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Florida Fourth DCA rules that nursing home's arbitration agreement was not proceduraly unconscionable despite being executed 34 days after patient's admission

On July 5, 2017, in FI-Pompano Rehab, LLC v. Irving, No. 4D16-3121, the Florida Fourth DCA reversed a trial court’s non-final order denying a nursing home’s motion to compel arbitration of a patient’s estate’s complaint for damages under Chapter 400, Florida Statutes. The Fourth DCA concluded that the fact that the arbitration agreement was not executed by the patient’s attorney-in-fact until 34 days after the patient’s admission did not invalidate it. The Court based its finding on the fact that the admission agreement itself made it clear, in simple to understand language, that signing the arbitration agreement was voluntary, and that the arbitration agreement was not a precondition to the furnishing of services to the patient. The Court distinguished its previous ruling in Romano v. Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2003), wherein it had found unconscionable an arbitration agreement executed six days after admission, because in Romano the patient had not been told that she could remain at the facility regardless of whether the agreement was executed. The Fourth DCA also noted that parties attacking contractual provisions on the basis of unconscionability must establish both procedural and substantive unconscionability. Although the plaintiff had not raised substantive unconscionability in the trial court and was consequently not entitled to have the issue entertained on appeal, the Court of Appeals noted that the plaintiff’s substantive unconscionability argument based on the arbitration agreement’s equal allocation of the costs of arbitration to both parties was not a sufficient basis for a finding of substantive unconscionability, at least in the absence of some showing that the costs of arbitration were so prohibitive as to prevents patients at the facility from pursuing statutory remedies.