Tag Archives: non-signatory

AGENCY PRINCIPLES MATTER (INCLUDING WHEN IT COMES TO ARBITRATION PROVISIONS)

Posted on by

A non-construction case touches upon important considerations regarding arbitration and agency principles. Agency principles matter and while this case deals with agency principles relative to arbitration, the principles can be extrapolated to a variety of scenarios.

Here are the key facts in the case. A mother obtained tickets to a football game and brought her daughter. Her daughter was injured at the game and her daughter filed a lawsuit against the stadium/team.  The stadium/team moved to compel arbitration based on the ticket terms which included an arbitration provision. The trial court did not compel arbitration finding that the daughter, which did not obtain the tickets or sign-off on the terms, was not bound by the arbitration provision. The appellate court reversed.

The question was whether the injured daughter should be bound to the arbitration provision her mother agreed to. Stated differently, could the non-signatory daughter be bound by the arbitration provision. Here, the answer was yes:

A non-signatory may be bound to an arbitration agreement through agency principles.  “The existence of an agency relationship may be established expressly, or by estoppel, apparent authority, or ratification.” 

Actual agency requires “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.”  Apparent agency, also known as implied agency, requires “(1) a representation by the principal that the actor is his or her agent, (2) reliance on that representation by a third party, and (3) a change in position by the third party in reliance on that representation.” 

Turning to the case at hand, we agree that appellee’s [the daughter] mother may not have acted with appellee’s authorization or control when she initially obtained the tickets. Nonetheless, she did act as appellee’s agent once appellee allowed her to present the ticket on her behalf to enter the stadium and attend the game. See Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1185 (Fla. 3d DCA 1985) (“It is a fundamental proposition of the law of agency that a principal may subsequently ratify its agent’s act, even if originally unauthorized, and such ratification relates back and supplies the original authority.”); ABC Salvage, Inc. v. Bank of Am., N.A., 305 So. 3d 725, 729 (Fla. 3d DCA 2020) (“[R]atification of an agreement occurs where a person expressly or impliedly adopts an act or contract entered into in his or her behalf by another without authority.”) (quoting Deutsche Credit Corp. v. Peninger, 603 So. 2d 57, 58 (Fla. 5th DCA 1992)).

Miami Dolphins. Ltd v. Engwiller, 50 Fla. L. Weekly D827a (Fla. 3d DCA 2025) (internal citations omitted).

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

CAN A NON-SIGNATORY INVOKE AN ARBITRATION PROVISION?

Posted on by


As you know from prior postings, arbitration is a creature of contract.  Hence, if you want your disputes to be resolved through arbitration, as opposed to litigation, make sure to include an arbitration provision in your agreement that covers all disputes arising out of or relating to the agreement. 

 

Under certain circumstances, a non-signatory to an agreement wants to invoke an arbitration clause in the agreement.   The non-signatory will move to compel a signatory to the agreement (with an arbitration provision) to arbitrate a dispute with the non-signatory.  Can a non-signatory do this?   Yes, under certain circumstances. 

This issue was raised by the Eleventh Circuit Court of Appeal’s ruling in Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351 (11th Cir. 2017).   In this case, a defendant moved to compel arbitration based on a licensing agreement it was not a party too.  The Eleventh Circuit explained that Florida’s doctrine of equitable estoppel gives a non-signatory an argument in certain circumstances that it can invoke an arbitration provision in a contract it is not a signatory too:

 

Under that doctrine [of equitable estoppel], a defendant who is a non-signatory to an agreement containing an arbitration clause can force arbitration of a signatory’s claims when “the signatory … must rely on the terms of the written agreement in asserting its claims against the nonsignatory.…” A non-signatory, however, cannot invoke the doctrine to compel arbitration of claims that are not within the scope of the arbitration clause. Equitable estoppel does not allow a nonsignatory to an agreement to alter and expand an arbitration clause that would not otherwise cover the claims asserted.

Kroma Makeup, supra, (internal citations omitted). 

 

This ultimately means the non-signatory must show 1) the signatory is relying on the underlying contract (with the arbitration provision) to assert claims and 2) the scope of the arbitration provision in the contract covers the dispute.  The non-signatory news to show both to compel arbitration.

 

In Kroma Makeup, although the defendant was being sued based on issues relating to the underlying contract, the arbitration provision in the contract stated that “the Parties agree that the disputes arising between them concerning the validity, interpretation, termination or performance” of the Agreement will be arbitrated.”  However, the defendant was not a “party” to the agreement; thus, the scope of the arbitration provision did not cover the dispute at-issue.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.