JULIE E. CARNES, Chief Judge.
This case is before the Court on defendants' Motion to Dismiss or Stay Proceedings and Compel Arbitration [4] and defendant Covenant Dove Holding Company's Motion to Dismiss for Lack of Personal Jurisdiction [3]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' Motion to Dismiss or Stay and Compel Arbitration [4] should be
On March 11, 2010, the defendant long-term care facility Parkwood Nursing and Rehabilitation Center ("Parkwood") admitted 63-year old Patricia Joyner. (Compl. [1] at 8-9.) Doctors had recently amputated the lower part of Joyner's left leg, and the goal of Joyner's stay at Parkwood was for her to regain limited mobility so that she might live on her own with caregiver assistance. (Id.) Joyner was listed in "fair" condition upon her arrival at Parkwood, and there is no indication that she was not coherent or that she was unable to make decisions. (Id.)
When Joyner was admitted to Parkwood, her daughter Shervon Hogsett signed numerous papers on her mother's behalf, including an arbitration agreement. (Defs.' Mot. to Dismiss or Stay and Compel Arbitration [4] ("Defs.' Mot. to Dismiss") at Exs. A & B.) The arbitration agreement is quite broad, covering all potential disputes related to Joyner's stay at Parkwood, including any contractual disputes or torts.
On the last page of the arbitration agreement, below the sentence "I AGREE TO THE TERMS OF THIS AGREEMENT TO ARBITRATE," there is a line on which the name of the resident is to be printed and a line where the signature of the resident is to be affixed. (Id.) On the
An admission agreement was also presented to Hogsett for her signature. (Id. at Ex. A.) The admission agreement states that the term "resident" refers to the resident,
(Id. at 2.)
The admission agreement contains several pages of information about the care to be provided by the Center, as well as the financial obligations of the resident. At the conclusion of the agreement, there is an authorization for payment and release of information, with accompanying signature lines. (Defs.' Mot. to Dismiss [4] at Ex. A, 12.) The "signature" line was completed by "Shervon J. Hogsett" and witnessed by "CWaisilos." (Id.) Below the signature is the following admonition: "
In short, Hogsett signed the arbitration agreement for her mother, Patricia Joyner. Joyner did not sign any of the admissions paperwork. Although Hogsett signed the agreement under the blank calling for "legal representative/caretaker," the parties agree that Hogsett had no legal status as her mother's representative.
Eight days after Joyner was admitted, her doctor provided Parkwood with a recommendation regarding the treatment of a wound on Joyner's partially amputated left leg. (Compl. [1] at 9.) According to plaintiffs, no one at Parkwood acted on the recommendation between March 19 and March 22, 2010, leading to a deterioration in Joyner's condition. (Id.) By the time she received treatment, Joyner's leg was infected beyond repair. (Id.) Joyner died in a nearby hospital on March 26, 2010,
Plaintiffs are Joyner's daughter Hogsett and her son Gary Joyner. They have sued defendant Parkwood and affiliated entities, asserting negligence, breach of contract, wrongful death, and other claims. Plaintiffs Hogsett and Gary Joyner have brought the wrongful death claims in their individual capacities. Plaintiff Hogsett also originally brought claims in her representative capacity on behalf of Joyner's estate, but has now dismissed those claims.
Defendants seek to dismiss plaintiffs' claims and to compel arbitration on those claims based on the agreement signed by Hogsett.
As noted above, two types of claims were originally brought in this case: claims brought on behalf of the estate by its representative Shervon Hogsett and claims brought by the individual plaintiffs, Shervon Hogsett and Gary Joyner. The parties do not address how these claims differ, but as defendants arguably have a stronger ground for compelling arbitration on Shervon Hogsett's individual claims, it is important to have some idea what the differences might be. The Court assumes that estate claims would be those claims that would have been available to Ms. Joyner had she not died, such as any pain and suffering she endured and medical expenses she incurred as a result of the defendants' alleged negligence, as well as any funeral expenses, given that she did, in fact, die. The individual claims would be those claims available to daughter Hogsett and son Gary Joyner based on the death of their mother.
As noted, plaintiff Hogsett, as the representative of the estate, has dismissed all estate claims, apparently because she did not file a medical affidavit as required by Georgia law for medical malpractice claims. See O.C.G.A. § 9-11-9.1. Defendants
Yet, while it is true that the estate claims are now gone, it is still important to analyze the effect of the arbitration agreement on any such estate claims. This is so because if the decedent Joyner agreed to arbitrate any claims against defendants, then presumably her survivors on a wrongful death claim would be bound by that agreement as a wrongful death claim would be derivative of the medical malpractice claim that the decedent could have made. Conversely, if the arbitration agreement is deemed to be invalid and not binding on decedent Joyner or her estate, then it presumably would not be binding on her survivors' individual wrongful death claim.
Defendants correctly note that federal law favors the enforceability of arbitration agreements, even if there is arguably inconsistent state law disfavoring arbitration. See generally Marmet Health Care Ctr., Inc. v. Clayton Brown, ___ U.S. ___, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012) (per curiam) (Federal Arbitration Act permits enforcement of arbitration agreement entered into between residents and nursing homes, despite potentially contrary state law) (citing U.S. CONST., art. VI, cl. 2). So while Georgia may have a strong interest in protecting its nursing home residents, this policy does not, as plaintiffs suggest, preclude care facilities and their residents from contracting to resolve potential disputes through arbitration.
That said, an arbitration agreement is still a contract and, as such, it requires consent by the parties to the agreement. Consent to a contract is a matter of state law. Federal Arbitration Act, 9 U.S.C. § 2 (permitting revocation of arbitration agreement "upon such grounds as exist at law or in equity for the revocation of any contract"); Ashburn Health Care Ctr., Inc. v. Poole, 286 Ga.App. 24, 25, 648 S.E.2d 430 (2007) ("[a]s the party seeking arbitration, [the defendant] bears the burden of proving the existence of a valid and enforceable agreement to arbitrate... [s]uch [an] agreement is, at base, a contract, and the [FAA] does not require parties to arbitrate when they have not agreed to.") (internal cite & quotation omitted). Thus, before the scope or applicability
The parties agree that Hogsett signed the arbitration agreement upon her mother's admittance to Parkwood. They disagree, however, about whether that signature gave rise to a valid agreement between decedent Joyner and the defendants.
Plaintiffs argue that Hogsett did not have authority to bind her mother to an agreement to arbitrate potential claims against the defendants. In support of this argument, plaintiffs note that Hogsett did not have a power of attorney agreement for, or guardianship over, her mother. Further, Hogsett stated in her declaration that Joyner had not given her permission to sign the admission documents on her behalf. (Hogsett Decl. [81] at ¶ 11.) Additionally, defendants offer neither an assertion nor any evidence that decedent Joyner had told the Parkwood Center staff that Hogsett could act on her behalf. Finally, defendants have not suggested that Joyner was incapable of making decisions for herself at the time of her admittance, as she was only 63 years old and her particular malady did not implicate any mental functioning on her part.
Defendants counter that even if Hogsett did not have express authority to act as an agent for Joyner, she had implied/apparent authority, and so Hogsett's signature should be construed as binding her mother. Further, defendants note that while Joyner may not have been present when her daughter signed the admission forms, she never protested either Hogsett's signature on her behalf or her admittance to Parkwood. (Defs.' Reply Br. [12] at 3-4.) Thus, according to defendants, Joyner's consent to arbitration is implied from the circumstances. (Id.)
As the decedent Joyner never signed the arbitration agreement, her daughter Hogsett's signature on that agreement can bind Joyner and her estate only if Hogsett is deemed to have been an agent of her mother for this purpose. Under Georgia law, "[t]he relation[ship] of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf." O.C.G.A. § 10-6-1. Here, there is no indication that Joyner expressly authorized her daughter to agree to arbitrate away any claims that may have arisen during Joyner's stay. To the contrary, Hogsett has filed a declaration indicating that she did not discuss her signature on the paperwork with her mother and, therefore, express consent by the latter was necessarily lacking.
Defendants do not disagree, but they contend that Hogsett acted with implied authority,
In the present case, the decedent Joyner never made any statements that would suggest to defendants that her daughter had the authority to bind her to an arbitration agreement. The Court further concludes that, under the circumstances here, defendants could not have inferred an agency relationship for purposes of assuming an agreement to arbitrate.
As to whether Joyner had "by implication" authorized her daughter to sign an arbitration agreement on her behalf, the facts do not support such an inference. As noted, Joyner's daughter signed the document outside the presence of her mother during her admission to the Parkwood facility. (Hogsett Decl. [8] at ¶¶ 5, 13.) Hogsett testified that no one on defendants' staff inquired whether she had authority to sign an arbitration agreement for her mother. (Id. at 5.) Defendants have offered no affidavits to the contrary on that point or to establish that staff had asked Joyner whether she consented to having her daughter sign an arbitration agreement.
Even assuming that Joyner must have deduced that her daughter had signed whatever documents Parkwood required for her admission, as Joyner would have known that she had signed nothing, one cannot assume that Joyner would have had the sophistication to understand that, included among the standard medical forms, would be a separate agreement to give up her right to a jury trial should the rehabilitation center be guilty of negligence. Indeed, as defendant has conceded, Joyner's consent to the arbitration agreement was not a prerequisite to her admission, and she would have been admitted to the facility even had she known about the arbitration agreement and had refused to sign it. (See Defs.' Mot. to Dismiss [4] and Reply Br. [12].)
Moreover, even as to the admission document, defendants could not have inferred
Certainly, it would be an unwise policy to require a nursing home or rehab center to turn away a patient in need of treatment who is physically or mentally unable to sign an admission form. Medical crises can arise suddenly and not all persons have prepared for such occasions by previously executing health care powers of attorney. Aware of the difficulties that such situations present, the Georgia legislature has enacted a statute that seeks to address this potential problem. O.C.G.A. § 31-9-2(a)(1) and (1.1) provides that consent for medical treatment can be given by an adult person for himself or by any person having a durable power of attorney for health care. The statutes goes on to provide that, where there is no power of attorney, a spouse may give consent for treatment, as may the parent of a minor child or a person temporarily acting in loco parentis, even without formal credentials. O.C.G.A. § 31-9-2(a)(2)(4). Finally, where the patient is unable to consent for himself and where there is no other individual who fits within the categories identified above, an adult child, among others, may consent for treatment for her parent. O.C.G.A. § 31-9-2(a)(6)(A).
It is uncertain that Hogsett's signature would have satisfied O.C.G.A. § 31-9-2's requirements for consent to medical treatment, as there has been no effort by the defendants to argue or show that Joyner was unable to consent for herself. Even had Hogsett's consent been valid under this statute, however, the statute addresses consent to medical treatment, not consent to submitting to arbitration any claims of negligence against the rehab center.
Finally, to the extent that defendants recognized an "implied" authority for Joyner's daughter to sign the arbitration agreement, inasmuch as she had signed the admission paperwork, they did so in contravention of their own contractual representation that such a status could not be imputed without compliance with the requisite legal requirements. Specifically, the admission agreement drafted by Parkwood and executed by Hogsett indicates that, when pertinent, a resident's "incapacity or delegation of decision-making authority must be documented in the living center's records in compliance with applicable Georgia statutes." (Defs.' Mot. to Dismiss [4] at Ex. A (emphasis added).) There is no such documentation of Joyner's incapacity nor any assertion by defendants that she was, in fact, incompetent to sign the arbitration agreement.
This Court's decision is in accord with Georgia caselaw that has considered the
Similarly, in Ashburn Health Care Ctr., Inc. v. Poole, 286 Ga.App. 24, 648 S.E.2d 430 (2007), a husband signed an arbitration agreement upon his wife's admission to a nursing home. Although the husband did not hold power of attorney for his wife, he nevertheless signed the agreement above a line listing him as an "authorized representative" of the wife. Id. at 26, 648 S.E.2d 430. The court of appeals held that the husband did not have actual or apparent authority to sign the arbitration agreement on behalf of his wife, and that the agreement was therefore unenforceable.
Defendants do not address Smith or Ashburn in their Reply brief, suggesting a
As noted, plaintiff Shervon Hogsett, the daughter of the deceased Patricia Joyner, has brought claims on her own behalf as a result of her mother's death. These claims appear to be wrongful death claims. Defendants argue that even if Patricia Joyner did not agree to arbitration, Hogsett unquestionably signed the arbitration agreement, so at least her own claims should be subject to arbitration. (Defs.' Reply Br. [12] at 10-11.) Although there is no authority directly on point, defendants' argument conflicts with several general principles of Georgia contract and wrongful death law.
As an initial matter, it is clear that had the arbitration agreement been deemed to be enforceable as to the decedent Joyner and her estate, then it also would have been enforceable as to any individual wrongful death claims brought by her survivors, regardless of whether any of those survivors had signed the agreement. Cf. Turner v. Walker Cnty., 200 Ga.App. 565, 566, 408 S.E.2d 818 (1991) (although the cause of action created by the wrongful death statute is a different action than the one the decedent would have possessed against a tortfeasor, any defense which would have been good against the decedent also applies to any persons bringing a wrongful death action); accord Mowell v. Marks, 269 Ga.App. 147, 151, 603 S.E.2d 702 (2004).
In short, as a wrongful death claim is a derivative claim that takes on all defenses available against the decedent, if the decedent was unable to prevail in a tort claim based on the conduct that led to her death, then her survivors would likewise be estopped. Here, the question is the converse of the above. Specifically, if a defendant's defense
This result is in accord with the Georgia wrongful death statute, O.C.G.A. § 51-4-2.
Finally, the Court rejects defendants' estoppel and ratification arguments. Plaintiff's signature of the arbitration agreement, ostensibly in her representative capacity, does not "as a matter of equity and good conscience" preclude plaintiff from pursing a wrongful death claim in her individual capacity. Hollifield v. Monte Vista Biblical Gardens, Inc., 251 Ga.App. 124, 126, 553 S.E.2d 662 (2001). This is particularly so where defendants did not comply with their own procedures for documenting plaintiff's authority to act on Ms. Joyner's behalf. (Defs.' Mot. to Dismiss [4] at Ex. A, 2.) Id. ("The party asserting the benefit of estoppel must have acted in good faith and in the exercise of reasonable diligence.").
Ratification is similarly inapplicable. Defendants contend that Hogsett ratified the arbitration agreement by asserting breach of contract claims on behalf of Joyner's estate. As discussed, Hogsett has voluntarily dismissed the estate's breach of contract claims and is now pursuing a non-contractual wrongful death claim. Hogsett's tort claim does not depend on enforcement of the contract. See Sikes, 238 S.W.3d at 810 ("nonparties generally must arbitrate claims if liability arises from a contract with an arbitration clause, but not
As to the request for discovery on the authority issue, defendants do not adequately explain what they hope to discover. Defendants do not allege that Hogsett had a guardianship or power of attorney that would have sufficed to provide express authority for her to act as Joyner's agent. As to implied authority, defendants' own staff would presumably have the best knowledge of any supporting facts because that type of authority would be established by Joyner's statements or conduct that led the Parkwood staff to believe that she consented to the agency relationship. Defendants have not produced any staff testimony to suggest that there was implied authority. In addition, it is undisputed that defendants did not follow their own procedures for documenting Hogsett's authority to act on behalf of Joyner at the time of her admission into Parkwood. Under the circumstances, the Court does not believe that discovery is warranted.
For the reasons stated above, the Court
Some courts have concluded that a family member can enter into an arbitration agreement on behalf of a relative without having explicit power of attorney or guardianship, but generally only where there is some evidence that the admitted individual gave permission to the signee to enter into agreements on his behalf. See Carraway v. Beverly Enters. Ala., Inc., 978 So.2d 27, 30-31 (2007) (brother who subsequently attained power of attorney could enter into arbitration agreement on behalf of sister where "[t]he arbitration agreement did not call for the signature of a legal representative; instead, it provided that `a person duly authorized by the Resident' could sign the agreement on the resident's behalf"); Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 595-597, 161 P.3d 1253 (Ariz.Ct. App.2007) (husband empowered his wife to enter arbitration agreement on his behalf, but only after defendant nursing home presented extensive evidence that the husband authorized wife in the past to make medical decisions on his behalf); Necessary v. Life Care Ctrs. of Am., Inc., No. E2006-00453-COA-R3-CV, 2007 WL 3446636, at *5 (Tenn.Ct. App. Nov. 16, 2007) (arbitration agreement entered into on behalf of husband upheld where husband had expressly authorized his wife to enter into other agreements on his behalf).