Pietrelli v. Peacock

• Decision Date: 24 February 1993
• Docket Number: No. A055582,A055582
• Court: California Court of Appeals Court of Appeals
• Parties: Robert PIETRELLI, a Minor, etc., Plaintiff and Respondent, v. Gordon PEACOCK, Defendant and Appellant.

Page 688

16 Cal.Rptr.2d 688

13 Cal.App.4th 943

Robert PIETRELLI, a Minor, etc., Plaintiff and Respondent, v. Gordon PEACOCK, Defendant and Appellant.

No. A055582.

Court of Appeal, First District, Division 2, California.

Feb. 24, 1993.

James M. Goodman, Renee A. Richards, Hassard, Bonnington, Rogers & Huber, Alan W. Sparer, Barbara A. Winters, Linda Q. Foy, Howard, Rice, Nemerovski, Canady, Robertson & Falk, A Professional Corp., San Francisco, for defendant and appellant.

Girardi & Keese, James B. Kropff, James G. O'Callahan, Los Angeles, for plaintiff and respondent.

SMITH, Acting Presiding Justice.

Defendant Gordon Peacock, M.D., appeals from an order denying his petition to compel arbitration of a claim brought by plaintiff Robert Pietrelli, a minor, for medical malpractice. The issue here is whether plaintiff was bound by an arbitration agreement which was signed by his mother at a time when plaintiff was both unborn and unconceived. We conclude that plaintiff was so bound and reverse the judgment of the trial court.

BACKGROUND

On July 28, 1981, plaintiff's mother, Mrs. Jerri Pietrelli, who was not pregnant at the Plaintiff was born on October 3, 1982. On September 12, 1990, plaintiff, through Mrs. Pietrelli as his guardian ad litem, filed a complaint against defendant for medical malpractice, alleging negligence in the care and treatment he received from defendant at or around the time of his birth.

                time, signed a contract in which she agreed to submit any dispute regarding medical services rendered by defendant to binding arbitration.  The document, entitled "Arbitration Agreement" stated in pertinent part, "Any controversy between me and Doctor concerning medical care and any such controversy between Doctor and persons, born or unborn, on behalf of whom I have the power to contract shall be submitted to FINAL AND BINDING ARBITRATION in accordance with the procedure set out in Article 2 below."  (Emphasis added.)   Mrs. Pietrelli subsequently became pregnant and received obstetric care from defendant
                

Defendant responded by filing a petition to compel arbitration pursuant to the arbitration agreement quoted above. Plaintiff opposed the motion on the principal ground that he was not a party covered by the agreement. In its order denying the petition, the court "found that the language in the Arbitration Agreement did not bind children not yet conceived at the time the Arbitration Agreement was signed, and that reference to 'persons, born or unborn,' did not pertain to those not yet conceived."

Defendant appeals from the order.

APPEAL

"This state has a strong public policy favoring arbitration over litigation as a speedy and relatively inexpensive means of dispute resolution which eases court congestion. [Citations.]" (Gross v. Recabaren (1988) 206 Cal.App.3d 771, 775, 253 Cal.Rptr. 820 (Gross ); see also Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706-707, 131 Cal.Rptr. 882, 552 P.2d 1178.) This policy is embodied Code of Civil Procedure section 1295 (all undesignated statutory references are to that code), which was added as part of the Medical Injury Compensation Reform Act (MICRA). (Stats.1975, Second Ex.Sess.1975-1976, chs. 1-2, pp. 3949-4007.) The purpose of section 1295 was to encourage and facilitate arbitration of medical malpractice disputes. (Gross, supra, 206 Cal.App.3d at p. 776, 253 Cal.Rptr. 820.)

Subdivision (c) of section 1295 sets forth certain requirements for agreements to arbitrate medical malpractice disputes, and further states that an arbitration agreement which complies with its requirements "governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice...." There is no question here that the services which are the subject of this action fell within the parameters of section 1295.

We therefore turn to the question of whether plaintiff is a party bound by the agreement his mother signed for the rendition of those services. Because the scope of an arbitration agreement is a matter of agreement between the parties, the court should attempt to give effect to their intentions in light of the usual and ordinary meaning of the language used and the circumstances under which the agreement was made. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744, 222 Cal.Rptr. 1, 710 P.2d 833; Gross, supra, 206 Cal.App.3d 771, 777, 253 Cal.Rptr. 820.) In this case, Mrs. Pietrelli signed a contract binding to arbitration not only herself but "and persons, born or unborn, on behalf of whom I have the power to contract...." (Emphasis added.)

It has long been the law that a parent has the power to bind a minor child to arbitration of claims arising from the minor's health care contract. (Doyle v. Giuliucci (1965) 62 Cal.2d 606, 609-610, 43 Cal.Rptr. 697, 401 P.2d 1.) This authority is implied from the parent's duties and rights as the child's guardian. (Id., at p. 610, 43 Cal.Rptr. 697, 401 P.2d 1.) Civil Code section 29 confers on a conceived child the legal right to recover for injuries Plaintiff claims, however, that this case is different because he was neither born nor conceived at the time. He argues that his mother can have no power to bind to arbitration someone who does not exist as a legal entity at the time of the contract. We disagree.

                caused by the wrongful act or neglect of another at or prior to his birth (Norman v. Murphy (1954) 124 Cal.App.2d 95, 97-98, 268 P.2d 178;  Scott v. McPheeters (1939) 33 Cal.App.2d 629, 632-637, 92 P.2d 678), although the right does not accrue until the child is born alive.  (Wilson v. Kaiser Foundation Hospitals (1983) 141 Cal.App.3d 891, 897, 190 Cal.Rptr. 649 (Wilson ).)   Accordingly it has been held that a mother may validly bind her expected child to arbitration of all claims for negligence in prenatal and postnatal medical treatment.  (Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1591, 283 Cal.Rptr. 209.)
                

It is settled that nonsignatories may be bound by arbitration agreements executed on their behalf. (See discussion and cases compiled in Keller Construction Co. v. Kashani (1990) 220 Cal.App.3d 222, 225-228, 269 Cal.Rptr. 259.) ¹ Moreover, in other contexts the law recognizes the ability of a party to act on behalf of and affect the rights of persons who have not yet come into existence. For example, a testamentary bequest to a class of persons applies to all persons...