Walker v. Collyer

• Decision Date: 23 May 2014
• Docket Number: No. 12–P–1898.,12–P–1898.
• Citation: 9 N.E.3d 854,85 Mass.App.Ct. 311
• Court: Appeals Court of Massachusetts
• Parties: Charles G. WALKER v. Jennifer COLLYER, administratrix, & others.

85 Mass.App.Ct. 311

9 N.E.3d 854

Charles G. WALKER

v.Jennifer COLLYER, administratrix,¹ & others.²

No. 12–P–1898.

Appeals Court of Massachusetts, Suffolk.

Submitted Sept. 13, 2013.

Decided May 23, 2014.

Curtis R. Diedrich, Boston, for the plaintiff.

Scott D. Peterson, Foxborough, for Jennifer Collyer.

John J. Barter, Boston, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.

Present: COHEN, KATZMANN, & AGNES, JJ.

KATZMANN, J.

Charles Walker, a physician, seeks to avoid being compelled to arbitrate a medical malpractice claim brought by the representative of a deceased patient, Karl Collyer. Walker treated Karl ³ at The Oaks Nursing Center (The Oaks or the facility), a facility at which Walker practices medicine and serves as subacute rehabilitation (rehab) program medical director. Karl and the facility signed an arbitration agreement covering disputes arising from his treatment; Walker did not sign the agreement. In the Superior Court, Walker challenged an arbitrator's order compelling him to participate in an arbitration proceeding commenced pursuant to the agreement. He now appeals from the judgment entered in the Superior Court affirming the arbitrator's decision ordering Walker to arbitration. We conclude that the question whether Walker was bound by the arbitration agreement despite being a nonsignatory was a question for the court and not the arbitrator. We further conclude, based upon the undisputed material facts, that Walker is not bound by the agreement.⁴

While our courts have determined that under some circumstances a party who did not sign an arbitration agreement can take advantage of an agreement signed by an allied party to compel a signatory to arbitrate, we have not decided the question in the converse that is posed by this case: Can a signatory to an arbitration agreement compel a nonsignatory to arbitrate by virtue of the agreement that he has not signed? Other courts, particularly the Federal courts, have considered such situations, enumerating the circumstances in which a signatory can compel a nonsignatory to arbitrate. We find persuasive the framework laid out clearly by the Federal courts and hold that Collyer, as administratrix of Karl's estate, cannot compel Walker to arbitrate because Collyer has failed to show the type of relationship that would establish an exception to the elemental tenet that a party cannot be required to arbitrate if he or she has not agreed to do so. Accordingly, the judgment entered by the Superior Court cannot stand.

Background. 1. Undisputed facts. Karl entered The Oaks for rehabilitation following a hip replacement at another health facility. At the time of his admission, Karl and the facility entered into a “Voluntary Agreement for Arbitration” (arbitration agreement). Karl signed the agreement, as did a representative of the facility (not Walker) on behalf of The Oaks. Walker asserts (and Collyer does not dispute) that he was not aware of the existence of the provision until the filing of this medical malpractice claim against him. The agreement includes the following broad arbitration provision:

“The parties agree that they shall submit to binding arbitration all disputes against each other and their agents, affiliates, governing bodies and employees arising out of or in any way related or connected to the Resident's stay and care provided at the Facility, including but not limited to any disputes concerning alleged personal injury to the Resident caused by improper or inadequate care, including allegations of medical malpractice; any disputes concerning whether any statutory provisions relating to the Resident's rights under Massachusetts law were violated; and any other dispute under Massachusetts or federal law based on contract, tort, or statute.”

The agreement also broadly defines the scope of the parties that it covers:

“It is the intention of the Facility and the Resident that this Arbitration Agreement shall inure to the benefit of and bind the Facility, its parents, affiliates, and subsidiary companies, owners, officers, directors, employees, successors, assigns, agents and insurers; and the Resident, his/her successors, assigns, agents, insurers, heirs, trustees, and representatives, including the personal representative or executor of his or her estate; and his/her successors, assigns, agents, insurers, heirs, trustees, and representatives.”

Walker works at The Oaks both as an attending physician and as subacute rehab program medical director. Walker served as Karl's attending physician during his short stay at The Oaks. Walker conducted a physical examination of Karl the day after he was admitted to the facility and signed his admissions order. Walker also signed Karl's discharge order three days later. The record does not show additionalexaminations or treatment between the initial examination and Karl's discharge.⁵

Walker's role as the subacute rehab program medical director was governed by an agreement (contract) signed on December 18, 2006.⁶ The contract states that Walker will be an independent contractor to The Oaks—not an employee. The Oaks pays Walker directly for his performance of the duties of subacute rehab program medical director. By contrast, individual patients pay Walker for his work as an attending physician.

After receiving care in the facility for four days, Karl was discharged. He died less than three days later from bilateral pulmonary thromboemboli that had resulted from deep vein thrombosis (that is, blood clots that traveled to the lungs from elsewhere in the body).

2. Procedural history. On behalf of Karl's estate and on her own behalf, Collyer brought an arbitration proceeding against Walker, as well as The Oaks and its parent company. This appeal pertains only to Collyer's ability to compel Walker to resolve the dispute through arbitration.

Walker claims that he is not bound by the arbitration agreement and thus cannot be compelled to arbitrate. After a hearing, the arbitrator determined, first, that he had the authority to determine whether the dispute was arbitrable as to Walker, and, second, that it was indeed arbitrable as to him.⁷ Walker commenced an action in Superior Court seeking relief from the arbitrator's order pursuant to G.L. c. 251, § 2( b ).⁸ In his complaint, he sought (1) an order staying the arbitration pending the determination by the court whether he was a proper party to the arbitration, and (2) an order that he was not bound by the arbitration agreement. The Superior Court affirmed the arbitrator's decision requiring that Walker submit to the arbitration proceeding. Walker appeals.⁹

Analysis. 1. Governing law. Because of the dearth of Massachusetts cases on point, we address first the governing law that we apply. Regardless whether the Massachusetts Arbitration Act, G.L. c. 251, §§ 1 et seq., or the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006), governs the underlying dispute (see, e.g., Feeney v. Dell Inc., 466 Mass. 1001, 993 N.E.2d 329 [2013] ), traditional principles of Massachusetts contract law determine whether nonsignatories can be compelled to arbitrate. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 12 & n.26 (1st Cir.2014), citing Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). In applying Massachusetts law, however, we note that the decisions of our courts have only comprehensively addressed the separate but related question whether a nonsignatory can take advantage of an arbitration agreement. See, e.g., Constantino v. Frechette, 73 Mass.App.Ct. 352, 897 N.E.2d 1262 (2008). See also Miller v. Cotter, 448 Mass. 671, 863 N.E.2d 537 (2007), discussed in Constantino, supra at 357 & n. 11, 897 N.E.2d 1262. We have not resolved the particular question at issue here: whether and in what circumstances a signatory can compel a nonsignatory to arbitrate by virtue of an agreement he has not signed.

Until the Supreme Judicial Court's recent decisions in Johnson v. Kindred Healthcare, Inc., 466 Mass. 779, 2 N.E.3d 849 (2014) ( Johnson ), and Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 2 N.E.3d 840 (2014) ( Licata ), our courts had not been presented with the question whether a signatory can force a nonsignatory to arbitrate under Massachusetts law. ¹⁰ Because Johnson and Licata, in considering the particular circumstance of health care proxies, did not lay out the full range of ways to compel nonsignatories to arbitrate and ultimately did not need to address the issue before us, we look to other jurisdictions.¹¹

Other courts, particularly the Federal courts, have considered such situations, enumerating the circumstances in which a signatory can compel a nonsignatory to arbitrate. See, e.g., Thomson–CSF, S.A. v. American Arbitration Assn., 64 F.3d 773, 776 (2d Cir.1995) ( Thomson–CSF ); Bridas S.A.P.I.C. v. Government of Turkmenistan, 345 F.3d 347, 356 (5th Cir.2003), cert. denied, 541 U.S. 937, 124 S.Ct. 1660, 158 L.Ed.2d 357 (2004) ( Bridas ). Because the Massachusetts Arbitration Act, at issue here, “is our enactment of the Uniform Arbitration Act, it is appropriate to give strong weight to decisions in other jurisdictions.” O'Brien v. Hanover Ins. Co., 427 Mass. 194, 201, 692 N.E.2d 39 (1998). For the same reasons, we give similar weight to decisions applying the Federal Arbitration Act. See Miller v. Cotter, 448 Mass. at 679, 863 N.E.2d 537. Multiple Federal Circuit Courts of Appeals have addressed the question whether a signatory can compel a nonsignatory to arbitrate. We find these cases persuasive and adopt their approach here.

2. Who determines arbitrability and how. The question whether Walker is bound by the arbitration agreement between Collyer ¹² and The Oaks is a “gateway dispute” that was an issue for the court, and not the arbitrator, to decide in the first instance. See Massachusetts Hy. Dept. v. Perini Corp., 444 Mass. 366, 375–376, 828 N.E.2d 34 (2005), ...