UNIFIRST CORPORATION

v.

STRONGER COLLISION CENTER, LLC

Third District Court of Appeal

State of Florida

Opinion filed April 20, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-0281 Lower Tribunal Nos. 20-245 AP, 20-615 CC

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UniFirst Corporation,

Appellant,

vs.

Stronger Collision Center, LLC,

Appellee.

An Appeal from the County Court for Miami-Dade County, Stephanie Silver, Judge. The Gardner Law Firm, and John W. Gardner and Sara K. Grover (Brandon), for appellant. Law Office of Keith Chasin, and Keith Chasin, for appellee. Before HENDON, MILLER and BOKOR, JJ. BOKOR, J.

UniFirst Corporation appeals the trial court’s grant of Stronger

Collision’s motion to dismiss UniFirst’s claim seeking enforcement of an

arbitral award.¹ The issue turns on whether the applicable law and the terms

of the parties’ contract permitted UniFirst to proceed with an ex parte

arbitration after Stronger Collision elected not to participate or whether

UniFirst should have first sought a court order to compel arbitration before

proceeding.²

UniFirst and Stronger Collision entered into a contract with an

arbitration provision and a selection of New York law.³ UniFirst sought enforcement

of that award in a court of competent jurisdiction in Miami-Dade County.

place of business (or some other location mutually agreed to by Customer and Unifirst) pursuant to the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association and shall be governed by the Federal Arbitration Act. Customer acknowledges that, with respect to all such disputes, it has voluntarily and knowingly waived any right it may have to a jury trial or to participate in a class action or class litigation as a representative of any other persons or as a member of any class of persons, or to consolidate its claims with those of any other persons or class of persons. If this prohibition against class litigation is ruled to be unenforceable for any reason in any proceeding, then prohibition against class litigation shall be void and of no force and effect in that proceeding. This paragraph is governed by New York Law (exclusive of choice of law). The arbitrators shall award to the substantially prevailing party, if any, as determined by the arbitrators, all of its costs and fees. “Costs and fees” are defined as all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative costs, travel expenses, out-of-pocket expenses, such as copying and telephone expenses, court costs, witness fees and attorney fees.

Stronger Collision contested the award, arguing, among other grounds, that

UniFirst’s ex parte award cannot be enforced because of the failure to first

seek an order compelling arbitration. The trial court agreed, applying Florida

law to conclude that the arbitration provision required UniFirst to first seek a

court order compelling arbitration prior to arbitrating its dispute, ex parte,

under the agreed-to arbitration rules.

This was error, as UniFirst complied with the applicable New York law

and the expedited procedures under the commercial arbitration rules of the

AAA as elected in the parties’ contract. The parties do not dispute that the

arbitration provision is “governed by New York Law” as the exclusive choice

of law. Choice-of-law provisions in Florida are presumptively valid and must

be enforced unless strong public policy considerations warrant invalidating a

contracting party’s choice to be bound by the laws of another state. See,

e.g., Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73, 80 (Fla.

2012). Further, “[w]here the language of the contract clearly indicates that

AAA rules govern, they are expressly incorporated into the contract.”

Younessi v. Recovery Racing, LLC, 88 So. 3d 364, 365 (Fla. 4th DCA 2012).

Thus, we apply New York law and the AAA rules to determine UniFirst’s

entitlement to ex parte arbitration under the contract.⁴

The relevant AAA rule permits ex parte arbitration if the respondent

does not reply to arbitration notices, as was the case here.5 New York law

also provides that “[a] party aggrieved by the failure of another to arbitrate

may apply for an order compelling arbitration.” N.Y. C.P.L.R. 7503(a)

(emphasis added). “May” is a permissive term. Nothing in the use of the

language “may apply for an order compelling arbitration” mandates that a

party must apply for such an order before seeking arbitration under the

procedures agreed to by the parties. See, e.g., In re Cnty. of Suffolk v.

Suffolk Chapter, Civ. Serv. Emps. Ass'n, Inc., Loc. No. 852, 86 A.D.2d 892,

892 (N.Y. App. Div. 1982) (reversing the trial court’s vacation of an arbitration

award and explaining that “filing of the notice of intent, while advisable, is not

mandatory in light of the use of the permissive ‘may’”).

Here, Stronger Collision elected not to participate in the arbitration after

receiving UniFirst’s demand. UniFirst was, therefore, within its rights under

New York law to file a demand for arbitration with the AAA without first

exercising its permissive option to seek a court order compelling arbitration.

The rules agreed to by the parties do not require a court order to compel

arbitration and explicitly permit ex parte arbitration where not prohibited by

law. Accordingly, UniFirst complied with New York law and the contractual

language (incorporating AAA expedited procedures) before seeking and

obtaining an arbitral award. The trial court erred in dismissing the petition to

enforce the arbitral award on that basis.

Reversed and remanded.