Sunday, May 11, 2008
Nebraska Supreme Court holds that the trial court should decide whether a dispute should go to arbitration, and in this case between an importer and a distributor of coffee, the defendant had waived arbitration when it filed pleadings in the court case. Good Samaritan Coffee Co. v. LaRue Distributing, S-07-300, 275 Neb. 674 "a waiver defense raised in the context of prior litigation-related activity is presumed to be decided by a court, rather than an arbitrator. A nd shifting of this issue to an arbitrator is only proper where there is “‘clea[r] and unmistakabl[e] evidence’” of such an intent in the parties’ arbitration agreement. T he arbitration agreement at issue in this case fails to meet this standard. party seeking arbitration may be found to have waived its right to arbitration if it “‘(1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts.’” E ach of these factors strongly weighs in favor of a finding that LaRue has waived its right to arbitration in this case."