Wascovich v. Personacare of Ohio, Inc.

943 N.E.2d 1030, 190 Ohio App. 3d 619
CourtOhio Court of Appeals
DecidedSeptember 24, 2010
DocketNo. 2010-L-006
StatusPublished
Cited by12 cases

This text of 943 N.E.2d 1030 (Wascovich v. Personacare of Ohio, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wascovich v. Personacare of Ohio, Inc., 943 N.E.2d 1030, 190 Ohio App. 3d 619 (Ohio Ct. App. 2010).

Opinions

Timothy P. Cannon, Judge.

{¶ 1} Appellant, Richard J. Wascovich Jr., appeals the judgment of the Lake County Court of Common Pleas granting, in part, a motion to stay the proceedings pending arbitration filed by appellees, Personacare of Ohio, d.b.a. the LakeMed Nursing and Rehabilitation Center et al. (“Personacare”)- Based on the following, the judgment of the Lake County Court of Common Pleas is hereby reversed, and the cause is remanded.

{¶ 2} On April 4, 2008, appellant’s father, Richard J. Wascovich Sr. (“Wasco-vich”), 73, was admitted to LakeMed Nursing Home. According to the complaint, Wascovich fell at LakeMed on April 29, 2008. Wascovich fell again on May 5, 2008, suffering a fracture of his right hip, which had to be surgically repaired. Wascovich died as a result of complications with this hip fracture.

{¶ 3} Appellant, as the personal representative of Wascovich, filed a complaint against Personacare alleging that Personacare was responsible for his death.

{¶ 4} Personacare filed a motion to stay the proceedings, pursuant to R.C. 2711.02. Attached to Personacare’s motion to stay was a copy of the arbitration agreement signed by Wascovich, upon his admittance, and by Jillian Hendrickson, Personacare’s authorized agent. Appellant filed a brief in opposition to Persona-care’s motion to stay, claiming that the arbitration agreement did not control the wrongful-death portion of the complaint. In that same motion, appellant requested a briefing schedule relative to the arbitration clause and the remaining survival claim, alleging that the arbitration “clauses contained in the nursing home admission agreement can be held to be invalid if they are found to be both procedurally unconscionable and substantively unconscionable.”

{¶ 5} In a judgment entry dated August 17, 2009, the trial court found that only the survival claims fell under the arbitration agreement. In doing so, the trial court relied upon the Supreme Court of Ohio’s holding in Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258. Peters was an employee of the appellant and entered into a dispute-resolution plan. Thereafter, Peters fell 50 feet to his death; Peters’s widow brought both a survival action and a wrongful-death action against the appellant. The question presented to the Peters court was “whether the personal representative of a decedent’s estate is required to arbitrate a wrongful-death claim when the [623]*623decedent had agreed to arbitrate all claims against the alleged tortfeasor.” Id. at ¶1.

{¶ 6} The Peters court held, “A survival action brought to recover for a decedent’s own injuries before his or her death is independent from a wrongful-death action seeking damages for the injuries that the decedent’s beneficiaries suffer as a result of the death, even though the same nominal party prosecutes both actions.” Id. at paragraph one of the syllabus. The court further held, “A decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims.” Id. at paragraph two of the syllabus. In Peters, the Supreme Court reiterated its position that arbitration has been “long favored” and encouraged as a “cost-effective proceeding that permits parties to achieve permanent resolution of their disputes in an expedient manner.” Id. at ¶ 20. However, it warned that although arbitration is favored, it cannot be “imposed on the unwilling.” Id.

{¶ 7} Although the decedent in Peters had entered into a dispute-resolution plan, there was no challenge to the enforceability of the plan; that is, whether the underlying agreement was unconscionable.

{¶ 8} In the instant matter, the trial court held the remainder of Personacare’s motion to stay in abeyance, to wit, appellant’s survival claim for damages, “until [appellant] has had the opportunity to fully brief the remaining issues.”

{¶ 9} Discovery -ensued. Personacare filed a response to appellant’s complaint on October 27, 2009. Both parties filed responsive briefs.

{¶ 10} Appellant attached the following to his brief in opposition to Persona-care’s motion to stay: (1) a letter from the Ohio Department of Health regarding binding arbitration agreements in long-term care and residential care facilities, (2) his own affidavit, (3) an affidavit of Jillian Hendrickson, (4) the admission agreement, and (5) the Code of Procedure for the National Arbitration Forum.

{¶ 11} In its reply brief, Personacare attached the following items: (1) a copy of Manley v. Personacare of Ohio, 11th Dist. No. 2005-L-174, 2007-Ohio-343, 2007 WL 210583, (2) a copy of Patricia Manley’s alternative-dispute-resolution agreement, (3) “supplemental disclosures for Kindred Mediations,” and (4) an affidavit of Jillian Hendrickson.

{¶ 12} The trial court issued a December 14, 2009 judgment entry finding the arbitration agreement procedurally unconscionable. The trial court stated:

{¶ 13} “While [Personacare] argue[s] that the terms of the Agreement were explained to [Wascovich] and that [Wascovich] had the opportunity to ask questions or to alter the terms of the Agreement, the Court finds that these factors are outweighed by the ones supporting a finding of procedural uncon-scionability. The circumstances surrounding [Wascovieh’s] admission to Lak-[624]*624eMed led to an absence of meaningful choice on the part of [Wascovich]. As such, the Agreement was proeedurally unconscionable.”

{¶ 14} Addressing substantive unconscionability, the trial court found that it was “bound by the law in Ohio, as set forth in Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054 [908 N.E.2d 408]. Unless an arbitration clause is shown to be proeedurally and substantively unconscionable, which [appellant] has failed to do here, the Agreement is enforceable.” The trial court, therefore, stayed appellant’s survival claims pending arbitration of the claim.

{¶ 15} Appellant filed a notice of appeal and asserts the following assignment of error:

{¶ 16} “The trial court erred when it granted defendant Personacare of Ohio, Inc. d.b.a. [LakeMed] Nursing and Rehabilitation Center and defendant [Lak-eMed] Nursing and Rehabilitation Center’s motion to stay proceedings, pursuant to [R.C.] 2711.02.”

{¶ 17} On appeal, appellant advances three arguments for our review: (1) the arbitration agreement is void as a matter of law, (2) the arbitration agreement is proeedurally unconscionable, and (3) the arbitration agreement is substantively unconscionable.

{¶ 18} We first address appellant’s argument that the arbitration agreement is void as a matter of law. Appellant cites R.C. Chapter 3721, which outlines the rights of residents in nursing homes and residential care facilities, as well as a letter from the Ohio Department of Health addressing binding-arbitration agreements in long-term care and residential care facilities. Appellant also notes that the American Medical Association, the American Bar Association, and the American Arbitration Association have expressed their concern with predispute arbitration agreements.

{¶ 19} This court is mindful of the concerns associated with predispute arbitration agreements in the nursing-home arena. Recognizing the delicate nature of the nursing-home admission process, this court, in Manley v. Persona-care of Ohio, 11th Dist. No.

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Cite This Page — Counsel Stack

Bluebook (online)
943 N.E.2d 1030, 190 Ohio App. 3d 619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wascovich-v-personacare-of-ohio-inc-ohioctapp-2010.