In an August 29, 2013 unpublished decision, the Appellate Division considered and affirmed the trial court’s denial of a nursing home’s motion to dismiss a personal injury and wrongful death claim brought by the estate of a former resident. Levonas v. Regency Heritage Nursing and Rehabilitation Center (Docket No. A-4995-11T4, Aug. 29, 2013).
In Levonas, the resident’s son (and administrator of the resident’s estate) signed the nursing home’s admission agreement, which contained an arbitration provision. Following the resident’s death, the nursing home filed a collection action against the estate in the Special Civil Part; several months later, the son, individually and as administrator of his mother’s estate, filed a civil action against the nursing home and others, alleging negligence, wrongful death and other claims.
Although the nursing home’s answer included an affirmative defense that the action must be dismissed based on the arbitration provision, the nursing home then proceeded to “actively” engage in the litigation for 30 months before it moved for summary judgment, seeking to dismiss the complaint for failure to arbitrate. The trial court denied the nursing home’s motion, finding that it had waived its right to invoke the arbitration provision.
In reviewing the trial court’s denial, the Appellate Division began its analysis by noting that, because nursing home agreements involve interstate commerce, they are governed by the Federal Arbitration Act, which provides that arbitration agreements are enforceable, and which preempts New Jersey’s anti-arbitration statute, N.J.S.A. 30:13-8 .1.
Nevertheless, the Appellate Division noted that an arbitration agreement is a contract, and legal rules governing contract construction, including waiver, will apply. Considering the “totality of the circumstances,” the court concluded that the nursing home defendants had engaged in “litigation conduct that was inconsistent with their right to arbitrate.” The nursing home defendants had initiated litigation in the judicial arena with the collection action; filed five substantive motions without indicating that such action should not be deemed a waiver of their right to arbitrate; engaged in extensive discovery; and waited 30 months before seeking enforcement of the arbitration clause. In sum, the nursing home “undermine[d] the fundamental principles underlying arbitration.’”
Given the nursing home’s waiver, and noting that the plaintiff would be prejudiced by being forced to arbitrate after engaging in two years of discovery, the Appellate Division affirmed the trial court’s denial of the motion to dismiss.
A copy of the August 29, 2013 opinion can be found here: Levonas v. Regency Heritage Nursing and Rehabilitation Center
Categories
- Affordable Care Act
- Alzheimer's Disease
- Arbitration
- Attorney Ethics
- Attorneys Fees
- Beneficiary Designations
- Blog Roundup and Highlights
- Blogs and Blogging
- Care Facilities
- Caregivers
- Cemetery
- Collaborative Family Law
- Conservatorships
- Consumer Fraud
- Contempt
- Contracts
- Defamation
- Developmental Disabilities
- Discovery
- Discrimination Laws
- Doctrine of Probable Intent
- Domestic Violence
- Elder Abuse
- Elder Law
- Elective Share
- End-of-Life Decisions
- Estate Administration
- Estate Litigation
- Estate Planning
- Events
- Family Law
- Fiduciary
- Financial Exploitation of the Elderly
- Funeral
- Future of the Legal Profession
- Geriatric Care Managers
- Governmental or Public Benefit Programs
- Guardianship
- Health Issues
- Housing for the Elderly and Disabled
- In Remembrance
- Insolvent Estates
- Institutional Liens
- Insurance
- Interesting New Cases
- Intestacy
- Law Firm News
- Law Firm Videos
- Law Practice Management / Development
- Lawyers and Lawyering
- Legal Capacity or Competancy
- Legal Malpractice
- Legal Rights of the Disabled
- Liens
- Litigation
- Mediation
- Medicaid Appeals
- Medicaid Applications
- Medicaid Planning
- Annuities
- Care Contracts
- Divorce
- Estate Recovery
- Family Part Non-Dissolution Support Orders
- Gifts
- Life Estates
- Loan repayments
- MMMNA
- Promissory Notes
- Qualified Income Trusts
- Spousal Refusal
- Transfers For Reasons Other Than To Qualify For Medicaid
- Transfers to "Caregiver" Child(ren)
- Transfers to Disabled Adult Children
- Trusts
- Undue Hardship Provision
- Multiple-Party Deposit Account Act
- New Cases
- New Laws
- News Briefs
- Newsletters
- Non-Probate Assets
- Nursing Facility Litigation
- Personal Achievements and Awards
- Personal Injury Lawsuits
- Probate
- Punitive Damages
- Reconsideration
- Retirement Benefits
- Reverse Mortgages
- Section 8 Housing
- Settlement of Litigation
- Social Media
- Special Education
- Special Needs Planning
- Surrogate Decision-Making
- Taxation
- Technology
- Texting
- Top Ten
- Trials
- Trustees
- Uncategorized
- Veterans Benefits
- Web Sites and the Internet
- Webinar
- Writing Intended To Be A Will
Vanarelli & Li, LLC on Social Media