Oral argument was heard in this case on April 8, 2004, in Charlotte, Dickson County, Tennessee, as part of 1

this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

April 8, 2004, Session Heard at Charlotte

1

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). 
-2-

While I do not suggest that a third-party beneficiarymay 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