                      IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                            April 8, 2004, Session Heard at Charlotte1


       LARRY EUGENE BENTON v. THE VANDERBILT UNIVERSITY

                Appeal by Permission from the Court of Appeals, Middle Section
                              Circuit Court for Davidson County
                           No. 99C-1906    Carol L. Soloman, Judge



                         No. M2002-00085-SC-R11-CV - Filed June 28, 2004


ADOLPHO A. BIRCH , JR., J., dissenting.

       Because I am firmly convinced that Benton cannot be forced into arbitration according to the
terms of the contract under submission, I respectfully dissent from the holding of a majority of my
colleagues.

         The arbitration provision in this case provides that “[i]f a dispute . . . arises between the
parties of this Agreement involving a contention by either party that the other has failed to perform
its obligations and responsibilities under this agreement” (emphasis added), then after following the
proper procedure, the parties shall submit to binding arbitration. The language of this provision
clearly indicates that there are two parties bound to this agreement–Vanderbilt and Blue Cross.

        In a similar case, Rath v. Managed Health Network, Inc., the arbitration provision of the
contract provided that any controversy “between the parties to this Agreement” shall be submitted
to binding arbitration if the parties are unable to settle the controversy informally. 844 P.2d 12, 12-
13 (Idaho 1992) (emphasis added). The Idaho Supreme Court held that because the third-party
beneficiaries did not sign the contract and were not listed in the contract as “parties,” they could not
be forced to arbitrate their claims. Id. at 13. The Idaho court held that “the language in the
Agreement expressly limit[ed] the arbitration clause to the ‘parties’ to the Agreement.” Id.

       I agree with the reasoning in Rath. In the instant case, Benton was not a “party” to the
contract; thus, he could not be forced to submit to arbitration. In addition, “[u]nder the Uniform
Arbitration Act, the law is clear that persons who are not parties to an arbitration agreement cannot
be compelled to participate in arbitration.” City of Peru v. Ill. Power Co., 630 N.E.2d 454, 457 (Ill.
App. Ct. 1994).


        1
          Oral argument was heard in this case on April 8, 2004, in Charlotte, Dickson County, Tennessee, as part of
this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
       While I do not suggest that a third-party beneficiary may never be compelled to arbitrate, the
language in this contract clearly limits arbitration to the “parties” of the contract. Because Benton
was never listed nor referred to in the contract as a “party,” he should not be forced into arbitration.
“Because ‘arbitration is a matter of contract[,] . . . a party cannot be required to submit to arbitration
any dispute which he has not agreed so to submit.’” Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9
S.W.3d 79, 84 (Tenn. 1999) (quoting AT & T Techs., Inc. v. Communications Workers of Am., 475
U.S. 643, 648, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986)); see also EEOC v. Waffle House, Inc., 534
U.S. 279, 294, 122 S. Ct. 754, 151 L. Ed. 2d 755 (2002) (recognizing that the Federal Arbitration
Act ("FAA") does not require parties to arbitrate when there is no agreement to do so, despite the
general federal policy favoring arbitration).

       Accordingly, and based upon the foregoing, I am unable to concur in the holding of the
majority.



                                                ___________________________________
                                                ADOLPHO A. BIRCH, JR., JUSTICE




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