Bits & Pieces

Ayala v. Fundamental Labor Strategies, Inc.

See Pa. Commonwealth Court Internal Operating Procedures, Sec. 414 before citing.

Commonwealth Court of Pennsylvania.

Wilfredo Ayala, Petitioner

Fundamental Labor Strategies, Inc. (Workers’ Compensation Appeal Board), Respondent

No. 1037 C.D. 2022

Submitted: April 28, 2023

FILED: January 2, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

STACY WALLACE, Judge

*1 Wilfredo Ayala (Claimant) petitions for review of the order of the Workers’ Compensation Appeal Board (Board) dated August 31, 2022, which affirmed the decision and order of a workers’ compensation judge (WCJ), circulated February 16, 2022 (WCJ’s Decision). On appeal, Claimant argues it was error for the Board to affirm the WCJ’s finding he was an independent contractor at the time of his injury and, therefore, not entitled to workers’ compensation (WC) benefits. After review, we affirm the Board’s order.

BACKGROUND

Claimant, a commercial truck driver, began working as a delivery driver for Fundamental Labor Strategies, Inc. (FLS) in March 2019. Certified Record (C.R.), Item No. 13. On February 17, 2021, Claimant filed a claim petition alleging on February 6, 2020, he sustained a lumbar disc injury while unloading a window during the course and scope of his employment with FLS. Id. Claimant then filed a petition for penalties alleging FLS violated the Pennsylvania Workers’ Compensation Act¹ by failing to timely file Bureau of Workers’ Compensation documents accepting or rejecting liability for his work injury. Id. Claimant filed an additional claim petition alleging that also on February 6, 2020, he sustained adjustment disorder with anxious and depressed mood and chronic pain syndrome from his work injury. Id. After each of Claimant’s filings, FLS filed an answer denying an employment relationship with Claimant.

In support of his two claim petitions, Claimant testified FLS was not a motor carrier, and explained FLS sent him to different driving assignments with various clients. Id. After finishing his previous assignment, FLS emailed Claimant his assignments for the next day, which included the required arrival time, the address, and the items he was to deliver. Id. Claimant first testified he was permitted to accept or reject assignments, but later testified he did not feel he could decline an assignment. Id. When carrying out an assignment, Claimant received routing instructions from the motor carrier, and he drove trucks owned by the clients. Id.

Regarding his employment relationship with FLS, Claimant understood FLS treated him as an independent contractor, and he had worked as an independent contractor for other companies. Id. Claimant testified FLS provided him a hat with FLS’s logo, but he was not required to wear it. Id. Claimant never drove a truck owned by FLS or displaying FLS’s logo. Id. FLS paid Claimant by check and Claimant understood FLS made no tax deductions, and he was responsible for paying his own taxes. Id. Claimant admitted he signed an independent contractor occupational accident insurance enrollment form in March 2019, but claimed he did not understand FLS would take deductions from his pay for the insurance. Id.

In response, Curtis Ball (Ball), the president of FLS, testified FLS is a transportation broker with two brokerage services. Id. FLS offers a dedicated driver service, which private motor carriers use to haul their own goods, rather than hauling another’s goods for a fee. Id. Ball testified FLS considers dedicated service drivers employees of FLS and closely manages them. Id. FLS dictates the assignments and hours of dedicated service drivers, and these drivers are required to report to work to perform their assignments. Id. The dedicated service drivers receive life insurance, disability insurance, and health benefits, and are subject to FLS’s internal rules and regulations. Id. They also receive W2 tax forms. Id.

*2 Ball explained the other service offered by FLS is the flex driver brokerage service. Id. This service matches motor carriers having a short term need for a driver with drivers who want to work. Id. These assignments can range from a day to a week or a month. Id. Ball indicated flex drivers determine how much they want to work. Id. The flex drivers transport themselves to the clients’ locations and drive the clients’ vehicles. Id. The client provides any trip sheet or routing information. Id. The motor carrier or shipper sets the start time for the job and the number of stops to be made during the assignment. Id. Flex drivers are paid a flat fee and receive a 1099 tax form. Id. Flex drivers are free to accept or reject assignments. Id. In order to provide flex drivers with as much information as possible to make decisions about accepting assignments, FLS obtains as much information about the assignment from the client as possible including the work days available, the start times, the equipment that will be operated, the number of deliveries to be made, whether the equipment is temperature controlled, the type of transmission in the vehicle, and any other relevant information. Id. There are no repercussions if a flex driver rejects an assignment. Id. Additionally, flex drivers are permitted to drive for other companies. Id.

Regarding Claimant’s work with FLS, Ball testified Claimant was a flex driver and received driving assignments from FLS in 2019 and 2020. Id. Claimant executed a W2 in July 2018 on which he indicated he was a sole proprietor or LLC. Id. Additionally, Ball testified Claimant executed an application for independent contractor occupational accident insurance. Id. In his testimony, Ball explained flex drivers provide FLS with proof they are insured so FLS knows the driver is covered in the event of a loss, but FLS does not provide coverage or require specific accident insurance coverage for flex drivers. C.R., Item No. 26. Ball testified that as a flex driver, Claimant was permitted to accept or reject assignments, and he had documentation Claimant rejected 11 assignment offers. C.R., Item No. 13. There were no repercussions for Claimant rejecting the assignments. Id.

Based on the testimony presented, the WCJ found Claimant did not establish an employment relationship with FLS and dismissed Claimant’s claim petitions and petition for penalties. Id. The WCJ noted that to the extent “Claimant and [Ball’s testimony] differs, [Ball’s] testimony is accepted as credible, particularly where he testified that there were at least 11 instances of refused assignments, but ongoing assignments offered to Claimant.” Id. The WCJ found Ball’s testimony regarding the flex driver program crucial in establishing Claimant was an independent contractor rather than FLS’s employee. Id.

Claimant appealed to the Board. Ultimately, the Board determined the WCJ did not err in finding Claimant was an independent contractor. C.R., Item No. 16. The Board rejected Claimant’s challenges to the WCJ’s weight and credibility determinations, which determinations are binding on appeal. Id. Noting the WCJ’s findings were supported by substantial, competent evidence, the Board affirmed the WCJ’s Decision. Id.

Claimant now petitions this Court for review of the Board’s order. On appeal, Claimant argues the Board erred in concluding he was an independent contractor at the time of his injury. Claimant’s Br. at 10. Specifically, Claimant contends he was not an independent contractor because FLS exercised control over his work. Id. at 18. In response, FLS contends the Board properly affirmed the WCJ’s Decision as substantial evidence supported the WCJ’s finding Claimant was an independent contractor. FLS’s Br. at 6.

DISCUSSION

Our review in WC appeals is limited to “determining whether the WCJ’s findings of fact were supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d 1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021). Relevant to this appeal, the question of whether an employee-employer relationship exists is a question of law subject to our plenary, de novo review. Am. Rd. Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d 603, 610-11 n.6 (Pa. Cmwlth. 2012). However, where substantial evidence supports the WCJ’s findings, we defer to those findings as the WCJ is the ultimate fact finder in workers’ compensation cases and “has exclusive province over questions of credibility and evidentiary weight.” Anderson v. Workers’ Comp. Appeal Bd. (Penn Ctr. for Rehab.), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). The WCJ is free to accept or reject the testimony of any witness, Edward v. Workers’ Compensation Appeal Board (Epicure Home Care, Inc.), 134 A.3d 1156, 1161 (Pa. Cmwlth. 2016), and this Court is bound by those credibility determinations. A&J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013).

*3 For a claimant to receive WC benefits, the claimant must prove an employer-employee relationship exists because “[a]n independent contractor is not entitled to benefits.” Universal Am-Can v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 330 (Pa. 2000). Whether an employer-employee relationship exists depends on the unique facts and circumstances of each case. 3D Trucking v. Workers’ Comp. Appeal Bd. (Fine and Anthony Holdings Int’l), 921 A.2d 1281 (Pa. Cmwlth. 2007). In considering whether a claimant is an independent contractor versus an employee, we consider many factors, including:

(1) control of manner the work is done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) nature of the work/occupation; (5) skill required for performance; (6) whether one is engaged in a distinct occupation or business; (7) which party supplies the tools/equipment; (8) whether payment is by time or by the job; (9) whether work is part of the regular business of employer; and, (10) the right to terminate employment.

Am. Rd. Lines, 39 A.3d at 611 (internal citation omitted). While no factor is dispositive, control over the work and the manner it is performed are primary factors in determining employment status. Universal Am-Can, 762 A.2d at 333. Where an alleged employer has the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance, and the power to control the employee, there is sufficient control to establish an employer-employee relationship. 3D Trucking, 921 A.2d at 1288. Additionally, payment of wages and payroll deductions are a significant consideration, as is a tax filing noting self-employment. Id. See also Guthrie v. Workers’ Comp. Appeal Bd. (The Travelers’ Club, Inc.), 854 A.2d 653, 662-63 (Pa. Cmwlth. 2004).

Because of the relationships among drivers, owner-operators and motor carriers and the thorough regulation of them, the trucking industry presents unique challenges in determining whether an employer-employee relationship exists. Am. Rd. Lines, 39 A.3d at 611. In these cases, in addition to the previously outlined factors, we also consider the degree of supervision and control over delivery routes and the timing of work or schedule. Id.

Here, the WCJ analyzed and weighed the testimony and each of the WCJ’s findings are supported by evidence in the record. See generally C.R., Item No. 13. Accordingly, we conclude substantial evidence supports the WCJ’s factual findings about Claimant’s employment relationship with FLS. Because the Board is bound by the same standard of review we are, it did not err in reaching the same conclusion.

Turning to the WCJ’s legal conclusion Claimant was an independent contractor, we note the WCJ rejected Claimant’s testimony to the extent it conflicted with Ball’s testimony. Ball testified Claimant had no guarantee of work and was free to refuse work or even work for another company. He also testified FLS paid Claimant by check and took no tax deductions, instead FLS provided Claimant a Form 1099 and he was responsible for paying his own taxes. As to the amount of control, FLS provided Claimant with assignments and information from the client about pick-up and drop-off locations. While requests about the manner of work may have come from the clients, FLS did not dictate to Claimant which assignments to accept, how to complete the assignments, what routes to travel, and what times to drive each day or for how long. FLS did not provide a uniform or the vehicles for Claimant to drive, nor did FLS train Claimant. While none of these facts are individually dispositive, taken as a whole, these findings reflect Claimant controlled the time and manner of his work, primarily by his ability to accept or reject assignments.

*4 In analyzing the WCJ’s legal conclusion Claimant was an independent contractor at the time of his injury, the Board explained:

Herein, the WCJ credited the testimony of Claimant and [Ball] that Claimant signed an independent contractor occupational accident insurance form so he would have his own insurance in the case of an accident since he was treated as an independent contractor with [FLS] similar to his prior independent contractor driving jobs. Additionally, the credible testimony of Claimant and [Ball] supports the Claimant did not drive [FLS’s] truck, since [FLS] did not own any trucks, trailers, or warehouses, and the hat provided by [FLS] with the company logo on it was a gift which was not required to be worn by Claimant during driving assignments as a uniform. Moreover, the credible testimony establishes that [FLS] had no control over Claimant’s daily routes, starting or ending times, etc., and that Claimant was entitled to, and in fact took advantage of, rejecting job assignments without repercussions. This credible evidence constitutes substantial evidence to support the WCJ’s finding that Claimant was an independent contractor rather than an employee for [FLS] based on the terms of the agreement that Claimant would be an independent contractor for [FLS], that [FLS] did not supply Claimant’s tools to perform his job, and [FLS] did not retain control [over] the manner of Claimant’s driving on assignments. Consequently, the WCJ properly determined Claimant failed to meet his burden establishing an employment relationship with [FLS].

C.R., Item No.16. We agree with the Board’s determination.

CONCLUSION

Because this Court may not reweigh the evidence or second-guess the WCJ’s credibility determinations, and because substantial evidence in the record supports the WCJ’s findings of fact and conclusions of law, we discern no error by the Board in affirming the WCJ’s Decision Claimant was an independent contractor. As an independent contractor, Claimant was not entitled to WC benefits. Accordingly, we affirm the Board’s Order.

Judge Fizzano Cannon did not participate in the decision of this case.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilfredo Ayala, Petitioner

Fundamental Labor Strategies, Inc. (Workers’ Compensation Appeal Board), Respondent

No. 1037 C.D. 2022

ORDER

AND NOW, this 2nd day of January 2024, the Order of the Workers’ Compensation Appeal Board dated August 31, 2022, is AFFIRMED.

STACY WALLACE, Judge

All Citations

Footnotes

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

End of Document

J.B. Hunt Transp., Inc. v. Lester

Court of Appeals of Texas, Second District, Fort Worth

June 8, 2023, Decided

No. 02-23-00035-CV

Reporter

2023 Tex. App. LEXIS 3967 *; 2023 WL 3876758

J.B. HUNT TRANSPORT, INC., Appellant v. KIM LESTER, Appellee

Prior History: [*1] On Appeal from the 415th District Court Parker County, Texas Trial Court No. CV22-1664.

Core Terms

arbitration, trial court, arbitration agreement, motion to compel arbitration, signature, exemption, parties, scope of arbitration, benefits, delegated, waived, compel arbitration, injuries, courts

Case Summary

Overview

HOLDINGS: [1]-Where appellant appealed the denial of its motion to compel arbitration of personal injury claims, appellant met its burden to establish the existence of a valid arbitration agreement because appellant’s signed copy of the arbitration agreement established a prima facie valid arbitration agreement; [2]-Appellee’s arguments were waived under Tex. R. App. P. 33.1(a) because she first asserted them in her appellate brief and not at trial; [3]-The trial court abused its discretion in denying appellant’s motion to compel arbitration because appellant satisfied its two-pronged burden to establish both the existence of a valid arbitration agreement and that the disputed claims fell within the scope of that agreement. Appellee failed under Tex. R. App. P. 33.1(a), to timely raise a valid defense to the agreement’s enforcement.

Outcome

Judgment reversed and remanded.

LexisNexis® Headnotes

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Judicial Review

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Orders to Compel Arbitration

HN1 Alternative Dispute Resolution, Judicial Review

An appellate court reviews a trial court’s decision to deny a motion to compel arbitration for abuse of discretion. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Evidence > Burdens of Proof > Allocation

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Orders to Compel Arbitration

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN2 Arbitration, Arbitrability

A party seeking to compel arbitration bears the burden to establish (1) the existence of a valid arbitration agreement and (2) that the disputed claims fall within the scope of that agreement. If the party seeking arbitration meets its two-pronged burden to establish the agreement’s validity and scope, then the burden shifts to the party opposing arbitration to raise a valid defense to the agreement’s enforcement, and absent evidence supporting such a defense, the trial court must compel arbitration.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Judicial Review

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN3 Arbitration, Arbitrability

A trial court’s determinations as to whether a valid arbitration agreement exists and whether the claims fall within the scope of an arbitration agreement are legal determinations subject to de novo review. Similarly, all gateway matters are questions of law that an appellate court reviews de novo. If no findings or conclusions were entered, an appellate court must uphold the trial court’s decision on any appropriate legal theory urged below. Yet, as a corollary, the appellate court is limited to considering the grounds presented to the trial court by the party resisting arbitration.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Evidence > Burdens of Proof > Allocation

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN4 Arbitration, Arbitrability

Because arbitration is a matter of contract, courts must first decide whether a valid arbitration agreement exists. The party seeking arbitration has the burden to establish the existence of a valid arbitration agreement.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN5 Arbitration, Arbitrability

Generally, a written arbitration agreement is prima facie valid and must be enforced unless the opposing party alleges and proves that the arbitration clause itself was a product of fraud, coercion, or such grounds as exist at law or in equity for the revocation of the contract. In addition, the uncontested existence of the non-movant’s signature on an arbitration agreement meets the evidentiary standard necessary to prove the prima facie existence of an arbitration agreement.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

HN6 Reviewability of Lower Court Decisions, Preservation for Review

A party should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Labor & Employment Law > … > Conditions & Terms > Arbitration Provisions > Enforcement

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

HN7 Arbitration, Arbitrability

The Texas Supreme Court has never held that the employer must sign the arbitration agreement before it may insist on arbitrating a dispute with its employee. Neither the Federal Arbitration Act nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

HN8 Arbitration, Arbitrability

A dispute over whether parties agreed to resolve their controversies through arbitration—referred to as a dispute over the controversies’ “arbitrability”—typically encompasses three distinct disagreements: (1) the merits of the underlying controversy; (2) whether the merits must be resolved through arbitration instead of in the courts; and (3) who (a court or the arbitrator) decides the second question. The second question must be answered before the first, but the third must be answered before the second.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN9 Arbitration, Arbitrability

As a general rule, an agreement to arbitrate in accordance with the American Arbitration Association or similar rules constitutes a clear and unmistakable agreement that the arbitrator must decide whether the parties’ disputes must be resolved through arbitration.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Conditions Precedent

HN10 Arbitration, Arbitrability

Whether certain claims are barred by res judicata should be referred to the arbitrator. Issues of substantive arbitrability are for a court to decide, and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide. Courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration, including the satisfaction of prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Evidence > Burdens of Proof > Allocation

HN11 Arbitration, Arbitrability

In determining the arbitrability of a claim, once the questions of validity and scope are resolved affirmatively, the court then considers whether any statute or policy renders the claims non-arbitrable. The party seeking to invalidate an arbitration agreement bears the burden of proof on these matters.

Admiralty & Maritime Law > Arbitration > Federal Arbitration Act

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Scope

HN12 Arbitration, Federal Arbitration Act

The Federal Arbitration Act does not apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. 9 U.S.C.S. § 1.

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Orders to Compel Arbitration

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

Labor & Employment Law > … > Conditions & Terms > Arbitration Provisions > Enforcement

HN13 Federal Arbitration Act, Orders to Compel Arbitration

As a general rule, a party is required to present a complaint to the trial court before being allowed to raise the complaint on appeal. Tex. R. App. P. 33.1. A party must present argument to the trial court or the argument is waived and cannot be considered for the first time on appeal. Regarding waiver of the 9 U.S.C.S. § 1 exemption, the Dallas Court of Appeals has summarized the applicable law in this area: Texas courts have held that an objection to arbitration under the 9 U.S.C.S. § 1 exemption from arbitration, must be raised before the trial court rules on a motion to compel arbitration. In determining whether an employee is a transportation worker for purposes of the 9 U.S.C.S. § 1 exclusion, appellate courts review affidavit and live testimony as well as other evidence presented to the trial court. Differentiating transportation workers from those who only incidentally aid in the transport of goods is a fact intensive inquiry.

Counsel: For Kim Lester, Appellee: Bonan Link, Stephen Burris.

For J.B. Hunt Transport, Inc., Appellant: Michael C. Wright, David F. Johnson.

Judges: Before Sudderth, C.J.; Birdwell and Womack, JJ. Memorandum. Opinion by Justice Womack.

Opinion by: Dana Womack Justice

Opinion

MEMORANDUM OPINION

I. Introduction

In one issue, Appellant J.B. Hunt Transport, Inc. appeals the denial of its motion to compel arbitration of personal injury claims by Appellee Kim Lester, an employee of J.B. Hunt who was driving a tractor trailer “in tandem” with another employee-driver but who was resting when her injuries occurred. We will reverse and remand.

II. Background

On November 3, 2020, Lester was an employee of J.B. Hunt, but as alleged in her pleadings, “was not on the clock or within the course and scope of her employment” because her shift had ended and Brian McCarthy had “swapped positions as driver and operator of the tractor trailer and assumed the role of driver.” Shortly after McCarthy began driving and Lester had moved to the sleeping compartment, McCarthy performed a “hard br[ake],” causing Lester “to fly forward and collide with the metal barrier [*2] between the driving area and the resting area.” Almost two years later, Lester filed suit against J.B. Hunt and McCarthy¹ for her injuries.

J.B. Hunt answered the lawsuit and filed a plea in abatement and motion to compel arbitration. Attached to the motion were the “relevant page[s]” of the “J.B. Hunt Texas Injury Benefit Plan” (the Plan). It contained what purported to be the signatures of Lester and an unidentified person representing J.B. Hunt. The Plan required that arbitration be administered by the American Arbitration Association (AAA) and that the Federal Arbitration Act (FAA) “govern the interpretation, enforcement, and proceedings under the arbitration provisions of [the] Plan.”

As relevant to this appeal, the Plan contained the following provisions:

The Employer hereby adopts a mandatory company policy requiring that the following claims or disputes must be submitted to final and binding arbitration under this Appendix: . . . any legal or equitable claim by or with respect to an Employee for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma . . . .

The determination of whether a claim is covered by this Appendix shall also [*3] be subject to arbitration under this Appendix. Neither an Employee nor an Employer shall be entitled to a bench or jury trial on any claim covered by this Appendix. . . . This binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute.

. . . .

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this agreement including, but not limited to, any claim that all or any part of this agreement is void or voidable.

In the paragraph before the signature lines, the signer acknowledged that the plan included a mandatory company policy requiring that “claims or disputes relating to the cause of an on-the-job injury” be submitted to an arbitrator. Two sentences before the signature lines and in bold type were the following words: “I understand that the arbitrator, and not a judge or jury, has the exclusive authority to resolve any dispute about the enforceability of this arbitration.”

In her response to the motion, Lester argued that her claims did not fall within the scope of the arbitration agreement because she [*4] was not within the course and scope of her employment at the time of her injuries. To support her argument, she pointed to the definition of “Course and Scope of Employment” contained in the Plan: “an activity of any kind or character for which the Participant was hired and that has to do with, and originates in, the work, business, trade or profession of an Employer, and that is performed by a Participant in the furtherance of the affairs or business of an Employer.” According to the Plan, the term does not include “any injury occurring before the Participant clocks in or otherwise begins work for an Employer or after the Participant clocks out or otherwise ceases work for an Employer.” Also in her response, Lester noted that, had J.B. Hunt accepted her claim for benefits under the Plan, she may not have needed to file suit. The only evidence attached to her response was a letter from the Plan’s administrator denying Lester’s claim for benefits. The letter stated that benefits were denied (1) for failure to timely report the injury as required by the Plan and (2) for insufficient evidence to support an accident or injury in the course and scope of employment.

At the non-evidentiary [*5] hearing on the motion,² Lester did not challenge the validity of the agreement. Rather, she referred to the letter attached to her response and argued that, based on the denial of benefits under the Plan, arbitration was not required. Lester’s attorney also noted that “to protect the statute of limitations, a concurrent arbitration” had been filed with the AAA. J.B. Hunt argued that Lester did not contest the arbitration agreement and that the only issue before the court was determining whether the claim fell within the scope of the arbitration agreement. Further, J.B. Hunt asserted that the trial court did not have the authority to make the scope determination as that issue should be sent to arbitration. At the conclusion of the hearing, the trial court took the matter under advisement. Later, the trial court signed an order denying the plea in abatement and the motion to compel arbitration. J.B. Hunt appeals from that order. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016, 171.098(a)(1); see also 9 U.S.C. § 16(a)(1)(B), (C).

III. Discussion

In one issue, J.B. Hunt complains that the trial court erred in denying its motion to compel arbitration “because the trial court’s order permits Lester to continue to litigate her claims in derogation of a broadly-worded, [*6] mandatory arbitration provision” in the Plan.

A. Standard of Review

HN1 We review a trial court’s decision to deny a motion to compel arbitration for abuse of discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

HN2 A party seeking to compel arbitration bears the burden to establish (1) the existence of a valid arbitration agreement and (2) that the disputed claims fall within the scope of that agreement. Wagner v. Apache Corp., 627 S.W.3d 277, 284 (Tex. 2021); see J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); see also Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, No. 21-0783, 2023 Tex. LEXIS 407, 2023 WL 3398584, at *5 (Tex. May 12, 2023). If the party seeking arbitration meets its two-pronged burden to establish the agreement’s validity and scope, then the burden shifts to the party opposing arbitration to raise a valid defense to the agreement’s enforcement, and absent evidence supporting such a defense, the trial court must compel arbitration. J.M. Davidson, Inc., 128 S.W.3d at 227-28.

HN3 A trial court’s determinations as to whether a valid arbitration agreement exists and whether the claims fall within the scope of an arbitration agreement are legal determinations subject to de novo review. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Similarly, all “gateway matters” are questions of law that we review de novo. Lennar Homes of Tex. Land & Constr., Ltd., 2023 Tex. LEXIS 407, 2023 WL 3398584, at *5.

Because the trial court here did not enter specific [*7] findings of fact or conclusions of law to explain its denial of the motion to compel arbitration, we infer that the trial court made all necessary findings to support its ruling. Kmart Stores of Tex., L.L.C. v. Ramirez, 510 S.W.3d 559, 565 (Tex. App.—El Paso 2016, pet. denied). And, because no findings or conclusions were entered, “we must uphold the trial court’s decision on any appropriate legal theory urged below.” APC Home Health Servs., Inc. v. Martinez, 600 S.W.3d 381, 389 (Tex. App.—El Paso 2019, no pet.) (emphasis added). “Yet, as a corollary, we are limited to considering the grounds presented to the trial court by the party resisting arbitration.” Id.

B. Analysis

In its initial appellate brief, J.B. Hunt confines its arguments to those made at the trial court, namely that Lester’s claims “fall within the broad language of the arbitration clause,” and more fundamentally, that the issue as to whether her claims fall within the scope of the arbitration provision should have been sent to the arbitrator. In response, Lester raises several arguments that were neither in her response to the motion to compel arbitration nor in her arguments at the hearing below, including the following: (1) the “contract was improperly formed” because the Plan’s signature line for J.B. Hunt contains an illegible signature and fails to state that person’s position with J.B. Hunt; (2) under [*8] a state law analysis, no valid arbitration contract was ever formed because the contract did not show that each party and its attorney signed the agreement as required by Texas Civil Practice and Remedies Code Section 171.002(c); and (3) under a federal law analysis, an interstate truck driver like Lester cannot be compelled to arbitrate her claims under 9 U.S.C. § 1. In its reply brief, J.B. Hunt argues that all of Lester’s appellate arguments, with the exception of the scope argument and the right to delegate that issue to the arbitrator, cannot be considered due to Lester’s failure to present them to the trial court. We will address these issues in turn as necessary to the disposition of this appeal.

1. Did J.B. Hunt meet its burden to establish the existence of a valid arbitration agreement?

HN4 Because arbitration is a matter of contract, courts must first decide whether a valid arbitration agreement exists. See TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC, No. 21-0028, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *19 (Tex. Apr. 14, 2023) (citing Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530, 202 L. Ed. 2d 480 (2019)). As the party seeking arbitration, the burden was on J.B. Hunt to establish the existence of a valid arbitration agreement. See Henry, 551 S.W.3d at 115.

J.B. Hunt attached to its motion a copy of the Plan containing the arbitration agreement which was purportedly signed by Lester and an individual on behalf of J.B. Hunt. In the Plan, the parties agreed that [*9] “any legal or equitable claim by or with respect to an Employee for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma” would be submitted to “final and binding arbitration.” The Plan also stated that neither party “shall be entitled to a bench or jury trial on any claim covered” by the Plan. Further, “[t]he arbitrator, and not any federal, state, or local court or agency” has the “exclusive authority to resolve any dispute” regarding the agreement or the “enforceability of this arbitration.”

HN5 Generally, a “written arbitration agreement is prima facie valid and must be enforced unless the opposing party . . . ‘allege[s] and prove[s] that the arbitration clause itself was a product of fraud, coercion, or such grounds as exist at law or in equity for the revocation of the contract.'” Knox Waste Serv., LLC v. Sherman, No. 11-19-00407-CV, 2021 Tex. App. LEXIS 8010, 2021 WL 4470876, at *2 (Tex. App.—Eastland Sept. 30, 2021, no pet.) (mem. op.) (quoting Freudensprung v. Offshore Tech., Servs., Inc., 379 F.3d 327, 341 (5th Cir. 2004) (internal quotations omitted)). In addition, the uncontested existence of the non-movant’s signature on an arbitration agreement meets the evidentiary standard necessary to prove the prima facie existence of an arbitration agreement. APC Home Health Servs, Inc., 600 S.W.3d at 390.

On appeal, Lester argues that “the signature line labeled ‘For the Employer’ [*10] contains an illegible signature and does not identify the signer, their position with J.B. Hunt, or any indication that the signer has the authority to bind J.B. Hunt.” Therefore, Lester contends that J.B. Hunt failed to show prima facie evidence of a valid arbitration agreement between the parties. However, this argument was not raised in the trial court. Therefore, it cannot be considered on appeal. See HN6 Tex. R. App. P. 33.1(a)(1) (“As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court . . . .”); see also Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (stating that a party “should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time”). HN7 Even if it was not waived for failure to present it to the trial court, the supreme court has “never held that the employer must sign the arbitration agreement before it may insist on arbitrating a dispute with its employee.” In re Polymerica, LLC, 296 S.W.3d 74, 76 (Tex. 2009) (orig. proceeding); In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 (Tex. 2005) (orig. proceeding) (“[N]either the FAA nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties.”).

J.B. Hunt attached [*11] the “relevant page[s]” of the Plan to its motion to compel.³ Lester does not dispute that she signed the document. Therefore, J.B. Hunt’s signed copy of the arbitration agreement contained within the Plan established a prima facie valid arbitration agreement and satisfied J.B. Hunt’s initial burden in seeking arbitration. See Wagner, 627 S.W.3d at 284; see also In re DISH Network, L.L.C., 563 S.W.3d 433, 439 (Tex. App.—El Paso 2018, orig. proceeding).

2. Did J.B. Hunt meet its burden to establish that the disputed claims fell within the scope of that agreement?

After establishing the existence of a valid arbitration agreement, it was J.B. Hunt’s next burden to establish that the claims at issue fell within the scope of that agreement. See Henry, 551 S.W.3d at 115; see also TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *19.

The scope of arbitration issue was recently discussed by the Texas Supreme Court. In TotalEnergies, the court addressed a dispute over whether the parties’ contracts required them to resolve their controversies through arbitration and whether they agreed that an arbitrator, rather than the courts, must resolve that dispute. TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *1. In resolving the case, the court first noted:

HN8 A dispute over whether parties agreed to resolve their controversies through arbitration—referred to as a dispute over the controversies'”arbitrability”—typically encompasses three [*12] distinct disagreements: (1) the merits of the underlying controversy [ ]; (2) whether the merits must be resolved through arbitration instead of in the courts; and (3) who (a court or the arbitrator) decides the second question.

2023 Tex. LEXIS 315, [WL] at *4 (citing RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 120 (Tex. 2018)). The court stated that “[t]he second question must be answered before the first, but the third must be answered before the second.” Id. Therefore, the court began with the third question. Id.

We too begin with the third question. In the Plan at issue here, the agreement expressly provided that the “determination of whether a claim is covered” by the Plan “shall also be subject to arbitration.” Further, the “arbitrator, and not any federal, state, or local court or agency” has the “exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation” of the agreement. Finally, any arbitration under the Plan “will be administered by the [AAA] under its then-current Employment Arbitration Rules and Mediation Procedures.” Rule 6(a) of the AAA Employment Rules states, “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” [*13] Am. Arb. Ass’n, Employment Arbitration Rules & Mediation Procedures Rule 6(a) (2023), http://adr.org/sites/default/files/EmploymentRules-Web.pdf.

Lester argues that her claims do not fall within the scope of the arbitration agreement because they are not based on work-related injuries as she was off the clock and not within the course and scope of her employment when she was injured. To support her argument, Lester refers to the letter from the Plan’s administrator denying Lester’s claim for benefits. However, as noted by J.B. Hunt, the “scope of the Plan benefits for injuries and the scope of the arbitration clause are not coextensive”; rather, they are different. Regardless of the scope of the Plan benefits, the arbitration provision applies to “any legal or equitable claim by or with respect to an Employee for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma.”

HN9 In TotalEnergies, the court held that it “agree[d] with the vast majority of courts that, as a general rule, an agreement to arbitrate in accordance with the AAA or similar rules constitutes a clear and unmistakable agreement that the arbitrator [*14] must decide whether the parties’ disputes must be resolved through arbitration.” TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *10. The court also explained that it “need not decide whether the arbitration agreement [was] ‘sufficiently’ broad, however, because . . . any limitation contained within these parties’ arbitration agreement d[id] not affect the agreement’s clear and unmistakable delegation of arbitrability issues to the arbitrator.” 2023 Tex. LEXIS 315, [WL] at *12. And, while one party argued that the parties had “agreed to arbitrate only certain controversies and carved out others,” id., the court rejected this argument because it “ignore[d] the severability rule and conflate[d] the parties’ agreement to arbitrate disputes with their agreement to delegate arbitrability issues to the arbitrator.” 2023 Tex. LEXIS 315, [WL] at *14.

Here, the parties not only expressly referred to arbitrability pursuant to the AAA but also specifically delegated the scope issue to the arbitrator. Further, the AAA rules require the arbitrator to rule on any objections “with respect to the existence, scope or validity of the arbitration agreement.” Am. Arb. Ass’n, Employment Arbitration Rules & Mediation Procedures Rule 6(a) (2023), http://adr.org/sites/default/files/EmploymentRules-Web.pdf. Therefore, similar [*15] to the TotalEnergies arbitration agreement, objections “with respect to the existence, scope or validity of the arbitration agreement” between J.B. Hunt and Lester were delegated to the arbitrator. TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *3, *5, *10. We conclude that the parties here have “clearly and unmistakably” delegated the arbitrability issue to the arbitrator.⁴ See 2023 Tex. LEXIS 315, [WL] at *19.

3. Were Lester’s appellate arguments waived because she failed to present them to the trial court?

HN11 Once the questions of validity and scope are resolved affirmatively, the court then considers whether any statute or policy renders the claims nonarbitrable. See In re W. Dairy Transp., 457 S.W.3d 467, 471 (Tex. App.—El Paso 2014, no pet.). The party seeking to invalidate an arbitration agreement bears the burden of proof on these matters. Id.

As noted above, on appeal Lester presents two arguments not presented to the trial court: (1) under a federal law analysis, an interstate truck driver like Lester cannot be compelled to arbitrate her claims under 9 U.S.C. § 1,⁵ and (2) under a state law analysis, no valid arbitration contract was ever formed because the contract did not show that each party and its attorney signed the agreement as required by Texas Civil Practice and Remedies Code Section 171.002(c).

Because of these new arguments, we must initially answer the question whether Lester [*16] has preserved them for our review. HN13 As a general rule, a party is required to present a complaint to the trial court before being allowed to raise the complaint on appeal. See Tex. R. App. P. 33.1; All Am. Excavation, Inc. v. Austin Materials, LLC, No. 04-15-000779-CV, 2016 Tex. App. LEXIS 3773, 2016 WL 1464409, at *4 (Tex. App.—San Antonio Apr. 13, 2016, no pet.) (mem. op.) (stating that a party must present argument to the trial court or the argument is waived and cannot be considered for the first time on appeal). Regarding waiver of the 9 U.S.C. § 1 exemption, the Dallas Court of Appeals has summarized the applicable law in this area:

Texas courts have held that an objection to arbitration under the 9 U.S.C. § 1 exemption from arbitration must be raised before the trial court rules on a motion to compel arbitration. See Conn Appliances, Inc. v. Puente, No. 09-18-00326-CV, 2020 Tex. App. LEXIS 6410, 2020 WL 4680283, at *4 (Tex. App.— Beaumont 2020, no pet.) (mem. op.) (failure to object to arbitration procedure on the ground that 9 U.S.C. § 1 exemption applied before the trial court rules on motion to compel arbitration waived the objection); J.B. Hunt Transp., Inc. v. Hartman, 307 S.W.3d 804, 809 (Tex. App.—San Antonio 2010, no pet.) (on appeal from denial of motion to compel arbitration, court of appeals refused to consider whether 9 U.S.C. § 1 exempted the dispute from arbitration when the appellee did not assert the application of the exemption in the trial court).

Gordon v. Trucking Res., Inc., No. 05-21-00746-CV, 2022 Tex. App. LEXIS 8379, 2022 WL 16945913, at *2 (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.). In determining whether an employee is a transportation worker for purposes of the 9 U.S.C. § 1 exclusion, appellate courts review affidavit and live testimony as well as other [*17] evidence presented to the trial court. See OEP Holdings, LLC v. Akhondi, 570 S.W.3d 774, 778 (Tex. App.—El Paso 2018, pet. denied) (“Differentiating transportation workers from those who only incidentally aid in the transport of goods is a fact intensive inquiry.”).

In this case, Lester first asserted the 9 U.S.C. § 1 exemption from arbitration in her appellate brief. Before the trial court, other than attaching a letter from the Plan’s administrator to her response to the motion to compel arbitration, Lester offered no evidence and made no argument regarding any matter other than scope. Because she failed to timely assert the transportation-worker exemption to the trial court, we cannot rely on that ground to affirm the trial court’s ruling.⁶ See Tex. R. App. P. 33.1(a); J.B. Hunt, 307 S.W.3d at 809 (“The issue of whether section 1 of the FAA exempts Mr. Pilat from coverage was never presented to the trial court. Therefore, we conclude this issue was not preserved for our review.”); see also Duarte v. Mayamax Rehab. Servs., L.L.P., 527 S.W.3d 249, 257-58 (Tex. App.—El Paso 2016, pet. denied) (holding that because appellants failed to timely raise the argument regarding whether arbitrator or trial court determines the validity of any arbitration agreement contained in a challenged contract, appellants waived error on this argument).

Regarding the attorney’s signature on the arbitration agreement, under state law, an arbitration agreement [*18] is generally enforceable, but if it governs a personal injury claim, the agreement must be approved and signed by both parties and their attorneys. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(b)(3); see also APC Home Health Servs., Inc., 600 S.W.3d at 391; Chambers v. O’Quinn, 305 S.W.3d 141, 147 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Once again, this issue was not raised before the trial court. Therefore, we cannot now consider it on appeal.⁷ See Tex. R. App. P. 33.1(a).

Also on appeal, Lester alludes to other vague “contract formation” arguments and “additional bar[s]” to arbitration. She argues, without support, that “no valid arbitration contract was ever formed” between J.B. Hunt and Lester. However, again, she never raised these arguments in the trial court. Instead, her written response to the motion was limited to the “course and scope” issue, and her attorney’s argument before the trial court began with the admission that “there’s an arbitration agreement. And the arbitration clause defines whether or not that arbitration agreement is going to apply.” J.B. Hunt’s counsel echoed this understanding as he began his argument to the trial court: “The court is correct, there is an arbitration agreement. And Ms. Lester does not contest that there’s an arbitration agreement. The issue before the court today is what can this court do with respect to determining if [*19] the claim falls within the arbitration?” Because she failed to present these arguments to the trial court, Lester cannot now raise these new arguments on appeal. See Tex. R. App. P. 33.1(a).

In summary, J.B. Hunt satisfied its two-pronged burden to establish both the existence of a valid arbitration agreement and that the disputed claims fell within the scope of that agreement. See Wagner, 627 S.W.3d at 284. Lester failed to timely raise a valid defense to the agreement’s enforcement. See J.M. Davidson, Inc., 128 S.W.3d at 227-28. Therefore, the trial court abused its discretion in denying J.B. Hunt’s motion to compel arbitration. We sustain J.B. Hunt’s sole issue.

IV. Conclusion

Having sustained J.B. Hunt’s sole issue, we reverse and remand for entry of an order compelling arbitration and staying the proceedings in the trial court pending completion of the arbitration proceedings. See Mid-Am. Apts., L.P. v. Trojan, No. 02-21-00204-CV, 2021 Tex. App. LEXIS 8776, 2021 WL 5028794, at *7 (Tex. App.—Fort Worth Oct. 28, 2021, no pet.) (mem. op.).

/s/ Dana Womack

Dana Womack

Justice

Delivered: June 8, 2023

End of Document

¹McCarthy is neither a party to this appeal nor a party to the underlying motion to compel arbitration.

²Whether or not an evidentiary hearing should be held depends on the circumstances. In re MP Ventures of S. Tx., Ltd., 276 S.W.3d 524, 528 n.4 (Tex. App.— San Antonio 2008, orig. proceeding). If material facts are uncontroverted, the trial court may decide whether to compel arbitration based on the affidavits, pleadings, discovery, and stipulations. Id. (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding)). The trial court is only required to hold a hearing to resolve disputed facts. Id.

³On appeal, in her Statement of Facts, Lester for the first time states that “the record does not contain the whole contract (the Plan), only excerpts.” To the extent that this can be interpreted as an argument supporting the trial court’s ruling, the argument was never raised before the trial court and cannot be considered on appeal. See Tex. R. App. P. 33.1(a).

⁴In her appellate brief, Lester contends that “[t]o coerce the parties to arbitrate what they have not agreed to arbitrate would fly in the face of fairness,” and, under the doctrine of estoppel or quasi-estoppel, “a party seeking benefits from a contract cannot also avoid the burdens of a contract.” While Lester states that she made this argument below, it was only in her written response and was contained within her “course and scope” argument, where she stated that J.B. Hunt should be “estopped from taking the polar opposite position that [Lester’s] claims [were] within the course and scope of employment after all and must therefore be subject to arbitration.” Lester cited no authority below in support of this argument, and she did not raise it at the hearing on the motion to compel arbitration. HN10 Nevertheless, we have previously determined that whether certain claims are barred by res judicata should be referred to the arbitrator. Robinson v. Home Owners Mgmt. Enters. Inc., No. 02-20-00215-CV, 2021 Tex. App. LEXIS 1877, 2021 WL 924839, at *16 (Tex. App.—Fort Worth Mar. 11, 2021, pet. denied) (mem. op.). In making that decision, we relied on both United States Supreme Court and Texas Supreme Court precedent. See 2021 Tex. App. LEXIS 1877, [WL] at *5 (citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S. Ct. 588, 592, 154 L. Ed. 2d 491 (2002) (stating that “issues of substantive arbitrability . . . are for a court to decide[,] and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide”) (emphasis added); and G.T. Leach Builders, L.L.C. v. Sapphire V.P., LP, 458 S.W.3d 502, 521 (Tex. 2015) (stating that courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration, including “the satisfaction of ‘prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate'”) (emphasis added) (quoting BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34-35, 134 S. Ct. 1198, 1206-07, 188 L. Ed. 2d 220 (2014))). Similarly, we conclude here that any procedural matter relating to estoppel or quasi-estoppel should be decided by the arbitrator.

⁵HN12 The FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1; see Circuit City Stores v. Adams, 532 U.S. 105, 112, 121 S. Ct. 1302, 1307, 149 L. Ed. 2d 234 (2001).

⁶In its reply brief, J.B. Hunt argues that, even if not waived, the transportation-worker exemption does not apply in this case because the exemption applies only to “contracts of employment” and this was “an ERISA employee benefit plan that provides for certain non-fringe disability, death, dismemberment, and health care benefits.” See 9 U.S.C. § 1; see also In re Mission Petroleum Carriers, Inc., No. 13-04-00550-CV, 2005 Tex. App. LEXIS 1108, 2005 WL 326848, at *2 (Tex. App.—Corpus Christi—Edinburg, Feb. 11, 2005, orig. proceeding) (mem. op.) (stating that the transportation-worker exemption did not apply because “the arbitration clause at issue [was] found in the Mission employee health and safety plan, rather than an employment contract”). Because we conclude that this issue was not raised before the trial court, we need not address this alternative argument.

⁷In its reply brief, J.B. Hunt argues that the dual signature argument is meritless because the FAA, not the TAA, applies in this situation. J.B. Hunt avoids the Texas statute if the FAA—9 U.S.C. §§ 1-16—applies, because the FAA preempts conflicting state law. APC Home Health Servcs., Inc., 600 S.W.3d at 391. Here, the Plan specifically provided that the FAA would control: “The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings under the arbitration provisions of this Plan.” See Perry v. Thomas, 482 U.S. 483, 489, 107 S. Ct. 2520, 2525, 96 L. Ed. 2d 426 (1987) (stating that the FAA applies when the dispute concerns a “contract evidencing interstate commerce”). While the arbitrator could apply the substantive law of Texas, the arbitrator specifically could not apply the “Texas General Arbitration Act.” Where the FAA applies, the signature of counsel is not a prerequisite to enforcement of an arbitration agreement. See In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 70 (Tex. 2005) (orig. proceeding) (“Because the TAA is preempted by the FAA in this case, the signature of Marjorie’s counsel was not a prerequisite to enforcement of the arbitration agreement.”). However, as in the transportation-worker-exemption argument, we need not address this alternative argument because it was not raised before the trial court.