Conjunction Junction What’s Your Function?

Simon PLC Attorneys & Counselors – September 2023 Memorandum

Conjunction Junction What’s Your Function?

Troy, MI. Many attorneys of a certain age may remember this old line from ‘Schoolhouse Rock!’ that would air on Saturday mornings.  This question was recently answered by the Michigan Court of Appeals in Paine v Godzina, Michigan COA 363530 (July 27, 2023) where the court decided the meaning of the conjunction “and”.    

In Paine, the plaintiff dentist brought suit to enforce a non-compete agreement against the defendant dentist and his practice.  Defendants moved to compel arbitration pursuant to MCR 2.116(C)(7) on the basis that the agreement between the defendants and plaintiff required arbitration.  The circuit court denied defendants’ motion.  The Court of Appeals affirmed because the circuit court correctly concluded that the case was not subject to arbitration under the arbitration clause of the agreement.

At issue is the use of the conjunction “and” in the arbitration agreement.  The agreement reads in part, “[a]ny dispute controversy or claim between the Associate and the Employer concerning questions of fact arising under this Agreement and concerning issues related to wrongful termination . . . shall be submitted . . . to the American Arbitration Association.”  [Emphasis added.]

Defendants argued that the agreement requires arbitration for either “questions of fact arising under this Agreement” or “issues related to wrongful termination.”  The Court of Appeals disagreed and harkened back to the Conjunction Junction cartoon and held that “’[a]nd’ is a conjunctive, used to denote a joinder, a union.  ‘Or’ is the opposite, a disjunctive, used to indicate a disunion, a separation, an alternative.”  In other words, the Court of Appeals held that the arbitration agreement requires arbitration only for cases that involve both questions of fact arising under the arbitration agreement and issues related to wrongful termination.  This turned out to be a much narrower interpretation of the arbitration agreement.  The Court of Appeals reasoned that if the arbitration agreement included the word ‘or’ in place of the word ‘and’ “would have more clearly established that arbitration is required for either one of the two specifically listed instances.”  The parties didn’t do that to the detriment of the defendants, despite the fact that the arbitration agreement was “not as clear as it could be.”

Attorneys drafting contracts must be cognizant of the words ‘and’ and ‘or’ and whether the linking of phrases is to be joined or separated in the conjunctive or disjunctive.  Careful consideration must be given to all words when drafting contracts in order to avoid the pitfalls that prevented the defendants in Paine from compelling arbitration.  The attorneys at Simon PLC have decades of experience in drafting contracts of all types with a keen eye for the careful consideration of words like ‘and’ and ‘or’ which the Court of Appeals noted are not interchangeable.

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