Day v. Kindred

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE GLORIA A. DAY, Personal Representative of the Estate of FRANCIS W. DAY, on behalf of the ESTATE OF FRANCIS DAY, deceased, and GLORIA A. DAY, on behalf of FRANCIS DAY S statutory beneficiaries under A.R.S. § 12612(A), ) ) ) ) ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) KINDRED HOSPITALS WEST, L.L.C., a ) Delaware limited liability ) company, dba KINDRED HOSPITAL ) ARIZONA-SCOTTSDALE; KINDRED ) HEALTHCARE OPERATING, INC., a ) Delaware corporation; KINDRED ) HEALTHCARE, INC., a Delaware ) corporation; KAREN SHAMMAS, ) Administrator; and SCOTT FLODEN, ) Executive Director, ) ) Defendants/Appellees. ) ) No. DIVISION ONE FILED: 12/08/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CV 10-0574 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) FILED 12/08/2011 Appeal from the Superior Court in Maricopa County Cause No. CV2009-033017 The Honorable John A. Buttrick, Judge REVERSED AND REMANDED Wilkes & McHugh, P.A. By Melanie L. Bossie Elizabeth A. Gilbert And Phoenix Law Office of Scott E. Boehm, P.C. By Scott E. Boehm Attorneys for Plaintiffs/Appellants Phoenix Holloway Odegard Forrest & Kelly, P.C. By Vincent J. Montell Anthony J. Fernandez Attorneys for Defendants/Appellees Phoenix J O H N S E N, Judge ¶1 Gloria A. Day, as personal representative of the estate of her deceased husband and on behalf of his statutory beneficiaries, filed a complaint against Kindred Hospitals West, L.L.C., doing business as Kindred Hospital Arizona-Scottsdale, Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., Karen Shammas and Scott Floden (collectively Kindred ) arising out of Kindred s treatment of Day s husband. Kindred moved to dismiss the complaint, arguing the dispute should be resolved pursuant to an alternative dispute executed on behalf of her husband. Kindred s motion. resolution agreement Day The superior court granted For the following reasons, we reverse the judgment and remand for further proceedings. 2 FACTS AND PROCEDURAL BACKGROUND ¶2 Day s husband, Francis W. Day, was admitted to one of Kindred s hospitals for recovery and rehabilitation after hip surgery. In an affidavit filed with her response to Kindred s motion to dismiss, Day, 80 years old, described that time as an extremely stressful period and said the stress affected her ability to think clearly. Day said that the day after her husband s Kindred waiting transfer outside her to the husband s hospital, room, a woman while she associated was with hospital handed her some papers to sign to admit her husband to the hospital. Day s affidavit stated, I recall signing the admission paperwork so that my husband could be admitted to Kindred Hospital Arizona to receive care. Kindred gave Day no explanation dispute regarding the alternative resolution agreement that was included in the 23 pages of paperwork Day was handed. Day quickly signed the documents so she could rejoin her husband in his hospital room. she was not aware she had In her affidavit, Day stated signed an agreement requiring arbitration and did not know the purpose and meaning of an arbitration agreement[] agreement. Her affidavit concluded, Had I been fully informed concerning what or arbitration the is, rights the waived via differences such between an an arbitration and a jury trial, what rights my husband had under Arizona law as a vulnerable adult, and if I had not been told 3 that I had to sign all of the forms presented to me, including the arbitration agreement, I would not have signed the bears the agreement. ¶3 The capitalized, five-page bold-faced arbitration title agreement VOLUNTARY ALTERNATIVE RESOLUTION AGREEMENT BETWEEN PATIENT AND HOSPITAL. a two-step process for claims against Kindred. DISPUTE It requires The first step is mediation, and if mediation fails, the parties are subject to binding arbitration. ¶4 Directly beneath the title of the document following paragraph: Under Arizona and Federal law two or more parties may agree in writing for the settlement by arbitration of any dispute arising between them. The following is an agreement to forego a jury trial and to instead resolve any dispute that might arise between the Patient and the Hospital through alternative dispute resolution methods, including arbitration. On page four of the document is a paragraph stating, Patient acknowledges that he/she understands the following: (1) He/She has the right to seek legal counsel from an attorney of his/her choice concerning this Agreement; (2) The signing of this Agreement is voluntary and not a pre-condition of admission to or the furnishing of services to the Patient by Hospital, and the decision of whether to sign the Agreement is solely the Patient s decision without influence from the Hospital . . . (4) THE ADR PROCESS ADOPTED BY THIS AGREEMENT CONTAINS PROVISIONS FOR BOTH MEDIATION AND BINDING 4 is the ARBITRATION, AND IF THE PARTIES ARE UNABLE TO REACH SETTLEMENT INFORMALLY OR THROUGH MEDIATION, THE DISPUTE SHALL PROCEED TO BINDING ARBITRATION; (5) AGREEING TO THE ADR PROCESS IN THIS AGREEMENT MEANS THAT THE PARTIES ARE WAIVING ANY RIGHT TO TRIAL IN COURT, INCLUDING ANY RIGHT TO A JURY TRIAL, ANY RIGHT TO A TRIAL BY A JUDGE, AND THEIR RIGHT TO APPEAL THE DECISION OF THE ARBITRATOR(S) IN A COURT OF LAW; and (6) He/She acknowledges that the terms and effect of this Agreement have been explained to and understood by the Patient and that he/she has had the opportunity to ask questions about this Agreement. (Emphasis in original.) ¶5 The complaint Day filed alleged that throughout his stay at the Kindred hospital, her husband was compromised both mentally and physically. He remained at Kindred until his death on August 14, 2008. ¶6 Day s complaint alleged negligence, violation of the Adult Protective Services Act under Arizona Revised Statutes ( A.R.S. ) sections 46-451, -454 and -455 (2008) and wrongful death. Citing agreement, Over Day s the Kindred signed moved to alternative dismiss objection and after compelled arbitration and dismissed prejudice. It stated, 5 and oral dispute compel argument, Day s resolution arbitration. the complaint court with In this case, [Day] has not defined material issues of fact regarding the Agreement. She does not assert lack of capacity or competence. Nor does she argue that she had no opportunity to read and review the document before signing it. In the circumstances, there is no need for an evidentiary hearing. As to [Day] s remaining legal arguments, they are rejected for the reasons set forth in the briefing. ¶7 Day filed a timely appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2011). 1 DISCUSSION A. Standard of Review. ¶8 We review a ruling on a motion to compel arbitration in the same manner as a ruling granting summary judgment. See Ruesga v. Kindred Nursing Ctrs. West, L.L.C., 215 Ariz. 589, 596, ¶ 23, 161 P.3d 1253, 1260 (App. 2007) ( courts have repeatedly analogized a trial court s duty in ruling on a motion to compel arbitration to its duty in ruling on a motion for a summary judgment, implying review (quotation omitted)). analogous standard for appellate Thus, our role is to determine whether there is any genuine issue of material fact underlying the adjudication, and, if not, whether the substantive law was correctly applied. Long v. Buckley, 129 Ariz. 141, 142, 629 1 Absent material revisions after the relevant date, we cite a statute s current version. 6 P.2d 557, 558 (App. 1981) (standard of review for grant of summary judgment). We review interpretation of a contract de novo. the superior court s Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, 288, ¶ 14, 981 P.2d 584, 588 (App. 1998). We view the facts and all reasonable inferences in the light most favorable to the party opposing the motion. See Hill-Shafer P ship v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990) (review of summary judgment). B. The Arbitration Agreement. ¶9 Arbitration contracts are valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. A.R.S. § 12-1501 (2011). Thus, the enforceability of an arbitration agreement is governed by general principles of contract law. Broemmer v. Abortion Servs. of Phx., Ltd., 173 Ariz. 148, 150, 840 P.2d 1013, 1015 (1992). ¶10 not Day contends the arbitration agreement she signed is enforceable because it is a contract of adhesion contains terms beyond her reasonable expectations. that See id. at 151, 840 P.2d at 1016. ¶11 An adhesion contract is one offered on a take-it-or- leave-it basis to a consumer who has no realistic bargaining strength. See Burkons v. Ticor Title Ins. Co. of Cal., 165 Ariz. 299, 311, 798 P.2d 1308, 1320 (App. 1989), rev d on other 7 grounds, 168 Ariz. 345, 813 P.2d 710 (1991). [U]nder such conditions . . . the consumer cannot obtain the desired product or services Broemmer, except 173 omitted). by Ariz. In at Broemmer, acquiescing 150, the 840 in the form contract. P.2d at 1015 (quotation Arizona Supreme Court held an arbitration agreement between an abortion clinic and a young woman was a contract of adhesion because it was a standardized contract offered to the young woman on a take it or leave it basis. Id. at 151, 840 P.2d at 1016. ¶12 We contention infer that the that the superior arbitration court agreement rejected was a Day s contract of adhesion because the agreement itself specifically states it is a voluntary agreement that a patient need not sign to receive treatment. As recounted above, the agreement is titled VOLUNTARY and recites that signing it is voluntary and not a pre-condition of admission to or the furnishing of services. ¶13 In her affidavit, however, Day presented evidence to support the proposition that she may have reasonably believed that she was required to sign the agreement in order for Kindred to treat her husband. She stated that she received the arbitration agreement when [a] person handed me some papers to sign to admit my husband to the Kindred hospital. Her affidavit continued, I recall signing the admission paperwork 8 so that my husband could be admitted to Kindred Hospital Arizona to receive care. ¶14 the Day argues that because Kindred offered no evidence to contrary, we must take as true her argument that the arbitration agreement was offered to her to sign on a take-itor-leave-it basis. Given the language in the arbitration agreement itself, we decline to adopt Day s contention that her affidavit, by itself, required Kindred s motion to dismiss. the superior court to deny Moreover, although Day s affidavit may imply that the woman who handed Day the packet of documents told her that her husband would not be treated if she did not sign all the expressly. documents, Day s affidavit does not say so Thus, we conclude that on the record presented, a material issue of fact exists as to whether the arbitration agreement on which Kindred relies was a contract of adhesion. 2 ¶15 remain We likewise concerning conclude Day s that contention material that issues the of fact arbitration agreement cannot be enforced because it is beyond her reasonable expectations. See Broemmer, 173 Ariz. at 151, 840 P.2d at 1016 (contract of adhesion will not be enforced if it does not fall 2 Unlike the dissent, we do not understand Broemmer to require the conclusion that the arbitration agreement Day signed is unenforceable as a matter of law. As we have said, while the Broemmer court concluded the contract there was a contract of adhesion because it was offered to the patient on a take-it-orleave-it basis, the agreement in this case recited that signing it was not a condition of treatment. 9 within the reasonable expectations of the weaker or adhering party (quotation omitted)). ¶16 Day s affidavit asserted that she signed each document in the packet quickly and was not even aware that [she] had signed an arbitration agreement, the purpose and meaning of an arbitration agreement, or the rights agreement. Contrary to one of waived the via such recitations an in the agreement, Day said no one from Kindred explained the document to her. 3 Furthermore, she said she lacks training, experience or work history that otherwise might have informed her about arbitration. ¶17 We conclude Day s averments were sufficient to create an issue of fact concerning her contention that the arbitration provisions were beyond her reasonable expectations. We do not agree, however, with our dissenting colleague that the superior court should have ruled in Day s favor on this issue as a matter of law. The invalid arbitration agreement in Broemmer contained no conspicuous or explicit waiver of the fundamental right to a jury trial. that as a Id. at 152, 840 P.2d at 1017. matter of law, the We cannot conclude jury-trial waiver in the arbitration agreement at issue in this case was not conspicuous 3 The agreement Day signed recites (apparently falsely, according to Day s affidavit) that the terms and effect of this Agreement have been explained to and understood by the Patient and that he/she has had the opportunity to ask questions about this Agreement. 10 or explicit. Nor does this case present any question as to the impartiality of arbitrator, such as was presented in See id. at 151-52, 840 P.2d at 1016-17. 4 Broemmer. ¶18 the Day cites no authority, and we are aware of none, for the proposition that a patient or his representative is not bound by an arbitration provision simply because he was unfamiliar with alternative dispute resolution and did not pause to read the arbitration agreement before signing. We take at face value Day s assertion that she was feeling stress at the time and that she signed the agreement quickly so that she could return to her husband. finder of fact, may But the superior court, acting as the conclude that key provisions of the agreement were so conspicuous and plainly worded that Day could not have reasonably been surprised to hear of them later. note that concept of although Day arbitration, states the she first was unfamiliar sentence of the with We the agreement explained that two or more parties may agree in writing for the settlement by arbitration of any dispute arising between them, and further explained that [t]he following is an agreement to 4 Citing information outside the record, the dissent argues there are questions concerning the objectivity of the National Arbitration Forum, the arbitration company specified in the agreement. In arguing the agreement cannot be enforced, Day does not challenge the objectivity of the neutrals who might sit as arbitrators pursuant to the agreement, perhaps because, as the dissent acknowledges, National Arbitration Forum apparently is no longer in existence. See footnote 6, infra. 11 forego a jury trial . . . between the Patient and the Hospital through alternative arbitration. dispute resolution methods, including On the other hand, the court may conclude that given all the relevant circumstances, including Day s experience and relative ability to read and comprehend the document, she would not have reasonably understood the arbitration provision without assistance. CONCLUSION ¶19 For the reasons stated, we conclude genuine issues of material fact exist concerning whether the agreement was a contract of adhesion and, if it was, whether the arbitration provisions were within Day s reasonable expectations. See Phx. Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345, 1349 (App. 1994) (remanding enforceability of contract of adhesion signed by patient s husband, who offered evidence that he would not have assented to the contract if he had understood it). Accordingly, we vacate the judgment dismissing the complaint and remand for further proceedings by the superior court. See Ruesga, 215 Ariz. at 596, ¶¶ 23-24, 161 P.3d at 1260 (describing nature of summary proceedings superior court may conduct when material issues of fact are presented on a motion to compel arbitration). Because Day timely requested discovery, the court shall allow her a reasonable opportunity to 12 develop the facts, then set an evidentiary hearing after which it shall decide the matter. ¶20 Because we See id. have decided to remand for further proceedings, we need not address Day s contention that Kindred owed her a fiduciary duty, which it breached by the manner in which it obtained her consent to the arbitration agreement, and her argument that even if the agreement is enforceable, it does not apply to claims raised by her deceased husband s statutory wrongful-death beneficiaries. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICIA A. OROZCO, Judge K E S S L E R, Judge, concurring in part and dissenting in part, ¶21 I concur with the majority s conclusion that Day is entitled to a period of discovery and an evidentiary hearing if a disputed issue of material fact exists on the enforceability of the arbitration agreement. majority Rather, that we a are I respectfully disagree with the genuine dispute presented with of a material scenario of fact exists. whether an arbitration agreement waiving all rights to a jury trial is enforceable when it was presented to an eighty-year-old woman 13 unskilled in legal matters among twenty-three pages of documents shortly after her husband was admitted to a hospital and she was told she had to sign all of the documents. I conclude that, like the arbitration agreement in Broemmer v. Abortion Services of Phoenix, Ltd., 173 Ariz. 148, 840 P.2d 1013 (1992), the arbitration agreement in this case is both a contract of adhesion and is unenforceable because it contains provisions beyond Day s reasonable expectations. Accordingly, I would reverse and remand this matter to have the civil litigation proceed without arbitration. FACTUAL AND PROCEDURAL HISTORY ¶22 This appeal comes to us in the setting that the defendants chose not to dispute Day s affidavit or the documents she submitted to the trial court. Accordingly, we are obliged to take as true the factual events recited by Day. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990) ( If the opposing party fails to present, either by affidavit or other competent evidence, facts which controvert the moving party s affidavits, the facts alleged by the moving party may be considered as true. ). We are also obliged to make all reasonable inferences from those facts in favor of Day. Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 90, 163 P.3d 1034, 1061 (App. 2007) (citation omitted). 14 ¶23 Day s husband ( Husband ) was an elderly man who had hip surgery prior to his admission to one of Kindred s hospitals ( Kindred or Hospital ) for recovery and rehabilitation. Day, who was eighty years old, described that time as an extremely stressful period affecting her ability to think clearly. The day after Husband s transfer to Kindred, while Day was waiting in the Hospital to join her husband, a woman associated with the Hospital gave Day Husband s admissions paperwork. Day s affidavit implies that the woman instructed her to sign all of the forms presented to [her] for Husband to continue receiving treatment. Kindred Despite language in the paperwork to the contrary, gave agreement that paperwork. Day no was explanation included in regarding the the arbitration twenty-three pages of Day quickly signed the documents so she could ensure Husband s admission and subsequent care and rejoin him in his hospital room. aware that In her affidavit, Day states [she] was not even [she] had signed an arbitration agreement, the purpose and meaning of an arbitration agreement, or the rights waived via such an agreement. ¶24 The arbitration Alternative Dispute Hospital, requires Kindred. agreement, Resolution a two-step Agreement process entitled Between for Voluntary Patient claims and against The first step is mediation, and if mediation fails, 15 the parties are subject to binding arbitration. The document also includes the following passage in bold type: AGREEING TO THE ADR PROCESS IN THIS AGREEMENT MEANS THAT THE PARTIES ARE WAIVING ANY RIGHT TO TRIAL IN COURT, INCLUDING ANY RIGHT TO A JURY TRIAL, ANY RIGHT TO A TRIAL BY A JUDGE, AND THEIR RIGHT TO APPEAL THE DECISION OF THE ARBITRATOR(S) IN A COURT OF LAW. That paragraph also contains additional provisions in regular typeface stating that the Agreement is voluntary and not a precondition of admission to or the furnishing of services and that the terms and effect of this Agreement have been explained to and understood by the Patient. ¶25 As alleged in the complaint, throughout his stay at Kindred, Husband was both mentally and physically compromised. He was dependent on Kindred for all his daily needs including feeding, hygiene, infection rehabilitation, and exercise. control, toileting, physical Over the course of two months, Husband developed pressure sores that became highly infected. The infection ultimately spread and malnutrition, dehydration, and weight loss. was aggravated by Husband remained a resident of Kindred until his death in August 2008. ¶26 Day filed a complaint alleging negligence, wrongful death, and a violation of the Adult Protective Services Act under Arizona Revised Statutes ( A.R.S. ) sections 46-451 to 459 (Supp. 2011). Relying on the signed agreement, Kindred 16 immediately filed a motion to dismiss and to compel arbitration. Day responded, asserting the agreement was unenforceable and requesting an evidentiary hearing on its enforceability. Following oral argument, the trial court compelled arbitration and dismissed Day s complaint with prejudice: In this case, [Day] has not defined material issues of fact regarding the Agreement. She does not assert lack of capacity or competence. Nor does she argue that she had no opportunity to read and review the document before signing it. In the circumstances, there is no need for an evidentiary hearing. As to [Day] s remaining legal arguments, they are rejected for the reasons set forth in the briefing. DISCUSSION ¶27 Day asserts in part that the Arbitration Agreement is unenforceable as an adhesion contract whose terms she did not reasonably expect. I agree. ¶28 This favoring arbitration resolution. court recognizes as the the strong preferred public means of policy dispute Stevens/Leinweber/Sullens, Inc. v. Holm Dev. & Mgmt., Inc., 165 Ariz. 25, 29, 795 P.2d 1308, 1312 (App. 1990). However, that same public policy presupposes the existence of a valid agreement to arbitrate. Only when the arbitration provision is enforceable will the court compel arbitration. Id. at 30, 795 P.2d at 1313. Arbitration contracts are valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. 17 A.R.S. § 12-1501 (2003). Thus, the enforceability of an arbitration agreement is governed by general principles of contract law. Broemmer, 173 Ariz. at 150, 840 P.2d at 1015; see also Maxwell v. Fid. Fin. Servs., Inc., 184 Ariz. 82, 88, 907 P.2d 51, 57 (1995) ( This court previously has noted the rule that reasonable expectations and unconscionability are two distinct grounds for invalidating or limiting the enforcement of a contract . . . . ). ¶29 The ADR Agreement was an unenforceable contract of adhesion. An adhesion contract is one that is offered on a take-it or leave-it basis to a consumer who has no realistic bargaining strength. 1015. Broemmer, 173 Ariz. at 150, 840 P.2d at [U]nder such conditions . . . the consumer cannot obtain the desired product or services except by acquiescing in the form contract. one of adhesion enforceability. is fully Id. But a conclusion that the contract was is not, of itself, determinative Id. at 151, 840 P.2d at 1016. enforceable according to its of its Such a contract terms . . . unless certain other factors are present which, under established legal rules legislative or judicial operate to render it otherwise. Id. (citation omitted). to the whether reasonable the In determining enforceability, we look expectations contract is of the unconscionable. adhering Id. party and Although customers typically adhere to standardized agreements and are 18 bound by them without even appearing to know the standard terms in detail, they are not bound to unknown terms which are beyond the range of reasonable expectation. Broemmer, 173 Ariz. at 152, 840 P.2d at 1017 (quoting Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 391, 682 P.2d 388, 396 (1984)). ¶30 In Broemmer, the Arizona Supreme Court held that a one-page arbitration agreement between an abortion clinic and a young woman was unenforceable as a contract of adhesion as it was beyond the reasonable expectations of the plaintiff. Id. Accordingly, the supreme court reversed the summary judgment that had required evidentiary hearing. arbitration Id. without remanding it for an This case requires the same result because the facts in Broemmer are, for all relevant purposes, indistinguishable. ¶31 In both cases, each plaintiff was under a great deal of emotional stress, was not experienced in commercial matters, and did not know anything about arbitration. Id. When filling out paperwork, neither plaintiff realized she was signing an arbitration agreement, and neither medical facility made any attempt to explain its nature or consequences. Id. ¶32 this The majority concludes that case is distinguishable from Broemmer on whether it was a contract of adhesion because the agreement did not require a signature as a 19 prerequisite for Husband receiving services at Hospital and Day did not expressly say she was told she had to sign the agreement to obtain such services. Supra, ¶ 14 and n.1. I cannot agree. Unlike the one-page agreement handed to the patient in Broemmer that stated the patient was free to go to other clinics, the agreement here documents. was part of a twenty-three page packet of Additionally, Day expressly stated in the affidavit that she was told she had to sign all the documents handed to her. 5 ¶33 Moreover, the fact that Day s affidavit did not expressly state she was told she had to sign the documents to obtain services is of no moment. We are obliged to make all reasonable inferences from the undisputed facts in favor of and not against the non-movant. P.3d at 1061. Dawson, 216 Ariz. at 111, ¶ 90, 163 We can reasonably infer from Day s undisputed affidavit that a member of Hospital staff told her she had to sign all of the admissions forms to obtain services. Thus, this case is even stronger than Broemmer to hold the arbitration agreement is a contract of adhesion. 5 It is undisputed Day was I recall signing the admission paperwork so that my husband could be admitted to [Kindred] to receive care. . . . Had I been fully informed concerning what arbitration is, the differences between an arbitration and a jury trial, what rights my husband had under Arizona law as a vulnerable adult, and if I had not been told that I had to sign all of the forms presented to me, including the arbitration agreement, I would not have signed the agreement. (Emphasis added.) 20 told Kindred was the only hospital she could get services for her husband whereas in Broemmer the arbitration agreement expressly stated the patient knew there were other clinics for her to obtain the requested services. While the form itself may have been labeled as voluntary, the conditions under which the form was presented indicate that the contract was one of adhesion. ¶34 These same undisputed facts also are indistinguishable from Broemmer on whether the arbitration agreement was beyond Day s reasonable expectations. In Broemmer, the court held that an adhesion contract consisting of a one-page document requiring arbitration and telling the patient she could obtain services at other clinics if she refused to sign, was unenforceable as a matter of patient. 1023. law as beyond the reasonable expectations of the Broemmer, 173 Ariz. at 152, 157, 840 P.2d at 1017, This case is even more compelling than Broemmer because the arbitration agreement was included among twenty-three pages of paperwork Kindred presented to Day and told her to sign and Day had been told that Hospital was the only location Husband could obtain the services needed. While the agreement provided in regular typeface that signing the agreement was not a precondition to the furnishing of services to Husband, such language has little bearing when it was simply one statement among twenty-three pages of documents, 21 no one bothered to explain the purpose of the agreement to Day, and Day s affidavit concerning the manner in which the documents were presented to her refutes the boilerplate language hidden in the twenty-three pages she was arbitration handed agreement and told to specifically sign. states Moreover, that [b]y the signing this Agreement, . . . [the Patient] acknowledges that the terms and effect understood of by this the Agreement Patient have and opportunity to ask questions. been that explained he/she has to and had the The inclusion of this language indicates that Kindred understood that patients might consider the agreement confusing and require additional explanation. ¶35 Finally, the majority states that unlike Broemmer, here the objectivity of the proposed arbitration panel is not suspect. not, that considered Supra, ¶ 17. distinction in Even if that were accurate, which it is is Broemmer. 6 unavailing When 6 we as simply consider one Day s factor emotional The arbitration panel in Broemmer was to consist of OBGYN specialists. 173 Ariz. at 151, 840 P.2d at 1016. Here, the arbitrators were to be the National Arbitration Forum ( NAF ). Independent research shows NAF s lack of objectivity in favoring industry. Thus, lawsuits have been filed by both the San Francisco City Attorney and the Minnesota Attorney General against NAF based on its lack of objectivity. See California v. Nat l Arbitration Forum, Inc., No. 473-569 (San Francisco Cnty. Super. Ct. filed Mar. 24, 2008), http://www.sfcityattorney.org/index.aspx?page=178; Minnesota v. Nat l Arbitration Forum, Inc., No. 09-18550 (Hennepin Cnty. Dist. Ct. 4th Jud. Dist. filed July 14, 2009); State of Minnesota Office of the Attorney General, National Arbitration Forum Barred from Credit Card and Consumer Arbitrations under 22 stress, her lack of experience in commercial matters, her lack of knowledge regarding arbitration, and the circumstances in which the agreement was presented and signed, I conclude that the arbitration agreement was a contract of adhesion beyond Day s reasonable expectations, and is therefore unenforceable. CONCLUSION ¶36 For the reasons stated above, I would reverse the order compelling arbitration and dismissing the complaint and not remand for further evidentiary hearings on the enforceability of the arbitration agreement. /s/ DONN KESSLER, Judge Agreement with Attorney General Swanson (July 2009), http://legal pad.typepad.com/files/minn-release-agreement.pdf ( To consumers, the company said it was impartial, but behind the scenes, it worked alongside credit card companies to get them to put unfair arbitration clauses in the fine print of their contracts and to appoint the Forum as the arbitrator. Now the company is out of this business. ). Reports have also been published documenting NAF trends. See Public Citizen, The Arbitration Trap: How Credit Card Companies Ensnare Consumers (Sept. 2007), http://www.citizen.org/documents/ArbitrationTrap .pdf ( In the nearly 20,000 cases where NAF reached a decision, [the industry] prevailed in an astonishing 99.6 percent of cases. ). Thus, just as in Broemmer, the arbitration panel was beyond Day s reasonable expectations because of its purported lack of objectivity. At oral argument, Kindred argued that NAF is no longer in existence and new arbitrators would have to be found. However, that is not the issue. The issue is whether Day would have had any reasonable expectation that she was agreeing to arbitrators whose objectivity was highly suspect. 23

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