Estate Of Dr. Michael Romney v. Franciscan Medical Group
199 Wash. App. 589
| Wash. Ct. App. | 2017Background
- Plaintiffs (Romney and co-plaintiffs) sued Franciscan Medical Group (FMG) as a putative class for employment-related claims; their employment contracts contained arbitration agreements.
- Plaintiffs challenged the arbitration addenda as unconscionable; trial court invalidated them and FMG appealed; this court reversed and the Supreme Court denied review.
- While the first appeal was pending, plaintiffs sought class discovery; FMG agreed to limited individual discovery but opposed class discovery as premature.
- After remand, FMG moved to compel arbitration but for individual (bilateral) arbitration only; the superior court granted FMG’s motion compelling individual arbitration.
- Plaintiffs appealed, arguing (1) the court should have left the class-arbitration availability question to the arbitrator and (2) FMG waived its right to insist on individual arbitration by litigating as if class proceedings were permissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who decides availability of class arbitration (court or arbitrator)? | Class-availability is procedural and for the arbitrator to decide. | Court should decide gateway arbitrability questions. | Court: availability of class arbitration is a gateway issue of arbitrability for the court absent a clear and unmistakable agreement to delegate. |
| Do the arbitration agreements permit class arbitration? | Silence on class arbitration implies consent; class claims are covered by the agreements. | Agreements are silent and framed in singular terms; silence does not show consent to class arbitration. | Court: silence does not permit class arbitration under Stolt‑Nielsen; no contractual basis to compel class arbitration. |
| Did FMG waive its right to compel individual arbitration? | FMG’s litigation conduct (litigating enforceability, opposing class-discovery only as premature, arguing on appeal as if class aspects mattered) shows inconsistent acts and caused prejudice. | FMG argued it preserved rights and reasonably litigated enforceability first; plaintiffs bore burden to show class arbitration. | Court: FMG waived its right to compel individual arbitration—its conduct was inconsistent with asserting that right and prejudiced plaintiffs. |
| Remedy / disposition | Plaintiffs sought class adjudication or arbitration. | FMG sought individual arbitrations. | Court reversed and remanded: trial court must send the putative class to a single arbitrator under the agreements (i.e., FMG waived right to avoid class arbitration). |
Key Cases Cited
- Howsam v. Dean Witter Reynolds, 537 U.S. 79 (courts usually decide gateway arbitrability questions)
- Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (plurality: arbitrator decides class‑arbitration availability)
- Stolt‑Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (silence does not imply consent to class arbitration)
- Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (review of arbitrator’s decision limited when parties seek confirmation; Court did not adopt inference of consent to class arbitration)
- Reed Elsevier, Inc. v. Crockett, 734 F.3d 594 (6th Cir.) (court decides availability of class arbitration when contract silent)
- Dell Webb Communities, Inc. v. Carlson, 817 F.3d 867 (4th Cir.) (court should decide class arbitration availability due to significant differences from bilateral arbitration)