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Miller v. Cotter, 2007 Mass. LEXIS 189 (Mass. 2007)

Resident’s son (Miller) brought suit against physician (Cotter) as well as nursing home and three employees after his father’s death. Miller had signed admission papers including an arbitration agreement. The arbitration agreement, within the admission agreement, was separated from other language, was not a condition of admission and fact that it was an arbitration agreement was noted in capital letters at the top of the page. The arbitration agreement itself was a two page single spaced document with one-half of the second page being devoted to signatures. The agreement included the following language: “[T]he Admission Agreement evidences a transaction involving interstate commerce governed by the Federal Arbitration Act. It is understood and agreed by Facility and Resident that any 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 . . . and not by a lawsuit or resort to court process.” When deposed, Miller admitted that the admissions employee summarized the document and stated it was not a condition of admission; Miller’s position was that he was under stress at the time, but admitted the stress was not caused by the nursing home’s action. Miller had a degree in English, worked as an intelligence office with the air force and spent twenty-seven years in the insurance industry working, among other roles, as a claims adjuster. After suit was filed, the nursing home answered, including the arbitration agreement as a defense. The trial court denied the motion to compel arbitration because requiring arbitration against one party, but not all parties was inefficient. On appeal, Miller’s primary argument was that the agreement was unconscionable. The court rejected those arguments and declined to find a public policy reason for refusing to enforce nursing home arbitration agreements. The court of appeals found no rule or precedent supporting the trial court’s denial of the motion to compel based on judicial economy. “It is true that, if arbitration is ordered, Miller will be forced to proceed against Cotter in one forum (court) and the Birchwood defendants in another (arbitration). Whether this is inconvenient, duplicative, or inefficient is not determinative. It is the necessary result of the choice that Miller made when he signed the arbitration agreement.” The decision below was reversed and arbitration was compelled. Decided: March 30, 2007.

This decision was reported in Massachusetts Lawyers Weekly at

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