Union County School District No. 1 v. Valley Inland Pacific Constructors, Inc.

652 P.2d 349, 59 Or. App. 602, 1982 Ore. App. LEXIS 3397
CourtCourt of Appeals of Oregon
DecidedOctober 13, 1982
Docket25274; CA 16611
StatusPublished
Cited by10 cases

This text of 652 P.2d 349 (Union County School District No. 1 v. Valley Inland Pacific Constructors, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union County School District No. 1 v. Valley Inland Pacific Constructors, Inc., 652 P.2d 349, 59 Or. App. 602, 1982 Ore. App. LEXIS 3397 (Or. Ct. App. 1982).

Opinions

[604]*604BUTTLER, J.

In this declaratory judgment proceeding, plaintiff seeks a declaration that it is not required to comply with defendant’s demand to arbitrate certain disputes under their contract, and an injunction prohibiting defendant from pursuing its demand for arbitration. Defendant appeals from a decree granting plaintiff the relief it sought.

Plaintiff and defendant entered into a contract on October 17, 1974, whereby defendant agreed to construct a school building in La Grande. The contract provided that all claims and disputes arising out of the contract, with certain limitations, were to be decided by arbitration in accordance with the rules of the American Arbitration Association. On September 18, 1975, during construction of the school, part of the structure collapsed, causing death to one worker, injury to four others, and a delay in the project. Actions were brought against defendant and its subcontractors for the death and personal injuries; those claims were settled between October, 1977, and May, 1978. No claims were made against plaintiff, and it was not a party to any of the settlements.

Thereafter, defendant completed construction of the building, and it was accepted by plaintiff in August, 1976. All monies due defendant from plaintiff were paid at or about that time, except for a retainage of $4,601.64, which was not paid until after defendant demanded arbitration in November, 1978.

In seeking arbitration, defendant claimed that plaintiff breached the contract by the failure of plaintiffs architect to inspect the work properly and interpret correctly the requirements of the contract, which failures caused the collapse. It sought damages of $1,403,508.64 for delay and repair costs and indemnification for the death and personal injury settlements.

In January, 1979, plaintiff filed this action for declaratory and injunctive relief. A preliminary injunction was granted enjoining defendant from proceeding with its demand for arbitration, and, after various preliminary matters, the case was tried to the court on November 14, 1979. [605]*605The court granted plaintiff the relief it requested, including a permanent injunction, ruling that this dispute was not referable to arbitration for the following reasons: (1) the demand for arbitration was not made prior to “final payment” as required by the contract; (2) it was not the parties’ intention at the time they entered the contract to arbitrate disputes of this type; (3) the demand was not timely made and is therefore barred by the statute of limitations, laches, and a contract provision requiring that an arbitration demand be made within a “reasonable time,” and (4) defendant’s claim is “frivolous and patently baseless,” because the contract required defendant to indemnify plaintiff for the type of claims which defendant is here asserting.

Although defendant assigns 14 errors, we need only consider whether the court was correct in determining that arbitration was barred for any of the above four reasons. The underlying issue with respect to all of them is whether they should have been decided by the court or should be decided by the arbitrators. Defendant contends that, although this suit is one for declaratory relief, ORS 28.010 et seq, the court’s inquiry is limited to those defenses to an order directing arbitration which it could have considered had the party seeking arbitration filed a petition to compel arbitration pursuant to ORS 33.230.1 That statute, which was designed to insure expeditious enforcement of a demand for arbitration pursuant to contract, by its [606]*606terms permits a party resisting arbitration to raise only two issues: (1) that it is not in default, and (2) the contract or submission was not properly made.

We agree with defendant that a party who resists arbitration by seeking a judicial declaration that the dispute is not arbitrable may not expand the scope of the court’s inquiry beyond that permitted by ORS 33.230. Under that statute the court determines only whether there is a contract (or submission) providing for arbitration and whether there is a default; it is contemplated that defenses to the claim, including its arbitrability, be decided by the arbitrator. Given that statutory scheme, a resisting party should not be allowed to circumvent it by taking the initiative to enjoin arbitration. The narrow statutory inquiry effectuates the parties’ presumed desire for a fast, informal, and inexpensive means of resolving their disputes. See Peter Kiewit v. Port of Portland, 291 Or 49, 65, 628 P2d 720 (1981) (Denecke, C. J., concurring).

Although it is not clear what defenses may be considered in a proceeding under ORS 33.230, the statute permits either party to demand a jury to determine whether there was a contract providing for arbitration and whether there is a default, which suggests that only factual questions with respect to those defenses be determined.2 However, there are, undoubtedly, cases where the agreement to arbitrate is specifically limited to certain kinds of disputes and a court could conclude as a matter of law that there was no default in the agreement by the party refusing to arbitrate.3 Generally, however, it is this state’s policy to construe arbitration agreements liberally to enhance [607]*607arbitrability of disputes, Budget Rent-A-Car v. Todd Investment Co., 43 Or App 519, 524, 603 P2d 1199 (1979), and, at least under collective bargaining agreements, to refer the matter to arbitration unless the claim alleged is one which, on its face, is clearly and unambiguously excluded from arbitration. Corvallis Sch. Dist. v. Corvallis Education Assn., 35 Or App 531, 535, 581 P2d 972 (1978).4

The narrow inquiry in the judicial proceeding is consistent with the parties’ expressed intent to arbitrate disputes, especially when defenses to arbitration intertwine with the merits of the dispute, requiring the parties to present the same evidence twice in the event the court rules in favor of arbitrability. Wiley & Sons v. Livingston, 376 US 543, 558, 84 S Ct 909, 11 L Ed 2d 898 (1964). In Peter Kiewit v. Port of Portland, supra, the court treated the arbitration statutes (ORS 33.210 et seq) as a whole, whether the question of arbitrability is raised under ORS 33.240 for abatement of a pending lawsuit to abide arbitration or whether it is raised in the independent proceeding provided by ORS 33.230. In Transco Northwest v. Allied Equit., 275 Or 675, 678, 552 P2d 824 (1976), n 2, supra, the question arose under ORS 33.240 for abatement, and we think that it is consistent with Transco

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652 P.2d 349, 59 Or. App. 602, 1982 Ore. App. LEXIS 3397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-county-school-district-no-1-v-valley-inland-pacific-constructors-orctapp-1982.