Opinion
NO. 2012-CA-002003-MR
07-07-2017
GGNSC STANFORD, LLC d/b/a GOLDEN LIVINGCENTER - STANDFORD; GGNSC ADMINISTRATIVE SERVICES, LLC d/b/a GOLDEN VENTURES; GGNSC HOLDINGS, LLC d/b/a GOLDEN HORIZONS; GGNSC EQUITY HOLDINGS, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC d/b/a GOLDEN LIVING; GOLDEN GATE ANCILLARY, LLC d/b/a GOLDEN INNOVATIONS; AND GPH STANFORD, LLC APPELLANTS v. OLIVIA COFFMAN, AS EXECUTRIX OF THE ESTATE OF FLORA WHITE, DECEASED, & ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF FLORA WHITE, DECEASED APPELLEE
BRIEF FOR APPELLANT: Marcia L. Pearson Louisville, Kentucky BRIEF FOR APPELLEE: Richard E. Circeo Robert E. Salyer Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 11-CI-00360 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND MAZE, JUDGES. CLAYTON, JUDGE: This is an appeal from the trial court's decision to vacate its prior order enforcing an Arbitration Agreement between the parties. Based upon the following, we affirm the decision of the trial court.
BACKGROUND INFORMATION
Flora White became a resident at Golden Living Center-Stanford (GLC-Stanford or "the facility") when her daughter, Olivia Coffman, admitted her. White was incapacitated, so Coffman admitted her as her attorney-in-fact. Coffman was White's attorney-in-fact pursuant to a durable power of attorney which sets forth as follows:
. . . I, FLORA CARSON WHITE, . . . hereby make, constitute and appoint my daughter, OLIVIA COFFMAN, . . . as my true and lawful attorney in fact for me and in my name, place and stead:
To take possession of any and all moneys, goods, chattels and effects belonging to me, wheresoever found; to draw, collect and receive any and all moneys on deposit to take my credit in any bank or wheresoever located; To take charge of my person in case of sickness or disability of any kind, and to remove and place me in such institutions or places as she may deem best for my personal care, comfort, benefit and safety; and for said purposes to use and disburse any or all of said bank deposits, moneys and other personal property; and to endorse any instrument and any contracts on my behalf for my benefit.
While admitting her mother, Coffman executed an agreement with the facility a part of which was a three page, double-sided, separate document titled, "ALTERNATIVE DISPUTE RESOLUTION AGREEMENT" (ADR Agreement). The agreement set forth that it was not a condition of admission or continued residency at the facility. The ADR Agreement provided as follows:
This agreement applies to any and all disputes arising out of or in any way relating to this Agreement or to the Resident's stay at the Facility or the Admissions Agreement between the Parties that would constitute a legally cognizable cause of action in a court of law sitting in the state where Facility is located. Covered Disputes arising from one Party's failure to satisfy a financial obligation to the other Party; . . . negligence, gross negligence, malpractice and any alleged departure from any applicable federal, state, or local medical, health care, consume, or safety standards.
In August of 2011, Coffman brought suit in the Lincoln Circuit Court as the Personal Representative of White asserting causes of action for negligence, medical negligence, corporate negligence, wrongful death and violations of Kentucky's Residents' Rights statute, KRS 216.515, et seq. The Appellants moved for a dismissal of the claims and for the trial court to enforce the ADR Agreement. The trial court then issued an Enforcement Order setting forth that the defendants had met their burden of proof and that the ADR Agreement was enforceable.
The Kentucky Supreme Court thereafter issued an opinion in Ping v. Beverly Enters., Inc., 376 S.W.3d 581 (Ky. 2012). After the ruling, the trial court vacated its Enforcement Order and the Appellants initiated this appeal.
STANDARD OF REVIEW
Pursuant to the Kentucky Arbitration Act and the Federal Arbitration Act, a party seeking to compel arbitration pursuant to an arbitration agreement, has the initial burden of establishing the validity of the agreement. Ping, supra; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850 (Ky. 2004). "Unless the parties clearly and unmistakably manifest a contrary intent, that initial showing is addressed to the court, not the arbitrator, First Options, and the existence of the agreement depends on state law rules of contract formation." Ping at 590; Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). An appellate court reviews the trial court's application of those rules de novo, although the trial court's factual findings, if any, will be disturbed only if clearly erroneous. Ping at 590; North Fork Collieries, LLC v. Hall, 322 S.W.3d 98, 102 (Ky. 2010).
DISCUSSION
In Ping, supra, the Kentucky Supreme Court held that:
[A]n agent's authority under a power of attorney is to be construed with reference to the types of transaction expressly authorized in the document and subject always to the agent's duty to act with the "utmost good faith." Wabner, 7 S.W.3d at 381. This is consistent with section 37 of the Restatement (Second) of Agency, which provides thatPing at 592.
(1) Unless otherwise agreed, general expressions used in authorizing an agent are limited in application to acts done in connection with the act or business to which the authority primarily relates.
(2) The specific authorization of particular acts tends to show that a more general authority is not intended.
As in Ping, Coffman was granted a durable power of attorney to take care of any health care issues her mother would encounter should she become incapacitated. During the admission process, the ADR Agreement was given to Coffman as a separate document which, as stated above, explicitly set forth that White's admission was not contingent upon the signing of the ADR Agreement.
In the Ping case, the Court based its decision on the fact that the ADR Agreement was not a requirement for admission:
Our conclusion that Ms. Ping was not authorized to bind her mother to Beverly Enterprises' optional Arbitration Agreement is in accord with the decisions of other courts confronted with the same issue. On the one hand, where an agreement to arbitrate is presented to the patient as a condition of admission to the nursing home, courts have held that the authority incident to a health-care durable power of attorney includes the authority to enter such an agreement. On the other hand, where, as here, the arbitration agreement is not a condition of admission to the nursing home, but is an optional, collateral agreement, courts have held that authority to choose arbitration is not within the purview of a health-care agency, since in that circumstance agreeing to arbitrate is not a "health care" decision. (Citations omitted.)Ping at 593.
We agree with the trial court that the Ping decision is controlling and the ADR Agreement was not enforceable. We affirm the decision of the trial court to vacate the Enforcement Award and remand this action.
ALL CONCUR. BRIEF FOR APPELLANT: Marcia L. Pearson
Louisville, Kentucky BRIEF FOR APPELLEE: Richard E. Circeo
Robert E. Salyer
Lexington, Kentucky