In light of Florida’s large elderly population, it’s not surprising that the Florida legislature has specifically passed legislation providing specific rights to those who reside in nursing homes. See §§ 400.022-.023, Fla. Stat. (2010). However, among the many rights encompassed in these provisions is not one assuring that these rights must be adjudicated in a court. Indeed, these claims, like many others, can be subject to compelled arbitration when an unwitting party signs away his rights to formal adjudication. Given that arbitration can pose the risk of unfair or inadequate adjudication of rights, the enforceability of these provisions is often a topic of litigation. For instance, the Second District Court of Appeal recently issued its decision in Greenbrook NH, LLC v. Estate of Sayre, which addressed whether an arbitration agreement entered into by the daughter of a nursing home resident was enforceable.
Sayre arose from an alleged act of negligence at a nursing home facility in St. Petersburg, Florida. The plaintiff in this case is the daughter of a deceased nursing home resident who brought this action as the representative for the decedent’s estate. The decedent resided at the nursing home for most of 2011. Following the death, the plaintiff brought suit against the nursing home for both negligence and the violation of the decedent’s nursing home resident’s rights under §§ 400.022-.023 of the Florida Statutes. At the time the daughter placed her mother in the nursing home, she signed an arbitration agreement as her mother’s authorized legal representative. In light of this arbitration agreement, the nursing home moved to dismiss and compel arbitration. The trial court denied the motion, finding that the agreement was invalid and unenforceable because portions of the copy of the arbitration agreement proffered to the court were obscured. The nursing home then brought the current appeal, arguing that despite the photocopying error, the trial court’s factual finding was in error because the other terms of the agreement were sufficiently clear and definite to make the agreement enforceable.
In a unanimous decision, the Second District Court of Appeal agreed and reversed the trial court’s decision. For an arbitration agreement to be valid, its essential terms cannot be missing. Bergman v. DeIulio, 826 So.2d 500, 503 (Fla. 4th DCA 2002). The “basic” terms of an arbitration agreement include “  the form and procedure for arbitration,  the number of arbitrators,  how the arbitrators were to be selected, [and] . . .  the issues to be decided by arbitration.” Malone & Hyde, Inc. v. RTC Transp., Inc., 515 So.2d 365, 366 (Fla. 4th DCA 1987). Ultimately, as long as the arbitration agreement sufficiently indicates the contracting parties’ intent, it is valid. Crastvell Trading Ltd. v. Marengere, 90 So.3d 349, 353 (Fla. 4th DCA 2012).
In this case, the Court found the trial court’s finding that the obscured portions of the arbitration agreement were material to be erroneous. The obscured portions of the agreement included the title of the agreement, the arbitration panel’s decision-making process, and a portion of the severability clause. The court summarily concluded that the title of the agreement was not vital because the remaining terms of the agreement clearly indicated that it was an arbitration agreement. Likewise, the court found the obscured portion of the severability clause to be immaterial because the effect of a severability provision is obvious, and the remaining terms of the agreement indicated severability.
Although the obscured arbitration panel decision-making provision presented a greater issue, the court nonetheless concluded that the obscured portions were not essential for two reasons. First, only part of the decision-making provision was obscured. The un-obscured portion indicated that the parties could either agree on an arbiter or each choose independent arbiters who would then collectively decide a third arbiter to create a three-member arbitration panel. The obscured portion indicated that, although all three arbiters would participate in the arbitration, only a single arbiter would ultimately decide the issues presented and that arbiter’s decision would be binding on the parties. The court found that, even though this portion was obscured, it was obvious the arbiter chosen by the other arbiters would be the final decision-maker. Second, in a separate portion of the agreement, the parties agreed to the application of the Florida Arbitration Code, which independently provides a process when parties to an arbitration agreement cannot agree on a single arbiter. Accordingly, even if the obscured provision could not be followed, the agreement indicated an alternate process. Therefore, the court concluded that the essential terms of the agreement were present. Since there was no indication that the procedural aspects of the parties’ contracting process were deficient, the court determined that the contract was enforceable, and the trial court erred in not dismissing the case and entering an order compelling arbitration.
Although the plaintiff may ultimately be able to obtain sufficient relief through arbitration, the plaintiff would likely feel greater assurance having her claims adjudicated in the formal legal setting. Arbitration agreements are quite common, especially in situations when possible negligence claims can arise. Anyone with a possible claim who has perhaps entered into this type of agreement should consider finding counsel who is experienced in both avoiding arbitration and, if necessary, adjudicating claims in arbitral settings. The South Florida elder abuse attorneys at Frankl & Kominsky have experience representing clients in both court and arbitration, and they are prepared to provide you with zealous representation in either forum. If you or loved one has a possible elder abuse claim and are interested in your options for recovery, feel free to contact us to set up a free case consultation.