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Tender Loving Care Management, Inc. v. Sherls

Court of Appeals of Indiana

July 22, 2014

TENDER LOVING CARE MANAGEMENT, INC., d/b/a TLC MANAGEMENT LLC, d/b/a LINCOLNSHIRE HEALTH CARE CENTER, INC., d/b/a/ RIVERVIEW HOSPITAL and LINCOLNSHIRE HEALTH CARE CENTER, INC., Appellants-Defendants,
v.
RANDALL SHERLS, as Personal Representative of the ESTATE OF BERDIE SHERLS, DECEASED, Appellee-Plaintiff

Page 68

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable John M. Sedia, Judge. Cause No. 45D01-1308-CT-161.

ATTORNEYS FOR APPELLANT: JANET A. MCSHARAR, ALBERT BARCLAY WONG, JENNIFER L. STRANGE, Harrison & Moberly, LLP, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: I. PETER POLANSKY, ELIZABETH A. MOORE, Polansky & Cichon, Chtd., Chicago, Illinois.

MATHIAS, Judge. FRIEDLANDER, J., and PYLE, J., concur.

OPINION

Page 69

MATHIAS, Judge

Tender Loving Care Management, Inc., d/b/a TLC Management, LLC, d/b/a Lincolnshire Health Care Center, Inc., d/b/a Riverview Hospital and Lincolnshire Health Care Center, Inc. (hereinafter " Lincolnshire" ) appeals challenging the trial court's judgment denying its motion to compel arbitration in a lawsuit filed by Randall Sherls, as personal representative of the Estate of Birdie Sherls (hereinafter " the Estate" ). Lincolnshire challenges the trial court's conclusion that the arbitration agreement was ambiguous because the parties bound by the agreement are not clearly named.

The Estate cross appeals and argues that the trial court erred when it concluded that the decedent's son had the authority to waive the decedent's right to a jury trial. The Estate also contends that the trial court erred when it determined that the agreement was not an unconscionable adhesion contract.

We affirm in part and reverse in part and remand for proceedings consistent with this opinion.

Facts and Procedural History

Birdie Sherls was admitted to Lincolnshire on November 15, 2010, after she suffered a stroke. On the date she was admitted, Birdie's son, Oliver Sherls, signed Lincolnshire's " Facility Admission

Page 70

Agreement" on Birdie's behalf. The agreement provides in relevant part:

This AGREEMENT is made by and between Lincolnshire (hereinafter referred to as the " Facility" ) and Birdie Sherls (hereinafter referred to as the " Resident" ) Oliver Sherls, the Resident's Legal Representative, who is the individual with legal access to the Resident's income and assets and Oliver Sherls, the Resident's Health Care Representative, who is the individual designated to make decisions concerning the provision of health care if the Resident is incapable of making health care decisions.
***
Arbitration. Any disputes other [sic] matters in question arising out of or related to the Resident's receipt of care and services pursuant to this Agreement that are not settled by mediation within 60 days after a mediator is appointed are subject to binding Arbitration, which unless the parties mutually agree otherwise, shall be administered by the Alternative Dispute Resolution Service of the American Health Lawyers Association. A written Arbitration demand shall be made to the Facility within a reasonable amount of time after the dispute arises. The arbitration award shall be final. The Facility's enforcement of the Agreement's terms and conditions relating to payment for the care and services provided shall not be subject to Arbitration and the Facility may pursue all legal means of collection.
The Resident and Legal Representative understand and agree that by entering into this Agreement they are giving up and waiving the constitutional right to have any claim decided in a court of law before a judge and jury.

Appellant's App. pp. 24, 32.

On August 4, 2011, Birdie died from bed sores and stage four decubitus ulcers which led to sepsis. On August 1, 2013, her Estate filed a complaint against Lincolnshire alleging that its negligent care caused Birdie's death. Shortly thereafter, Lincolnshire filed a motion to compel arbitration and stay the proceedings.

A hearing was held on Lincolnshire's motion on November 7, 2013. The next day, the trial court issued its order denying the motion and stating in pertinent part:

2. There is no dispute that Birdie had appointed no health care representative and that there existed no judicially appointed guardian or other representative for Birdie pursuant to IC 16-36-1-5(a) at the time Oliver signed the Agreement. Nevertheless, under IC 16-36-1-5(a)(2)(C), Oliver was fully empowered to act on Birdie's behalf in signing the Agreement.
3. There is also no dispute that the Agreement is a contract of adhesion, drafted by Lincolnshire, clearly the party of superior bargaining strength and that had Oliver not signed the Agreement on behalf of Birdie, Birdie would not have been admitted to Lincolnshire. . . .
4. . . . [I]t cannot be said that the Agreement that Oliver executed was " . . . such as no sensible man not under delusion or duress would make, and such as no honest and fair man would accept." The Agreement clearly imposed the limitation that any disputes regarding Birdie's care had to be submitted to arbitration, and that the parties were waiving proceeding before a Judge or jury to resolve these disputes. Sanford ...

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