Opinion
NO. 2016 CW 1402
02-06-2017
"M.L."; AND SON "R.P.", ON BEHALF OF AND AS THE ATTORNEY-IN-FACT OF HIS MOTHER, "A.P." v. MAGNOLIA ASSISTED LIVING, L.L.C.; THOMAS MULLINS, JR.; AND TAMMI DUHON
In Re: Magnolia Assisted Living, L.L.C., Thomas Mullins, Jr., Tammy Duhon, and Essex Insurance Company, applying for supervisory writs, 23rd Judicial District Court, Parish of Ascension, No. 115,842. BEFORE: McCLENDON, WELCH, CRAIN, HOLDRIDGE, AND CHUTZ, JJ.
WRIT DENIED. The language of the arbitration clause does not cover sexual misconduct by an employee of the defendant towards residents of the facility. If residency was intended to cover everything that occurs in the facility, the words "care, or services "would have no meaning and would be superfluous. The arbitration clause is limited to claims due to residence, care, or services. It does not require mandatory arbitration in cases of sexual misconduct by an employee.
GH
WRC
McClendon, J., concurs.
Welch and Crain, JJ., dissent and would grant the writ. Louisiana jurisprudence places a heavy presumption in favor of arbitration. See Aguillard v. Auction Management Corp., 2004-2804 (La. 6/29/05), 908 So.2d 1, 18. The arbitration clause contained in Magnolia Assisted Living, L.L.C.'s Resident Agreement provides that "any and all claims and disputes arising from or relating to [the] agreement, or to [one's] residency, care or services..." shall be subject to binding arbitration. Herein, but for the plaintiffs' residency at Magnolia Assisted Living, L.L.C., the alleged sexual misconduct would not have occurred. Therefore, the instant arbitration clause is sufficiently broad and clear to include Thomas Mullins, Jr.'s alleged actions. See Snyder v. Belmont Homes, 2004-0445 (La. App. 1st Cir. 2/16/05), 899 So.2d 57, 62, writ denied, 2005-1075 (La. 6/17/05), 904 So.2d 699. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT