McElroy v. Fairview Nursing Home et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/23/12. (CVA)

FILED
2012 Oct-23 AM 09:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELIZABETH MCELROY, as the
Administrator of the Estate of
Mary E. Webb,
Plaintiff,
v.
FAIRVIEW NURSING HOME,
et al.,
Defendants.

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Civil Action Number
2:12-cv-898-AKK

MEMORANDUM OPINION
Defendant SSC Birmingham Operating Company, LLC’s (“SSC
Birmingham”) Motion to Compel Arbitration and Stay Proceedings, doc. 7, which
Defendant Savaseniorcare Administrative Services, LLC (“Savaseniorcare”)
joined, doc. 11, is fully briefed, docs. 14, 21, 25, and ripe for resolution. After
considering the pleadings, evidentiary submissions, and the relevant law, SSC
Birmingham’s motion to compel arbitration is due to be GRANTED.
I. Relevant Facts and Procedural History
Fairview Nursing Home admitted Plaintiff Mary Webb on October 26,
2009. Doc. 1-1 at 10. Upon her admission, Webb signed a dispute resolution

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program contract agreeing that (1) “all disagreements [be] resolved through the
dispute resolution program,” (2) the parties1 waived the right to a judge or a jury
trial, and (3) her “participation in [the program] will benefit and bind [her] family,
heirs, successors, assigns, agents, insurers, trustees, and/or [her] legal
representatives, including the personal representative or executor of [her] estate.”
Doc. 7-2 at 3-4. During her stay at Fairview, Webb’s condition required Baptist
Medical Center Princeton to admit her on January 26, 2010, where she
subsequently died on February 11, 2010. Doc. 1-1 at 10. On February 10, 2012,
Plaintiff filed this action in Jefferson County Circuit Court, doc. 1-1 at 3, which
Defendants removed to this court on March 22, 2012, doc. 1, and on April 5, 2012,
filed the current motion to compel arbitration and stay the proceedings, doc. 7.2
II. Analysis
To challenge the motion to compel arbitration, Plaintiff relies on Entrekin v.
Internal Med. Assoc. of Dothan, 764 F. Supp. 2d 1290, 1294-95 (M.D. Ala. Jan.

1

The contract defined parties as “the resident, any and all family members who would
have a right to bring a claim in state court on behalf of the resident or the resident’s estate, a legal
representative, including a power of attorney for healthcare and/or financial matters or a court
appointed guardian, or any other person whose claim is derived through or on behalf of the
resident.” Doc. 7-2 at 4.
2

The court denied the motion initially to afford McElroy the opportunity to present
evidence that would demonstrate that the arbitration agreement was invalid because Webb lacked
the mental capacity to consent to arbitration. Doc. 16. However, McElroy failed to do so. See
doc. 21.
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19, 2011), for the proposition that “while a decedent’s estate is bound to the
choices a decedent makes with respect to claims that belong to the decedent, under
Alabama law a wrongful death claim does not exist before death and never
belongs to the decedent” and that since the decedent Webb was the sole signatory
on the arbitration agreement, Plaintiff McElroy as Webb’s Estate Administrator
“has not agreed to arbitration.” Doc. 21 at 2-3. Unfortunately for Plaintiff, the
Eleventh Circuit reversed the district court on August 9, 2012, and its decision
warrants a finding against Plaintiff. See Entrekin, 689 F.3d 1248 (11th Cir. 2012).
The facts in Entrekin are similar to those before this court. Specifically, the
plaintiff suffered a stroke and, after being hospitalized, was transferred to a
nursing home. Id. at 1250. Upon admission to the nursing home, the plaintiff
signed a dispute resolution agreement that stated that the agreement survived the
death of the plaintiff and required binding arbitration of all disputes. Id. at 12491250. Because the dispute resolution agreement required that the parties construe
it in accordance with Alabama law, and because the Alabama Supreme Court is
the “final arbiter of state law,” Blue Cross and Blue Shield of Ala., Inc., v. Nielsen,
116 F.3d 1406, 1413 (11th Cir. 1997), the Eleventh Circuit undertook a review of

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Alabama case law regarding the interplay between wrongful death actions3 and
arbitration agreements and determined that “[a]n executor4 is bound by the same
contracts that bound the decedent while she was alive, including an arbitration
agreement.” Entrekin, 689 F.3d at 1254; Briarcliff Nursing Home, Inc. v.
Turcotte, 894 So. 2d 661 (Ala. 2004) (per curiam); Carraway v. Beverly Enter.
Ala., Inc., 978 So. 2d 27 (Ala. 2007); Tennessee Health Mgmt. v. Johnson, 49 So.
3d 175 (Ala. 2010).
It is undisputed that the decedent Mary Webb signed the arbitration
agreement and that the agreement also bound the executor of her estate to arbitrate
the wrongful death claim. Doc. 7-2 at 3-4. Therefore, the court GRANTS
Defendants SSC Birmingham and Savaseniorcare’s motion to compel arbitration
and retains jurisdiction for the purposes of enforcing the arbitration award, if any.
The court dismisses Defendants Fairview Nursing Home (no such entity
exists, see doc. 1 at 3), Savaseniorcare, Inc., Savaseniorcare, LLC, Canyon Sudar
Partners, LLC, and William J. Tyson since Plaintiff never successfully served the

3

Alabama’s wrongful death statute is “the sole, and ‘punitive only,’ remedy for tortious
infliction of death.” King v. Nat’l Spa & Pool Inst., Inc., 607 So.2d 1241, 1248 (Ala. 1992).
4

“For simplicity, throughout th[e] opinion, [the Eleventh Circuit] use[d] the term
‘executor’ to refer to administrators, executors, and personal representatives of estates.”
Entrekin, 689 F.3d at 1249 n.1. Here, Elizabeth McElroy is designated as the Administrator of
the Estate of Mary E. Webb. Doc. 1-1 at 4.
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Savaseniorcare entities, see doc. 1-1 at 50-51, and failed to provide any proof of
service regarding Canyon Sudar Partners or William J. Tyson, see id. at 37-49.
See Fed. R. Civ. P. 41(b); see also doc. 12 at 5 (“Any defendant who has not been
served with a summons and complaint within 120 days after the filing of the
complaint may be dismissed without further order of the court.”). To the extent
that Plaintiff succeeded in serving these defendants, Plaintiff failed to notify this
court of such service, nor has Plaintiff moved for entry of default in light of these
defendants’ failure to answer. Accordingly, these defendants are DISMISSED
without prejudice.
Done the 23rd day of October, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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