Aiken v. World Finance Corp. of SC
Aiken v. World Finance Corp. of SC
Concurring Opinion
I agree with the majority that the first issue is not preserved, and I concur in the decision holding that Aiken’s tort claims are without the parties’ arbitration agreement. I write separately, however, as I do not agree with the majority’s decision to the extent it finds that identity theft is not foreseeable. See Huggins v. Citibank, N.A., 355 S.C. 329, 585 S.E.2d 275 (2003) (“[The Court] is greatly concerned with the ramp
Opinion of the Court
Respondent Richard Aiken (“Aiken”) filed a law suit against Appellants World Finance Corporation of South Carolina and World Acceptance Corporation (collectively, “World Finance”) alleging various torts arising from the misuse of Aiken’s personal financial information by employees of World Finance. The circuit court denied World Finance’s motion to compel arbitration on the grounds that Aiken’s claims were not within the scope of the arbitration clause. The court of appeals affirmed and this Court granted certiorari. We affirm as modified.
Factual/Procedural Background
World Finance is a nationwide consumer finance company with branch offices in South Carolina. Aiken obtained a series of consumer loans from World Finance beginning in 1997 and continuing through late 1999. Aiken paid off his last loan from World Finance in 2000.
In order to apply for a loan, Aiken was required to supply non-public, personal information to World Finance, including
... ALL DISPUTES, CONTROVERSIES OR CLAIMS OF ANY KIND AND NATURE BETWEEN LENDER AND BORROWER ARISING OUT OF OR IN CONNECTION WITH THE LOAN AGREEMENT, OR ARISING OUT OF ANY TRANSACTION OR RELATIONSHIP BETWEEN LENDER AND BORROWER OR ARISING OUT OF ANY PRIOR OR FUTURE DEALINGS BETWEEN LENDER AND BORROWER, SHALL BE SUBMITTED TO ARBITRATION AND SETTLED BY ARBITRATION IN ACCORDANCE WITH THE UNTIED STATES ARBITRATION ACT, THE EXPEDITED PROCEDURES OF THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE “ARBITRATION RULES OF THE AAA”), AND THIS AGREEMENT.
Beginning in late 2002, several World Finance employees conspired to use the personal information provided by Aiken and other clients to obtain sham loans and embezzle the proceeds for the employees’ personal benefit.
The trial court found that the effectiveness of the arbitration agreement ceased when the relationship of the parties ended. Because Aiken paid off his last loan with World Finance prior to the tortious acts of the employees, the court concluded that Aiken’s tort claims were completely independent of the loan agreements and not subject to the arbitration agreements. Therefore, the court denied World Finance’s motions to compel arbitration.
I. Did the court of appeals err in deciding whether Aiken’s underlying claims were subject to arbitration without first submitting the issue to an arbitrator?
II. Did the court of appeals err in finding that Aiken’s claims were not significantly related to the underlying loan agreement and therefore not within the scope of arbitration?
Standard of Review
The determination of whether a claim is subject to arbitration is subject to de novo review. Wellman, Inc. v. Square D Co., 366 S.C. 61, 67, 620 S.E.2d 86, 89 (Ct.App. 2005). Nevertheless, a circuit court’s factual findings will not be reversed on appeal if any evidence reasonably supports the findings. Thornton v. Trident Med. Ctr., L.L.C., 357 S.C. 91, 94, 592 S.E.2d 50, 51 (Ct.App. 2003).
Law/Analysis
I. The appropriate forum for determining the scope of the arbitration clause.
World Finance argues that under the terms of the arbitration agreement, arbitration is the proper forum for determining the scope of the arbitration agreement. Therefore, World Finance claims that the court of appeals erred in determining whether the arbitration agreement covered Aiken’s claims without first submitting the issue to an arbitrator. We find that this issue is not properly preserved for review.
In order to be preserved for appellate review, an issue must have been raised to and ruled upon by the trial court. Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 510 (2006). World Finance made no argument regarding the proper forum for determining the arbitrability of the underlying claims in either its motion to compel arbitration or in the hearing before the circuit court. Instead, World Finance’s argument focused solely on the merits of the motion (i.e.,
We agree with the court of appeals that the issue of the proper forum for determining the scope of the arbitration agreement is not properly preserved for review. Accordingly, the court of appeals did not err in deciding the question of whether Aiken’s underlying claims were within the scope of the arbitration agreement.
II. Significant relationship between the underlying claims and the contract containing the arbitration agreement.
World Finance argues that the court of appeals erred in finding that Aiken’s claims were not within the scope of the parties’ arbitration agreement. We disagree.
Both state and federal policy favor arbitration of disputes and unless a court can say with positive assurance that the arbitration clause is not susceptible to any interpretation that covers the dispute, arbitration- should generally be ordered. Zabinski v. Bright Acres Assocs., 346 S.C. 580, 596-97, 553 S.E.2d 110, 118-19 (2001). However, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit. Id. at 596, 553 S.E.2d at 118. Given these principles, courts generally hold that broadly-worded arbitration agreements
World Finance primarily argues that because Aiken’s contracts with World Finance gave the conspirators access to Aiken’s information in order to carry out their crimes, there is a significant relationship between Aiken’s claims and the
The court of appeals also rejected this overly simplified approach. Relying heavily on the fact that Aiken had paid his loans in full when the employees’ tortious acts occurred, the court of appeals found that there was no significant relationship between Aiken’s tort claims and his loan agreements with World Finance. See Aiken, 367 S.C. at 182-83, 623 S.E.2d at 876. Therefore, the court held that Aiken’s claims were not within the scope of the arbitration agreement found in the underlying contract.
In this case, we find the theft of Aiken’s personal information by World Finance employees to be outrageous conduct that Aiken could not possibly have foreseen when he agreed to do business with World Finance. Consequently, in signing the agreement to arbitrate, Aiken could not possibly have been agreeing to provide an alternative forum for settling claims arising from this wholly unexpected tortious conduct.
Our decision today does not ignore the state and federal policies favoring arbitration as a less formal and more efficient means for resolving disputes. See Lackey v. Green Tree Fin. Corp., 330 S.C. 388, 396, 498 S.E.2d 898, 902 (Ct.App. 1998). This Court merely seeks, as a matter of public policy, to promote the procurement of arbitration in a commercially reasonable manner. To interpret an arbitration agreement to apply to actions completely outside the expectations of the parties would be inconsistent with this goal.
Conclusion
For the foregoing reasons, we affirm as modified the decision of the court of appeals denying World Finance’s motion to compel arbitration.
. The now-former employees pleaded guilty for these offenses and were sentenced in the United States District Court for the District of South Carolina.
. Courts typically characterize arbitration agreements purporting to govern disputes "arising out of or related to” the underlying contract between the parties as "broad” arbitration clauses encompassing a wide range of issues. See J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir. 1988).
. While relying mainly on the "significant relationship” test to determine whether a claim is arbitrable, the court of appeals also seemed to endorse an additional test used specifically for determining whether a tort claim is arbitrable. The court cited to Zabinski for the proposition that tort claims were within the scope of arbitration when "the particular tort claim is so interwoven with the contract that it could not stand alone.” Aiken, 367 S.C. at 181, 623 S.E.2d at 875 (citing 346 S.C. at 597 n. 4, 553 S.E.2d at 119 n. 4). We note that the Zabinski articulation of this test is found in a footnote containing references to tests used by "other jurisdictions” and therefore has not been adopted by this Court as a separate test applicable specifically to tort claims in this context.
. Because the parties do not raise the issue of whether any arbitration agreement purporting to apply to such outrageous and unforeseen tortious acts is unconscionable, we leave this determination for another day.
. See also Towles v. United Healthcare Corp., 338 S.C. 29, 41, 524 S.E.2d 839, 846 (Ct.App. 1999) ("When a party invokes an arbitration agreement after the contractual relationship between the parties has ended, the parties' intent governs whether the clause’s authority extends beyond the termination of the contract.” (citing Zandford v. Prudential-Bache Sec., Inc., 112 F.3d 723, 727 (4th Cir. 1997))).
. Additionally, we are somewhat puzzled by the concurring opinion’s characterization of identity theft as a foreseeable tort. Although this Court indicated its concern over the "rampant growth of identity theft” in Huggins v. Citibank, N.A., 355 S.C. 329, 334, 585 S.E.2d 275, 277 (2003), the rule we set forth today is based on the concept of the expectations of a "reasonable man,” a standard deeply rooted in tort law. Therefore, a determination of foreseeability under the rule is to be made from the standpoint of the injured party; not this Court. We do
Reference
- Full Case Name
- Richard AIKEN, Respondent, v. WORLD FINANCE CORPORATION OF SOUTH CAROLINA & World Acceptance Corporation, Petitioners
- Cited By
- 55 cases
- Status
- Published