Mrs. Dea was admitted to an Assisted Living Facility known as Emeritus of Fort Myers (now known as Brookdale of Fort Myers). Upon admission, her power of attorney (her son) signed the admitting paperwork as her “responsible party.” Inside the ALF admitting paperwork was an arbitration agreement, detailing that any disputes involving a Florida assisted living abuse claim would be litigated in a private arbitration and not a public lawsuit. The following year, the Assisted Living Facility was sold to a large conglomerate in the business of operating long term care facilities. When the facility was sold, the purchasing company amended the residence and service agreement that Mrs. Dea’s son signed with Brookdale Fort Myers. Some terms contained in the original admission contract were changed, but the arbitration agreement was not specifically changed.
The Assisted Living Injury and Subsequent Negligence Lawsuit
Mrs. Dea was subsequently injured at the Brookdale Fort Myers facility and sued Brookdale in an ALF neglect lawsuit. The ALF moved to compel arbitration. As it turned out, her other son (without the durable power of attorney) signed the documents. Arguments against enforcing the ALF arbitration agreement were as follows:
- The assisted living facility purchaser which renegotiated the ALF resident contract should not get the benefit of the arbitration agreement (since the contract terms were renegotiated); and,
- The son who signed the arbitration agreement did not have the authority to waive his mother’s constitutional right to a jury trial.
- Apparently, the son who signed the arbitration agreement was only the P.O.A. if the other son was unavailable. The facility failed to prove that the son with the primary power of attorney was unable or unwilling to sign the arbitration contract.
The Court’s Ruling on the Brookdale Arbitration Contract
The Second District Court of Appeal agreed with the Plaintiff’s arguments and reversed the trial court’s order compelling arbitration.
Can the Subsequent Nursing Home Owner Enforce the Prior Nursing Home Contract?
The 2nd DCA reversed the trial court, holding that the ALF purchaser could not enforce the original arbitration agreement. The Court held that the non-signatory to the arbitration agreement (purchaser of the facility) cannot compel a signatory (resident, Mrs. Bea) to submit to arbitration. Because the facility purchaser was not a party to the original residency agreement, and because the contract did not specifically state it is enforceable on successor in interests, it was not enforceable after the sale of the ALF.
Can Son #2 Waive Mom’s Right to a Jury Trial?
Alternatively, the court concluded that the brother who signed the agreement did not have the authority to do so under the power of attorney. Without evidence that the person imbued with that authority had resigned or was unable or unwilling to serve, the brother had no authority to sign away his mother’s constitutional rights. This ruling mirrors a growing national trend of strictly enforcing signatory’s authority to sign arbitration agreements. As courts get tougher on nursing home and assisted living facility arbitration agreements, we see fairer rulings invalidating these agreements.
Assisted Living Facility Injuries
If your family member was injured inside an assisted living facility from a fall, medication error, or nurse’s negligence, call our ALF abuse attorneys today for your free consultation. We are available now at 561-717-0817.
Source: Dea v. PH Fort Myers, LLC, 42 Fla. L. Weekly D168 (Fla. 2nd DCA January 13, 2017)