Earlier this month, an appellate court issued a written opinion in a Florida wrongful death case brought by a woman whose husband died while in the care of the defendant nursing home. The case required that the court determine whether the plaintiff’s claim involving the validity of the arbitration agreement should be determined by the named arbitrator, or whether it was properly before the court. Citing the lack of a delegation clause, the court determined that the arbitrator lacked jurisdiction to make the determination.
It is common for a Florida nursing home resident to be provided with an arbitration agreement prior to admission and asked to sign. While a nursing home cannot make admission contingent upon the signing of the agreement, that fact is rarely made known to residents and their families.
The benefits of arbitration flow mostly to the nursing home. For example, the decreased cost of litigation is more important for a nursing home, which may face frequent claims. Similarly, the confidentiality of arbitration benefits the nursing home in the event that the resident’s claim is substantiated. Finally, nursing homes are able to choose the forum where the arbitration will take place, creating the potential for favoritism and bias.
Florida law, however, does require that arbitration agreements comport with basic contractual guidelines, including that they be fair to both sides. Additionally, courts require that arbitration agreements clearly describe the rights being waived. If a right is not specifically mentioned in an arbitration agreement, it is likely that a court will not find that the plaintiff gave up that right. The case mentioned above illustrates exactly this concept.
The Facts of the Case
The plaintiff’s husband died while he was in the care of the defendant nursing home. Before her husband was admitted into the facility, the plaintiff executed an arbitration agreement with the nursing home. However, after her husband’s death, the plaintiff filed a claim in the court system, seeking to sever several of the claims in the agreement on the basis that they were against public policy. The nursing home did not respond to the specific allegations that the clauses were against public policy, but instead it argued that the arbitrator should be the one to determine the validity of the clauses.
The court held that the arbitrator was not the proper authority to make the determination of whether the clauses were enforceable. The court explained that the agreement did not have a delegation clause, specifying that the arbitrator would be responsible to make this determination. As a result, the court determined that it was the proper authority to make the decision, and, since the nursing home failed to respond to the specifics of the plaintiff’s allegations, judgment was entered in the plaintiff’s favor.
Is Your Loved One at Risk?
If you have a loved one in a Florida nursing home, and you have reason to believe that they have been subject to abuse or neglect, you should consult with one of the dedicated South Florida personal injury attorneys at the law firm of Frankl Kominsky. At Frankl Kominsky, we represent nursing home residents and their families in negligence and Florida wrongful death cases. Call 561-708-5461 to schedule a free consultation to discuss your case with an attorney today.
See Additional Blog Posts:
Florida Appeals Court Reinstates Jury’s Verdict Despite Defendant’s Lack of Testimony, South Florida Injury Attorneys Blog, January 17, 2018.
Florida Court Requires Insurance Company to Provide Coverage to Victim of Golf Cart Accident, South Florida Injury Attorneys Blog, February 7, 2018.