Samson, Esq. Baron Samson, Stephen M. Honan, Esq. Feerick
Lynch McCartney & Nugent.
matter comes before the court by way of defendant's
contested motion for summary judgment. Oral argument was
heard by this court on July 7, 2017.
complaint was filed on May 25, 2016 sounding in tort. By way
of brief background, this matter arises from defendant's
alleged conversion, breach of duty of loyalty, unjust
enrichment, and breach of employment contract.
Motion for Summary Judgment
asserts in 1980 she was employed by Radio and Telephone
Broadcast Engineers Union, Local 1212 International Brother
of Electrical Workers (hereinafter "IBEW"), located
in New York. On August 1, 2004, she and IBEW entered into a
written agreement (hereinafter "the Agreement")
prepared and drafted by IBEW. On November 10, 2014, she was
terminated. Prior to the termination date, the agreement was
never amended, suspended or terminated. Section six (6) of
the agreement contains an arbitration provision, providing:
6. Any dispute, complaint, controversy, claim or grievance
whatsoever between Frawley and the Union which directly or
indirectly arises under, out of or in connection with this
Agreement may be submitted to arbitration by either party
upon notice to the other party under and pursuant to the
labor arbitration rules of the American Arbitration
Association. No complaint, controversy, claim or grievance
shall be submitted to arbitration unless either party gives
notice to the other, which notice must be given not later
than thirty (30) days from the date the dispute, complaint or
grievance arose. Each party shall bear their costs and
expenses of arbitration and the cost of the arbitration shall
be divided equally between the parties. [Frawley
Certification Ex. E].
to the termination date, neither party served a Notice of
Arbitration upon the other. On November 10, 2014, IBEW filed
a claim with its insurer, plaintiff, alleging irregularities
and improprieties by its former employee, defendant.
Defendant asserts all of IBEW's alleged claims arose out
of and are in connection with IBEW and defendant's
employer-employee relationship. Plaintiff paid certain
amounts in claims to IBEW, after which IBEW assigned its
rights, if any, against defendant. For the purposes of this
action, plaintiff is IBEW's subrogee.
argues the court should apply New York law with respect to
the construction, interpretation and enforcement of the
August 1, 2004 Agreement. Defendant maintains other than her
New Jersey residence, all contacts regarding the Agreement,
including negotiation, execution, performance and subject
matter, are New York based. Defendant emphasizes New York
public policy favors arbitration as an efficient means of
resolving disputes, particularly where the arbitration clause
is sufficiently broad. As such, defendant argues the
Agreement contains a broad arbitration clause mandating
adjudication of any claim or dispute via arbitration.
Defendant maintains plaintiff's claims are covered by the
broad language of the Agreement. Additionally, defendant adds
the use of the word "may" in the Agreement refers
to a party's choice to bring a claim, not choice of
forum. IBEW chose to file its claims against defendant with
plaintiff. Thus, defendant argues plaintiff is bound by
IBEW's waiver of its claims.
argues the court should grant summary judgment dismissing
plaintiffs complaint with prejudice pursuant to R. 4:46-2(c).
Defendant reiterates she and IBEW entered into a written
agreement, whereby the parties agreed "[a]ny dispute,
complaint, controversy, claim or grievance whatsoever
concerning defendant's employment be resolved via
arbitration." See [Frawley Ex. E]. Accordingly,
the parties mutually waived their right to bring an action in
a court of law. Moreover, plaintiff, as IBEW's subrogee,
is bound by the arbitration clause. Because IBEW and
plaintiff failed to submit their claims to arbitration within
the required time period, plaintiff cannot avail itself of
either the judicial or the arbitration forum.
defendant argues plaintiff, as IBEW's subrogee, has no
independent right of action against her. Rather, plaintiffs
causes of action are derivative of IBEW's rights, if any,
against defendant. As such, defendant argues all rights and
defenses available to her against IBEW are viable against
plaintiff. Accordingly, plaintiff is bound by the Agreement
to provide timely notice of its intent to arbitrate, and to
timely arbitrate any claims against her. Both IBEW and
plaintiff have failed to do so, thus, defendant argues
plaintiffs claims must be dismissed.