CROTHERS, Justice.
[¶ 1] Deanne J. Gierke appeals the district court's order denying her motion to compel arbitration. We reverse and remand to the district court for entry of an order compelling arbitration of the dispute because we conclude the district court erred in holding the relevant arbitration provision does not apply.
[¶ 2] Nicole Schwarz, Steven Schwarz and Christopher Schwarz ("Schwarzes"), the children and beneficiaries of Jodee Schwarz, commenced this action against Deanne Gierke for her alleged negligence in assisting Jodee Schwarz to terminate two life insurance policies and to secure a purportedly unsuitable policy. Gierke is a
[¶ 3] Before the insurance transactions occurred, Jodee Schwarz in July 2007, opened an Edward Jones client account through Gierke. Jodee Schwarz signed an Edward Jones account agreement providing that Edward Jones and its agents offered a broad range of financial products and services, including insurance services. As part of the client agreement, Jodee Schwarz signed an "Account Authorization and Acknowledgment Form." This authorization in bold print states: "The Edward Jones Account Agreement and Disclosure Statement contains, on page 19, paragraph 1, a binding arbitration provision which may be enforced by the parties."
[¶ 4] The binding arbitration provision found on page 19 of the account agreement is titled "ARBITRATION AGREEMENT" and states, in part, that "[a]ll parties to this Agreement are giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed." The arbitration agreement further states:
[¶ 5] On page one of the account agreement, under "GENERAL ACCOUNT PROVISIONS," there is set forth the "Services Provided by Edward Jones Under the Terms of this Agreement," which in addition to brokerage services, states in part:
(Emphasis added.) Additionally, following the heading "PERIODIC TRANSACTIONS PROGRAM," there is a section on page 15 of the agreement entitled, "Systematic Insurance Transactions." This section provides the applicable terms for such insurance transactions, "[i]f I have authorized and instructed [Edward] Jones to begin and continue until further notice from me periodic transactions concerning insurance policies, including but not limited to, annuities, life insurance, long-term care insurance, and disability insurance (the `policy' or `policies') issued to me."
[¶ 6] Before executing the account agreement, Jodee Schwarz on May 2006
[¶ 7] In November 2007, Gierke assisted Jodee Schwarz in terminating two Prudential life insurance policies each with a $100,000 death benefit that named her children as beneficiaries, transferring the cash surrender value into a life insurance policy from Protective. The Protective policy had a $200,000 death benefit and named her children as beneficiaries. On March 31, 2008, Jodee Schwarz committed suicide. Protective subsequently denied payment of the death benefit under the policy because the policy contained a "suicide exclusion," a one-year exclusionary period under which the policy's death benefit would not be paid in the event of the insured's suicide. Protective instead paid Schwarzes an amount significantly less than the policy's death benefit, constituting a refund of the policy premiums paid.
[¶ 8] On April 8, 2008, Nicole Schwarz, Steven Schwarz and Christopher Schwarz each signed an "Edward Jones Individual Retirement Account Authorization, Adoption Agreement and Beneficiary Designation" form, containing the same binding arbitration provisions. On April 2, 2009, Schwarzes commenced this action against Gierke, asserting the following in their complaint:
[¶ 9] In response, Gierke filed a motion to dismiss or stay litigation and compel arbitration, asserting that under the agreement the binding arbitration provisions apply because the action is a controversy "arising out of or relating to" transactions with Edward Jones, its agents, or its employees. Schwarzes opposed Gierke's motion to compel arbitration, arguing they did not sue Edward Jones, their claim was not against Edward Jones or Protective, and their tort claim for Gierke's alleged negligence in placing Jodee Schwarz in an unsuitable insurance
[¶ 10] In an order dated June 26, 2009, the district court denied Gierke's motion to compel arbitration, concluding the arbitration clause at issue did not apply in this case. The court held that there was no dispute that an arbitration agreement existed, but that the issue presented was whether the case was subject to the arbitration agreement. The court concluded that the controversy centered around Gierke securing the Protective life insurance policy for Jodee Schwarz and that "Jodee Schwarz signed a completely separate set of documents" governing the Protective policy. Relying on N.D.C.C. § 26.1-26-06 and Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, ¶ 21, 561 N.W.2d 273, the court concluded that as a matter of law "a person who is an appointed insurance producer for an insurance company is that company's agent" and, thus, when Gierke secured the Protective policy, she was acting as Protective's agent. Gierke appealed from the court's order denying her motion to compel arbitration.
[¶ 11] Chapter 32-29.3, N.D.C.C., contains the North Dakota Uniform Arbitration Act. When an arbitration clause is at issue, "[t]he court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate." N.D.C.C. § 32-29.3-06(2). Under N.D.C.C. § 32-29.3-28(1)(a), "[a]n appeal may be taken from . . . [a]n order denying a motion to compel arbitration." See also Mo.Rev.Stat. § 435.440.1 (expressly granting under the Missouri Uniform Arbitration Act the right to appeal orders denying an application to compel arbitration or granting an order to stay arbitration). In State ex rel. Stenehjem v. Philip Morris, Inc., this Court established our standard of review for an appeal from a district court's denial of a motion to compel arbitration:
2007 ND 90, ¶ 13, 732 N.W.2d 720. "[C]onstruction of a written contract to determine its legal effect is a question of law, fully reviewable on appeal." Id. at ¶ 13; see also Peoples State Bank of Truman, Inc. v. Molstad Excavating, Inc., 2006 ND 183, ¶ 19, 721 N.W.2d 43. Further, recognizing a strong state and federal public policy favoring the arbitration process, this Court resolves any doubts concerning the scope of arbitrable issues in favor of arbitration when there is a broad arbitration clause and no exclusion clause. See Philip Morris, at ¶ 14; Gratech Co. Ltd. v. Wold Eng'g, P.C., 2003 ND 200, ¶ 14, 672 N.W.2d 672; State v. Stremick Constr. Co., 370 N.W.2d 730, 732 (N.D. 1985); see also AT & T Techs. Inc. v. Commc'n Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 429 (Mo.2003); McCracken v. Green Tree Servicing, LLC, 279 S.W.3d 226, 228 (Mo.Ct.App.2009).
[¶ 13] Gierke thus contends under both the FAA and the Missouri Uniform Arbitration Act, the arbitration agreement should be enforced. See, e.g., Volt Info. Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) ("Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA. . . ."); Whitney v. Alltel Commc'ns, Inc., 173 S.W.3d 300, 306-07 (Mo.Ct.App.2005) ("[W]here a Missouri court is addressing an arbitration provision falling within the FAA, the Missouri court must apply the substantive law of the FAA . . ., but may apply state procedural rules" which do not defeat any of the FAA's substantive rights). In Dunn Indus. Group, the Missouri Supreme Court provided the following framework under the FAA for analyzing a motion to compel arbitration:
112 S.W.3d at 427-28.
[¶ 14] In this case, the district court held the account agreement arbitration provision did not apply because Gierke was securing a life insurance policy for Jodee Schwarz, rather than transacting business pertaining to an Edward Jones account. Because the court's decision does not rest on factual findings, but instead decides whether the account agreement applied based on undisputed facts, we apply a de novo standard of review.
[¶ 15] On appeal, Gierke argues the Schwarzes' claims are subject to arbitration under the plain language of the arbitration agreement and the district court erred in construing the arbitration agreement.
[¶ 16] "The cardinal principle of contract interpretation is to ascertain the
[¶ 17] Further, "[i]n construing arbitration clauses, courts have categorized such clauses as `broad' or `narrow.'" Dunn Indus. Group, 112 S.W.3d at 428 (citing McCarney v. Nearing, Staats, Prelogar & Jones, 866 S.W.2d 881, 889 (Mo. Ct.App.1993)). "A broad arbitration provision covers all disputes arising out of a contract to arbitrate; a narrow provision limits arbitration to specific types of disputes." Dunn Indus. Group, at 428.
[¶ 18] Here, the arbitration provision contained in the Edward Jones account agreement states, in pertinent part:
(Emphasis added.) The unambiguous language of this sentence provides that "[a]ny controversy arising out of or relating to any of my accounts or transactions with. . . [Edward Jones'] agents and/or employees for me . . . shall be settled by arbitration." This provision refers to any controversy pertaining to any accounts "or" transactions. Use of the disjunctive word "or" generally indicates an alternative between different things or actions. See J.H. Berra Constr. Co., Inc. v. Missouri Highway & Transp. Comm'n, 14 S.W.3d 276, 280 (Mo.Ct.App.2000); see also Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 20, 590 N.W.2d 454.
[¶ 19] On its face, this broad provision requires arbitration of any controversy, not only "arising out of or relating to" an Edward Jones accounts, but also "arising out of or relating to" any transaction with Edward Jones agents or employees for the client. In other words, arbitration is required for any controversy arising out of or relating to any accounts or, alternatively, any transactions. The provision does not limit transactions with an Edward Jones agent or employee to only those transactions occurring within a specific Edward Jones account.
[¶ 20] The account agreement containing the arbitration provision at issue here contemplates a wider array of potential financial services and transactions from
[¶ 21] We next look to whether Schwarzes' claims are within the scope of the arbitration provision. Schwarzes alleged that Gierke assisted Jodee Schwarz in terminating the two Prudential policies and transferring the cash surrender value into the Protective policy and that Gierke "breached her duty to Jodee Schwarz and the beneficiaries of the life insurance policies" by securing and placing Jodee Schwarz in an unsuitable life insurance policy. Thus, Schwarzes are alleging tortious conduct by Gierke in terminating the policies, transferring the cash surrender value, and securing and placing Jodee Schwarz into an unsuitable life insurance policy. We conclude these financial transactions were with an Edward Jones representative and agent and fall within the scope of the arbitration provision.
[¶ 22] Although in a different procedural posture, Monarch Life Ins. Co. v. Donahue, 702 F.Supp. 1195, 1197-98 (E.D.Pa.1989), is instructive. In Monarch Life, the insurer brought a declaratory judgment action against the insured's beneficiaries, his widow/executrix and minor son ("Donahues"), seeking to declare the life insurance policy void ab initio on grounds the deceased insured had materially misrepresented his health condition in his insurance application, which the insurer had relied on in issuing the policy. Id. at 1196. Donahues counterclaimed for a declaratory judgment that the policy was legally binding and to be given full force and effect. Id. Donahues also brought a third-party complaint against Merrill Lynch, asserting the life insurance application was filled out with the assistance of a Merrill Lynch employee, who had served as the Donahues' investment broker, and any impropriety in the application was Merrill Lynch's fault. Id. at 1197.
[¶ 23] The court in Monarch Life construed Donahues' third-party complaint as negligence or fraud claims against Merrill Lynch, seeking damages in the amount of the policy's face value if the policy was rescinded. 702 F.Supp. at 1197. The court granted Merrill Lynch's motion to compel arbitration based on an arbitration clause, contained in the customer agreement executed between the insured and Merrill Lynch, covering "any controversy between us arising out of your business or this agreement." Id. at 1198. The court held the beneficiaries' claims were subject to the arbitration clause because the clause's language was "worded in a general way to include `any controversy' between the parties." Id.
[¶ 25] Courts have extended the scope of arbitration provisions to non-signatory, third-party beneficiaries. See Tractor-Trailer Supply Co. v. NCR Corp., 873 S.W.2d 627, 629-631 (Mo.Ct.App.1994) ("[a] third-party beneficiary is one who is not privy to a contract but who is benefited by it and who may maintain a cause of action for its breach" and holding plaintiffs could not claim a right to maintain an action based on their status as computer system users, but then disavow the relationship for purposes of avoiding arbitration); see also Nesslage v. York Sec., Inc., 823 F.2d 231, 233-34 (8th Cir.1987). Schwarzes assert their own agreement to arbitrate disputes only had to do with accounts at Edward Jones. Schwarzes maintain that, even broadly construed, their claims are based on Gierke's actions as an insurance agent and are not subject to arbitration under the parties' agreement. The parties here, however, did not dispute the Schwarzes are third-party beneficiaries under Jodee Schwarz's account agreement with Edward Jones. Nonetheless, Schwarzes cannot base their tort action on a purported duty Gierke owed to Jodee Schwarz and, at the same time, disavow the full extent of the relationship between Gierke and Jodee Schwarz to avoid the arbitration provision.
[¶ 26] Schwarzes acknowledge on appeal that tort claims can be subject to arbitration, see, e.g., State ex rel. PaineWebber, Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo.1995); David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989), but argue that their tort claims are derived from Gierke's negligence with respect to the Protective policy, rather than from any Edward Jones accounts and that the Protective policy was independent of any account Jodee Schwarz held at Edward Jones. However, as discussed, the plain language of the agreement is broader than only transactions involving a specific Edward Jones account and includes any transactions with any Edward Jones agents or employees within the context of the entire agreement.
[¶ 27] For example, in In re Merrill Lynch Trust Co., the Texas Supreme Court held the plaintiffs' claims against a Merrill Lynch employee, involving certain trust and life insurance transactions, were in substance claims against Merrill Lynch and were subject to arbitration. 235 S.W.3d at 188-90. Notably, the account agreement contained a broad arbitration provision covering "all controversies" involving "any transaction"; and the plaintiffs, while suing the Merrill Lynch employee, trust company, and life insurance company, had not sued Merrill Lynch. Id. at 188. The court concluded the claims against the Merrill Lynch employee had to be arbitrated under the agreement for two reasons. "First, `parties to an arbitration agreement may not evade arbitration through artful pleading, such as by naming individual agents of the party to the arbitration clause and suing them in their individual capacity.'" Id. at 188 (quotation omitted). The court reasoned:
Id. at 188-89 (citations and quotation omitted). Second, the court said the substance of the plaintiffs' action was against Merrill Lynch, even though not named as a party. Id. at 189. The court explained:
Id. at 189 (emphasis added).
[¶ 28] Here, although the district court concluded that Gierke acted only as an agent of Protective when she secured the Protective policy, the parties do not dispute that Gierke worked for Edward Jones and that Edward Jones offered a broad spectrum of financial products and services, including life insurance. Regardless of whether Gierke was simultaneously a Protective agent at the time of the insurance transaction, for purposes of the arbitration agreement, Gierke also worked for Edward Jones. Gierke remained an Edward Jones agent and representative, and the record does not suggest Gierke ceased working for Edward Jones when terminating Jodee Schwarz's "suitable" policies and when securing the purported "unsuitable" policy. Further, the Edward Jones account agreement contemplates that, as a part of "brokerage services," a client would receive additional financial services and information from Edward Jones, including certain services involving insurance.
[¶ 29] Resolving any doubts concerning the scope of arbitrable issues in favor of arbitration, we conclude the arbitration provision at issue is a broad provision which applies to Schwarzes' claims based primarily on the relationship between Gierke and Jodee Schwarz and asserts a breach of an alleged duty Gierke owed to Jodee Schwarz. We therefore conclude the district court erred in denying Gierke's motion to compel arbitration.
[¶ 30] The district court order denying the motion to compel arbitration is reversed, and the case is remanded for entry of an order compelling arbitration.
[¶ 32] The Honorable JOHN C. McCLINTOCK, JR., D.J., and the Honorable WILLIAM F. HODNY, S.J., sitting in place of SANDSTROM, J., and MARING, J., disqualified. The Honorable RONALD E. GOODMAN, S.J., sitting in place of KAPSNER, J., who disqualified herself subsequent to oral argument.