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Beverly Enters. v. Cyr

United States District Court, S.D. Georgia, Augusta Division

January 29, 2015

BEVERLY ENTERPRISES, INC., GOLDEN GATE NATIONAL SENIOR CARE, LLC, GGNSC HOLDINGS, LLC, GGNSC CLINICAL SERVICES, LLC, GGNSC ADMINISTRATIVE SERVICES, LLC, AND GGNSC AUGUSTA WINDERMERE, LLC D/B/A GOLDEN LIVING CENTER - WINDERMERE, Plaintiffs,
v.
JUDY CYR, as Administrator of the Estate of Frankie Campbell, and in her Representative Capacity on Behalf of the Children of Frankie Campbell, Defendant

For Beverly Enterprises, Inc., Golden Gate National Senior Care, LLC, GGNSC Holdings, LLC, GGNSC Clinical Services, LLC, GGNSC Administrative Services, LLC, GGNSC Augusta Windermere, LLC., doing business as Golden LivingCenter - Windermere, Plaintiffs: Christian J. Lang, LEAD ATTORNEY, Hawkins Parnell Thackston & Young, LLP, Atlanta, GA.

For Judy Cyr, as Administrator of the Estate of Frankie Campbell, Judy Cyr, in her Representative Capacity on Behalf of the Children of Frankie Campbell, Defendants: D. Bryant Chaffin, LEAD ATTORNEY, PRO HAC VICE, McHugh Fuller Law Group, LLC, Hattiesburg, MS; Thomas W. Tucker, Tucker, Everitt, Long, Brewton & Lanier, PC, Augusta, GA.

ORDER

Honorable J. Randal Hall, United States District Judge.

Before the Court is Defendant's motion to dismiss Plaintiffs' complaint to compel arbitration. (Doc. no. 7.) For the reasons set forth herein, the motion is DENIED and Defendant is DIRECTED to arbitrate her claims.

I. INTRODUCTION

This is a dispute about an arbitration agreement between a nursing facility in Augusta, Georgia, and one of its residents. After the death of the resident, and the commencement of a tort action by one of the decedent's daughters in state court, the Facility and several other related entities filed a complaint in this Court to compel arbitration.

A. Factual Background

On April 26, 2008, Ms. Frankie Campbell (" Campbell" ) designated Ms. Judy Cyr (" Cyr" ), her daughter, as her attorney in fact pursuant to a general power of attorney. (Compl., Ex. A.) On June 30, 2008, Campbell was admitted to Golden LivingCenter - Windermere (" the Facility" ), a skilled nursing facility in Augusta, Georgia, operated by Plaintiff GGNSC Augusta Windermere, LLC d/b/a Golden LivingCenter Windermere. (Compl. 1) 14.)

Upon Campbell's admission to the Facility on June 30, 2008, Cyr signed an arbitration agreement as Campbell's authorized representative pursuant to the power of attorney. (Compl., Exs. A, B.) The arbitration agreement provides in pertinent part:

[A] ny and all claims, disputes, and controversies . . arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration ... in accordance with the National Arbitration Forum Code of Procedure, which is hereby incorporated into this Agreement. . . .

Id. The reference in this paragraph to the National Arbitration Forum Code of Procedure (" N.A.F. Code" ) is the only reference in the arbitration agreement to the National Arbitration Forum (" N.A.F." ) or its Code of Procedure. This is also the only place in the agreement where the topic of an arbitration forum is mentioned. The N.A.F. Code, which is incorporated into the agreement, provides that

[t]his Code shall be administered only by the National Arbitration Forum or by any entity or individual providing administrative services by agreement with the National Arbitration Forum.

(Def.'s Mot. to Dis. at 5.) In other words, the agreement incorporates the N.A.F. Code by reference, and the N.A.F. Code selects the N.A.F. as the forum for arbitration. However, the N.A.F. no longer administers consumer arbitrations. (Pis.' Br. in Supp. of Compl. at 13-16; Def.'s Mot. to Dis. at 5-10.)

With regard to who must arbitrate their claims, the agreement

shall inure to the benefit of and bind the parties, their successors, and assigns, including without limitation . . . all persons whose claim is derived through or on behalf of the Resident, including any parent, spouse, sibling, child ....

(Compl., Ex. B.)

The arbitration agreement has a signature line for the resident and a signature line for an " authorized representative" in the event that the resident is unable to consent or sign. (Id.) Cyr's signature appears on both lines. (Id.) The document prompts the authorized representative, if there is one, to describe his/her " Relationship to Resident." (Id.) Next to that prompt appears the handwritten letters " POA." (Id.) It seems reasonable to infer that " POA" stands for " power of attorney" because the parties agree that Cyr signed the agreement on Campbell's behalf pursuant to a power of attorney.

Campbell resided at the Facility from June 30, 2008 until her death on February 2, 2012. (Def.'s Mot. to Dis. at 1.) During her residency, Cyr asserts that Campbell sustained injuries including pressure sores, weight loss, contractures, falls, infections, and ultimately death. (Id.) On August 7, 2012, Cyr was appointed administrator of Campbell's estate. (Compl. ¶ 19; Ex. C.)

B. Procedural History

1. The State Court Action

On January 13, 2014, Cyr filed a complaint in Wayne County Superior Court, Georgia, against the Facility, several other related entities, and Ms. Angie Denison (" Denison" ) alleging negligence in the care and treatment of Campbell. (Compl., Ex. C.) Cyr alleged that Denison was the administrator of the Facility during Campbell's residency. (Id.) Cyr brought the action as administrator of Campbell's estate and in her representative capacity on behalf of Campbell's children. (Id.)

The defendants in the state court action asserted in part as a defense that Cyr had filed that complaint in violation of an arbitration agreement. However, Cyr states that the defendants did not file a motion to compel arbitration nor did they attempt to enforce the arbitration agreement in the context of the state court proceedings. (Def.'s Mot. to Dis. at 2.) Denison filed a motion to dismiss asserting that she ...


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