                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-60870



WOODMEN OF THE WORLD LIFE INSURANCE COMPANY,

                      Plaintiff —— Counter-Defendant —— Appellant,

versus

ROLAND C. LEWIS,

                            Defendant —— Third-Party Plaintiff ——
                                     Counter-Claimant —— Appellee,


versus

MONARCH LIFE INSURANCE COMPANY,

                               Third-Party Defendant —— Appellant.



                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                       No. 3:02-CV-182-WS
                      --------------------

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiff —— Counter-Defendant —— Appellant Woodmen of the

World Life Insurance Society (“Woodmen”) and Third-Party Defendant

—— Appellant Monarch Life Insurance Company (“Monarch”) appeal the



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court’s denial of their motion to compel arbitration.

Woodmen and Monarch seek to enforce what they construe as a binding

agreement to arbitrate against one of its insurance policyholders,

Defendant —— Third-Party Plaintiff —— Counter-Claimant —— Appellee

Roland C. Lewis.    We reverse and render.

                       I.   FACTS AND PROCEEDINGS

     Woodmen is a fraternal benefit society that provides various

insurance benefits to its members.        Roland Lewis is a Woodmen

policyholder.     In 1988, Woodmen issued two policies to Lewis: (1)

a disability overhead policy that provides benefits up to $20,000

per month for a maximum reimbursement of $480,000, and (2) a

disability income policy that provides maximum monthly disability

income of $5,050.    Both policies contain a provision that states,

“The Articles of Incorporation and the Constitution and Laws and

any amendments to them are binding on you and any beneficiary but

will not take away or reduce any of the benefits of this policy.”

     In December 1996, Woodmen amended its Constitution to include

a Problem Resolution Procedure (“PRP”).      Woodmen published the PRP

in the December 1997 issue of the Woodmen magazine, which is mailed

to all members.    The PRP was further publicized in a May-June 1999

article.   Woodmen also filed the amendment with the Mississippi

Department of Insurance, as required by statute. The PRP provides,

in pertinent part:

     Sec. 2.    Resolution of Individual Disputes



                                    2
      (a)    Purpose.    The purpose of this Section 2 is to
             provide opportunities for members and benefit
             certificate owners and beneficiaries to be promptly
             heard and to seek fair resolution of any disputes
             regarding any individual rights or individual
             interests they have or claim to have as members,
             benefit certificate owners or beneficiaries. . .
      (b)    Scope.    This Section 2 shall apply whenever a
             member or benefit certificate owner or beneficiary
             of the Society makes a claim for damages, or claims
             any form of redress for a violation of his or her
             individual rights or a denial of individual
             privileges or benefits which he or she claims as a
             member or benefit certificate owner or beneficiary
             . . . No lawsuit may be filed against the Society
             or any officer, employee or agent of the Society .
             . . until the procedures described herein have been
             exhausted.

      In    August   1999,     Lewis    submitted     a    claim   to   Woodmen   for

disability resulting primarily from dementia. His claims under the

overhead expense policy were for the full twenty-four month period

provided by the policy; he continues to submit claims under the

disability income policy on approximately a monthly basis. Lewis’s

claims      are   administered     by    Monarch      Life    Insurance     Company

(“Monarch”), Woodmen’s third-party administrator.

      Woodmen1 has paid benefits to Lewis under a reservation of

rights for the entire duration of his claim because Lewis has

allegedly     refused   to     provide    sufficient       information    to   allow

Woodmen to determine whether and to what extent it is liable for

Lewis’s benefits.       Following a lengthy exchange of correspondence,

in   which    the    parties     disputed     their       respective    rights    and

      1
        Because Woodmen and Monarch are represented by the same
counsel and advance the same claims, any reference to “Woodmen”
also necessarily encompasses “Monarch.”

                                          3
obligations under both policies, Woodmen brought suit in the

Southern District of Mississippi to compel Lewis to arbitrate his

disability claims. Woodmen’s pleadings contained an alternative

prayer for declaratory judgment as to its liability under the

policy in the event, but only in the event, that the court failed

to compel arbitration.    In opposing Woodmen’s motion to compel

arbitration, Lewis filed a counterclaim against Woodmen and a

third-party complaint against Monarch in which he sought punitive

and other damages for their alleged bad faith handling of his

claims under both policies.

     The district court, ruling only on the motion to compel

arbitration, held that Woodmen’s constitution required arbitration

only as to claims brought by its members, not as to claims Woodmen

brings itself.   The court refused to compel arbitration and ruled

in favor of Lewis.   Woodmen timely filed its notice of appeal.2

                          II. DISCUSSION

     A.   Motion to Compel Arbitration

     1.   Standard of Review

     We review a district court’s denial of a motion to compel

arbitration de novo.3



     2
       Interlocutory appeals from a district court’s denial of a
motion to compel arbitration are permitted pursuant to 9 U.S.C. §
16.
     3
       Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 708 (5th
Cir. 2002) (citations omitted).

                                 4
     2.         Applicable Law

     The Federal Arbitration Act4 liberally favors arbitration and

establishes a strong federal policy that fosters enforcement of

arbitration agreements.5           As arbitration is a matter of contract,

however, a party will not be required to submit a dispute to

arbitration absent an express agreement to do so.6                  To ascertain

whether such an express agreement exists, we consider (1) whether

there is a valid agreement to arbitrate between the parties and (2)

whether the dispute in question falls within the scope of that

arbitration       agreement.7       Doubts    as    to   whether   an   agreement

expressly provides for arbitration are usually resolved in favor of

arbitration.8          We   look    to   ordinary    state-law     principles   of

contract interpretation to decide whether the parties agreed to

arbitrate the dispute in question.9                 If a valid agreement to

arbitrate exists, we then determine whether other legal constraints

foreclose arbitration.10



     4
          9 U.S.C. § 1 et. seq.
     5
       Texaco Exploration & Prod. Co. v. AmClyde Engineered Prods.
Co., 243 F.3d 906, 909 (5th Cir. 2001).
     6
       Pers. Sec. & Safety Sys. v. Motorola, Inc., 297 F.3d 388,
392 (5th Cir. 2002).
     7
          Id.
     8
          Id.
     9
          Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996).
     10
          Id.

                                          5
      Under Mississippi law, courts give undefined contractual terms

their ordinary, everyday meaning.11        Clear, unambiguous contracts

are construed as written,12 and ambiguities as to the meaning of

terms are construed against the drafter.13 In this exercise, courts

are concerned primarily with what the parties said, not what they

intended, as this is the better measure of assigning meaning fairly

and accurately.14

      3.     The Correspondence Claims and Woodmen’s Claims

      The central issue here is whether the PRP requires arbitration

of claims that Woodmen brings, as distinguished from claims brought

by members and policy beneficiaries.         Woodmen contends that the

PRP, incorporated by reference into its contract with Lewis,15

requires arbitration of all disputed claims of its policy holders

and   members,    regardless   of   who   initiates   (or   refrains   from

      11
           Sanderson Farms, Inc. v. Gatlin, 848 So. 2d 828, 836 (Miss.
2003).
      12
       IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d
96, 104 (Miss. 1998).
      13
           Id.
      14
           Sanderson Farms, 848 So. 2d at 836.
      15
       We reject as meritless Lewis’s claim that there exists no
valid agreement to arbitrate between the parties.      There is no
question that the PRP was incorporated into the disability policies
between Woodmen and Lewis. First, both of Lewis’s policies contain
provisions that expressly incorporate “any amendments” —— which the
PRP was —— to Woodmen’s Articles of Incorporation and the
Constitution. Second, there is no record evidence that a majority
of the voting members did not approve the PRP as an amendment to
the Constitution. The district court correctly determined that
there exists a valid agreement to arbitrate between the parties.

                                     6
initiating)     arbitration.       Clearly    equating    the   PRP’s    use   of

“claims” with “lawsuits,” Lewis maintains that the plain language

of the PRP requires arbitration only for claims brought —— actions

filed —— by members or policy holders against the Society and not

for claims brought by the Society against its members.16                Woodmen

counters that reading the PRP to bind Woodmen’s members only and

not itself is a crabbed interpretation of its procedure, which does

not comport with the Woodmen’s fraternal nature or with settled

federal law     favoring    arbitration      and   interpreting      arbitration

clauses expansively.

      The express language of the contract between Lewis and Woodmen

requires arbitration of a member’s claim when that member asserts

a “claim for damages, or claims any form of redress for a violation

of   his   or   her   individual   rights     or   a   denial   of   individual

privileges or benefits which he or she claims as a member or

benefit certificate owner or beneficiary.”             It does not, though it

easily could have, refer to claims brought by Woodmen or even by

“the parties.”        The language of the contract consistently refers

only to claims brought by members and/or beneficiaries.

      16
       Lewis also attacks Woodmen’s motion to compel arbitration
on the merits. Specifically, Lewis argues that Woodmen did not
properly invoke the procedure before asking for arbitration and
that Woodmen did not comply with Lewis’s request for discovery
under the procedure. Woodmen correctly points out that our role
is only to ascertain whether the arbitration clause covers the
claims at issue, not to consider the merits of the case. See Snap-
On Tools Corp. v. Mason, 18 F.3d 1261, 1268 (5th Cir. 1994).
Therefore, we need not consider Lewis’s attacks on Woodmen’s
compliance with its own PRP.

                                      7
      Woodmen points out that Lewis repeatedly asserted claims

against it between February and November 2001 in the correspondence

between his counsel and Woodmen’s counsel.               Lewis counters by

arguing that he never made a claim against Woodmen because he had

no need to do so —— Woodmen consistently paid his disability

benefits, albeit under a reservation of rights.                  This is not

entirely so.     The correspondence in the record demonstrates, inter

alia, a dispute over the timeliness of Woodmen’s payment of Lewis’s

benefits.    Lewis repeatedly asked that Woodmen tender to him the

$5,050 in individual disability benefits that were due at the

beginning of each month.           Lewis also disputed Woodmen’s right to

have a third-party —— Monarch —— adjust or administer Lewis’s

claims.     In addition, Lewis continually insisted that the “bad

faith actions by Woodmen of the World cease and desist.”               Lewis’s

references      to   bad   faith   actions   targeted   Woodmen’s     repeated

requests for further medical evidence to support Lewis’s claims of

dementia.       And, Lewis asserted to Woodmen that because it was

paying his benefits under a reservation of rights, it would be

liable for his attorneys’ fees: “Request is further made that

Woodmen of the World inform Roland Lewis that it will pay all

reasonable attorney’s fees to date as necessitated by Woodmen of

the   World’s    continuing    assertion     of   ‘Reservation   of   Rights,’

including possible demand for repayment.”

      Lewis’s repeated demands in the correspondence to Woodmen fit

well within the PRP’s definition of “claim[ing] any form of redress

                                        8
for a violation of his or her individual rights or a denial of

individual privileges or benefits which he or she claims as a

member or benefit certificate owner or beneficiary.”17                 We do not

read the policy language —— “claims for damages” or “claims any

form of redress” —— so narrowly as to require a legal claim, i.e.,

Lewis did not have to file suit first for his claims to fall within

the language of the PRP.18           Lewis’s claims —— his repeated requests

for   “redress”       as   a   benefit    policyholder    ——   generated    this

protracted dispute with Woodmen. The effect of Lewis’s behavior in

continuing to make claims without either filing suit or invoking

arbitration forced Woodmen’s hand: Lewis left Woodmen no choice but

to seek judicial constraint to compel arbitration of claims that it

disputed with Lewis. This in turn required Woodmen to include its

own claims against Lewis in the event that arbitration was not

compelled.

      Bearing    in    mind    the    strong   federal   policy   in   favor   of

arbitration, and our duty to resolve doubts of an arbitration

clause’s coverage in favor of arbitration, we hold that Lewis’s

demands clearly fall within the meaning of “claims” as used in the

PRP and that the district court erred when it denied Woodmen’s

      17
           Emphasis added.
      18
        Our conclusion is buttressed by the broad language in
Section 2(a) of the PRP entitled “Purpose:” “The purpose of this
Section 2 is to provide opportunities for members and benefit
certificate owners and beneficiaries to be promptly heard and to
seek fair resolution of any disputes regarding any individual
rights . . . .” (emphasis added).

                                          9
motion to compel arbitration. Accordingly, we reverse the district

court’s denial of Woodmen’s motion to compel arbitration, and we

render judgment compelling arbitration of the dispute between

Woodmen and Lewis.

      4.      Counterclaim and Third-Party Complaint

      Woodmen explains that the claims that Lewis now proffers in

his counterclaim against Woodmen and his third-party complaint

against Monarch, are the very claims that must be arbitrated.19

Lewis tries to avoid this by explaining that he was required by the

Federal Rules of Civil Procedure to assert mandatory counter claims

and   third    party   claims   in    a   civil   proceeding,   lest   he   risk

forfeiting those claims.20

      Although the district court did not reach this issue because

it denied Woodmen’s motion to compel on the basis of Woodmen’s

claims only, we find the record before us complete as to this

question.        Thus,   a   remand       would   only   prolong   unnecessary




      19
       A non-signatory party to an agreement may compel arbitration
against a signatory party if the events in dispute are covered by
the arbitration agreement.     Monarch may thus properly request
arbitration of Lewis’s claims against it. See Texaco Exploration
& Prod. Co. v. AmClyde Engineered Prods. Co., 243 F.3d 906, 909
(5th Cir. 2001).
      20
       See Fed. R. Civ. P. 13(a), 14. See also Montgomery Elevator
Co. v. Building Engineering Servs. Co., 730 F.2d 377, 380 (5th Cir.
1984).    Rule 14 does not compel Lewis to file a third-party
complaint against Monarch, though it is certainly in his interests
to do so.

                                          10
litigation.21   Lewis’s counterclaim against Woodmen and his third-

party complaint against Monarch, for “all sums due him under the

certificates of insurance,” punitive damages, and attorneys’ fees,

are indisputably “claims for damages” and claims for redress under

the PRP. Further, Lewis has cited to no legal authority —— and we

have found none —— to support the argument that an otherwise

arbitrable   claim   becomes   non-arbitrable   simply    because   it   is

asserted as a compulsory counterclaim under the Federal Rules of

Civil Procedure.     Indeed, such a contention is illogical as well,

inasmuch as these are the very “claims” that required Woodmen to

seek to compel arbitration in the first place.      Accordingly, Lewis

must arbitrate his counterclaim and his third-party claims.

     5.   Unconscionability and Waiver

     Lewis also argues that the PRP is unconscionable and that

Woodmen waived its right to compel arbitration.          As Lewis did not

raise the issue of unconscionability in the district court, we will

not consider it.22    Neither shall we consider the issue of waiver.


     21
       See, e.g., Matter of Zedda, 103 F.3d 1195, 1206 (5th Cir.
1997) (“This conclusion follows as a matter of law from the
undisputed documents and testimony, rendering remand for further
finding unnecessary.”).
     22
        In re Fairchild Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir.
1993) (“In short, the argument must be raised to such a degree that
the trial court may rule on it . . . The argument here was not even
identified by name, much less advocated.”); United States v.
Drobny, 955 F.2d 990, 995 (5th Cir. 1992) (“As a general principle
of appellate review, this Court will not consider a legal issue or
theory not presented to the [federal district court].” (citations
and quotations omitted)).

                                   11
Although     Lewis   perfunctorily       raised    waiver    as   an   affirmative

defense in his answer to Woodmen’s complaint, he failed to brief

the issue in his Answer to Motion to Compel Arbitration before the

district court.23

                                III. CONCLUSION

      When we step back from Woodmen’s and Lewis’s individually-

asserted claims and analyze them in a broader context, we see that

Woodmen’s claims against Lewis, and Lewis’s claims against both

Woodmen and Monarch, are nothing more than opposite sides of the

same coin.      In other words, the individual claims form part of a

larger, all-encompassing and protracted dispute over Lewis’s claim

for   disability     benefits     that    began     and     evolved    during   the

correspondence between the parties.           Even though we recognize that

the parties, through cautious lawyering, preserved their claims

judicially once Woodmen filed suit, it is not the individual claims

as such that we send to arbitration but the entire dispute over

Lewis’s claim for benefits.

      We reverse the district court’s order denying Woodmen’s motion

to compel arbitration of its claims against Lewis and render

judgment for Woodmen, compelling Lewis to arbitrate these matters.

Our reversal of the district court includes reversal of its order

denying     Woodmen’s   motion     to     compel    arbitration        of   Lewis’s




      23
           Drobny, 955 F.2d at 995.

                                         12
counterclaim and third-party claims, and we hold that these claims

are part and parcel of the dispute to be arbitrated.

REVERSED AND RENDERED.




                               13
