Opinion
No. CV10 601 37 33S
November 16, 2011
MEMORANDUM OF DECISION RE TEMPORARY INJUNCTION
This action concerns an arbitration provision in a lease agreement (the lease) between the plaintiff, Montowese Industrial Park LLC, and the defendant, The Thomas E. Golden Realty Company. Specifically, § 20.14 (the arbitration provision) of the lease provides in relevant part: "In the event of any dispute or disagreement between Landlord and Tenant concerning any one or more of the provisions of [the] lease, the matter in dispute shall be submitted to arbitration by a single arbitrator to be appointed by the American Arbitration Association . . ." On July 23, 2010, the defendant filed a demand (the demand) for arbitration with the American Arbitration Association (AAA).
The defendant alleges the following facts in the demand:
The defendant is the owner of real estate located in Darien, Connecticut (the premises). In 1968, the defendant, as landlord, and Bartram Realty Co., Inc. (Bartram), as tenant, agreed to enter into a land lease for a term of fifty-six years, enabling Bartram to construct and operate a retail supermarket on the premises. Bartram is a wholly owned subsidiary corporation of Stop and Shop, Inc. (Stop and Shop). In December 2008, Bartram assigned the lease to Grove Realty Co., which subsequently merged with Montowese Industrial Park, Inc. Thereafter, Montowese Industrial Park, Inc., merged with and into MIP Merger, LLC, which immediately changed its name to Montowese Industrial Park, Inc., the plaintiff in the present case.
Subsequent to the execution of the lease, the defendant and Bartram executed a side agreement, titled "memorandum of agreement." Specifically, the memorandum of agreement provides the defendant with the right to terminate the lease as of May 31, 2014, and May 31, 2019, subject to providing written notice (termination notice) to the plaintiff. Moreover, section one of the memorandum of agreement states that no right to terminate the lease is effective unless any leasehold mortgage is discharged. Section one, however, was intended "to protect the interests of the lender, Society for Savings, providing the funds which Bartram was planning to use to construct . . . and . . . operate the retail supermarket . . ." Therefore, all termination rights are ineffective unless each leasehold mortgage held by Society for Savings is discharged.
Section three of the memorandum of agreement provides: "Landlord shall have the right, by written notice to Tenant, to cancel the lease as of May 31, 2014, or as of May 31, 2019, by written noticed to Tenant at least six (6) months prior to either of such dates.".
Section one of the memorandum of agreement provides in relevant part: Any purported action hereunder or the purported exercise of any right hereunder shall have no effect with respect to the lease unless each such mortgage shall have been discharged on or prior to the effective date of such purported action or purported exercise of right hereunder."
The defendant further alleges that on May 19, 2009, the plaintiff granted a mortgage to New Alliance Bank. According to the defendant, "[the plaintiff] is taking the position that the granting of such mortgage was permissible pursuant to Section 7.1 of the Lease and that the existence of such mortgage will preclude the [defendant] from exercising its right to terminate the Lease . . ." As a result, the defendant seeks: (1) A decision declaring that the defendant is entitled to exercise its right to terminate the lease in 2014, or 2019; (2) a reformation of the lease to provide that the defendant may terminate the lease regardless of the existence of any leasehold mortgage; (3) a reformation of the lease to provide that the defendant shall secure the release of any leasehold mortgage encumbering the premises if the defendant notifies the plaintiff that it is terminating the lease; and (4) a decision barring the plaintiff from granting any leasehold mortgage relative to the premises if the terms of the leasehold mortgage extends beyond May 2014.
Section 7.1 of the lease provides in relevant part: "Tenant and every successor and assign of Tenant . . . is hereby given the right by Landlord, without Landlord's prior written consent, to mortgage its interests in [the] lease . . ."
On October 20, 2010, the plaintiff filed a verified complaint seeking a temporary injunction to enjoin the defendant from proceeding with arbitration. The plaintiff alleges, inter alia, that the defendant seeks an advisory opinion from an arbitrator, which the parties did not agree to under the arbitration provision. According to the plaintiff, an arbitrator has no authority or jurisdiction pursuant to the arbitration provision to arbitrate the issues within the demand. On August 10, 2011, the court held a hearing and heard testimony from: (1) Timothy Mahoney, vice president of real estate for Stop and Shop; and (2) Thomas Golden, president of the plaintiff. The parties agreed to submit post-hearing briefs within two weeks of the hearing.
In support of its application for a temporary injunction the plaintiff submitted the following copies of stipulated documents: (1) The lease; (2) the memorandum of agreement; (3) the demand; (4) a letter from the AAA assigning the matter for arbitration; (5) the plaintiff's answering statement and affirmative defenses; and (6) the preliminary hearing and scheduling order from the arbitrator.
I CT Page 23784
A court may issue an injunction pursuant to General Statutes § 52-471. "[T]he purpose of a temporary injunction is to [maintain] the status quo while the rights of the parties are being determined." (Internal quotation marks omitted.) Foley v. State Elections Enforcement Commission, 297 Conn. 764, 767 n. 2, 2 A.3d 823 (2010). "The standard for granting a temporary injunction is well settled. In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law . . . A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm without an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tips in its favor." (Citation omitted; internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010). "Adequate remedy at law means a remedy vested in the complainant to which he may at all times resort, at his own option, fully and freely, without let or hindrance." Milford Education Assn. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1973). Moreover, "[t]he plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation . . . [T]he extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm." (Citation omitted; internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., supra, 97-98.
Section 52-471 provides in relevant part: "Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable . . ."
In Connecticut, "a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 709, 987 A.2d 348 (2010). Therefore, in order to raise a claim of nonarbitrability, a party may seek injunctive relief. Policemen's Firemen's Retirement Board v. Sullivan, 173 Conn. 1, 376 A.2d 399 (1977); Weitz Co. v. Shoreline Care Ltd. Partnership, 39 Conn.App. 641, 666 A.2d 835 (1995).
In its memorandum, the plaintiff argues that the defendant failed to present a termination notice, as required by the lease, and therefore, the demand is not ripe for arbitration pursuant to the terms of the arbitration provision. The plaintiff contends that the parties did not agree to arbitrate "an advisory opinion on a purely hypothetical set of posited circumstances." According to the plaintiff, since there is an absence of actual dispute or disagreement, the demand is not arbitrable under the lease. Nevertheless, it is unclear whether the plaintiff argues that: (1) The demand is not arbitrable, as it does not present a ripe dispute or disagreement, and thus, it does not fall within the scope of the arbitration provision; or alternatively (2) a termination notice and a ripe dispute is a precondition to the defendant's right of arbitration. It appears, however, that the plaintiff argues both issues.
The plaintiff does not dispute the validity of the memorandum of agreement or that the terms of the memorandum of agreement apply to the lease. Therefore, for purposes of this decision, "the lease" includes the terms within the memorandum of agreement.
In its memorandum in opposition, the defendant argues, inter alia, that the arbitration provision manifests the intent by the parties to have an arbitrator decide the question of arbitrability, as opposed to the court. Therefore, the defendant argues that the court should deny the plaintiff's application for a temporary injunction.
A
Before the court decides whether the demand is arbitrable under the terms of the arbitration provision, the court must determine whether an arbitrator of the court has the primary authority to decide whether the defendant's four claims, as articulated in the demand, are arbitrable. "Arbitration is a creature of contract . . ." (Internal quotation marks omitted.) New Britain v. AFSCME, Council 4, Local 1186, 121 Conn.App. 564, 572, 997 A.2d 560, cert. granted on other grounds, 298 Conn. 903, 3 A.3d 69 (2010). "Whether a particular dispute is arbitrable is typically a question for the court . . . It is well established [however] that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator . . . In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators . . . The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration" (internal quotation marks omitted). id, 569; "such as `all questions in dispute and all claims arising out of' the contract or `any dispute that cannot be adjudicated.'" (Internal quotation marks omitted.) White v. Kempner, 229 Conn. 465, 472, 641 A.2d 1381 (1994). "[Courts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties." Weitz Co. v. Shoreline Care Ltd. Partnership, supra, 39 Conn.App. 644-45. "Unless the agreement shows such intent, the determination of the question of arbitrability remains a function of the court." (Internal quotation marks omitted.) Lupone v. Lupone, 83 Conn.App. 72, 75, 848 A.2d 539, cert. denied, 270 Conn. 910, 853 A.2d 526 (2004).
"The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted." (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 258 Conn. 101, 109, 779 A.2d 737 (2001). Therefore, "when parties freely write contracts providing for arbitration they may exclude certain issues from determination by arbitrators." East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 657, 539 A.2d 125 (1988); see also White v. Kampner, supra, 229 Conn. 474 n. 10 ("the language of the contract answers the question of whether the trial court or the arbitrator determines issues of arbitrability, not the formal identity of the issue as procedural or substantive").
While our courts examine the contract language instead of utilizing a procedural and substantive distinction employed by the federal courts, our Supreme Court recognized a United States Supreme Court holding that stated: "[P]rocedural questions which grow out of the [parties'] dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator to decide . . . So, too, the presumption is that the arbitrator should decide allegation[s] of waiver, delay, or a like defense to arbitrability." (Emphasis in original; internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., 287 Conn. 1, 7-8 n. 8, 946 A.2d 1219 (2008), citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). Furthermore, the United States Court of Appeals for the Seventh Circuit also commented that: "[T]here may be some room for doubt whether it is the role of the court to determine if a live `controversy' or `disagreement' exists between the parties, in the sense in which those terms are employed in an arbitration clause . . . [T]here is authority that the court should inquire only whether the subject matter of a dispute is within the arbitration clause, leaving the arguably procedural issue of `ripeness' to the arbitrator. Whether parties have assumed a position of concrete adversity, so that the issues are effectively and vigorously presented to the arbitrator, might be the sort of procedural issue which is properly left for the arbitrator's decision." Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 860 F.2d 1420, 1425 (7th Cir. 1988); see also Milliman, Inc. v. Healthcare Ultra, Inc., 641 F.Sup.2d 113, 119 (D.Puerto Rico 2009) ("[w]hether the alleged dispute that led [p]etitioners to commence arbitration proceedings . . . is ripe must ultimately be determined by the arbitrator"); Ace American Ins. Co. v. Huntsman Corp., 255 F.R.D. 179, 210 (S.D.Tex. 2008) ("questions of the ripeness of the underlying disputes between [the parties] ultimately may be determined by the arbitrators"); Albritton v. W.S. Badcock Corp., United States District Court, Docket Nos. 1:02CV378DD, 1:02CV379DD (N.D.Miss. April 7, 2003) ("procedural questions such as ripeness are for an arbitrator, not for the court, to decide"). Our Supreme Court in Dept of Transportation v. White Oak Corp. supra, 1, however, declined to decide whether a defense of sovereign immunity is a procedural question for arbitrators to decide pursuant to the rule articulated by the United States Supreme Court. Thus, our current law requires an examination of the contract's terms and therefore, the court does not employ the procedural or substantive distinction in deciding the question of arbitrability.
A review of the relevant authority reveals a pattern by our Supreme Court to construe broad language in an arbitration clause as indicative of the parties' intent for an arbitrator to determine the issue of arbitrability. In College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832 (1965), our Supreme Court confronted the issue of whether the question of arbitrability was for an arbitrator or the court. In that case, a defendant appealed from a judgment directing it to proceed with arbitration, arguing that the plaintiff had to first obtain a ruling by an architect and that the claim was not timely filed under the terms of the contract. Id. The arbitration clause provided that "[a]ny disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration." (Internal quotation marks omitted.) Id., 707-08. Our Supreme Court held that "under such broad and all-embracing language the question of what is subject to arbitration is for the arbitrators themselves." Id., 708. "Such broad terms were [also] found to exist in a case where the contract called for the submission to arbitration of `[a]ny dispute that cannot be adjudicated between the Employer and the Union'; International Brotherhood v. Trudon Platt Motor Lines, Inc., 146 Conn. 17, 20, 147 A.2d 484 [(1958)]; and where arbitration was required of `[a]ll questions in dispute and all claims arising out of said contract'; Liggett v. Torringon Building Co., CT Page 23787 114 Conn. 425, 430, 158 A. 917 [(1932)]." (Internal quotation marks omitted.) Policemen's Firemen's Retirement Board v. Sullivan, supra, 173 Conn. 6; but see Board of Education v. Frey, 174 Conn. 578, 581, 392 A.2d 466 (1978) (holding that the court, and not the arbitrator, should determine the issue of arbitrability where an arbitration clause limited arbitration to "grievance[s] . . . based solely upon an alleged breach of [the] agreement" [internal quotation marks omitted]).
In Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 438 A.2d 1171 (1981), a collective bargaining agreement provided for arbitration of any grievance where "any employee or group of employees feel aggrieved concerning his or their wages, hours or conditions of employment, which wages, hours or conditions are controlled by this contract, or which are provided for in any statute, charter, provision, or ordinance, rule or regulation which is not in conflict with this contract, or concerning any matter or condition arising out of the employee-employer relationship . . ." (Internal quotation marks omitted.) Id., 104-05. Based on this language, our Supreme Court held "that the above all-inclusive language of the agreement requires a determination that the parties intended the question of arbitrability to be determined by the arbitrators." Id., 105. Furthermore, in White v. Kampner, supra, 229 Conn. 465, a contract provided for arbitration of "[a]ny dispute or question arising under the provisions of [the] [agreement] which [had] not been resolved under [the mandatory negotiation provision] . . ." (Internal quotation marks omitted.) Id., 468. While the court found that the language "which had not been resolved under the mandatory negotiation provision" restricted the breadth of the arbitration clause, our Supreme Court stated that "the arbitration clause begins with broad language that generally grants jurisdiction to the arbitrator to determine the issue of arbitrability . . ." (Citation omitted.) Id., 473.
Our Appellate Court has also addressed the issue of arbitrability. In Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, 15 Conn.App. 332, 544 A.2d 256 (1988), the court stated: "The key to the resolution of this appeal rests in the breadth of the arbitration clause. The language in the arbitration clause in this case is very similar to that found in [a past Connecticut Supreme Court case]: "[A]ny grievance or dispute which may arise between the parties concerning the application, meaning or interpretation of this agreement, unless specifically excluded by this agreement, shall be settled in the following manner . . . With respect to that clause, our Supreme Court held that [t]he broad language of the arbitration clause . . . indicates that the parties desired the arbitration clause itself to be subject to the arbitrators' decision." (Internal quotation marks omitted.) Id., 334-35. Additionally, in Turner Construction Co. v. Eppoliti, Inc., 28 Conn.App. 139, 609 A.2d 1064 (1992), our Appellate Court held that the arbitration clause contained no exclusionary language to remove the question of arbitrability from the arbitrator's domain where the clause provided for arbitration of "[any dispute arising at any time out of the Subcontract . . ." (Internal quotation marks omitted.) Id., 144.
In 1998, however, our Appellate Court in Scinto v. Sosin, 51 Conn.App. 222, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724, A.2d 1125 (1999), held that broad language, by itself, is not sufficient to preclude the court from determining the issue of arbitrability. Id., 230. In Scinto, the contract contained the following arbitration clause: "Any controversy or Claim arising out of or related to the Contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association . . ." (Internal quotation marks omitted.) Id., 226. The court held that the scope of arbitration from the contract language did not, by itself, provide for the arbitration of arbitrability, as "the parties did not manifest an intention to arbitrate the issue of arbitrability." Id., 230.
In Lupone v. Lupone, supra, 83 Conn.App. 72, our Appellate Court revisited the issue of whether the question of arbitrability should be determined by an arbitrator or a court. In Lupone, the court held that an arbitrator should determine the issue of arbitrability under a contract's arbitration clause. In its decision, however, the court focused on the following language from the arbitration clause: "The interpretation of the meaning or construction of the Agreement." (Internal quotation marks omitted.) Id., 76. Specifically, the provision provided: "[A]ny dispute, difference, disagreement, or controversy among the Partners arising out of or in connection with the Partnership or the interpretation of the meaning or construction of the Agreement, shall be referred to [arbitration] . . ." (Emphasis added; internal quotation marks omitted.) Id. The court held that "[i]n addition to defining broadly the scope of arbitration by use of the expansive prefatory phrase, `[a]ny dispute, difference, disagreement, or controversy among the Partners,' the clause expressly reserves to the [arbitration] panel the authority to decide any dispute arising out of the interpretation of the meaning or construction of the Agreement . . .' The issue of arbitrability arises directly from the interpretation of the meaning of the arbitration clause contained in the parties' agreement." Id. Therefore, the court implicitly affirmed the holding in Scinto.
In the present case, the arbitration provision provides that "[i]n the event of any dispute or disagreement between Landlord arid Tenant concerning any one or more of the provisions of [the] lease, the matter in dispute shall be submitted to arbitration . . ." The arbitration provision, albeit very broad, closely resembles the language in Scinto. Thus, according to the decisions by our Appellate Court, the arbitration provision, by itself, does not demonstrate the parties' intent to arbitrate the issue of arbitrability, and therefore, it does not deprive the court of its function to determine the question of arbitrability.
Nevertheless, it does not appear that our Supreme Court has held that broad language, by itself, is insufficient for a court to direct the issue of arbitrability to an arbitrator. Furthermore, our Supreme Court has not held that the question of arbitrability specifically arises from language such as "the interpretation of the meaning or construction of the agreement." Instead, our Supreme Court has held that broad language, such as "`all questions in dispute and all claims arising out of the contract . . .'any dispute that cannot be adjudicated'"; (internal quotation marks omitted.) White v. Kampner, supra, 229 Conn. 472; "[a]ny dispute or question arising under the provisions of [the] [agreement]"; (internal quotation marks omitted.) id., 468; and "[a]ny disagreement arising out of [the] contract"; (internal quotation marks omitted.) College Plaza, Inc. v. Harlaco, Inc., supra, 152 Conn. 707-708; is sufficient to demonstrate that the parties intended an arbitrator to determine the issue of arbitrability. "[I]t is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the . . . Superior Court [is] bound by [its] precedent . . ." (Citation omitted; internal quotation marks omitted.) Potvin v. Lincoln Service Equipment Co. 298 Conn. 620, 650 6 A.3d 60 (2010). Therefore, the court will follow the law as articulated in our Supreme Court precedents.
The United States Court of Appeals for the Second Circuit is in accord with the court's interpretation of Connecticut law. In Bell v. Cendant Corp., 293 F.3d 563 (2d Cir. 2002), the court rejected a party's reliance on Scinto, stating that: "We need not attempt to harmonize [this] lower court [case] with the Connecticut Supreme Court's controlling decision in [ Bridgeport v. Bridgeport Police Local 1159, supra, 183 Conn 102] and its progeny which hold that broad language in an arbitration clause can be sufficient to send the issue of arbitrability to the arbitrator. See West v. [American Telephone Telegraph] Co., 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940) (`[t]he highest court of the state is the final arbiter of what is state law.') . . ." (Citations omitted.) Id., 569.
In the present case, the arbitration provision is broad and closely resembles the arbitration clauses where our Supreme Court has found that the parties intended for an arbitrator to decide the issue of arbitrability. The arbitration provision does not contain language that restricts the breadth of the arbitration provision. Furthermore, the arbitration provision and the lease contain no specific exclusionary language that remove the question of arbitrability from the arbitrator's domain. As a result, the broad language within the arbitration provision demonstrates the parties' intent to have an arbitrator decide the question of arbitrability, not the court.
B
Next, the court must decide the plaintiff's alternate argument; namely, whether a termination notice and a ripe dispute is a condition precedent to the arbitration provision. In Connecticut, "[a] party can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do." (Internal quotation marks omitted.) Farrell v. Twenty First Century Ins. Co., 301 Conn. 657, 662, 21 A.3d 816 (2011). "This limitation on contractual arbitration includes the requirement of satisfying any conditions precedent to arbitration." White v. Kampner, supra, 229 Conn. 473 whether conditions precedent to arbitral submission has been satisfied is one for the courts to determine, not the arbitrator . . ." (Citation omitted; internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., supra, 287 Conn. 7-8 n. 8, citing White v. Kampner, supra, 229 Conn. 473; but see Turner Construction Co v. Eppoliti, Inc., supra, 28 Conn.App. 144 ("the trial court properly left to the arbitrator the question of whether the preconditions to arbitration have been satisfied"); see also Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. 708 (noting that under federal arbitration law, issues of conditions precedent to an obligation to arbitrate are committed exclusively to an arbitrator).
While the arbitration provision provides for "any dispute or disagreement," for simplicity purposes, the court will only refer to the term "dispute."
The issue of whether a precondition to arbitration was arbitrable was discussed in Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967), superseded by statute on other grounds as stated in Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 184 n. 2, 520 A.2d 202 (1987). In Frager v. Pennsylvania General Ins. Co., supra, 155 Conn. 270, the arbitration clause was restricted to a section of the insurance contract relating to collisions with uninsured motorists. Id., 274-75. Importantly, the insurance policy defined an "uninsured automobile" as "an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident . . ." (Emphasis added; internal quotation marks omitted.) Id., 272-73. The court held that until a vehicle was determined to be "uninsured," the arbitration clause did not become operative. Id., 275-77. Therefore, "[s]ince the question of contact was a condition precedent to arbitrability, it should not, itself, have been adjudged to be arbitrable." (Emphasis added.) CT Page 23791 Id., 277.
The arbitration clause provided: "If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration . . ." (Internal quotation marks omitted.) Frager v. Pennsylvania General Ins. Co., supra, 155 Conn. 274-75.
In Gary Excavating, Inc v. North Haven, 164 Conn. 119, 318 A.2d 84 (1972), our Supreme Court distinguished and declined to rely on Frager, and held that the issue of arbitrability was for an arbitrator and not the court. Id., 124. In Gary Excavating, Inc., the issue was "whether compliance with the contract procedures for filing claims and demanding arbitration [was] a condition precedent which must be found by the court before arbitration [could] be ordered." Id., 122. Under the arbitration clause, "all claims and disputes arising under the contract or its interpretation shall be presented to the defendants for decision within ten days of the commencement of the dispute and if any claim is not presented within the ten-day period it will be deemed to have been waived. It is further provided, however, that if the contractor does not agree with any decision of . . . [the] local public agency, it may then demand arbitration." (Emphasis in original; internal quotation marks omitted.) Id., 123. Therefore, under the arbitration clause, the contractor could demand to arbitrate a conclusion by the local public agency that the contractor had waived or failed properly to demand arbitration, as the contractor could demand arbitration of any decision of the local public agency. Id., 123-24.
Our Supreme Court distinguished Frager and held that "the arbitration clause applied to any decision of the local public agency and there is no clear statement that the right to arbitration was conditioned or dependent on timely notice or timely demand." Id., 124. As a result, "[f]ailure to follow the steps agreed on as prerequisites to the right to arbitration may bring about waiver . . . but in the present case, by virtue of the broad scope of [the arbitration clause], the appropriate body to hear claims regardidng procedural prerequisites to arbitration must be the arbitration panel." (Citation omitted.) Id., 125.
To the contrary, in White v. Kampner; supra, 229 Conn. 465, our Supreme Court relied on Frager, and held that a determination of a condition precedent was not part of the contractual submission to arbitration, and therefore, the issue of arbitrability was a question for the court. Id., 475. In White, the arbitration clause provided: "Any dispute or question arising under the provisions of [the] [agreement] which [had] not been resolved under [the mandatory negotiation provision] shall be determined by arbitration . . ." (Internal quotation marks omitted.) Id., 468. Importantly, the contract included a "mandatory negotiation provision," which provided: "[The parties agree that they will attempt to negotiate in good faith any dispute of any nature arising under [the] [agreement]. The parties shall negotiate in good faith at not less than two negotiation sessions prior to seeking any resolution of any dispute under the [arbitration clause] of [the] [agreement]." (Internal quotation marks omitted.) Id. Our Supreme Court held that the contractual language required satisfaction of the mandatory negotiation clause as a condition precedent to arbitration. Id., 473. In doing so, the court distinguished Gary Excavating, Inc., stating that "the contract language specifically expresses an intent to make arbitrable only the category of disputes not resolved through the mandatory negotiation sessions." (Emphasis in original.) Id., 474-75 n. 10. Therefore, the court held that the issue of arbitrability was one for the trial court. Id., 475.
Our Supreme Court has also held that "waiver of the state's [statutory] sovereign immunity . . . is a condition precedent to . . . arbitral submission . . . Accordingly, whether an arbitration is barred by the doctrine of sovereign immunity . . . is a matter for the courts, not for the arbitiators, to decide." (Citation omitted.) Dept. of Transportation v. White Oak Corp., supra, 287 Conn. 7-8 n. 8.
Our Supreme Court's holdings in White and Frager are readily distinguishable from the present case. Notwithstanding its broad language, the arbitration provision does not contain a clear statement of a limitation or condition precedent. First, the language of the arbitration provision and the lease does not specifically require a termination notice before the right of arbitration becomes operative. Second, the arbitration provision does not state that a "dispute" must involve a "ripe dispute." Instead, the arbitration provision provides for " any dispute or disagreement . . ."(Emphasis added.) Insomuch as it is reasonable to conclude from the language that a ripe dispute is not required, it is also reasonable to conclude that the broad language within the arbitration provision does not necessarily exclude a hypothetical dispute. Moreover, unlike White and Frager, the lease in the present case lacks a provision that defines "dispute."
"[T]he rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Thus, a court must be satisfied that the case before it does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotations marks omitted.) Keller v. Beckenstein, 122 Conn.App. 438, 443, 998 A.2d 838, cert. granted on other grounds, 298 Conn. 921, 4 A.3d 1227 (2010).
Therefore, the arbitration provision applies to " any dispute" and there is no evidence that it was conditioned or dependent on a termination notice or a ripe dispute. "In the absence of such preconditions and limitations, [courts] generally are without authority to read them into the agreement's arbitration provision. See Gary Excavating, Inc. v. North Haven, [ supra, 164 Conn. 123] (noting that, because contract did not state affirmatively that failure to comply with certain procedures barred arbitration, plaintiff did not waive arbitration by failing to comply with those procedures); see also Goldberg v. Hartford Fire Ins. Co., [ 269 Conn. 550, 559, 849 A.2d 368 (2004)] (`[w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms' [emphasis added; internal quotation marks omitted]); Pesino v. Atlantic Bank of New York, [ 244 Conn. 85, 94, 709 A.2d 540 (1998)] (acknowledging that this court cannot add new terms to contract even where parties, if made aware of missing term, likely would have added it); Collins v. Sears, Roebuck Co., 164 Conn. 369, 374, 321 A2d 444 (1973) (`interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement')." State v. Philip Morris, Inc., 279 Conn. 785, 803-04, 905 A.2d 42 (2006); see also Farrell v. Twenty-First Century Ins. Co., 118 Conn.App. 757, 760, 985 A.2d 1076 (2010), aff'd, 301 Conn. 657, 21 A.3d 816 (2011) ("[a]rbitration agreements are strictly construed"). Thus, in the present case, a termination notice or a ripe dispute is not a condition precedent to the arbitration provision. Accordingly, the issue of arbitrability remains within the arbitrator's domain.
Based on the foregoing, the plaintiff's application for a temporary injunction is denied.