What Happens When You Are Forced Into Arbitration–But Cannot Agree On Who Should Be The Arbitrator?

There are some situations where a personal injury or wrongful death claim may be settled through binding arbitration instead of traditional litigation. Arbitration often comes up in the context of legal claims against nursing homes, which may ask residents to sign binding arbitration agreements during the admissions process. Federal and state laws tend to strongly support enforcing such agreements, which can raise additional legal issues when it comes to actually proceeding to arbitration.

Wrongful Death Case Against Nursing Home Takes Winding Path Through Courts

One issue that often comes up is the selection of the arbitrator. Take this recent decision from the Florida Second District Court of Appeals, In the Estate of Quinn v. CCRC OPCO Freedom Square LLC. Here, the court declined to intervene in the breakdown of the selection process, instead merely encouraging both sides to cooperate.

Here is what happened. The victim in this case was a resident of the defendant’s nursing home. After her death, her estate filed a wrongful death lawsuit. The defense then moved to compel arbitration under the terms of the victim’s residency agreement. Under that agreement, the parties have 20 days after a “demand for arbitration” to agree on the appointment of a single arbitrator. If they cannot agree, then each side must appoint a “nominator.” The nominators are basically arbitrators whose sole function is to appoint the arbitrator who will actually hear the case.

The estate and the defense could not agree on who to select as arbitrator. After much back-and-forth on the issue, the estate notified the defense just before the close of business on the 20th day that they wished to select a specific person as arbitrator. The defendant did not respond until the next day, at which time it insisted that the parties had not “reasonably exhausted” their discussion of this subject.

Several months later, the defendant filed a motion in court, asking a judge to compel the estate to select an arbitrator, or at least a nominator. The estate replied that since the defense did not respond to its final nomination before the 20-day deadline, the defendant had “forfeited its right to select any arbitrator under the plain language of its own Residency Agreement.”

The judge disagreed, noting that sending a last-minute proposal regarding the appointment of the arbitrator was a “gotcha” tactic. The judge therefore gave the defendant the option of either selecting a nominator or having the court pick the arbitrator. The defendant opted to go with the nominator.

The estate then asked the Second District to intervene and quash the judge’s order. In effect, the estate’s position was that the defendant had already forfeited its right to select a nominator, and the court should not have re-written the arbitration agreement to give them a second chance. The Second District agreed the trial court “departed from the essential requirements of the law by ignoring the contract’s express terms and creating new ones that are contrary to the parties’ agreed-upon terms for the arbitration.”

That said, the appellate court dismissed the estate’s petition, explaining that it lacked the legal authority to act at this time. The proper remedy would be to proceed with the arbitration, after which the estate could challenge the decision based on the improper appointment of the arbitrator. But the Second District urged both sides to avoid this possibility by “cooperating in the selection process” now.

Speak with a Florida Wrongful Death Attorney Today

Although arbitration is often promoted as a quicker, less-expensive alternative to litigation, cases like this illustrate how that is not always the case. Too often, arbitration is used to deprive victims and their families of their day in court. That is why you always need to work with an experienced Boca Raton personal injury lawyer who will fight to vindicate your rights. Contact Leifer & Ramirez today if you need to speak with an attorney right away.

Source:

scholar.google.com/scholar_case?case=15543656287619900532