Arbitration – Waiver – Motion to Compel – Interlocutory Appeal – Substantial Right

Rodrigues v. Southern Assisted Living, Inc. (Lawyers Weekly No. 10-16-1066, 7 pp.) (Robert N. Hunter Jr., J.) Appealed from Union County Superior Court (W. Erwin Spainhour, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: By making use of judicial discovery procedures, the defendants waived their right to compel arbitration; therefore, the trial court did not err when it denied their motion to stay proceedings and compel arbitration.

Affirmed.

Facts

The plaintiff sued the defendants alleging that they were negligent in providing care and medical services to her mother.

The defendants filed an answer and served interrogatories on the plaintiff before filing a motion to stay proceedings and compel arbitration. The trial court denied the motion.

The defendants appealed.

Analysis

An order denying arbitration is immediately appealable because it involves a substantial right that may be lost if the appeal is delayed.

A party waives arbitration when it engages in conduct inconsistent with arbitration which results in prejudice to the party opposing arbitration.

A party has been prejudiced if the party takes steps in litigation to its detriment or expends significant amounts of money on the litigation, or its opponent makes use of judicial discovery procedures not available in arbitration.

Here, the defendants served four interrogatories pursuant to N.C. R. Civ. P. 9(j), seeking detailed information regarding the plaintiff’s expert, her background and qualifications and any data or information considered by her, along with her opinions about the case.

The plaintiff answered these interrogatories, which required the assistance of her expert, and cost the plaintiff $750.

The defendants clearly made use of judicial discovery procedures and therefore have waived any right they may have had to compel arbitration.

The trial court did not err by ruling that the defendants waived their right to arbitration. Accordingly, we affirm the order of the trial court allowing the litigation to proceed.

Affirmed.