ORDER ABATING A CASE FOR DISCOVERY RATHER THAN SENDING IT TO ARBITRATION IS APPEALABLE UNDER THE FEDERAL ARBITRATION ACT

Baylor University Medical Center v. Greeson
Dallas Court of Appeals, No. 05-14-01342-CV (July 20, 2015)
Justices Whitehill (Opinion), Francis, and Lang-Miers
Greeson sued Baylor University Medical Center for a workplace injury covered by Baylor’s Occupational Injury Benefit Plan. Although the Plan had a mandatory arbitration provision, the parties agreed to abate the lawsuit in order to conduct specific discovery and to mediate. The Rule 11 agreement allowed either party to terminate the abatement at any time by filing a motion to re-open. Baylor, frustrated with Greeson’s conduct in discovery, did just that, and also moved to compel arbitration. The trial court did not rule on the motion to compel arbitration, but instead continued the abatement in effect until the agreed-upon discovery was completed. The Court of Appeals reversed. Addressing the appealability of the order, the Court noted that under Texas Civil Practice and Remedies Code § 51.016, in a matter covered by the Federal Arbitration Act, a party may take an interlocutory appeal from an order relating to arbitration if the FAA would permit an appeal from a federal district court’s similar order. Here, the Court found, by further abating the lawsuit and ordering discovery—an issue specifically designated to the arbitrator under the parties’ agreement—the trial court had effectively denied Baylor its right to have the arbitrator decide those issues. The Plan expressly provided that it was governed by the FAA. Therefore, the order was appealable under the FAA and under the Civil Practice and Remedies Code.

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