11th district (
11-08-00215-CV, 269 SW3d 302, 11 13 08)
See subsequent Sup. Ct. Decision --> In Re Golden Peanut Co.,LLC, No. 09-0122  (Tex. Nov. 20, 2009)(per
curiam)(mandamus compelling arbitration granted) (arbitration and nonsignatories, wrongful death plaintiffs
bound by arb agreement signed by worker killed on the job as derivative claimants and must arbitrate claim
against employer,
pre-injury waivers, forum selection vs. waiver of substantive rights)


This is a mandamus proceeding complaining of the trial court=s order denying Golden Peanut Company, LLC=s
motion to abate and compel arbitration.  We deny the petition.

I. Background Facts

      Golden Peanut did not subscribe to workers= compensation insurance.  It instead provided employees with
an Employee Injury Benefit Plan under the Employee Retirement Income Security Act.[1]  That plan included
medical and disability benefits for injured employees and a death benefit in the case of job-related fatalities.  
Golden Peanut also gave its employees a document entitled Mutual Agreement to Arbitrate.  Grant Drennan was
an employee of Golden Peanut and acknowledged receiving Golden Peanut=s benefit plan and arbitration
agreement and agreed to comply with the arbitration agreement.

Drennan was killed while in the course and scope of his employment.  Drennan=s estate applied for and
received plan benefits, but his widow Mindi Drennan elected to file suit against Golden Peanut on behalf of
herself, their children, and Drennan=s estate rather than claim the plan=s death benefit.  Drennan=s parents,
Louie and Joyce Drennan, were subsequently added as plaintiffs.  Golden Peanut filed a motion to abate and
compel arbitration.  Plaintiffs amended their petition and dropped the estate as a party.  The trial court
conducted a hearing and denied Golden Peanut=s motion.

II. Issues

Golden Peanut contends that the trial court abused its discretion by denying the motion to abate and compel
arbitration.  Plaintiffs respond that the arbitration agreement is void under Texas law, that it is not supported by
consideration, and that it does not bind nonsignatories.  

                                                      III. Standard of Review

Golden Peanut contends, and plaintiffs do not dispute, that the arbitration agreement is subject to the Federal
Arbitration Act (FAA)[2] and that an order denying a motion to compel arbitration is properly reviewable by
mandamus.[3]  Even though federal law applies, we still utilize Texas procedural rules when reviewing a petition
for writ of mandamus.  In re Champion Technologies, Inc., 173 S.W.3d 595, 598 (Tex. App.CEastland 2005, orig.
proceeding).  We review orders denying a motion to compel arbitration under the FAA for an abuse of
discretion.  Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex. 1992) (orig. proceeding).  A trial court
abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or
unreasonable manner.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  When
reviewing matters committed to a trial court=s discretion, an appellate court may not substitute its own judgment
for that of the trial court.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  Nor may a
reviewing court set aside the trial court=s determination unless it is clear from the record that the trial court could
only reach one decision.  Id. at 840.  

The trial court=s interpretation of the arbitration agreement itself is a legal question subject to de novo review.  
See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). Arbitration agreements are interpreted
under traditional contract principles.  Id.  Our primary concern is to ascertain the true intentions of the parties as
expressed in the instrument.  R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980).  
We examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the
contract so that none will be rendered meaningless.  Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154,
158 (Tex. 1951).  No single provision taken alone will be given controlling effect.  All the provisions must be
considered with reference to the whole instrument.  Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193,
196 (Tex. 1962).  The contracts are construed from a utilitarian standpoint, bearing in mind the particular
business activity sought to be served.  Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987).

                                                               IV. Analysis

A party seeking to compel arbitration under the FAA must establish that there is a valid arbitration clause and
that the claims raised fall within its scope.  In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001) (orig.
proceeding).  The first element includes gateway matters such as whether a valid arbitration clause exists and
whether an arbitration clause is binding on a nonparty.  In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.
2005) (orig. proceeding).  Courts may not order parties to arbitrate unless they have agreed to do so.  Belmont
Constructors, Inc. v. Lyondell Petrochem. Co., 896 S.W.2d 352, 356-57 (Tex. App.CHouston [1st Dist.] 1995, no
writ [appeal and orig. proceeding]).  Consequently, despite a presumption favoring arbitration, a valid agreement
to arbitrate remains a threshold requirement.  See In re Kellogg Brown & Root, Inc, 166 S.W.3d 732, 737-38
(Tex. 2005) (orig. proceeding) (presumption favoring arbitration arises only after party seeking to compel
arbitration establishes valid agreement to arbitrate because purpose of FAA is to make arbitration agreements
as enforceable as other contracts, not more so).[4]

A.  Is the Arbitration Agreement Void?

Plaintiffs argue initially that the arbitration agreement is void under Texas law because it violates Tex. Lab. Code
Ann. ' 406.033 (Vernon 2006).  This statute provides in relevant part:

(a) In an action against an employer who does not have workers= compensation insurance coverage to recover
damages for personal injuries or death sustained by an employee in the course and scope of the employment, it
is not a defense that:

(1) the employee was guilty of contributory negligence;

(2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow employee.

(e) A cause of action described in Subsection (a) may not be waived by an employee before the employee=s
injury or death.  Any agreement by an employee to waive a cause of action or any right described in Subsection
(a) before the employee=s injury or death is void and unenforceable.

Plaintiffs argue that the arbitration agreement violates this provision and is void because it contains a provision
allowing parties Ato allege any claim, obtain any remedy, and assert any legal or equitable defense that the
party could allege, obtain or assert in a Texas state or federal court.@  As we understand plaintiffs= position,
they contend that the agreement allows Golden Peanut to assert a common law defense in arbitration that would
be unavailable in court.  We disagree.  The agreement does not broaden Golden Peanut=s rights in an
arbitration but merely confirms that both parties can assert the same claims and defenses in arbitration that they
could in court.

Plaintiffs also complain that, because the arbitration agreement allows parties to use Texas discovery devices
and file dispositive motions, Golden Peanut will be allowed to indiscriminately choose which provisions of Texas
law will apply and which will not.  First, we are not sure why the use of discovery devices and dispositive motions
during arbitration makes an arbitration agreement void.  The FAA gives contracting parties broad authority to
determine their own dispute resolution process.  Second, the agreement does not allow Golden Peanut to
retroactively define the arbitration process.  The process is defined by the contract, and it is up to the arbitrator
to resolve any disputes over its administration.

Finally, we note that three of our sister courts have considered whether an arbitration agreement violates
Section 406.033(e), and each concluded that it did not.[5]  We find their reasoning persuasive.  The El Paso
court recognized that the FAA represents a federal policy favoring arbitration B notwithstanding any state
substantive or procedural policies to the contrary B writing that, under the Supremacy Clause,[6] the FAA Atakes
precedence over state attempts, legislative or judicial, to undercut the enforceability of arbitration agreements.@
 In re Border Steel, Inc., 229 S.W.3d 825, 831 (Tex. App.CEl Paso 2007, orig. proceeding) (citing In re Turner
Bros. Trucking Co., 8 S.W.3d 370, 374 (Tex. App.CTexarkana 1999, orig. proceeding [mand. denied])).  
Plaintiffs= position is directly contrary to this legislative intent.  Accordingly, we find that the arbitration
agreement is not void.

B. Is the Arbitration Agreement Supported by Consideration?

Plaintiffs next argue that the arbitration agreement fails for lack of consideration both generally and then
specifically as applied to Louie and Joyce Drennan.  The latter argument is actually a restatement of plaintiffs=
contention that the agreement cannot be applied to nonsignatories and will, therefore, be addressed separately.
 Plaintiffs recognize that a mutual promise to waive the right to litigate can constitute consideration for an
arbitration agreement but argue that there was no mutual promise here because Golden Peanut retained the
right to unilaterally terminate the agreement.  The arbitration agreement included the following clause:

11.  Termination of Agreement

Company shall have the right to prospectively terminate this Agreement.  Termination is not effective for
Covered Claims which accrued or occurred prior to the date of the termination.  Termination is also not effective
until ten (10) days after reasonable notice is given to Claimant.

Plaintiffs contend that this provision means only Drennan waived his right to a jury trial and, thus, that it was not
a bilateral agreement.

Plaintiffs direct our attention to an unpublished opinion from the El Paso court that found an arbitration
agreement was unenforceable for want of consideration.  See In re Jobe Concrete Prods., Inc., No.
08-02-00175-CV, 2003 WL 21757512 (Tex. App.CEl Paso July 31, 2003, orig. proceeding).  In that case,
however, the employer=s right to amend was not limited to prospective changes only.  In fact, the agreement
provided that the AAdministrator has discretionary and final authority to interpret and implement the provisions
of the Plan, including, but not limited to, correcting any defect, reconciling any inconsistency and supplying any
omission, and making any and all determinations that may impact a claim.@  Id. at *4.  Because of this provision,
the court found the agreement unenforceable.  We agree with the El Paso court=s analysis but do not agree
that it applies to this agreement.  

This court addressed a similar issue in a case involving three individuals who filed a wrongful termination suit
against their former employer and its parent company.  See In re Champion Techs., Inc., 222 S.W.3d 127 (Tex.
App.CEastland 2006, orig. proceeding [mand. denied]). The defendants filed a motion to compel arbitration
contending that the asserted claims were subject to a written arbitration agreement.  The former employees
argued that the agreement was unenforceable because the employer=s promise to submit to arbitration was
illusory since the employer retained the unilateral right to amend the agreement.  We found the employer=s
promise was supported by consideration because the employer could not amend or terminate the agreement
after the initiation of an arbitration, there was a window of protection against any change, and amendments
could have only a prospective effect.  Id. at 132.

Golden Peanut=s right to terminate the arbitration agreement operated prospectively only.  It could not terminate
the agreement for any accrued claim and could not terminate an employee=s rights until providing at least ten
days notice.  Neither of which has it apparently attempted to do.  The arbitration agreement was, therefore,
supported by consideration.

C.  Are Plaintiffs Subject to the Arbitration Agreement?

Golden Peanut contends that the trial court erred because plaintiffs= claims are covered by and therefore are
subject to the arbitration agreement.  The agreement=s scope is broadly defined.  The agreement provides that
it covers all claims arising from:

Any injury suffered by Claimant while in the Course and Scope of Claimant=s employment with Company,
including but not limited to, claims for negligence, gross negligence, and all claims for personal injuries, physical
impairment, disfigurement, pain and suffering, mental anguish, wrongful death, survival actions, loss of
consortium and/or services, medical and hospital expenses, expenses of transportation for medical treatment,
expenses of drugs and medical appliances, emotional distress, exemplary or punitive damages and any other
loss, detriment or claim of whatever kind and character.

AClaimant@ is defined as:

[A] person who is employed by Company and has a Covered Claim.  The term also includes a Claimant=s
spouse, children, parents, estate, successors and assigns.

Drennan signed an acknowledgment form when he received the benefit plan and the arbitration agreement that
specifically provided: A[C]laims brought by my spouse, children, parents, estate, successors and assigns are
also subject to this [arbitration agreement].@

Plaintiffs do not contend that their claims are outside the agreement=s scope but argue that the agreement is
not binding upon them because they did not sign it.  The FAA does not specify whether state or federal law
applies when determining if nonsignatories are bound by an arbitration provision, and the U.S. Supreme Court
has not directly addressed this issue.  Kellogg Brown & Root, 166 S.W.3d at 738.  The Fifth Circuit has applied
both state and federal law.  See, e.g., Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 267-68 (5th Cir.
2004) (applying federal law); Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1074-77 (5th Cir. 2002)
(applying state law).  The Texas Supreme Court has held that it is not convinced that state law plays no part in
this determination, but it has recognized the importance of state and federal law being as consistent as possible
because state and federal courts have concurrent jurisdiction to enforce the FAA.  Kellogg Brown & Root, 166
S.W.3d at 738.

Courts have recognized six theories that may bind nonsignatories to arbitration agreements: (1) incorporation by
reference, (2) assumption, (3) agency, (4) alter ego, (5) equitable estoppel, and (6) third-party beneficiary.  
Kellogg Brown & Root, 166 S.W.3d at 739.  Golden Peanut argues that the arbitration agreement binds plaintiffs
because it specifically addresses wrongful death actions, because of the doctrine of direct benefit estoppel, and
because plaintiffs= claims are derivative.  Golden Peanut also argues that Mindi is bound as a third-party

1.  Direct Benefit Estoppel.

The Texas Supreme Court has held that a nonparty may be compelled to arbitrate Aif it seeks, through the
claim, to derive a direct benefit from the contract containing the arbitration provision.@  Kellogg Brown & Root,
166 S.W.3d at 741.[7]  This doctrine, however, does not apply if the claimed benefits are Ainsubstantial@ or
Aindirect.@  Weekley Homes, 180 S.W.3d at 134.  Nor does it apply if the claim merely Arelates@ to the
contract.  Kellogg Brown & Root, 166 S.W.3d at 741.  Whether a claim seeks a direct benefit from a contract
containing an arbitration clause turns on the substance of the claim, not artful pleading.  Sw. Bell Tel. Co. v.
DeLanney, 809 S.W.2d 493, 495 (Tex. 1991).  Claims must be brought on the contract if liability arises solely
from the contract or must be determined by reference to it.  Weekley Homes, 180 S.W.3d at 132.  But
nonsignatory claims that Acan stand independently of the underlying contract@ should generally not be
arbitrated.  Kellogg Brown & Root, 166 S.W.3d at 739-40.

A lawsuit seeking contractual benefits subjects the claimant to an arbitration clause in the contract whether it
signed the contract or not.  See FirstMerit Bank, 52 S.W.3d at 755-56.  However, a party can also bind itself to
an arbitration provision through its conduct during the life of the contract.  Weekley Homes, 180 S.W.3d at 132.  
For example, using a trade name pursuant to an agreement containing an arbitration clause or receiving lower
insurance rates and the ability to sail under the French flag because of a contract containing an arbitration
clause bound nonsignatories to the arbitration provisions.[8]  

Golden Peanut argues that plaintiffs received direct benefits under the plan but does not specify what benefits
they received.  The record contains references to a claim for benefits by Drennan=s estate, but the estate is no
longer a party.  The mere fact that the estate may ultimately distribute cash it receives from its claim to
Drennan=s heirs does not convert the estate=s claim to a direct claim by any of them.

Golden Peanut next argues that plaintiffs= negligence claim must be determined by reference to Drennan=s
at-will employment relationship and that this relationship was governed by the benefit plan and arbitration
agreement.  We disagree because the benefit plan specifically provides otherwise.  Paragraph 12.2 is entitled
AEmployment Noncontractual@ and reads:

The establishment of this Plan shall not enlarge or otherwise affect an Employee=s Aat will@ employment by an
Employer, and an Employer may terminate the employment of any Employee at any time and/or modify the
Employee=s working relationship as desired, at-will for any or no reason (with or without cause), as freely and
with the same effect as if this Plan had not been established.

The benefit plan provides benefits for employees, but it does not speak to Golden Peanut=s duty to provide a
safe workplace or otherwise govern the employment relationship.  We note that plaintiffs are not asserting that
Golden Peanut violated a contractual duty but a common law duty and that they are not seeking contractual
damages but are seeking statutory wrongful death damages.

Golden Peanut correctly notes that Drennan=s family was protected by the benefit plan for two years prior to his
death.  This, however, only made them incidental beneficiaries of the agreement.  Drennan himself was the
intended beneficiary.  See Gaskamp, 280 F.3d at 1076  (children were incidental beneficiaries when they lived in
home with their parents who agreed to arbitration provision in connection with their purchase of the home); see
also Sw. Tex. Pathology Assocs. v. Roosth, 27 S.W.3d 204 (Tex. App.CSan Antonio 2000, pet. dism=d w.o.j.)
(wife was not bound by arbitration provision in husband=s professional partnership agreement because her suit
against her husband and the partnership did not seek to enforce the terms of the agreement but asserted tort
claims).  Because plaintiffs are not asserting a contractual claim, because by their individual conduct they have
not attempted to take advantage of the benefit plan, and because their claims are independent of the benefit
plan, the doctrine of direct benefit estoppel is inapplicable.

2.  Derivative Claims.

Golden Peanut contends that, because a wrongful death claim is entirely derivative of the decedent=s right to
sue for his own injuries, plaintiffs are bound by Drennan=s agreement to arbitrate  personal injury claims.  See
Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex. 1992) (Athe right of statutory beneficiaries to maintain
a wrongful death action is entirely derivative of the decedent=s right to have sued for his own injuries
immediately prior to his death,@ and the beneficiaries Astand in the legal shoes of the decedent@). Because a
wrongful death claim is derivative, Texas courts have held that defendants can assert any defense against a
statutory beneficiary that they could have asserted against the decedent.  See, e.g., id. (statute of limitations);
Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111, 115 (Tex. App.CHouston [14th Dist.] 1991, writ denied)
(membership agreement release signed by member releasing club from injuries suffered while participating in
fitness center programs released all claims against all individuals and entities, including wrongful death claims
filed by nonsignatory wife and children).[9]  Golden Peanut argues that, because it could have raised the
arbitration agreement in response to a lawsuit filed by Drennan, it necessarily follows that it can raise the
agreement in response to plaintiffs= litigation.

Golden Peanut cites no case in which a Texas court found that a claimant was bound by an arbitration
agreement because its claim was derivative, and we have found none in our own research.  In Russell, 841
S.W.2d at 346-47, the Texas Supreme Court considered the impact of a claim being characterized as derivative.
 The court reiterated that a wrongful death action can be maintained only if the deceased could have maintained
a suit for his own injuries immediately prior to his death.  Id. at 347.  In support of this holding, the court cited
numerous cases where a defendant was entitled to raise a defensive issue against the wrongful death claimant;
however, the court did not cite a single case in which the claimant=s choice of forum was determined by its
status as a derivative claimant.  Id. at 347 n.7.  This suggests that there is a distinction between a defendant=s
right to raise a defense predicated upon a contract with the decedent B such as a liability limitation provision B
and the defendant=s right to impose an arbitration agreement with the decedent upon statutory beneficiaries.      
        That distinction may be explained by the fact that, even though wrongful death claims are derivative, their
recovery is personal to the beneficiary.  See Tex. Civ. Prac. & Rem. Code Ann. '' 71.004(a), 71.010(b) (Vernon
2008).  Courts have repeatedly recognized that wrongful death claimants have an individually owned statutory
cause of action.  For example, the Houston First court held that a widow=s wrongful death claim was personal to
her and, thus, not subject to an arbitration agreement between her husband and his nursing home.  See In re
Kepka, 178 S.W.3d 279, 293 (Tex. App.CHouston [1st Dist.] 2005, orig. proceeding).  The court noted that,
under basic contract principles, parties to an arbitration agreement generally lack the authority to bind others
without privity of contract.  Id. at 296.  The widow signed the agreement with the nursing home but did so on
behalf of her husband.  Because she lacked privity of contract, she was not subject to the arbitration agreement.
 Id.; see also Merrill Lynch, Pierce, Fenner, and Smith, Inc. v. Longoria, 783 S.W.2d 229, 231 (Tex.
App.CCorpus Christi 1989, no writ) (wife not required to arbitrate claim for loss of consortium even though it was
derivative of wrongful termination claim of her husband who was subject to arbitration under employment

Because Drennan=s statutory beneficiaries have an individual right of recovery, the mere fact that he executed
an arbitration agreement does not bind them to arbitration. The agreement refers to a broad range of claims
and claimants, but Drennan signed it in his individual capacity.  Moreover, our record contains no evidence that
he was authorized to contract on behalf of his spouse or parents, and the fact that he was a parent does not
make his agreement automatically binding upon his children.  See Gaskamp, 280 F.3d at 1076 (Texas law does
not ordinarily bind children to the contracts their parents sign).  The trial court did not abuse its discretion by
failing to find that plaintiffs were bound by the arbitration agreement as derivative claimants.

3.  Third-Party Beneficiary.

Golden Peanut argues that Mindi is a third-party beneficiary of the benefit plan and, therefore, is subject to the
arbitration agreement.  The general rule is that parties contract for themselves unless it clearly appears that
they intended to confer a direct benefit on a third party.  MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995
S.W.2d 647, 651 (Tex. 1999).  The benefit plan provides a death benefit and designates a surviving spouse as
the primary beneficiary.  Mindi is, accordingly, a third-party beneficiary.  As such, she is bound by the arbitration
agreement.  In re Rangel, 45 S.W.3d 783, 787 (Tex. App.CWaco 2001, orig. proceeding) (wife was third-party
beneficiary of husband=s contract with exterminator and was bound by the contract=s arbitration provision);
Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 520 (Tex. App.CAustin 1998, no pet.) (wife was bound by
arbitration provision in mobile home purchase agreement signed by husband because she was a third-party
beneficiary of that contract).

This would ordinarily require that we order her claim be submitted to arbitration, but the agreement provides
inconsistent directives for this instance.  As we noted earlier, the agreement has broad language that specifically
covers a wrongful death claim by a surviving spouse.  However, in Paragraph 5b(i), the agreement also provides
that it Adoes not apply@ to claims for benefits under the plan (emphasis added).

Mindi=s position is apparently that we need not address this because she did not sign the agreement and is not
seeking contractual benefits.  Whether her suit seeks contractual benefits is not dispositive.  Texas courts
recognize a distinction between procedural arbitrability and substantive arbitrability.  Substantive arbitrability
encompasses gateway issues such as whether a particular agreement binds the parties to arbitrate.  In re R & R
Pers. Specialists of Tyler, Inc., 146 S.W.3d 699, 705 (Tex. App.CTyler 2004, orig. proceeding).  These
questions are resolved by the trial court.  Id.  Procedural arbitrability involves questions that Agrow out of the
dispute and bear on its final disposition.@  Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002).  If the
arbitration agreement requires that Mindi=s claim be arbitrated, it is for the arbitrator to determine whether her
recovery is limited to the benefit plan.  See id. at 85-86.[10]

No party has raised the issue of ambiguity; however, a court may conclude that a document is ambiguous on its
own motion.  See Grimes v. Andrews, 997 S.W.2d 877, 881 (Tex. App.CWaco 1999, no pet.) (court may
conclude that a contract is ambiguous even when the parties do not plead ambiguity).  While we can look at the
benefit plan and the arbitration agreement and make suppositions about the intent to include a wrongful death
claim by a surviving spouse, we are not authorized to find facts but only to unfind them.  See Pool v. Ford Motor
Co., 715 S.W.2d 629, 634 (Tex. 1986).  Because we cannot make a factual determination about the parties=
intent, we cannot say that the trial court abused its discretion when it held that Mindi was not bound by the
arbitration agreement.  This holding is without prejudice to the parties= right to pursue the arbitration
agreement=s application to Mindi as a third-party beneficiary further in the trial court.

V. Holding

The petition is denied.

November 13, 2008                                                                 RICK STRANGE

Panel consists of:  Wright, C.J.,                                                 JUSTICE

McCall, J., and Strange, J.


[1]29 U.S.C. '' 1001-1461.

[2]See 9 U.S.C. '' 1-16.

[3]See In re Palacios, 221 S.W.3d 564, 565 (Tex. 2006) (orders denying arbitration under the FAA are
reviewable by mandamus).

[4]See also Cal. Fina Group, Inc. v. Herrin, 379 F.3d 311, 316 n.6 (5th Cir. 2004) (the policy in favor of
arbitration agreements does not apply when determining the threshold question of whether an arbitration
agreement exists).

[5]See In re Bison Bldg. Materials, Ltd., Nos. 01-07-00003-CV & 01-07-00029-CV, 2008 WL 2548568, at *9-10
(Tex. App.CHouston [1st Dist.] June 26, 2008, orig. proceeding); In re Border Steel, Inc., 229 S.W.3d 825, 832
(Tex. App.CEl Paso 2007, orig. proceeding); In re R & R Pers. Specialists of Tyler, Inc., 146 S.W.3d 699, 704
(Tex. App.CTyler 2004, orig. proceeding).

[6]U.S. Const. art. VI, cl. 2.

[7]The arbitration agreement and the benefit plan are separate agreements, but the Receipt and Arbitration
Acknowledgment Drennan executed indicates that they were presented to him at the same time and as part of
the same transaction.  We are, therefore, construing them together.  See Kirby Highland Lakes Surgery Ctr.,
L.L.P. v. Kirby, 183 S.W.3d 891, 901 (Tex. App.CAustin 2006, orig. proceeding) (documents executed at the
same time, by the same parties, for the same purposes, and as part of the same transaction were construed

[8]See Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d Cir. 1999) (nonsignatories
received lower insurance rates and the ability to sail under the French flag pursuant to contract); Deloitte
Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060, 1064 (2d Cir. 1993) (firm used trade name pursuant
to contract).

[9]See also Maderazo v. Archem Co., 788 S.W.2d 395, 397 (Tex. App.CHouston [14th Dist.] 1990, no writ)
(action against decedent=s employer barred by Workers= Compensation Act); Kelley v. City of Austin, 268
S.W.2d 773, 775 (Tex. Civ. App.CAustin 1954, no writ) (action barred by governmental immunity); Childs v.
Childs, 107 S.W.2d 703, 704 (Tex. Civ. App.CBeaumont 1937, no writ) (action barred by interspousal immunity);
Sullivan-Sanford Lumber Co. v. Watson, 155 S.W. 179, 180 (Tex. 1913) (the pass issued to the decedent limited
liability of private logging railroad for injuries or death and was binding on wrongful death beneficiaries).

[10]That conclusion in this case is bolstered by the arbitration agreement=s language, which provides: AThe
question of whether any particular claim is a Covered Claim under the terms of this Agreement shall be
arbitrated pursuant to the procedures set forth in this Agreement.@

Opinion filed November 13, 2008

                                                                  In The


Eleventh Court of Appeals


                                                    No. 11-08-00215-CV


                         IN RE GOLDEN PEANUT COMPANY, LLC,

                                          Original Mandamus Proceeding