Testa v. Emeritus Corporation

Filing 26

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's motion to compel arbitration 8 is denied. At the 03/09/2016 status hearing, the Court will set the answer deadline and the discovery schedule.Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH TESTA, on behalf of
SAMUEL J. TESTA,
Plaintiff,
v.
EMERITUS CORPORATION,
d/b/a EMERITUS AT ORLAND PARK,
Defendant.

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No. 15 C 02449
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Joseph Testa brings this personal-injury action on behalf of his father,
Samuel Testa, to recover for injuries that Samuel allegedly suffered when he lived
at an assisted living facility run by Emeritus Corporation.1 Emeritus believes that a
valid arbitration agreement binds the parties, so the company moved to compel
arbitration. In response, the Testas argue that the arbitration agreement is invalid.
In an earlier opinion, the Court explained why the validity determination boiled
1Joseph

Testa originally filed this action in the Circuit Court of Cook County, but
Emeritus properly removed it. R. 1, Not. Removal. The Court has diversity jurisdiction
under 28 U.S.C. § 1332. Joseph and Samuel are citizens of Illinois, and Emeritus is a
citizen of Washington because Emeritus is incorporated and maintains its principal place of
business there. Not. Removal at 2. A defendant in a removed case may establish the
required amount-in-controversy with a good-faith estimate of the stakes, so long as that
estimate is plausible and supported by a preponderance of the evidence. Oshana v. CocaCola Co., 472 F.3d 506, 511 (7th Cir. 2006). Emeritus’s estimation of the jurisdictional
amount is both plausible and supported by a preponderance of the evidence. Joseph’s
attorney’s affidavit alleges damages “in excess of $50,000.00.” R. 1, Exh. A., Damages Aff.
And given the nature of the injuries alleged, which include a number of falls resulting in
fractured bones, as well as a stroke, see R. 1, Exh. A, Compl. ¶¶ 8-19, it is not legally
impossible that the total of damages alleged would surpass $75,000. Back Doctors Ltd. v.
Metro. Prop. and Cas. Ins., 637 F.3d 827, 829-30 (7th Cir. 2011).

down to one issue: whether either an Illinois power of attorney or an Arizona power
of attorney signed by Samuel gave Joseph the actual, express authority to bind
Samuel to the arbitration agreement. On consideration of the parties’ supplemental
briefs, the answer is no, so the Court denies Emeritus’s motion to compel
arbitration.
I. Background
Many of the background facts, which are not in dispute, are taken from the
prior Opinion. R. 18, 9/4/15 Opinion at 2-5, Testa v. Emeritus Corp., 2015 WL
5183900 (N.D. Ill. Sept. 4, 2015). 2 Samuel Testa was admitted to Emeritus at
Orland Park, an assisted living facility, on October 25, 2012. R. 1, Exh. A, Compl.
¶ 5. (For convenience’s sake, this Opinion refers to both the facility itself and the
company as “Emeritus.”). On November 1, 2012, exercising a power of attorney for
his father, Joseph Testa signed an “Assisted Living Establishment Contract,” which
set the terms of Samuel’s residence at Emeritus. R. 8, Exh. 2, Establishment
Contract. Three weeks later on November 22, Joseph signed, as Samuel’s
“Authorized Representative,” a separate Arbitration Agreement with Emeritus.
R. 20-4, Exh. 4, Arbitration Agreement. That second contract is entitled “Agreement
to Resolve Disputes by Binding Arbitration,” and it states in relevant part that “any
action, dispute, claim or controversy of any kind … arising out of the provision of
assisted living services, healthcare services, or any other goods or services provided
under the terms of any agreement between the Parties … shall be resolved
2Citations

to the record are noted as “R.” followed by the docket number and the
page or paragraph number.

2

exclusively by binding arbitration … .” Id. ¶ 2 (emphasis in original). The
Arbitration Agreement further provides that “[a]dmission to the Community is not
contingent upon signing this Agreement.” Id. at 2.
Before Joseph signed either the Establishment Contract or the Arbitration
Agreement on his father’s behalf, Samuel had given Joseph two powers of attorney:
(1) in June 2010, an Illinois Statutory Short Form Power of Attorney for Health
Care (“Illinois POA”), R. 20-2, Exh. 2; and (2) in March 2001, an Arizona durable
power of attorney (“Arizona POA”), R. 20-1, Exh. 1. The purpose of the Illinois POA,
according to its prefatory notice, is to give Joseph “broad powers to make health
care decisions, including … to require, consent to or withdraw any type of personal
care or medical treatment for any physical or mental condition and to admit
[Samuel] to or discharge [him] from any hospital, home or other institution.” Illinois
POA at 1. Consistent with this purpose, Paragraph 1 of the Illinois POA gives
Joseph the authority “to make any and all … personal care, medical treatment,
hospitalization, and health care” decisions. Id. ¶ 1. The Illinois POA also specifies
that it “is intended to be as broad as possible so that [Joseph] will have authority to
make any decision [Samuel] could make to obtain or terminate any type of health
care.” Id. The Illinois POA then sets forth Joseph’s powers, some of which are
quoted from the Illinois Power of Attorney Act’s section on health-care power of
attorneys, 755 ILCS 45/4-10. One provision is an enabling-type authority, meaning
it gives Joseph the authority to execute the other powers: “The agent may sign and
deliver all instruments, negotiate and enter into all agreements and do all other

3

acts reasonably necessary to implement the exercise of the powers granted to the
agent.” Id. at 5 (quoting 755 ILCS 45/4-10(c)).
The Arizona POA is premised on Arizona law. ARS § 14-5501 (governing
durable power of attorney). Articles I, II, and III of the Arizona POA govern “asset
control,” “health care decisions,” and “administrative provisions,” in that order.
Article I states broadly that Joseph “shall have full power and authority to do any
and all acts for [Samuel’s] benefit which [Samuel] might do if [he] were present.”
Arizona POA, art. I. Several examples are then listed “by way of illustration but not
by way of limitation,” including “to ask, demand, sue for … sums of money,” “to sell,
assign, and transfer stocks” and other securities, “to borrow money,” “to manage
real property,” and “to make and verify income tax returns.” Id. art. I ¶¶ 1-11.
Another power is “to retain counsel on [Samuel’s] behalf, to appear for [him] in all
actions and proceedings to which [he] may be party in the courts of Arizona or
elsewhere, to commence actions and proceedings in [his] name and to sign and
verify [his] name on all complaints, petitions, answers and other pleadings of every
description.” Id. art. I ¶ 9.
In January 2015, Joseph filed suit on Samuel’s behalf in Cook County Circuit
Court, alleging that Samuel—who left Emeritus in March 2014—had suffered
physical injuries, including fractured bones, as a result of Emeritus’s negligence
during his stay. Compl. ¶¶ 8-19, 23-27. Emeritus removed the action to federal
court, R. 1, and then moved to compel arbitration under the Arbitration Agreement
that Joseph signed on November 22, 2012. R. 8, Def.’s Mot. Compel.

4

In an earlier Opinion, the Court rejected Joseph’s arguments that the
Arbitration Agreement lacked consideration and mutual assent. 9/4/15 Opinion at
6-11. But at the same time, the Court also rejected Emeritus’s agency arguments
that Joseph had implied or apparent authority to enter into the Arbitration
Agreement, id. at 20-21, as well as the argument that Samuel had ratified the
Arbitration Agreement, id. at 22-23. What remained, the Court explained, was more
briefing on whether Joseph had actual, express authority to bind Samuel to
arbitration on the basis of the Illinois or Arizona powers of attorney. Id. at 11-19. As
explained next, neither power of attorney granted Joseph the authority to enter into
the Arbitration Agreement, so Emeritus’s motion to compel arbitration is denied.
II. Legal Standard
The Federal Arbitration Act, which applies to “[a] written provision …
evidencing a transaction involving commerce,” 9 U.S.C. § 2, governs this dispute.
Under the FAA, an arbitration agreement “arising out of such contract or
transaction … shall be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.” Id. “Although it is
often said that there is a federal policy in favor of arbitration, federal law places
arbitration clauses on equal footing with other contracts, not above them.” Janiga v.
Questar Capital Corp., 615 F.3d 735, 740 (7th Cir. 2010) (citing Rent-A-Center,
West, Inc. v. Jackson, 561 U.S. 63, 68 (2010)). That is, the FAA was intended to
respect parties’ agreements to arbitrate and “put arbitration on a par with other

5

contracts and eliminate any vestige of old rules disfavoring arbitration.” Stone v.
Doerge, 328 F.3d 343, 345 (7th Cir. 2003).
If the parties have a valid arbitration agreement and the asserted claims in a
lawsuit are within its scope, then the arbitration requirement must be enforced.
9 U.S.C. §§ 3-4; Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 726 (7th Cir.
2004) (citing Kiefer Specialty Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909 (7th
Cir. 1999)). Whether a binding arbitration agreement exists is determined under
principles of state contract law. Janiga, 615 F.3d at 742 (citing First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 934 (1995)). And “the party seeking to
invalidate or oppose the arbitration agreement bears the burden of demonstrating
that the arbitration agreement is unenforceable and that the claims are unsuitable
for arbitration.” Paragon Micro, Inc. v. Bundy, 22 F. Supp. 3d 880, 887 (N.D. Ill.
2014) (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000)).
The FAA also “establishes that, as a matter of federal law, any doubts concerning
the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
III. Analysis
Joseph argues that the Arbitration Agreement is invalid because he never
had the authority to bind Samuel to arbitration under the Illinois and Arizona
POAs. Emeritus responds that both POAs established an agency relationship and
expressly gave Joseph the power to enter into the Arbitration Agreement.

6

Some basic agency principles are the same in Illinois and Arizona. An agent’s
authority to act for the principal can be either actual or apparent. See Patrick Eng’g,
Inc. v. Naperville, 976 N.E.2d 318, 329 (Ill. 2012); Ruesga v. Kindred Nursing Ctrs.,
LLC, 161 P.3d 1253, 1261 (Az. Ct. App. 2007). In turn, actual authority—meaning
the principal actually gave authority to the agent—can be either express or implied.
Id. “Express authority is directly granted to the agent in express terms by the
principal and extends only to the powers the principal confers upon the agent.”
Curto v. Illini Manors, Inc., 940 N.E.2d 229, 233 (Ill. App. Ct. 2010). One way to
confer express authority is through a power of attorney. See id. (“[Express]
authority may be granted through a written contract, a power of attorney or a courtordered guardianship.” (citations omitted)); Amcore Bank, N.A. v. HahnamanAlbrecht, Inc., 759 N.E.2d 174, 181 (Ill. App. Ct. 2001) (“The power of attorney lists
specific powers given to the attorneys-in-fact.”). The other form of actual authority
is implied authority, which “arises when the conduct of the principal, reasonably
interpreted, causes the agent to believe that the principal desires him to act on the
principal’s behalf.” Curto, 940 N.E.2d at 233. Separate from actual authority is
apparent authority, which applies even when the principal has not actually given
the agent any authority; put another way, apparent authority exists “where a
principal has created the appearance of authority in an agent, and another party
has reasonably and detrimentally relied upon the agent’s authority.” Patrick, 976
N.E.2d at 329-30 (citations omitted). The party alleging an agency relationship
must prove it by a preponderance of the evidence. See Granite Properties Ltd. P’ship

7

v. Granite Inv. Co., 581 N.E.2d 90, 92 (Ill. App. Ct. 1991); Curran v. Indus. Comm’n
of Ariz., 752 P.2d 523, 526 (Az. Ct. App. 1988).
In the earlier opinion, the Court rejected the arguments that Joseph had
actual implied authority or apparent authority to sign the Arbitration Agreement
for his father. 9/4/15 Opinion at 20-22. What’s left is whether the Illinois and
Arizona POAs gave Joseph the actual, express authority to bind Samuel to the
Arbitration Agreement.
A. Illinois Health Care Power of Attorney
On the Illinois POA, the crux of the parties’ dispute is whether entering into
an optional arbitration agreement with an assisted living facility is a “healthcare
decision.”3 The Illinois POA was created under a state law that makes it easier for
someone to delegate healthcare decisions to an agent and provides a standard form
to execute a power of attorney. 755 ILCS 45/4-10. The Illinois POA “authorizes the
agent to make any and all health care decisions on behalf of the principal,”
including admission and discharge “from any and all types of hospitals, institutions,
homes, residential or nursing facilities, treatment centers, and other health care
institutions … .” 755 ILCS 45/4-10(c). The statute also has an enabling clause that
3As

previously explained, the Illinois POA refers to the document signed on June 9,
2010. R. 20-2, Exh. 2. In this round of briefing, Joseph attached a second Illinois Statutory
Short Form Power of Attorney for Health Care, dated November 1, 2010, that is similar to
the June document. R. 21-2, Exh. B. Neither party mentioned the different date or
explained its significance (or lack of it). The main differences between the two documents
appear to be that the November version terminates on Samuel’s written direction (instead
of on his death) and includes a successor agent. Id. The parties do not argue that the
outcome of this motion to compel depends on whether the June or November version was in
effect at the time that Joseph signed the Arbitration Agreement, so the Court will treat the
June version as the pertinent one, as the parties did during both rounds of briefing on the
motion to compel.

8

gives the agent the authority to carry out the other powers: the agent “may sign and
deliver all instruments, negotiate and enter into all agreements and do all other
acts reasonably necessary to implement the exercise of the powers granted … .” Id.
In arguing their positions, both parties rely on an Illinois Appellate Court
decision, Fiala v. Bickford Senior Living Group, 32 N.E.3d 80 (Ill. App. Ct. 2015).
That case considered whether an agent acting under a statutory short form power of
attorney for healthcare (like the one at issue here) could sign a binding arbitration
clause as part of admission to a long-term care facility. Fiala, 32 N.E.3d at 84. The
plaintiff’s daughter signed, on her father’s behalf, a residency contract with an
assisted living facility that contained a mandatory arbitration provision. Id. The
Illinois Appellate Court held that the daughter did have the authority to bind her
father. Id. at 92. The reasoning went like this: deciding to live in the facility was a
healthcare decision, and the arbitration provision was neither optional nor
freestanding, but instead was an integral part of the patient’s underlying
admission. Id. In so deciding, Fiala relied on cases from other states that had
refused to enforce an arbitration agreement in the converse of the situation, that is,
“where the arbitration provision is optional or otherwise not necessary to gain
admission to a long-term-care facility, [in which case] the agent acting pursuant to a
health-care power of attorney is not authorized to sign the arbitration provision and
the patient cannot be bound by the agent’s action.” Id. (emphasis added) (citing
Dickerson v. Longoria, 995 A.2d 721, 739 (Md. 2010); Life Care Ctrs. of Am. v.

9

Smith, 681 S.E.2d 182, 185 (Ga. Ct. App. 2009); Koricic v. Beverley Enterprises–
Neb., Inc., 773 N.W.2d 145, 151 (Neb. 2009)).
Emeritus says Fiala helps its case because “[t]he Arbitration Agreement was
presented to Joe Testa during the admission process … along with the other
admission documents in direct relation to his father’s health and medical care.” R.
20, Def.’s Br. at 10-11 (emphasis in original). But “direct relation” is not the same as
necessary. The Arbitration Agreement—which Emeritus drafted—makes clear that
Samuel’s admission into Emeritus was not contingent upon signing the Arbitration
Agreement. It says: “Admission to the Community is not contingent upon signing
this Agreement.” Arbitration Agreement at 4. The timing of each agreement’s
execution also bears out the independence of the two agreements. Joseph signed the
Arbitration Agreement on November 22, 2012, three weeks after signing the
Establishment Contract for Samuel’s admission to Emeritus. So the Arbitration and
Establishment Contracts were independent, and the separate promise to arbitrate
was not a necessary condition to Samuel’s admission to the facility or receipt of
services or benefits. See 9/4/15 Opinion at 22-23. This distinguishes Fiala, and it
means that Joseph’s signing of the Arbitration Agreement was not “reasonably
necessary” to implement a healthcare decision. See 755 ILCS 45/4-10(c); Fiala, 32
N.E.3d at 91-92.
This holding does not discount the Federal Arbitration Act, which “places
arbitration clauses on equal footing with other contracts,” Janiga, 615 F.3d at 740
(citations omitted), and also requires federal-court vigilance against potential state-

10

court hostility to arbitration clauses, see DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463,
469-70 (2015). Illinois state courts can draw the line that they did in Fiala without
prompting suspicion of impermissible hostility toward arbitration. The Illinois
Appellate Court applied a principle of agency law that applies to all types of nonarbitration-related decisions: “the general rule limits the scope of a health-care
power of attorney to matters involving the principal’s health care and that the agent
is given no authority over the principal’s property or financial matters.” Fiala, 32
N.E.3d at 91 (citing In re Estate of Stahling, 987 N.E.2d 1033, 1038 (Ill. App. Ct.
2013) (a short form healthcare power of attorney did not create a fiduciary
relationship in which property transactions between the principal and agent
automatically resulted in a presumption of undue influence)). If an arbitration
agreement is not necessary for the healthcare decision (that is, to live in an assisted
living facility), then the agent is going too far. Indeed, far from signaling hostility to
arbitration, remember that Fiala actually enforced an arbitration clause, because
“health-care decisions, such as placement in an assisted-living facility, are not so
cut and dried.” Id. When an arbitration clause is a necessary part of the facility’s
main residency-establishment contract, then the decision to enter into the
arbitration clause is “part and parcel” of a healthcare decision rather than a
separate financial decision. Id. at 92. Drawing this line is sensible, because Fiala
was reconciling two competing concerns: the potential overreaching of the
healthcare power of attorney and the necessity of the arbitration agreement to the
healthcare facility’s residency contract. In addition to the cases that Fiala cited,

11

other state courts have also drawn this same distinction between optional and
mandatory arbitration provisions. E.g., Primmer v. Healthcare Indus. Corp., 43
N.E.3d 788, 795 (Ohio Ct. App. 2015) (“The decision to sign a free-standing
arbitration agreement is not a health care decision if the patient may receive health
care without signing the arbitration agreement.”); State ex rel. AMFM, LLC v. King,
740 S.E.2d 66, 75 (W. Va. 2013) (same); but see Hogan v. Country Villa Health
Servs., 55 Cal. Rptr. 3d 450, 455 (Cal. Ct. App. 2007) (signing an arbitration
agreement, whether optional or mandatory, is “part of the health care
decisionmaking process”).4
The careful line drawing is also consistent with other Illinois cases that
construe powers of attorney narrowly. In Estate of Nicholls v. Nicholls, a nephew
acting under a power of attorney from his uncle made himself the beneficiary of his
uncle’s certificates of deposit. 960 N.E.2d 78, 79-80 (Ill. App. Ct. 2011). The nephew
had plenty of provisions to rely on in the power of attorney, but he still lost. Id. For
example, the power of attorney gave the nephew the power to “acquire and redeem
certificates of deposit.” Id. He also had broad general powers “[t]o exercise, do, or
perform any act, right, power, duty or obligation whatsoever that [the principal]
now ha[s] or may acquire, relating to any person, matter, transaction or property,
4 Emeritus

argues that the Court should not follow Fiala because the “Illinois
Supreme Court has not decided this issue and … decisions by intermediate state courts are
not necessarily authoritative or binding in federal court.” Def.’s Br. at 12. Although it is
true that lower state-court cases are not binding, they help federal courts “use [their] own
best judgment to estimate how the [state’s] Supreme Court would rule as to its law.”
Knoblauch v. DEF Exp. Corp., 86 F.3d 684, 687 (7th Cir. 1996) (citation omitted). When the
Illinois Supreme Court has not directly addressed an issue, lower courts that “have
grappled with the issue” help to “offer [federal courts] a clear indication of the law of
Illinois.” Id.

12

real or personal, tangible or intangible,” and any specifically enumerated powers
were not meant to “limit or restrict” the nephew’s general powers. Id. at 81-82.
Despite all this textual support in the power of attorney, the Illinois Appellate
Court held that the “catch all” language could not make up for the absence of an
express provision allowing the nephew to change beneficiaries. Id. at 83.
In reaching this conclusion, Nicholls relied in part on the commentary in the
Restatement of Agency, much of which tries to limit the breadth of catch-all
provisions. One comment says that “where general terms are used which literally
purport to grant great authority, such terms will normally be interpreted as
authorizing the agent to act only in connection with the business the agent is
employed to perform. The more specific the enumeration of acts to be done, the
smaller the area to be included in the general statement.” Restatement (Second) of
Agency § 37 cmt. a (1958). Another reads: “All-embracing expressions are
discounted[,] discarded[, or] disregarded as meaningless verbiage.” Id. § 34 cmt. h
(1958) (giving example of phrase like “hereby ratifying and confirming whatever our
agent shall do”). Other decisions also rely on these comments to narrow the reach of
powers of attorney. See, e.g., Amcore Bank, 759 N.E.2d at 182 (“[A] general grant of
agency does not carry with it the power to execute guaranties.”); Fort Dearborn Life
Ins. Co. v. Holcomb, 736 N.E.2d 578, 589 (Ill. App. Ct. 2000) (“No matter how the
power is characterized, a ‘catchall’ provision will not operate to expand powers
expressly limited in other portions of the same instrument.”); Ping v. Beverly

13

Enters., 376 S.W.3d 581, 591-93 (Ky. 2012) (no actual authority to enter arbitration
agreement with nursing home on mother’s behalf).
To be sure, Nicholls involved a durable power of attorney, rather than a
statutory short form healthcare power of attorney like the one at issue here. But the
case still makes the point that a “written power of attorney must be strictly
construed so as to reflect the ‘clear and obvious intent of the parties.’” Id. at 82
(quoting Fort Dearborn, 736 N.E.2d at 583-89). And Nicholls explained that “it does
not matter whether the power of attorney at issue [was] a short form or a durable
power of attorney,” because “the result [was] the same.” Id. at 82. Because there
was no specific reference to changing beneficiaries on the certificates of deposit, the
nephew did not have the authority to do so despite a broad provision allowing him
“[t]o exercise, do, or perform any act, right, power, duty or obligation whatsoever.”
Id. at 81. Here too, even the broadly worded provisions in the Illinois POA do not
stretch so far as to cover an arbitration clause that is not “reasonably necessary,”
755 ILCS 45/4-10(c), to carry out a healthcare decision.
B. Arizona Durable Power of Attorney
1. Litigation Provision
Emeritus next argues that the Arizona POA, which is not limited to
healthcare decisions, separately granted Joseph the authority to bind Samuel to the
Arbitration Agreement. This power of attorney was created under Arizona’s durable
power of attorney statute. ARS § 14-5501. Article I of the Arizona POA governs
“Asset Control” and broadly provides that the “agent shall have full power and

14

authority to do any and all acts for [Samuel’s] benefit which [he] might do if [he]
were present.” Arizona POA, art. I; Def.’s Br. at 7-8. Article I then sets forth specific
examples—“by way of illustration but not by way of limitation”—of Joseph’s powers.
Emeritus’s best argument is premised on the litigation-related provision, which
says that Joseph may
retain counsel on [Samuel’s] behalf, to appear ·for [him] in all actions and
proceedings to which [he] may be party in the courts of Arizona or elsewhere,
to commence actions and proceedings in [his] name and to sign and verify in
[his] name all complaints, petitions, answers and other pleadings of every
description.
Arizona POA, art. I ¶ 9. Whether this provision grants Joseph authority to enter the
Arbitration Agreement is a very close call.
There is no Arizona case law directly on point, so the Court must return to
first principles. Like in Illinois, Arizona courts take a narrow view of powers of
attorney, long recognizing “that under all the authorities powers of attorney should
be strictly construed and that the courts should never by construction extend the
power they confer beyond that given in terms, or is absolutely necessary to carry
that conferred into effect.” Lightning Delivery Co. v. Matteson, 39 P.2d 938, 941
(Ariz. 1935) (power of attorney allowing husband to “legally dispose of any and all
properties … belonging to us” covered only marital property, not wife’s separate
property). This is a clear-statement rule for grants of authority: “[i]f … authority is
intended to be conferred, the language used in conferring it should be so clear,
distinct, and certain in its meaning to that end as to leave no room for doubting that
such is its purpose.” Brown v. Armenta, 188 P. 260, 262 (Ariz. 1920) (citation and

15

quotations omitted) (power of attorney allowing agent to “reclaim” land did not
allow agent to lease land). Arizona courts have also relied on the Restatement of
Agency, which similarly requires “that a principal has stated [express authority] in
very specific or detailed language.” Ruesga, 161 P.3d at 1261 (quotations omitted)
(quoting Restatement (Third) of Agency § 2.01 cmt. B). These requirements are in
place to guarantee that that the power of attorney reflects the clear intention of the
principal. See ARS § 14-5501(D)(1) (durable powers of attorney must include
“language that clearly indicates that the principal intends to create a power of
attorney.”).
When read with these principles in mind, the litigation provision does not
grant Joseph the authority to enter into an arbitration agreement because there is
no explicit mention of that type of authority. Remember that the litigation provision
allows Joseph to “appear” in and “commence” actions and proceedings for Samuel,
Arizona POA, art. I, ¶ 9, but there is no express statement that Joseph may agree—
even before a dispute arises—to arbitrate legal claims that might later need to be
resolved. Without that explicit grant of authority, the litigation provision does not
contain the kind of “clear, distinct, and certain” language that “leave[s] no room for
doubt[]” demanded by Arizona courts. Brown, 188 P. 260 at 262. Samuel did not
grant Joseph the actual, express authority to enter into the arbitration agreement,
so it does not bind Samuel.5

5 Emeritus

argues that the Arizona POA contemplated arbitration because the
litigation provision that says Joseph can appear for Samuel in “the courts of Arizona or
elsewhere,” Arizona POA, art. I, ¶ 9, and the “elsewhere” is, according to Emeritus,
arbitration. But it is not self-evident that “elsewhere” refers to non-judicial forums, like

16

It is worth noting what this holding does not mean. The litigation provision
might very well be explicit enough to permit Joseph to decide how to litigate a claim
after it arises—even including a decision to take the claim to arbitration (if the
opponent were to agree, of course). This is the distinction that was drawn by the
Kentucky Supreme Court in Extendicare Homes, Inc. v. Whisman, — S.W.3d —,
2015 WL 5634309, at *10 (Ky. Sept. 24, 2015), as corrected (Oct. 9, 2015). 6 In
Extendicare, the Kentucky Supreme Court distinguished between, on the one hand,
the act of initiating (or defending against) an arbitration proceeding and, on the
other hand, the signing of a pre-dispute arbitration agreement. Id. The power of
attorney in that case gave the agent the power to “institute or defend suits,” which
“would necessarily encompass the power to make litigation-related decisions within
the context of a suit so instituted.” Id. After the suit’s filing, the agent could decide
to submit the claim to arbitration because that would be a litigation-related
decision. Id. at *11. But agreeing to arbitrate before the claim arose could not be a
arbitration, instead of courts in states other than Arizona. In any event, Emeritus’s
argument does not address the confines of the litigation provision, which says nothing
about agreeing to arbitrate claims before they even arise.
6On

the Kentucky Supreme Court’s website, the final Extendicare opinion is labeled
“to
be
published”
and
is
dated
February
18,
2016.
See
http://apps.courts.ky.gov/supreme/sc_opinions.shtm. Opinions labeled “to be published” may
be cited in Kentucky courts, although not until they are finalized. Id. (explaining that solabeled opinions “shall not be cited until all steps in the appellate process have been
exhausted and they become final”). In contrast, opinions labeled “not to be published” “shall
not be cited or used as binding precedent in any other case in any court of this state.” Ky.
CR 76.28(4)(c). As far as the Court can tell, the final version of Extendicare on the Kentucky
Supreme Court’s website is the same version that is currently on Westlaw—both versions
were revised on October 9, 2015.
Even without considering Extendicare, however, the outcome remains the same
under published Arizona authority and the Restatement—the litigation provision of the
Arizona POA does not grant Joseph the authority to enter into an arbitration agreement
because there is no explicit mention of that type of authority.

17

litigation-related decision connected to the claim because, by definition, no claim
existed yet. Id.
Here too perhaps the litigation provision gives Joseph the authority to submit
a claim to arbitration after the claim arises, because the litigation provision does
give Joseph the power to “sign … pleadings of every description.” Arizona POA, art.
I, ¶ 9. That could be interpreted to mean a pleading in which Joseph, on Samuel’s
behalf, agrees to a bench trial or to arbitration. There is no need to decide the
question definitively, because Joseph of course resists arbitration, but it is worth
pointing out that after a claim arises, Joseph still retains broad power to make
litigation decisions for Samuel.
2. Healthcare Provision
Emeritus next relies on the healthcare provision of the Arizona POA as the
source of Joseph’s purported authority to enter into the Arbitration Agreement.
Def.’s Br. at 9-10. Article II of the Arizona POA governs healthcare decisions and
allows Joseph
to make decisions regarding [Samuel’s] medical care and treatment
including, but not limited to … approving or withholding approval for
hospitalization or other placement, and consulting with physicians and
other medical personnel to determine the best and most appropriate
course of treatment or, if appropriate most reasonable and comfortable
limitations on treatment.
Arizona POA, art. II, ¶ 1. In staking out their positions over the Arizona healthcare
provision, the parties basically repeat their arguments over the Illinois POA.
Emeritus argues that “[t]he decision to arbitrate disputes arising out of the
provision of assisted living and healthcare services is related to Sam Testa’s

18

admission to Emeritus Assisted Living” and “his health and medical care.” Def.’s Br.
at 9. Joseph responds that “[t]he decision to arbitrate is not even remotely related to
healthcare” unless “arbitration is a condition of admission to a healthcare facility.”
Pl.’s Resp. at 7.
Without Arizona case law directly on point, again the general principles on
powers of attorney carry the day. No language in the healthcare provision clearly
authorizes Joseph to enter into an arbitration agreement that is not necessary for
the receipt of healthcare. Remember that Emeritus’s residency contract does not
require the arbitration agreement, so Joseph could have secured the assisted living
arrangement without agreeing to arbitrate future disputes. Indeed, the healthcare
section of the Arizona POA is even narrower than the Illinois POA. The Arizona
POA, art. II, ¶¶ 2-3, does not include an enabling-type provision like the Illinois
POA; that is, there is no section of the POA allowing “[t]he agent [to] sign and
deliver all instruments, negotiate and enter into all agreements and do all other
acts reasonably necessary to implement the exercise of the powers granted to the
agent.” 755 ILCS 45/4-10(c). Nor does the Arizona POA specify that it “is intended
to be as broad as possible so that [Joseph] will have authority to make any decision
[Samuel] could make to obtain or terminate any type of health care.” Illinois POA ¶
1. If the broader grant in the Illinois POA was not enough to cover signing an
optional arbitration agreement, then the Arizona POA too does not.
There is one Arizona appellate court case suggesting the state’s courts would
draw the line at optional versus mandatory arbitration agreements, as other states

19

like Illinois have done. See supra Section III.A. In Hurst v. Silver Creek Inn, L.L.C.,
the Court of Appeals considered an Arizona statute, ARS § 36-3231(A)(2), which
allows an adult child to make healthcare decisions for a parent. 2015 WL 3551874,
at *5 (Ariz. Ct. App. June 4, 2015). An assisted living facility tried to hold a resident
to an arbitration agreement signed by the resident’s adult child, but the Court of
Appeals rejected the argument, on the ground that the arbitration agreement was
not a condition of residency: “[w]hether to agree to arbitration is not a health care
decision, particularly where, as here, the agreement to arbitrate is not a condition of
admission or treatment.” Id. To be sure, Hurst is an unpublished decision, so it has
“persuasive value” only, Ariz. S. Ct. R. 111(c)(1)(C),7 but it is consistent with case
law in other states that categorize an optional arbitration agreement as
unnecessary to a healthcare decision.
The cases cited by Emeritus do not support its argument. Emeritus cites two
Arizona cases, Def.’s Br. at 5-7, but in neither case did the parties or the courts
address the threshold issue of whether the powers of attorney granted the agents
the authority to enter into the arbitration agreement in the first place. In Estate of
Harmon v. Avalon Care Ctr. – Scottsdale, L.L.C., 2015 WL 302292, at *2 (Ariz. Ct.
App. Jan. 22, 2015), the court held that an arbitration agreement was not binding

7Arizona

Supreme Court Rule 111(c) allows a non-precedential decision to be used
“for persuasive value, but only if it was issued on or after January 1, 2015” and if “no
opinion adequately addresses the issue before the court.” Ariz. Sup. Ct. R. 111(c)(C). Even
without considering Hurst, however, the outcome would be the same under published
Arizona authority and the Restatement—that the healthcare provisions of the Arizona POA
do not encompass signing an optional arbitration agreement.

20

on non-signatory heirs.8 The daughter, who signed the arbitration agreement for
her father under a power of attorney, could pursue a wrongful death claim because
those claims belonged to the statutory beneficiaries, and not to the decedent. 2015
WL 302292, at *2. The opinion did not discuss (and did not need to decide) whether
the daughter could bind her father, as distinct from the beneficiaries. (The court
also held that, in any event, the arbitration agreement was unconscionable. Id.) The
other Arizona case cited by Emeritus, Duenas v. Life Care Ctrs. of Am., Inc., 336
P.3d 763 (Ariz. Ct. App. 2014), similarly did not discuss whether an agent could
agree to arbitrate; the court simply held that an express provision attempting to
bind statutory heirs to arbitrate wrongful death claims was unenforceable. 336 P.3d
at 772. So neither of the Arizona cases cited by Emeritus examined the text of a
power of attorney to determine whether it granted authority to bind a principal to
an agreement to arbitrate.
Moving out of state, Emeritus also cites a Kentucky Court of Appeals case,
Def.’s Br. at 8, but it is distinguishable. In Kindred Healthcare, Inc. v. Cherlois, —
S.W.3d —, 2013 WL 5583587, at *1 (Ky. Ct. App. Oct. 11, 2013), 9 the power of
attorney allowed the agent “to transact, handle, and dispose of all matters affecting
me and/or my estate in any possible way.” Because that power of attorney had “no
limitation on its scopes or objectives,” the court could “find no reasonable
8Estate

of Harmon is unpublished, but the Court does not rely on this case, not even
“for persuasive value” as permitted by Arizona Supreme Court Rule 111(c).
9 Kindred

Healthcare is labeled “to be published” but has not yet been finalized.
Opinions labeled “to be published” may not be cited in Kentucky courts until they are
finalized. See http://apps.courts.ky.gov/supreme/sc_opinions.shtm. But as explained above,
the Court does not rely on Kindred Healthcare to reach its conclusion.

21

interpretation of the document which would limit” the agent’s authority. 2013 WL
5583587, at *5. Here, Article II of the Arizona POA, in contrast, is limited to
healthcare decisions.10
Emeritus’s last argument is that the healthcare provisions authorized Joseph
to sign the Arbitration Agreement because Article III of the Arizona POA, the
“administrative provisions,” states that “[t]his instrument shall be governed by the
laws of the State of Arizona in all respects … [and] shall be applicable to all
property of mine, real, personal, intangible or mixed … .” Arizona POA, art III.
Emeritus equates Samuel’s personal-injury claim to an “intangible property interest
relating to a lawsuit for money damages.” Def.’s Br. at 9. There is no reason to
quibble over whether the personal-injury claim is a form of personal property,
intangible property, or something else. The claim is property of some sort, but that
is neither here nor there, because Article III of the Arizona POA does not grant any
authority beyond the other articles. Article III simply explains that any authority
granted by other provisions shall apply to all types of property interests. But no
other provision gave Joseph the authority to agree to arbitrate disputes before they

10Emeritus

stresses that it is not relying on the catchall provision of the Arizona
POA as a source of authority. See Def.’s Br. at 8 (“The Defendant is not relying on general
terminology in a catchall provision in the power of attorney … .”); R. 22, Def.’s Reply at 6
(“In the case at bar, Emeritus is not relying on a catc[h]all provision or a general grant of
power.”). The catchall provision of the Arizona POA is found in the introduction to Article I:
“My agent shall have full power and authority to do any and all acts for my benefit which I
might do if I were present … .” Arizona POA, art. I. Even if Emeritus did argue that this
provision supplied Joseph with the requisite authority, it would likely be unsuccessful. The
Restatement of Agency, which Arizona follows, generally looks unfavorably on broad grants
of authority to agents. See supra.

22

arose, and to enter into that agreement when it was unnecessary to do so for
admission into Emeritus’s facility.
IV. Conclusion
Neither the Illinois POA nor the Arizona POA gave Joseph the authority to
enter into the Arbitration Agreement with Emeritus. So the Arbitration Agreement
does not bind Samuel, and Emeritus’s motion to compel arbitration, R. 8, is denied.
At the next status hearing, the Court will set the answer deadline and the discovery
schedule.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 7, 2016

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