W. J. BAKER, Plаintiff and Respondent, v. LAWRENCE BIRNBAUM, Defendant and Appellant.
No. B024880
Second Dist., Div. Four.
June 21, 1988.
202 Cal. App. 3d 288
Keenan & Tobin and P. Dennis Keenan for Defendant and Appellant.
Harney, Wolfe, Shaller & Carr, Frederick C. Shaller and Thomas Kallay for Plaintiff and Respondent.
WOODS, P. J. — This is an appeal from an order denying a motion to compel arbitration. The motion was brought by Lawrence Birnbaum, a physician, named as a defendant in a complaint filed by B. H. Baker, for professional negligence, and by her husband, respondent, W. J. Baker, for loss of consortium. The motion was based on an agreement to arbitrate signed by Mrs. Baker which apрellant contends also bound Mr. Baker, a nonsignatory. The motion was granted as to Mrs. Baker but denied as to Mr. Baker.
Few substantive facts appear in the record. It seems, however, that in November 1984, Mrs. Baker underwent surgery by appellant to rеplace breast implants which appellant had previously placed in her breasts. Prior to the 1984 surgery, Mrs. Baker signed an agreement to arbitrate “any dispute as to medical malpractice. . . .” The agreement purported to bind Mrs. Baker and “anyone else who may have a right to assert a claim on [her] behalf . . .” as well as other persons for whom she had responsibility, such as her spouse and any children.
Mrs. Baker was subsequently diagnosed as having cancer. In 1986, she filed thе instant action against appellant. She alleged professional negligence in the medical care rendered by Dr. Birnbaum from November 1984 through December 1985. Additionally, Mr. Baker alleged a claim for loss of consortium. Only Mr. Baker is involved in this appeal.
Appellant answered and raised 12 affirmative defenses. The 12th alleged that Mrs. Baker was barred from bringing her action by virtue of the 1984 agreement to arbitrate. No comparable defense was explicitly raised with respect to Mr. Baker‘s claim.
Based on admissions by Mrs. Baker that she had signed agreements to arbitrate in both 1977 and 1984, appellant moved to compel arbitration as to both the Bakers.1 The motion was granted as to Mrs. Baker but denied as to Mr. Baker, thе court concluding, “Mr. Baker is not bound by an agreement he did not sign.”
This appeal followed. We affirm the order of the trial court.
As Rhodes suggests, public policy favors arbitration аs an expeditious and economical method of dispute resolution which relieves crowded civil court calendars. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706-707 [131 Cal.Rptr. 882, 552 P.2d 1178].) Arbitration assumes, however, an election by the parties involved to use it as an alternative to the judicial process. A party cannot be compelled to arbitrate a dispute it has not elected to submit. (Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 355 [133 Cal.Rptr. 775, 84 A.L.R.3d 343].)
Both these considerations are reflected in
“In general, section 1295 insulates certain medical service contracts containing arbitration clauses against attack on grounds they are adhesive, unconscionable, or otherwise improper. In order to be so insulated, the contract must contain prominent nоtice, in statutory language, of the arbitration clause. Its purpose is to give people signing such agreements the forewarning that they are relinquishing the right to a jury or court trial if a malpractice issue arises. [Citation.]” (Dinong v. Superior Court (1980) 102 Cal.App.3d 845, 849 [162 Cal.Rptr. 606].)
We find appellant‘s reliance on the Hawkins decision as authority, in support of his argument that Ms. Baker had the implied authority to bind respondent to arbitrate, misplaced. In Hawkins, deceased husband had enrolled his wife and himself in а Kaiser health plan. The plan provided that the family would be bound by the master contract applicable to the type of coverage applied for. The master contract provided in pertinent part: “‘Any claim arising from the violation of a legal duty incident to this Agreement shall be submitted to binding arbitration, . . .‘” (89 Cal.App.3d at p. 415.) The Hawkins court concluded that these facts equated with Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d 699, in that husband was empowered to contract for wife in this situation and she was bound by the arbitration provision.
This, however, is not the situation before us. Mrs. Baker contracted for medical care solely on her own behalf, and the agreement to arbitrate related only to such services as would be provided to her under that contract.
The case before us is governed by Rhodes v. California Hospital Medical Center, supra, 76 Cal.App.3d 606, relied on by respondent. In Rhodes, a woman entering a hospital signed an agreement to arbitrate. A second such agreement was signed on her behalf by her husband, apparently because of some question about her competency. Later, when her husband and son brought a wrongful death action against the hospital, the hosрital moved to compel arbitration based on these agreements. We affirmed the order of denial.
Our decision rested upon the simple proposition set forth at the outset of this opinion, that the policy favoring arbitration “dоes not extend to those who are not parties to an arbitration agreement or who have not authorized anyone to act for them in executing such an agreement.” (Id., at p. 609.) This holding applies with equal force to the case befоre us.
Moreover, contrary to appellant‘s assertion, there is nothing on the face of the 1984 contract that extends it to any claim by Mr. Baker. In examining the agreement we “attempt to give effect to the parties’ intentions, in light of thе usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made. [Citation.]” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353 [169 Cal.Rptr. 830].) As we have discussed, it seems clear from paragraph 3 of the 1984 agreement
Clearly, under our decision in Rhodes, the trial court properly denied appellant‘s motion as to Mr. Baker.
Appellant has also relied on Division Five‘s decision in Herbert v. Superior Court (1985) 169 Cal.App.3d 718 [215 Cal.Rptr. 477], in his effort to persuade us that respondent should be compelled to arbitrate this claim. Even though it is distinguishable on several points, Herbert is nonetheless at odds with our holding here.
Herbert involved a wrongful death action brought by a widow and her eight children against a group health care provider. The decedent, husband and father, had enrolled himself, his wife and five minor children in the group health plan. Three adult children were not members of the plan. The health plan contained an arbitration clause. The appellate court held that not only were the wife and minor children bound by the arbitration clause but the adult children, whom the trial court had excluded, were also bound.
Relying on principles expounded in the Doyle and Hawkins decisions, the Herbert court reasoned that the decedent had the implied authority to bind his wife and minor children to the arbitration clause contained in his group medical coverage based on their fiduciary relationship and his right and duty to provide for their medical care.
The court went further and concludеd that the arbitration clause contained in the contract executed by Mr. Herbert also bound his adult children, nonmember heirs, to arbitrate their claims.
The court reasoned that the arbitration clause contained in the negotiated grоup health care plan was of the type approved by the Supreme Court in Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d 699, and that this was significant because both those plans, unlike individual contracts for medical services, were negotiated from a parity of bargaining power. The arbitration provisions in such contracts negotiated “between parties possessing parity of bargaining strength” are therefore not contracts of adhesion. (Herbert v. Superior Court, supra, 169 Cal.App.3d at pp. 724-725, citing Madden v. Kaiser Foundation Hospitals, supra, at p. 703.) Madden
Herbert reasoned that since a single cause of action exists in the heirs for the wrongful death of a decedent, the nonsignatory heirs should not bе allowed to split the litigation into different tribunals. The court also relied on
The case before us is distinguishable from Herbert for, by implication, Herbert acknowledges that an individual contract for medical services, as is involved here, should be more rigorously analyzed and less quickly applied to the claims of a nonsignatory. (See also Hawkins v. Superior Court, supra, 89 Cal.App.3d at p. 418 [distinguishing Rhodes on the basis that it involved an individual contract not a group health plan]; Dinong v. Superior Court, supra, 102 Cal.App.3d at pp. 852-853 [noting greater statutory protection for those signing individual contracts for medical services].)
We must expressly decline to follow Herbert, however, in that it, as appellant argues, would apparently attempt, even in this situation, to force respondent herein to arbitrate solely to avoid litigation of these claims in two diffеrent tribunals.
We consider the respondent‘s exercise of his right to a jury trial paramount to the court‘s convenience in having all parties litigate in a single action.
The order is affirmed. Respondent to recover costs.
McClosky, J., concurred.
GEORGE, J. — I concur in the judgment of the court and in the reasoning set forth in the majority оpinion except for its criticism of the opinion of Division Five of this court in Herbert v. Superior Court (1985) 169 Cal.App.3d 718 [215 Cal.Rptr. 477]. Since the majority correctly finds Herbert “distinguishable on several points” (majority opn., ante, p. 293), I see no need to “expressly decline to follow Herbert.” (Majority opn., ante, p. 294.)
The majority, incorrectly in my opinion, concludes that the Herbert case “would apparently attempt . . . to force respondent herein to arbitrate
A petition for a rehearing was dеnied July 14, 1988, and appellant‘s petition for review by the Supreme Court was denied September 15, 1988.