To overcome an arbitration agreement’s provision delegating to the arbitrator any decision on arbitrability issues including enforceability of the arbitration agreement, the party opposing arbitration must establish a defense to the delegation provision in particular, not the arbitration clause as a whole. However, the defense does not need to be different than the opposing party’s defense to the arbitration clause as a whole. Here, the trial court correctly voided the arbitration clause because it was added to a workers compensation insurance policy by an endorsement that had not been filed with and approved by the Insurance Commissioner as required by law. Then the trial court correctly held that the entire arbitration clause was unenforceable for the same reason.
California Court of Appeal, Fourth District, Division 1 (Haller, J.); May 3, 2018; 2018 Cal. App. LEXIS 395