Appeals court rules arbitration provision 'unconscionable'

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A Florida appeals court has ruled an arbitration agreement signed by a daughter as her father was being transported to a nursing home is unenforceable. The decision opens the door for the daughter to sue over claims of negligence, wrongful death and other complaints.

The arbitration provision was part of a larger packet and, despite the fact that it was printed in bold, large letters, the appeals court said it was "unconscionable" because terms of it were never explained to the daughter. The agreement's provisions also attempted to improperly restrict resident rights contained in state law, the appeals court ruled.

Lourdes Prieto filed suit as representative of the state of her father, Valentin Perez, who acquired a fatal urinary tract infection in October 2001 at a facility owned by Retirement Corporation of America.

The facility's arbitration and limitation of liability agreement called for arbitration of any claims. While allowing recovery of net economic damages, it capped non-economic damages to $250,000 and did not allow punitive damages or recovery of attorney costs. It also limited investigative actions.

Although the family had a three-day period to review and rescind any signed documents, the appeals court ruled that the facility's procedures were insufficient, in part, because the arbitration portion was amid "numerous documents" the daughter was asked to sign. The court also found that the agreement encroached on rights granted under the state's Nursing Home Resident's Rights Act.

The full decision can be found at: www.3dca.flcourts.org/3d03-3244.pdf.