Arbitration & Mediation

Second DCA Continues to Blush Due to the McKibbin Decision -- Enforces Arbitration Under "Catch All" Clause in POA

By Christopher B. Hopkins, Esq.

In the nursing home context, plaintiffs lawyers have (rightfully) seized upon the vagueness of durable powers of attorney in order to argue that the attorney-in-fact is not authorized to sign admission agreements for the resident/ward which contain arbitration clauses.

At this point, the case law fairly clearly indicates that it is a case-by-case analysis. In fact, in Jaylene, Inc. v. Moots, the Second DCA articulated a fairly clear standard. However, prior to Jaylene, the waters were muddied by a very poorly written opinion in McKibbin v. Alterra -- which the Second DCA has backed away from and marginalized to the point that it likely holds no precedential value.

In the event you need some background on the McKibbin-Jaylene history, see this prior post. The First District figured it out in the February 2009 opinion of Five Points v. Mallory. The Second District again tried to sweep up the mess a little in March in Carrington Place v. Estate of Milo.

In Sovereign Healthcare of Tampa, LLC a/k/a Bayshore Pointe Nursing & Rehab Center v. Estate of Florinda Huerta by and through Dennis Huerta, we see what appears to be the final gasp of the McKibbin debacle.

The Resident signed a durable power of attorney (DPOA or POA) in 2001 and then was admitted to the nursing home in 2006. The daughter-in-law had the POA and used that authority in signing the admission agreement, which contained an arbitration clause.

The Plaintiff argued that the POA document was not sufficiently broad and the trial court agreed that sufficiency of POA's to waive trial "had not yet been fully resolved by the court..." It cited McKibbin, which, as we've criticized before, gives no indication as to what language is enforceable or not. As evidenced by Jaylene, the Second DCA has figured it out too.

So, the Huerta Panel (Davis, Whatley and Kelly) dutifully again acknowledged that the McKibbin opinion, without reciting the POA language at issue, concluded that it was only examining that specific POA. In short, it was an opinion just for that case and was not precedent.

Instead, the test for trial courts is whether (a) the POA makes a specific grant of such authority (to waive trial or agree to arbitration or (b) unambiguously makes a broad, general grant of authority to the attorney in fact.

We view Huerta as a sign that the entire Second DCA may be moving in the direction of this test articulated above because there is consistency among Jaylene, Milo and now Huerta but little overlap in the Panel Members: Jaylene (Wallace, Kelly, Khouzam), Milo (Davis, Northcutt, and Villanti) and now Huerta (Davis, Whatley, and Kelly).

Full post as published by Florida Arbitration Law on May 25, 2009 (boomark / email).