MANOR OAKS, INC. d/b/a MANOR OAKS NURSING & REHABILITATION CENTER v. ROSEMARIE CAMPBELL, as Personal Representative of the ESTATE OF STANLEY CHANSON ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MANOR OAKS, INC., d/b/a MANOR OAKS NURSING &
REHABILITATION CENTER,
Appellant,
v.
ROSEMARIE CAMPBELL, as Personal Representative of the
Estate of STANLEY CHANSON,
Appellee.
No. 4D18-3297
[July 31, 2019]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. CACE-17-016051 (14).
Richard T. Woulfe, Mark A. Rutledge, and Scott C. Cochran of Billing,
Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.
Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellee.
GROSS, J.
The heart of this case is whether a document that designates a health
care surrogate is broad enough to allow that surrogate to consent to an
arbitration provision in a nursing home admission form. We hold that the
narrow focus of the document is on the surrogates’ power to make health
care decisions, not business choices concerning dispute resolution, so we
affirm the order of the trial court denying appellant’s motion to compel
arbitration.
On May 1, 2009, Stanley Chanson signed a document, titled “Durable
Power of Attorney Containing Health Care Surrogate Provisions” (“the
Document”), in which he appointed his friend, Rosemarie Campbell, and
Mark Chanson, his son, “as [his] attorney in fact to manage [his] affairs as
. . . ‘health care surrogate[s]’” (emphasis added).
On December 9, 2016, at age eighty-six, Chanson was admitted to
Manor Oaks Nursing and Rehabilitation Center (“nursing home”).
Campbell signed the nursing home’s admission paperwork which included
an “ARBITRATION PROVISION” that read:
ARBITRATION PROVISION: Any controversy or claim arising
out of or relating to the Agreement, or the breach thereof,
including but not limited to claims under Chapters 400 and
415, FS; in excess of $5,000.00 shall be settled by arbitration
in accordance with the provisions of the Florida Arbitration
Code found at Chapter 682, Florida Statutes, and judgement
upon the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction thereof.
Although the Document is entitled “Durable Power of Attorney
Containing Health Care Surrogate Provisions,” the authority that it
delegates involves only matters pertaining to health care.
The first section of the Document, “HEALTH CARE SURROGATE
PROVISIONS PURSUANT TO F. S. SECTIONS 709.08 AND 765,” reads:
In the event that I have been determined to be incapacitated
to provide informed consent for medical treatment and
surgical and diagnostic procedures, I wish to designate as my
surrogate for health care decisions, the health care
surrogate named herein.
This designation revokes any prior health surrogate
designation which I may have made.
I fully understand that this designation will permit my
healthcare surrogate to make health care decisions and to
provide, withhold or withdraw consent on my behalf; to apply
for public benefits to defray the cost of health care; and to
authorize my admission to or transfer from a health care
facility.
(Emphasis added).
The Document then lists “Additional Instructions,” under which
Chanson’s “healthcare surrogate may” act. The nine numbered
paragraphs all concern matters pertaining to health care.
The Document’s third section reads “INTERPRETATION AND
GOVERNING LAW.” There, the agreement states:
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This instrument is to be construed and interpreted as a
health care surrogate [sic] as provided for in Florida Statute
Section 765 . . . . The enumeration of specific powers herein
is not intended to, nor does it, limit or restrict the general
powers herein granted to my health care surrogate.
(Emphasis added).
Chanson died in March of 2017, and Campbell, as personal
representative of his estate, sued the nursing home for damages pursuant
to Chapter 400, Florida Statutes, entitled “Nursing Homes and Related
Health Care Facilities.” The nursing home moved to stay and compel
arbitration. The trial court denied the motion. The nursing home timely
appealed that order. See Fla. R. App. P. 9.130(a)(3)(C)(iv).
On appeal, we review an order denying a motion to compel arbitration
de novo. See DFC Homes of Fla. v. Lawrence, 8 So. 3d 1281, 1282 (Fla.
4th DCA 2009) (citing Vacation Beach, Inc. v. Charles Boyd Const., Inc.,
906 So. 2d 374, 376 (Fla. 5th DCA 2005)). Where not ambiguous, the
interpretation of a power of attorney or designation of a health care
surrogate is a question of law, subject to de novo review. See Candansk,
LLC v. Estate of Hicks ex rel. Brownridge, 25 So. 3d 580, 582 (Fla. 2d DCA
2009).
Often, courts analyze powers of attorney (“POAs”) to determine whether
they authorize a designee to consent to an arbitration provision in a
contract. A trial court “correctly compels the enforcement of arbitration
provisions where a POA either makes a specific grant of such authority or
‘unambiguously makes a broad, general grant of authority to the attorney-
in-fact.’” Sovereign Healthcare of Tampa, LLC v. Estate of Huerta ex rel.
Huerta, 14 So. 3d 1033, 1034 (Fla. 2d DCA 2009) (quoting Jaylene, Inc. v.
Moots, 995 So. 2d 566, 570 (Fla. 2d DCA 2008)).
To determine whether a POA contains “a sufficiently broad and
unambiguous grant of general authority . . . requires examination of the
language of any catch-all provision contained in a POA, as well as of the
relationship of that language to . . . types of interests over which an
attorney-in-fact is specifically granted authority . . . .” Huerta, 14 So. 3d
at 1034. “Generally, powers of attorney are strictly construed and will be
closely examined in order to ascertain the intent of the principal.” De
Bueno v. Castro, 543 So. 2d 393, 394 (Fla. 4th DCA 1989). Powers of
attorney “will be held to grant only those powers that are specified.” Estate
of Irons ex rel. Springer v. Arcadia Healthcare, L.C. Springer, 66 So. 3d 396,
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398 (Fla. 2d DCA 2011) (quoting Kotsch v. Kotsch, 608 So. 2d 879, 880 (Fla.
2d DCA 1992)).
In this case, the Document gave limited, rather than broad, authority
to “health care surrogate[s]” Campell and Mark Chanson. The entire focus
of the Document concerns matters pertaining to health care decisions
which cannot be stretched to embrace business decisions regarding
dispute resolution.
The Agreement refers to a “health care surrogate” over twenty times.
The narrow focus of the Document on health care issues expresses the
intent of the drafter. It appears that the Document was copied from an
online form, titled “Durable Power of Attorney Containing Health Care
Surrogate Provisions and Provisions Relating to Transfer of Real Property
Including Homestead Property”; the drafter of the Document attempted to
remove all portions granting general powers and real estate powers, leaving
only portions related to healthcare decisions. Sandra G. Krawitz, The
Florida Durable Power of Attorney Becomes a Document to Respect, Fla.
B.J., Dec. 1995, at 14, https://www.floridabar.org/the-florida-bar-
journal/the-florida-durable-power-of-attorney-becomes-a-document-to-
respect-1995-changes/.
Another indicator of the limited scope of the Document is that it grants
the surrogates authority under Chapter 765, Florida Statutes, entitled
“Health Care Advance Directives.” That Chapter defines a “[h]ealth care
decision” as:
(a) Informed consent, refusal of consent, or withdrawal of
consent to any and all health care, including life-prolonging
procedures and mental health treatment, unless otherwise
stated in the advance directives.
(b) The decision to apply for private, public, government, or
veterans' benefits to defray the cost of health care.
(c) The right of access to all records of the principal reasonably
necessary for a health care surrogate to make decisions
involving health care and to apply for benefits.
(d) The decision to make an anatomical gift pursuant to part
V of this chapter.
§ 765.101(5), Fla. Stat. (2011). The statute does not include within the
definition of a “health care decision” the ability to determine the forum in
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which disputes arising from health care decisions are to be resolved. This
is consistent with our observation in Blankfeld v. Richmond Health Care,
Inc., that “waiving the right to sue for damages in the courts for violations
of the [Nursing Home Residents] Act or common law negligence is not a
health care decision.” 902 So. 2d 296, 300 (Fla. 4th DCA 2005); see also
Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So. 3d 627, 630 (Fla.
2d DCA 2010) (recognizing the “arbitration agreement is not related to
[resident’s] medical treatment or the provision of health care services to
him”).
Springer is on point here. 66 So. 3d at 396-99. The nursing home in
Springer, like the nursing home in this case, argued that under Florida
Statutes section 709.08 the POA granted the agent authority to agree to
arbitration. Id. at 398-99. However, the Springer court strictly construed
the POA’s language, stating that “where nothing in a [POA] gives an
attorney-in-fact legal authority to enter into an arbitration agreement on a
person’s behalf, a trial court is incorrect to grant a nursing home’s motion
to compel arbitration based on an admission agreement entered into by
the attorney-in-fact.” Id. at 399 (quoting Carrington Place of St. Pete, LLC
v. Estate of Milo ex rel. Brito, 19 So. 3d 340, 341 (Fla. 2d DCA 2009)).
Here, much of the nursing home’s argument relies on the mention of
“Power of Attorney” in the Document’s title. The body of the Document
clearly narrows its scope to health care matters, which do not include
decisions regarding arbitration of disputes.
The nursing home relies on several cases stating that authority to enter
into arbitration agreements need not be explicit but can be inferred from
use of broad language in the POA. See Zephyr Haven Health & Rehab. Ctr.,
Inc. v. Estate of Clukey, 133 So. 3d 1230 (Fla. 2d DCA 2014); Estate of
Smith v. Southland Suites of Ormond Beach, 28 So. 3d 103 (Fla. 5th DCA
2010); Huerta, 14 So. 3d at 1033; Candansk, LLC v. Estate of Hicks ex rel.
Brownridge, 25 So. 3d 580 (Fla. 2d DCA 2009); Jaylene, 995 So. 2d at 566;
Alterra Healthcare Corp. v. Bryant, 937 So. 2d 263, 269 (Fla. 4th DCA
2006).
However, in each of the cited cases, where the court granted a motion
to compel arbitration, the court relied upon language containing broader
grants of authority than contained in the Document. In Smith, the POA
granted vast authority “generally to do and perform all matters and things
. . . whether involving real property or not”; in Huerta, the POA set “forth
a broad and unambiguous grant of authority” where the agent could “‘sign
any and all releases or consent required’”; in Candansk, the POA granted
the agent extensive authority to “‘act in [the principal’s] name, place and
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stead in any way which [he, himself could] do’”; in Jaylene, the POA
contained broad language granting “ ‘general power’”; and in Alterra, the
POA explicitly gave the agent authority to agree to arbitration. Smith, 28
So. 3d at 104; Huerta, 14 So. 3d at 1035; Candansk, 25 So. 3d at 582;
Jaylene, 995 So. 2d at 568-69; Alterra, 937 So. 2d at 269.
The narrow focus of the Document on health care matters does not
extend to the arbitration clause in the admission documents. We therefore
affirm the order denying the motion to compel arbitration.
LEVINE, C.J., and WARNER, J., concur.
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Not final until disposition of timely filed motion for rehearing.
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