Thе trial court granted defendant hospital’s motion for accelerated judgment pursuant to GCR 1963, 116.1(2) on the ground that the court lacked subject-matter jurisdiction because the plaintiffs decedеnt, Maddalena Aluia, had entered into a binding arbitration agreement. Plaintiff appealed from the grant of accelerated judgment and the trial court’s findings that the plaintiff’s decedent was рresumed to understand the agreement which she signed and that the medical malpractice arbitration act, MCL 600.5040
et seq.;
MSA 27A.5040
et seq.,
was constitutional. This Court reversed the trial court, finding the act unconscionablе and/or unconstitutional. (Docket No. 55819, decided August 20, 1982 [unreported].) The question of the validity of the agreement was not addressed by this Court. Defendant hospital filed an application for leаve to appeal as cross-appellant to the Michigan Supreme Court. The application was held in abeyance pending decision in
Morris v Metriyakool,
The following facts аre drawn from the pleadings and affidavits contained in the record. Maddalena Aluia was admitted into Harrison Community Hospital on August 10, 1978. At the time of admission she was given an arbitration agreement form аnd a patient arbitration information book *745 let. Since she spoke very little English, her son translated what the admissions personnel said into Italian, her native tongue. She had a minor operatiоn on August 15, 1978. Later that day she fell in the hospital and bruised her arm. Her condition deteriorated and on August 21, 1978, Maddalena Aluia died.
An affidavit by decedent’s son, Gene Aluia, states that he accompanied his mother to the hospital and translated what was said by the hospital personnel about the arbitration agreement for his mother. Gene Aluia stated that he did not fully understand what was being said and therefore he did not feel he could adequately convey what was said to his mother. An affidavit by Margaret Coughlin, the admissions officer at Harrison Hospital, indicates that she stated the following tо Maddalena Aluia when she presented the arbitration agreement to her:
" 'This is the arbitration form — if you are familiar with it and care to sign it you may.
" 'Every doctor’s office and hospital in the State of Michigan must offer arbitration to it’s patients. All it says is — that if you are unhappy with the care you receive here, by signing this (indicating the paper) you have the right to arbitration. If you change your mind you have sixty (60) days after your discharge to cancel the agreement, in writing.’ ”
Coughlin further stated in her affidavit that if a patient did not understand English, the information would have been conveyed to a friend or rеlative who would have translated it for the patient.
The issue in this case is whether decedent may be presumed to have known the contents of the agreement she signed. The trial court answered this question in the affirmative.
*746 We disagree with the trial court’s ruling and reverse. The issue here is whether plaintiffs decedent knowingly, voluntarily and intelligently waived her constitutional right to a jury trial by signing the arbitration agreement in question. Due to the peculiar factual context of this case and the important right to a jury trial which was waived by the agreement we do not believe that the matter may be summarily disposed of by use of the convenient presumption that a person always knows the contents of an agreement he signs. A factual dispute was raised here which made accelerated judgment improper.
The question of what constitutes a knowing, voluntary and intelligent waiver of the right to a jury trial when signing a medical malpractice arbitration agreement was not addressеd in the Michigan Supreme Court justice’s opinions in Morris, supra. The lead opinion by Justice T. G. Kavanagh, in which he was joined by Justice Levin, briefly addressed the question of who must bear the burden of persuasion in showing the vаlidity of the waiver. Morris, supra, p 439. Chief Justice Williams only addressed the issue of the constitutionality of the composition of the arbitration panels. Morris, supra, pp 442-443. Justice Ryan, joined by Justice Brickley, specifically declined to address this issue. Morris, supra, p 474. Justice M. F. Cavanagh limited his discussion to the composition of the panel in his dissenting opinion. Justice Boyle did not participate in the decision. The only issue squarely addressed in all of the opinions was the constitutionality of the composition of the arbitration panels. The opinions in Morris are therefore not dispositive of the issue now before this Court.
The case under consideration here was an action for accelerated judgment brought pursuant to GCR
*747
1963, 116.1(2). A demand for jury trial had been made and affidavits were submitted pursuant to GCR 1963, 116.3. Defendant hоspital claimed that jurisdiction was lacking because of the arbitration agreement. However, accelerated judgment is improper where a factual dispute exists on a matеrial issue.
Lefever v American Red Cross,
The factual issue is whether decedent intentionally waived her right to a jury trial. In
Johnson v Zerbst,
In this case there is a material dispute about whether there was an "intentional relinquishment or abandonment of a known right or privilege”. There can be no presumption that a party acquiesces to the loss of a fundamentаl right.
Ohio Bell Telephone Co v Public Utilities Comm of Ohio,
We are aware of the significant authority which states that a party’s lack of understanding of the language and contents of a contract which is voluntarily executed is not, in the absence of fraud, grounds for avoiding it. 17 CJS, Contracts, § 139, p 885. It is well settled that where a person cannot read the language in which a contract is written, it is ordinаrily as much his duty to procure someone to read it to him as it would be to read the agreement before signing, were he able to do so. Failure of a party to obtain a reading and explanation is ordinarily negligence which will estop the party from avoiding the contract on the ground that the party was ignorant of the contract’s provisions. 17 CJS, Contracts,
supra,
p 886. However, our examination of the cases in Michigan which have applied this rule shows that a waiver of a constitutional right has never been an issue in the contracts involved in those cases.
Cleaver v Traders’ Ins Co,
This case is remanded for a hearing in conformity with GCR 1963, 116.3 to determine if decedent made a knowing, informed waiver of her rights when she signed the agreement.
Reversed and remanded for proceedings consistent with this opinion. We retain no further jurisdiction.