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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. GeoTek Alaska, Inc. v. Jacobs Engineering Group, Inc. (8/14/2015) sp-7031

GeoTek Alaska, Inc. v. Jacobs Engineering Group, Inc. (8/14/2015) sp-7031

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



GEOTEK ALASKA, INC.,                                  )  

                                                      )        Supreme Court No. S-15449  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-12-05453 CI  

         v.                                           )  

                                                      )        O P I N I O N  

JACOBS ENGINEERING GROUP,                             )  

INC., and JACOBS FIELD                                )        No. 7031 - August 14, 2015  


SERVICES NORTH AMERICA,                               )  

INC.,                                                 )  


                           Appellees.                 )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Erin B. Marston, Judge.  

                  Appearances:  Michael  Jungreis  and  Jason  Hartz,  Davis  

                  Wright Tremaine LLP, Anchorage, for Appellant.  Robert J.  


                  Dickson  and  Christopher  J.  Slottee,  Atkinson,  Conway  &  

                  Gagnon, Anchorage, for Appellees.  

                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  



                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  An insolvent subcontractor failed to pay its sub-subcontractor for work  

performed,  and  the  sub-subcontractor  sought  payment  directly  from  the  general  

contractor  through  a  demand  for  arbitration.    The  general  contractor  declined  to  

----------------------- Page 2-----------------------

participate.  The arbitrator awarded damages to the sub-subcontractor, who filed an  

action to confirm the award in superior court.  The sub-subcontractor also brought a  


negligence claim, contending that the general contractor knew of its subcontractor's  

financial instability and negligently failed to ensure that the sub-subcontractor would be  


paid.  The superior court granted summary judgment to the general contractor on both  


the enforceability of the arbitration award and the viability of the negligence claim.  The  

sub-subcontractor appeals.   

                   We  affirm,  concluding  that  whether  the  general  contractor  effectively  


exercised its contractual right to decline arbitration is an issue of arbitrability, correctly  

decided by the superior court, and that the general contractor had no extra-contractual  

duty in tort to guarantee its subcontractor's payment obligations.  


          A.       Facts  

                   Jacobs  Engineering  Group,  Inc.  was  awarded  a  contract  by  the  United  


States Air Force for environmental remediation.  While preparing to bid on the project,  


Jacobs Engineering Group and its subsidiary Jacobs Field Services North America, Inc.  


(collectively "Jacobs") sent out a request for proposal (RFP) for soil sampling services  


at a tank farm near Nome and at the Nikolski Radio Station on Umnak Island.  Included  

in  the  RFP  was  a  requirement  that  the  subcontractor  have  bonding  to  cover  all  its  


payment  and  performance  obligations.                     One  of  the  recipients  of  Jacobs's  RFP  was  


Precision  Sampling,  Inc.,  doing  business  as  Direct  Sensing,  Inc.  (DSI).    Ultimately  

Jacobs awarded the subcontract to DSI.  DSI entered into a second-tier subcontract with  

GeoTek  Alaska,  Inc.,  to  provide  the  required  Ultra-Violet  Optical  Screening  Tool  

(UVOST) equipment.   


                   DSI's parent corporation in Canada was undergoing financial difficulties  


at the time of the bidding process; the parties dispute what Jacobs knew or should have  

                                                             -2-                                                      7031

----------------------- Page 3-----------------------


known about DSI's situation.  They also dispute the extent to which Jacobs's award of  


the  subcontract  to  DSI  was  because  of  Jacobs's  desire  to  work  with  GeoTek.    It  is  


undisputed, however, that DSI was unable to obtain the payment and performance bonds  


required by the RFP and asked Jacobs to waive the requirement.  Jacobs agreed to move  

forward with the DSI subcontract, but it developed a risk management plan requiring that  


15  percent of Jacobs's payment to  DSI  be  retained  to  assure  the  payment  of  DSI's  


second-tier subcontractors and that those second-tier subcontractors submit releases of  

claims, certifying they had been paid.  


                    Shortly before GeoTek deployed to the Nome project location, it learned  


that Jacobs had waived its requirement that DSI be bonded.  GeoTek nonetheless signed  


its second-tier subcontract with DSI a few days later.  According to its vice president's  

affidavit, "[a]t that point GeoTek was committed, and had no other work available on  

short notice; and additionally was reassured by Jacobs's policy of ensuring that its lower  

tier subcontractors are paid."   


                    DSI and GeoTek satisfactorily completed the Nome project.  Jacobs paid  


DSI and DSI signed a release in September 2009, certifying that it  had  paid  for all  


services furnished in connection with the contract. Jacobs did not retain any amounts or  

require  a  release  from  GeoTek,  as  contemplated  by  the  risk  management  plan.    In  


September 2009, DSI and GeoTek attempted deployment to Nikolski but were delayed  


in Dutch Harbor because of weather.  The project was eventually put off until 2010 but,  

for reasons not relevant to this appeal, DSI and GeoTek never reached Nikolski and  

never did any work there.  


                    DSI did not pay GeoTek for its work on the Nome project or for its 2009  

mobilization for Nikolski.  

                                                               -3-                                                         7031

----------------------- Page 4-----------------------

         B.        Proceedings  

                   Jacobs's contract with DSI included an arbitration provision that is central  


to this appeal.  The provision's language will be dissected later in this opinion, but in  


summary it gives Jacobs the unilateral right to accept or reject arbitration once a demand  


has been made.  Jacobs did not have a contract with GeoTek, but Jacobs's contract with  


DSI included a provision that required DSI to " 'flow down' all terms and conditions of  

the subcontract into any sub-subcontract."  The Jacobs-DSI contract also had a provision  

on assignment, which provides:  

                   Neither this Subcontract nor any interest therein including  


                   any claim thereunder shall be assigned or transferred by the  

                   Subcontractor          to   another       entity,    except      as    expressly  

                   authorized  in  writing  by  the  Subcontract  Manager.    The  

                   Company         reserves      the    exclusive       right    to    assign     this  

                   Subcontract and all rights and interest therein.  

                   In a demand for arbitration dated April 28, 2010, GeoTek asserted a claim  


                                                                               1  The demand was apparently  

against Jacobs for the amounts DSI had failed to pay it.    

forwarded to Jacobs by the American Arbitration Association (AAA).  Jacobs responded  

to  GeoTek's demand for arbitration on May 13, asserting in a letter to the AAA that  


"Jacobs does not have a contract with Geo Tek and therefore, Geo Tek has no bona fide  


contract  claim  against  Jacobs  and  it  would  be  inappropriate  for  Jacobs  to  engage  


Geo Tek in an arbitration proceeding."  Jacobs stated that it "rejects Geo Tek's demand  

for arbitration and recommends that Geo Tek pursue its contractual rights and claims  

against its customer, [DSI]."  


                   GeoTek  proceeded alone with arbitration under the aegis of the AAA.  On  


January 20, 2011, DSI and GeoTek executed an agreement in which they asserted that  

          1        GeoTek's arbitration demand is not in the record, but neither party disputes  

that it was made; its date is referenced in Jacobs's response.  

                                                           -4-                                                        7031  

----------------------- Page 5-----------------------

"[n]either DSI [nor GeoTek has] been paid in full by Jacobs for the work done on the  


West Nome or Nicolski [sic] Projects" and DSI assigned its claims against Jacobs to  


GeoTek, retaining a right to 30 percent of any amounts collected.  On GeoTek's motion,  

the arbitrator then ruled on the arbitrability of these claims, deciding that both GeoTek's  


original claims against Jacobs and DSI's assigned claims were arbitrable.  The arbitrator  

allowed GeoTek to amend its demand for arbitration to include both sets of claims and  


gave Jacobs 14 days to respond to the amended demand.  The record shows no further  

written response from Jacobs.  

                   The  arbitrator  held  an  evidentiary  hearing  in  August  2011,  which  was  

attended only by representatives of GeoTek and DSI; the arbitrator's findings of fact and  


conclusions of law note that Jacobs was again contacted but declined to participate.  The  


arbitrator awarded GeoTek $257,687.62 "on behalf of work done by GeoTek Alaska and  

 [DSI]," with interest continuing to accrue at 10.5 percent per annum.  

                   GeoTek  filed  a  complaint  in  superior  court  seeking  to  confirm  the  

arbitration  award  and  asserting  several  other  theories  of  recovery  against  Jacobs,  


including  breach  of  contract,  unjust  enrichment,  quantum  meruit,  and  breach  of  the  

covenant of good faith and fair dealing.  Jacobs answered and moved for summary  

judgment, arguing that it had no contract with GeoTek and, if it did, it had effectively  

exercised its contractual right to refuse to arbitrate.  GeoTek filed a cross-motion to  


confirm the arbitration award.  The superior court granted Jacobs's summary judgment  


motion, concluding that Jacobs "timely rejected GeoTek's demand to arbitrate . . . [and  

that] Jacobs was not legally obligated to participate in the arbitration."  


                   While the court's decision of these motions was pending, GeoTek amended  


its complaint to assert a negligence claim.  Jacobs moved for summary judgment on that  

claim as well, and the superior court granted summary judgment on the ground that  

Jacobs did not owe GeoTek a duty of care in tort to ensure it was paid by DSI.  

                                                            -5-                                                      7031

----------------------- Page 6-----------------------

                   On appeal GeoTek argues that the superior court erred in granting Jacobs's  


motions for summary judgment.  GeoTek argues that (1) it had an agreement to arbitrate  


with Jacobs, and it was up to the arbitrator to decide whether Jacobs had exercised its  


right  to  reject  arbitration;  and  (2)  Jacobs  had  an  actionable  duty  in  tort  to  protect  

GeoTek's financial interests.  



                   "A superior court's decision reviewing an arbitration award is subject to  

                          2   "Whether [a] claim is arbitrable is a question of law subject to de  


de novo review." 


novo review."   The existence and extent of a duty of care also presents a question of  


law, which we review de novo.4  


          A.	      The Superior Court Did Not Err In  Granting Summary Judgment To  


                   Jacobs On The Arbitrability Issue.  

                   The superior court correctly decided that whether Jacobs had agreed to  


arbitrate this dispute was a question for the court rather than the arbitrator.  The superior  


court then relied on the specific language of the arbitration provision at issue to conclude,  


again correctly, that Jacobs did not agree to arbitrate this dispute and that the award  


therefore could not be confirmed.   

          2        Johnson v. Aleut Corp. , 307 P.3d 942, 947 (Alaska 2013).  

          3        Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC , 157 P.3d   470, 472  

(Alaska 2007).  

          4        Hurn v. Greenway , 293 P.3d 480, 483 (Alaska 2013).  

                                                             -6-	                                                     7031

----------------------- Page 7-----------------------



                   For purposes of argument we assume, as the superior court apparently did, 

that the arbitration provision in the Jacobs's contract with DSI "flowed down" and by  

flowing down governed the relationship between Jacobs and GeoTek as well.   


                   1.	       Whether Jacobs agreed to arbitrate the dispute was a question  

                             for the court, not the arbitrator.  



                   The Federal Arbitration Act  and Alaska's Uniform and Revised Uniform 

                       7	                                                                                          8 


Arbitration Acts  all reflect "a strong policy in favor of the arbitration of disputes."   Like  

federal  law,  Alaska's  statutes  provide  that  "[a]n  arbitrator  shall  decide  whether  a  


                                                                                 Alaska's statutes also provide,  

condition precedent to arbitrability has been fulfilled." 


however, that "[t]he court shall decide whether an agreement to arbitrate exists or a  

          5        At  oral  argument  on  Jacobs's  first  motion  for  summary  judgment,  the  

superior court asked counsel for Jacobs whether it was "Jacobs's position that even if  

there was a flow-down, a forcible flow-down provision, . . . that it doesn't really matter,  

because within 30 days they have the sole right to accept or reject[,] [a]nd, in this case,  


they unequivocally rejected the arbitration."  The court later asked counsel for GeoTek  

whether it was his "position that even if there was an assignment or a flow down, that  

doesn't change the terms of the arbitration clause . . . that Jacobs would still have the  

right  to  arbitrate  or  not,  at  their  discretion."    Both  counsel  agreed  with  the  court's  

characterizations of their clients' positions.  

          6	       9 U.S.C.  1 et seq. (2012).  

          7        AS  09.43.010  -  .180  (Uniform  Arbitration  Act);  AS  09.43.300  -  .595  

(Revised Uniform Arbitration Act).  

          8	       Gibson v. Nye Frontier Ford, Inc., 205 P.3d 1091, 1096 (Alaska 2009).  

          9        AS 09.43.330(d); see BG Grp., PLC v. Republic of Argentina , 134 S. Ct.  

1198, 1207 (2014) (citations omitted) (explaining that "courts presume that the parties  

intend arbitrators, not courts, to decide disputes about the meaning and application of  


particular procedural preconditions for the use of arbitration").  

                                                            -7-	                                                     7031

----------------------- Page 8-----------------------

controversy is subject to an agreement to arbitrate,"10 mirroring federal law "that courts  


                                                                                                  "One reason for this  

are the proper forum to determine whether a dispute is arbitrable." 


division of authority is [that] [b]ecause arbitrators have such broad discretion, it is often  


problematic for them to decide their own jurisdiction, for if they are wrong, there may  


be essentially no review" because of the "extreme deference [that a court will give] to  


the arbitrator."           

                     The  first  question  we  must  answer  in  this  case,  therefore,  is  whether  


Jacobs's consent was necessary before a particular dispute could be "subject to [the]  

agreement  to  arbitrate"  -  in  which  case  the  issue  is  one  of  arbitrability  under  


AS 09.43.330(c), and the question of consent was for the superior court to decide; or, on  


the other hand, whether Jacobs's consent was "a condition precedent to arbitrability" -  

in which case the question of consent was up to the arbitrator under AS 09.43.330(d).  

The  United  States  Supreme  Court  recently  described  this  dichotomy  in  terms  of  


"presumptions" that help courts determine parties' intent "if the contract is silent on the  

matter  of  who  primarily  is  to  decide  'threshold'  questions  about  arbitration."13  

According  to  the  Court,  parties  are  presumed  to  intend  that  courts  will  decide  


"arbitrability"  issues  "such  as  'whether  the  parties  are  bound  by  a  given  arbitration  


clause,' or 'whether an arbitration clause in a concededly binding contract applies to a  

          10       AS 09.43.330(c).  

          11       Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC                            , 157 P.3d 470, 477  

(Alaska 2007).  

          12        Classified Emps. Ass'n  v. Matanuska-Susitna Borough Sch. Dist., 204 P.3d  

347, 353 (Alaska 2009) (quoting Fairbanks Fire Fighters Ass'n, Local 1324 v. City of  


Fairbanks , 48 P.3d 1165, 1169 (Alaska 2002)) (internal quotation marks omitted).  

          13       BG Grp., PLC , 134 S. Ct. at 1206.  

                                                             -8-                                                       7031

----------------------- Page 9-----------------------


particular type of controversy.' "                 On the other hand, parties are presumed to intend that  

arbitrators will decide disputes about "particular procedural preconditions for the use of  

arbitration," which may include whether "prerequisites such as time limits, notice, laches,  


estoppel,  and  other  conditions  precedent  to  an  obligation  to  arbitrate"  have  been  


                    We recognize that some conditions precedent can readily be recharacterized  

as  questions  of  arbitrability;  a  party  could  argue,  for  example,  that  it  has  agreed  to  

arbitrate only those disputes that are submitted to arbitration by a certain time, or on a  


certain form, or at a certain address - raising issues of "arbitrability" that clearly hinge  


on  the  determination  of  what  are  actually  procedural  preconditions.    For  a  cogent  

explanation of how to differentiate the two, Jacobs directs us to Rockland County v.  


                                                 In  that  case  the  Court  of  Appeals  of  New  York,  

Primiano  Construction  Co. 

recognizing that "[w]hether the particular requirement falls within the jurisdiction of the  


courts or of the arbitrators" could be reduced to a game of semantics, explained that the  


real difference "depends on [the requirement's] substance and the function it is properly  


perceived as playing - whether it is in essence a prerequisite to entry into the arbitration  



process or a procedural prescription for the management of that process."                                        The court  

noted that the parties, by contract, "may have erected a prerequisite to the submission of  

any dispute to arbitration, in effect a precondition to access to the arbitral forum," and  


          14        Id.  (quoting  Howsam  v.  Dean  Witter  Reynolds,  Inc. ,  537  U.S.  79,  84  


          15        Id. at 1206-07 (internal footnotes, citations, and internal quotation marks  


          16        409 N.E.2d 951 (N.Y. 1980).  

          17        Id. at 954.  

                                                              -9-                                                       7031

----------------------- Page 10-----------------------

that "[i]n such event the reluctant party may be forced to arbitration only if the court  


                                                                                                          It cited another  

determines that this portion of the agreement has been complied with." 


case with parallels to this one:  Opan Realty Corp. v. Pedrone, in which a partnership  


agreement stipulated that any dispute would be decided by the American Arbitration  


Association "but that a dispute shall not be determined to exist thereunder until the  


matter is first submitted for determination to the partnership," which could resolve the  

                                          19  The court in Opan Realty held that whether this condition  


matter by an 80 percent vote.  

had been fulfilled was "a question at least initially for the court, not the arbitrator."20  


And the court in Rockland County concluded:  "Beyond that it is to be remembered that  


inasmuch as the entire arbitration process is a creature of contract, the parties by explicit  


provision of their agreement have the ability to place any particular requirement in one  


category or the other."21  


                    The United States Supreme Court undertook a similar analysis in Howsam  


v.  Dean  Witter  Reynolds,  Inc. ,  in  which  it  categorized  all  threshold  questions  as  

"gateway" questions that can be sorted into questions of arbitrability decided by the court  

                                                                         22  Like the court in Rockland County ,  

and procedural questions decided by the arbitrator.  


the  Supreme  Court  recognized  that  the  semantic  difficulty  in  drawing  the  boundary  

between the two types of gateway questions is best resolved by determining whether the  

          18       Id. (footnote omitted).  

          19        335 N.E.2d 854, 855 (N.Y. 1975).  

          20       Id.  

          21        409 N.E.2d at 955.  Notably, the New   York Court of Appeals used an  

earlier formulation of          the relevant  dichotomy,  in which questions of arbitrability, rather  

than procedural preconditions, were termed "conditions precedent."  Id. at 954-55.  

          22        537 U.S. 79, 83-85 (2002).  

                                                             -10-                                                       7031

----------------------- Page 11-----------------------


particular question at issue is of a type that the parties would likely expect to be decided  

by an arbitrator or a judge:  

                    The Court has found the phrase ["question of arbitrability"]  

                    applicable   in   the   kind   of   narrow   circumstance   where  


                    contracting parties would likely have expected a court to have  


                    decided the gateway matter, where they are not likely to have  


                   thought that they had agreed that an arbitrator would do so,  

                    and, consequently, where reference of the gateway dispute to  

                   the  court  avoids  the  risk  of  forcing  parties  to  arbitrate  a  


                   matter that they may well not have agreed to arbitrate.  

                             . . . .  

                             At  the  same  time  the  Court  has  found  the  phrase  


                    "question of arbitrability"  not applicable in other kinds of  

                    general circumstance where the parties would likely expect  

                   that an arbitrator would decide the gateway matter.   Thus  

                    " 'procedural' questions which grow out of the dispute and  

                   bear on its final disposition" are presumptively  not for the  


                   judge, but for an arbitrator, to decide.  


                   Within this general framework we seek to determine what the parties to the  

Jacobs-DSI contract could reasonably have expected from the specific language they  

used to describe the arbitration option.  We resolve ambiguities "in favor of arbitrability  



where  such  construction  is  not  obviously  contrary  to  the  parties'  intent." 


"[b]ecause arbitration is a creature of contract, parties can only be compelled to arbitrate  


a matter when they have agreed to do so."                         "Accordingly, if a dispute is not, under a  


plausible interpretation, covered under the arbitration clause of a[n] . . . agreement, it  

          23       Id. at 83-84 (emphasis in original) (internal footnotes and citations omitted).  

          24       Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC , 157 P.3d 470, 476   

(Alaska 2007) (quoting  Univ. of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138  

(Alaska 1974)).  

          25       Id. at 477.  

                                                            -11-                                                       7031

----------------------- Page 12-----------------------


should not be arbitrated because 'a party cannot be required to submit to arbitration any  


                                                                            We are therefore required to vacate  

dispute which he had not agreed so to submit.' " 

an arbitration award if we find that "there was not an agreement to arbitrate."27  

                    The "Disputes on Claims" section of the Jacobs-DSI contract begins with  


the subcontractor's agreement "to first submit any claim or dispute arising under, related  


to  or  in  connection  with  the  Work,  this  Subcontract,  or  the  Project,  to  Company  in  

writing prior to initiating any legal or other dispute procedure."  A few paragraphs later  

the arbitration provision reads, in relevant part:  

                              All  claims,  disputes  and  other  matters  in  question  


                    between Subcontractor and Company arising out of or related  

                    to the Work, this Subcontract or the Project . . . shall, at the  

                    sole option of the Company, be decided by arbitration.  In the  


                    event the Company elects to have the matter resolved through  


                    arbitration, then at Company's direction, Subcontractor shall  


                    submit the matter to the American Arbitration Association for  

                    processing  under  the  appropriate  Industry  Rules  of  the  

                    American Arbitration Association then in effect.  If a claim  


                    is   made,       or    a    demand         for    arbitration       is    filed,     by  


                    Subcontractor,  Company  will  advise  Subcontractor  within  


                    thirty 30  days [sic] after the receipt of such a demand for  

                    arbitration . . . , if Company exercises the option to arbitrate  


                    or  rejects  arbitration;  such  election,  once  made,  shall  be  




We conclude that this provision is unambiguous.  The only claims Jacobs has agreed to  


arbitrate  are  those  it  elects, on  a  case-by-case  basis,  to  have  decided  by  arbitration.  

          26        Classified Emps. Ass'n v. Matanuska-Susitna Borough Sch. Dist., 204 P.3d  

347, 353 (Alaska 2009) (quoting AT & T Techs., Inc. v. Commc'ns Workers of Am. , 475  


U.S. 643, 648 (1986)).  

          27        AS 09.43.500(a)(5).  

          28        Emphasis added.  

                                                             -12-                                                        7031

----------------------- Page 13-----------------------

Arbitration of any claim will occur at Jacobs's "sole option," which Jacobs will exercise  

within 30 days of receiving a demand.  Jacobs's election, once made, is binding.  And  


it  is  only  "[i]n  the  event  [that]  [Jacobs]  elects  to  have  the  matter  resolved  through  


arbitration"  that  the  matter  will  "then"  be  referred  to  the  American  Arbitration  

Association for processing under the AAA rules.  


                    Jacobs's consent to arbitrate any particular dispute is not a mere procedural  

precondition to arbitrability, "such as time limits, notice, laches, estoppel, and other  

conditions precedent to an obligation to arbitrate."29  Jacobs agreed to arbitrate a limited  


category of disputes:  those it identified, on a case-by-case basis, as disputes it was  


willing to submit to arbitration.  The issue of Jacobs's consent therefore presented a  

question of arbitrability - "whether [the] controversy is subject to [the] agreement to  

arbitrate" - and was properly for the court to decide.30  

                    2.	       The superior court correctly held that Jacobs did not agree to  


                              arbitrate GeoTek's claim.  


                    GeoTek apparently demanded arbitration on April 28, 2010.                                       Although  


it  is  not  apparent  from  the  record  when  Jacobs  received  GeoTek's  demand,  Jacobs  


responded  on  May  13,  2010,  well  within  30  days  of  the  demand's  date.    Jacobs's  


response  was  unequivocal:    "Jacobs  rejects  Geo  Tek's  demand  for  arbitration  and  


recommends that Geo Tek pursue it[s] contractual rights and claims against its customer,  


[DSI]."  Jacobs's response could not reasonably have been misunderstood.  Its clear and  


          29        See BG Grp., PLC v. Republic of Argentina                        , 134 S. Ct. 1198, 1207 (2014)  

(internal quotation marks and citation omitted).  

          30        AS 09.43.330(c).  

          31        As noted above, Jacobs's response to the American Arbitration Association  

referenced the Association's May 5, 2010 letter and GeoTek's April 28, 2010 demand.  

                                                              -13-	                                                        7031

----------------------- Page 14-----------------------

unequivocal  decision  not  to  arbitrate  was,  according  to  the  contract,  binding  on  the  


                     3.          GeoTek's arguments are unpersuasive.  

                     GeoTek contends that the requirement of Jacobs's consent to arbitration is  


not a determinant of arbitrability but rather a condition precedent to arbitration, like the  


others  -  time  limits,  notice,  laches,  and  estoppel  -  that  courts  have  left  for  the  


arbitrator's determination.  GeoTek also asserts that the superior court "failed to engage  

in  the  limited  arbitrability  inquiry  allowed  under  Alaska  law"  because  the  court's  


decision was not limited to whether the parties had an arbitration agreement or whether  


it covered the parties' dispute. GeoTek argues that "Jacobs's letter [rejecting arbitration]  

did  not  absolve  it  of  any  obligation  to  participate  in  the  arbitration"  because  it  was  


"necessary for Jacobs to participate in the arbitration to the extent it objected to the  

arbitrator's  exercise  of  jurisdiction."    Finally,  GeoTek  argues  that  even  if  Jacobs's  


rejection presented an issue of arbitrability, the superior court should not have addressed  

it because the parties had explicitly delegated arbitrability determinations to the arbitrator  

through their incorporation of the AAA Industry Rules.  

                     As explained above, discerning the parties' intent is our paramount concern  


when we are deciding whether consent to arbitration presents a question of arbitrability  


                                                             We have repeatedly recognized that "[b]ecause  

or a procedural condition precedent.  


arbitration is a matter of contract, parties can only be compelled to arbitrate a matter  


                                                          Thus, "if there are terms in a contract that either  

where they have agreed to do so."                                    

exclude arbitration or indicate that an issue should not be subject to arbitration, then  


          32        Lexington Mktg. Grp., Inc. v. Goldbelt Eagle, LLC , 157 P.3d   470, 478  

(Alaska 2007) (providing for arbitration when it "is consistent with the parties' intent").         

          33         Id. at 477.  

                                                                -14-                                                          7031

----------------------- Page 15-----------------------



requiring that the matter be sent to arbitration would be inappropriate."                                   In this case we  


are  convinced  that  the  plain  language  of  the  arbitration  provision  demonstrates  the  

parties'  intent  that  Jacobs  decide  unilaterally  whether  any  given  dispute  will  be  


arbitrated; that is, a dispute's arbitrability is determined by whether Jacobs agrees to  

arbitrate it.  We respect the parties' choice of language.  To adopt GeoTek's position  

instead would be to hold that a party that has bargained for the contractual right to avoid  


arbitration at its sole option must in fact arbitrate in order to vindicate that right - with  

no prospect of de novo judicial review.  


                    GeoTek  also  argues  that  the  parties'  arbitration  provision  expressly  


provides that disputes shall be resolved according to "the appropriate Industry Rules of  


the American Arbitration Association" and that these rules give the arbitrator "the power  

to  rule  on  his  or  her  own  jurisdiction,  including  any  objections  with  respect  to  the  


existence, scope, or validity of the arbitration agreement."                                We need not decide what  


the AAA Industry Rules would require in this case, because we disagree with GeoTek's  

assertion that they govern the procedure the parties have adopted for the initiation of  



                    The presumption that arbitrability is a question for the courts can only be  

rebutted if the parties have "clearly and unmistakably provide[d] otherwise."36                                             The  


arbitration provision at issue here plainly states that a matter shall be "submitted to the  

American Arbitration Association for processing under the appropriate Industry Rules  

          34        Classified Emps. Ass'n v. Matanuska-Susitna Borough Sch. Dist., 204 P.3d  

347, 353 (Alaska 2009).  

          35        See Am. Arbitration Ass'n, Comm. Arbitration Rule 7(a) (2013).  

          36        State  v.  Pub.  Safety  Emps.  Ass'n,  798  P.2d  1281,   1285  (Alaska  1990)  

(quoting AT & T Techs., Inc. v. Commc'ns Workers of Am.                                 , 475 U.S. 643, 649 (1986)).  

                                                              -15-                                                         7031

----------------------- Page 16-----------------------


of the American Arbitration Association then in effect" only "[i]n the event  [Jacobs ]  

elects to have the matter resolved through arbitration;" if Jacobs so elects, "then" the  


matter will be submitted to the AAA "at [Jacobs's] direction."                                   Under the contract's  

explicit language, the AAA rules come into play only after Jacobs has agreed to submit  



a claim to arbitration - which in this case it refused to do.                           The parties did not "clearly  

and unmistakably" provide that the arbitrator determine questions of arbitrability, but  

rather the opposite.39  


          B.	       The Superior Court Did Not Err In Granting Summary Judgment To  

                    Jacobs On GeoTek's Negligence Claims.  


                    GeoTek also appeals from the superior court's grant of summary judgment  


to Jacobs on GeoTek's negligence claims. GeoTek alleged in its amended complaint that  

Jacobs was responsible for DSI's payments to GeoTek because of Jacobs's negligent  


failure  (1)  to  require  DSI  to  post  a  performance  bond  to  ensure  the  payment  of  its  


subcontractors, as required by Jacobs's form contract; (2) to follow the provisions of its  


proposed risk management plan regarding a 15 percent retainage and signed releases  

from DSI's second-tier subcontractors; and (3) to inform GeoTek that it had not taken  


these steps.  The superior court found no support in the contract, in statutes, or in the  

          37	       Emphasis added.  

          38        See  Opan  Realty  Corp.  v.  Pedrone,  335  N.E.2d  854,  855  (N.Y.  1975)  

(holding that where partnership agreement stated that any dispute would be decided by  


the American Arbitration Association but must first be submitted to the partnership for  


consideration, whether this precondition had been satisfied was a matter for the court).  


          39        We  necessarily  reject  GeoTek's  additional  argument  that  the  claims  

assigned to it by DSI were separately arbitrable.  Arbitrability depended on Jacobs's  


election  to  arbitrate, which it never made with regard to any of the claims at issue,  

whether direct or assigned.  

                                                             -16-	                                                       7031

----------------------- Page 17-----------------------


common law for the imposition of a negligence duty on Jacobs.  We conclude that the  

superior court did not err.  

                   1.	      The superior court correctly held that Jacobs did not have an  


                            extra-contractual  duty  to  protect  GeoTek  against  the  risk  of  

                            nonpayment by DSI.  

                   To determine whether a defendant owes a plaintiff a duty of reasonable  

care, "we first determine whether a duty is imposed by statute, regulation, contract,  


undertaking,  the  parties'  preexisting  relationship,  or  existing  case  law."                          "If  these  


sources  do  not  resolve  the  issue,  we  apply  the  multi-factor  approach  discussed  in  


                                                                                        The so-called "D.S.W.  

D.S.W. . . . to determine whether an actionable duty exists." 


factors" are seven public policy considerations we use to determine whether we should  

recognize a negligence duty not otherwise defined by law.42  

         40       McGrew v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

Servs., 106 P.3d 319, 322 (Alaska 2005) (footnote omitted).  

         41       Id. (citing D.S.W. v. Fairbanks N. Star Borough Sch. Dist. , 628 P.2d 554,   

555 (Alaska 1981)).  

         42	       The D.S.W. factors are:  

                   The  foreseeability  of  harm  to  the  plaintiff,  the  degree  of  

                   certainty that the plaintiff suffered injury, the closeness of the  

                   connection between the defendant's conduct and the injury  

                   suffered,   the   moral   blame   attached   to   the   defendant's  

                   conduct, the policy of preventing future harm, the extent of  

                  the   burden   to   the   defendant   and   consequences   to   the  

                   community of imposing a duty to exercise care with resulting  


                   liability for breach, and the availability, cost and prevalence  

                   of insurance for the risk involved.  

D.S.W. , 628 P.2d at 555 (quoting Peter W. v. San Francisco Unified Sch. Dist. , 131 Cal.  


Rptr. 854, 859-60 (Cal. App. 1976)).  

                                                         -17-	                                                  7031

----------------------- Page 18-----------------------

                    For its imposition of a duty in this case, GeoTek relies on Mattingly v.  


Sheldon Jackson College.                    In Mattingly we held that "a defendant owes a duty of care  


to take reasonable measures to avoid the risk of causing economic damages, aside from  

physical injury [or property damage], to particular plaintiffs or plaintiffs comprising an  

identifiable class [of persons who] defendant knows or has reason to know are likely to  


suffer  such  damages  from  its  conduct."                          GeoTek  contends  that  "[i]n  accord  with  


Mattingly ,  . . . Jacobs's awareness of GeoTek combined with its knowledge that GeoTek  


could suffer [the] economic harm of not being paid by DSI is what gave rise to a duty."  

                    But GeoTek misinterprets our holding in Mattingly .   Mattingly  did not  


create a new duty in tort, let alone one so broad as to provide a negligence cause of  

action  for  any  foreseeable  economic  harm  caused  by  another's  lack  of  due  care.  


Mattingly  simply  expanded  liability  in  tort  to  include  purely  economic  losses;  this  


marked  a significant departure from the long-standing "virtually per se  rule barring  



recovery for economic loss unless the negligent conduct also caused physical harm." 


                    After Mattingly we have never held that foreseeable economic harm to an  


                                                                                                            For example, in  

identifiable plaintiff is all that is required to establish a duty of care. 

Mesiar v. Heckman we considered whether the Alaska Department of Fish and Game  

          43         743 P.2d 356 (Alaska 1987).  

          44        Id. at 360 (quoting People Express Airlines, Inc. v. Consol. Rail Corp.                                  , 495  

A.2d 107, 116 (N.J. 1985)) (first alteration in Mattingly ; second alteration added).  

          45        Id. at 359 (quoting People Express , 495 A.2d at 109).  



                    A federal court recognized this in U.S. ex rel. N. Star Terminal & Stevedore  


Co.  v.  Nugget  Constr.,  Inc.,  445  F.  Supp.  2d  1063,  1076  n.42  (D.  Alaska  2006)  


("Mattingly  . . . stands for the proposition that a party that is only economically injured  

can nonetheless sue for negligence, so long as a duty exists .  It defines the parameters of  

an  existing  duty  and  does  not,  as  Plaintiffs  imply,  impose  a  new  duty  where  there  


otherwise would be none.") (emphasis added).  

                                                               -18-                                                         7031

----------------------- Page 19-----------------------


could be liable on claims it had negligently miscounted a salmon run, thereby causing  

unnecessary restrictions on certain Yukon River fisheries and economic harm to the  



plaintiffs.       To determine whether "an actionable duty of care exist[ed]" we turned to the  



D.S.W.  factors.           In our discussion of the first D.S.W.  factor - the foreseeability of  


harm - we cited Mattingly for the proposition that "for purely economic harm, the  


identifiable  class  of  plaintiffs  must  be  particularly  foreseeable  in  number,  type,  and  

                                    49   We agreed with the plaintiffs that the Department's "closure  

economic expectations."     

decisions predictably and specifically harmed users [including the plaintiffs]."50                                        But  


noting that any fisheries-management action that harms one user group may favor others,  

we  concluded  that  "the  foreseeability  of  harm  to  [the  plaintiffs]  is  not  a  dispositive  


factor" in determining the existence of a tort duty and went on to weigh the remaining  



D.S.W. factors.           We ultimately concluded that the Department owed no actionable duty  


to the plaintiffs - a conclusion we would not have reached if all that is required under  

Mattingly  for a duty to exist is the foreseeability of economic harm to an identifiable  



          47        964 P.2d 445, 448-49 (Alaska 1998).  

          48        Id.  at 450 (citing D.S.W. v. Fairbanks N. Star Borough Sch. Dist. , 628 P.2d  

554, 555 (Alaska 1981)).  

          49        Id.  

          50        Id.  

          51        Id.  

          52        Id. at 452; see also  Lynden Inc. v. Walker ,  30 P.3d 609, 614 (Alaska 2001)  

(summarizing  Mesiar  and  noting  that  in  that  case,  "[d]espite  the  foreseeability  of  

economic injury to fishermen if data was improperly collected, we found that [other  

D.S.W.] factors argued against imposing a duty").  

                                                             -19-                                                       7031

----------------------- Page 20-----------------------

                     We followed the same course in                    Stephens v. State, Department of Revenue                        ,  


decided just a few months after  Mattingly .                          A taxpayer sued the State, alleging that the  

Department  of  Revenue  had  negligently  and  maliciously  attempted  to  collect  on  a  



judgment  for  unpaid  taxes  after  the  debt  had  been  discharged  in  bankruptcy. 

determine  "whether  the  defendant  owed  the  plaintiff  a  duty  of  care  under  the  

circumstances," we reviewed the D.S.W. factors.55  We observed initially that "[i]nnocent  


defendants or those not liable to a plaintiff will foreseeably suffer harm as a direct result  

of a negligently brought prosecution or lawsuit," but again the foreseeability of economic  


harm to an identifiable plaintiff was not sufficient to establish a duty:  we analyzed the  

remaining public policy considerations from D.S.W. and concluded that no duty existed.56  

                     Notably, the New Jersey case we followed in Mattingly , People Express  


                                                            recognized the limits of looking to foreseeability  

Airlines v. Consolidated Rail Corp. ,  


alone to determine whether a duty in tort exists.  Reflecting our own reliance on public  


policy  concerns  as  identified  in  D.S.W. ,  the  New  Jersey  Supreme  Court  in  People  


Express observed that courts "will be required to draw upon notions of fairness, common  

sense and morality to fix the line limiting liability as a matter of public policy, rather than  


                                                                                       New Jersey courts since People  

an uncritical application of particular foreseeability." 

           53        746 P.2d 908 (Alaska 1987).

           54        Id. at 909.

       Id. at 910.  

           56        Id. at 911.  

           57        495 A.2d 107 (N.J. 1985).  

           58        Id. at 116.   

                                                                 -20-                                                           7031

----------------------- Page 21-----------------------


Express have held that foreseeability alone is insufficient to show the existence of a duty  

in a negligence case claiming economic harm.59  


                       In sum, while we have labeled foreseeability "the single most important  

criterion for imposing a duty of care,"60 it is clear that Alaska's courts must still consider  

the full panoply of D.S.W.  factors when deciding whether an actionable duty of care  

exists.  We reject GeoTek's argument that, under Mattingly , Jacobs's knowledge of  


DSI's financial situation and its knowledge that GeoTek would be harmed if DSI did not  

pay  its  subcontractors  would  be  enough,  without  more,  to  establish  a  duty  of  care  

actionable in tort.61  

           59          See, e.g., Carter Lincoln-Mercury, Inc., Leasing Div. v. EMAR Grp., Inc.                                                  ,  

638 A.2d 1288, 1294 (N.J. 1994) ("Ability to foresee injury to a potential plaintiff does                    

not in itself establish the existence of a duty . . . .                             Once the foreseeability of an injured  

party  is  established,  we  must  decide  whether  considerations  of  fairness  and  policy  

warrant the imposition of a duty." (citations omitted)).  



                      R.E.  v.  State ,  878  P.2d  1341,  1346  (Alaska  1994);  see  also  State  v.  


Sandsness, 72 P.3d 299, 305-06 (Alaska 2003) ("While the most important single D.S.W.  


factor is foreseeability," it is not dispositive.).  

           61          GeoTek           also      contends           that,     independent              of    Mattingly ,           Jacobs's  


development of a risk management plan was a voluntary undertaking that extended its  


liability beyond what was otherwise required by law, citing Guerrero v. Alaska Hous.  


Fin. Corp. , 6 P.3d 250, 258 (Alaska 2000).  GeoTek does not develop this argument  

further.    In  Guerrero  we  reviewed  the  dismissal  of  a  complaint  under  the  lenient  


standards of Alaska Civil Rule 12(b)(6) and held that the allegations of the complaint did  

not  necessarily  rule  out  the  possibility  that  the  defendant  landlord  had  voluntarily  

expanded the scope of its duty of care.  But we noted that "our ruling on the impropriety  


of a dismissal under Rule 12(b)(6) does not necessarily preclude the superior court from  


deciding disputed issues of duty on summary judgment," id. at  258 n.33, as happened  


in this case.  

                                                                      -21-                                                               7031

----------------------- Page 22-----------------------

                   2.	       GeoTek  does  not  identify  other  D.S.W.  factors  that  could  

                             support the recognition of a duty in this case.  

                   "In the absence of any other source of a duty of care," we weigh the seven  


                                                                                                             Hinging its  

D.S.W. factors to determine whether a common law duty of care exists. 


argument on foreseeability alone under Mattingly , GeoTek does not address the other  


D.S.W. factors.  The superior court did not address them either, finding that the question  



of duty was controlled by our decision in Municipality of Anchorage v. Tatco, Inc. 


plaintiffs  in  Tatco  had  supplied  materials  to  the  contractor  on  a  municipal  landfill  


               When the contractor failed to pay, the suppliers sued the Municipality for its  


failure to require the contractor to post a payment bond or to certify, before being paid,  


that it had paid all its laborers and suppliers.65  We held that the Municipality was entitled  


to summary judgment because a payment bond for the benefit of subcontractors was not  



required  either  by  statute              or  by  the  contract  between  the  Municipality  and  the  


                67  We do not consider Tatco controlling in this case, however, as the suppliers  


          62       See Parnell v. Peak Oilfield Serv. Co., 174 P.                     3d 757, 767 (Alaska 2007)  

(quoting Bolieu v. Sisters of Providence in Wa. , 953 P.2d 1233, 1235 (Alaska 1998))  

(internal quotation marks omitted).  

          63       774 P.2d 207 (Alaska 1989).  

          64       Id. at 208.  

          65       Id.  

          66       We determined that the contract at issue was not covered by the "Little  

Miller Act," AS   36.25.010 - .025, and specifically its requirement that public entities  

require public-works contractors to post bonds for the payment o   f l  aborers and suppliers,  

AS 36.25.010(a).  Id. at 211.  

          67       Id. at 210-12.  

                                                            -22-	                                                     7031

----------------------- Page 23-----------------------


in  Tatco  apparently  did  not  ask  the  court  to  decide  whether  the  Municipality  had  

breached a duty in tort independent of statute and contract.  


                     Because GeoTek does not analyze the D.S.W. factors in its briefing before  



us, we need not decide whether they require us to recognize an actionable duty in tort. 

We  do  note,  however,  that  most  factors  militate  against  it.    First,  as  contrasted  to  


negligence  creating  a  risk  of  death  or  physical  injury,  "we  have  ascribed  little  



blameworthiness to ordinary negligence that merely causes economic . . . harm." 

is particularly true when parties are in a position to have contracted around the risk;  


GeoTek's injury would not have occurred absent its own decision to enter into a contract  


with DSI, knowing, as it did, that DSI had failed to secure bonding.  The policy of  

preventing future harm also does not require recognition of a novel duty in tort, as other  


contracting parties have the ability to protect themselves either by refusing to enter into  

relationships they consider financially fraught or by negotiating for more protective  



provisions in their contracts before signing them.                             Imposing a duty in cases like this one  

would subject contractors to the added burden of protecting the purely economic interests  



of parties with whom they have no privity;                             it would also enhance their risk of having  

           68        See Glover v. Ranney, 314 P.3d 535, 545 (Alaska 2013) ("[W]here a point                 

is given only a cursory statement in the argument portion of a brief, the point will not be                              

considered on appeal.") (internal quotation marks omitted).  

           69        See Mesiar v. Heckman, 964 P.2d 445, 451 (Alaska 1998).  



                     See Alaska Pac. Assurance Co. v. Collins, 794 P.2d 936, 946 (Alaska 1990)  


(noting that "[p]romises set forth in a contract must be enforced by an action on that  


           71        See Imperial Mfg. Ice Cold Coolers, Inc. v. Shannon, 101 P.3d 627, 630  

(Alaska 2004) (explaining that the Little Miller Act is based on the premise that the  


government cannot "be charged by those with whom the government has no contractual  


                                                                 -23-                                                           7031

----------------------- Page 24-----------------------



to pay twice for the same labor or materials.                                         And finally, GeoTek does not provide  


public-policy support from other jurisdictions; it does not cite any cases in which courts  


imposed  an  extra-contractual  duty  on  contractors  to  answer  for  the  debts  of  their  

subcontractors in circumstances like those presented here.    

V.          CONCLUSION  


                        The superior court's grants of summary judgment are AFFIRMED.                                                                  



            72          See  id.   (holding   that  the   Little   Miller   Act  does   not  provide  a  private  

negligence cause of action against a government entity for its failure to require a payment                  

bond in part because "if the legislature had intended to impose government liability -   

in effect . . . to require public entities 'to pay twice for a public project' - this intention         

would have been expressed because it is a significant variation from the existing norm").  

            73          Because we affirm the superior court's judgment, we necessarily reject  

GeoTek's argument that it should be considered the prevailing party for purposes of an  

attorney's fees award.  

                                                                           -24-                                                                     7031

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