Cole v. Jersey City Med. Ctr.

• Decision Date: 14 August 2013
• Citation: 215 N.J. 265,72 A.3d 224
• Parties: Karen COLE, Plaintiff–Respondent, v. JERSEY CITY MEDICAL CENTER, Defendant, and Liberty Anesthesia Associates, LLC, Defendant–Appellant, and Jersey City Medical Center, Third–Party Plaintiff, v. Liberty Anesthesia Associates, LLC, Third–Party Defendant.
• Court: New Jersey Supreme Court

215 N.J. 265

72 A.3d 224

Karen COLE, Plaintiff–Respondent,

v.JERSEY CITY MEDICAL CENTER, Defendant,andLiberty Anesthesia Associates, LLC, Defendant–Appellant,

and

Jersey City Medical Center, Third–Party Plaintiff,

v.Liberty Anesthesia Associates, LLC, Third–Party Defendant.

Supreme Court of New Jersey.

Argued April 29, 2013.

Decided Aug. 14, 2013.

Dominick J. Bratti argued the cause for appellant (Wilentz, Goldman & Spitzer, attorneys; Mr. Bratti and Annemarie T. Greenan, Woodbridge, on the briefs).

Gerald J. Resnick, Roseland, argued the cause for respondent (Resnick Law Group, attorneys).

Jonathan Romberg argued the cause for amicus curiae Seton Hall Law School Center for Social Justice.

Judge CUFF (temporarily assigned) delivered the opinion of the Court.

In this appeal, we address a party's ability to invoke an arbitration clause where that party moved to compel arbitration twenty-one months after being joined as a defendant to an action and after actively participating in the litigation involving the other party to the arbitration agreement.

Plaintiff, a certified registered nurse anesthetist (CRNA), was employed by a company that had a contract with a hospital to provide anesthesiology services. Plaintiff's employment contract with her employer contained an arbitration clause. The hospital discovered discrepancies with plaintiff's accounting of certain medications and revoked her privileges to work there. As a result, plaintiff's employer terminated her employment in accordance with the terms of their employment agreement.

Plaintiff commenced an action against the hospital asserting statutory and common law grounds for relief. Subsequently, the hospital impleaded plaintiff's employer as a third-party defendant, and plaintiff amended her complaint to include her employer as a direct defendant. The employer failed to raise the arbitration clause as one of its affirmative defenses.

The hospital settled its claims with plaintiff following the conclusion of discovery and filing of motions for summary judgment. Following entry of summary judgment in favor of the employer on two of four causes of action, and three days before the scheduled trial between the employer and plaintiff, the employer filed a motion to compel arbitration. The trial court granted the motion, reasoning that the employer failed to assert its right to arbitrate the dispute between it and plaintiff at an earlier time because a non-signatory to the agreement, the hospital, was the primary defendant in the action. The Appellate Division reversed, finding the employer was equitably estopped from compelling arbitration.

We address this appeal through the lens of waiver of the right to arbitrate rather than equitable estoppel. A review of the employer's conduct before trial leads us to conclude that it did, in fact, waive its right to invoke the arbitration clause in its contract with plaintiff. We therefore affirm as modified herein and remand for trial.

I.

In April 2004, plaintiff Karen Cole began working as a per diem CRNA at the Jersey City Medical Center (JCMC). At the time, she was working in the same capacity at Overlook Hospital in Summit. Liberty Anesthesia Associates, LLC (Liberty) was an independent contractor that provided anesthesia services at JCMC. In September 2004, Liberty contracted with Cole to provide full-time CRNA services at JCMC commencing in October 2004.

On September 20, 2004, Liberty sent Cole an employment agreement that contained the terms and conditions of her employment. Liberty informed Cole that her full-time employment would commence on October 1, 2004, and that either party could terminate her employment “at any time for any reason or no reason (with or without cause)” with sixty days' notice. Liberty also informed Cole that it could terminate her employment “automatically and immediately” for several reasons, including suspension, revocation, restriction, or limitation of her nursing license or her staff privileges at the hospital to which she was assigned. The employment agreement also contained an arbitration provision, which stated:

12. Except as set forth in sections 6, 7 and 9 hereof, any claim, controversy or dispute between you and [Liberty] (including without limitation [Liberty's] affiliates, shareholders, employees, representatives, or agents) arising out of or relating to your employment, the cessation of your employment, or any matter relating to the foregoing (any “Controversy”), shall be submitted to and settled by arbitration before a single arbitrator in a forum of the American Health Lawyers Association Alternative Dispute Resolution Service (“AHLA ADRS”).... It is agreed that if any party shall desire relief of any nature whatsoever from the other party as a result of any Controversy, it will institute such arbitration proceedings. All costs of said arbitration, including the arbitrator's fees, if any, shall be borne equally by the parties, unless the arbitration decision and award provides otherwise. All legal fees incurred by each party in connection with said arbitration shall be borne by the party who incurs them, unless the arbitration decision and award provides otherwise. The parties agree that the decision and award of the ADRS shall be final and conclusive upon the parties, in lieu of all other legal, equitable or judicial proceedings between them, that no appeal or judicial review of the arbitrator's award shall be taken, and that the decision and award may be entered as a judgment in and enforced by, any court of competent jurisdiction. The foregoing requirement to arbitrate Controversies applies to all claims or demands by you, including without limitation any rights or claims you may have under the Age Discrimination in Employment Act of 1967, Section 1981, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1991, the Equal Pay Act, the Family and Medical Leave Act, New Jersey Law Against Discrimination or any other federal, state or local laws or regulations pertaining to your employment or the termination of your employment.

Cole executed the agreement on September 21, 2004.

In April 2007, JCMC discovered numerous discrepancies in Cole's accounting of controlled substances. On May 1, 2007, Cole had a meeting with staff members from JCMC and Liberty to discuss the discrepancies in her records. She was asked to submit to a drug test, but she refused. As a result, JCMC suspended her staff privileges. Later that day, Liberty terminated Cole's employment contract citing the suspension of her privileges at JCMC.

On September 21, 2007, Cole filed a complaint in the Law Division against JCMC. Cole set forth claims for retaliatory discharge in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19–1 to –8 (Count One); defamation (Count Two); tortious interference with contract (Count Three); and disability discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –42 (Count Four). Approximately eight months later, on May 23, 2008, the trial court granted JCMC's motion for leave to implead Liberty as a third-party defendant. On June 3, 2008, Cole filed an amended complaint naming Liberty as a direct defendant. She asserted claims against Liberty for retaliation in violation of CEPA (Count One); defamation (Count Two); disability discrimination in violation of the LAD (Count Four); and termination of employment in violation of public policy (Count Five). On August 20, 2008, Liberty filed an answer to Cole's amended complaint and asserted thirty-five affirmative defenses, none of which referred to the arbitration provision of the employment agreement.

Discovery included interrogatories and depositions of at least twelve persons. Cole was deposed over six days from February 20, 2009 to November 12, 2009. Discovery concluded on December 30, 2009. At no time did Liberty invoke the arbitration provision in the employment agreement. One week later, on January 8, 2010, Liberty filed a motion for summary judgment; JCMC moved for summary judgment on January 19, 2010. At oral argument of the motions on February 19, 2010, Cole informed the court that she had reached a settlement agreement with JCMC. Following argument on Liberty's motion, the court granted summary judgment in favor of Liberty on the defamation and termination in violation of public policy counts of the amended complaint, but it denied summary judgment on the CEPA and LAD counts.

The trial court set March 22, 2010, as the trial date for the remaining claims. On March 11, 2010, Liberty filed its Rule 4:25–7(b) pre-trial information exchange in which it listed proposed witnesses and exhibits, designated its proposed deposition and interrogatory readings, and listed the motions in limine it would make. Liberty omitted any mention of a motion to compel arbitration. The parties also submitted proposed voir dire questions and proposed jury charges.

On March 19, 2010, Liberty filed a motion to compel arbitration pursuant to the arbitration provision in the parties' employment contract. Liberty maintained it did not seek to compel arbitration sooner because JCMC, the primary defendant in the litigation, was not a party to the agreement. Liberty explained it did not want to risk disparate results from a jury and an arbitrator. Opposing the motion, Cole argued Liberty waived its right to compel arbitration by failing to raise the issue in a timely fashion and by actively participating in the litigation. She also maintained the provision was unenforceable and inapplicable to her claims.

The trial court granted Liberty's motion to compel arbitration and dismissed Cole's complaint with prejudice. The court determined the arbitration provision applied to Cole's claims regarding wrongful termination under CEPA and the LAD. Moreover, after observing that prejudice is the touchstone of a waiver determination, the court concluded Cole suffered none. It...