FILED 2022 IL App (4th) 210458 January 28, 2022 Carla Bender NO. 4-21-0458 4th District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
MARK MASON, as Independent Administrator of the ) Appeal from the Estate of Doris Mason, Deceased, ) Circuit Court of Plaintiff-Appellant, ) Adams County v. ) No. 20L63 ST. VINCENT’S HOME, INC., an Illinois Corporation, ) d/b/a St. Vincent’s Home; WDM HEALTH SERVICES, ) INC., an Illinois Corporation; DEANNA SMITH; ) Honorable MICHELLE WORTMAN; and KAYLAN ELLERMAN, ) Scott D. Larson, Defendants-Appellees. ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Harris and Holder White concurred in the judgment and opinion.
OPINION
¶1 Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), plaintiff,
Mark Mason, as the independent administrator of the estate of his mother Doris Mason, deceased
(decedent), appeals the Adams County circuit court’s July 21, 2021, order granting in part the
motion to dismiss and compel arbitration brought by defendants, St. Vincent’s Home, Inc.
(Nursing Home); WDM Health Services, Inc.; Deanna Smith; Michelle Wortman; and Kaylan
Ellerman. Plaintiff had signed a contract for services on decedent’s behalf with the Nursing Home,
and the contract contained an arbitration clause. After decedent’s death, plaintiff filed an 11-count
complaint against defendants for injuries decedent suffered while under defendants’ care. In its
order, the court stayed the counts in plaintiff’s complaint that were brought under the Wrongful
Death Act (740 ILCS 180/0.01 et seq. (West 2018)) and compelled arbitration on the negligence counts and the count under the Nursing Home Care Act (Care Act) (210 ILCS 45/1-101 et seq.
(West 2018)). The negligence counts and the Care Act count were brought pursuant to the Survival
Act (755 ILCS 5/27-6 (West 2018)).
¶2 On appeal, plaintiff contends the arbitration clause in the contract for services
between decedent and the Nursing Home was unenforceable because (1) the contract was
procedurally and substantively unconscionable, (2) decedent’s health care power of attorney did
not authorize plaintiff to bind decedent to arbitration, and (3) the contract terminated upon
decedent’s death. We affirm.
¶3 I. BACKGROUND
¶4 On December 11, 2018, plaintiff signed numerous documents to have decedent
reside at the Nursing Home. The first document was an admissions agreement. The agreement
began as follows:
“We are pleased to inform you that Doris Mason, hereafter referred to as
RESIDENT has been accepted as a resident of St. Vincent’s Home, Inc. hereafter
referred to as FACILITY. Such acceptance is contingent on completing the below
requirements, and FACILITY reserves the right to terminate this acceptance if the
below requirements are not completed within fourteen (14) days.
Resident, resident’s Power of Attorney (POA), resident’s representative,
and/or guardian understands that for the facility to provide healthcare services to
the resident that there is a list of documents and paperwork to be completed at the
facility within 14 days of admission.”
The document then went on to list 12 required documents, including the contract for services and
power of attorney addendum. The arbitration clause was contained in the contract for services, and
-2- the language of the clause is set forth in the analysis section of this order. The contract for services
also had a provision stating, “In the event of Resident’s death, this Contract terminates
automatically.” Further, in the contract for services, plaintiff was designated as the resident’s
representative and decedent was designated as the guarantor. Plaintiff signed the contract for
services on the resident line, and Ashley Bronestine signed on behalf of the Nursing Home. The
guarantor signature lines were left blank. The contract for services required decedent to provide
the Nursing Home a copy of the written agreement between decedent and plaintiff that authorized
plaintiff to execute the contract on decedent’s behalf. Plaintiff also signed the power of attorney
addendum on December 11, 2018, indicating he was decedent’s power of attorney for health care.
Decedent’s power of attorney for health care contained in the record in this case was dated
December 12, 2018.
¶5 Decedent was a resident of the Nursing Home from December 12, 2018, through
October 3, 2019, the date of her death. On January 14, 2019, decedent suffered an unwitnessed fall
walking to the bathroom, which resulted in a left distal femur fracture. Decedent underwent an
open reduction and internal fixation on her left femur fracture. Additionally, decedent suffered
burns to her right hip on the following dates: (1) February 20, 2019; (2) February 25, 2019;
(3) March 4, 2019; (4) April 4, 2019; and (5) May 7, 2019.
¶6 In December 2020, plaintiff filed a complaint against defendants, alleging the
following causes of action: (1) a violation of the Care Act against the Nursing Home; (2) a
negligence claim against the Nursing Home; (3) a claim under the Wrongful Death Act against the
Nursing Home; (4) a negligence claim against WDM Health Services, Inc.; (5) a claim under the
Wrongful Death Act against WDM Health Services, Inc.; (6) a negligence claim against Smith;
(7) a claim under the Wrongful Death Act against Smith; (8) a negligence claim against Wortman;
-3- (9) a claim under the Wrongful Death Act against Wortman; (10) a negligence claim against
Ellerman; and (11) a claim under the Wrongful Death Act against Ellerman.
¶7 In February 2021, defendants filed a motion to dismiss pursuant to section 2-619
of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619 (West 2020)) and compel
arbitration pursuant to the terms of the arbitration clause. Defendants attached a copy of plaintiff’s
complaint and the contract for services between the Nursing Home and decedent. On March 17,
2021, the circuit court entered an order granting defendants 28 days to answer plaintiff’s
interrogatories and allowing plaintiff to conduct a discovery deposition of Bronestine.
¶8 The Nursing Home filed its answers to plaintiff’s interrogatories. Question six
asked whether the signing of the contract for services between decedent and the Nursing Home
was required for decedent to remain at the Nursing Home. The Nursing Home replied, “Residents
and/or their representatives are given approximately 14 days to execute admission paperwork, but
there may be circumstances in which it is not executed according to this policy.” Question seven
asked if decedent would have been able to remain at the Nursing Home if the contract for services
between decedent and the Nursing Home was not signed. The Nursing Home answered, “In
general, yes, depending on the factual circumstances of a particular resident.” The Nursing Home’s
answers also indicated decedent was accepted as a potential resident at the time plaintiff signed
the contract for services and the contract for services was a standard contract.
¶9 The deposition of Bronestine was taken on May 11, 2021. Bronestine’s relevant
deposition testimony is set forth in the analysis section of this opinion.
¶ 10 Plaintiff filed a response to defendant’s motion to dismiss and compel arbitration,
asserting plaintiff did not have legal authority to bind decedent to the contract for services because
he lacked actual authority and held only a power of attorney for health care and not a power of
-4- attorney for property. Plaintiff also argued the arbitration clause was unenforceable because it was
procedurally and substantively unconscionable and the contract for services was unenforceable
because it terminated upon decedent’s death. To his response, plaintiff attached his complaint, the
contract for services, the motion to compel arbitration, the circuit court’s discovery orders, the
Nursing Home’s answers to interrogatories, Bronestine’s deposition, and his own affidavit. In his
affidavit, plaintiff stated no explanation of the arbitration clause or waiver of rights contained in
the clause was given to him before he signed the contract for services. He denied receiving any
explanation of the contract for services and the other numerous documents he signed on December
11, 2018. Plaintiff also stated it was his understanding the contract for services between decedent
and the Nursing Home was a form document that could not be changed in any way. Plaintiff further
noted, if someone would have explained arbitration to him, he would not have signed the
paperwork because he would not have agreed to sign away such rights.
¶ 11 Defendants filed a reply, which attached, inter alia, the documentation of payment
source addendum to the contract for services, which stated the first source of payment for the
resident’s charges while at the Nursing Home was private pay and listed decedent’s name.
¶ 12 On July 16, 2021, the circuit court held a hearing on defendants’ motion to dismiss
and compel arbitration. At the hearing, plaintiff’s counsel began her argument by noting the
following:
“First and foremost, we are not contending that he did not have a power of
attorney of healthcare. That’s very clear. He had a power of attorney of healthcare.
However, he did not have property.”
¶ 13 In granting the motion to compel arbitration on the negligence counts and Care Act
count, the circuit court found the arbitration clause was part of the contract for services and the
-5- contract was signed. It also found plaintiff had a power of attorney for health care. The court further
concluded the contract for services was not procedurally or substantively unconscionable. As to
relief, the court separated the claims under the Wrongful Death Act from the other claims. It stayed
the wrongful death claims and compelled arbitration on the other claims. The court did not dismiss
any of the claims and refused to decide whether plaintiff could request statutory rights under the
Care Act if he prevailed on the Care Act claim at arbitration. The court entered its written order
on July 21, 2021.
¶ 14 On August 9, 2021, plaintiff filed a timely notice of appeal in sufficient compliance
with Illinois Supreme Court Rule 303 (eff. July 1, 2017). Accordingly, this court has jurisdiction
under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). See Salsitz v. Kreiss, 198 Ill. 2d
1, 11, 761 N.E.2d 724, 730 (2001) (noting a circuit court’s order compelling arbitration is
injunctive in nature and thus subject to interlocutory appeal under Rule 307(a)(1)).
¶ 15 II. ANALYSIS
¶ 16 A. Standard of Review
¶ 17 Plaintiff contends the appropriate standard of review is de novo. He notes
defendants brought their motion to dismiss and compel arbitration pursuant to section 2-619 of the
Procedure Code (735 ILCS 5/2-619 (West 2020)) and a ruling on such motions is reviewed
de novo. See Doe v. Chicago Board of Education, 213 Ill. 2d 19, 23-24, 820 N.E.2d 418, 421
(2004). Plaintiff also points out the review of a determination of whether a contract or a portion of
a contract is unconscionable is de novo. Kinkel v. Cingular Wireless, LLC, 223 Ill. 2d 1, 22, 857
N.E.2d 250, 264 (2006).
¶ 18 Defendants contend the construction of an arbitration agreement is reviewed
de novo but argue the proper standard of review for the other matters is an abuse of discretion.
-6- Specifically, they contend the general standard of review in an interlocutory appeal is whether the
circuit court abused its discretion in granting or denying the interlocutory relief requested. See
Yandell v. Church Mutual Insurance Co., 274 Ill. App. 3d 828, 831, 654 N.E.2d 1388, 1389 (1995).
Defendants also point out that, when factual findings have been made, the decision of whether to
compel arbitration is reviewed for an abuse of discretion. See Brookner v. General Motors Corp.,
2019 IL App (3d) 170629, ¶ 16, 129 N.E.3d 694.
¶ 19 Here, in its oral ruling, the circuit court stated it was not dismissing plaintiff’s action
but staying the litigation pending arbitration. Thus, we are not reviewing a section 2-619 dismissal.
Moreover, in considering the parties’ supporting materials, the court made factual determinations
in granting the motion to compel arbitration. Thus, we will apply a de novo standard of review to
a matter of contract construction and whether the arbitration provision is unconscionable but will
review the decision to compel arbitration for an abuse of discretion.
¶ 20 B. Validity of the Contract
¶ 21 Plaintiff contends the arbitration clause of the contract for services is unenforceable
because it is substantively and procedurally unconscionable. Defendants argue the circuit court’s
finding the arbitration clause was enforceable was not erroneous. The arbitration clause of the
contract for services between the decedent and the Nursing Home was as follows:
“SECTION XI. ARBITRATION
Except as prohibited by applicable law, any action, dispute, claim, or
controversy related to the quality of health care services provided pursuant to this
Contract (e.g., whether in contract or in tort, statutory or common law, legal or
equitable, or otherwise) now existing or hereafter arising between Resident and St.
Vincent’s, any past, present or future incidents, omissions, acts, errors, practices or
-7- occurrence causing injury to either party whereby the other party or its agents,
employees or representatives may be liable, in whole or in part, or any other aspect
of the past, present, or future relationships between the parties shall be resolved by
binding arbitration administered by an arbitrator approved by Resident and St.
Vincent’s. The costs of the arbitration will be divided equally between Resident
and St. Vincent’s. The decision of the arbitrator will be final. The site of the
arbitration shall be (Quincy, Illinois). This arbitration contract is made pursuant to
a transaction in interstate commerce and shall be governed by the Federal
Arbitration Act. The parties voluntarily and knowingly waive any right they have
to a jury trial. The parties also agree that neither will have the right to participate as
a representative or member of any class of claimants pertaining to a claim subject
to arbitration under this Contract.
The provisions of this Section XII [sic] will not apply to St. Vincent’s
decision to transfer or discharge the Resident for medical reasons, for the Resident’s
physical safety, for the physical safety of other residents, the facility staff or facility
visitors, or for either late payment or nonpayment for Resident’s stay if St.
Vincent’s complies with the provisions of Section VIII.”
Section VIII of the contract for services addressed the additional rights and responsibilities of the
Nursing Home.
¶ 22 1. Procedurally Unconscionable
¶ 23 Our supreme court has defined procedurally unconscionable as follows:
“ ‘Procedural unconscionability consists of some impropriety during the process of
forming the contract depriving a party of a meaningful choice. [Citations.] Factors
-8- to be considered are all the circumstances surrounding the transaction including the
manner in which the contract was entered into, whether each party had a reasonable
opportunity to understand the terms of the contract, and whether important terms
were hidden in a maze of fine print; both the conspicuousness of the clause and the
negotiations relating to it are important, albeit not conclusive factors in determining
the issue of unconscionability. [Citation.] To be a part of the bargain, a provision
limiting the defendant’s liability must, unless incorporated into the contract through
prior course of dealings or trade usage, have been bargained for, brought to the
purchaser’s attention or be conspicuous. *** Nor does the mere fact that both
parties are businessmen justify the utilization of unfair surprise to the detriment of
one of the parties ***. [Citation.] This requirement that the seller obtain the
knowing assent of the buyer “does not detract from the freedom to contract, unless
that phrase denotes the freedom to impose the onerous terms of one’s carefully
drawn printed document on an unsuspecting contractual partner. Rather, freedom
to contract is enhanced by a requirement that both parties be aware of the burdens
they are assuming. The notion of free will has little meaning as applied to one who
is ignorant of the consequences of his acts.” [Citations.]’ ” Kinkel, 223 Ill. 2d at 23-
24 (quoting Frank’s Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill.
App. 3d 980, 989-90, 408 N.E.2d 403, 410 (1980)).
¶ 24 Plaintiff alleges the arbitration clause in this case was procedurally unconscionable
based on the following: (1) all of the admission documents were presented in a single folder, (2) the
provision was included in the contract and not a stand-alone document, (3) the provision was not
bolded or otherwise distinguished from the rest of the contract, (4) Bronestine spent only 2½ hours
-9- with plaintiff reviewing the admission documents, and (5) the Nursing Home’s “somewhat
cavalier attitude about signing the contract, likely contributing to residents’ lack of understanding
about the significance of what they were signing.” Defendants claim plaintiff’s allegations do not
demonstrate procedural unconscionability.
¶ 25 In this case, the arbitration provision was in its own section of the contract and
clearly labeled “ARBITRATION.” The provision was not hidden in the contract. Additionally, the
arbitration provision used straightforward language and clearly stated the parties waived the right
to a jury trial. Moreover, Bronestine testified she would briefly go over the admission documents
and allow the person to read them. She did not rush a person who was signing the admission papers.
Bronestine stated she would have generally explained the arbitration clause and asked the person
to read it. She did not recall plaintiff having any questions about the arbitration provision or the
contract in general. The fact Bronestine did not tell plaintiff he was waiving decedent’s rights
under the Care Act does not change our analysis. The arbitration clause was clear the parties were
waiving their right to a jury trial, and it has not yet been determined whether decedent’s rights
under the Care Act have been waived. Additionally, the circumstances of the signing do not
suggest coercion or deception. Based on the aforementioned facts, we do not find the circuit court
erred by finding the arbitration provision was not procedurally unconscionable.
¶ 26 2. Substantively Unconscionable
¶ 27 Our supreme court has defined substantively unconscionable as follows:
“ ‘Substantive unconscionability concerns the actual terms of the contract
and examines the relative fairness of the obligations assumed. [Citation.] Indicative
of substantive unconscionability are contract terms so one-sided as to oppress or
unfairly surprise an innocent party, an overall imbalance in the obligations and
- 10 - rights imposed by the bargain, and significant cost-price disparity.’ ” Kinkel, 223
Ill. 2d at 28 (quoting Maxwell v. Fidelity Financial Services, Inc., 907 P.2d 51, 58
(Ariz. 1995)).
Plaintiff contends the arbitration provision is so one-sided as to be oppressive because claims
brought by the Nursing Home against a resident are not subject to arbitration. He contends the
Nursing Home gave up nothing. Specifically, plaintiff argues any claim related to the quality of
health care services could only be a claim by a resident against the Nursing Home for injury caused
by the nursing home and its staff. According to plaintiff, the exception to the arbitration clause
applies to the Nursing Home’s claims against a residence for nonpayment and actions involving
the Nursing Home’s decision to transfer or discharge a resident.
¶ 28 Defendants disagree. They contend the first paragraph of the arbitration clause
broadly obligates both the resident and the Nursing Home to submit all manner of claims against
the other to arbitration. Moreover, defendants argue the limited exception to arbitration was proper
because transfers and discharge decisions are subject to hearings before an administrative law
judge with the Department of Public Health and are not heard in the circuit court. They also claim
payment disputes are not part of the exception. Additionally, defendants argue the remainder of
the arbitration clause shows a relative balance in the duties and obligations imposed on both
parties.
¶ 29 The principles of contract construction are similar to those of statutory construction.
Our primary objective in construing a contract is to give effect to the parties’ intent. Gallagher v.
Lenart, 226 Ill. 2d 208, 232, 874 N.E.2d 43, 58 (2007). We start by examining “the language of a
contract alone, as the language, given its plain and ordinary meaning, is the best indication of the
parties’ intent.” Gallagher, 226 Ill. 2d at 233. Moreover, the “contract must be construed as a
- 11 - whole, viewing each part in light of the others.” Gallagher, 226 Ill. 2d at 233. If the contract’s
language is susceptible to more than one meaning, it is ambiguous, and the court may consider
extrinsic evidence to ascertain the parties’ intent. Gallagher, 226 Ill. 2d at 233. Additionally, we
note the existence of a “strong public policy in favor of enforcing arbitration agreements.” Kinkel,
223 Ill. 2d at 47.
¶ 30 The plain language of the arbitration clause is consistent with defendants’ argument
the arbitration clause applies to more claims than plaintiff asserts. A claim “related to the quality
of health care services provided” under the contract is just one of three categories of claims
identified in the arbitration clause. The arbitration clause also included causes of action based on
(1) “incidents, omissions, acts, errors, practice or occurrence causing injury to either party whereby
the other party” may be liable and (2) “any other aspect of the past, present or future relationships
between the parties.” Defendants noted an action by the Nursing Home for nonpayment would be
a matter for arbitration. Plaintiff responded any such dispute would be against Medicare and not
decedent because she was a Medicare patient. However, the complaint only stated decedent was a
recipient of Medicare at the time of her admission to the Nursing Home, and the supporting
evidence indicated she was a private pay patient. Moreover, we agree with defendants the
exception to the arbitration provision only applies to the Nursing Home’s decision to transfer or
discharge a resident for four enumerated reasons, which are also listed in section 300.3300(c)(1)
of Title 77 (77 Ill. Adm. Code 300.3300(c)(1)(A)-(D), amended at 35 Ill. Reg. 11419 (eff. June
29, 2011)) as reasons for a facility to involuntarily transfer or discharge a resident. Plaintiff does
not disagree with defendants’ assertion transfer and discharge decisions are subject to hearing
before the administrative law judge with the Department of Public Health. See 77 Ill. Adm. Code
300.3300(m), amended at 35 Ill. Reg. 11419 (eff. June 29, 2011). Thus, the only claims exempted
- 12 - from the arbitration provision are ones for which the proceedings already must be before an
administrative agency and not a court. We disagree with plaintiff the claims subject to arbitration
were one-sided.
¶ 31 Additionally, under the arbitration clause, both the resident and the Nursing Home
had to approve of the arbitrator. The costs of the arbitration were to be divided equally between
the parties. These provisions are also not one-sided.
¶ 32 We agree with plaintiff one aspect of the arbitration clause was one-sided. The
arbitration clause did include a provision both parties agreed to not participate as a representative
or member of any class of claims pertaining to arbitration under the contract. Plaintiff contends
that provision only applies to residents because no one can fathom a class action brought by a class
of nursing homes against a patient. Defendants do not dispute that argument in their brief.
However, we do not find that provision alone made the arbitration clause so one-sided as to be
oppressive.
¶ 33 Moreover, plaintiff has neither shown an overall imbalance in the obligations and
rights imposed by the parties’ agreement nor a significant cost-price disparity. Plaintiff cites
Kinkel, 223 Ill. 2d at 42, where our supreme court found the contract’s class action waiver was
unconscionable and unenforceable. The circumstances forming the basis of the supreme court’s
conclusion included the contract was one of adhesion, required the customer to arbitrate all claims,
did not reveal the cost of arbitration, and contained a liquidated damages clause that allegedly
operated as an illegal penalty. Kinkel, 223 Ill. 2d at 42. Those provisions created a situation where
the cost of vindicating the claim was so high that the plaintiff’s only reasonable, cost-effective
means of obtaining a complete remedy was either as the representative or a member of a class.
Kinkel, 223 Ill. 2d at 42. There, the claim was for $150, and the cost for pursuing the claim would
- 13 - have been $125 plus her attorney fees. Kinkel, 223 Ill. 2d at 30. Here, plaintiff has presented no
evidence the cost of vindicating a claim would be more than or close to the amount of relief
recovered for the claim.
¶ 34 Accordingly, we find the circuit court did not err by finding the arbitration clause
was not substantively unconscionable.
¶ 35 C. Plaintiff’s Authority to Execute the Contract
¶ 36 Plaintiff also challenges his authority to execute the contract on behalf of decedent.
Specifically, plaintiff contends a valid power of attorney for health care was not in existence when
plaintiff signed the contract for services and the arbitration clause was not a prerequisite for
admission to the Nursing Home. Defendants argue the circuit court did not abuse its discretion by
finding plaintiff was authorized to execute the arbitration agreement because (1) plaintiff was the
decedent’s health care power of attorney on December 11, 2018, (2) the arbitration agreement was
required for decedent’s admission to the Nursing Home, (3) plaintiff had implied or apparent
authority to execute the arbitration agreement on decedent’s behalf, and (4) decedent ratified the
arbitration agreement.
¶ 37 A person authorized by a health care power of attorney may bind a principal to an
arbitration agreement as part of a contract to receive nursing home care when the arbitration
provision is integral to the entire agreement and required for admission. Fiala v. Bickford Senior
Living Group, LLC, 2015 IL App (2d) 141160, ¶ 45, 32 N.E.3d 80. However, a principal will not
be bound by an arbitration agreement signed by an agent under a health care power of attorney if
the arbitration agreement is separate from the contract for services or not required for admission.
Fiala, 2015 IL App (2d) 141160, ¶¶ 44-46.
¶ 38 As to whether plaintiff was decedent’s power of attorney for health care when he
- 14 - signed the admissions agreement on December 11, 2018, the evidence showed plaintiff, in his June
18, 2021, response to defendants’ motion to dismiss and compel arbitration, stated he had a power
of attorney for health care for decedent. Moreover, at the hearing on the motion to dismiss and
compel, plaintiff’s counsel began her argument by stating they were not contending plaintiff did
not have a power of attorney for health care. “ ‘It is fundamental to our adversarial process that a
party waives his right to complain of an error where to do so is inconsistent with the position taken
by the party in an earlier court proceeding.’ ” McMath v. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d
1, 3 (2000) (quoting Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 543, 475 N.E.2d 817, 818
(1984)). Regardless, the evidence was sufficient for the circuit court to conclude plaintiff was
decedent’s power of attorney when he signed the admission agreement, even though on the next
day decedent signed a power of attorney for health care appointing plaintiff as her agent. The
admissions agreement contained a power of attorney addendum. The addendum urged the resident
to have a power of attorney for both property and health care. At the bottom of the addendum,
blanks were filled in to state the following: “I, Doris Mason, certify that I have a POA of
Healthcare, namely, Mark Mason.” Under the statement, plaintiff signed and wrote the date of
December 11, 2018. The signatory line under the sentence referring to a power of attorney for
property was left blank. Additionally, Bronestine testified in her deposition the form the Nursing
Home received from the hospital listed plaintiff as a power of attorney and plaintiff stated he was
decedent’s power of attorney for health care on December 11, 2018. She also testified she would
have confirmed plaintiff was decedent’s power of attorney before she had him sign the admissions
paperwork. Bronestine also explained, if the power of attorney document was not available, she
would have asked for another one to be executed.
¶ 39 Regarding whether the arbitration agreement was required for decedent’s
- 15 - admission to the Nursing Home, plaintiff contends the evidence showed arbitration was not
required for admission. He notes Bronestine’s testimony. In her deposition, Bronestine addressed
the necessity of the arbitration clause several times. She testified decedent was already accepted
into the Nursing Home when plaintiff signed the admissions contract. According to Bronestine, if
plaintiff had refused to sign the admissions agreement because of the arbitration provision, she
would have said “that’s fine” and taken the issue to a “higher up” in the Nursing Home for plaintiff
and the “higher-ups” to agree on terms. She did not make any of those types of decisions.
According to Bronestine, Chris Reis, the owner of the Nursing Home, was the most knowledgeable
person about the arbitration clause. Bronestine further testified she never had someone request a
different agreement. When asked if plaintiff had stated he did not want to arbitrate would decedent
still have been admitted into the Nursing Home, Bronestine first answered yes and later answered
she did not know. Bronestine testified something had to be signed but she did not know what that
would be. The aforementioned evidence supports the circuit court’s finding Bronestine was not
well-versed on the arbitration clause.
¶ 40 The answers to interrogatories indicated the Nursing Home accepted decedent as a
potential resident at the time plaintiff signed the contract for services between the Nursing Home
and decedent. Moreover, the answers to interrogatories indicated a resident could reside at the
Nursing Home without a signed contract (1) because residents or their representatives had 14 days
to execute the admission paperwork and (2) possibly based on the factual circumstances of a
particular resident. However, as the circuit court noted, the contract in this case was a signed
contract, so plaintiff’s questions were just hypotheticals. Plaintiff did not directly ask if agreeing
to the arbitration clause was required for admission into the Nursing Home.
¶ 41 The contract for services contained the arbitration clause, and it was a standard form
- 16 - indicating arbitration was required for admission into the Nursing Home. Moreover, the
admissions agreement stated decedent’s acceptance as a resident in the Nursing Home was
contingent on completing the enumerated requirements, which included signing the contract for
services. The Nursing Home reserved the right to terminate the acceptance if the requirements
were not completed within 14 days. Additionally, in his affidavit, plaintiff understood the contract
for services was a form document that could not be changed in any way. The aforementioned
evidence shows the arbitration clause was not optional or freestanding. Thus, we find the circuit
court did not abuse its discretion by finding plaintiff had the authority based on the power of
attorney for health care to agree to arbitration on decedent’s behalf. As such, we do not address
whether plaintiff had implied or apparent authority to sign the contract for services.
¶ 42 D. Decedent’s Death
¶ 43 Plaintiff further asserts the contract, including the arbitration clause, terminated by
its own terms on decedent’s death. Defendants first contend our supreme court’s decision in Carter
v. SSC Odin Operating Co., 2012 IL 113204, 976 N.E.2d 344, controls and the arbitration
agreement applies to plaintiff’s claims brought pursuant to the Survival Act. They also argue the
arbitration clause survives the contract’s termination absent contract language to the contrary.
Plaintiff replies defendants fail to cite a case involving a contract that expressly stated it terminated
on the death of a party.
¶ 44 In Carter, 2012 IL 113204, ¶ 1, our supreme court addressed whether an arbitration
agreement between the plaintiff’s decedent and the defendant nursing home was enforceable and,
if so, whether the plaintiff could be compelled to arbitrate a wrongful death claim against the
defendant. The background facts suggest the arbitration agreements executed at the time of the
decedent’s admissions into the nursing home were separate from another contract. See Carter,
- 17 - 2012 IL 113204, ¶ 5. Further, the facts did not state whether the arbitration agreement had a
provision the agreement terminated upon the decedent’s death. When analyzing the wrongful death
claim issue, the court contrasted the claim with an action under the Survival Act (755 ILCS 5/27-
6 (West 2006)). Carter, 2012 IL 113204, ¶ 34. It explained, “[t]he Survival Act allows an action
(such as a claim under the *** Care Act) to survive the death of the injured person.” Carter, 2012
IL 113204, ¶ 34. While the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)) created
a new cause of action that did not accrue until death, the Survival Act allowed the decedent’s
representative to maintain those statutory or common law actions that had already accrued prior
to the decedent’s death. Carter, 2012 IL 113204, ¶ 34. In reaching its holding the plaintiff was not
bound by the decedent’s agreement to arbitrate for the wrongful death claim, the supreme court
noted the plaintiff was bound to arbitrate the claim that alleged a violation of the Care Act by the
defendant brought under the Survival Act. Carter, 2012 IL 113204, ¶ 34. The supreme court
explained that claim had already accrued to the decedent prior to death and the claim was brought
for the benefit of the decedent’s estate. Carter, 2012 IL 113204, ¶ 34.
¶ 45 While the facts in Carter do not suggest the arbitration agreement was part of
another contract with a termination upon death clause like the one in this case, the supreme court’s
analysis is instructive. The supreme court noted a cause of action brought pursuant to the Survival
Act accrued prior to the death of the decedent. Carter, 2012 IL 113204, ¶ 34. Thus, even with a
termination upon death clause, the contract including the arbitration provision would still have
been valid when the cause of action accrued. The language of the arbitration clause does not
suggest it is inapplicable to claims that accrued before the resident’s death but were brought after
the resident’s death. Moreover, we are not persuaded by the cases cited by plaintiff. None of those
cases addressed the applicability of an arbitration clause to a claim that accrued prior to the party’s
- 18 - death but was brought after death. As such, we find plaintiff is bound to arbitrate the claims brought
pursuant to the Survival Act.
¶ 46 E. Attorney Fees Under the Care Act
¶ 47 Plaintiff asks this court to determine whether the arbitration clause prohibits
plaintiff from being awarded costs and attorney fees under section 3-602 of the Care Act (210
ILCS 45/3-602 (West 2018)). While the issue of whether a contract to arbitrate exists must be
determined by the court (Menard County Housing Authority v. Johnco Construction, Inc., 341 Ill.
App. 3d 460, 463, 793 N.E.2d 221, 224 (2003)), matters of contract interpretation are for an
arbitrator to decide initially (Kinkel v. Cingular Wireless, LLC, 357 Ill. App. 3d 556, 562, 828
N.E.2d 812, 818 (2005)). Since plaintiff’s argument is a matter for the arbitrator, we do not address
it.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the Adams County circuit court’s judgment.
¶ 50 Affirmed.
- 19 - No. 4-21-0458
Decision Under Review: Appeal from the Circuit Court of Adams County, No. 20-L-63; the Hon. Scott D. Larson, Judge, presiding.
Attorneys Michael W. Rathsack, of Law Office of Michael W. Rathsack, of for Chicago (Steven M. Levin, , Jaime A. Koziel, and Isabela Appellant: Bacidore, of counsel), for appellant.
Attorneys Melinda S. Kollross, Kathleen M. Klein, and Vanessa Mannings, for of Clausen Miller P.C., of Chicago, for appellees. Appellee:
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