It has become standard for nursing homes and assisted care facilities in Florida to require new patients and/or their family members to sign arbitration agreements upon admission. These agreements are designed with the intention of patient signing away the right to sue in the event of nursing home abuse, mistreatment, neglect or other violation of rights.
Although they are binding contracts, courts in Florida are increasingly refusing to accept the validity of these arbitration agreements on the grounds they are unconscionable or that the individual who signed on the patient’s behalf did not have the legal authority to do so.
It is critical for those exploring a nursing home abuse lawsuit to discuss the arbitration issue with an experienced injury lawyer because the avenue in which a case is decided could have a significant impact on the outcome. Arbitration tends to result in substantially less favorable results for plaintiffs. The damage awards are lower and the likelihood of winning is also less. It’s worthwhile to fight for your right to have the case heard in a court of law.
In the recent case of Reinshagen v. WRYP ALF, LLC, Florida’s 5th District Court of Appeal tossed the trial court’s order granting the nursing home defendant’s motion to compel arbitration in a nursing home abuse lawsuit.
According to court records in the case, plaintiff alleged decided died of injuries that resulted from nursing home negligence and violations of decedent’s statutory rights under F.S. 429. The 92-year-old decedent died in August 2013 at a facility in Palm Harbor. A WWII Army Air Corps veteran, he worked for years as a quality control engineer for commercial vehicle systems companies.
Court documents in this case do not spell out the specific allegation made by plaintiff, only that after the lawsuit was filed, defendant sought to compel arbitration. The trial court granted that request, but the appellate court has now reversed, based on its March ruling in Estate of Novosett v. Arc Villages II, LLC. In that case, the court determined that the agreement contained a damage cap that was unenforceable and further that went to the financial heart of the agreement. Because the court concluded the issue of damage caps and the rest of the agreement were not severable, the entire agreement had to be tossed.
The court based its decision on the 2011 decision by the Florida Supreme Court in Gessa v. Manor Care of Florida, Inc. The Gessa case involves a nursing home arbitration agreement that capped non-economic damages at $250,000 and waived punitive damages. The court ruled that offensive clauses – in that case a limitation on liability provision that violates public policy – is not severable from the main agreement. It was concluded that with the damage cap provision severed, the trial court would have a tough time concluding with reasonable certainty that the remains of the contract were still valid legal promises on both sides.
In the Reinshagen case too, there was a provision that placed a damage cap on any awards that might be doled out after arbitration or litigation. Therefore, the appeals court reversed and remanded – and also certified a question to the Florida Supreme Court. The question is whether the holding in Gessa controls where the arbitration contains a severability clause. That is, does the mere existence of a severability clause mean the contract is not valid?
The answer handed down could affect a large number of future cases.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Reinshagen v. WRYP ALF, LLC, April 29, 2016, Florida’s Fifth District Court of Appeal
More Blog Entries:
1st DCA Tosses Florida Workers’ Compensation Attorney Fee Caps, May 7, 2016, Fort Myers Nursing Home Abuse Lawyer Blog