FI-POMPANO REHAB, LLC d/b/a POMPANO HEALTH & REHAB, etc. v. MARJORIE IRVING, etc., ESTATE OF MERCEDES NESBETH
221 So. 3d 781
| Fla. Dist. Ct. App. | 2017Background
- Mercedes Nesbeth was admitted to Pompano Health and Rehabilitation Center; 34 days after admission her daughter and POA, Marjorie Irving, signed the facility’s Resident Admission Agreement on her behalf, which included a "voluntary" arbitration provision.
- The arbitration clause explained arbitration, referenced the Federal Arbitration Act, stated each party bears its own attorneys’ fees, and provided that arbitration could be revoked in writing within three days and was not a condition of care.
- Nesbeth died while a resident; Irving, as personal representative, sued the facility under Chapter 400, Florida Statutes, alleging statutory violations.
- Pompano Rehab moved to compel arbitration based on the signed admission agreement; Irving opposed, arguing the arbitration clause was unconscionable because it was presented and signed after admission (relying on Romano).
- The trial court denied the motion to compel arbitration, citing Romano, Shotts, and Gessa; Pompano Rehab appealed.
- The Fourth DCA reviewed de novo the legal construction of the arbitration provision and reversed, directing the trial court to compel arbitration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of arbitration agreement (procedural unconscionability) | Irving: presenting and obtaining signature on arbitration after admission is unconscionable and coerced (citing Romano). | Pompano Rehab: clause was voluntary, clearly stated signing was not a precondition to care and could be revoked within 3 days. | Court: procedural unconscionability not shown; Romano distinguishable because here the admission form itself warned signing was voluntary. |
| Substantive unconscionability (cost-splitting) | Irving: requirement that parties equally share arbitrator costs frustrates Chapter 400 and denies indigent residents access to remedies. | Pompano Rehab: cost-splitting does not eliminate statutory causes of action or cap damages; no evidence costs were prohibitive. | Court: not raised below but assessed and found no substantive unconscionability; clause did not limit statutory remedies or damages and no evidence costs preclude access. |
| Public policy challenge | Irving: arbitration clause (cost-sharing) violates public policy protecting nursing-home residents’ remedies. | Pompano Rehab: clause does not waive punitive damages or cap non-economic damages and thus does not violate public policy. | Court: clause does not violate public policy because it does not limit statutory remedies or damages. |
| Enforceability / motion to compel arbitration | Irving: arbitration unenforceable due to unconscionability and coercive timing. | Pompano Rehab: motion to compel should be granted; arbitration agreement valid. | Court: reversed trial court and remanded with directions to compel arbitration. |
Key Cases Cited
- Romano v. Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2003) (procedural unconscionability where arbitration presented post-admission among multiple documents without clarity that signing was voluntary)
- Shotts v. O.P. Winter Haven, Inc., 86 So. 3d 456 (Fla. 2011) (arbitration clause that waived punitive damages violated public policy protecting nursing-home residents)
- Gessa v. Manor Care of Fla., Inc., 86 So. 3d 484 (Fla. 2011) (arbitration clause placing caps on non-economic damages and waiving punitive damages violates public policy)
- Basulto v. Hialeah Auto., 141 So. 3d 1145 (Fla. 2014) (party seeking to avoid arbitration bears burden of proving unconscionability)
- Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019 (Fla. 4th DCA 2005) (distinguishing procedural and substantive unconscionability)
- BDO Seidman, LLP v. Bee, 970 So. 2d 869 (Fla. 4th DCA 2007) (standards of review on motions to compel arbitration)
- Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin, 122 So. 3d 916 (Fla. 2d DCA 2013) (arbitration agreement enforceable despite post-admission signing and cost-sharing where no evidence costs were prohibitive)
- Alterra Healthcare Corp. v. Bryant, 937 So. 2d 263 (Fla. 4th DCA 2006) (substantive unconscionability found where arbitration clause limited remedies such as punitive damages)