Doe v. Carmel Operator, LLC

144 N.E.3d 743

Jane DOE 1, as Legal Guardian of the Person and Estate of Jane Doe 2, an Incapacitated Adult, Appellant-Plaintiff,

v.CARMEL OPERATOR, LLC d/b/a Carmel Senior Living, et al., Appellees-Defendants.

Court of Appeals Case No. 19A-CT-2191

Court of Appeals of Indiana.

FILED March 17, 2020

Attorney for Appellant: Ashley N. Hadler, Garau Germano, P.C., Indianapolis, Indiana

Attorney for Amicus Curiae Indiana Trial Lawyers Association: James E. Stoltz, Gerling Law Offices, P.C., Evansville, Indiana

Attorneys for Appellees Carmel Operator, LLC & Spectrum Retirement Communities, LLC: Rafael P. McLaughlin, Katherine M. Haire, Reminger Co., LPA, Fort Wayne, Indiana

Attorneys for Appellee Certiphi Screening, Inc.: Chad J. Kaldor, Peter T. Tschanz, Littler Mendelson, P.C., Columbus, Ohio

Attorneys for Appellee Michael Damon Sullivan: David G. Field, Jeffrey M. Kraft, Schultz & Pogue, LLP, Indianapolis, Indiana

Bailey, Judge.

Case Summary

[1] Jane Doe I ("Guardian"), as legal guardian of the person and estate of Jane Doe II ("Resident"), an incapacitated adult, appeals the trial court order compelling arbitration of Resident's claims against Carmel Operator, LLC, d/b/a Carmel Senior Living ("CSL"), Spectrum Retirement Communities ("Spectrum"), Michael D. Sullivan ("Sullivan"), and Certiphi Screening, Inc. ("Certiphi").

[2] We affirm.

Issues

[3] Guardian raises two issues on appeal which we restate as follows:

1. Whether the trial court erred by enforcing the arbitration agreement and compelling arbitration of Resident's claims against CSL, Spectrum, and Sullivan¹ despite Guardian's claim that the agreement is unconscionable.

2. Whether the trial court erred by enforcing the arbitration agreement and compelling arbitration of Resident's claims against Certiphi based upon equitable estoppel.

Facts and Procedural History

[4] Prior to June 1, 2018, seventy-seven-year-old Resident was a resident of Wellbrooke of Wabash, an assisted living facility located in Wabash, Indiana. On approximately May 1, 2018, Wellbrooke of Wabash advised Guardian that it could no longer care for Resident due to Resident's tendency to elope from the facility. Guardian was provided until the end of the month to find new accommodations for Resident.

[5] On May 7, Guardian contacted CSL, and she visited the facility on May 8. Guardian informed CSL that she had also toured other facilities in search of a placement for Resident. Guardian authorized a nurse at CSL to assess Resident on or about May 16, 2018. The assessment revealed serious cognitive issues and memory impairment, and CSL was concerned that Resident would be at risk for elopement from its unsecured unit. Because Guardian did not want to place Resident in a secured facility, CSL agreed to accept Resident into its unsecured unit on the conditions that Resident, upon arrival, had to tour the memory care unit and, if Resident attempted to elope, she would be transferred to that memory care unit. Guardian agreed to those terms.

[6] On May 23, 2018, Guardian went to CSL's facility, paid a deposit, and received a move-in packet. Resident's scheduled move-in date was June 4, 2018. On the morning of May 31, CSL e-mailed an Assisted Living and Memory Care Residency Agreement ("Residency Agreement") to Guardian. CSL requested that Guardian either come to CSL to execute the agreement or that she print, sign, and return it.

[7] Guardian subsequently contacted CSL and scheduled a meeting for 1:00 p.m. on June 1, 2018, in order to review and sign the Residency Agreement, among other things. Guardian was unable to make that appointment; however, at approximately 4:45 p.m. that day, she delivered a copy of the Residency Agreement that she had already executed, along with two lease checks, to a CSL move-in coordinator. At that time, CSL provided Guardian with a copy of the Residency Agreement that had been signed by Rita Shew ("Shew"), the Executive Director of CSL, and Guardian "was told to sign the Residency Agreement." App. Vol. III at 171.² At that time, Guardian also received the keys to Resident's apartment. CSL did not explain the Residency Agreement to Guardian, and Guardian did not ask CSL for any explanations of the Residency Agreement. On June 4, 2018, Shew signed the Residency Agreement that Guardian had signed and provided to CSL on June 1. Resident moved into CSL on June 4.

[8] The Residency Agreement was twenty-two pages long, exclusive of the table of contents and addenda. The agreement contained approximately sixty-one pages of addenda. Section III of the agreement stated in relevant part: "You may terminate this Residency Agreement at any time, with or without cause, by giving thirty (30) days prior written notice to the Community's Executive Director, or such other person as the Executive Director may designate ...." Section V(J) of the agreement stated in relevant part: "This Residency Agreement shall be construed and enforced in accordance with the laws of the State in which the Community is located and shall be binding upon and inure to the benefit of the parties hereto ...." App. V. II at 58. Section V(L) of the agreement stated, in relevant part:

If the person signing this Residency Agreement is not the Resident, the Community both requires and relies upon the representation by the person that signs this Residency Agreement, as Legal Representative, that he or she has been authorized by the Resident to enter into and bind the Resident to each and every one of the terms and conditions of this Residency Agreement, both financial and non-financial, without any restriction whatsoever. This authorization expressly includes but is not limited to the authority to bind the Resident to the Binding Arbitration Agreement....

Id. at 59.

[9] Section VII of the Residency Agreement was entitled, in bold capital letters, "BINDING ARBITRATION AGREEMENT " (Arbitration Agreement). Id. at 63. The Arbitration Agreement stated, in relevant part:

THIS AGREEMENT GOVERNS IMPORTANT LEGAL RIGHTS. PLEASE READ IT CAREFULLY AND IN ITS ENTIRETY BEFORE SIGNING IT.

The parties wish to work together to resolve any disputes in a timely fashion and in a manner that they believe will minimize both of their legal costs. Therefore, in consideration of the mutual promises in this Agreement, the Community and the Resident hereby agree as follows:

A. What is Arbitration?

... In arbitration, the disputes are heard and decided by a private individual called an arbitrator. The disputes will not be heard or decided by a judge or jury under any circumstance. However, just as in a court case, each party can be represented by an attorney.

B. Disputes to be Arbitrated

Any and all claims or controversies involving the Community, Resident and/or Legal Representative arising out of or in any way relating to this Arbitration Agreement or any of the Resident's stays at the Community, including all disputes raised by the Community, Resident or Legal Representative regarding enforcement or interpretation of this Agreement, and including but not limited to all disputes involving questions of waiver, unconscionability, voidability or arbitrability, whether arising out of State or Federal law, whether existing now or in the future, whether sounding in breach of contract, tort or breach of statutory duties (including, without limitation, claims based on personal injury or death or claim for unpaid Community charges), regardless of the basis for any duty or of the legal theories upon which the claim is asserted, shall be submitted to and resolved by binding arbitration. This includes claims against the Community, its employees, agents, officers, directors, any parent, subsidiary or affiliate of the Community.

C. Binding Nature of Arbitration

The decision rendered by the arbitrator shall be final and binding, ... There shall be no appeal of the arbitrator's decision by either party. The decision of the arbitrator shall be binding on all parties to the arbitration, and all persons whose claim is derived through or on behalf of the Resident, including, but not limited to, any claims on behalf of any ... guardian, ... [or] legal representative ... of the Resident. The parties agree and acknowledge that any award issued pursuant to an arbitration hearing shall not include any amount for exemplary or punitive damages.

D. Who Will Conduct Arbitration

* * * In the event that a dispute arises, a written demand for arbitration shall be made by the person(s) (the "Claimant" or "Claimants") asserting that a dispute exists ....

* * *

... The Claimants and Respondents shall agree upon an Arbitrator ....

* * *

The Arbitrator shall resolve all disputes between the Claimants and Respondents, without any restriction whatsoever, as it is the parties' intent to completely avoid the court system in such matters.

* * *

E. Laws Governing Arbitration

The parties agree that the Community is engaged in interstate commerce and that this Agreement to arbitrate disputes and the arbitration shall be governed by the Federal Arbitration Act. If for any reason there is a finding that the Federal Arbitration Act cannot be applied to this Agreement, then the parties hereby make it clear their intent that their disputes/claims be resolved pursuant to the arbitration section of the Revised Code or such similar statutes of the state in which the Community is located.

F. Confidentiality

You and Your Legal Representative and the Community agree to keep all arbitration proceedings strictly confidential, ...

G. Survival and Durability Provision

This Agreement shall survive the termination of, and changes to, the Assisted Living Residency Agreement and Addenda and shall apply to any of the Resident's admissions to the Community. If any term, phrase, or portion thereof of this Arbitration Agreement is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.

Id. at 63-65 (emphasis original).

[10] At the end of the Arbitration Agreement, there is a line for the initials of the...