Robinson v. SSC Newport Operating Company, LLC
Filing
8
MEMORANDUM OPINION AND ORDER; NHRC has moved to dismiss and refer the matter to arbitration, 4 . The motion will be DENIED. The Court will not further delay the development of the case otherwise, however, and the Clerk is DIRECTED to schedule a scheduling conference so that an appropriate scheduling order can be entered and a trial date set. Signed by District Judge J Ronnie Greer on 9/22/11. (KDO)
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DELORIS ROBINSON, Surviving Spouse
of NATHANIEL ROBINSON, Deceased,
PLAINTIFF,
VS.
SSC NEWPORT OPERATING COMPANY,
LLC, d/b/a NEWPORT HEALTH AND
REHABILITATION CENTER,
DEFENDANT.
)
)
)
)
)
)
)
)
)
)
NO. 2:10-CV-00265
MEMORANDUM OPINION AND ORDER
This diversity wrongful death action brought by Deloris Robinson (“plaintiff”), the surviving
spouse of Nathaniel Robinson, alleges that SSC Newport Operating Company, LLC, d/b/a Newport
Health and Rehabilitation Center (“NHRC”) was negligent in providing medical care to Nathaniel
Robinson while he was a resident of NHRC’s nursing home. NHRC has moved to dismiss and refer
the matter to arbitration, [Doc. 4]. Plaintiff has responded, [Doc. 5], and NHRC has filed a
“rebuttal” to plaintiff’s response, [Doc. 7]. For the reasons which follow, the motion will be
DENIED.
I.
Factual and Procedural Background
Nathaniel Robinson was admitted to NHRC at approximately 7:30 p.m. on July 1, 2009, with
a history of strokes and diabetes. At the time of admission, Nathaniel Robinson needed assistance
to walk or transfer from the bed to a chair and to sit up or turn over in the bed. On the morning of
July 4, 2009, Nathaniel Robinson was found unresponsive, not breathing and without a pulse. He
was transferred to the hospital where he was pronounced dead on arrival.
On the day following his admission to NHRC, Nathaniel Robinson’s spouse, Deloris
Robinson, “was presented with a stack of admission documents to sign.” Among the documents
signed was a “Dispute Resolution Program,” (“DRP”). The DRP waived the patient’s right to a jury
trial and provided for a three-step process of review, mediation and arbitration, could be revoked
within fourteen (14) days from the date of its execution, and purported to bind “your family, heirs,
successors, assigns, agents, insurers, trustees, and/or your legal representatives . . .” The DRP had
places for signature as follows:
If the Resident is mentally competent to consent to this Agreement under state law, sign here:
_____________________
Signature of Resident
Date _____________
__________________
Print Name
If competent resident is unable to physically execute the Agreement and authorizes a representative
to sign Agreement on the resident’s behalf, sign here:
s/Deloris Robinson
Date 7/2/09
Deloris Robinson
Print Name
Barbara Byrd, BOM
Signature of Facility Witness # 1
Date
Barbara Byrd
Print Name
Date
Signature of Facility Witness # 2
Print name
I am the spouse, responsible party, legal guardian or power of attorney of the resident and have the
authority to sign the Agreement on his/her behalf. In signing this Agreement the legal representative
2
or family member binds both the resident and themselves individually, as well as other parties as
specified in the Agreement.
___________________________
or Family Member
Date_____________
___________________________
Print Name
___________________________
Signature of Facility Witness # 1
Date _____________
___________________________
Print Name
___________________________
Signature of Facility Witness # 2
________________________
Date
___________________________
Print Name
___________________________
Signature of Facility Witness # 1
Date ______________
___________________________
Print Name
This suit was originally filed in state court but subsequently removed to this Court. NHRC
answered the suit and filed the instant motion to dismiss and refer to arbitration on the basis that the
“Plaintiff’s claims in this action are barred” by the DRP. NHRC did not file a memorandum in
support of its motion, see E.D. Tenn. L.R. 7.1(a). The plaintiff responded with her affidavit and
memorandum; NHRC then replied, filed a memorandum and attached a series of unauthenticated
medical records in contravention of rules requiring redaction of personal information.
The plaintiff, relying primarily on Raiteri v. NHC Healthcare/Knoxville, Inc., 2003 WL
23094413 (Tenn. Ct. App., Dec. 30, 2003) argues that the DRP “is void, and if not void, certainly
unenforceable.” Plaintiff more specifically argues that she lacked express or apparent authority to
3
sign the DRP for her husband and, alternatively, that the contract is an unenforceable contract of
adhesion. NHRC, not surprisingly, disagrees with plaintiff on both points.
II.
Analysis
Although the parties dedicate much of their briefing to the question of whether the DRP is
a contract of adhesion or otherwise enforceable, it appears to the Court that the threshold issue is
whether plaintiff had authority to sign the agreement and thus bind her husband to its terms. If she
did not, and the Court so concludes on this record, then the question of whether the agreement is
otherwise enforceable is not reached.
The factual scenario in Raiteri was, as plaintiff argues, similar to the factual scenario in this
case. There, a wife, (Mrs. Cox) was admitted to the defendant’s nursing home and her husband (Mr.
Cox) signed an admission agreement on his wife’s behalf. The admission agreement contained a
dispute resolution procedure which included mediation and arbitration provisions. At the time of
the signing of the documents by Mr. Cox, Mrs. Cox was physically infirm but had not been
diagnosed or adjudicated as mentally incompetent. The Tennessee Court of Appeals, Eastern
Section, held that the admission agreement was a contract of adhesion and the mediation and
arbitration provisions unenforceable. Raiteri, 2003 WL 23094413 at *8. The court also found, as
a stand-alone basis for its decision, that “Mr. Cox did not have the actual or apparent authority to
bind Mrs. Cox to the alternative dispute resolution provisions in the admission agreement.” Id. at
*9. The court stated:
. . . There is absolutely no evidence that he had her express
authority to sign for her. We also hold that the defendant cannot rely
upon the concept of apparent authority. The evidence reflects that
Mrs. Cox had her mental faculties, was “sharper” than her husband,
and was otherwise in a position to indicate whether she assented to
the terms of these significant contract provisions. The record is also
4
devoid of any exigent circumstances that would clothe Mr. Cox with
apparent authority to bind his wife to the admission agreement,
particularly the alternative dispute resolution provisions. We
certainly find nothing in the record before us, either factually or
legally, warranting a holding that Mr. Cox had the right to waive his
wife's very valuable constitutional right to a jury trial to adjudicate
her rights in this matter. As the admissions coordinator
acknowledged, Mrs. Cox “was capable of understanding” the
admission agreement. The admissions coordinator did not adequately
explain why she did not insist upon Mrs. Cox signing the admission
agreement, or, at a minimum, why she did not ask Mrs. Cox to ratify
what her husband had purported to do on her behalf.
Id.
As in Raiteri, there is no evidence here that plaintiff had the express authority of Nathaniel
Robinson to bind him to the DRP. NHRC concedes that Nathaniel Robinson was mentally
competent at the time the document was signed. Plaintiff did not possess a power of attorney or
guardianship over her husband’s affairs. The only evidence arguably pointed to by NHRC of
express authority is the preprinted language of the DRP itself just above plaintiff’s signature which
provides: “If competent resident is unable to physically execute the Agreement and authorizes a
representative to sign Agreement on the residence’s behalf, sign here:” Such evidence alone does
not, however, in this Court’s view, establish by a preponderance that express authority existed.
The evidence of record likewise does not preponderate in favor of a finding of apparent
authority. To attribute to Mr. Robinson the action of plaintiff in signing the DRP on the basis of
apparent authority, it must be shown that “the principal himself by his acts or conduct has clothed
the agent with the appearance of authority, and not where the agent’s own conduct has created the
apparent authority.” Barbee v. Kindred Healthcare Operating, Inc., 2008 WL 4615858 at *6 (Tenn.
Ct. App., Oct. 20, 2008) (quoting S. Ry. Co. v. Pickle, 197 S.W. 675, 677 (Tenn. 1917)). The burden
is on the claimant to show the authority of the agent. Id. (citing John J. Heirigs Const. Co. v. Exide,
5
709 S.W. 2d 604, 608 (Tenn. Ct. App. 1986)). NHRC points only to Mr. Robinson’s “act of
allowing his wife to handle the admissions process” as proof that he intended her to act as his agent.
[Doc. 7, p. 8]. NHRC, however, points to no other evidence that Mr. Robinson was even aware of,
or acquiesced in, his wife’s signing of the DRP and there is no evidence that he took any
affirmative act to clothe her with the appearance of authority.
NHRC, in its rebuttal, cites the case of Necessary v. Life Care Ctrs. of Am., Inc., 2007 WL
3446636 (Tenn. Ct. App., Nov. 16, 2007) as a case very similar to the present case. Factually, the
case is somewhat similar to the present case. In Necessary, the plaintiff, as the surviving spouse,
filed a wrongful death action against a skilled nursing home facility where her husband had died.
The decedent, at the time of admission, was mentally competent; however, the plaintiff signed an
admission agreement on behalf of her husband which contained an arbitration provision. Although
the plaintiff did not hold a written power of attorney, she acknowledged that she had the express
authority of decedent to sign all of the admission documents and make all decisions regarding his
admission to the nursing facility, except one–she did not have authority to sign an arbitration
agreement. Id. at *5. The Court of Appeals found such a position “untenable” and held that the
plaintiff had express authority to sign admission documents at the healthcare facility, including the
arbitration agreement as one of those admission documents. Id. Necessary is clearly distinguishable
from the present case, however. Here, the plaintiff does not acknowledge that she had the express
oral authority of her husband to sign any of the admission documents, including the arbitration
agreement and NHRC points to no evidence establishing by a preponderance of the evidence that
she did.
NHRC also appears to confuse the issue before the Court. NHRC argues that because
6
plaintiff signed the DRP, she is bound by it and its contents are imputed to her. Pointing to the
language of the DRP which provides that the DRP binds a broad group of people, including “your
family,” NHRC argues that plaintiff, as the resident’s wife, is thus bound by the DRP. The question,
however, is not whether plaintiff’s signature to the DRP could bind her but rather whether her
signature on the DRP could bind her husband, i.e., whether Mrs. Robinson had the authority to sign
the admission agreement on behalf of her husband, Mr. Robinson. As noted above, in order to bind
Mr. Robinson, Mrs. Robinson must have had the authority to act as his agent. Thus, NHRC’s
arguments as set forth above are irrelevant.
One other issue raised by NHRC needs to be addressed by the Court. At the end of its
rebuttal, NHRC states that “at the very least, SSC Newport should be allowed to conduct additional
discovery, including the plaintiff’s deposition, related to the implied and apparent authority given
to the plaintiff by Mr. Robinson.” [Doc. 7, pp. 9-10]. It is unclear why NHRC did not request
additional discovery in order to supplement its response to the currently pending motion;
nevertheless, the Court agrees that the record in the matter should be fully developed. As a result,
the denial of NHRC’s motion will be without prejudice to the refiling of the motion after appropriate
discovery is completed. That discovery, however, must take place within the next 120 days. If
NHRC, based upon the discovery done, believes the evidence developed will support its position,
it may seek reconsideration or refile its motion to dismiss and refer to arbitration. The Court will
not further delay the development of the case otherwise, however, and the Clerk is DIRECTED to
schedule a scheduling conference so that an appropriate scheduling order can be entered and a trial
date set.
So ordered.
7
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
8
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?