, concurring in re 131 L.Ed.2d 76 Raines, sult); supra (Opala, note 18 at 304-305 V.C.J., concurring); Reynolds, Dean Witter Inc. v. Southland, 10; Shear, supra Okl., 38. See note 465 U.S. at Long DeGeer, Okl., 104 S.Ct. at 858. (Opala, 753 J., concurring). Supreme jurisprudence The U.S. Court’s FAA supra 41. See though severely on us even it has been justices criticized several of that Court as steeped Populist Oklahoma's constitution is according compass, the Act too broad a philosophy. one that See D. Progressive Goble, goes beyond any congressional far discernible 156-58 J.C. Oklahoma. Region- Milligan, Terminix, intent. See Allied-Bruce History note 148-51 al

Case Details

Case Name: Rollings v. Thermodyne Industries, Inc.

Court Name: Supreme Court of Oklahoma

Date Published: Jan 23, 1996

Citation: 910 P.2d 1030

Docket Number: 82774

Court Abbreviation: Okla.