Davidson v. A. G. Edwards & Sons, Inc.

748 S.E.2d 300, 324 Ga. App. 172, 36 I.E.R. Cas. (BNA) 1293, 2013 Fulton County D. Rep. 2984, 2013 WL 5273105, 2013 Ga. App. LEXIS 769
CourtCourt of Appeals of Georgia
DecidedSeptember 19, 2013
DocketA13A1115
StatusPublished
Cited by6 cases

This text of 748 S.E.2d 300 (Davidson v. A. G. Edwards & Sons, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davidson v. A. G. Edwards & Sons, Inc., 748 S.E.2d 300, 324 Ga. App. 172, 36 I.E.R. Cas. (BNA) 1293, 2013 Fulton County D. Rep. 2984, 2013 WL 5273105, 2013 Ga. App. LEXIS 769 (Ga. Ct. App. 2013).

Opinion

ANDREWS, Presiding Judge.

Jon V. Davidson, Jr., appeals from the trial court’s order compelling him to arbitrate his defamation claim against his former employer, A. G. Edwards & Sons, Inc., and others1 (“A. G. Edwards”). He contends that his post-termination of employment claim does not fall within the scope of the arbitration clause at issue under the Georgia Arbitration Code, arguing that he did not separately initial it as required by OCGA § 9-9-2 (c) (9), and that his claim, as a personal injury claim, is exempt from arbitration under OCGA § 9-9-2 (c) (10). Davidson also claims that the trial court erred in enforcing the arbitration clause, arguing (i) that, by its own terms, the arbitration clause does not extend to future tort claims, and (ii) that such claims are not subject to arbitration under the Federal Arbitration Act (“FAA”) as not involving interstate commerce. Finally, Davidson challenges the trial court’s refusal to reopen discovery. Discerning no error, we affirm.

The record showsthatDavidsonbeganworkingforA. G. Edwards as a broker/dealer in 1994, serving customers in at least 16 states. He signed a written employment contract that contained the following arbitration clause:

You agree that any controversy or dispute arising between you and [A. G.] Edwards in respect to this agreement or your employment by [A. G.] Edwards shall be submitted for arbitration before the New York Stock Exchange, Inc., or the National Association of Securities Dealers, Inc.

Davidson voluntarily retired from the firm on April 5, 2007. Shortly after his departure, A. G. Edwards sent letters to Davidson’s former customers encouraging them to remain with A. G. Edwards rather than to follow Davidson in his new venture to avoid a potentially less favorable fee structure.2 The letter read, in part, “[a]lthoughyouhave [173]*173developed a relationship with Jon V. Davidson, please ask yourself if it is in YOUR best interest to transfer your account.” (Emphasis in original.) Given the foregoing, Davidson filed the underlying complaint seeking damages for the intentional tort of defamation on July 13, 2007. A. G. Edwards timely answered and thereafter moved to compel arbitration and to stay proceedings, which motion the trial court granted. We granted Davidson’s application for interlocutory appeal, and the instant appeal followed.

We review de novo a trial court’s order granting or denying a motion to compel arbitration because “the construction of an arbitration agreement, like any other contract, presents a question of law.” (Citations omitted.) Cash In Advance of Florida, Inc. v. Jolley, 272 Ga. App. 282 (612 SE2d 101) (2005).

1. The trial court’s order requiring arbitration, was not error.

(a) Preemption. By his first and second enumerations of error, Davidson asserts that the trial court’s order granting A. G. Edwards’ motion was error because he had not separately initialed the arbitration clause at issue as required by OCGA § 9-9-2 (c) (9) and, in any event, his complaint, as averring a claim for personal injury, was exempt from arbitration under OCGA § 9-9-2 (c) (10). We disagree.

This Court has held that the FAA, 9 USC § 1 et seq., preempts state law and policy with respect to the signature requirement of OCGA § 9-9-2 (c) (9). Langfitt v. Jackson, 284 Ga. App. 628, 635 (3) (644 SE2d 460) (2007), citing Primerica Financial Svcs. v. Wise, 217 Ga.App. 36, 41 (6) (456 SE2d 631) (1995). Although this Court has not previously addressed whether the FAA preempts OCGA § 9-9-2 (c) (10), insofar as it exempts from arbitration “personal bodily injury”3 claims, we find no reason why there should not be preemption in this regard as well. The FAA preempts any state law that conflicts with its provisions or undermines the enforcement of private arbitration agreements. Results Oriented v. Crawford, 245 Ga. App. 432, 436 (1) (a) (538 SE2d 73) (2000); see also Volt Information Sciences v. Bd. of Trustees, 489 U. S. 468, 477 (109 SCt 1248, 103 LE2d 488) (1989) (“[T]o the extent that [state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” it will be preempted by the FAA.) (citation and punctuation [174]*174omitted); see also Primerica, supra, 217 Ga. App. at 41 (6) (liberal federal principle of favoring enforceability of arbitration agreements not subject to “state substantive or procedural policies to the contrary”) (citation omitted).

(b) Enforceability.

(i) Post-employment (future) tort claim. Davidson claims that the arbitration clause at issue is unenforceable under the FAA because the terms of such clause do not extend to claims arising after the termination of employment; and the defamation claim he alleges, an intentional tort, does not involve interstate commerce under the FAA.4 The question of whether the post-termination claim which underlies this appeal is subject to arbitration is one of first impression. We are persuaded that the governing federal law on this question should control. In Brown v. Coleman Co., 220 F3d 1180, 1184 (III) (10th Cir. 2000), the court held that the controlling question should be whether the alleged tort of defamation “touch [ed] the underlying contract.” Id. Or, stated otherwise, did it involve significant aspects of the employment relationship. Morgan v. Smith Barney, Harris Upham & Co., 729 F2d 1163, 1167 (8th Cir. 1984).

In Brown, the arbitration clause read that “ ‘all disputes or controversies arising under or in connection with this Agreement will be settled exclusively by arbitration.’ ” (Punctuation omitted.) Brown, supra, 220 F3d at 1184 (III). The arbitration clause in Davidson’s employment contract is virtually identical to that in Brown as extending to “any controversy or dispute arising between [Davidson] and [A. G.] Edwards in respect to this agreement or your employment by [A. G.] Edwards. . . .” Moreover, Brown is but a part of a growing trend in the United States Circuit Courts of Appeals. See, e.g., Morgan, supra, 729 F2d at 1167 (claims filed almost two years after termination of employment alleging that Smith-Barney communicated complaints of former customers to NSYE enforcement agencies and deliberately misinformed customers that Morgan’s brokerage license had been suspended and ordered to arbitration); Aspero v. Shearson American Express, 768 F2d 106, 109 (6th Cir.

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748 S.E.2d 300, 324 Ga. App. 172, 36 I.E.R. Cas. (BNA) 1293, 2013 Fulton County D. Rep. 2984, 2013 WL 5273105, 2013 Ga. App. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-a-g-edwards-sons-inc-gactapp-2013.