FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2242

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BECK AUTO SALES, INC.,

Appellant,

v.

ASBURY JAX FORD, LLC, and

LISA MARASCO,

Appellees.

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On appeal from the Circuit Court for Leon County.

Karen Gievers, Judge.

June 20, 2018

WINSOR, J.

A car dealership sued its former employee and a competing 

dealership, alleging that the two conspired to steal business worth 

millions of dollars. Based on an arbitration agreement between the 

plaintiff dealership and the former employee (Lisa Marasco), the 

trial court sent claims against the employee to arbitration. The 

issue in this case is whether the trial court should have also sent 

the claims against the competing dealership—a nonparty to the 

arbitration agreement. The defendant dealership argued that 

under principles of equitable estoppel, all claims against both 

defendants should be arbitrated. The trial court disagreed, and we 

do too. 
2

I.

In 2015, Asbury Jax Ford, LLC, doing business as Coggin 

Ford, acquired a car dealership in Jacksonville, Florida. The 

acquired dealership had a contract and longstanding relationship 

with the City of Tallahassee, to which it sold many vehicles. When 

Coggin acquired the other dealership, it acquired the Tallahassee 

contract as well, and it hoped to continue the related sales. But in 

2016, the City decided not to renew the contract, instead opening 

the procurement process and publicly requesting proposals. The 

Coggin dealership submitted its proposal, but the contract 

ultimately went to a competing dealership, Beck Auto Sales, Inc., 

a dealership in Palatka, Florida, and the appellant here. 

Two months after the Beck dealership won the new contract, 

the Coggin dealership sued the Beck dealership and Lisa Marasco. 

According to the complaint, Marasco, while still working for the 

Coggin dealership, had actively worked to sabotage Coggin’s 

relationship with the City, hoping to prevent the contract’s 

renewal. The complaint further alleged that Marasco and the Beck 

dealership acted in a “joint effort” to help the Beck dealership win 

the contract, which it ultimately did. After Beck took over the 

contract, it hired Marasco to come on board and manage the new 

relationship. 

The Coggin dealership’s complaint included the following 

seven claims: (1) breach of fiduciary duty (against Marasco); (2) 

aiding and abetting a breach of fiduciary duty (against Beck); (3) 

conversion (against Marasco); (4) civil conspiracy (against Marasco 

and Beck); (5) tortious interference (against Marasco and Beck); 

(6) unfair competition (against Marasco and Beck); and (7) a 

violation of the Florida Deceptive and Unfair Trade Practices Act 

(against Marasco and Beck). 

In response to the complaint, Marasco moved to compel 

arbitration of all claims against her and the Beck dealership. She 

attached a written arbitration agreement she and the Coggin 

dealership had entered, in which the two agreed to arbitrate 

certain disputes relating to Marasco’s employment. More 

specifically, the agreement provided that the “[d]isputes subject to 

arbitration” would be “all [d]isputes between the parties” as well 

as “disputes involving any person or entity whose liability or right 
3

of recovery derives from a [d]ispute” covered by the agreement. 

Although the Beck dealership was not a party to the agreement, 

Marasco argued that the Coggin dealership’s claims alleged 

“substantially interdependent and concerted misconduct” against 

both defendants. And under the doctrine of equitable estoppel, 

Marasco argued, all claims should be arbitrated. The Beck 

dealership separately moved to compel arbitration, expressly 

adopting Marasco’s arguments. 

The Coggin dealership agreed to arbitrate its claims against 

Marasco, but it refused to arbitrate those against the Beck

dealership. It argued, among other things, that equitable estoppel 

did not apply because the claims against the two defendants were 

not truly inextricably intertwined. After a hearing, the lower court 

denied the Beck dealership’s motion to compel arbitration. The 

court found that Beck was not a party to the arbitration agreement 

and that the equitable-estoppel argument was insufficient to 

deprive the Coggin dealership of its right to a jury. Beck now 

appeals that nonfinal order. We have jurisdiction, see Fla. R. App. 

P. 9.130(a)(3)(C)(iv)1, and our review is de novo, see Perdido Key 

Island Resort Dev., LLP v. Regions Bank, 102 So. 3d 1, 3 (Fla. 1st 

DCA 2012).

II.

Ordinarily, a party cannot compel arbitration under an 

arbitration agreement to which it was not a party. Koechli v. BIP 

Int’l, Inc., 870 So. 2d 940, 943 (Fla. 1st DCA 2004). But Florida and 

federal courts have recognized that principles of equitable estoppel 

sometimes allow a non-signatory to compel arbitration against 

someone who had signed an arbitration agreement. Perdido Key, 

102 So. 3d at 5; see also Bailey v. ERG Enters., LP, 705 F.3d 1311, 

1320 (11th Cir. 2013). Courts have recognized that this can be 

appropriate (1) when the signatory’s claims allege “substantially 

interdependent and concerted misconduct” by the signatory and 

the non-signatory or (2) when the claims relate directly to the 

 1 Because she was a party below, Lisa Marasco is an appellee 

here. See Fla. R. App. P. 9.020(g)(2). But the parties all agree that 

claims against her are subject to arbitration, and she has not 

participated in this appeal.
4

contract and the signatory is relying on the contract to assert its 

claims against the non-signatory. Koechli, 870 So. 2d at 944 

(citations omitted); see also Bailey, 705 F.3d at 1320. Here, the 

Beck dealership relies exclusively on the first circumstance; it 

alleges that claims against it and Marasco allege “substantially 

interdependent and concerted misconduct.” And indeed, the thrust 

of the complaint is that Marasco and the Beck dealership acted in 

concert to harm the Coggin dealership.

Assuming we agreed with the Beck dealership and concluded 

the claims were interdependent, our inquiry would not be over. 

Application of equitable estoppel could address the Beck 

dealership’s non-signatory status—effectively counting it as a 

signatory—but it would not expand the scope of disputes subject to 

arbitration. Although Florida law, like federal law, favors 

arbitration, Perdido Key, 102 So. 3d at 3; see also Moses H. Cone 

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), it 

is still true that “no party may be forced to submit a dispute to 

arbitration that the party did not intend and agree to arbitrate,” 

Perdido Key, 102 So. 3d at 3 (quoting Seifert v. U.S. Home Corp., 

750 So. 2d 633, 636 (Fla. 1999)). Therefore, even when a nonsignatory can rely on equitable estoppel “to access [the arbitration] 

clause,” the non-signatory can compel arbitration only if the 

dispute at issue “falls within the scope of the arbitration clause.” 

Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 

845 F.3d 1351, 1355 (11th Cir. 2017) (applying Florida law). And 

the “scope of the arbitration clause” is a pure matter of contractual 

interpretation.

The arbitration provision here covered a wide range of 

disputes, including those “arising before, during or after any 

employment relationship,” and applying “whether or not arising 

out of or related to [Marasco’s] . . . employment.” But as noted 

above, the arbitration provision generally limited its applicability 

to disputes “between the parties” to the arbitration agreement, 

meaning it would not reach disputes involving the Beck dealership 

(a nonparty). Unlike in Koechli, when we similarly recognized that 

the agreement’s reach was limited to “any dispute between the 

[contracting] parties” but nonetheless concluded the non-signatory 

was effectively a “party,” we can conceive of no basis to conclude 

the Beck dealership was a party to the agreement between 
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Marasco and the Coggin dealership. See 870 So. 2d at 945 (holding 

that based on unique facts of the case, “the word ‘party’ include[d] 

appellants, who received rights and were bound to obligations 

under the [applicable] agreement”).2 At bottom, the Beck 

dealership was not a party to the arbitration agreement, so 

disputes with it fall outside of the agreement’s general scope.

Acknowledging this problem, the Beck dealership turns to 

another provision of the arbitration agreement, a provision that 

broadens the agreement’s general scope: “Also subject to 

arbitration are disputes involving any person or entity whose 

liability or right of recovery derives from a Dispute that is covered 

by this Agreement (e.g., partner, agent, subsidiary of parent 

corporation, affiliate, shareholder, successor or assign of a party).” 

This provision expands the scope to include disputes involving 

others, but only to the extent the other parties’ liability “derives 

from” a covered dispute. The Beck dealership therefore argues that 

its liability “derives from” the dispute between the Coggin 

dealership and Marasco. 

“Derivative liability is similar to vicarious liability in that (1) 

there is no cause of action unless the directly liable tortfeasor 

commits a tort and (2) the derivatively liable party is liable for all

of the harm that such a tortfeasor has caused.” Peltz v. Tr. Hosp. 

Int’l, LLC, No. 3D17-428 *2 n.6 (Fla. 3d DCA Apr. 11, 2018) 

(quoting Grobman v. Posey, 863 So. 2d 1230, 1236 (Fla. 4th DCA 

2003)); cf. also Derivative Liability, Black’s Law Dictionary (10th 

ed. 2014) (defining term as “[l]iability for a wrong that a person 

other than the one wronged has a right to redress”); Grobman, 863 

So. 2d at 1235-36 (noting that cases of derivative liability “involve 

 2 The Koechli decision is further distinguishable because it 

relied on the fact that the substantive claims at issue were based 

on the same agreement that included the arbitration provision. 

“Because the basis of BIP’s claims arise out of or are intimately 

related to the refurbishment agreement, it would be inequitable to 

allow BIP both to rely upon the agreement in its action against 

non-signatories and selectively repudiate it when seeking to resist 

arbitration.” Id. at 945. Here, the underlying substantive claims 

are not based on the arbitration agreement.
6

wrongful conduct both by the person who is derivatively liable and 

the actor whose wrongful conduct was the direct cause of injury to 

another” (citation omitted)). 

We conclude that the Beck dealership’s liability (if any) does 

not “derive from” the remaining disputes as that phrase is used in 

the agreement. The claims are unquestionably related, and they 

may well ultimately rise or fall together. But we cannot ignore the 

fact that the arbitration provision used the specific phrase “derives

from,” rather than a more general term, like, say, “relates to.” Cf.

Kroma, 845 F.3d at 1356 (“If the parties had consented in the 

arbitration clause to arbitrate any disputes concerning the 

validity, interpretation, etc., of the contract, instead of consenting 

to arbitrate only ‘disputes arising between them’ . . ., the 

Kardashians may have been able to use equitable estoppel . . . .

But, as the ‘between them’ language shows, that is not what the 

parties to the agreement consented to do in the arbitration 

provision.”). Nor can we ignore the fact that the agreement 

includes specific examples of liability that could derive from other 

disputes: “(e.g., partner, agent, subsidiary of parent corporation, 

affiliate, shareholder, successor or assign of a party).” Had the 

parties sought a broader view of what it means for liability to 

“derive from” other disputes, they surely would have selected 

different examples. We cannot ignore the words the drafters chose.

III.

The Coggin dealership’s claims against the Beck dealership 

are not claims based upon derivative liability; they are based on 

Beck’s own alleged misconduct. That means the claims are not 

within the scope of the arbitration agreement. And that means the 

trial court correctly denied the motion to compel.3

 3 As in Perdido Key, we note that this decision “will result in 

arbitrable causes of action as well as non-arbitrable causes of 

action.” 102 So. 3d at 6. This may yield “‘the possibly inefficient 

maintenance of separate proceedings in different forums,’” id. at 6-

7 (quoting KPMG LLP v. Cocchi, 565 U.S. 18, 19 (2011)), but it is 

the result precedent compels.
7

AFFIRMED.

ROWE, J., concurs; WOLF, J., dissents with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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WOLF, J., dissenting.

Coggin Ford (Coggin) entered into a broad arbitration 

agreement with its employee, Lisa Marasco, which encompassed 

all disputes concerning the relationship between Ms. Marasco and 

Coggin as well as “disputes involving any person or entity whose 

liability or right of recovery derives from a Dispute that is covered 

by [the arbitration] Agreement.” Coggin’s complaint against 

Marasco and Beck Auto Sales, Inc. (Beck) is drafted so that the 

causes of action against both are inextricably intertwined. There 

is no allegation that Beck acted independently of Marasco. All of 

the allegations against Beck are derived from Coggin’s dispute 

with Marasco, which is covered by the arbitration agreement. 

Under these circumstances, Coggin is estopped from asserting that 

the dispute with Beck in this case is not subject to the arbitration 

provisions of the agreement.

The majority correctly states the general law concerning 

application of estoppel to compel arbitration by a non-signatory to 

the agreement, which I will partially repeat here with emphasis 

added. 

Florida and federal courts have recognized that principles of 

equitable estoppel sometimes allow a non-signatory to compel 

arbitration against an opposing party who was a signatory to an 

arbitration agreement. Perdido Key Island Resort Dev., L.L.P., v. 

Regions Bank, 102 So. 3d 1, 5 (Fla. 1st DCA 2012). Courts have 

recognized that allowing a non-signatory to compel arbitration can 

be appropriate (1) “when the signatory’s claims allege substantially 

interdependent and concerted misconduct by the signatory and the 
8

non-signatory”; or (2) “when the claims relate directly to the 

contract and the signatory is relying on the contract to assert its 

claims against the non-signatory.” Koechli v. BIP Int’l, Inc., 870 So. 

2d 940, 944 (Fla. 1st DCA 2004) (citations omitted) (emphasis 

added).

Florida law, like federal law, favors arbitration. Perdido Key, 

102 So. 3d at 3; see also Moses H. Cone Mem’l Hosp. v. Mercury 

Constr. Corp., 460 U.S. 1, 24-25 (1983). However, it is still true 

that “no party may be forced to submit a dispute to arbitration that 

the party did not intend and agree to arbitrate.” Perdido Key, 102 

So. 3d at 3 (quoting Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 

(Fla. 1999)). Therefore, even when a non-signatory can rely on 

equitable estoppel “to access [the arbitration] clause,” the nonsignatory can compel arbitration only if the dispute at issue “falls 

within the scope of the arbitration clause.” Kroma Makeup EU, 

LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351, 1355 

(11th Cir. 2017) (emphasis added) (applying Florida law). The 

“scope of the arbitration clause” is a pure matter of contractual 

interpretation.

Thus, we must look at the specific words of the arbitration 

agreement in context and the specific allegations of the instant 

complaint to determine whether the dispute falls within the scope 

of the arbitration agreement. Hand v. Grow Constr., Inc., 983 So. 

2d 684 (Fla. 1st DCA 2008) (finding in order to give proper 

meaning to a specific contractual provision, courts must consider 

context of the entire contract).

The subject matter of the arbitration agreement is very broad, 

effectively covering any dispute between Coggin and Ms. Marasco. 

The specific language indicates the arbitration provision includes 

disputes “arising before, during or after any employment 

relationship,” and applying “whether or not arising out of or 

related to [Marasco’s] . . . employment.”

A review of the specific allegations of the complaint reveal 

each count arose out of and was substantially interdependent with 

Ms. Marasco’s relationship with Coggin. It also reveals concerted 

misconduct between Marasco and Beck, thereby justifying 

enforcement of the arbitration agreement by the non-signator, 

Beck. See Koechli, 870 So. 2d at 944.
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The counts against Beck include: Count 2, aiding and abetting 

a breach of fiduciary duty (the person who was alleged to have been 

aided and abetted was Marasco); Count 4, civil conspiracy (against 

both Marasco and Beck); Count 5, tortious interference (against 

both Marasco and Beck); Count 6, unfair competition (against both 

Marasco and Beck); and Count 7, a violation of the Florida 

Deceptive and Unfair Trade Practices Act (against both Marasco 

and Beck). While arguably Beck could have committed the alleged 

torts individually, that is not how Coggin chose to allege the 

tortious conduct in its complaint.

The introductory sentence of the complaint reads: “This action

arises out of Defendants Marasco and Beck’s joint effort to obtain 

a contract . . . though a breach of fiduciary duty, conspiracy, unfair 

competition, and tortious interference.” (Emphasis added). By its 

very language, the complaint alleges all the counts against Beck 

were based on interrelated efforts of Beck and Marasco. The 

complaint does not allege a single action on the part of Beck that 

was not done in concert with Marasco.

For instance, as to Count 2, aiding and abetting, the complaint 

alleges “Beck was fully aware of Marasco’s breach and, in fact, 

provided substantial assistance and encouragement to Marasco . . 

. .” Count 4, civil conspiracy, specifically alleges Beck and Marasco 

“conspired to interfere with Coggin’s relationship with its 

customers and to violate Marasco’s fiduciary duties to Coggin.” The 

gist of Count 5, tortious interference, is that Marasco was “secretly 

working for Beck” and “ensured Beck’s [proposal] would prevail 

against Coggin.” The gravamen of Count 6 is that Marasco 

provided Beck with Coggin’s confidential information in order to 

help Beck unfairly compete against Coggin. Count 7 is repetitive 

of the other six counts. None of these counts alleged that Beck 

committed any act independent of Marasco. Thus, the test of 

“substantially interdependent and concerted misconduct” by the 

signatory and non-signatory has been met based on Coggin’s own 

allegations. Koechli, 870 So. 2d at 944. As such, the subject of the 

dispute falls within the scope of the arbitration clause.

The next issue is whether the agreement itself precludes 

application of the doctrine of estoppel because it reflects the intent 

of the parties to exclude non-signatories from invoking the 
10

arbitration agreement. We cannot consider a single term or 

sentence in isolation; instead, each provision “should be construed 

in connection with other provisions . . . to arrive at a reasonable 

construction to accomplish the intent and purpose of the parties.”

Hand, 983 So. 2d at 697 (quoting James v. Gulf Life Ins. Co., 66 

So. 2d 62 (Fla. 1953)). 

The arbitration agreement contains the following provision: 

“Also subject to arbitration are disputes involving any person or 

entity whose liability or right of recovery derives from a Dispute 

that is covered by this Agreement (e.g., partner, agent, subsidiary 

or parent corporation, affiliate, shareholder, successor or assign of 

a party).” (Emphasis added). 

Thus, the focus of our analysis should be whether the liability 

arose from a dispute covered by the agreement and not whether 

derivative liability exists or whether the right of recovery stems 

from a breach of the arbitration agreement.

The majority utilizes general law concerning the definition of 

the term “derivative liability” to determine that Beck could not be 

an intended subject of this contract because its liability is direct 

and is not derived from the conduct of another tortfeaser. That 

analysis ignores that, in context, the language requiring 

arbitration does not focus on liability derived from another person, 

but liability that is “derive[d] from a Dispute that is covered by this 

agreement.” (Emphasis added). As previously discussed, the 

subject matter of the claim arises out of a dispute concerning the 

relationship between Coggin and Ms. Marasco, the central matter 

covered by the arbitration agreement. As the dispute is framed by 

Coggin’s own complaint, the liability of Beck derives from this 

dispute.

Further, since the liability, if any, in this case arises from the 

joint actions of Marasco and Beck, any liability should be 

determined through the arbitration process rather than through 

two different types of forums.

Because of the broad language of the arbitration agreement 

and nature of the allegations in Coggin’s complaint, Coggin should 

be estopped from arguing that Beck cannot assert rights under the 

arbitration agreement.
11

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Katherine E. Giddings and Kristen M. Fiore, Akerman LLP, 

Tallahassee, and Donald E. Holmes, Russell D. Castleberry, and 

George A. Young, Holmes & Young, P.A., Palatka, for Appellant.

Christopher B. Lunny, M. Drew Parker, and Angela D. Miles, 

Radey Law Firm, Tallahassee, for Appellee Asbury Jax Ford, LLC.

No appearance for Appellee Marasco.