Gainesville Health Care Center, Inc. v. Weston

• Decision Date: 18 September 2003
• Docket Number: No. 1D02-5101.,1D02-5101.
• Citation: 857 So.2d 278
• Parties: GAINESVILLE HEALTH CARE CENTER, INC., as licensee and d/b/a Integrated Health Services at Gainesville, Appellant, v. Margaret WESTON, as Personal Representative of the Estate of Isabella Brooks, Appellee.
• Court: Florida District Court of Appeals

857 So.2d 278

GAINESVILLE HEALTH CARE CENTER, INC., as licensee and d/b/a Integrated Health Services at Gainesville, Appellant, v. Margaret WESTON, as Personal Representative of the Estate of Isabella Brooks, Appellee.

No. 1D02-5101.

District Court of Appeal of Florida, First District.

September 18, 2003.

Rehearing Denied October 23, 2003.

R. Daniel Noey and Charles G. Eichhorn, Jr., of Dore, Lanier, Noey, & Fannin, Chartered, Jacksonville, for Appellant.

Gerald D. Schackow of Schackow & Mercadante, PA, Gainesville, for Appellee.

WEBSTER, J.

Appellant seeks review of a non-final order denying its motion to compel arbitration and abate appellee's civil action. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const.; Fla. R.App. P. 9.030(b)(1)(B), 9.130(a)(3)(C)(iv). The trial court held that appellant is not entitled to arbitration because the arbitration provision is unconscionable. We conclude that the trial court's determination that the arbitration provision is procedurally unconscionable is erroneous as a matter of law, and that appellee's alternative arguments regarding unenforceability of the arbitration provision are legally without merit. Accordingly, we reverse.

I.

Appellee, as personal representative of the estate of Isabella Brooks, filed a civil damage action against appellant, asserting claims based on negligence, wrongful death and violation of section 400.022, Florida Statutes (sometimes referred to as the nursing home residents' bill of rights). Appellant responded by filing a motion to compel arbitration and abate proceedings. Attached to that motion was a six-page document titled "Admission Contract," which appellant asserted had been executed on Isabella Brooks' behalf by her daughter, Barbara West, pursuant to a power of attorney previously executed by Ms. Brooks. That document includes the following provision:

VI. ARBITRATION

Except as prohibited by applicable law, pursuant to the Federal Arbitration Act, any action, dispute, claim, or controversy of any kind (e.g., whether in contract or in tort, statutory or common law, legal or equitable, or otherwise) now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with the provision of healthcare services, any agreement between the parties, the provision of any other goods or services by the Health Care Center or other transactions, contracts or agreements of any kind whatsoever, any past, present, or future incidents, omissions, acts, errors, practices, or occurrence causing injury to either party whereby the other party or its agents, employees or representatives may be liable, in whole or in part, or any other aspect of the past, present, or future relationships between the parties shall be resolved by binding arbitration administered by the National Health Lawyers Association (the "NHLA").

Immediately below this provision is the following:

THE UNDERSIGNED ACKNOWLEDGE THAT EACH OF THEM HAS READ AND UNDERSTOOD THIS CONTRACT, AND THAT EACH OF THEM VOLUNTARILY CONSENTS TO ALL OF ITS TERMS

The signature lines are immediately below this language. In two memoranda opposing appellant's motion to compel arbitration, appellee raised a number of issues, including that the arbitration provision is procedurally and substantively unconscionable.

At the hearing held on appellant's motion to compel arbitration, the parties relied exclusively on the documents executed by Ms. West on her mother's behalf and the depositions of Ms. West and Tammy Miller, the employee of appellant with whom Ms. West dealt. Viewed in a light most favorable to appellee, those depositions establish that Ms. West and her sister (appellee) desired to transfer Ms. Brooks from the nursing home where she was residing to appellant's facility because they were dissatisfied with the care their mother had received at the first facility. Ms. Brooks was admitted to appellant's facility on February 9, 2001. After Ms. Brooks had been admitted to appellant's facility, Ms. West made an appointment to meet with Tammy Miller. That meeting occurred at appellant's facility on March 28, 2001.

The meeting between Ms. West and Ms. Miller took place during the former's lunch break. It probably lasted 15 to 20 minutes. During that meeting, Ms. West told Ms. Miller that she possessed a power of attorney on behalf of her mother, and executed several documents in that capacity. One of those documents was the Admission Contract. No substantive discussion occurred regarding that document. Ms. West (who is a high school graduate and, at the time, held a clerical/administrative position with a major healthcare provider) asked no questions about it; nor did she indicate that she had not read and understood it, as the acknowledgment immediately preceding the signature line recited (although she now claims that she did not read it before she executed it). Ms. West did not ask to be permitted to take the documents with her, so that she might study them or seek the advice of a lawyer or other more knowledgeable person before signing. Had she done so, that would have been permitted. It is clear that any haste associated with reviewing and signing the documents was self-imposed by Ms. West. There is no suggestion that the Admission Contract was presented on a "take-it-or-leave-it" basis; nothing to suggest that, had Ms. West requested to amend that document in some material respect, such a request would have been denied; and no evidence that Ms. West could not have obtained a satisfactory placement for her mother except by acquiescing to the terms of the contract.

During the hearing, the trial court observed that it appeared Ms. West had had "ample opportunity" to read the documents before she executed them. It noted that Ms. Brooks had been residing at appellant's facility for several weeks before the documents were executed and that, had Ms. West been uncomfortable with the documents, she might have taken them home to study or discuss "with other family members or trusted friends or advisers." The court also noted that Ms. West could have had a lawyer review them, had she so desired. Notwithstanding those observations, however, at the conclusion of the hearing the trial court held that the Admission Contract was procedurally and substantively unconscionable. (It did not expressly hold that the arbitration provision contained in that document was, likewise, unconscionable, but it is clear that such was its intent.) It based that holding on the findings that the Admission Contract was a "contract of adhesion"; that nobody on behalf of appellant explained the terms of the arbitration provision to Ms. West, including what arbitration is and what rights appellee would be giving up; and that Ms. West did not understand the arbitration provision. More particularly, the trial court was of the opinion that appellant was obliged to explain to Ms. West that, by signing the Admission Contract, appellee would be giving up the right to a trial in a court; that appellee's choice of arbitrators would be limited to a group likely to be biased in favor of appellant; that the burden of persuasion on some types of claims would be greater than it would in a court; and that appellee would be subject to a different rule regarding the award of attorney's fees from that applicable in a court. The trial court incorporated its findings and holding by reference in a subsequent order denying appellant's motion to compel arbitration and abate the action. This appeal follows.

II.

A.

The arbitration provision in the Admission Contract provides that the Federal Arbitration Act (9 U.S.C. §§ 1-16) is to apply to any subsequent dispute. The parties have not specifically addressed whether that Act or the Florida Arbitration Code (ch. 682, Fla.Stat.) controls, and the trial court made no ruling on this question. However, for purposes of this appeal, the answer is irrelevant because the analysis is the same in either case.

According to our supreme court,

[u]nder both federal statutory provisions and Florida's arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.

Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int'l Co. v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). Accord John B. Goodman Ltd. P'ship v. THF Constr., Inc., 321 F.3d 1094 (11th Cir.2003)

. Pursuant to the first element for consideration, it is relatively clear that the issue is "whether a valid written agreement to arbitrate exists," not whether a valid written contract containing an arbitration provision exists. Seifert, 750 So.2d at 636; John B. Goodman Ltd. P'ship,

321 F.3d at 1095-98. This focus on the validity of the arbitration provision, rather than of the contract containing the provision, is the result of the holding by the United States Supreme Court in a case construing the Federal Arbitration Act "that[,] in passing upon a[n] ... application for a stay while the parties arbitrate, a federal court may consider only issues relating to the making and performance of the agreement to arbitrate." Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). It has become known as the "separability" doctrine. John B. Goodman Ltd. P'ship,

321 F.3d at 1095. See also Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344, 347 (Fla. 4th DCA 1992) (discussing "separability" pursuant to section 682.03 of the Florida Arbitration Code). While the trial court did not expressly hold that the arbitration provision, as opposed to the Admission Contract, was unenforceable, it is clear that such was its intent, and that the parties presented the issue that way. No issue has been raised as to either the existence of an...