United States District Court, N.D. Alabama, Southern Division
PATRICIA D. CONNELL, as Personal Representative of the Estate of Debra Lynn Cox, deceased, Plaintiff,
BIRMINGHAM NURSING AND REHABILITATION CENTER EAST, LLC, Defendant.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant Birmingham Nursing
and Rehabilitation Center East, LLC's “Amended
Motion to Compel Arbitration and Motion to Stay Proceedings
Pending Resolution of Arbitration or, Alternatively, to
Dismiss.” (Doc. 33). Defendant Birmingham East seeks to
enforce the signed Arbitration Agreement between the parties.
The agreement, if enforced, requires all disputes to be
resolved through arbitration.
19, 2018, Defendant Birmingham East filed this motion to
compel arbitration. (Doc. 33). On August 13, 2018, Plaintiff
Patricia Connell filed her response in opposition. (Doc. 36).
Plaintiff argued that she did not sign an arbitration
agreement and sought to conduct discovery to determine the
validity of the agreement. On August 27, Birmingham East
filed its reply brief, arguing that Ms. Connell did sign the
arbitration agreement, but also seeking discovery into the
limited issue of the validity of the arbitration agreement.
September 5, 2018, this court stayed the motion to compel
arbitration so that the parties could conduct limited
discovery into the issue of the validity of the arbitration
agreement. (Doc. 38). On December 21, Ms. Connell and
Birmingham East filed supplemental replies to the motion to
compel arbitration. (Docs. 53-54). The motion is now ripe for
Debra Lynn Cox was an individual living in Birmingham
East's facility, a long-term care nursing and
rehabilitation facility. (Doc. 34). Patricia Connell, Ms.
Cox's Personal Representative, filed this suit against
Birmingham East on March 30, 2018, claiming that Birmingham
East caused Ms. Cox's wrongful death when Ms. Cox choked
on her food while unsupervised on December 18, 2017. (Doc. 10
29, 2011, Ms. Connell executed an Admission Agreement on
behalf of Ms. Cox as her “Authorized
Representative” to admit Ms. Cox to Birmingham
East's facility. (Doc. 34 at 4). Paragraph 24 of the
Admission Agreement is an arbitration clause:
24. ARBITRATION AGREEMENT: IF THE RESIDENT OR
RESIDENT'S AUTHORIZED REPRESENTATIVE CHOOSES TO ENTER IN
THE ARBITRATION AGREEMENT ATTACHED HERETO AS “EXHIBIT
B, ” THEN ANY DISPUTES OR CLAIMS ARISING UNDER, OR IN
CONNECTION WITH, OR RELATED TO THIS AGREEMENT OR
RESIDENT'S STAY AT FACILITY SHALL BE SUBJECT TO THE TERMS
AND CONDITIONS OF THE ARBITRATION AGREEMENT, AND THE
ARBITRATION AGREEMENT IS FULLY INCORPORATED HEREIN BY
(Doc. 34-2 at 20). Beneath Paragraph 24, the agreement reads:
THE UNDERSIGNED AGREES THAT HE/SHE HAS READ THIS ADMISSION
AGREEMENT, FULLY UNDERSTANDS ITS TERMS AND CONDITIONS, AND IN
CONSIDERATION OF THE SERVICES TO BE RENDERED TO THE RESIDENT,
AGREES, WHETHER AS THE RESIDENT OR RESIDENT'S AUTHORIZED
REPRESENTATIVE, TO ALL OF THE TERMS AND CONDITIONS SET FORTH
(Id.). At the bottom of the page are lines for the
signature of the Resident, Resident's Authorized
Representative, Spouse, and Facility Representative.
B to the Admission Agreement is a “Jury Trial Waiver
and Arbitration Agreement.” (Doc. 34-2 at 33). Exhibit
B provides in relevant part: “The parties understand
and agree that all claims, disputes, and controversies of any
kind between the parties arising out of or relating in any
way to the Admission Agreement or any service or health care
provided by the Facility to the Resident shall be resolved
exclusively by binding arbitration.” (Id.).
The last page of Exhibit B contains lines for the Resident,
Resident's Authorized Representative, and Facility
Representative to sign. (Id. at 37).
East attached to its motion to compel arbitration a copy of
the Admission Agreement with Patricia Connell's signature
underneath the arbitration clause as the Resident's
Authorized Representative, and Letoria Moore's signature
as the Facility Representative. (Doc. 34-2 at 20). The
Resident and Spouse lines are blank. Birmingham East's
copy also contained signatures by Patricia Connell and
Letoria Moore on the last page of Exhibit B, the Jury Trial
Waiver and Arbitration Agreement. (Id. at 37).
Connell contends that she did not sign or agree to
the arbitration agreement. (Doc. 36 at 4). She attached to
her response a blank copy of the arbitration agreement with
no signatures from any parties under the arbitration clause
or on the last page of Exhibit B. (Doc. 36-2 at 20, 37). Ms.
Connell maintains that neither Ms. Moore nor any facility
representative discussed the arbitration agreement with her.
(Doc. 36 at 4).
parties submitted conflicting evidence regarding the validity
of Ms. Connell's signature on Birmingham East's copy
of the Admission Agreement. Ms. Connell testified in her
deposition that she does not remember signing any documents
during the admissions process, including an arbitration
agreement. (Doc. 54-1 at 16). She testified that the
signature “doesn't look like my handwriting.”
(Id. at 17). Birmingham East submitted affidavit
testimony of a forensic handwriting expert, Steven G.
Drexler, who conducted a forensic handwriting analysis using
samples of Ms. Connell's handwriting and the ...