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STATE OF MICHIGAN
COURT OF APPEALS


TERRY CASH, Plaintiff-Appellant, v D & J SPARTAN TIRE INC. and DANIEL W. CLARK, Defendants-Appellees.

UNPUBLISHED October 16, 2008

No. 278174 Oakland Circuit Court LC No. 2006-079448-CL

Before: Borrello, P.J., and Murray and Fort Hood, JJ. PER CURIAM. Plaintiff appeals by right from the trial court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm. Plaintiff's sole contention on appeal is that the trial court erred in finding that the feesplitting clause in the arbitration provision contained in defendants' employee manual is enforceable. We disagree. MCR 2.116(C)(7) allows for summary disposition when the claim is barred because of an agreement to arbitrate. This Court reviews de novo a trial court's grant of summary disposition pursuant to MCR 2.116(C)(7). Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). In reviewing a motion under MCR 2.116(C)(7), this Court considers all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. Id. Plaintiff was employed with defendant D & J Spartan Tire Inc., the owner and president of which was defendant Daniel W. Clark. The employee manual promulgated by defendants contained an arbitration provision providing that, by accepting or continuing employment with defendants, the employee automatically agreed that arbitration is the exclusive remedy for all disputes arising out of or relating to the employee's employment with Spartan Tire. The arbitration provision also contained a clause providing that, "[t]he cost of the arbitrator and court reporter, if any, shall be shared equally by the parties." Plaintiff does not challenge the portion of the arbitration provision providing that arbitration is the exclusive remedy for all work-related disputes. Instead, plaintiff only challenges the fee-splitting clause and does so on the basis that the fee-splitting provision will effectively prevent him and others similarly situated from pursuing their claims because they cannot afford to pay an arbitrator's fees. It is plaintiff's -1-


position that this "prohibitive cost" defense renders the fee-splitting provision unenforceable, citing Cole v Burns Int'l Security Serv, 105 F3d 1465 (CA DC, 1997), for such a proposition. For the reasons stated below, plaintiff's argument is unpersuasive. We first note that we find plaintiff's reliance on Cole unavailing. Concerned that feesplitting provisions would deter financially strapped employees from pursuing their claims, the Cole court held that "where arbitration has been imposed by the employer and occurs only at the option of the employer

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Michigan Law