COUNTYLINE AUTO CENTER, INC. v. OLGA KULINSKY , 257 So. 3d 1086 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
COUNTYLINE AUTO CENTER, INC., doing business as Lexus of
Pembroke Pines
Appellant,
v.
OLGA KULINSKY, STANISLAV KULINSKY, ELITE GUARD INC. and
THE FINAL NOTICE AGENCY INC.,
Appellees.
No. 4D17-2847
[November 21, 2018]
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case No.
17-003105 (02).
Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort
Lauderdale, and Glen R. Goldsmith of Glen R. Goldsmith, P.A., Miami, for
appellant.
Yelena Shneyderman, of Yelena Shneyderman, P.A., Hollywood, for
appellees Olga Kulinsky and Stanislav Kulinsky.
PER CURIAM.
Countyline Auto Center, Inc., (“Countyline”) appeals the trial court’s
partial denial of its motion to compel arbitration in the underlying action
following its sale of a vehicle to the appellees, Olga and Stanislav Kulinsky
(“the Kulinskys”). The trial court ruled that the defamation count included
in the Kulinskys’ lawsuit against Countyline was an independent tort and
did not fall within the scope of the parties’ arbitration agreement. We
disagree, and reverse because the arbitration clause under review
expressly includes tort actions—which encompasses the Kulinskys’ cause
of action for defamation.
The Kulinskys sued Countyline and others following their purchase of
a used Bentley and its subsequent repossession that was the product of a
mistake. The Kulinskys’ amended complaint alleged three counts against
Countyline, one of which was a defamation claim based on the conduct of
a Countyline salesman. In particular, the Kulinskys noted that the
salesman resided in the same condominium complex as they did, along
with many of their business customers. They stated that the
condominium community was close-knit, whereby all residents were
intimately familiar with each other’s personal and business affairs. The
Kulinskys claimed that after the repossession, Countyline’s salesperson
“had conversations with members of the condominium community, in
which he falsely stated that [the Kulinskys’] Bentley was repossessed
because [they] were suffering financial difficulty.” The Kulinskys also
asserted that Countyline was vicariously liable for the damages caused by
those defamatory statements.
Countyline moved to compel arbitration on all counts based on an
arbitration clause within the Bentley’s Retail Installment Sales Contract.
The clause provided, in relevant part:
Any claim or dispute, whether in contract, tort, statute or
otherwise (including the interpretation and scope of this
Arbitration Provision, and the arbitrability of the claim or
dispute), between you and us or our employees, agents,
successors or assigns, which arises out of or relates to your
credit application, purchase or condition of this vehicle, this
contract or any resulting transaction or relationship
(including any such relationship with third parties who do not
sign this contract) shall, at your or our election, be resolved
by neutral, binding arbitration and not by a court action.
(Emphasis added). The trial court ruled that the defamation count was
independent and outside the scope of that clause.
“‘[T]he standard of review applicable to the trial court’s construction of
an arbitration provision, and to its application of the law to the facts found,
is de novo.’” BDO Seidman, LLP v. Bee, 970 So. 2d 869, 874 (Fla. 4th DCA
2007) (quoting Fonte v. AT & T Wireless Servs., Inc., 903 So. 2d 1019, 1023
(Fla. 4th DCA 2005)); accord Allied Prof’ls Ins. Co. v. Fitzpatrick, 169 So. 3d
138, 141 (Fla. 4th DCA 2015).
“‘Generally, the three fundamental elements that must be considered
when determining whether a dispute is required to proceed to arbitration
are: (1) whether a valid written agreement to arbitrate exists; (2) whether
an arbitrable issue exists; and (3) whether the right to arbitration was
waived.’” Sunsplash Events Inc. v. Robles, 150 So. 3d 1194, 1197 (Fla. 4th
DCA 2014) (quoting Jackson v. Shakespeare Found., Inc., 108 So. 3d 587,
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593 (Fla. 2013)). We write to address only the second element, because it
is the only element that the parties expressly dispute. Consequently, we
hold—for the following three reasons—that the Kulinskys’ defamation
claim falls within the scope of the Sales Contract’s arbitration provision.
First, the arbitration language expressly contemplates tort actions. See
BKD Twenty-One Mgmt. Co., Inc. v. Delsordo, 127 So. 3d 527, 531-32 (Fla.
4th DCA 2012) (holding that premises liability claims brought by a resident
who fell in a retirement community’s common area had to be arbitrated
because the lease’s arbitration clause expressly covered “negligence”
claims “arising out of or related to this Agreement, the Establishment or
the services/care provided to the Resident”); Xerox Corp. v. Smartech
Document Mgmt. Inc., 979 So. 2d 957, 959–60 (Fla. 3d DCA 2007) (noting
that multiple claims, including defamation, were covered by an arbitration
clause that encompassed “any and all claims . . . arising out of or in any
way relat[ed] to th[e] agreement . . . between the parties, regardless of
whether the claim [was] based upon tortious conduct . . . or any other
theory at law or in equity . . . .” (Alterations added)).
Second, the arbitration language is broad because of the “relates to”
language. See Jackson, 108 So. 3d at 593. Per its terms, the parties
intended to arbitrate “[a]ny claim or dispute, whether in contract, tort,
statute or otherwise . . . between you and us or our employees, agents,
successors or assigns, which arises out of or relates to your credit
application.” “The addition of the words ‘relating to’ broadens the scope of
an arbitration provision to include those claims that are described as
having a ‘significant relationship’ to the contract—regardless of whether
the claim is founded in tort or contract law.” Id. at 593.
We agree with Countyline that there is a significant relationship
between the claim and the agreement. The Kulinskys alleged that the
defamation claim is based on defamatory statements allegedly made by
Countyline’s salesman within the scope of his employment. Those
statements related to the Kulinskys’ purchase of the vehicle and their
ability to afford it, which in turn relates to the credit application and
contract that controlled the purchase. See e.g., Roth v. Cohen, 941 So. 2d
496, 500 (Fla. 3d DCA 2006) (finding a sufficient nexus between
defamation claims and a design contract, thereby bringing the claims into
the purview of the contract’s arbitration clause).
We distinguish King Motor Co. of Fort Lauderdale v. Jones, 901 So. 2d
1017, 1020 (Fla. 4th DCA 2005), where this Court affirmed the trial court’s
denial of a motion to compel arbitration of tort claims following the
plaintiff’s purchase of a car at a dealership. There, the plaintiff sued the
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dealership and alleged that the salesman used the information contained
on her credit application to steal her identity, make fraudulent purchases,
and fraudulently withdraw from her bank account. Id. at 1017. The
dealer’s arbitration clause did not refer to tort claims, as in this case, nor
did the claim have the required contractual nexus. Id. at 1018-19; see
BKD Twenty–One, 127 So. 3d at 531-32.
Third, to the extent any ambiguity may exist in the scope of the
purchase agreement’s arbitration provision, we resolve that ambiguity in
favor of arbitration. See Jackson, 108 So. 3d at 593.
Based on the foregoing, we reverse for entry of an order compelling
arbitration of the Kulinskys’ defamation claim.
Reversed and remanded.
GERBER, C.J., GROSS and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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