Extendicare Homes, Inc. v. Whisman, 2013–SC–000426–I

CourtKentucky Supreme Court
Writing for the CourtOPINION OF THE COURT BY JUSTICE VENTERS
Citation478 S.W.3d 306
Parties Extendicare Homes, Inc. d/ b/ a Shady Lawn Nursing Home; Extendicare, Inc.; Extendicare Health Network, Inc.; Extendicare Reit ; Extendicare L.P.; Extendicare Holdings, Inc.; Extendicare Health Services, Inc.; Extendicare Health Facility Holdings, Inc. ; John Does 1 Through 5; and Unknown Defendants, Movants, v. Belinda Whisman and Tony Adams, as Co–Administrators of the Estate of Van B. Adams, Deceased, Respondents. and Kindred Nursing Centers Limited Partnership d/b/a Winchester Centre for Health and Rehabilitation n/k/a Fountain Circle Health and Rehabilitation; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare, Inc.; and Kindred Healthcare Operating, Inc., Movants v. Janis E. Clark, Executrix of the Estate of Olive G. Clark, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Oliver G. Clark, Respondents. and Kindred Nursing Centers Limited Partnership d/b/a Winchester Centre for Health and Rehabilitation n/k/a Fountain Circle Health and Rehabilitation; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare, Inc.; and Kindred Health Care Operating, Inc., Movants, v. Beverly Wellner, Individually and on Behalf of the Estate of Joe P. Wellner, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Joe P. Wellner, Respondents.
Decision Date24 September 2015
Docket Number2013–SC–000431–I,2013–SC–000430–I,2013–SC–000426–I

478 S.W.3d 306

Extendicare Homes, Inc. d/ b/ a Shady Lawn Nursing Home; Extendicare, Inc.; Extendicare Health Network, Inc.; Extendicare Reit ; Extendicare L.P.; Extendicare Holdings, Inc.; Extendicare Health Services, Inc.; Extendicare Health Facility Holdings, Inc. ; John Does 1 Through 5; and Unknown Defendants, Movants,
v.
Belinda Whisman and Tony Adams, as Co–Administrators of the Estate of Van B. Adams, Deceased, Respondents.

and
Kindred Nursing Centers Limited Partnership d/b/a Winchester Centre for Health and Rehabilitation n/k/a Fountain Circle Health and Rehabilitation; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare, Inc.; and Kindred Healthcare Operating, Inc., Movants
v.
Janis E. Clark, Executrix of the Estate of Olive G. Clark, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Oliver G. Clark, Respondents.

and
Kindred Nursing Centers Limited Partnership d/b/a Winchester Centre for Health and Rehabilitation n/k/a Fountain Circle Health and Rehabilitation; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare, Inc.; and Kindred Health Care Operating, Inc., Movants,
v.
Beverly Wellner, Individually and on Behalf of the Estate of Joe P. Wellner, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Joe P. Wellner, Respondents.

2013–SC–000426–I
2013–SC–000430–I
2013–SC–000431–I

Supreme Court of Kentucky.

RENDERED: SEPTEMBER 24, 2015
CORRECTED: OCTOBER 9, 2015
Rehearing Denied February 18, 2016


Edmund John Benson, Kathryn Todd Martin, Benson Law Offices, Lexington, Jason Patrick Renzelmann, Louisville, William James George, Frost Brown Todd, LLC, Counsel for Appellants: Extendicare Homes, Inc. d/b/a Shady Lawn Nursing Home; Extendicare, Inc.; Extendicare Health Network, Inc.; Extendicare Reit; Extendicare L.P.; Extendicare Holdings, Inc.; Extendicare Health Services, Inc.; Extendicare Health Facility Holdings, Inc.; John Does 1 through 5; and Unknown Defendants.

Cameron C. Jehl, Carey Lynn Acerra, Robert Earl Salyer, Wilkes & McHugh, P.A., Counsel for Appellees: Belinda Whisman and Tony Adams, as Co-Administrators of the Estate of Van B. Adams, Deceased.

Donald Lee Miller, II, Kristin M. Lomond, James Peter Cassidy, III, Quintairos, Prieto, Wood & Boyer P.A., Louisville, Counsel for Appellants: Kindred Nursing Centers Limited Partnership d/b/a Winchester Centre for Health and Rehabilitation n/k/a Fountain Circle Health and Rehabilitation; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare, Inc.; and Kindred Healthcare Operating, Inc.

James T. Gilbert, Coy, Gilbert 86 Gilbert, Richmond, Richard Eric Circeo, Robert Earl Salyer, Wilkes 86 McHugh, P.A., Lexington, Counsel for Appellees: Janis E. Clark, Executrix of the Estate of Olive G. Clark, Deceased, and on Behalf of the

478 S.W.3d 312

Wrongful Death Beneficiaries of Oliver G. Clark and Beverly Wellner, Individually and on Behalf of the Estate of Joe P. Wellner, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Joe P. Wellner.

OPINION OF THE COURT BY JUSTICE VENTERS

This decision consolidates three cases accepted by this Court for discretionary review pursuant to CR 65.09. By way of motions for interlocutory relief under CR 65.09, Extendicare Homes, Inc. d/b/a/ Shady Lawn Nursing Home ("Extendicare"), and its affiliated entities,1 and Kindred Nursing Centers Limited Partnership d/b/a Winchester Centre For Health and Rehabilitation n/k/a Fountain Circle Health and Rehabilitation ("Kindred") and its affiliated entities,2 seek relief from orders of the Court of Appeals refusing to compel arbitration of disputes pending in Clark Circuit Court and the Trigg Circuit Court.

Each of the three cases originated with the filing of an action in the circuit court asserting claims against the nursing home for personal injuries suffered by the nursing home resident, violations of KRS 216.510 et seq. ,3 and for wrongful death of the resident. In each case, at the time of the resident's admission to the nursing home, an attorney-in-fact for the resident executed a written document providing that any claims or disputes arising out of the relationship between the resident and the nursing home would be submitted to arbitration, rather than adjudication in the courts. Upon the commencement of each case in circuit court, the defendant nursing home facility moved the court to dismiss the action and compel the parties to submit the claims to a formal arbitration proceeding. In each case, citing our opinion in Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581 (Ky. 2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1996, 185 L.Ed.2d 879 (2013), the circuit court denied the motion on the grounds that the respective power-of-attorney instruments did not authorize the resident's attorney-in-fact to waive the resident's right to access to the courts for the resolution of disputes.

Kindred and Extendicare each sought interlocutory relief in the Court of Appeals pursuant to CR 65.07. The Court of Appeals declined to grant the requested relief. Kindred and Extendicare then sought relief in this Court.

The central issue is whether, based upon the language of the particular power-of-attorney instrument, an arbitration agreement was validly formed between the respective nursing home facility and the resident whose interests were thereby affected. For the reasons set forth below, we conclude in two of the cases, Extendicare Homes, Inc., et al, v. Whisman (Case No. 2013–SC–426–I) and Kindred Nursing Centers Limited Partnership, et al., v. Wellner (Case No. 2013–SC–431–I), that the authority to enter into a pre-dispute arbitration agreement was not among the powers granted to respective attorney-in-fact and, therefore the arbitration agreements were not formed with the assent of the party to be bound thereby. Lacking

478 S.W.3d 313

the essential element of assent, we conclude that the arbitration agreements in those cases were never validly formed.

We further conclude that without a clear and convincing manifestation of the principal's intention to do so, we will not infer the delegation to an agent of the authority to waive a fundamental personal right so constitutionally revered as the "ancient mode of trial by jury."4 Consequently, because none of the power-of-attorney instruments involved in these cases provide a manifestation of the principal's intent to delegate that power to his agent, we conclude that the agent was not so authorized, and that the principal's assent to the waiver was never validly obtained. Accordingly, we deny the motions for interlocutory relief. In so doing, we affirm the orders of the Court of Appeals.

At the outset, however, it is appropriate that we direct our attention specifically to the cause of action pled in each case for wrongful death. We held in Ping, and we reiterate today: the decedent whose death becomes the basis of a wrongful death claim had no authority during his lifetime, directly or through the actions of his attorney-in-fact, to prospectively bind the beneficiaries of the wrongful death claim to an arbitration agreement.

I. THE WRONGFUL DEATH BENEFICIARIES ARE NOT BOUND BY THE ARBITRATION AGREEMENTS IN ISSUE HERE

In Ping, 376 S.W.3d at 597–600, we squarely confronted the question of whether a decedent, by her own action or through the action of her attorney-in-fact, could enter into contracts of any kind that would bind the rights of the beneficiaries of wrongful death claims made in connection with her own death. Based upon well-settled precedent and upon the constitutional and statutory structure of Kentucky's wrongful death law, we determined that a wrongful death claim does not "derive from any claim on behalf of the decedent, and [the wrongful death beneficiaries] do not succeed to the decedent's dispute resolution agreements." Id. at 600.

Section 241 of the Kentucky Constitution declares: "The General Assembly may provide how the recovery [from a wrongful death action] shall go and to whom belong." In KRS 411.130(2), the General Assembly designated the persons to whom such claims belong. In Ping, we quoted Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 672 (Ky. 1967), holding that "the wrongful death action is not derivative ... [It] is distinct from any [cause] that the deceased may have had if he had survived." Id. We recently reaffirmed that holding in Pete v. Anderson :

Under the plain language of the statute, the cause of action "belongs" to the beneficiaries of the wrongful death claim, as the amount recovered in a wrongful death action "shall be for the benefit of and go to the kindred of the deceased[.]" KRS 411.130(2).... With no interest in the recovery, the personal representative is a "nominal" party, as the "real parties in interest are the beneficiaries whom [the personal representative] represents." (citing Vaughn's Administrator [297 Ky. 309], 179 S.W.2d 441, 445 (1944) ).

413 S.W.3d 291, 299 (Ky. 2013). Moreover, Pete expressly and explicitly noted that " Ping ... puts to rest any dispute as to whether the statutory beneficiaries are the real parties in interest to a wrongful death action." Pete, at 300.

478 S.W.3d 314

Under Kentucky law, a wrongful death claim is a distinct interest in...

To continue reading

Request your trial
76 practice notes
  • Kernahan v. Home Warranty Adm'r of Fla., Inc., A-15 September Term 2017
    • United States
    • United States State Supreme Court (New Jersey)
    • January 10, 2019
    ...their right to trial by a Judge and their right to appeal the decision of the arbitrator(s)." See Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 317 (Ky. 2015) (alteration in original), judgment rev'd in part, vacated in part sub nom. Kindred Nursing, 137 S.Ct. 1421.3 Significantly, th......
  • St. Matthews v. Madison, CIVIL ACTION NO. 3:16-CV-00830-TBR.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • May 25, 2017
    ...authority sign such an agreement. In support of that position, Anthony Madison, Sr. points to Extendicare Homes, Inc. v. Whisman , 478 S.W.3d 306 (Ky. 2015), in which the Kentucky Supreme Court held just that. Nonetheless, the point is moot in light of Kindred Nursing Centers Ltd. P'ship v.......
  • Chamber of Commerce of the U.S. v. Bonta, No. 20-15291
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2021
    ...only if the power of attorney ‘expressly so provided.’ " Id. at 1426 (alteration adopted) (quoting Extendicare Homes, Inc. v. Whisman , 478 S.W.3d 306, 328–29 (Ky. 2015) ). Reversing the Kentucky Supreme Court, Kindred Nursing explained that Kentucky's "clear-statement rule" was preempted b......
  • Evangelical Lutheran Good Samaritan Soc'y v. Moreno, No. CIV 16–1355 JB/KS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 29, 2017
    ...an arbitration agreement. Kindred Nursing Centers Ltd. P'ship v. Clark, 137 S.Ct. at 1425 (quoting Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 327 (Ky. 2015) ). Noting that arbitration agreements could be invalidated on generally applicable contract defenses, but not on legal rules ......
  • Request a trial to view additional results
77 cases
  • Kernahan v. Home Warranty Adm'r of Fla., Inc., A-15 September Term 2017
    • United States
    • United States State Supreme Court (New Jersey)
    • January 10, 2019
    ...their right to trial by a Judge and their right to appeal the decision of the arbitrator(s)." See Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 317 (Ky. 2015) (alteration in original), judgment rev'd in part, vacated in part sub nom. Kindred Nursing, 137 S.Ct. 1421.3 Significantly, th......
  • Chamber of Commerce of the U.S. v. Bonta, No. 20-15291
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2021
    ...only if the power of attorney ‘expressly so provided.’ " Id. at 1426 (alteration adopted) (quoting Extendicare Homes, Inc. v. Whisman , 478 S.W.3d 306, 328–29 (Ky. 2015) ). Reversing the Kentucky Supreme Court, Kindred Nursing explained that Kentucky's "clear-statement rule" was preempted b......
  • Evangelical Lutheran Good Samaritan Soc'y v. Moreno, No. CIV 16–1355 JB/KS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • September 29, 2017
    ...an arbitration agreement. Kindred Nursing Centers Ltd. P'ship v. Clark, 137 S.Ct. at 1425 (quoting Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 327 (Ky. 2015) ). Noting that arbitration agreements could be invalidated on generally applicable contract defenses, but not on legal rules ......
  • Preferred Care of Del., Inc. v. Crocker, CIVIL ACTION NO. 5:15-CV-177-TBR
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • March 24, 2016
    ...of attorney. Id. She relies on two recent Kentucky Supreme Court cases to support her position: Extendicare Homes, Inc. v. Whisman , 478 S.W.3d 306, 312 (Ky.2015), as corrected (Oct. 9, 2015), and reh'g denied (Feb. 18, 2016) and Ping v. Beverly Enterprises, Inc. , 376 S.W.3d 581, 587 (Ky.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT