[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11651 ELEVENTH CIRCUIT
________________________ AUGUST 10, 2011
JOHN LEY
CLERK
D.C. Docket No. 4:06-cv-00042-WLS
BARBARA ELIZABETH LAWSON,
Individually and on behalf of a class of
all persons similarly situated,
JERRY LAWSON,
Individually and on behalf of a class of
all persons similarly situated,
lllllllllllllllllllll Plaintiffs - Appellees,
versus
LIFE OF THE SOUTH INSURANCE COMPANY,
a corporation,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 10, 2011)
Before CARNES, PRYOR, and COX, Circuit Judges.
CARNES, Circuit Judge:
A rule of contract law is that one who is not a party to an agreement cannot
enforce its terms against one who is a party. See Walsh v. Columbus, H.V. & A.R.
Co.,
176 U.S. 469, 479,
20 S. Ct. 393, 397 (1900); Cooper v. Meridian Yachts,
Ltd.,
575 F.3d 1151, 1169 (11th Cir. 2009); United States v. Puentes,
50 F.3d
1567, 1574 (11th Cir. 1995); 13 Samuel Williston & Richard A. Lord, A Treatise
on the Law of Contracts § 37:1 (4th ed. 1999) (“As a general rule, strangers to a
contract acquire no rights under such a contract.” (quotation marks omitted)). The
right of enforcement generally belongs to those who have purchased it by agreeing
to be bound by the terms of the contract themselves. Most legal rules have
exceptions, however, and this rule is no exception to that rule of exceptions. In
Arthur Anderson LLP v. Carlisle, ___ U.S. ___,
129 S. Ct. 1896 (2009), the
Supreme Court noted that a nonparty to a contract may have the legal right to
enforce its provisions “through assumption, piercing the corporate veil, alter ego,
incorporation by reference, third-party beneficiary theories, waiver and estoppel.”
Id. at 1902 (quotation marks omitted).
Life of the South Insurance Company contends that two of those
exceptions—the third-party beneficiary doctrine and equitable estoppel—allow it
2
to compel Barbara and Jerry Lawson to arbitrate their disagreement with it under
the terms of an arbitration clause in a contract to which the Lawsons were parties
but Life of the South was not. The Lawsons do not want to arbitrate, preferring
instead to proceed with the nationwide class action lawsuit they have pending
against Life of the South arising out of the credit life insurance policy they
purchased from it. They contend that Life of the South has no right to enforce
against them the arbitration clause in the loan agreement, even though that
agreement did lead them to enter into a separate credit life insurance contract with
it. We agree with the Lawsons. This is a case where the general rule applies and
the exceptions to it do not.
I.
In December 2002 the Lawsons purchased a used 2000 Chevrolet Blazer
from a car dealership in Morrow, Georgia. To finance the purchase they entered
into a loan agreement with the dealership. The dealership assigned the loan
agreement to Chase Manhattan Bank.
The loan agreement required the Lawsons to pay monthly installments on
the car for 60 months, but it granted them the right to pay off the loan early. It
also contained a clause titled “Agreement to Arbitrate Disputes,” which provided:
A Dispute means any controversy or claim . . . arising from or relating
to [the loan agreement]. The term Dispute includes, but is not limited
3
to, the negotiation or breach of [the loan agreement], or any aspect of the
sale of the vehicle involving any Buyer, Co-Buyer, Seller or assignee,
agent, employee, surety bonding company or insurer of any of these
persons. . . . If any Dispute arises, either you or we may choose to have
the Dispute resolved by binding arbitration . . . .
(emphasis added). The loan agreement defined “you” as “the Buyer” (Barbara
Lawson) and “Co-Buyer” (Jerry Lawson) and “we” as “the creditor named above”
(the car dealership), “after assignment, the creditor’s assignee” (Chase
Manhattan), and “any other assignee” (there were no other assignees). The
arbitration clause also provided (gratuitously) “that this Agreement to Arbitrate
Disputes shall be subject to and governed by the Federal Arbitration Act, 9 U.S.C.
[§§] 1–10, as amended.”
The loan agreement gave the Lawsons the option to purchase credit life
insurance. The premium for the insurance was a one-time, up-front payment of
$530.08, and that premium would be included in the total amount financed under
the loan agreement for the purchase of the car. Opting to purchase the insurance,
the Lawsons checked the appropriate box on the loan agreement.
In addition to checking that box on the form loan agreement with the car
dealership, the Lawsons executed a separate credit life insurance policy agreement
with Life of the South. The insurance policy provided that Life of the South would
pay the balance the Lawsons owed on the car loan if either of the Lawsons died
4
before the loan was paid off. The total coverage at the time of execution was the
original loan balance of $15,706.20, which included the insurance premium, but
coverage would decrease each month to reflect the payments that the Lawsons
made on the loan. Unlike the loan agreement between the Lawsons and the car
dealership, the insurance policy agreement between the Lawsons and Life of the
South did not contain an arbitration clause.1
The insurance policy provided that if the Lawsons paid off the loan early,
they would be eligible for a refund of any remaining premium, which the policy
referred to as the “unearned premium.” The refund would be prorated based on the
amount of time left on the original loan term. The Lawsons paid off the loan in
April 2005, more than two-and-a-half years early. Life of the South made no
effort to refund the unearned amount of the prepaid premium to the Lawsons.
In March of 2006, without having requested a refund from Life of the South
or notifying it that they had paid off the loan, the Lawsons filed a nationwide
consumer class action in Georgia state court against Life of the South. On behalf
of themselves and the purported class, the Lawsons sought a refund of the
unearned premium due under the insurance policy because of the early termination
1
The reason it did not is worth mentioning. Under Georgia law, arbitration agreements in
contracts of insurance, including credit insurance policies, are unenforceable. See Ga. Code Ann.
§ 9-9-2(c)(3), see also McCarran-Ferguson Act, 15 U.S.C. § 1012(b).
5
of the loan, as well as damages under several contract and tort theories, injunctive
relief requiring Life of the South “to ensure that in the future insureds . . . receive
[their] refunds,” and attorney’s fees. The purported class included all United
States residents “who have been or will be insured under a Life of the South credit
insurance policy” and “whose underlying loan stopped or could stop” before the
end of the loan term, and “who were not paid or might not be paid a refund.” The
class allegedly numbers in the “hundreds of thousands.”
Life of the South filed a motion to compel arbitration based on the
arbitration clause in the loan agreement, which provided Chase Manhattan, the car
dealership, and the Lawsons the right to force arbitration of any dispute arising
from or relating to that agreement. The arbitration clause in the loan agreement
provided that “[n]o class action arbitration may be ordered under this Agreement
to Arbitrate Disputes,” cf. AT&T Mobility LLC v. Concepcion, ___ U.S. ___,
131
S. Ct. 1740, 1747 (2011), which, given the class action settlements in cases against
other credit insurers involving this same issue, makes the arbitration issue a high
stakes one.2
2
According to Life of the South, the law firm representing the Lawsons has been quite
successful in bringing claims like these in class action lawsuits. See Reply Brief of Appellant at
1 & n.3. The firm’s website boasts that in similar class actions it has filed against other credit
insurers it has obtained settlements of $49 million, $45 million, and $27.5 million. See
http://www.butlerwooten.com/Results/Class-Action-Cases.shtml (last visited July 18, 2011); see
also Joint Motion for Final Certification of a Settlement Class, Final Approval of Class
6
Life of the South removed the lawsuit to a federal district court under the
Class Action Fairness Act, 28 U.S.C. §§ 1711 et seq. and 28 U.S.C. § 1332(d),
bringing with it the motion to compel arbitration. The district court eventually
denied the motion to compel arbitration. This is Life of the South’s appeal from
the denial of that motion. See 9 U.S.C. § 16(a)(1)(B) (“An appeal may be taken
from an order . . . denying a petition [under the FAA] to order arbitration to
proceed . . . .”).
II.
We review de novo the district court’s denial of a motion to compel
arbitration. MS Dealer Serv. Corp. v. Franklin,
177 F.3d 942, 946 (11th Cir.
1999).3 To determine which disputes between the parties to an enforceable
arbitration agreement are covered by the language of the arbitration clause, we
Settlement, and Request for Permanent Injunction and Final Dismissal at 4 n.2, Perkins v.
American Nat’l Ins. Co., No. 3:05-CV-100-CDL (M.D. Ga. Jan. 7, 2009). The results of those
other class action lawsuits explain why Life of the South favors arbitration, but they are
irrelevant to the issue of whether it has the legal right to force the Lawsons to arbitrate, which is
all that is before us.
3
Because our review is de novo, we need not decide the arbitration issue on the same
basis that the district court did, and we don’t. The district court concluded that Life of the South
could not force the Lawsons to arbitrate because it found that the McCarran-Ferguson Act, 15
U.S.C. § 1012(b), reverse preempted the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and under
Georgia law, arbitration clauses between insurers and insureds are unenforceable. Without
reaching that theory or implying any view about it, we reach the same result on another ground.
See Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1256 (11th Cir. 2001) (noting that we may
affirm the district court’s judgment on any ground that finds support in the record).
7
“apply[] the federal substantive law of arbitrability,” which is “applicable to any
arbitration agreement within the coverage of the FAA.” Klay v. All Defendants,
389 F.3d 1191, 1200 (11th Cir. 2004) (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc.,
473 U.S. 614, 626,
105 S. Ct. 3346, 3353, (1985)). That
inquiry “must be addressed with a healthy regard for the federal policy favoring
arbitration,” Picard v. Credit Solutions, Inc.,
564 F.3d 1249, 1253 (11th Cir. 2009)
(quoting Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 26,
111 S. Ct.
1647, 1652 (1991)), and we must “rigorously enforce agreements to arbitrate,”
Klay, 389 F.3d at 1200 (quoting Dean Witter Reynolds, Inc. v. Byrd,
470 U.S.
213, 221,
105 S. Ct. 1238, 1242 (1985)).
Still, “arbitration is a matter of contract [and] the FAA’s strong
proarbitration policy only applies to disputes that the parties have agreed to
arbitrate.”
Klay, 389 F.3d at 1200. An exception to that rule is that a nonparty
may force arbitration “if the relevant state contract law allows him to enforce the
agreement” to arbitrate. Arthur Anderson LLP v. Carlisle, ___ U.S. ___,
129 S. Ct.
1896, 1903 (2009); cf. Bd. of Trs. v. Citigroup Global Mkts., Inc.,
622 F.3d 1335,
1342–43 (11th Cir. 2010) (applying state contract law to determine if a
nonsignatory to an arbitration clause could be compelled to arbitrate under agency
principles).
8
As we have already mentioned, “traditional principles of state law” may
allow “a contract to be enforced by or against nonparties to the contract through
assumption, piercing the corporate veil, alter ego, incorporation by reference,
third-party beneficiary theories, waiver and estoppel.” Carlisle, 556 U.S. at ___,
129 S.Ct. at 1902 (quotation marks omitted). Many of this Court’s decisions
involving the question of whether a non-party can enforce an arbitration clause
against a party have not made clear that the applicable state law provides the rule
of decision for that question. See, e.g., Becker v. Davis,
491 F.3d 1292, 1299
(11th Cir. 2007); Blinco v. Green Tree Servicing LLC,
400 F.3d 1308, 1312 (11th
Cir. 2005); In re Humana, Inc. Managed Care Lit.,
285 F.3d 971, 976 (11th Cir.
2002), rev’d on other grounds, PacifiCare Health Sys., Inc. v. Book,
538 U.S. 401,
123 S. Ct. 1531 (2003); MS Dealer Service Corp. v. Franklin,
177 F.3d 942, 947
(11th Cir. 1999); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc.,
10 F.3d 753,
757 (11th Cir. 1993); McBro Planning and Dev’t Co. v. Triangle Elec. Constr.
Co.,
741 F.2d 342, 344 (11th Cir. 1984). However, the Supreme Court’s 2009
decision in Carlisle, which postdates all of those decisions of this Court, clarifies
that state law governs that question, and to the extent any of our earlier decisions
indicate to the contrary, those indications are overruled or at least undermined to
the point of abrogation by Carlisle. See United States v. Sneed,
600 F.3d 1326,
9
1332 (11th Cir. 2010) (“[A] prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point of abrogation by
the Supreme Court or by this court sitting en banc.” (emphasis omitted)).
In this case, Life of the South contends that it can enforce the arbitration
clause in the loan agreement, to which it was not a party, against the Lawsons who
were parties, under two traditional state-law principles. Life of the South
essentially argues that it can compel the Lawsons to arbitrate under their loan
agreement with the car dealership because it is a third party beneficiary to that
agreement’s arbitration clause, or that it can do so under the doctrine of equitable
estoppel. We disagree.
A.
Georgia law applies in this case. See World Harvest Church, Inc. v.
Guideone Mut. Ins. Co.,
586 F.3d 950, 956 (11th Cir. 2009). Under it “[t]he
beneficiary of a contract made between other parties for his benefit may maintain
an action against the promisor on the contract.” Ga. Code Ann. § 9-2-20(b); U.S.
Foodservice, Inc. v. Bartow Cnty. Bank,
685 S.E.2d 777, 779 (Ga. Ct. App. 2009).
Third-party beneficiaries have standing to enforce contracts intended for their
benefit. U.S.
Foodservice, 685 S.E.2d at 779. “There must be a promise by the
promisor to the promisee to render some performance to a third person,” Danjor,
10
Inc. v. Corporate Constr., Inc.,
613 S.E.2d 218, 221 (Ga. Ct. App. 2005), and “the
contracting parties’ intention to benefit the third party must be shown on the face
of the contract.” Donnalley v. Sterling,
618 S.E.2d 639, 641 (Ga. Ct. App. 2005).
The scope of the arbitration clause in the loan agreement between the car
dealership and the Lawsons is broad, even expressly referring to disputes
involving the Lawsons’ “insurer,” but the right to enforce that clause is clearly
limited to the Lawsons, the car dealership, Chase Manhattan, and any assignees of
the car dealership or Chase Manhattan. (Life of the South does not contend that it
is an assignee.) The arbitration clause in the loan agreement is not mandatory; it
does not require that every dispute falling within its scope be arbitrated. Instead,
the clause provides that “[i]f any Dispute arises, either you or we may choose to
have the Dispute resolved by binding arbitration.” On its face, the loan agreement
grants only “you” (defined as the Lawsons) and “we” (defined as the car
dealership, Chase Manhattan, and their assignees) the right to elect to arbitrate.
Life of the South is neither a “you” nor a “we.” Instead, in pronoun terms, Life of
the South is an unmentioned “it,” and the face of the arbitration clause does not
show an intent to give “it” the right to compel arbitration. The loan agreement
does not show, on its face or elsewhere, an intent to allow anyone other than the
Lawsons, the car dealership, Chase Manhattan, and the assignees of the dealership
11
or Chase Manhattan to compel arbitration of a dispute, and Life of the South is
none of those.
B.
Life of the South also contends that it can compel the Lawsons to arbitrate
under the doctrine of equitable estoppel, which Georgia law also recognizes as an
exception to the general rule that only the parties who agree to be bound by a
contract’s terms can enforce them. See Helms v. Franklin Builders, Inc,
700
S.E.2d 609, 612 (Ga. Ct. App. 2010). Equitable estoppel allows a nonsignatory to
an arbitration agreement to compel or to be compelled by a signatory to arbitrate
under certain circumstances in which fairness requires doing so. See Order
Homes, LLC v. Iverson,
685 S.E.2d 304, 310 (Ga. Ct. App. 2009) (applying
equitable estoppel where the plaintiffs were bringing claims arising out of the
contract against nonsignatories, while attempting to avoid the contract’s
arbitration clause); see also In re
Humana, 285 F.3d at 976 (“In all cases, the
lynchpin for equitable estoppel is equity, and the point of applying it to compel
arbitration is to prevent a situation that would fly in the face of fairness.”
(quotation marks and citations omitted)). Georgia courts have applied equitable
estoppel in cases in which “the signatory to a written agreement . . . must rely on
the terms of the written agreement in asserting its claims against the
12
nonsignatory.” Autonation Fin. Servs. Corp. v. Arain,
592 S.E.2d 96, 100 (Ga. Ct.
App. 2003) (quotation marks and alteration omitted) (quoting MS
Dealer, 177
F.3d at 947).4
Life of the South argues that the equitable estoppel exception fits because
the Lawsons’ claims arising from their credit life insurance policy agreement with
it “make reference to” and “presume the existence of” the loan agreement
containing the arbitration clause. See
Arain, 592 S.E.2d at 100 (quoting MS
Dealer, 177 F.3d at 947). The Lawsons’ complaint does refer to the loan
agreement several times and the claims depend on the existence of that agreement
because without it, and the Lawson’s obligation under it to pay off the loan, there
would be no credit life insurance policy with Life of the South and no premium
refund due because the loan was paid off early. It follows, Life of the South
argues, that the Lawsons’ claims against it “arise out of” the loan agreement,
which they must rely on to assert those claims.
That is not a bad argument, but it is not a good enough one to prevail.
Under Georgia law, a plaintiff’s claims must directly, not just indirectly, be based
4
Georgia courts have also applied equitable estoppel to situations in which a signatory to
a contract asserts a claim against a nonsignatory that includes “allegations of substantially
interdependent and concerted misconduct by both the nonsignatory and one or more of the
signatories to the contract.”
Arain, 592 S.E.2d at 100 (quotation marks and alteration omitted)
(quoting MS
Dealer, 177 F.3d at 947). That is not the situation here.
13
on the contract containing the arbitration clause in order for equitable estoppel to
compel arbitration of those claims. See
Arain, 592 S.E.2d at 101 (holding that
equitable estoppel is justified because the plaintiff “asserts only one . . . claim, and
the allegations supporting that claim are tied directly to the [contract containing
the arbitration clause]”). What is required is illustrated in LaSonde v.
CitiFinancial Mortg. Co.,
614 S.E.2d 224 (Ga. Ct. App. 2005). In that case there
were two plaintiffs, Mary and Jack LaSonde, who were suing CitiFinancial over a
promissory note that Jack had signed but Mary had not. See
id. 113–14. The two
of them alleged that CitiFinancial had breached the terms of the promissory note
and a related security deed on their house.
Id. at 114. The promissory note
contained an arbitration clause that incorporated an arbitration agreement.
Id. at
113. Mary argued that she could not be compelled to arbitrate because she had not
signed the promissory note or the arbitration agreement that it incorporated.
Id. at
114. Her argument was rejected and she was required to arbitrate because she,
along with her husband, claimed: “that CitiFinancial’s foreclosure proceedings
breached the promissory note and security deed. They further claim[ed] that
Jack’s default under the promissory note, as well as the resulting foreclosure
authorized by the note and security deed, are void. All of these allegations [arose]
at least in part from the promissory note Jack signed.”
Id. at 115. Having staked
14
her claims on the promissory note, Mary was bound by the doctrine of equitable
estoppel to abide by the arbitration agreement that was part of that note. See
id.
By contrast, in this case the loan agreement is not the legal basis for the
Lawsons’ claims against Life of the South. Their complaint does refer to the loan
or indebtedness twelve times but only because it is factually significant. Its
factual significance, however, is simply that it establishes that the Lawsons had a
loan and that they paid it off early. The legal basis of their claims, on the other
hand, is the obligation that the credit life insurance policy, a separate agreement,
places on Life of the South to refund any unearned premium amount due to the
Lawsons because they repaid the loan early. So far as we can tell, there is no legal
dispute about whether the loan agreement permitted the Lawsons to repay their
loans early, nor is there any genuine factual dispute about whether they did so.
The dispute instead arises from Life of the South’s legal obligations under the
credit life insurance policy to refund the unearned premium amount. The claims
are that it did not discharge those legal obligations. And contrary to Life of the
South’s argument, the fact that the Lawsons’ complaint makes reference to and
presumes the existence of the loan agreement does not mean that the Lawson’s
loan agreement with the dealership, or their obligations under that agreement, are
the legal basis for their claims.
15
While there is language in the Arain opinion supporting Life of the South’s
“make reference to” argument, that language in the opinion, when read against the
facts and result in that case, is not the holding. The Georgia appellate court did
not hold in Arain that equitable estoppel applies whenever a claim makes
reference to and presumes the existence of an agreement that contains an
arbitration clause. Arain was a car buyer suing the dealership and a theft
protection service company for misrepresentations that the dealership had made in
connection with Arain’s purchase of a “Theft Protection Program,” which he had
financed through the dealership along with the purchase of his car.
Arain, 592
S.E.2d at 97. The complaint asserted a Georgia RICO claim against both the
dealership and the theft protection company for misrepresentations the dealership
had made about the theft protection program.
Id. Of critical importance, the
complaint sought to recover the finance charges on the amount of the loan Arain
had used to purchase the theft protection program, and Arain had paid those
finance charges directly to the dealership under the terms of his loan agreement
with it.
Id.
Both the dealership and the theft protection company moved to compel
arbitration.
Id. The loan agreement with the dealership contained an arbitration
clause, but the separate agreement Arain had signed with the theft protection
16
company did not.
Id. Apparently to avoid the arbitration clause, Arain voluntarily
dismissed the dealership as a defendant.
Id. Because his separate agreement with
the theft protection company, the only remaining defendant, did not contain an
arbitration clause, the trial court denied the company’s motion to compel
arbitration.
Id.
In reviewing the denial of the motion to compel arbitration, the Georgia
Court of Appeals concluded that “Arain’s claims are sufficiently related to the
[loan agreement with the dealership] to justify equitable estoppel.”
Id. at 101. It
based that conclusion on the fact that “the allegations supporting that claim are
tied directly to the [loan agreement with the dealership].”
Id. (emphasis added).
The court pointed out that Arain claimed that the amount he had paid for the theft
protection program was excessive and that the allegedly excessive amount was
financed as part of his loan agreement with the dealership.
Id. Not only that, but
“Arain [was] seeking to recover the finance charges he paid under [the loan
agreement with the dealership].”
Id. Only then, and only in that context, did the
court state that “Arain’s claim ‘makes reference to and presumes the existence of’
the [theft protection program] charge contained in the [loan agreement with the
dealership] and ‘depends entirely upon [his] contractual obligation to pay’ the
fee.”
Id. (emphasis added) (quoting MS
Dealer, 177 F.3d at 947–48). That
17
contractual obligation, of course, was contained in the same contract that
contained the arbitration clause: Arain’s loan agreement with the dealership.
In the present case, by contrast, the allegations supporting the Lawsons’
claims are not “tied directly” to the loan agreement, which is the contract
containing the arbitration clause. The claims for refund of the unearned premium
are not based on any misrepresentations made by the dealership or any other
conduct that occurred during the purchase of the vehicle or the execution of the
loan agreement by the dealership and the Lawsons. Nothing in the Lawsons’
complaint alleges that the credit insurance premiums financed as part of the car
purchase were excessive or otherwise unlawful. And perhaps most importantly,
the Lawsons, unlike Arain, do not seek to recover finance charges or interest they
paid under the loan agreement on their credit life premium. What they complain
about—that Life of the South improperly failed to refund the unearned premium
that was due under the credit insurance policy— happened only after the loan and
any interest on it had been paid in its entirety; the loan agreement was no longer in
the picture. While the Lawson’s claims do make reference to and presume the
existence of the loan agreement, there is nothing in their complaint to suggest that
their claims “depend[] entirely” on any of their obligations under the loan
18
agreement, as the claim in Arain did. Because of that, Arain does not support Life
of the South’s equitable estoppel argument.
There is, to be sure, a “but-for” relationship between the loan agreement,
which created the debt obligation, and the credit life insurance policy that gave
rise to the Lawsons’ claims against Life of the South. But that alone is not enough
to warrant equitable estoppel. If it were, every credit insurer could use an
arbitration clause in the underlying credit agreement to compel its insureds to
arbitrate disputes arising from their credit life insurance contracts, despite the
absence of an arbitration clause in those contracts, and even though state law
prohibited an insurer from including an arbitration clause in any of its insurance
contracts. See, e.g., Ga. Code Ann. § 9-9-2(c)(3); Kan. Stat. Ann. § 5-401; Mo.
Ann. Stat. § 435.350.
In sum, the Lawsons, in seeking relief from Life of the South, did not assert
any claims based on the terms of their loan agreement with the car dealership,
which contained an arbitration clause. Because the only claims they asserted were
based on the terms of their credit life insurance policy with Life of the South,
which did not contain an arbitration clause, equitable estoppel does not allow Life
of the South to compel the Lawsons to arbitrate.5
5
Although not applying Georgia law and not binding on this Court, the decisions of a
couple of other circuits that have addressed this issue are in accord with our conclusion that
19
AFFIRMED.
equitable estoppel does not apply where a credit life insurer is attempting to compel arbitration of
a dispute over the terms of the insurance policy under an arbitration clause contained in the
underlying credit agreement. See Mundi v. Union Sec. Life Ins. Co.,
555 F.3d 1042, 1047 (9th
Cir. 2009) (holding equitable estoppel did not apply because the claim was neither “intertwined
with” the credit agreement that provided for arbitration, nor did it “arise out of or relate directly
to” the credit agreement (quotation marks and alterations omitted)); Brantley v. Republic Mortg.
Ins. Co.,
424 F.3d 392, 396 (4th Cir. 2005) (holding equitable estoppel did not apply because
“the mere existence of a loan transaction requiring plaintiffs to obtain [credit] insurance cannot
be the basis for finding their . . . claims, which are wholly unrelated to the underlying [credit]
agreement, to be intertwined with that contract,” and “the plaintiffs never attempted to rely on the
[credit] contract to establish their claims” (quotation marks and alteration omitted)).
20
PRYOR, Circuit Judge, concurring:
I concur in the result, but for a different reason. I agree with the majority
that in Arthur Andersen LLP v. Carlisle, 556 U.S. --,
129 S. Ct. 1896 (2009), the
Supreme Court clarified that state law, not federal law, governs whether a
nonparty can enforce an arbitration clause against a party, but I doubt the
conclusion of the majority that, under Georgia law, equitable estoppel does not
apply. I would resolve this appeal on the same ground as the district court: that
the Georgia Arbitration Act bars enforcement of the arbitration clause in this
dispute about insurance.
The majority opinion concludes that “a plaintiff’s claims must directly, not
just indirectly, be based on the contract containing the arbitration clause in order
for equitable estoppel to compel arbitration of those claims,” Maj. Op. at 14, but I
am less confident that the Georgia courts apply that rule, regardless of its logical
appeal. Georgia courts have applied several times a rule articulated by this Court
in MS Dealer Service Corp. v. Franklin: “When each of a signatory’s claims
against a nonsignatory ‘makes reference to’ or ‘presumes the existence of’ the
written agreement, the signatory’s claims ‘arise[] out of and relate[] directly to the
[written] agreement,’ and arbitration is appropriate.”
177 F.3d 942, 947 (11th Cir.
1999) (alterations in original) (quoting Sunkist Soft Drinks, Inc. v. Sunkist
21
Growers, Inc.,
10 F.3d 753, 758 (11th Cir. 1993)). See Order Homes, LLC v.
Iverson,
685 S.E.2d 304, 310 (Ga. Ct. App. 2009); Price v. Ernst & Young, LLP,
617 S.E.2d 156, 159–60 (Ga. Ct. App. 2005); LaSonde v. CitiFinancial Mortg.
Co.,
614 S.E.2d 224, 226 (Ga. Ct. App. 2005); Lankford v. Orkin Exterminating
Co.,
597 S.E.2d 470, 474 (Ga. Ct. App. 2004); Autonation Fin. Servs. Corp. v.
Arain,
592 S.E.2d 96, 99–101 (Ga. Ct. App. 2003). Life of the South bases its
argument on this rule.
The Court of Appeals of Georgia applied equitable estoppel in
Arain, 592
S.E.2d at 99–101, and held that a seller of a theft protection program could compel
arbitration even though it was not a signatory to the contract containing the
arbitration provision. The plaintiff in Arain bought a car and financed both the car
and the theft protection program through an installment sales contract containing
an arbitration provision.
Id. at 97. The court looked to factors also present in this
appeal: “The complaint asserts that [Arain’s] purchase of the [theft protection
program] occurred ‘[i]n the course of’ [the] sale of the car to him,”
id. at 101 (third
alteration in original), and “[t]hat charge was financed through the installment
contract, which, in effect, facilitated the [theft protection program] purchase by
allowing Arain to pay in installments. And Arain is seeking to recover the finance
charges he paid under that contract,”
id. The court explained that “Arain’s claims
22
are sufficiently related to the arbitration contract in this case to justify equitable
estoppel,”
id., because the claims “‘make[] reference to and presume[] the
existence of’ the [theft protection program] charge contained in the installment
contract,”
id. (quoting MS Dealer, 177 F.3d at 947–48); see also
Price, 617 S.E.2d
at 160.
Arain suggests that Georgia courts might conclude that the Lawsons are
equitably estopped from asserting the nonsignatory status of Life of the South to
avoid arbitration. The Lawsons’ complaint “makes reference to” and “presumes
the existence of” the loan agreement. As the majority opinion correctly observes,
the Lawsons’ complaint refers to the loan agreement several times and their claims
depend on the existence of that agreement. The Lawsons allege that their damages
include the “unearned premium that was not refunded,” and that premium was
financed under the loan agreement. Besides the references to the loan agreement
in the complaint, several other facts establish a connection between the two
agreements: the loan agreement contains a section entitled “Optional Credit
Insurance,” which the Lawsons signed to purchase a credit life insurance policy
“under this Contract”; the loan agreement lists the amount of the premium paid by
the Lawsons to purchase the insurance; the loan financed the payment of the
premium; and the arbitration provision of the loan agreement states that it covers
23
“any controversy or claim . . . arising from or relating to this Contract,” including
claims related to “any aspect of the sale of the vehicle involving any Buyer, Co-
Buyer, Seller, or . . . insurer of any of these persons.”
It is true, as the majority explains, that Arain sought to recover finance
charges paid under his loan agreement, but the Lawsons’ complaint might be read
that way too. In their requests for tort remedies, the Lawsons complain that they
“have suffered special damages in the amount of the unearned premium that was
not refunded, plus the interest on those sums.” It is not clear from the face of their
complaint whether the phrase “the interest on those sums” refers to the interest
charged under the loan agreement or some form of prejudgment interest under
Georgia law.
It is also true, as the majority explains, that the alleged liability of Life of
the South arose after the Lawsons had paid the amounts owed under the loan
agreement, but Arain likewise sued the nonsignatory after Arain had paid the
charges for the theft protection program that he alleged were excessive. Arain did
not allege a breach of the loan agreement, and his complaint for damages against
the nonsignatory accrued after he had made the payments required by that
agreement.
24
Even if the majority is correct that the relationship between the complaint
and the contract containing the arbitration clause was more direct in Arain than the
relationship between the Lawsons’ complaint and the loan agreement, that fact
does not establish that Georgia courts would refuse to apply equitable estoppel in
this appeal. The majority has not cited a Georgia precedent that held that the
relationship between a complaint and an arbitration agreement was too indirect to
allow a nonsignatory to enforce the arbitration agreement. The majority dismisses
the language in Arain that supports the argument of Life of the South as dicta, but
without a decision from a Georgia court that is directly on point, the dicta of Arain
tells us more about how a Georgia court would decide this appeal than our
supposition.
The majority concedes that the Lawsons’ complaint makes reference to and
presumes the existence of the loan agreement, Maj. Op. at 13, but the majority
concludes that the Lawsons’ complaint is nevertheless not tied directly to that
agreement. The problem with that conclusion is that the decisions of the Georgia
courts state that, when a complaint makes reference to and presumes the existence
of an agreement with an arbitration clause, then the complaint is related to the
agreement. The Georgia precedents do not describe “directly related” issue as a
separate element of equitable estoppel. The Georgia precedents instead describe
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the test of direct relation as being satisfied by the formulation from MS Dealer
about referring to and presuming the existence of the arbitration agreement: that is,
the complaint “arise[s] out of and relate[s] directly to the [written] agreement,”
when the complaint “make[s] reference to or presume[s] the existence of the
written agreement,” with the arbitration
clause, 177 F.3d at 947 (third alteration in
original). See
Iverson, 685 S.E.2d at 310;
Price, 617 S.E.2d at 160;
LaSonde, 614
S.E.2d at 226;
Arain, 592 S.E.2d at 99-101.
Regardless of whether Georgia courts would apply equitable estoppel in this
circumstance, Life of the South cannot compel arbitration for a different reason.
Although the Federal Arbitration Act provides that agreements to arbitrate are
ordinarily enforceable, 9 U.S.C. § 1 et seq., the Georgia Arbitration Act excepts
from enforcement agreements to arbitrate disputes involving “contract[s] of
insurance,” Ga. Code Ann. § 9-9-2(c)(3). Because that state law “relates to the
business of insurance,” the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), makes it
enforceable. In a decision where we addressed the intersection of these three
statutes, we ruled that “the McCarran-Ferguson Act excepts § 9-9-2(c)(3) from
preemption by the Federal Arbitration Act.” McKnight v. Chi. Title Ins. Co.,
358
F.3d 854, 859 (11th Cir. 2004). Since McKnight, the Supreme Court of Georgia
also has ruled that “the [McCarran-Ferguson Act] precludes the [Federal
26
Arbitration Act] from requiring the arbitration of disputes involving insurance” in
Georgia. Love v. Money Tree, Inc.,
614 S.E.2d 47, 50 (Ga. 2005).
Life of the South contends that the Georgia Arbitration Act applies only to
arbitration provisions that appear in contracts for insurance, but the Georgia
Supreme Court has not applied the Georgia Arbitration Act that narrowly. The
arbitration agreement in Love appeared in a loan agreement and not in a separate
“Voluntary Insurance Election Form,”
id. at 48, but the Georgia Supreme Court
ruled that the Georgia Arbitration Act applied. The court explained that the
Georgia Arbitration Act “provides that agreements to arbitrate disputes regarding
‘contracts of insurance’ are invalid in Georgia,”
id. at 49, and the Act applies to
“arbitration of disputes involving insurance,”
id. at 50. Like Love, this dispute too
involves insurance, and Georgia courts would apply the Georgia Arbitration Act
even though the arbitration provision does not appear in the contract of insurance.
Life of the South also argues that the arbitration agreement has a choice-of-
law provision that states that the Federal Arbitration Act will govern arbitration of
any disputes, but no court has ever held that a choice-of-law provision can
override a state law barring arbitration that is enforceable under the McCarran-
Ferguson Act. The choice of law in an unenforceable agreement to arbitrate is
irrelevant. Life of the South cannot have its cake in the form of the arbitration
27
agreement and eat it too by avoiding application of the McCarran-Ferguson Act. I
agree with the district court that Georgia law prohibits arbitration of this dispute
involving insurance.
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