Massey v. Oasis Health & Rehab of Yazoo City, LLC

269 So.3d 1242

Greg MASSEY, as Personal Representative and for and on behalf of the Estate and Wrongful Death Beneficiaries of Carol Massey, Deceased, Appellant

v.OASIS HEALTH & REHAB OF YAZOO CITY, LLC d/b/a Oasis Health & Rehab of Yazoo City and Coretta Carter, Appellees

NO. 2017-CA-00086-COA

Court of Appeals of Mississippi.

September 4, 2018

ATTORNEYS FOR APPELLANT: JOHN F. HAWKINS, Bay St. Louis, JASON MATTHEW KIRSCHBERG

ATTORNEYS FOR APPELLEES: ANDREW SUTTON BULLOCK, WILLIAM EUGENE GRUBBS

EN BANC.

WILSON, J., FOR THE COURT:

¶ 1. This is another case about an arbitration agreement between a nursing home and a resident.¹ The arbitration agreement in this case was separate from the admission agreement between the resident and the facility. In addition, the arbitration agreement's cover page clearly stated that the agreement was "voluntary and not a condition for admission" to the facility and that the resident could withdraw her consent to arbitrate for any reason within thirty days of signing the agreement.

¶ 2. The resident, Carol Massey, and her husband, Greg Massey, both signed the arbitration agreement, and they did not exercise their right to cancel the agreement. But after Mrs. Massey passed away, Mr. Massey filed a wrongful death lawsuit in the Yazoo County Circuit Court against the facility, Oasis Health & Rehab of Yazoo City (Oasis), and its director of nursing, Coretta Carter. Oasis and Carter then filed a motion to compel arbitration. In response, Massey alleged that the arbitration agreement was unconscionable and that the admission agreement superseded and nullified the arbitration agreement. The circuit court found that the arbitration agreement was valid and enforceable and granted the motion to compel arbitration. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Carol Massey was admitted to Oasis in March 2014. Around the time of her admission, she and her husband, Greg Massey, both signed an admission agreement and a separate arbitration agreement. In various places, the agreements or the parties' signatures are dated March 3, 4, 5, or 14, 2014. The record contains no explanatory affidavits, so it is unclear whether the agreements were signed on different days or in a particular order. The record also contains no information about the circumstances of Mrs. Massey's admission or the age or physical or mental condition of either Mr. or Mrs. Massey at the time of her admission. All we know is that both of the Masseys signed both agreements.

¶ 4. The cover page of the arbitration agreement states:

EXPLANATION

OF

BINDING ARBITRATION AGREEMENT

PLEASE READ CAREFULLY

Under federal and most state laws, two or more parties may agree in writing for the settlement of any disputes through binding arbitration. Arbitration is a method for resolving disputes without involving the courts. This is often referred to as an alternate dispute resolution mechanism that may be more flexible than the court system, and may also be a less expensive and faster alternative for reaching a resolution of issues between parties. In using arbitration proceedings, the disputes are heard by private individuals called arbitrators. The arbitrators are selected by the Resident and/or the Resident's Legal Representative and the Facility. The decision of the arbitrators binds both parties and is final and nonappealable. By entering into this Binding Arbitration Agreement, the parties are giving up and waiving their right to have any claim decided in a court of law before a judge and/or jury.

Please read the attached Resident and Facility Binding Arbitration Agreement very carefully and ask any questions you may have. You may also feel free to consult with an attorney of your choice before signing the attached Agreement. Signing the Agreement is voluntary and not a condition for admission. The Resident may withdraw his or her consent to arbitrate the Resident's claim by notifying the Facility in writing within thirty days after the Resident's signing of the Agreement.

The headings of the cover page were in large, bold font in all capital letters. Greg Massey initialed the cover page, indicating that he had read it or had it explained to him.

¶ 5. The body of the arbitration agreement, which immediately follows the cover page, provides in relevant parts:

RESIDENT AND FACILITY

BINDING ARBITRATION AGREEMENT

("Agreement")

I. The following is an agreement that any and all claims, disputes and/or controversies between the Undersigned and the Facility shall be resolved by binding arbitration.... The parties expressly agree and voluntarily enter into this Binding Arbitration Agreement (the "Agreement"). Further, the Undersigned and the Facility acknowledge and agree that the parties have entered into an Admissions Agreement. The Undersigned and the Facility further acknowledge that the Admissions Agreement evidences a transaction involving interstate commerce .... Therefore intending to be legally bound, the Undersigned and the Facility agree that the Federal Arbitration Act ... ("FAA") will govern this Agreement.

BINDING ARBITRATION

II. (a) Unless otherwise agreed by the parties, the arbitration hearing shall be conducted before a panel of three arbitrators, (selected from the JAMS, The Resolution Experts® ("JAMS") Panel), or another set of arbitration rules to which the parties agree.... The arbitration shall be conducted at a place agreed upon by the parties, or in the absence of such agreement, in the city in which the facility is located. The arbitration hearing and other proceedings relative to the arbitration of the dispute or controversy, including discovery, shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules & Procedures that do not conflict with the FAA (unless otherwise modified herein) which are hereby incorporated into this Agreement, and not by a lawsuit or resort to court process.

(b) The parties agree that damages awarded, if any, in arbitration conducted pursuant to this Agreement shall be determined in accordance with the provisions of the law of the state where this contract is entered applicable to a comparable civil action. The arbitration panel shall have authority to award equitable relief (i.e. relief other than monetary), should the arbitrators so decide.

III. Expenses of the arbitration shall be shared equally by the parties to this Agreement. All matters relating to the arbitration, the arbitration proceedings and the arbitration award, shall remain confidential between the parties. In consideration for this mutual agreement, the parties acknowledge that they will mutually benefit from the speedy and efficient resolution of the dispute or controversy which binding arbitration is expected to provide, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by all parties hereto.

IV. The Undersigned and the Facility agree that the scope of this agreement includes all claims, disputes and/or controversies between the Undersigned and the Facility.

....

ACKNOWLEDGMENTS

I. In the event that any portion of this Agreement will be determined to be invalid or unenforceable, the remainder of this Agreement will be deemed to continue to be binding upon the parties hereto in the same matter as if the invalid or unenforceable provision were not a part of the Agreement.

II. The Undersigned, by signing this Agreement, also acknowledges that the Undersigned has been informed that:

(a) Care, diagnosis or treatment will be provided whether or not the Undersigned signs the Agreement to arbitrate;

(b) The execution of this Agreement is not a precondition to receiving medical treatment or for admission to the Facility;

(c) The Agreement shall not be submitted to the Resident for approval when the Resident's condition prevents the Resident from making a rational decision whether or not to agree;

(d) The decision whether or not to sign the Agreement is solely a matter for the Undersigned's determination without any influence;

(e) The Agreement waives the Undersigned's right to a trial in court, before a judge and/or a jury, for all disputes including those at law or in equity, subject to binding arbitration under this Agreement.

(f) The Undersigned has the right to seek legal counsel concerning execution of this Agreement.

(g) The Undersigned has received two (2) copies of this Agreement and acknowledges that the terms have been explained to him/her or his/her designee by a representative of the Facility.

(h) The Undersigned has had an opportunity to ask questions about this Agreement.

(i) The undersigned has had an opportunity to review the JAMS Comprehensive Arbitration Rules & Procedures made available to the undersigned before signing this Agreement.

(j) No provision of this Agreement is intended to waive or extend applicable Statute of Limitations provided by state law.

¶ 6. Next, the resident's "right to cancel" the arbitration agreement is set out on a separate page within the agreement:

RESIDENT'S RIGHT TO CANCEL RESIDENT AND FACILITY

BINDING ARBITRATION AGREEMENT

I. (a) The Undersigned have the right to cancel this Agreement by notifying the Facility in writing within thirty (30) days after the Undersigned's signing of the Agreement.

(b) The Undersigned may cancel this Agreement by merely writing "CANCELLED" on the face of one of the Undersigned's copies of the Agreement, signing their name underneath, and mailing, by certified mail, return receipt requested, the copy to the Facility within the thirty-day period.

¶ 7. Greg Massey initialed each page of the arbitration agreement, including the notice of the "right to cancel" the agreement, to affirm that he had read the information and/or had it explained to him. Finally, Carol Massey and Greg Massey both signed on the signature page of the agreement. Immediately above their signatures, the agreement states in all capital letters: "The Undersigned acknowledge that each of them has read this entire Agreement and understands that by...