“Sticks and stones will break my bones … but words will (also) hurt me (and my survivors)!”
The Fifth District Court of Appeals certified the following question to the Florida Supreme Court as one “of great public importance:”
“Does the execution of a nursing home arbitration agreement by a party with the capacity to contract, bind the patient’s estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of an otherwise valid arbitration agreement?”
After construing Florida’s Wrongful Death Act (§768.16-26 Fla. Stat.) and Florida’s Nursing Home Residents’ Rights Act (NHRRA) (§400 Fla. Stat.), the Supreme Court determined it does.
In Debra Laizure v. Avante at Leesburg, Inc., et al. (No.SC 10-2132, February 14, 2013), the decedent, a patient in the Respondent nursing home, signed a detailed arbitration agreement included in his admission paperwork. Petitioner, decedent’s personal representative, subsequently brought a wrongful death action. The nursing home sought to stay the action and enforce agreement.
Relying on Seifert v. U.S. Home Corp. (750 So. 2d 633 (Fla. 1999)), a leading Florida arbitration case, the Petitioner argued that “the wrongful death claim is (not arbitrable because) it belongs to the estate, and that arises after the decedent died.” Moreover, if upheld, the agreement “goes beyond merely defeating the remedial provisions of (NHRRA) – it attempts to bar such statutory claims entirely (and) it attempts to channel fraud claims…into arbitration….” Also, Petitioner will be denied a jury trial as well as possible punitive damages.
The Respondent made an informed consent argument supporting a valid contract. It then relied upon the agreement itself which “provides in clear, broad, inclusive language (that) any legal dispute, controversy, demand, or claim … that arises out of or relates to the Resident Agreement for Care or is in any way connected to the Resident’s stay at the Facility shall be resolved exclusively by binding Arbitration; and not by a lawsuit or resort to other court process…[including but not limited to] any claim based on … common law or statutory negligence, gross negligence, malpractice or a claim based on any departure from accepted standards of medical or nursing care … This shall expressly include, without limitation, claims based on Chapter 400, Florida Statutes….” (Emphasis added)
The American Association of Retired Persons’ (AARP) amicus brief supporting the Representative argued public policy, doctrinal references and case law. As to public policy, the Association noted that “(s)everal state courts have concluded that mandatory arbitration clauses are…intrusive for nursing home residents that the third party signatory must have express authority to make such a contract .” And that “(s)uch rulings are consistent with the U.S. Supreme Court’s determination that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he [or she] has not agreed to submit.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)”
In an amicus reply, the Florida Health Care Association (FHCA) took an opposing position. This “non-profit organization (representing) more than 500 facilities (providing) skilled nursing, post-acute and sub-acute care, short-term rehab, assisted living and other services in Florida,” argued that a finding for the Representative would “bestow upon statutory survivors and the decedent’s estate greater legal rights than the decedent himself would have enjoyed, had he survived. Such an irrational ruling cannot co-exist with the well-established public policy of our state and federal governments in support of arbitration.” Citing Toombs v. Alamo Rent-a-Car, Inc. (833 So.2d 109 (Fla. 2002)) for the proposition that “survivors may not recover where the decedent himself could not have recovered”), FHCA also argued informed consent. That is, “where a nursing home resident, voluntarily, knowingly, and with legal capacity, signs an otherwise valid arbitration agreement, he (or she) has effectively waived judicial proceedings in favor of alternative dispute resolution. Upon his death, the decedent’s survivors cannot assert a right to jury trial the resident himself did not possess.”
As it did earlier this year in Jackson v. Shakespeare (SC11-1196), the Florida Supreme Court distinguished its Seifert holding:
“(U)nlike the contract and claim in Seifert, there is a ‘significant relationship,’ between the contract and the allegations in the complaint. Further, unlike Seifert, the terms of the arbitration agreement in this case specifically ‘contemplated the existence and arbitration of the future tort claims for personal injuries based on a party’s common law negligence.’ The agreement expressly encompasses claims arising out of or relating to the (decedent’s) stay at the facility, including negligence and malpractice, and is expressly binding upon and includes claims brought by (decedent’s) heirs.” (Emphasis added)
The Court citing its decision in Valiant Insurance Co. v. Webster stated that “[w]hile the Wrongful Death Act creates independent claims for the survivors, these claims are also derivative in the sense that they are dependent upon a wrong committed upon another person. No Florida decision has allowed a survivor to recover where the decedent could not recover.” (567 So. 2d 408, 411 (Fla. 1990)). The derivative nature of a wrongful death claim is the “significant relationship” linchpin which makes this case substantively different from Seifert. The Court construed Florida’s Wrongful Death and Nursing Home Residents’ Rights Acts in support that rationale. The Court noted that the Wrongful Death statute “provides for a cause of action ‘[w]hen the death of a person is caused by the wrongful act, negligence, default , or breach of contract or warranty of any person,…and the event would have entitled the person injured to maintain an action and recover damages if the death had not ensued.” (Emphasis in the opinion)
Under the NHRRA, the “claimant (can) elect between a survival action and wrongful death action.” “When the NHRRA does not apply, the personal injury cause of action abates upon the death of the injured party under the Wrongful Death Act, and the wrongful death cause of action becomes the only avenue of recovery.”
The Supreme Court said that “(p)rincipled arguments exist on both sides of this issue.” This was clear from the extensive arguments supporting divergent positions as well as those of the amice. Moreover, AARP’s amicus brief catalogues the differing views of numerous state courts.
The Court “…ultimately conclude(d) that the nature of a wrongful death cause of action in Florida is derivative in the context of determining whether a decedent’s estate and heirs are bound by the decedent’s agreement to arbitrate. The estate and heirs stand in the shoes of the decedent for purposes of whether the defendant is liable and are bound by the decedent’s actions and contracts with respect to defenses and releases.”
Thank you Carl H. Perdue, JD, LLM for this case summary.
Carl can be reached at: firstname.lastname@example.org or 561-361-6566.
Of Counsel to the Firm
Miami – Ft. Lauderdale – Boca Raton