In The Court of Appeals

Lucy J. Reuben, PhD and Dr. John A. Cole,        Respondents,


Palmetto Traditional Homes, L.L.C. and Home Buyers Warranty Corporation, Defendants,

of whom Palmetto Traditional Homes, L.L.C. is,        Appellant.

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2004-UP-283
Submitted April 6, 2004 – Filed April 29, 2004


William G. Besley, Esquire, Andrew E. Haselden, Esquire, George V. Hanna, IV, of Columbia; for Appellant.

Carey M. Ayer, Esquire, Lisa Lee Smith, of Lexington; for Respondents.

PER CURIAM:  Lucy J. Reuben and John A. Cole (collectively “Respondents”) commenced an action against Palmetto Traditional Homes, L.L.C. (“Palmetto”) alleging negligence, loss of consortium, negligent misrepresentation and breach of express and implied warranties.  Palmetto filed a motion to compel arbitration.  After a hearing, the trial judge found Respondents’ negligence and loss of consortium claims were not subject to arbitration and denied the motion.  Palmetto appeals.  We affirm.


Respondents entered into an agreement to purchase a new home from Palmetto for $266,900.  Respondents allege that prior to the closing, Palmetto took Respondents on a walk-through of the house, at which time they were shown an upstairs room over the garage which Palmetto represented to be a storage room, suitable for storing personal items.  Respondents further allege that the door to the storage area had a doorknob on each side, indicating the doorway was to be utilized to enter the storage area and that the door could be closed by a person standing inside the storage room.  Palmetto denies that it represented personal items could be stored in the storage room or that the room was suitable for walking and/or standing. 

The Respondents purchased the home on February 18, 2000.  On December 3, 2000, Respondent Reuben entered the storage room; however, the flooring did not support her weight, and she fell through the floor and landed atop a car in the garage below.  Respondents allege Reuben sustained serious personal injuries as a result of the fall. 

Respondents filed a complaint against Palmetto alleging various causes of action based on negligence and breach of warranty.  Palmetto filed an answer and a motion to compel arbitration asserting the purchase agreement required any claims arising out of or related to the agreement were to be settled by arbitration, and that the contract documents between the parties required Respondents to arbitrate this dispute.  Respondents conceded that their claims for negligent misrepresentation, breach of express warranty, and breach of implied warranty of habitability were subject to arbitration under the agreement.  However, they contended their causes of action for negligence and loss of consortium were not subject to arbitration.  After a hearing on the matter, the trial judge denied Palmetto’s motion to compel arbitration finding (1) Respondents’ personal injury claims did not arise out of the contract and were not subject to arbitration and (2) S.C. Code Ann. § 15-48-10(b)(4) specifically excludes personal injury claims from arbitration and that the Federal Arbitration Act (“FAA”) did not preempt the South Carolina Uniform Arbitration Act (“SCUAA”). 


Unless otherwise provided by the parties, the question of the arbitrability of a claim is an issue for judicial determination.  Stokes v. Metropolitan Life Ins. Co., 351 S.C. 606, 609, 571 S.E.2d 711, 713 (Ct. App. 2002).  The determination of whether or not a matter is arbitrable is subject to de novo review.  Id.  However, a circuit court’s factual findings on the arbitrability of a claim will not be overruled if there is any evidence reasonably supporting them.  Id.  at 609-10, 571 S.E.2d at 713.


Palmetto contends the trial court erred in denying its motion to compel arbitration.  It argues (1) Respondents’ claims for negligence and loss of consortium fall within the scope of the arbitration agreement and (2) even though S.C. Code Ann § 15-48-10(b)(4) of the SCUAA excludes personal injury claims, the FAA preempts the SCUAA with respect to Respondents claims.  Because we find Respondents’ claims for negligence and loss of consortium do not fall within the scope of the parties’ arbitration agreement, we find the trial court properly denied the motion to compel.  Accordingly, we need not reach the issue of preemption. 

“An arbitration clause is a contractual term, and general rules of contract interpretation must be applied to determine a clause’s applicability to a particular dispute.”  Towles v. United HealthCare Corp., 338 S.C. 29, 41, 524 S.E.2d 839, 846 (Ct. App. 1999).  Arbitration rests on the agreement of the parties, and the range of issues that can be arbitrated is restricted by the terms of the agreement; a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.  Zabinski v. Bright Acres Assocs., 346 S.C. 580, 596-97, 553 S.E.2d 110, 118 (2001).    

The arbitration agreement in the instant case provides in pertinent part:

Any controversy, claim or dispute arising out of or relating to this Agreement or your purchase of the Home including claims under the Limited Warranty shall be settled by arbitration pursuant to the Uniform Arbitration Act, Section 15-48-10 et seq., Code of Laws of South Carolina (1976) as amended, in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (“AAA”), and judgment rendered by the arbitrator(s) may be confirmed, entered and enforced in any court having jurisdiction. 

The plain meaning of this clause is that arbitration was intended by the parties to resolve all disputes arising out of or relating to the purchase of the home.  The clause is expressly limited to “[a]ny controversy, claim or dispute arising out of or relating to this Agreement or your purchase of the Home including claims under the Limited Warranty.” (emphasis added) Thus, the arbitration clause would clearly apply to contract-based causes of action – those claims relating to the agreement, the purchase of the home, or the limited warranty.  However, Respondents’ claims for negligence and loss of consortium are tort-based claims, unrelated to any of these three subjects. 

In order to decide whether an arbitration agreement encompasses a dispute, the court must determine whether the factual allegations underlying the claim fall within the scope of the arbitration clause, regardless of the label assigned to the claim.  Zabinski, 346 S.C. at 597, 553 S.E.2d at 118.  One method to determine whether a tort cause of action falls within the scope of an agreement to arbitrate is to determine whether “the particular tort claim is so interwoven with the contract that it could not stand alone.”  Id., at 597 n.4, 553 S.E.2d at 119 n.4.  “[I]f the tort claim is completely independent of the contract and could be maintained without reference to the contract, the tort claim is not arbitrable.”  Id. 

In the instant case, Respondents’ alleged personal injuries stem from the fact that a storage room was improperly constructed such that it could not support Reuben’s weight.  As public policy imposes a legal duty upon builders to construct safe housing, Respondents need not sue Palmetto under the contract to recover for such tort-based injuries.  See Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 346, 384 S.E.2d 730, 737 (1989) (“public policy . . . demands the imposition of a legal duty on a builder to refrain from constructing housing that he knows or should know will pose serious risks of physical harm. . .” and “such a duty . . . should extend to foreseeable parties. . . .”).  In the case at hand, the alleged serious risk of physical harm was not personal to Respondents as those who purchased the home and entered the arbitration agreement.  We find compelling Palmetto’s argument that the person falling through the floor could have been a household member or guest in the home who would not be bound by the arbitration agreement, yet could maintain a tort action against Palmetto.  The fact that Reuben is a party to the agreement and is the person who allegedly fell through the floor is inconsequential.  The personal injuries alleged by Respondents, based on Palmetto’s negligent acts, are not so interwoven with the contract that they could not stand alone.


HUFF, STILWELL, and CURETON, A.J., concur.