Deceased v. Residential Alternatives Of Ill. Inc.
| Decision Date | 07 June 2010 |
| Docket Number | No. 3-09-0743.,3-09-0743. |
| Parties | Rachel PETERSON, Administrator of the Estate of Jacob H. Terhorst, Deceased, Plaintiff-Appellant, v. RESIDENTIAL ALTERNATIVES OF ILLINOIS, INC., an Illinois Corporation, Defendant-Appellee (Edwin Enterprises, L.L.C.; Donald E. Fike; Anthony James Fike Trust, Dated 11/6/90; Aaron Mitchell Fike Trust, Dated 11/6/90; Suzanne Elizabeth Fike Trust, Dated 11/6/90; RFMS, Inc., a Foreign Corporation; The Methodist Medical Center of Illinois, a Corporation; and Michael Koeppen, Respondents in Discovery). |
| Court | United States Appellate Court of Illinois |
402 Ill.App.3d 240
932 N.E.2d 1
342 Ill.Dec. 110
Rachel PETERSON, Administrator of the Estate of Jacob H. Terhorst, Deceased, Plaintiff-Appellant,
v.
RESIDENTIAL ALTERNATIVES OF ILLINOIS, INC., an Illinois Corporation, Defendant-Appellee (Edwin Enterprises, L.L.C.; Donald E. Fike; Anthony James Fike Trust, Dated 11/6/90; Aaron Mitchell Fike Trust, Dated 11/6/90; Suzanne Elizabeth Fike Trust, Dated 11/6/90; RFMS, Inc., a Foreign Corporation; The Methodist Medical Center of Illinois, a Corporation; and Michael Koeppen, Respondents in Discovery).
No. 3-09-0743.
Appellate Court of Illinois,Third District.
June 7, 2010.
James R. Carter (argued), Carter Law Offices, Peoria, IL, for Ann Bonomo.
Kevin M. Miller (argued), Jay H. Scholl, Quinn, Johnston, Henderson, Pretorious & Cerulo, Peoria, IL, for Residential Alternatives of Illinois, Inc.
Roger R. Clayton, Heyl, Royster, Voelker & Allen, Peoria, IL, for Edwin Enterprises, L.L.C.
Justice WRIGHT delivered the opinion of the court:
Initially, Ann Bonomo filed a two-count complaint against defendant on January 7, 2009. Thereafter, Bonomo filed a first amended complaint against defendant on May 8, 2009, alleging one count of violations of the Illinois Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2006)) and one count of wrongful death. On June 1, 2009, defendant filed a motion to dismiss and compel arbitration. On September 3, 2009, the trial court found, “[a]s a matter of law the arbitration agreement controls” between the parties. The court dismissed Bonomo's first amended complaint and ordered the parties to participate in arbitration. Bonomo filed an appeal on
September 17, 2009. On January 7, 2010, this court granted Bonomo's motion to substitute Rachel Peterson as plaintiff-appellant. Plaintiff Peterson and defendant are the only parties to this appeal.
On January 7, 2009, Ann Bonomo (plaintiff), as executor of the estate of Jacob H. Terhorst (Terhorst), filed a two-count complaint against defendant Residential Alternatives of Illinois, Inc. (defendant), alleging a survival action count and a wrongful death count. Counsel, on behalf of defendant, filed an appearance with the court on January 22, 2009, and demanded a trial by jury. On February 20, 2009, defendant filed an answer to plaintiff's complaint denying the claims against defendant, seeking judgment in defendant's favor, and demanding a jury trial.
On March 13, 2009, plaintiff filed a motion for leave to file a first amended complaint
which the trial court granted on May 8, 2009. Count I of plaintiff's first amended complaint alleged a survival action pursuant to the Illinois Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2006)) (Act). Plaintiff claimed that Terhorst was 92 years old on November 29, 2006. On that day, Terhorst became a resident of Hawthorne Manor, now known as Manor Court of Peoria (Manor). The count alleged that Manor was a nursing care facility as defined by the Act and that from November 29, 2006, until at least June 2, 2007, defendant owned and licensed Manor within the meaning of the Act.
Plaintiff further alleged in count I that Terhorst remained a resident at Manor from November 29, 2006, until June 2, 2007, and that on June 2, 2007, Terhorst died. During that time, Manor charged Terhorst monies to provide Terhorst with medical care, personal care and a residence.
Plaintiff claimed that defendant committed one or more negligent acts or omissions within the meaning of the Act, failed to provide adequate care to Terhorst, and neglected and abused Terhorst. As a result of these actions, Terhorst suffered injuries, mental and physical pain, anguish and medical costs. Plaintiff sought compensatory damages in excess of $50,000 and attorney fees.
Count II of the first amended complaint realleged most of the same allegations as count I. Further, count II alleged that as a result of defendant's acts or omissions, Terhorst was injured and ultimately died. Count II sought damages suffered by Terhorst's next of kin in excess of $50,000 and costs.
On May 19, 2009, defendant filed an answer to plaintiff's first amended complaint. Defendant denied any negligent acts or omissions and denied causing any injury to Terhorst or his next of kin. Defendant sought judgment in its favor and demanded a jury trial.
On June 1, 2009, defendant filed a motion to dismiss and compel arbitration. The motion to dismiss was filed pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)) and included an attached exhibit. The exhibit contained two separate documents. The first document contained the heading “CONTRACT.” The second document was entitled “ Arbitration Agreement.” Both documents, attached as exhibit A to the motion to dismiss, were dated November 29, 2006. Each document contained the signature of the legal representative of Terhorst and the signature of a facility representative for defendant.
The contract began with the following language:
Resident and Manor Court (Facility Name) and legal representative for the responsibilities and rights of the parties with respect to the Residents stay at the facility.”
The first page of this document identified the name of the resident, Jacob Terhorst, the responsible party, Ann Bonomo, and the admission date of November 29, 2006. The bottom of the first page of the document also indicated that the contract consisted of seven pages.
The first 23 paragraphs of the 7-page document, marked A through W, described the room and board, late payments, types of government programs for payments, ancillary charges, resident's right to choose a physician, pharmacy and independent providers, discharge and termination of contract terms, personal belongings, services, deposits and refunds, and indemnification.
Thereafter, the document identified the daily rate for rooms and finance charges.
On page six of the contract, the language contained in the document set forth policies and additional information including treatment refusal, rules and regulations, overnight leave, smoking policy, room assignments and policies on valuables. The document ended with signature lines for the resident, legal representative and the facility representative.
The second document, attached as exhibit A to the motion to dismiss, was entitled “ Arbitration Agreement.” This document began with the following language: “Without limiting any rights set forth in other provisions of this AGREEMENT, any and all disputes arising hereunder shall be submitted to binding arbitration and not to a court for determination.” In the next paragraph, the document stated:
“Notwithstanding the parties intent to submit any controversy or claim arising out of or relating to this AGREEMENT or any other document signed or initialed in connection with this AGREEMENT to arbitration, in the event that a court of competent
jurisdiction shall determine or a relevant law shall provide that a particular dispute is not subject to the arbitration provisions of this Section, then the parties agree to the following provisions:
a. Each party believes that justice will be served if issues regarding this AGREEMENT are heard by a judge in a court proceeding, and not a jury, and each party hereby waives their right to a trial by jury. * * *
b. The party prevailing in such dispute shall be entitled to recover all costs incurred * * *.”
Signature lines immediately followed for the resident, the resident's representative and the facility representative.
On August 10, 2009, plaintiff filed a response and motion to strike defendant's motion to dismiss and compel arbitration. Plaintiff denied that an enforceable agreement existed which required the arbitration of disputes regarding services provided under the nursing home care contract. Alternatively, plaintiff also claimed that defendant waived its right to arbitration by answering the first amended complaint and, thereafter, participating in the court proceedings. Additionally, plaintiff submitted public policy barred any attempt to cause an individual to waive his or her rights under the Act....
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