Dea v. PH Fort Myers, LLC: Complexities of Enforcing Arbitration in Assisted Living Facility Context

Arbitration Mediation

The Florida Second District’s recent opinion in Estate of Dea v. PH Fort Myers, LLC et al. illustrates the complexity of enforcing arbitration in the assisted living / long term care context which requires consistent lawyering in writing arbitration clauses, admission agreements, and agreements for the sale of businesses as well as good lawyering in the courtroom establishing and introducing evidence to enforce arbitration.

In this case, the Resident was admitted to the facility in 2013 but the facility was sold a year later in 2014.  The new owner (Lamplight) sought to enforce the arbitration clause between the original owner (Emeritus) and the Resident.  That agreement was not signed by the Resident but her second son; the first son was the POA but it was listed that the second son could act as POA if the first son was unable or unwilling.  Lamplight sought to amend the initial admission agreement, rather than execute a new document, and oddly referenced a purported April 2014 agreement which was never introduced into evidence.

The Second District could not find enough reasons to deny enforcement of arbitration.  It is hard to assess whether this involved some sort of strategy (choosing not to review the sales agreement for some reason) or a lack of thoroughness in discovering, establishing, and introducing evidence (and/or it could simply be some of these documents never existed).  First, the original contract did not mention successors-in-interest, a fairly standard provision in contracts.  Second, the new owner sought to amend the original agreement and/or execute a new agreement but, for reasons not clearly explained, that failed and/or those documents don’t exist.  Third, the new owner introduced no evidence that the first son was unavailable or unwilling to act as POA in order to give the second son authority to sign the agreement.

 

Arbitration Mediation
Before Delegating Arbitrability to Arbitrator, Supreme Court Must Decide FAA Exclusions (New Prime, Inc. v. Oliveira)

The case of New Prime, Inc. v. Oliveira is the second arbitration / delegable / arbitrability question which the U.S. Supreme Court decided in a week. This case may have limited application to disputes involving transportation workers however it is worth discussing to ensure a clear understanding the delegation of …

Arbitration Mediation
“I Like Arbitration,” Says Justice Kavanaugh in His First Opinion on Arbitrability (Schein v. Archer & White)

Justice Kavanaugh issued his first Supreme Court opinion (unanimous) which helped streamline enforcement of arbitration AND provided contract-drafting lawyers some model arbitration language (which, as we’ll see, still needs some work). The question before the Court was whether a trial court could still decide the threshold question of “arbitrability” — …

Arbitration Mediation
Drafting Arbitration Agreement in Florida To Reference AAA or Other Arbitration Rules (Adkins v. Memorial Motors)

When drafting an arbitration agreement, a party often may want the matter to be heard by a professional arbitration panel, such as AAA or JAMS. However, from time-to-time, some of these groups have declined to hear matters governed by pre-incident arbitration waivers in consumer agreements. How do you write a …