Dalon v. MS HUD Ocean Springs LLC

• Decision Date: 12 September 2019
• Docket Number: NO. 2018-IA-00594-SCT,2018-IA-00594-SCT
• Citation: 283 So.3d 90
• Parties: Emile DALON, in his individual capacity as Wrongful Death Beneficiary of Carol Ann Dalon, Deceased and the Estate of Carol Ann Dalon v. MS HUD OCEAN SPRINGS LLC d/b/a Ocean Springs Health and Rehabilitation Center, incorrectly named as Gulf Coast Health Care of Delaware, LLC a/k/a Gulf Coast Health Care LLC, and Linda Cosio
• Court: Mississippi Supreme Court

283 So.3d 90

Emile DALON, in his individual capacity as Wrongful Death Beneficiary of Carol Ann Dalon, Deceased and the Estate of Carol Ann Dalon

v.MS HUD OCEAN SPRINGS LLC d/b/a Ocean Springs Health and Rehabilitation Center, incorrectly named as Gulf Coast Health Care of Delaware, LLC a/k/a Gulf Coast Health Care LLC, and Linda Cosio

NO. 2018-IA-00594-SCT

Supreme Court of Mississippi.

September 12, 2019

ATTORNEYS FOR APPELLANTS: DOUGLAS LAMONT TYNES, JR., COURTNEY PARKER WILSON, Pascagoula

ATTORNEYS FOR APPELLEES: LYNDA CLOWER CARTER, Gulfport, ASHLEY W. GUNN

BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

ISHEE, JUSTICE, FOR THE COURT:

¶1. This is a nursing-home negligence case concerning the death of Carol Dalon at Ocean Springs Health and Rehabilitation Center (OSHRC). Carol's son Emile Dalon, who is the administrator of her estate and a wrongful-death beneficiary, filed suit in the Jackson County Circuit Court, alleging that OSHRC and its employees negligently caused Carol's death. The circuit court granted the defendants' motion to compel arbitration, and Emile appeals.

FACTS

¶2. Carol was transferred from another nursing home to OSHRC on June 2, 2011, after sustaining injuries. At the time she was admitted, Carol had a history of dementia

, depression, anxiety, insomnia, and delirium, along with other conditions affecting her communication skills, daily tasks, and decisionmaking capacity.

¶3. OSHRC's admission agreement, which included an arbitration agreement, was signed by Emile. Carol had previously granted Emile a General Durable Power of Attorney (General POA) and a Power of Attorney for Health Care (Health Care POA), both of which were in effect when Emile signed the admission agreement on Carol's behalf.

¶4. It was alleged that in late May or early June of 2015, Carol fell and suffered a broken leg

. She died about a month after her injury was discovered. Emile and Carol's estate then brought suit, alleging negligence and wrongful death. The defendants moved to dismiss or, in the alternative, to stay proceedings and compel arbitration. The circuit court denied the motion to dismiss but granted the motion to stay proceedings and compel arbitration. Emile and the estate now appeal, arguing Emile had no authority to submit his mother's claims to arbitration.

DISCUSSION

¶5. The sole issue before this Court is whether the circuit court erred by granting the motion to compel arbitration. Emile argues three points: (1) he lacked authority to execute the arbitration agreement, (2) arbitration is unconscionable, and (3) the chosen forum is not available.

1. Arbitration Generally

¶6. Mississippi will "liberally construe agreements with a presumption in favor of arbitration." Qualcomm Inc. v. Am. Wireless License Grp., LLC , 980 So. 2d 261, 269 (Miss. 2007) (citing Terminix Int'l, Inc. v. Rice , 904 So. 2d 1051, 1054 (Miss. 2004) ). "Under the Federal Arbitration Act, the Court employs a two-part test: (1) ‘whether the parties intended to arbitrate the dispute,’ and (2) ‘whether legal constraints external to the parties' agreement foreclosed the arbitration of those claims.’ " Harrison Cty. Commercial Lot, LLC v. H. Gordon Myrick, Inc. , 107 So. 3d 943, 949 (Miss. 2013) (quoting Scruggs v. Wyatt , 60 So. 3d 758, 766 (Miss. 2011) ). For the reasons explained below, this Court finds that both parties intended to arbitrate and that no external legal constraints foreclosed arbitration.

2. Emile's Authority

¶7. Arbitration agreements are contracts and are governed as such. Scruggs , 60 So. 3d at 767. "The elements of a contract are ‘(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.’ " Adams Cmty. Care Ctr., LLC v. Reed , 37 So. 3d 1155, 1158 (Miss. 2010) (quoting Grenada Living Ctr., LLC v. Coleman , 961 So. 2d 33, 37 (Miss. 2007) ). Emile argues that the legal-capacity element is missing here because he lacked the authority to execute the agreement on Carol's behalf. We find this argument meritless because, at the time the arbitration agreement was signed, Emile had both a General POA and a Healthcare POA over Carol.

¶8. Additionally, Emile argues that he had neither express nor apparent authority to sign the arbitration agreement on Carol's behalf. But we find that the General POA and Healthcare POA gave Emile the express authority to sign the arbitration agreement.

A. General POA

¶9. Emile argues that the General POA did not grant him authority to execute the arbitration agreement because it did not expressly convey Carol's right to waive a trial by jury to him. We disagree. The General POA stated, "my attorney-in-fact shall have the power and authority to handle all of my affairs and transactions in the State of Mississippi ...." It also vested Emile with the authority "to execute, acknowledge and deliver any and all contracts ... and any other instrument or agreement of any kind or nature whatsoever ...."

¶10. Additionally, the General POA stated,

I HEREBY GIVE AND GRANT unto my said attorney full power and authority to do and perform every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that my said attorney, or her substitute or substitutes, have done, shall do, or cause to be done lawfully by virtue of these presents.

A plain reading of the General POA shows Emile possessed the authority to sign the arbitration agreement on Carol's behalf.

B. Healthcare POA

¶11. Carol had also executed a Healthcare POA that appoints Emile as Carol's agent to make "all healthcare decisions" on her behalf. Emile argues that while the Healthcare POA vested him with the authority to make healthcare decisions for Carol, it did not permit him to waive Carol's constitutional right to a jury trial or her right to full legal redress. This argument lacks merit. The Mississippi Code states,

(h) "Health-care decision" means a decision made by an individual or the individual's agent, guardian, or surrogate, regarding the individual's health care, including:

(i) Selection and discharge of health-care providers and institutions;

(ii) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and

(iii) Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care.

Miss. Code Ann. § 41-41-203(h) (Rev. 2018).

¶12. This Court has found numerous times that signing an arbitration agreement is a healthcare decision. Miss. Care Ctr. of Greenville, LLC v. Hinyub , 975 So. 2d 211, 218 (Miss. 2008) ; Covenant Health Rehab of Picayune v. Brown , 949 So. 2d 732 (Miss. 2007), overruled on other grounds by Covenant Health Rehab of Picayune v. Estate of Moulds ex rel. Braddock , 14 So. 3d 695 (Miss. 2009) ; Vicksburg Partners, L.P. v. Stephens , 911 So. 2d 507 (Miss. 2005), overruled on other grounds by Moulds , 14 So. 3d 695. Emile's decision to sign the arbitration agreement is considered a healthcare decision that the Healthcare POA authorized him to make on Carol's behalf.

3. Unconscionability

¶13. Emile also argues the arbitration agreement is both procedurally and substantively unconscionable. If "an arbitration agreement is found to be unconscionable pursuant to general state law principles, then it may be invalidated without offending the Federal Arbitration Act." E. Ford, Inc. v. Taylor , 826 So. 2d 709, 711 (Miss. 2002) (citing Doctor's Assocs., Inc. v. Casarotto , 517 U.S. 681, 686, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996) ). The existence of either procedural or substantive unconscionability is sufficient to render the agreement invalid.

A. Procedural Unconscionability

¶14. The indicators of procedural unconscionability generally fall into two areas:

(1) lack of knowledge, and (2) lack of voluntariness. A lack of knowledge is demonstrated by a lack of understanding of the contract terms arising from inconspicuous print or the use of complex, legalistic language, disparity in sophistication of parties, and lack of opportunity to study the contract and inquire about contract terms. A lack of voluntariness is demonstrated in contracts of adhesion when there is a great imbalance in the parties' relative bargaining power, the stronger party's terms are unnegotiable, and the weaker party is prevented by market factors, timing or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.

Entergy Miss., Inc. v. Burdette Gin Co. , 726 So. 2d 1202, 1207 (Miss. 1998) (quoting Bank of Ind., Nat'l Ass'n v. Holyfield , 476 F. Supp. 104, 109-10 (S.D. Miss. 1979) ).

¶15. Here, the arbitration agreement was conspicuous. It was written as a separate agreement with its own signature lines and was titled, in capital letters, AGREEMENT TO ARBITRATION OF ALL CLAIMS (MISSISSIPPI). The agreement was highly visible and was not buried within a larger document. The arbitration agreement was also fewer than two pages long and explained its terms without complex legal language.

¶16. Emile presented no evidence he lacked the opportunity to study the arbitration agreement and to inquire about its terms. Emile does not argue he was time pressured when signing the agreement. Additionally, the arbitration agreement explained that Emile had the right to seek legal counsel concerning the arbitration agreement. If Emile had concerns or questions about the arbitration agreement, he could have asked the facility, researched the question on his own, or hired an attorney to assist him.

¶17. Emile argues he was forced to sign the arbitration agreement in order to get his mother the care she needed. We find this claim meritless. The arbitration...