Hogsett et al v. Parkwood Nursing & Rehabilitation Center, Inc. et al
Filing
15
ORDER AND OPINION denying defendants [4-1 and 4-3] Motion to Dismiss and Compel Arbitration as to plaintiff Gary Joyner; denying without prejudice defendants [4-1 and 4-3] Motion to Dismiss and Compel Arbitration as to plaintiff Shervon Hogsett; a nd granting defendants [4-2] Motion to Stay the litigation. Defendant Covenant Dove Holding Company, LLCs 3 Motion to Dismiss for Lack of Personal Jurisdiction is granted as unopposed. Plaintiffs shall file an Amended Complaint by April 8, 2013. Signed by Judge Julie E. Carnes on 3/6/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SHERVON HOGSETT, individually,
and as Administratrix of the
Estate of PATRICIA JOYNER,
deceased, and GARY JOYNER,
individually,
Plaintiffs,
CIVIL ACTION NO.
v.
1:12-cv-1399-JEC
PARKWOOD NURSING &
REHABILITATION CENTER, INC.,
PARKWOOD LIVING CENTER, LLC,
HMR ADVANTAGE HEALTH SYSTEMS,
INC., SCEPTER HEALTH & REHAB OF
SNELLVILLE, LLC, COVENANT DOVE,
INC., COVENANT DOVE, LLC,
COVENANT DOVE HOLDING COMPANY,
LLC, ARK HOLDING COMPANY, INC.,
and ARK HOLDINGS, LLC,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion to Dismiss
or, Alternatively, to Stay Proceedings and Compel Arbitration [4] and
defendant Covenant Dove Holding Company, LLC’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 Alternatively, to
Stay Proceedings and Compel Arbitration [4] should be DENIED and that
AO 72A
(Rev.8/82)
defendant Covenant Dove Holding Company, LLC’s Motion to Dismiss for
Lack of Personal Jurisdiction [3] should be GRANTED as unopposed.
BACKGROUND
On March 11, 2010, a long-term care facility, the Parkwood
Nursing and Rehabilitation Center (“Parkwood”) admitted a 63-year old
female, Patricia Joyner.
Doctors had recently amputated the lower
portion of Joyner’s left leg, and the goal of Joyner’s stay at
Parkwood was to enable her to regain limited mobility so that she
might live on her own with caregiver assistance. (Pls.’ Compl. [1-1]
at 8-9.)
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.)
At the time of Joyner’s admission to Parkwood, her daughter,
Shervon Hogsett, signed numerous papers on her mother’s behalf.
(Defs.’ Mot. to Dismiss or, Alternatively, to Stay Proceedings and
Compel Arbitration [4] (“Defs.’ Mot. to Dismiss”) at Exs. A & B (the
admission
and
arbitration
agreements,
respectively).)
The
arbitration agreement is quite broad, covering all potential disputes
related to Joyner’s stay at Parkwood, including any questions of
contract interpretation or any torts arising from Joyner’s residence.1
1
“Claims Subject To Arbitration: Any and all claims or
controversies arising out of or in any way relating to the Resident’s
stay at the Living Center including the care and treatment received
by the Resident at the Living Center shall be submitted to binding
arbitration pursuant to the Federal Arbitration Act. This right to
2
AO 72A
(Rev.8/82)
The agreement explicitly provides:
“This agreement to arbitrate
constitutes a waiver of the right to a trial by jury.”
(Id. at Ex.
B.)
On the last page of the arbitration agreement, below the
sentence “I AGREE TO THE TERMS OF THIS AGREEMENT TO ARBITRATE,” there
is a blank line in which the name of the resident is to be printed
and a line where the signature of the resident is to be affixed.
On
the line calling for the printing of the resident’s name is the
correct name of that resident: “Patricia Joyner.” The signature line
for the resident, however, is not completed.
section,
there
are
representative/caretaker”:
that
person’s
signature.
two
lines
for
Just below this
the
“legal
a line to print the name and a line for
The
printed
name
and
signature,2
respectively, of Shervon Hogsett, have been affixed on these lines,
and the line calling for the date has been filled in as being “3-1110.”
Finally, just below the lines for the legal representative are
two lines calling for the printed name and signature of the Living
demand arbitration includes, without limitation, disputes regarding
interpretation of this Agreement, disputes arising under state or
federal law, either currently existing or arising in the future,
including claims for statutory, compensatory, or punitive damages and
claims based on breach of contract, tort, negligence, or breach of
statutory duties.” (See Arbitration Agreement, attached as Ex. B to
Defs.’ Mot. to Dismiss [4] at 1.)
2
Written in pen next to the signature of Ms. Hogsett is an “x,”
which presumably was inserted by the Parkwood representative to show
Ms. Hogsett where to sign.
3
AO 72A
(Rev.8/82)
Center representative, both of which have been completed with the
name of “Cara Waiswilos,” as well as the date “3/11/10.” (Id.)
An admission agreement was also presented to daughter Shervon
Hogsett for her signature.
(Defs.’ Mot. to Dismiss [4] at Ex. A.)
It notes that the term “resident” refers to the resident,
or where applicable to any person who may under Georgia
law, act on the resident’s behalf when the resident is
unable to act for himself or herself, or where applicable
any person who the resident has delegated decision-making
authority.
The resident’s incapacity or delegation of
decision-making authority must be documented in the living
center’s records in compliance with applicable Georgia
statutes. The resident must provide copies of any existing
powers of attorney, court orders or other applicable
documentation prior to admission.
(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.
“signature,”
which
was
completed
(Id. at 12.)
by
“Shervon
There is a line for
J.
Hogsett,”
and
witnessed by “CWaisilos.” Below that signature line is the following
admonition:
“Note: If the resident is unable to sign, complete
authorizing signature Section below.”
Under that note is a line
marked
Relationship”
for
“Authorized
Resident Could Not Sign.”
relationship
was
the
Signature
and
“Reason
In the block for authorized signature and
hand-written
4
AO 72A
(Rev.8/82)
and
abbreviation
“dtr,”
which
presumably meant “daughter,” and in the block for the reason why the
resident could not sign were the hand-written words, “not present.”
(Id.)
In short, Hogsett signed the Arbitration Agreement for her
mother, Patricia Joyner, who signed none of the admissions paperwork.
Although Ms. Hogsett signed under the blank calling for “legal
representative/caretaker,” both parties agree that Hogsett had no
legal status as her mother’s representative.3
That is, Hogsett had
no power of attorney nor was she her mother’s guardian, nor has there
been any indication by defendants that Hogsett stated to staff that
she had any such legal status.
Eight days after Joyner was admitted, Joyner’s doctor provided
Parkwood with a recommendation regarding the treatment of a wound on
Joyner’s partially amputated left leg.
(Pls.’ Compl. [1-1] at 9.)
From March 19 until March 22, 2010, according to plaintiffs, no one
at Parkwood acted on the doctor’s recommendation, leading to a
deterioration in Joyner’s condition.
By the time she received
treatment, Joyner’s leg was infected beyond repair, and Joyner died
in a nearby hospital on March 26, 2010--fifteen days after her
admittance to the facility.
3
Whether or not Hogsett was her mother’s caretaker is something
not discussed in the briefing.
5
AO 72A
(Rev.8/82)
Plaintiffs are Joyner’s daughter, Ms. Hogsett, and Joyner’s
husband, Gary Joyner, who have sued defendant Parkwood and affiliated
entities, alleging negligence, breach of contract, wrongful death,
and other claims.
Plaintiff Hogsett and Gary Joyner have brought
claims in their individual capacities.
Plaintiff Hogsett also
originally brought claims in her representative capacity, as the
representative of Joyner’s estate, but has now dismissed those
claims.4
Defendants seek to dismiss plaintiffs’ claims5 and to compel
arbitration on those claims, based on the arbitration agreement
signed by Hogsett.
Plaintiffs argue that the arbitration agreement
is not binding on them, as Ms. Joyner, the resident of the facility,
never signed the agreement and as Hogsett had no authority to bind
her
mother
to
such
an
agreement.
Defendants
argue
that
the
4
Plaintiff Hogsett voluntarily dismissed any estate claims,
after the defendants moved to dismiss those claims as a result of
plaintiffs’ failure to submit an affidavit from an appropriate
medical affiant confirming the existence of medical malpractice,
which affidavit was required by Georgia law to be submitted along
with the complaint. (See Defs.’ Mot. to Dismiss [2] and Pls.’ Notice
of Voluntary Dismissal Without Prejudice of Pls.’ Estate Action Only
[5].)
5
Defendant Covenant Dove Holding Company also filed a motion
to dismiss for lack of personal jurisdiction [3]. Plaintiffs filed
two separate consent motions for an extension to respond [9, 13],
which were granted by the Court.
The last requested extension
expired on September 4, 2012. Plaintiffs have never filed a response
and, accordingly, the Court GRANTS this defendant’s motion to dismiss
as being unopposed. See LR 7.1B, NDGa (failure to file a response
shall indicate that there is no opposition to the motion).
6
AO 72A
(Rev.8/82)
plaintiffs
should
be
bound
by
Ms.
Hogsett’s
signature
on
the
arbitration agreement.
DISCUSSION
I.
ENFORCEABILITY OF ARBITRATION AGREEMENT AS TO CLAIMS NOT MADE BY
PLAINTIFF SHERVON HOGSETT IN HER INDIVIDUAL CAPACITY: THAT IS,
ALL ESTATE CLAIMS AND INDIVIDUAL CLAIMS MADE BY HUSBAND GARY
JOYNER
A.
Claims at Issue
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
to
justify
their
arbitration
against
plaintiff
Shervon Hogsett as to her individual claims, than as to Hogsett as
the representative of the estate,6 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.
6
The individual claims would be those claims available to
See discussion infra at 21, et seq.
7
AO 72A
(Rev.8/82)
daughter Hogsett and husband Gary Joyner based on the death of their
mother and wife, respectively.
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 suggest in
their briefing7 that this means that the only claims left are the
wrongful death claims8 of the two individual plaintiffs: Shervon
Hogsett and Gary Joyner.
The Court will assume this to be so.
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.
7
(See generally Defs.’ Reply Br. in Supp. of Their Mot. to
Dismiss or, Alternatively, to Stay Proceedings and Compel Arbitration
(“Defs.’ Reply Br.”) [12] and Mot. to Dismiss [2-1] at 2 n.2 (“The
‘Estate claims’ include all claims brought on behalf of the Estate of
Patricia Joyner by her personal representative or administrator (in
other words, all claims in this case other than the wrongful death
claims).”)(emphasis added).)
8
Implicit in defendants’ argument is an assumption that a
medical affidavit does not have to be filed in a wrongful death
claim, even when the latter claim is based on an act of medical
malpractice.
8
AO 72A
(Rev.8/82)
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.
B.
Did Hogsett Have the Power to Bind Her Mother to an
Arbitration Agreement?
1.
Parties’ Contentions
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, 565 U.S. ___, 132 S. Ct.
1201 (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).
While states may have a strong interest in
“protect[ing] the residents of Georgia nursing homes,” (Pls.’ Resp.
[8] at 16), this policy does not preclude care facilities and their
residents from contracting to resolve potential disputes through
arbitration.9
9
Plaintiffs had also argued that even if Hogsett did have
authority to sign for Joyner, the arbitration agreement is void
because its enforcement would hinder the efficacy of O.C.G.A. § 31-8100 et seq, Georgia’s “Bill of Rights for Residents of Long Term Care
Facilities.” (Pls.’ Resp. [8] at 15-16.) The Marmet decision by the
Supreme Court defeats that argument. At any rate, given the Court’s
ruling, plaintiff’s argument on this point is moot.
9
AO 72A
(Rev.8/82)
That said, an arbitration agreement is still a contract and, as
such, it requires consent by the parties to the agreement.
to a contract is a matter of state law.
Consent
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 (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 quotation omitted). Thus, before
the scope or applicability of the arbitration agreement can be
addressed,
the
defendants--must
party
first
seeking
to
establish
compel
that
arbitration–-here
there
is
an
the
agreement.
TranSouth Fin. Corp. v. Rooks, 269 Ga. App. 321, 324 (2004)(party
seeking to enforce arbitration agreement “must bear the burden of
proof as to all the essential elements of the contract, including the
assent to the contractual terms.”)
Both parties agree that Hogsett signed the arbitration agreement
upon her mother’s admittance to Parkwood.
The parties disagree,
however, about whether that signature gave rise to a valid agreement
between decedent Joyner and the defendants.
10
AO 72A
(Rev.8/82)
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
not
did
have
a
power
of
guardianship over, her mother.
attorney
agreement
for,
or
Further, Hogsett stated in her
declaration that Joyner had not given her permission to sign the
admission documents on her behalf.
at ¶ 11.)
(Decl. of Shervon Hogsett [8-1]
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 apparently 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 say, while Joyner may not have been
present when her daughter signed the admission forms, Joyner never
protested that Hogsett was signing forms for her, nor did she protest
her admittance to Parkwood, so Joyner’s consent to an arbitration
agreement is implied from the circumstances.
at 3-4.)
11
AO 72A
(Rev.8/82)
(Defs.’ Reply Br. [12]
2.
Standard for Determining Whether Authority Existed
Under These Facts
As the decedent Patricia Joyner never signed the arbitration
agreement, her daughter Shervon 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.
According to 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,10 but they contend that Hogsett acted
with implied authority,11 meaning that Hogsett would still have
10
Defendants would like discovery on all potential grounds for
enforcing the arbitration agreement. Given the Court’s ruling infra,
there is no need for discovery, as defendants do not seek to compel
arbitration of Gary Joyner’s claims and as the Court has directed
plaintiffs to file an amended complaint setting out more clearly the
individual capacity claims of Hogsett.
11
The Court is aware that, from a purist’s point of view,
“implied authority” and “apparent authority” are two distinct
concepts, with implied authority being a form of actual authority and
12
AO 72A
(Rev.8/82)
authority to enter contracts on Joyner’s behalf.
“[S]uch authority
must be based on ‘statements or conduct of the alleged principal
[that]
reasonably
cause
[a]
third
person
to
believe
that
the
principal consents to have the act done on [her] behalf by the
purported agent.’” Ashburn, 286 Ga. App. at 25-26 (quoting Hinely v.
Barrow, 169 Ga. App. 529, 530 (1984)).
Therefore, for implied authority to have arisen, the principal
must have given some indication that she agreed to be represented by
the agent.
See Barrs v. Acree, 302 Ga. App. 521, 525 (2010)(implied
agency relationship was not found, where a party “merely assumed”
that an agent was acting for another); Hinely v. Barrow, 169 Ga. App.
529, 530 (1984)(“[W]here the only evidence that a person is an agent
of another party is the mere assumption that such agency existed, or
an inference drawn from the actions of that person that he was an
agent of another party, such evidence has no probative value and is
insufficient to authorize a finding that such an agency exists.”)
Whether an individual has implied authority to act as an agent to
execute contracts on behalf of another is a fact-sensitive inquiry,
apparent authority constituting a different kind of authority. See
generally Restatement (Third) of Agency §§ 2.01-2.03 (2006)
(discussing difference between implied authority and apparent
authority). The Georgia caselaw and the Georgia statute cited above
collapse the two terms and, whatever distinctions may have originally
existed between the two principles, they don’t affect the outcome
here.
Accordingly, the Court likewise uses the term “implied
authority” to reference both implied and apparent authority.
13
AO 72A
(Rev.8/82)
dependent on the circumstances.
Larkins v. Boyd, 205 Ga. 69, 72
(1949)(“Existence of an agency may be established by proof of
circumstances, apparent relations, and conduct of the parties”).
3.
Whether Hogsett Had Authority to Bind Her Mother to An
Arbitration Agreement, Under the Facts of this Case
In the present case, Joyner never made any statements that would
suggest to defendants that her daughter had the authority to bind her
to an arbitration agreement.
Further, the Court 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 had
signed the document outside the presence of her mother at the time
when her mother was admitted to the defendants’ rehabilitation
center.
(Decl. of Shervon Hogsett [8-1] at ¶¶ 5, 13.)
According to
Hogsett, no one on defendants’ staff inquired whether she had
authority to sign an arbitration agreement for her mother, (id. at
5), and 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
14
AO 72A
(Rev.8/82)
had
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] or Reply Br.
[12].)
Moreover, even as to the admission document, defendants could
not have inferred authority under a necessity-type of principle,
which arguably might arise--at least as to the signing of the
standard admission forms, if not an arbitration agreement–-had Joyner
been too ill to sign any forms at the time of her admission.
Joyner
was only 63-years old and, while she had previously had part of her
leg amputated, defendants have provided no affidavits indicating that
their staff perceived her to be mentally or physically incompetent to
sign such a document.
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
15
AO 72A
(Rev.8/82)
occasions by previously executing health care powers of attorney.
Aware of the difficulties that such situations present, the Georgia
legislature
has
enacted
potential problem.
a
statute
that
seeks
to
address
this
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.12
12
As it happens, the Georgia Senate is currently considering
legislation that would permit a wide-ranging group of people other
than the resident to consent to arbitration of claims against
16
AO 72A
(Rev.8/82)
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 it and plaintiff Hogsett, indicates that,
when pertinent, a resident’s “incapacity or delegation of decisionmaking authority must be documented in the living center’s records in
compliance with applicable Georgia statutes.”
Dismiss
[4]
at
Ex.
A
(emphasis
added).)
(Defs.’ Mot. to
There
was
no
such
documentation of Joyner’s incapacity nor any assertion by defendants
that she was, in fact, incompetent to sign the arbitration agreement.
Accordingly, the Court concludes that defendants have failed to
sufficiently allege or demonstrate that Hogsett had authority to bind
nursing-home or rehab center types of facilities.
The proposed
legislation would include in this group an adult child for her
parent, and would not make the incapacity of the parent a
prerequisite. See S.B. No. 202, GA 152d GEN. ASSEMB. - 2013-2014, REG.
SESS. (Feb. 22, 2013), Proposed § 31-8-128(f)(6)(“The following
persons shall be authorized and empowered to execute an arbitration
agreement on the resident’s behalf:. . .(6) Any adult child for his
or her parent, if he or she admitted the resident into the long-term
care facility.”)
Had this proposed statute been in effect when Joyner was
admitted, then her daughter’s consent to arbitration would be valid.
This statute has not yet been enacted, however, and even should it
be, it presumably would not apply to conduct preceding its effective
date.
17
AO 72A
(Rev.8/82)
her mother to arbitration as to any available claims against the
defendants.
4.
Analogous Georgia Caselaw is Consistent With this
Interpretation
This Court’s decision is in accord with Georgia caselaw that has
considered the issue of implied authority as it pertains to family
members signing arbitration agreements for relatives who are admitted
to nursing homes.
In Life Care Ctrs. of Am. v. Smith, 298 Ga. App.
739 (2009), the defendant nursing facility sought to enforce an
arbitration agreement signed by the resident’s daughter. At the time
the daughter signed the arbitration agreement, she had no general
power of attorney, but only a durable power of attorney for health
care
decisions.
The
court
of
appeals
found
the
agreement
unenforceable in the later tort action against the nursing home
because the daughter did not have the general power of attorney
necessary to agree to submit the mother to arbitration.
The court
distinguished between the authority to seek medical care for another
versus the authority to bind that other person to arbitration.
Similarly, in Ashburn Health Care Ctr., Inc. v. Poole, 286 Ga.
App. 24 (2007), the 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.
The court of appeals held that the husband
18
AO 72A
(Rev.8/82)
did not have actual or apparent authority to sign the arbitration
agreement on behalf of his wife, and, thus, the agreement was
unenforceable.13
13
Cases from other states that are in accord with Ashburn and
Smith include: Giordano ex rel. Estate of Brennan v. Atria Assisted
Living, Virginia Beach, L.L.C., 429 F. Supp. 2d 732, 738 (E.D. Va.
2006)(no mutual assent to arbitration agreement, where “[Mother] did
not sign the Residency Agreement; she did not give consent to [her
daughter] to sign the Residency Agreement; [Mother] did not discuss
with [her daughter] whether the agreement would be beneficial to her;
and, there is no proof that [the mother] was, in fact, aware that the
Residency Agreement existed.”); McNally v. Beverly Enters., Inc., 191
P.3d 363 (Kan. Ct. App. 2008)(wife signed arbitration agreement on
behalf of husband but only had durable power of attorney to make
medical decisions, and so no actual or implied authority existed);
Barbee v. Kindred Healthcare Operating, Inc., No. W2007-00517-COA-R3CV, 2008 WL 4615858, at *6-9 (Tenn. Ct. App. Oct. 20, 2008)(son of
decedent signed arbitration agreement upon parent’s admission but did
not have power of attorney; parent was incompetent at time of
admission; son did not have actual or implied authority to act as
agent); Trinity Mission of Clinton, LLC v. Barber, 988 So. 2d 910,
916 (Miss. Ct. App. 2007)(finding arbitration agreement was invalid
and noting that the principal must hold the agent out as having
authority; it is not sufficient that the agent alone hold himself out
as a legal representative); Sikes v. Heritage Oaks W. Ret. Vill., 238
S.W. 3d 807 (Tx. Ct. App. 2007)(wife of resident signed admissions
documents, purporting to have power of attorney which she did not
possess; arbitration agreement found unenforceable).
Some states’ courts, however, 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.
However, in these cases, there is usually some evidence that the
admitted individual gave permission to the signee to enter into
agreements on his or her behalf. See Carraway v. Beverly Enters.
Ala., Inc., 978 So. 2d 27, 30-31 (2007)(brother could enter
arbitration agreement on behalf of sister, though “[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”; additionally, the
brother in Carraway attained power of attorney shortly after his
sister was admitted to the nursing home); Ruesga v. Kindred Nursing
19
AO 72A
(Rev.8/82)
Defendants do not address Smith or Ashburn in their Reply brief.
As these two cases contradict defendants’ contention that Hogsett had
implied authority, defendants’ silence suggests a tacit recognition
that controlling Georgia authority disfavors their arguments here.
Moreover, as there is no binding arbitration agreement between the
defendants and Joyner’s estate, there would appear to be no theory
under which the individual wrongful death act claim of Joyner’s
surviving
spouse,
Gary,
would
be
subject
to
a
now-invalidated
arbitration agreement.
Certainly, defendants advance no arguments.
Therefore,
concludes
the
Court
that
the
individual
claims
of
surviving spouse, Gary Joyner, are not subject to the arbitration
agreement
signed
by
Hogsett.
Further,
had
the
estate
claims
originally made in the complaint not been dismissed by plaintiffs,
they would also not be subject to the arbitration agreement.
II.
ENFORCEABILITY OF ARBITRATION AGREEMENT AS TO CLAIMS MADE BY
PLAINTIFF SHERVON HOGSETT IN HER INDIVIDUAL CAPACITY
As
noted,
plaintiff
Shervon
Hogsett,
the
daughter
of
the
deceased Patricia Joyner, has brought claims on her own behalf as a
Ctrs., L.L.C., 215 Ariz. 589, 595-597 (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. E200600453-COA-R3-CV, 2007 WL 3446636, at *5 (Tenn. Ct. App. Nov. 16,
2007)(wife authorized to enter arbitration agreement on her husband’s
behalf, where husband had expressly authorized his wife to enter into
other agreements on his behalf).
20
AO 72A
(Rev.8/82)
result of her mother’s death.
Although it is not easy to discern
from reading the Complaint exactly what claims Hogsett or Gary Joyner
are making, defendants indicate that any remaining claims by them are
wrongful death claims.
Defendants have argued that even if Patricia Joyner did not
agree to arbitration, Hogsett unquestionably signed the arbitration
agreement, so at least the claims brought in Hogsett’s individual
capacity should be subject to arbitration. (Defs.’ Reply Br. [12] at
10-11.)
This is a trickier issue and one on which there is no clear
Georgia authority.
At the outset, the Court assumes 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 (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 (2004).
The question here is whether the converse is true: does the
unenforceability of the agreement as to the decedent and her estate
21
AO 72A
(Rev.8/82)
mean that the arbitration agreement is also unenforceable against the
survivor who actually signed the arbitration agreement: Shervon
Hogsett?
Equitable principles might suggest that such a survivor
should not, as to her individual claim, be allowed to block an
arbitration agreement that she, herself, signed.
On the other hand,
the arbitration agreement was never between Hogsett and the Parkwood
Center, but was between the “Resident” (Joyner) and a “Living Center”
(Parkwood Nursing and Rehabilitation Center).
Further, applying the
goose-gander rule, as the wrongful death claim is a derivative claim
that takes on all defenses available against the decedent’s claim,
arguably then such a claim should not be subject to agreements to
which the decedent would have been immune.14
Yet, given the lack of clarity as to exactly which claims from
the original complaint are still viable, after the dismissal of the
estate claims, and given the Court’s uncertainty as to whether
plaintiff Hogsett is even an appropriate plaintiff for this claim, a
decision on the above question may be premature.
Specifically,
although the parties have not discussed the requirements for bringing
a wrongful death action, the undersigned has looked at what appears
to be the applicable statute: O.C.G.A. § 51-4-2.
14
That statute
The Georgia cases (Smith and Ashburn) do not address this
question, but the Sikes case from Texas is in accord with this
conclusion. Sikes, 238 S.W. 3d at 810 (“[T]he arbitration agreement
is unenforceable against [the daughter] in her individual capacity
because there is no evidence that she signed in that capacity.”).
22
AO 72A
(Rev.8/82)
provides that it is the “surviving spouse,” who may bring an action
for wrongful death15 under this statute, or “if there is no surviving
spouse, a [surviving] child or children...may recover.”
O.C.G.A. §
51-4-2(a). Ultimately, the surviving spouse has the power to dismiss
or settle with the alleged “wrongdoer without the concurrence of the
child or children...”, O.C.G.A. § 51-4-2(c), but any recovery “shall
be equally divided...among the surviving spouse and the children per
capita.”
O.C.G.A. § 51-4-2(d).16
From reading the above statute, it appears that it is Gary
Joyner, the decedent’s surviving spouse, who has standing to bring a
wrongful death action, not the decedent’s daughter, Shervon Hogsett.
See Moore v. Mylan Inc., 840 F. Supp. 2d 1337, 1343 (N.D. Ga.
2012)(Shoob, J.)(internal citations omitted)(holding that where there
is a surviving spouse, only that spouse may bring the wrongful death
15
The statute actually speaks of “homicide” in this subsection,
not “wrongful death,” but uses the latter term in subsections (b)(1)
and (2).
The Court assumes that the terms are intended to be
synonymous and not limited to actions based only on a homicide.
16
This dissection of the wrongful death statute provides
another reason why it seems incongruous to hold that plaintiff
Hogsett is precluded from bringing an individual wrongful death
action as a result of her having signed the arbitration agreement as
her mother’s legal representative. That is, a wrongful death action
is brought for the surviving spouse and all surviving children. Were
there no surviving spouse here, but only multiple surviving children,
it would seem peculiar to say that the surviving child who signed the
arbitration agreement could not sue, yet the other surviving children
could do so. As the statute makes it automatic that any damages will
be divided equally, it is difficult to understand how one would
enforce such a prohibition.
23
AO 72A
(Rev.8/82)
action, which he brings both as an individual and as a representative
of any children of the deceased).
If the above is so, and the Moore decision cites two Georgia
Court of Appeals decisions in support, then it would appear that only
surviving spouse Gary Joyner has standing to bring a wrongful death
claim, albeit he acts as a representative of daughter Shervon
Hogsett.
Further, if the above is true, then there would be no need
to decide whether Hogsett is bound by the arbitration agreement she
signed, as she would no longer be a properly-named plaintiff.
For this reason, the Court DENIES defendants’ motion to dismiss
and compel arbitration [4-1 and 4-3] as to plaintiff Gary Joyner, and
DENIES WITHOUT PREJUDICE defendants’ motion to dismiss and compel
arbitration
[4-1
and
4-3]
as
to
plaintiff
Shervon
Hogsett.
Plaintiffs Joyner and Hogsett are directed to file an amended
complaint setting out their existing claims.
Before filing that
complaint, plaintiffs will need to decide whether plaintiff Hogsett
should be included as a plaintiff.
If they do include her, then
defendants may file a renewed motion to dismiss Hogsett’s claim and
compel arbitration.
If they do not, the Court will direct the
parties to submit a proposed scheduling order.
Until that time, the
Court GRANTS defendants’ motion to stay the litigation [4-2].
The
Court further GRANTS as unopposed, defendant Covenant Dove Holding
24
AO 72A
(Rev.8/82)
Company, LLC’s Motion to Dismiss for Lack of Personal Jurisdiction
[3].
CONCLUSION
For the reasons stated above, the Court DENIES defendants’
Motion
to
Dismiss
and
Compel
Arbitration
[4-1
and
4-3]
as
to
plaintiff Gary Joyner; DENIES WITHOUT PREJUDICE defendants’ Motion to
Dismiss and Compel Arbitration [4-1 and 4-3] as to plaintiff Shervon
Hogsett; and GRANTS defendants’ Motion to Stay the litigation [4-2].
Defendant Covenant Dove Holding Company, LLC’s Motion to Dismiss for
Lack of Personal Jurisdiction [3] is GRANTED as unopposed.
Plaintiffs shall file an Amended Complaint by April 8, 2013.
SO ORDERED, this 6th day of MARCH, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
25
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?