South Florida Injury Attorneys Blog
Equal access to the court system is one of our country’s most fundamental rights. Regardless of a person’s background or economic status, the United States Constitution guarantees everyone’s right use the courts to resolve disputes among parties. However, that right, like many others, can be waived.
Chances are, anyone who has dealt with a claim against a Florida nursing home is familiar with the concept of arbitration. Arbitration is a form of dispute resolution outside the traditional court system, in which a private arbitrator hears the case and renders a decision. Generally speaking, those parties who engage in frequent litigation prefer arbitration because it offers a quicker, cheaper, and confidential way to handle cases.
Arbitration, however, can present some potentially serious problems for individual litigants, including Florida nursing home residents and their families. This is because the nursing home usually creates the “rules of the game,” so to speak. For example, a nursing home can include clauses in an arbitration agreement specifying which state’s law applies, procedural deadlines, and even which arbitrator will hear the case. Thus, normally it is in a nursing home resident’s best interest to avoid arbitration, if possible.
Florida nursing homes know that arbitration works in their favor, and also that many residents are not likely to willingly consent to waive their right to file a claim in court, should the need arise. Thus, these agreements are frequently buried deep in pre-admission contracts, where residents and their family members may not see them.
Courts can invalidate arbitration agreements for a number of reasons, and a recent shift across the country seems to indicates courts’ willingness to do so when the agreements are not fair to both sides. In addition, courts can also invalidate specific clauses of an arbitration agreement. In these cases, the question often arises whether the remaining contract can be enforced without the suspect clause. A recent Florida appellate decision considered the severability of a nursing home arbitration clause.
The case included a Florida nursing home arbitration agreement that not only specified which arbitrator would hear the case, but also that Alabama rules of evidence would apply to the proceedings. The court concluded that this clause was invalid. However, after reading the contract as a whole. the court determined that the rest of the contract remained intact. The court considered whether the offending clause went to the essence of the contract. Finding that it did not, the court upheld the agreement.
While the case ultimately ended up with the plaintiff being required to arbitrate her claim, it presents an interesting example of how a nursing home resident may be able to invalidate an arbitration agreement based on a single clause. For example, had the court determined that the clause went to the essence of the agreement, the entire arbitration agreement would be invalidated.
Is Your Loved One in a Florida Nursing Home?
If you have a loved one in a Florida nursing home, and you believe that they are not being cared for as they should be, contact the South Florida personal injury lawyers at Cecere Santana. At Cecere Santana, we represent nursing home residents and their families in all types of cases against negligent and abusive nursing homes and their employees. We routinely deal with overreaching arbitration agreements, seeking to preserve our clients’ right to file a case in a court of law. To learn more, call 800-753-5529 to schedule a free consultation today.
See Additional Blog Posts:
Hardware Store’s Motion for Summary Judgment Denied in Recent Florida Premises Liability Case, South Florida Injury Attorneys Blog, July 6, 2018.
Florida Roller Coaster Derails, What Are the Victims’ Rights?, South Florida Injury Attorneys Blog, published June 26, 2018.