Hogsett et al v. Parkwood Nursing & Rehabilitation Center, Inc. et al
Filing
24
AMENDED ORDER AND OPINION denying defendants Motion to Dismiss and Compel Arbitration 4 and granting as unopposed defendant Covenant Dove Holding Company, LLCs Motion to Dismiss for Lack of Personal Jurisdiction 3 . The Court directs the parties t o submit a joint preliminary report and discovery plan by Monday, March 17, 2014. The Court further instructs the parties and the Clerk that this Amended Order should supplant the Courts previous Order 15 addressing the Motions to Dismiss 3 and 4 . Signed by Judge Julie E. Carnes on 2/14/14. (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.
AMENDED ORDER & OPINION
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
arguments
of
[3].
The
Court
the
parties
and,
has
for
reviewed
the
the
reasons
record
set
and
out
the
below,
concludes that defendants’ Motion to Dismiss or Stay and Compel
Arbitration [4] should be DENIED and that defendant Covenant Dove
AO 72A
(Rev.8/82)
Holding Company’s Motion [3] should be GRANTED as unopposed.
BACKGROUND
On
March
11,
2010,
the
defendant
long-term
care
facility
Parkwood Nursing and Rehabilitation Center (“Parkwood”) admitted 63year 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.1
The agreement explicitly provides:
1
“This
“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
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,
2
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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 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 line calling for the printed name is the correct name of the
resident: “Patricia Joyner.”
(Id.)
the resident is blank.
Just below this section, there are two
lines
for
the
(Id.)
printed
representative/caretaker.”
name
However, the signature line for
and
signature
of
the
“legal
(Defs.’ Mot. to Dismiss [4] at Ex. B.)
These lines contain the printed name and signature2 of Shervon
Hogsett, along with the date “3-11-10.”
(Id.)
Finally, just below
the lines for the legal representative are two lines calling for the
printed name and signature of the Living Center representative, which
contain the name “Cara Waiswilos” and the date “3/11/10.”
(Id.)
An admission agreement was also presented to Hogsett for her
signature.
(Id. at Ex. A.)
The admission agreement states that the
including claims for statutory, compensatory, or punitive damages and
claims based on breach of contract, tort, negligence, or breach of
statutory duties.” (See Defs.’ Mot. to Dismiss [4] at Ex. B, 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
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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.
Ex. A, 12.)
(Defs.’ Mot. to Dismiss [4] at
The “signature” line was completed by “Shervon J.
Hogsett” and witnessed by “CWaisilos.” (Id.) Below the signature is
the following admonition:
“Note: If the resident is unable to sign,
complete authorizing signature Section below.”
(Id.)
Under that
note is a line marked “Authorized Signature and Relationship” and
“Reason Resident Could Not Sign.” (Id.) In the block for authorized
signature and relationship is the hand-written abbreviation “dtr,”
which presumably stands for “daughter,” and in the block for the
reason why the resident could not sign are the hand-written words
“not present.”
(Id.)
4
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In short, Hogsett signed the arbitration agreement for her
mother, Patricia Joyner.
paperwork.
Joyner did not sign any of the admissions
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.3 That is,
Hogsett had no power of attorney nor was she her mother’s guardian.
Neither is there any indication that Hogsett represented to Parkwood
staff that she had any such legal status.
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, fifteen days after her admittance to the Parkwood
facility.
(Id.)
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
3
Whether Hogsett was her mother’s caretaker is not discussed
in the briefing.
5
AO 72A
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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.4
Defendants seek to dismiss plaintiffs’ claims and to compel
arbitration on those claims based on the agreement signed by Hogsett.5
Plaintiffs argue that the arbitration agreement is not binding on
them, as Ms. Joyner never signed the agreement and as Hogsett had no
authority to bind her mother to such an agreement.
Defendants argue
that 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 GARY JOYNER
A.
Claims at Issue
As noted above, two types of claims were originally brought in
4
Plaintiff Hogsett voluntarily dismissed any estate claims
after defendants moved to dismiss those claims for failure to meet
Georgia’s medical malpractice affidavit requirement.
(See Defs.’
Mot. to Dismiss [2] and Pls.’ Notice of Voluntary Dismissal [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 and plaintiffs still have not responded.
Accordingly, the Court GRANTS Covenant Dove Holding Company’s motion
[3] as 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)
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 suggest in
their briefing6 that the only remaining claims are the wrongful death
6
See generally Defs.’ Reply Br. in Supp. of Their Mot. to
Dismiss or Stay Proceedings and Compel Arbitration (“Defs.’ Reply
Br.”) [12] and Mot. to Dismiss [2] at 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).)
7
AO 72A
(Rev.8/82)
claims7 of the two individual plaintiffs:
Joyner.
Shervon Hogsett and Gary
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.
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.
7
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)
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).
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.8
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 cite & quotation omitted). Thus,
before the scope or applicability of the arbitration agreement can be
8
Plaintiffs argued that even if Hogsett had authority to sign
for Joyner, the arbitration agreement is void because its enforcement
would hinder the efficacy of O.C.G.A. § 31-8-100 et seq, Georgia’s
“Bill of Rights for Residents of Long Term Care Facilities.” (Pls.’
Resp. [8] at 15-16.) The Marmet decision defeats that argument. At
any rate, the argument is moot given the Court’s ruling infra.
9
AO 72A
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addressed,
the
party
seeking
to
compel
arbitration
must
first
establish that there is an agreement. TranSouth Fin. Corp. v. Rooks,
269 Ga. App. 321, 324 (2004)(party seeking arbitration “bear[s] the
burden of proof as to all the essential elements of the contract,
including the assent to the contractual terms.”)
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
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.
(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
10
AO 72A
(Rev.8/82)
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.
2.
(Id.)
Standard for Determining Whether Authority Existed
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
11
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(Rev.8/82)
with
implied
authority,9
meaning
that
Hogsett
authority to enter contracts on Joyner’s behalf.
would
still
have
“[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 decedent Joyner must have given some
indication that she agreed to be represented by her daughter Hogsett.
See Barrs v. Acree, 302 Ga. App. 521, 525 (2010)(implied agency not
found where a party “merely assumed” that an agent was acting for
another) and Hinely, 169 Ga. App. at 530 (“[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
9
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
apparent authority constituting a different kind of authority. See
generally Restatement (Third) of Agency §§ 2.01-2.03 (2006)
(discussing the 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.
12
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(Rev.8/82)
such an agency exists.”)
3.
In
the
Whether Hogsett Had Authority to Bind Her Mother to An
Arbitration Agreement, Under the Facts of this Case
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.
5.)
(Id. at
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
13
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(Rev.8/82)
that, included among the standard medical forms, would be a separate
agreement
to
give
up
her
right
to
a
jury
rehabilitation center be guilty of negligence.
trial
should
the
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.
Br.
(See Defs.’ Mot. to Dismiss [4] and Reply
[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, there is no evidence to suggest that the Parkwood
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
occasions by previously executing health care powers of attorney.
Aware of the difficulties that such situations present, the Georgia
14
AO 72A
(Rev.8/82)
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.10
10
The Georgia Senate recently considered legislation that would
permit a wide-ranging group of people other than the resident to
consent to arbitration of claims against nursing-home or rehab center
types of facilities. See S.B. No. 202, GA 152d GEN. ASSEMB. - 20132014, REG. SESS. (Feb. 22, 2013), Proposed § 31-8-128(f)(6). Had this
proposed statute been in effect when Joyner was admitted, then her
15
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(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 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.”
(emphasis added).)
(Defs.’ Mot. to Dismiss [4] at Ex. A
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.
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
daughter’s consent to arbitration would be valid.
However, the
statute was not then in effect, and in fact was not enacted.
16
AO 72A
(Rev.8/82)
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), 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.
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.11
11
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 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
17
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Defendants do not address Smith or Ashburn in their Reply brief,
suggesting a tacit recognition that controlling Georgia authority
disfavors their arguments concerning implied authority. 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
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)
(decedent’s son who signed arbitration agreement upon parent’s
admission but did not have power of attorney lacked actual or implied
authority to act as agent); Trinity Mission of Clinton, LLC v.
Barber, 988 So.2d 910, 916 (Miss. Ct. App. 2007)(invalidating
arbitration agreement and noting that the principal must hold the
agent out as having authority); Sikes v. Heritage Oaks W. Ret. Vill.,
238 S.W.3d 807 (Tx. Ct. App. 2007)(finding arbitration agreement
unenforceable where wife of resident signed admissions documents,
purporting to have power of attorney which she did not possess).
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 (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)(arbitration agreement entered into on behalf of husband upheld
where husband had expressly authorized his wife to enter into other
agreements on his behalf).
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individual wrongful death act claim of Joyner’s surviving son Gary
would
be
subject
to
a
now-invalidated
arbitration
agreement.
Certainly, defendants advance no arguments. The Court thus concludes
that the individual claims of surviving son 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
result of her mother’s death.
death claims.
These claims appear to be wrongful
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
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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).
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.
the question is the converse of the above.
Here,
Specifically, if a
defendant’s defense12 would fail against a decedent, would that same
defense also fail as to a survivor asserting a wrongful death claim
based on the same conduct?
More specifically, if a decedent could
defeat a tort defendant’s argument that she had agreed to arbitrate
the claim, would the survivor of the decedent likewise succeed on an
argument that the arbitration agreement in question was not binding
on that survivor? The parties cite no case authority on this precise
12
The word “defense” here meaning that the defendant could
insist on arbitration of the claim, instead of a trial, as sought by
the plaintiff.
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point, but it seems reasonable to assume that a survivor’s claim
would not be subject to an arbitration agreement entered into on
behalf of the decedent, if the decedent, herself, would not have been
so bound.
Indeed, there is no contractual basis for inferring an intent on
the part of Ms. Hogsett, the daughter of the deceased, to arbitrate
her wrongful death claim.
As discussed above, consent to arbitrate
is an essential component of an enforceable arbitration agreement.
Ashburn, 286 Ga. App. at 25.
It is apparent from the language of the
arbitration agreement that Hogsett did not sign the agreement in her
individual capacity. (Defs.’ Mot. to Dismiss [4] at Ex. B.) Rather,
the agreement expressly purports to govern the relationship between
the “Resident” (Joyner) and the
“Living Center” (Parkwood).
(Id.)
Hogsett did not, by signing the agreement in her representative
capacity on behalf of her mother, express an intent to surrender any
rights she might possess in her individual capacity.
In the absence
of Hogsett’s consent to arbitrate, the Court cannot enforce the
agreement
against
her.
See
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.”).
This result is in accord with the Georgia wrongful death
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statute, O.C.G.A. § 51-4-2.13
That statute permits the surviving
child or children of a decedent to bring a wrongful death action in
the event that there is no surviving spouse.14
O.C.G.A. § 51-4-2(a).
Any amount recovered in such an action must be “equally divided”
between the children “per capita.”
O.C.G.A. § 51-4-2(d).
The
statute thus contemplates one indivisible claim, the proceeds of
which are to be divided between all surviving children. Requiring
Hogsett, the daughter of the decedent, to arbitrate her claim against
defendants, when her brother, the son of the decedent, would be
simultaneously proceeding by trial, would not be workable and would
arguably subvert the intent of the statute.
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 (2001).
This is
particularly so where defendants did not comply with their own
13
The statute actually speaks of “homicide” rather than
“wrongful death.” “Homicide” in this context includes death from
“(1) a crime, (2) criminal negligence or (3) other negligence.”
Stiltjes v. Ridco Exterminating Co. Inc., 256 Ga. 255, 257 (1986).
14
The decedent did not have a surviving spouse.
to Amend [16] at 2.)
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(Pls.’ Mot.
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 if liability arises from general obligations imposed by law”).
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.
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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.
circumstances,
the
Court
does
not
believe
that
Under the
discovery
is
warranted.
CONCLUSION
For the reasons stated above, the Court DENIES defendants’
Motion to Dismiss and Compel Arbitration [4] and GRANTS as unopposed
defendant Covenant Dove Holding Company, LLC’s Motion to Dismiss for
Lack of Personal Jurisdiction [3].
The Court DIRECTS the parties to
submit a joint preliminary report and discovery plan by Monday, March
17, 2014. The Court further instructs the parties and the Clerk that
this Amended Order should supplant the Court’s previous Order [15]
addressing the Motions to Dismiss [3] and [4].
SO ORDERED, this 14th day of February, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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