Florida has long served as a destination for America’s elderly population and, as a result, has also become home to a considerable number of retirement homes and assisted living facilities. Regrettably, despite the best efforts of the Florida’s Department of Elder Affairs, the care residents at these facilities receive remains an issue. Even when cases of elder abuse are properly identified, many litigants encounter a variety of problems when they bring legal action to redress their grievances. Among these issues is the pervasive use of arbitration clauses in retirement home and assisted living facility contracts. However, notwithstanding the ubiquity of arbitration provisions, the Fourth District Court of Appeal again took a firm stance against their enforceability in its recent decision in Lopez v. Andie’s, Inc..
Lopez arose from allegations involving resident care at Willow Manor Retirement Home, an assisted-care living facility in Dania Beach, Florida. Following an incident in 2011, which resulted in a severe fracture to a resident’s arm, the resident brought suit against the facility. However, shortly after the case was filed, the defendant moved to compel arbitration, arguing that the arbitration provision in the agreement executed between the resident and Willow Manor at the time of the resident’s admission required that any controversy or dispute between the parties be determined through a binding arbitration proceeding held in accordance with the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. After the trial court granted the defendant’s motion to compel arbitration, the plaintiff brought an appeal, arguing that the arbitration procedures were contrary to public policy and thus unenforceable.
Much of the Fourth District Court of Appeal’s opinion relies on its prior decision in Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla. 4th DCA 2005). In Blankfeld, the court held that a particular arbitration provision was unenforceable when compelling the arbitration would have “substantially limit[ed] the remedies created by the Nursing Home Residents Act [NHRA].” Blankfeld, 902 So. 2d at 297. Specifically, the provisions for arbitration at issue in Blankfeld included one that stated that “the arbitrator may not award consequential, exemplary, incidental, punitive or special damages against a party unless the arbitrator determines … there is clear and convincing evidence that the party … is guilty of conduct evincing an intentional or reckless disregard for the rights of another party.” Id. at 298. In effect, the provision considerably narrowed — or effectively eliminated — liability for negligent conduct when compared to the liability provided by Florida’s NHRA. Accordingly, the court in Blankfeld found that it would be contrary to public policy to compel arbitration, considering the remedial nature of the NHRA, which was enacted in 1980 to respond to a Dade County Grand Jury investigation of nursing homes that revealed substantial evidence of rampant elder abuse.
Although the Lopez litigation dealt with claims under Florida’s Assisted Living Facilities Act (“ALTA”), the reasoning remains the same. First, the court noted that the ALTA is a remedial statute that is closely analogous to NHRA. Accordingly, it would be contrary to public policy to compel arbitration when the provisions for the arbitration would substantially limit the remedies available under the ALTA. Like the NHRA, the ALTA provides that claims for violation of a resident’s rights or negligence may be proved by a preponderance of the evidence. However, Rule 6.06 of the AHLA alternative dispute resolution rules provides that an arbiter may only award consequential, exemplary, or special damages in a tort action if a plaintiff proves the negligent conduct through clear and convincing evidence, not merely a preponderance of the evidence. Since certain compensatory damages are classified as consequential or special, it followed that the arbitration procedures elevated a plaintiff’s burden of proof and consequently limited the remedies available under the ALTA. Thus, the court found the arbitration provision to be contrary to public policy and therefore unenforceable.
Elder abuse and neglect remains an issue not only in Florida but nationwide. Despite the courts’ aversion to enforcing arbitration under these circumstances, retirement home and assisted-living facilities have and likely will continue to include arbitration provisions in their service contracts in hope of evading full accountability for the serious injuries that occur under their care. Accordingly, victims of elder abuse should enlist the aid of counsel experienced in fighting the enforceability of arbitration before undertaking litigation to redress their grievances. The attorneys at Frankl & Kominsky have extensive experience with South Florida personal injury law, including law surrounding elder abuse, and are prepared to offer you the legal assistance you may need. Feel free to contact us if you would like a free case consultation.