TODD DEVOY V HUTZEL HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
TODD DEVOY, a/k/a TODD MALINOWSKI, a
minor, by his next friend, BOBBIE ANN DEVOY,
UNPUBLISHED
December 6, 1996
Plaintiff-Appellant,
v
No. 181868
LC No. 94-402118-NH
HUTZEL HOSPITAL, a Michigan Non-Profit
Corporation, DEXTER ARRINGTON, M.D., and
YOLANDA RENFROE, M.D. jointly and severally,
Defendants-Appellants.
Before: White, P.J., and Smolenski and R.R. Lamb,* JJ.
PER CURIAM.
Plaintiff Todd Devoy, a minor, by his next friend and mother, Bobbie Ann Devoy, appeals as of
right an order granting defendants’ motion to dismiss plaintiff’s medical malpractice claim, and to compel
arbitration of that claim pursuant to a June 16, 1992 arbitration agreement signed pursuant to the
medical malpractice arbitration act (MMAA), MCL 600.5040 et seq.; MSA 27a.5040 et seq.,
repealed by 1993 PA 78. We reverse.
Plaintiff’s mother and defendant hospital’s admitting interviewer signed the arbitration agreement
under dispute. This agreement identified the patient whose claims plaintiff’s mother agreed to submit to
arbitration only as “Devoy Baby” and “Minor.” Plaintiff’s mother then proceeded to deliver twins, one
of whom is plaintiff.
An evidentiary hearing was held below. See MCR 2.116(I)(3). Thus, on appeal, we will not
set aside the trial court’s factual findings unless they are clearly erroneous. MCR 2.613(C).
Plaintiff argues that the trial court erred in granting defendants’ motion to dismiss and to compel
arbitration. In this case, the trial court found that the arbitration agreement conformed to the statutory
* Circuit judge, sitting on the Court of Appeals by assignment.
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requirements of the MMAA. See, generally, McKinstry v Valley Obstetrics-Gynecology Clinic, PC,
428 Mich 167; 405 NW2d 88 (1987). This finding is not clearly erroneous. Id. at 188. Thus, the
agreement is presumed valid. Id. at 181. This presumption will stand unless rebutted by evidence
demonstrating one or more defenses, such as coercion, mistake, duress or fraud. Id.
Plaintiff argues that the arbitration agreement purporting to bind “Devoy Baby” and “Minor” is
invalid because of coercion or mutual mistake. We disagree. Plaintiff has failed to adequately address
his defense of coercion on appeal. Thus, we deem this issue abandoned. Singerman v Municipal
Service Bureau, Inc, 211 Mich App 678, 684; 536 NW2d 547 (1995). In addition, the trial court did
not clearly err in finding that plaintiff failed to establish the defense of mutual mistake. Plaintiff alleges no
mutual mistake, but rather alleges different mistakes committed by his mother and the admitting
interviewer in executing the arbitration agreement. See Gortney v Norfolk & W R Co, 216 Mich App
535, 542; 549 NW2d 612 (1996). Moreover, the conduct alleged by plaintiff as constituting his
mother’s mistake does not constitute a mistake, but rather simply constitutes a failure to read the
arbitration agreement she was signing on plaintiff’s behalf. A party to a contract is precluded from
avoiding the enforcement of a contract based upon his failure to read the contract. Nieves v Bell Inds,
Inc, 204 Mich App 459, 463; 517 NW2d 235 (1994).
Plaintiff further argues that the terms “Devoy Baby” and “Minor” render the agreement
ambiguous concerning which twin the parties intended to be covered by the agreement. Although
plaintiff raised the issue of ambiguity below, the trial court did not specifically address this issue. Rather,
after finding that the arbitration agreement conformed to the statutory requirements of the MMAA and
rejecting plaintiff’s defense of mutual mistake, the trial court stated as follows:
And the fact that it says baby, as Ms Hobbs [defendants’ counsel] points out, she knew
she was in there for multiple births. I find that the arbitration agreement is valid, not only
as to her but as to the two minor children.
Defendants rely on the principle that “arbitration clauses should be liberally construed with all
doubts about the arbitrability of an issue to be resolved in favor of arbitration.” Ewald v Pontiac
General Hosp, 121 Mich App 793, 797; 329 NW2d 495 (1982). However, although compliance
with the statutory requirements raises a presumption that the arbitration agreement in this case is valid,
we believe that the relevant question is not “the arbitrability of a particular issue where a concededly
binding contract between the parties to arbitrate exists. Instead we are confronted with the problem of
whether an arbitration contract even exists with respect to” plaintiff. Brown v Considine, 108 Mich
App 504, 510; 310 NW2d 441 (1981).
As stated in Horn v Cooke, 118 Mich App 740; 325 NW2d 558 (1982):
An arbitration agreement is a contract whereby all the parties thereto agree to
forego their rights to proceed with a court and, instead, to submit their disputes to a
panel of arbiters. . . . The first inquiry into the arbitrability of a dispute is to determine
whether an arbitration agreement has been reached by the parties. . . . No contract to
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arbitrate can arise except upon the expressed mutual assent of the parties. . . . A party
cannot be required to arbitrate an issue he has not agree to submit to arbitration. . . .
The determination of whether an arbitration contract exists is for the courts to
decide, applying general contract principles. . . . [Id. at 744-745 (citations omitted).]
And, as stated in Heritage Broadcasting Co v Wilson Communications, Inc, 170 Mich App
812; 428 NW2d 784 (1988):
In order to form a valid contract, there must be a meeting of the minds on all the
material facts. . . . A meeting of the minds is judged by an objective standard, looking
to the express words of the parties and their visible acts, not their subjective states of
mind. [Id. at 818 (citations omitted).]
If contract language is clear and unambiguous, its construction is a question of law and the
parties’ intent will be ascertained according to the plain sense and meaning of the language. Port Huron
Ed Ass’n v Port Huron Area School Dist, 452 Mich 309; 550 NW2d 228 (1996); Haywood v
Fowler, 190 Mich App 253, 258; 475 NW2d 458 (1991).
If contract language is subject to two or more reasonable interpretations or is inconsistent on its
face, the contract is ambiguous. Port Huron, supra; Petovello v Murray, 139 Mich App 639, 642;
362 NW2d 857 (1984). The fact that the parties dispute the meaning of a contract does not, in itself,
establish an ambiguity. Gortney, supra at 540. The initial question whether contract language is
ambiguous is a question of law.. Port Huron, supra. If the contract is ambiguous, factual development
is necessary to determine the intent of the parties. Id. Petovello, supra.
In support of their argument that the arbitration agreement is binding on plaintiff, defendants rely
on McKinstry, supra. However, unlike this case, the arbitration agreement at issue in McKinstry
stated “Baby or babies McKinstry.” Defendants also rely on Crown v Shafadeh, 157 Mich App 177;
403 NW2d 465 (1986), in which this Court held that an arbitration agreement was enforceable against
the minor plaintiff even though the agreement did not specifically identify the minor because the minor’s
mother knew the form related to the minor and admitted signing the agreement on the minor’s behalf,
and the minor’s name and patient number were stamped across the top of the agreement. However, in
Crown, only one child was admitted to the hospital. Therefore, when the child’s mother signed the
arbitration agreement it could only have applied to this child.
In this case, the only language identifying the patient to be bound by the arbitration agreement
was presented in the singular terms “Devoy baby” and “Minor.” The agreement does not clearly imply
or suggest that a reference to “babies” was omitted. Thus, we will not supply such a term by
construction. North West Michigan Construction, Inc v Stroud, 185 Mich App 649, 653; 462
NW2d 804 (1990). Accordingly, on its face, the plain sense and meaning of the agreement’s language
is a reference to one baby. However, this language becomes susceptible to more than one
interpretation, and, therefore, ambiguous, when applied to the facts of this case, i.e., the agreements
refers to one Devoy baby but two Devoy babies were born. 1
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If the language of a contract is ambiguous, the court’s duty is to look beyond the language of the
contract to determine its meaning. Stine v Continental Casualty Co, 419 Mich 89, 112; 349 NW2d
127 (1984). Extrinsic evidence is admissible to clarify the meaning of the contract. Id. Ambiguity in a
contract focuses and intensifies the court’s duty to ascertain the intent of the parties in order that the
agreement be carried out. Id. In no case is ambiguity, patent or latent, to result in a declaration that the
contract is void. Id. Where a contract is prepared on behalf of one of the parties, any ambiguity therein
will be strictly construed against that party. Brown, supra at 508. In this case, the arbitration
agreement was a form document supplied by defendant hospital with the terms “Devoy baby” and
“Minor” added by defendant hospital’s admitting interviewer. Where the language contained in a
contract raises doubt or uncertainty in construing a contractual provision, the parties’ interpretation is
given great, if not controlling weight. North West, supra. The promise must be interpreted in the sense
in which the promisee knew or had reason to know that the promisor understood it. Redinger v
Standard Oil Co, 6 Mich App 74, 79; 148 NW2d 225 (1967). A party will be held to that meaning
which he knew the other party to the contract supposed the words to bear. Ardis v Grand Rapids & I
R Co, 200 Mich 400, 414; 167 NW 5 (1918).
In this case, the record reveals that plaintiff’s mother knew she was carrying twins as early as
November 1991. Beginning in January 1992, plaintiff’s mother visited defendant hospital several times
before plaintiff’s birth and signed arbitration agreements each time. These agreements were similar or
identical to the agreement at issue in this case. However, the only patient identified on these agreements
was plaintiff’s mother. Plaintiff’s mother did not recall signing on June 16, 1992, the arbitration
agreement identifying a patient with the terms “Devoy baby” and “Minor.”
Defendant hospital’s admitting interviewer testified at the evidentiary hearing that she did not
remember plaintiff’s mother. The admitting interview testified that upon observing a pregnant patient her
habit was to offer one arbitration agreement for the mother and one arbitration agreement for the baby.
The admitting interviewer testified that when she received information either from the mother or the
triage nurse that the mother was expecting twins she provided separate arbitration agreements for each
of the unborn children. The admitting interviewer testified that it was not her habit to ask the mother
whether the mother was expecting twins. The admitting interviewer testified that the arbitration
agreement containing the terms “Devoy baby” and “Minor” concerned an arbitration agreement for one
child. When asked whether “[a]s of June 16 of 1991 [sic 1992], had anyone at the hospital told you
that by utilizing the term ‘baby minor’ or Baby Devoy/minor, that this was to bind twins who may be
born from a mother who is admitted to the hospital?”, the admitting interviewer answered “No, it would
have – it would say twins. Twin A, Twin B.”
In analyzing these facts, we note that, although plaintiff’s mother did not recall signing the
agreement on plaintiff’s behalf, plaintiff’s mother is presumed to have understood that she was signing an
agreement to arbitrate any claims of a patient identified as “Devoy baby” and “Minor.” McKinstry,
supra at 184. Plaintiff’s mother knew that she was pregnant with twins. However, the promise must be
interpreted in the sense in which the promisee (the admitting interviewer) knew or had reason to know
that the promisor (plaintiff’s mother) understood the promise. Redinger, supra. In this case, the
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admitting interviewer had no reason to know that plaintiff’s mother understood the sense of the promise
to arbitrate as other than a promise to arbitrate the claims of a single child.
In addition, a party will be held to that meaning which he knew the other party to the contract
supposed the words to bear. Ardis, supra. In this case, although knowing that she was pregnant with
twins, we cannot say that plaintiff’s m
other knew that the admitting interviewer supposed that the
disputed language referred to multiple babies. Moreover, even if we make this assumption, and
therefore hold plaintiff’s mother to this meaning, the same cannot be said of the admitting interviewer,
i.e., it cannot be said that the admitting interviewer knew that plaintiff’s mother supposed the disputed
language to refer to multiple babies. Thus, defendant hospital will not be held to this meaning.
Moreover, the admitting interviewer’s own interpretation of the agreement’s language was that but a
single baby was bound by the agreement.
Thus, in objectively viewing the express words of the parties as well as their visible acts, we can
conclude only that the parties intended to submit the claims of a baby but not this plaintiff to
arbitration. “The rule that there must be a meeting of the minds to form a contract involves a common
understanding of the identities of the parties.” 17A Am Jur 2d, Contracts, § 22, p 50. “To constitute a
valid contract, the minds of the parties must have met on the identity of the persons with whom they are
dealing.” Am Jur, § 70, p 95.
Accordingly, we conclude that the trial court erred in enforcing the arbitration agreement and
dismissing plaintiff’s claim. Therefore, we reverse and remand. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Richard R. Lamb
1
This case appears to presents an example of a latent ambiguity. See Black’s Law Dictionary (6th ed),
defining “latent ambiguity,” in part, as follows:
That species of uncertainty or ambiguity in an instrument which is not apparent
from a reading of it but which is revealed when the terms of the instrument are applied
or made operative; e.g. in a bill of lading goods are to be delivered at “Essex Railroad
Wharf”, and there are two such wharfs with the same name.
See also Calamari & Perillo, Contracts (3d ed), § 3-11, p 169, discussing as a good example
of latent ambiguity a case in which the seller agreed to sell cotton to the buyer, with shipment to be
made from Bombay on the ship Peerless. However, there were two ships named Peerless, one to sale
from Bombay in October, the other in December. Our Supreme Court has noted that the distinction
between latent and patent ambiguity is “fast fading and now observed by few courts.” Stine v
Continental Casualty Co, 419 Mich 89, 112, n 7; 349 NW2d 127 (1984).
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