Court of Appeals of Texas, El Paso.
APC HOME HEALTH SERVICES, INC., Appellant,
Lucina MARTINEZ, Appellee.
December 12, 2019
Appeal from the County Court at Law Number Seven Of El Paso County, Texas (TC# 2017DCV4119), The Honorable Ruben P. Morales, Judge
Attorneys & Firms
ATTORNEY FOR APPELLANT, Jerry Fazio, Owen & Fazio, P.C., 10440 N. Central Expwy, Ste. 1450, Dallas, TX 75231.
ATTORNEY FOR APPELLEE, Jeffrey B. Pownell, Scherr & Legate, PLLC, 109 N. Oregon, 12th Floor, El Paso, TX 79901.
Before McClure, Senior Judge (Sitting by Assignment)
ANN CRAWFORD McCLURE, Senior Judge
*1 This is an interlocutory appeal from the denial of a motion to compel arbitration. The trial court denied the motion without saying why. Consequently, there are a host of issues before us, including whether APC carried its burden to show the parties agreed to arbitrate the claims asserted here, and if so, whether Lucina Martinez carried her burden to substantiate any of the defensive theories she asserted below. Bound up with the later question is whether the agreement is governed by the Federal Arbitration Act (FAA), whether it is procedurally unconscionable, or whether certain provisions are substantively unconscionable. We reverse and remand with instructions.
As its name suggests, APC Home Health Services, Inc. (APC) is a home health care provider. On May 1, 2016, and while employed by APC, Martinez was working at a patient’s home. While transferring the patient from a bed to a wheel chair, Martinez claims she injured her neck, back, and other parts of her body. She filed suit against APC, alleging a common law negligence cause of action. APC is a non-subscriber under the Texas worker’s compensation system. APC answered and then moved to compel arbitration.
APC supported its motion to compel arbitration with the affidavit of Jovie Cantu, identified as APC’s records custodian. Cantu’s affidavit proved up as a business record an attached “Arbitration Agreement and Notice of Arbitration Policy.” The agreement, dated April 20, 2016, bears the signature of a “Lucina Martinez”; the title and main body of the document are entirely in Spanish. APC attached another exhibit represented to be an English translation of the agreement. Its key terms include:
APC Home Health Service, Inc. ... (“Company,” “we” or “our”) maintains a mandatory binding arbitration policy. It is a condition of your employment with us that you and we agree to arbitrate all arbitrable claims arising from or related to your employment with us (the “Claims,” itemized below), save and except any benefit claims arising under our Occupational Injury Benefit Plan, and any claims made not arbitrable by governing statute or rule.
1. Effective Date: The effective date of this Arbitration Agreement and Notice of Arbitration Policy (this “Arbitration Agreement”) is 5/16/12 (the “Effective Date”).
If you are already working for Company when you receive notice of this Arbitration Agreement, and you continue working for us for more than three more days, you will be deemed to have accepted the terms of this Arbitration Agreement on the fourth day, and thereafter. In that event, the fourth day is your effective date to be governed by this Arbitration Agreement. IF YOU CONTINUE TO WORK FOR US AFTER THE EFFECTIVE DATE, YOU AND WE WILL HAVE MUTUALLY AGREED TO ARBITRATE ALL COVERED CLAIMS BETWEEN US, APPLYING THE TERMS OF THIS ARBITRATION AGREEMENT.
2. Arbitration Is Mandatory, Binding, and Mutual: All Claims related to your employment with us arising in any part after the Effective Date, save and except any benefit claims under our Occupational Injury Benefit Plan and any claims made not arbitrable by governing statute or rule, will be resolved only through mandatory binding arbitration. You and we both agree to arbitrate all Claims, and you and we both waive all rights to a jury or non-jury trial in state and federal court as to the Claims. [bolding and capitalizations all original]
*2 The agreement was signed on April 20, 2016. The date of the accident is alleged as May 1, 2016.1
The agreement further describes what claims are governed by arbitration:
4. The Claims: Claims covered under this Arbitration Agreement include, but are not limited to the following: (i) claims arising from any injury suffered by an Employee while in the Course and Scope of Employment with Company, including but not limited to claims for negligence, gross negligence, and all claims for personal injuries, physical impairment, disfigurement, pain and suffering, mental anguish, ....
And further relevant here, the agreement includes this provision:
6. How the Arbitration Will Be Conducted: You and we agree Company is engaged in interstate commerce, and that the Federal Arbitration Act (“FAA”) will govern all aspects of this Arbitration Agreement.
APC also provided its employees an occupational injury plan that provided defined medical and indemnity benefits. While the plan document has a space for the employee’s signature, the plan in our record is unsigned. Nonetheless, APC included the affidavit of a claim’s manager for Pan-American Life Insurance Company documenting that Martinez received $4,977.55 in indemnity benefits and $645.16 in medical payments under the terms of APC’s Occupation Injury Benefit Plan.
Martinez opposed the motion to compel arbitration on several grounds: (1) the attached agreement was only a copy, and Martinez questioned its authenticity; (2) the FAA does not apply because there was no transaction involving commerce; (3) Congress never intended the FAA to supplant a state worker’s compensation scheme; (4) enforcing the arbitration agreement through the FAA would violate the 10th Amendment; (5) the agreement is unconscionable; (6) pre-injury waivers for non-subscribers are void; (7) the agreement is illusory for lack of mutuality of obligation; and alternatively, (8) the court should reform the agreement to remove any unconscionable provisions.
In support of its opposition, Martinez included her own affidavit that in relevant part attested:
• That she has “limited ability in reading, writing or understanding English.”
• That all her work “was performed locally in El Paso, Texas.”
• That she does “not remember signing” the arbitration agreement attached to APC’s Motion to Compel Arbitration, nor does she “remember anything about this document.”
Her affidavit also described the manner in which the agreement may have been executed:
• “When I began work for APC, I was required and told to sign things and I did not know why. I was told that the documents were routine paperwork or documents I needed to sign in order to work. I was misled into believing that the documents were not important and were just routine documents that the company needed to complete their paperwork on my employment. I did not know and I was never told by anyone at APC that what I was signing was an arbitration agreement or anything other than papers required to be signed for my job. I was never told that I could be waiving rights that I had or that I could seek the advice of an attorney before signing these documents. I was never told the documents contained an arbitration agreement. I was not given any time to review the documents prior to signing them.... No one from APC ever provided an orientation session or any other kind of meeting where any of the documents I was required to sign was explained. No one at APC ever explained or discussed any arbitration agreement to me.
*3 The trial court held two hearings on APC’s motion. At the first hearing, APC’s counsel represented that it had a witness ready to testify that Martinez signed the arbitration agreement. The trial judge asked Martinez’s counsel if Martinez denied signing the document. Her counsel responded that Martinez did not recall signing the document. The trial court found that assertion insufficient to raise an issue as to her signature, and the trial court stated that there was no need to call the witness to testify.2
The trial court was more concerned with some of Martinez’s defenses to the agreement, and particularly whether arbitration would have truly been a more efficient and less costly alternative to litigation, and if not, why an employer would choose that forum.3 The trial court desired a full evidentiary hearing on the cost issue and directed APC’s counsel to submit evidence on the likely cost of arbitration in this case. APC did so through a subsequent filing that included several documents summarizing studies on arbitration’s cost savings. Martinez offered no evidence of her own on that issue. Following that second hearing, the trial court denied the motion to compel arbitration without issuing any findings of fact or conclusions of law. APC then brought this interlocutory appeal.4 It asserts three issues: (1) whether the trial court erred in failing to compel arbitration; (2) whether Martinez met her burden to substantiate a defense to the arbitration agreement; and (3) whether the undisputed evidence shows that arbitration is a more cost-effective forum.
FRAMEWORK FOR REVIEW
“[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Delfingen US–Texas, L.P. v. Valenzuela, 407 S.W.3d 791, 797 (Tex.App.--El Paso 2013, no pet.).
*4 If the proponent of arbitration has offered prima facia evidence for the existence of a valid agreement which covers the dispute, a presumption arises in favor of arbitrating the dispute, and the burden shifts to the resisting party to raise an affirmative defense to enforcing that agreement. In re Poly–America, L.P., 262 S.W.3d 337, 348 (Tex. 2008) (orig. proceeding).
Motions to compel arbitration are ordinarily decided in summary proceedings “on the basis of affidavits, pleadings, discovery, and stipulations.” United Rentals, Inc. v. Smith, 445 S.W.3d 808, 812 (Tex.App.--El Paso 2014, no pet.) (affirming denial of arbitration where employer failed to authenticate agreement).
We review a trial court’s order denying a motion to compel arbitration for abuse of discretion. Cardwell v. Whataburger Rests., L.L.C., 484 S.W.3d 426, 428 (Tex. 2016).
APC MET ITS INITIAL BURDEN TO SHOW THE EXISTENCE OF AN AGREEMENT TO ARBITRATE
Courts determine whether an enforceable agreement to arbitrate exists by applying “ordinary principles of state contract law[.]” Karns v. Jalapeno Tree Holdings, L.L.C., 459 S.W.3d 683, 692 (Tex.App.--El Paso 2015, pet. denied).
*5 APC met its initial burden to evidence an agreement to arbitrate in two ways. First, it presented the agreement supported by the affidavit of its records custodian. Second, when Martinez requested the original document as the best evidence of the contract, APC was prepared to present at the hearing a witness who would confirm the execution of the agreement by Martinez. The witness did not actually testify because Martinez’s counsel affirmed that Martinez would only testify that she did not recall signing the document. Not recalling executing a document is different from denial of execution. Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997) (per curiam) (lawyer’s unsworn statements can be treated as evidence if the lawyer makes the statements under circumstances in which the opposing party knows or should know that an objection is necessary). Based on those predicates, we conclude, as apparently did the trial judge below, that Martinez signed the arbitration agreement.
And having concluded that Martinez signed the document, we are permitted a further inference that Martinez accepted the terms of the agreement. The fact that a party has signed a contract creates a strong presumption that the party has assented to its terms. ReadyOne Industries, Inc. v. Casillas, 487 S.W.3d 254, 258 (Tex.App.--El Paso 2015, no pet.) (party signing a contract “is presumed to have read it and grasped its contents and legal effects”).
In turn, the agreement itself reflects mutual promises to arbitrate, which is sufficient consideration to support an arbitration agreement. Wright, 469 S.W.3d at 757 (party’s signature on contract creates a “strong presumption” that the party assented to the contract).
THE ALLEGATIONS FALL WITHIN THE SCOPE OF THE AGREEMENT TO ARBITRATE
Martinez’s suit alleges she injured herself in a workplace accident. The arbitration agreement expressly includes that type of claim as governed by the agreement. Martinez did not contest below, nor on appeal, that her workplace injury claim would fall within the scope of the arbitration agreement. That leaves for our consideration the defenses that Martinez asserted below.5
THE FAA APPLIES
Enforcement of the arbitration agreement first turns on whether the FAA applies. Under Texas law, an arbitration agreement is generally enforceable, but if it governs a personal injury claim, the agreement must be approved by both parties and their attorneys. Southland Corp. v. Keating, 465 U.S. 1, 15-16, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (“In creating a substantive rule applicable in state as well as federal courts, Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements.”) (footnotes omitted).
*6 Section 2 of the FAA provides in pertinent part:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (emphasis supplied). Both below and on appeal, Martinez focuses on the requirement that APC must show a “contract evidencing a transaction involving commerce” to sustain application of the FAA.
The U.S. Supreme Court has interpreted the term “involving commerce” in the FAA “as the functional equivalent of the more familiar term ‘affecting commerce’--words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power.” In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 880 (Tex.App.--El Paso 2005, orig. proceeding) (same).
We note that APC’s motion provided no actual proof, other than the parties contractual recitation, that APC was engaged in interstate commerce. That is, unlike many of the cases where courts have found the FAA to apply, there was no affidavit or other proof that the underlying transaction or employer’s business involved interstate commerce. See e.g. Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956) and argues that a court must focus on the employee’s specific role in interstate commerce.
In Id. at 200-01, 76 S.Ct. 273.
*7 Building on this argument, Martinez also directs us to United States v. Lopez, 514 U.S. 549, 559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (“We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce.”).
Appealing as these arguments may be, we are constrained by precedent to reject them. We previously rejected the In re Border Steel, Inc., 229 S.W.3d at 831 (“[E]ven if no Border Steel employee worked outside the State of Texas, that fact alone would not preclude the company’s affecting interstate commerce.”).
Further, Martinez’s argument that it must be her work that substantially affects interstate commerce has in our view been rejected by the U.S. Supreme Court. Two cases make the point. In Id. at 57-58, 123 S.Ct. 2037.
*8 More recently, the Court decided Id. at 2080.
Likewise, even if Martinez’s role in her company be slight, the company’s business could play a substantial role in commerce and support Congress’s interest in the arbitration of these kinds of disputes. That is essentially our holding in In re Big 8 Food Stores, Ltd., 166 S.W.3d at 880 (rejecting analysis that would look at how individual part-time employee affected commerce).
We conclude here that the trial court could not have rejected the FAA’s application, and thereby invalidate the arbitration agreement under the TAA.6
Martinez also raised below an unconscionability defense. An arbitration agreement might be attacked as either being (1) procedurally unconscionable (referring to the circumstances surrounding the adoption of the arbitration provision) or (2) substantively unconscionable (referring to the fairness of the arbitration provision itself). In re Halliburton Co., 80 S.W.3d 566, 571 (Tex. 2002).
Unconscionability has no precise legal definition because it is not a concept, but a determination made in light of a variety of factors. Delfingen, 407 S.W.3d at 798.7
*9 In deciding whether a contract is procedurally unconscionable, we look to: “(1) the entire atmosphere in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the non-bargaining ability of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable.” Delfingen, 407 S.W.3d at 798.
We begin with several guideposts governing Martinez’s claim. First, the fact that parties would choose arbitration over a judicial forum is of no consequence, because there is nothing per se improper with arbitration; Texas public policy has long favored it. In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 892 (Tex. 2010) (“We should be wary of setting the bar for holding arbitration clauses unconscionable too low.”).
Our cases have focused on circumstances when the employee lacked the means to understand the terms of the agreement and misrepresentations were made about the nature of what they were signing. Cf. ReadyOne Industries, Inc. v. Flores, 460 S.W.3d at 666–67 (same).
Here, there is no fact issue raised about Martinez’s ability to understand the document. She asserted in her affidavit that she has limited English language skills, but the agreement she signed was in Spanish. The only assertion of any misrepresentation is that APC told her the documents were “routine paperwork or documents” that she needed to sign in order to work. According to her: “I was misled into believing that the documents were not important and were just routine documents that the company needed to complete their paperwork on my employment.” The balance of affidavit focuses on what she was not told. The agreement’s title which is all bolded, capitalized, underlined with enlarged fonts, reads: “ACUERDO DE ARBITRAJE Y NOTIFICACIÓN DE NUESTRA POLÍTICA DE ARBITRAJE” (and which translated means “Arbitration Agreement and Notice of Arbitration Policy”). The only affirmative representation that Martinez refers to is that she was told the documents were routine, which may well be true. Her conclusion that they were not important is either her own conclusion, or at best a subjective opinion that could not serve as a misrepresentation of a material fact.
*10 The facts of the case here are similar to those of Id.
Finding no sufficient evidence to sustain a procedural unconscionability claim, we reject that as a potential basis to have denied APC’s motion to compel arbitration.
Martinez also raised below a substantive unconscionability claim, but only in the alternative. That is, she asks that if the trial court was going to enforce the arbitration clause, that it strike three specific parts of the arbitration agreement: (1) a one-year time limit on bringing claims,8 (2) limitations on discovery,9 and (3) a provision that forbids punitive or exemplary damages. The arbitration agreement contains a severability clause that would permit the court to jettison any provision that is adjudged to be “invalid, illegal, or unenforceable, in whole or in part[.]” Martinez carries this argument forward on appeal, asking this Court to strike those same provisions, or remand the matter back to the trial court to reconsider them.
Martinez principally relies on In re Poly-Am., L.P., 262 S.W.3d at 344.
The worker claimed that each of these ancillary provisions were substantively unconscionable. In re Poly-Am., L.P., 262 S.W.3d at 352.
*11 But the same court reached different conclusions on the fee splitting and discovery limitations. Noting that while fee splitting arrangements are not per se unconscionable, the court agreed that those which “operate to prohibit an employee from fully and effectively” vindicating their statutory rights are not enforceable. Id. at 358.
The arbitration agreement in Id.
We must also consider who should decide the unconscionability question. Three cases inform our decision. The U.S. Supreme Court recognized a distinction between questions of “substantive arbitrability”--which courts decide--and “procedural arbitrability”--which courts must refer to the arbitrators to decide. Id. at 81, 123 S.Ct. 588.
The Court reaffirmed that approach more recently in Howsam, 537 U.S. at 86, 123 S.Ct. 588.10
*12 Our supreme court adopted this same view in 458 S.W.3d at 511.
The court’s analysis is straightforward. Who decides disputes “is a question of the parties’ intent as expressed in their written agreement.” G.T. Leach court wrote:
In this case, the contractual deadline in the general contract falls squarely within the category of matters that ‘grow out of the dispute and bear on [the arbitrators’] final disposition of the claims. The deadline does not determine the present existence, enforceability, or scope of the agreement to arbitrate the parties’ disputes, but instead imposes a procedural limit on the parties’ rights under that agreement. It bears on the arbitrators’ final disposition of Sapphire’s claims--specifically, whether the arbitrators can award Sapphire a remedy on its negligence claims in light of Sapphire’s more than two-year delay in asserting them.
Id. at 521(internal cites and quotes omitted).
One-Year Time Limit
Martinez’s injury occurred on May 1, 2016. She first filed suit on November 27, 2017. The first request for arbitration in our record is APC’s motion to compel arbitration filed January 25, 2018. Her suit is timely under the Texas two-year statute of limitations, but perhaps not if the arbitration agreement’s one-year notice provision governs.
G.T. Leach court also wrote:
We do not hold that disputes over a contractual deadline in an arbitration agreement will always present questions of procedural arbitrability that arbitrators must decide. If a party contends, for example, that a contractual deadline renders the agreement to arbitrate unconscionable or that the deadline operates to limit the scope of the claims the parties agreed to arbitrate, those contentions might raise issues of substantive arbitrability for the courts to decide.
Id. at 522.
And that is exactly what Martinez raised in her response below. Moreover, she asserted at least some evidence that might be germane to that claim.
*13 Martinez’s alternative motion to strike the one-year time limit would have come into play, however, only if the trial court had ordered arbitration. Because the trial court declined to order arbitration at all, it necessarily never passed on the question of the one-year time limit. Thus, we are left with two alternatives: decide the question as a matter of first impression, or remand to the trial court for its consideration. We choose the latter course, mainly because unconscionability questions are circumstance dependent and not all the circumstances are developed on this record. Unlike the relatively sophisticated litigants in Serv. Corp. Int’l v. Ruiz, No. 13-16-00699-CV, 2018 WL 549196, at *9 (Tex.App.--Corpus Christi Jan. 25, 2018, pet. denied) (mem. op., not designated for publication) (remanding undecided question of unconscionability defense back to trial court based on the undeveloped record).
Conversely, we reject Martinez’s attack on the punitive damages clause in the arbitration agreement for one simple reason: her last amended petition did not assert any claim for punitive damages. That renders any opinion on the viability of punitive or exemplary damages at this point advisory. To the extent further discovery in the arbitration factually allows for such a claim, the arbitrator can resolve the legality of the remedy limitation.
The arbitration agreement here limits the parties to one fact-witness deposition, but otherwise allows depositions of expert witnesses, the parties, and generally applies the Texas Rules of Civil Procedure. It also allows the arbitrator to relax these rules on a showing of good cause. Limits on discovery in arbitration provisions are typical and explain why arbitration is both quicker and less costly than litigation. See 262 S.W.3d at 357-58. Given that the discovery limitation clause here generally invokes the Texas Rules of Civil Procedure and has a good cause provision allowing the arbitrator to lift any restrictions, we conclude that any argument regarding unconscionability for the discovery limits here should be dealt with by the arbitrator.
APC’s first issue on appeal generally claims that the trial court erred in not granting its motion to compel arbitration. We sustain that issue. APC’s second issue challenges whether Martinez met her burden on raising a valid defense to the arbitration agreement. We sustain that issue, except for the possible issue of whether the one-year time limit is substantively unconscionable and should be severed from the agreement. That specific question is remanded to the trial court to decide consistent with this opinion. After making that decision, the case should be abated or dismissed with an order that the parties pursue arbitration under the terms of their agreement. APC’s third issue asked whether the trial court failed to consider undisputed evidence that arbitration is more cost effective than litigation. We do not consider that argument as part of Martinez’s raised defense below. It is not urged by Martinez as a grounds for affirmance, and even if so, we would reject that claim based both on the record here, and prior decisional law.
The original petition alleged the accident occurred on May 1, 2015, which would have been before the agreement was signed. An amended petition, however, changed that date to May 1, 2016, and the various medical records filed with the court also recite that the latter date as the actual date of injury.
We find the following exchange at the hearing:
THE COURT: You have a document with her signature on it?
[APC COUNSEL]: Yes, Your Honor.
THE COURT: And you’ve got a witness who would say, “Yes, I was there and saw her sign it”?
[APC COUNSEL]: Yes, Judge.
THE COURT: Okay. I mean, I think for now I’m going to find that she did sign it. So I don’t think you need to put on evidence on that issue.
This same trial court had made numerous fact findings on that topic in another case involving other litigants. See In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex.App.--El Paso 2006, no pet.).
Whether the arbitration agreement is governed by the FAA or the Texas Arbitration Act, we have jurisdiction to hear an interlocutory appeal of the denial of a motion to compel arbitration. See TEX.CIV.PRAC. & REM.CODE ANN. § 171.098 (allowing appeal under the TAA).
While Martinez raised a number of defenses below, some have been collapsed together, and some have not been pursued on appeal. For instance, Martinez raised a 10th Amendment argument below that has not been briefed on appeal, likely because the Texas Supreme Court has expressly rejected it. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 423 (Tex. 2010) (orig. proceeding) (“[W]e conclude that the Federal Arbitration Act does not violate the Tenth Amendment by encroaching on a state power to enact and regulate its own workers’ compensation system.”). We appreciate counsel’s focus on the potentially viable remaining issues in the case.
The Supreme Court’s jurisprudence is not without strident dissenting opinions that question the reach of the Congress’s Commerce Clause power and its application to cases filed in state courts. See e.g. Southland Corp. v. Keating] entails a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes.”). Martinez has preserved her challenges to this jurisprudence which we of course have no ability to grant.
The unconscionability defense has a long history at common law; an early decision described an unconscionable contract as one that “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Earl of Chesterfield v. Janssen, 28 Eng. Rep. 82, 100, 2 Ves. Sr. 125, 155 (1751), quoted in Venture Cotton Cooperative v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014).
That provision reads:
One-Year Time Limit on Bringing a Claim: All parties must file a Claim for arbitration within one (1) year after the date of the incident or occurrence giving rise to the Claim. Failure to do so will result in the Claim being barred as at that one-year date. Should this time limitation become unenforceable because of applicable statute or case law, we and you agree the arbitrator may determine the appropriate limitations period in a pre-arbitration hearing, [bolding, underlining and punctuation original]
That clause provides that the Texas Rules of Civil Procedure generally apply, but each party can only depose the opposing party, one fact witness, and any expert designated by the opposing party. The arbitrator can relax this limitation upon a good cause showing.
The Court analogized the file-suit-first-then-wait-18-month requirement to other provisions that it and other courts had delegated to the arbitrators to decide. Lumbermens Mut. Cas. Co. v. Broadspire Management Servs., Inc., 623 F.3d 476, 481 (7th Cir. 2010) (requirement for filing pre-arbitration “Disagreement Notice”).