Bland v. Health Care & Ret. Corp. of Am., 927 So. 2d 252 (Fla. 2nd DCA 2006)

Order compelling arbitration was affirmed. Four days after admitting her mother to a nursing home, Ms. Coker, the resident’s daughter, signed documents which included an arbitration and limitation of liability agreement. The agreement was clearly worded, conspicuous and separate from other documents. “The Agreement was intended to be signed by “Resident, Guardian or Other Legal Representative.” The nature of Ms. Coker’s authority to execute the Agreement for her mother was not addressed in this appeal.” The agreement offset medical expenses paid by collateral sources, limited non-economic damages to $250,000, provided that interest and punitive damages could not be awarded, limited discovery and waived attorney’s fees. The court noted that the agreement limited the resident’s remedies, should she prevail, to less than she would be entitled to under the Nursing Home Residents Act. To prevail on a theory of unconscionability, Plaintiff must show both procedural and substantive unconscionability. “Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability to know and understand the disputed contract terms…. Substantive unconscionability, on the other hand, requires an assessment of whether the contract terms are “so ‘outrageously unfair’ as to ‘shock the judicial conscience.'” In finding an absence of procedural unconscionability, the court examined the deposition of the admission direction. “[S]he spent approximately two hours with Ms. Coker on the day Ms. Coker signed the Agreement and other documents. Ms. Coker had ample opportunity that day to review and ask questions about any of the documents. Ms. Coker was not rushed or forced to sign the Agreement. Furthermore, Mrs. Bland’s continued stay at Heartland was not conditioned on Ms. Coker signing the Agreement. … Refusal to sign would not have led to Mrs. Bland’s expulsion from Heartland.” There was also a three-day revocation period. Having determined that the agreement was not procedurally unconscionable, the court declined to reach substantive unconscionability. The court was mindful that other courts have refused to uphold agreements limiting remedies but found nothing in the Nursing Home Residents Rights Act prohibiting contracts that limit liability. Citing Buckeye and other cases, the court found that the arbitrator could not decide whether to enforce them. Note: The appeal seems to indicate that the substantive unconscionability issue was not raised during the motion hearing and not included in the trial judge’s order.