Arbitration & Mediation

Nursing Home Arbitration: Evidentiary Hearing Required... (and new theory that severing provisions only applies to public policy disputes?)

By Christopher B. Hopkins, Esq.

The fact that the Second District found that an evidentiary hearing was required when the parties disputed the making of a arbitration agreement is certainly not new.

The case of FL-Carrollwood Care Center, LLC; Senior Health Management, LLC; Senior Health Management - Gold Coast LLC et al. v. Loly Jaramillo as PR of Estate of Jerry Jeramillo, Sr. (Morris, Northcutt, and Villanti) holds that a dispute over procedural and substantive unconscionability requires an evidentiary hearing. Indeed, this is not news since the same court, same set of lawyers, and one of the parties were involved in a nearly identical case which came out in late May 2010, FL_Carrollwood Care Center, LLC; Senior Health Management - Gold Coast, LLC et al. v. Estate of Robert Dizon Gordon, Sr. (Davis, Whatley and LaRose).

Note the interesting argument by the plaintiff that severing the alleged offending provisions is only available if the basis for the dispute is public policy. The court did not take up the argument as moot or premature.

Also interesting to see the heavy reliance by the Second DCA on (old) Third and Fourth DCA nursing home arbitration cases (Prieto and Romano) when, overall, the courts still don't see eye-to-eye on a number of arbitration enforcement issues.

Disclaimer: your writer was counsel in Prieto and Romano.

More to come on the severance / public policy issue.

Full post as published by Florida Arbitration Law on June 08, 2010 (boomark / email).