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Adkins v. Advocat Inc.

United States District Court, E.D. Kentucky, Northern Division, Ashland

April 17, 2015

GLEN ADKINS, as the Administrator of the Estate and on behalf of the Wrongful Death Beneficiaries of Susan Adkins, Plaintiff,
v.
ADVOCAT INC., DIVERSICARE HEALTHCARE SERVICES, INC., DIVERSICARE LEASING CORP., DIVERSICARE MANAGEMENT SERVICES CO., NATE CARDER, Administrator of Wurtland Nursing & Rehabilitation Center and JOHN DOES 1 through 5, Defendants.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

This matter is before the Court upon Defendants' Motion to Enforce Arbitration Agreement [Docket No.3] and Plaintiff's Motion to Amend and Remand [Docket No 10].

I.

This matter arises from Susan Adkins' residence at the Wurtland Nursing & Rehabilitation Center, which is owned and operated by the corporate Defendants. As part of the admissions process, in August of 2013, she executed an Arbitration Agreement. The Agreement, which is attached to Defendants' Motion provides in pertinent part:

[A]ny legal dispute, controversy, demand, or claim that arises out of or relates to the Resident Admission Agreement or is in any way connected to the Resident's stay at the Facility shall be resolved exclusively by binding Arbitration and not by a lawsuit or resort to other legal process.... This agreement to arbitrate shall include, but is not limited to, any claim for payments, non-payment, or refund for services rendered to the Resident by the Facility, claims arising out of State or Federal law, claims based upon breach of contract, breach of fiduciary duty, violation of rights, fraud or misrepresentation, common law or statutory negligence, gross negligence, malpractice or any other claim based on any departure from accepted standards of medical or nursing care, whether such claims be for statutory, compensatory, or punitive damages, and whether arising in the future or presently existing.

[Docket No. 3-2, p. 1-2]

On the first page of Arbitration Agreement, at the top of the page, it is clearly stated that the Agreement is optional and governs important legal rights. Id. at p. 1. The Arbitration Agreement explicitly and conspicuously states that "we do not want our disputes or claims to be resolved in a Court or before a jury." Id. at p. 3 (emphasis in original). The parties to the Agreement further emphasized that:

[W]e have read this entire Agreement and we understand and agree that by entering into this Arbitration Agreement we are giving up and waiving our Constitutional rights to have any claim or dispute that falls within the scope of this agreement decided in a court of law before a judge and jury.

Id. at p. 5 (emphasis in original).

The Arbitration Agreement provided that the Agreement was voluntary and not a pre-condition to the facility providing services and/or care to the resident. Id. at p. 4. The Arbitration Agreement states, among other things, that Ms. Adkins had an opportunity to review the Agreement, had an opportunity to receive explanations or clarifications of any term of the Agreement, and had the right to consult with an attorney regarding the Agreement. Id.

The Arbitration Agreement further states that Ms. Adkins could rescind the Agreement by providing written notice to the facility within thirty (30) days. Id. According to Defendants, Ms. Adkins did not provide such notice after she signed the Arbitration Agreement. Therefore, the Agreement remains in full force and effect.

Further, the Arbitration Agreement specifically binds the Resident and the Resident's Authorized Representative as well as the following:

the Facility's parents, agents, employees, servants, officers, directors, shareholders, medical directors, attorneys, insurers, or affiliated business entities, and any and all persons whose claim is derived from or on behalf of the Resident, including his or her agents, guardian, power of attorney, parent, spouse, child, executor, administrator, legal representative, heirs, trustees, or insurers.

Id. at p. 2.

Ms. Adkins remained a resident at the Wurtland Nursing & Rehabilitation until her ...


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