Bybee v. Abdulla

• Decision Date: 03 June 2008
• Docket Number: No. 20060424.,20060424.
• Citation: 2008 UT 35,189 P.3d 40
• Parties: Lisa BYBEE, Plaintiff and Appellee, v. Alan ABDULLA, M.D., and John Does 1-5, Defendants and Appellants.
• Court: Utah Supreme Court

189 P.3d 40

2008 UT 35

Lisa BYBEE, Plaintiff and Appellee, v. Alan ABDULLA, M.D., and John Does 1-5, Defendants and Appellants.

No. 20060424.

Supreme Court of Utah.

June 3, 2008.

James R. Hasenyager, Peter W. Summerill, Ogden, for plaintiff.

Brian P. Miller, Kenneth L. Reich, Salt Lake City, for defendants.

Elliott J. Williams, Kurt M. Frankenburg, Stephen T. Hester, Mark A. Brinton, Salt Lake City, for amicus Utah Medical Ass'n; Roger H. Hoole, Todd Wahlquist, Salt Lake City, for amicus Utah Trial Lawyers Ass'n.

NEHRING, Justice:

INTRODUCTION

¶ 1 Lisa Bybee filed a wrongful death action against Dr. Alan Abdulla, alleging that his negligent care caused her husband, Mark Bybee, to commit suicide. Because Mr. Bybee had entered into an arbitration agreement, Dr. Abdulla filed a motion to enforce the agreement and to compel Mrs. Bybee to arbitrate her wrongful death claim. The district court denied the motion, and Dr. Abdulla appealed. We affirm.

BACKGROUND

¶ 2 Lisa Bybee's husband, Mark Bybee, was a patient of Dr. Alan Abdulla. Following what Mrs. Bybee described as "a major depression," Mr. Bybee committed suicide. Mrs. Bybee brought a wrongful death action against Dr. Abdulla and five other defendants, alleging that their medical malpractice caused Mr. Bybee's death. In her complaint, she alleged that Dr. Abdulla, who previously treated Mr. Bybee for allergies and had no expertise in diagnosing or treating depression, prescribed Mr. Bybee antidepressant medicine and later renewed the prescription, increasing the dose. Mrs. Bybee alleged that Dr. Abdulla's failure to reevaluate Mr. Bybee's depression and his response to the medicine before increasing the dose or continuing to prescribe the medicine fell below the standard of care of a reasonable physician. She alleged that Dr. Abdulla's substandard care was the cause of her husband's suicide. Mrs. Bybee and the heirs of Mr Bybee sought damages for the loss of love, care, society, consortium, financial support, and inheritance of Mr. Bybee, and Mrs. Bybee and the estate of Mr. Bybee sought damages for the medical and funeral expenses of Mr. Bybee.

¶ 3 Dr. Abdulla moved to stay the district court action and to compel arbitration. The request to compel arbitration was based on an arbitration agreement signed by Mr. Bybee, which read:

Article 1: Agreement to Arbitrate: We hereby agree to submit to binding arbitration all disputes and claims for damages of any kind for injuries and losses arising from the medical care rendered or which should have been rendered after the date of this Agreement. All claims for monetary damages against the physician, and the physician's partners, associates, association, corporation or partnership, and the employees, agents and estates of any of them (hereinafter collectively referred to as "Physician"), must be arbitrated including, without limitation claims for personal injury, loss of consortium, wrongful death, emotional distress or punitive damages. We agree that the Physician may pursue a legal action to collect any fee from the patient and doing so shall not waive the Physician's right to compel arbitration of any malpractice claim. However, following the assertion of any malpractice claim against the Physician, any fee dispute, whether or not the subject of any existing legal action, shall also be resolved by arbitration.

We expressly intend that this Agreement shall bind all persons whose claims for injuries and losses arise out of medical care rendered or which should have been rendered by Physician after the date of this Agreement, including any spouse or heirs of the patient and any children, whether born or unborn at the time of the occurrence giving rise to any claim (hereinafter collectively referred to as "Patient").

¶ 4 Dr. Abdulla argued that an arbitration agreement could bind heirs because Utah Code section 78B-3-421(1)(b)(vii)(C) (2008)¹ permits an arbitration agreement to apply to third parties whose claims arise solely out of the injury sustained by the patient who signed the agreement. Although Mr. Bybee's claim arose before the statute expressly allowed third parties to be bound by arbitration agreements,² Dr. Abdulla argued that the change was merely procedural and should be applied retroactively. He also argued that Mrs. Bybee should be required to arbitrate because Mr. Bybee signed the agreement as her agent or, alternatively, because she was a third-party beneficiary of the contract.

¶ 5 Mrs. Bybee urged the district court not to compel arbitration, arguing that she should not be bound to a contract she did not sign and that the version of section 78B-3-421 in effect when the claim arose did not expressly allow arbitration agreements to bind third parties. Additionally, Mrs. Bybee argued that even if the current version of section 78B-3-421 applied, it could not modify Mrs. Bybee's constitutional right to pursue her wrongful death suit in court because a wrongful death claim is not based solely on an injury sustained by the patient but is, instead, a cause of action based on injury to the heirs of the decedent.

¶ 6 The district court denied Dr. Abdulla's motion to compel, holding that the changes to section 78B-3-421 were not procedural and should not be applied retroactively. The district court held that since Mrs. Bybee did not sign the arbitration agreement, she was not bound by it and that she could not be bound under an agency or third-party beneficiary theory. Utah law has designated as appealable orders denying arbitration although they are not final orders. Id. § 78B-11-129. We have jurisdiction over this appeal pursuant to this provision and from Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶ 7 Whether a contract requires a party to arbitrate is a question of law, which we review for correctness. See Docutel Olivetti Corp. v. Dick Brady Sys., Inc., 731 P.2d 475, 478 (Utah 1986).

ANALYSIS

¶ 8 Most contracts bind only those who bargain for them, see Aquagen Int'l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998) (citing Restatement (Second) of Contracts § 17(1) (1981)), and "the burden of proof for showing the parties' mutual assent as to all material terms and conditions is on the party claiming that there is a contract," Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995). Arbitration agreements are not exempt from this rule. Arbitration is an alternative to judicial resolution of disputes in which participation is voluntary. Thus, absent the presence of some intervening circumstance, a party cannot be compelled to surrender his right to seek a remedy or defend himself in court. Even our strong public policy favoring arbitration, Cent. Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 16, 40 P.3d 599, is insufficient, standing alone, to justify forcing an unwilling party to submit to arbitration.

¶ 9 Nevertheless, the law recognizes circumstances in which a party who never expressly consented to arbitrate a dispute may surrender his right to go to court. See, e.g., Am. Express Travel Related Servs. Co. v. Am. Fine Art & Frame Co., 2004 WL 1144103, 2004 U.S. Dist. LEXIS 9217 (D.Tex. May 20, 2004); Matthau v. Superior Court, 151 Cal.App.4th 593, 60 Cal.Rptr.3d 93 (Ct. App.2007); Ellsworth v. Am. Arbitration Ass'n, 2006 UT 77, 148 P.3d 983.

¶ 10 Dr. Abdulla proposes four reasons that merit our consideration for why we should require Mrs. Bybee to comply with the terms of a contract she did not sign. First, he argues that Mr. Bybee was the "master of his own claim" and that he therefore had unfettered authority to do anything he chose with his claim, including requiring his widow to arbitrate her own separate wrongful death claim. Dr. Abdulla's second line of reasoning is closely related to the first. Noting that we have allowed certain defenses that could have been asserted against the decedent in his personal injury action to be raised against heirs in a wrongful death action, Dr. Abdulla would have us add the defense of the arbitration agreement to that list. Third, he points to the 2004 amendments to the Utah Medical Malpractice Act that permit enforcement of arbitration against nonsignatories and contends that these statutory provisions should be applied retroactively to Mr. Bybee's arbitration agreement. Finally, Dr. Abdulla claims that the arbitration agreement binds Mrs. Bybee because she was its intended third-party beneficiary. We will speak to each of these arguments, starting with the first.

I. A PERSONAL INJURY PLAINTIFF IS THE "MASTER OF HIS OWN CLAIM" BUT SUBJECT TO CONSTRAINTS ON HIS POWER TO EXERCISE HIS MASTERY

¶ 11 Dr. Abdulla's oft-repeated credo in this appeal is that Mr. Bybee was the "master of his own claim." According to Dr. Abdulla, Mr. Bybee's mastery over his claim was boundless and, since it endured after his death, timeless. The "master of his own claim" image is one that Dr. Abdulla borrowed from our case, Jensen v. IHC Hospitals, Inc., and which we, in turn, extracted from Prosser and Keeton on the Law of Torts. 944 P.2d 327, 332 (Utah 1997).

¶ 12 In Jensen, we used the concept of claim mastery as a rhetorical fillip to bolster our holding that the statute of limitations for the wrongful death of a decedent whose death allegedly resulted from medical malpractice was the limitation period found in the Utah Health Care Malpractice Act, which is now codified at Utah Code section 78B-3-404, and not the statute of limitations for wrongful death actions. 944 P.2d at 332. Dr. Abdulla reasons that if a decedent could, through his inaction, exercise mastery over his claim to cut off a wrongful death cause of action, he must certainly be capable of making the conscious decision to require that his heirs arbitrate their wrongful death claim.

¶ 13 Dr. Abdulla's reasoning places demands on the mastery of claim rhetoric that it cannot deliver, and we reject it. There are two reasons for this. First, our use of the ...