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Templeman v. Kindred Healthcare, Inc.

Court of Appeals of Ohio, Eighth District

August 29, 2013

DONALD TEMPLEMAN, EXECUTOR PLAINTIFF-APPELLEE.
v.
KINDRED HEALTHCARE, INC., ET AL. DEFENDANTS-APPELLANTS.

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-792299

ATTORNEYS FOR APPELLANT Paul W. McCartney Jeffrey M. Hines Jessica C. Pratt Rendigs, Fry, Kiely & Dennis, L.L.P.

ATTORNEYS FOR APPELLEE Susan E. Petersen Todd Petersen Petersen & Petersen, Inc.

FOR RAJESH AGARWAL, M.D., ET AL. Marc W. Groedel Reminger Co., L.P.A.

BEFORE: Rocco, J., Jones, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, JUDGE.

(¶ 1} Pursuant to R.C. 2711.02(C), defendants-appellants Kindred Healthcare Inc., Kindred Healthcare Operating, Inc., Kindred Nursing Centers East, L.L.C., Greens Nursing and Assisted Living, L.L.C., and several of their employees[1] (hereinafter referred to collectively as "the Kindred defendants") appeal from the trial court order that denied their motion to stay the action brought against them by plaintiff-appellee Donald Templeman, Executor of the Estate of Willow Templeman, Deceased ("the estate").

(¶ 2} The Kindred defendants present two assignments of error. They argue that the trial court incorrectly determined that the arbitration clause Templeman signed on his mother's behalf did not apply to all of the estate's claims. They also argue, alternatively, that the trial court should have stayed the entire action until the estate's survivorship claims were resolved by arbitration.[2]

(¶ 3} Upon a review of the App.R. 9(B) record filed in the trial court, this court finds neither of the Kindred defendants' arguments has merit. The Kindred defendants' assignments of error, therefore, are overruled. For the reasons that follow, the trial court's order is affirmed in part and reversed in part, and this case is remanded for further proceedings consistent with this opinion.

(¶ 4} When the estate filed this action, it alleged that the Kindred defendants operated a skilled nursing and residential health care facility known as "The Greens." The estate alleged that, in September 2011, the Kindred defendants "were specifically put on notice of the below standard nursing patterns and practices" at that facility, but failed to take appropriate action. The estate alleged that its decedent was admitted there in October 2011, was negligently monitored and cared for, suffered an "untimely death" on November 10, 2011, and died as a proximate result of the Kindred defendants' negligence.

(¶5} The estate listed five causes of action: (1) negligence that caused its decedent physical and emotional distress; (2) negligent hiring and supervision that caused injury to the decedent; (3) wrongful death; (4) under the theory of respondent superior, violation of the rights granted to the decedent by R.C. 3721.13; and (5) malice justifying an award of punitive damages. The estate attached affidavits of merit as required by Civ.R. 10(D)(2).

(¶6} On January 16, 2013, after all of the named defendants filed answers to the complaint, the Kindred defendants filed a motion to stay the proceedings pursuant to "a valid agreement" for arbitration. The sole basis for the Kindred defendants' motion was their statement that Donald Templeman had signed this document upon the decedent's admission to the facility as the decedent's legal representative, therefore, it was legally binding and "inure[d] to the [Kindred defendants'] benefit."

(¶ 7} The Kindred defendants attached an incomplete copy of this agreement to their motion as "Exhibit A." "Exhibit A" is reproduced in this opinion in pertinent part as follows:

ATTACHMENT K

ALTERNATIVE DISPUTE RESOLUTION AGREEMENT BETWEEN RESIDENT AND FACILITY (OPTIONAL)
This Alternative Dispute Resolution Agreement ("Agreement") is made and entered into this day * * * by and between 0792 - Kindred Transitional Care and Rehabilitation-The Greens ("Facility")., Willow Templeman, ("Resident"), and_________ ("Legal Representative").[3] The term "Resident" includes the Resident, his/her Guardian or Attorney in Fact, or any other person whose claim is derived through or on behalf of the Resident.
The parties wish to work together to resolve any disputes in a timely fashion and in a manner that minimizes both of their legal costs. Therefore, in consideration of the mutual promises contained in this ...

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