3 Defenses to Mandatory Arbitration Agreements in Nursing Home Contracts

 In Tactics

Dealing with arbitration agreements in nursing home contracts has become an increasing problem for plaintiff attorneys in Washington.  Most nursing home companies now require residents to sign pre-dispute mandatory arbitration agreements prior to being admitted to their facilities.  Most people do not realize that by signing these agreements they are waiving their constitutional right to a jury.

Although fighting a mandatory arbitration agreement can be challenging, there are several available defenses to enforcement, including:

  • The Arbitration Clause Is Invalid

Because arbitration agreements are treated as any other contract provision, formation arguments should always be raised if possible.  For instance, did the plaintiff sign only some of the admission forms, but not the arbitration clause form? Did the plaintiff lack capacity to execute the contract?  Are the provisions of the arbitration clause unconscionable? See Gandee v. LDL Freedom Enterprises, Inc., 176 Wn. 2d 598, 601, 293 P.3d 1197, 1198 (2013) (denying enforceability of binding arbitration clause which contained substantively unconscionable venue, “loser pays,” and statute of limitations provisions).

  • The Arbitration Clause Does Not Apply to the Plaintiff

The general rule is that a party cannot be required to submit to arbitration any dispute which he or she has not agreed to submit.  In other words, a person who did not sign the arbitration agreement cannot be compelled to arbitrate his or her claims.  The Washington Court of Appeals previously held that the heirs of a deceased nursing home resident were not required to arbitrate their wrongful death claims against the nursing home since they did not sign the agreement to arbitrate entered into by the resident and the facility.  See Woodall v. Avalon Care Ctr.-Fed. Way, LLC, 155 Wn. App. 919, 231 P.3d 1252 (2010).

  • The Defendant Waived the Right to Arbitration

A defendant may attempt to compel arbitration after litigating the claim and receiving an adverse ruling.  If so, an argument should be made that the arbitration clause has been waived by conduct.  See Lake Washington Sch. Dist. No. 414 v. Mobile Modules Nw., Inc., 28 Wn. App. 59, 61, 621 P.2d 791, 793 (1980) (“Parties to an arbitration contract may waive that provision…and a party does so by failing to invoke the clause when an action is commenced and arbitration has been ignored.”).

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