Supreme Court of Kentucky

2019-SC-0016-DG

AND

2019-SC-0211-DG

LP LOUISVILLE EAST, LLC D/B/A

SIGNATURE HEALTHCARE OF EAST

LOUISVILLE AND BRIAN MUELLER

APPELLANTS/CROSS-APPELLEES

ON REVIEW AND CROSS-REVIEW FROM COURT OF APPEALS

V. NO. 2017-CA-001887

JEFFERSON CIRCUIT COURT NO. 17-CI-003358

KENNETH R. PATTON, ADMINISTRATOR

OF THE ESTATE OF TOMMY ROBERT 

PATTON

APPELLEE/CROSS-APPELLANT

ORDER DENYING PETITION FOR REHEARING AND 

MODIFYING OPINION

The Court hereby orders that the Opinion of the Court rendered on 

August 20th, 2020, be MODIFIED, and the attached opinion is hereby 

ordered substituted for the opinion originally rendered. Additionally, 

Appellee's Petition for Rehearing is denied. 

Minton, C.J.; Conley, Hughes, Keller, Lambert, and VanMeter, JJ., 

sitting. Nickell, J., not sitting. All concur. 

ENTERED: APRIL 29, 2021.

_______________________________________

CHIEF JUSTICE
MODIFIED: APRIL 29, 2021

RENDERED: AUGUST 20, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0016-DG

AND

2019-SC-0211-DG

LP LOUISVILLE EAST, LLC D/B/A

SIGNATURE HEALTHCARE OF EAST

LOUISVILLE AND BRIAN MUELLER

APPELLANTS/CROSS-APPELLEES

ON REVIEW AND CROSS-REVIEW FROM COURT OF APPEALS

V. NO. 2017-CA-001887

JEFFERSON CIRCUIT COURT NO. 17-CI-003358

KENNETH R. PATTON, ADMINISTRATOR

OF THE ESTATE OF TOMMY ROBERT 

PATTON

APPELLEE/CROSS-APPELLANT

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Kenneth R. Patton, as Administrator of the Estate of Tommy Robert 

Patton, initiated a negligence and wrongful death action against LP Louisville 

East, LLC, doing business as Signature HealthCARE of East Louisville 

(Signature). Because Kenneth had signed an Arbitration Agreement at the time 

his father, Tommy Patton, was admitted to Signature’s long-term care facility, 

Signature moved the circuit court to compel Kenneth to arbitrate the claims. 

The trial court denied the motion and the Court of Appeals affirmed in part and 

reversed in part.
2

On discretionary review of the Court of Appeals’ decision, we affirm in 

part and reverse in part. Kenneth signed the Arbitration Agreement in both his 

representative and individual capacities and, consequently, we affirm the Court 

of Appeals’ decision that the Arbitration Agreement is enforceable as to 

Kenneth’s individual wrongful death claim. We reverse, however, the Court of 

Appeals’ decision that the Arbitration Agreement is not enforceable as to the 

Estate’s claims, concluding that the power of attorney which Tommy granted 

his son fully authorized execution of the Arbitration Agreement at issue.

FACTUAL AND PROCEDURAL BACKGROUND

Signature is a long-term care facility located in Louisville to which 

Tommy Robert Patton was admitted as a resident in early 2017. According to 

Kenneth R. Patton, his father was placed in Signature’s care because Tommy 

was not able to care for himself due to physical limitations. To secure Tommy’s 

admittance, Kenneth signed an Arbitration Agreement as Tommy’s authorized 

representative. 

The agreement is entitled “AGREEMENT TO INFORMALLY RESOLVE 

AND ARBITRATE ALL DISPUTES” (Arbitration Agreement), and begins with 

Signature’s statement that it requires all new residents and/or their legal

representatives to read, agree, and sign the Agreement as a condition of the 

applicant’s admission to its facility. The Arbitration Agreement has eleven 

enumerated provisions, prefaced “Resident, facility, and other person signing 

this document understand and agree . . . .” The first provision reads, “If a 

dispute or legal claim of any kind (including a class or representative action or 
3

claim) arises between the parties signing the agreement (collectively a dispute),” 

the parties will arbitrate the dispute if it cannot first be resolved informally or 

through mediation. The sixth provision states, “We agree [this agreement] will 

be upheld and enforced against our heirs, beneficiaries, estates, estate 

representatives, successors, statutory wrongful death beneficiaries, and 

assigns.” The eleventh provision states in part, “I understand and agree that 

the Resident and his/her agents, heirs, beneficiaries, estate, and assigns are 

intended beneficiaries of, and will be bound by, this agreement.” Immediately 

before the signature block, a bolded, all-capitalized statement provides that the 

signee has had the opportunity to read the Arbitration Agreement, ask 

questions and consult an attorney; that he understands that the agreement is 

required for admission; and that the consent is voluntarily given. Immediately 

below the signature line for the resident’s authorized representative is the 

notation “Resident’s Authorized Representative/Individual* Signature” and the 

asterisk’s explanation, “*Representative understands and agrees s/he is 

signing in both representative and individual capacities.”

Kenneth provided to Signature the “Durable Power of Attorney for 

Finance of Tommy R. Patton” (POA) designating him as Tommy’s attorney-infact and agent. Article IV of the POA entitled “Powers” begins “My Agent shall 

have all powers of an absolute owner over my assets and liabilities, . . . 

including, without limitation, the following power and authority.” The power 

and authority under Article IV is stated under six subheadings: A) Power 

relating to real property transactions; B) Power relating to banking and other 
4

financial institution transactions; C) Power relating to insurance transactions; 

D) Power relating to estate, trust, and other beneficiary transactions; E) Power 

relating to claims and litigation; and F) Power relating to benefits from Social 

Security, Medicare, Medicaid, or other governmental programs or from military 

service.

As to claims and litigation, Tommy empowered his attorney-in-fact to:

1. assert and prosecute before a court or administrative agency a 

claim, counterclaim, or offset and defend against an individual, 

a legal entity, or government, including suits to recover property 

or other thing of value, to recover damages sustained by the 

principal, to eliminate or modify tax liability, or to seek an 

injunction, specific performance, or other relief; 

. . . .

[and to]

5. submit to arbitration, settle, and propose or accept a 

compromise with respect to a claim or litigation;

 . . . .

As to Social Security, Medicare and other governmental programs, 

Tommy empowered his attorney-in-fact to “prepare, file, and prosecute a claim 

of the principal to a benefit or assistance, financial or otherwise, to which the 

principal claims to be entitled, under a statute or governmental regulation” and 

“prosecute, defend, submit to arbitration, settle, and propose or accept a 

compromise with respect to any benefits the principal may be entitled to 

receive.”

The succeeding article, Article V, entitled “Purposes” states in full: “My 

Agent shall have all powers as are necessary or desirable to provide for my 
5

support, maintenance, health, emergencies, and urgent necessities.” 

Consistent with the reference to “all powers” regarding “health,” in Article VIII,

Section I., Tommy provided: “I intend for my agent to be treated as I would be 

with respect to my rights regarding the use and disclosure of my individually 

identifiable health information or other medical records.”

Shortly after Tommy’s admittance to the facility, he suffered a fall which 

resulted in lacerations to his head. Tommy was transferred from Signature’s 

care and he died within a few weeks. Kenneth, as Administrator of the Estate, 

without initiating mediation or arbitration, brought a “negligence/wrongful 

death” claim in Jefferson Circuit Court against Signature and Brian Mueller, 

identified as Signature’s facility administrator (collectively “Signature”).1

In lieu of filing an answer, Signature filed a motion to compel arbitration 

and stay, or alternatively, to dismiss the action on the grounds that the 

Arbitration Agreement was a valid and enforceable contract. Kenneth 

responded that the POA did not provide him with the authority to enter into the 

Arbitration Agreement. Kenneth also argued that the wrongful death claim, 

brought in his capacity as the Estate Administrator, is not subject to the 

Arbitration Agreement. The trial court denied Signature’s motion in its entirety 

without issuing any findings of fact or conclusions of law.

 

1 Signature states that the allegation that Mueller is the administrator of the 

Facility is factually inaccurate and that Mueller reserved the right to assert all 

defenses therefrom in arbitration or litigation proceedings. Signature also 

acknowledges, however, that the Arbitration Agreement’s terms apply to disputes or 

claims pertaining to “agents” of the Facility, and therefore encompasses claims against 

an individual administrator in his or her capacity as such.
6

Pursuant to Kentucky Revised Statute (KRS) 417.220, Signature 

appealed the trial court’s denial of its motion to compel arbitration. The Court 

of Appeals concluded the Arbitration Agreement is not valid or enforceable 

against Tommy, his Estate, or the wrongful death beneficiaries not party to the 

Arbitration Agreement, but further concluded that Kenneth’s wrongful death 

claim is arbitrable because he executed the Arbitration Agreement in his 

individual capacity. Finally, the Court of Appeals concluded that the trial court 

must enter a stay of the claims not subject to arbitration pending completion of 

arbitration of Kenneth’s wrongful death claim against Signature. This Court 

granted both Signature’s and Kenneth’s motions for discretionary review.

Signature raises the issue whether the Court of Appeals misapplied 

Kindred Nursing Centers Ltd. Partnership v. Wellner, 533 S.W.3d 189 (Ky. 

2017), as well as the United States Supreme Court decision from which it was 

remanded, Kindred Nursing Centers Ltd. Partnership v. Clark, 581 U.S. ___, 135 

S. Ct. 1421 (2017), when interpreting Article IV of Tommy’s POA and 

concluding the Arbitration Agreement is not enforceable against Tommy’s 

Estate. Applying the principles enunciated in Ping v. Beverly Enterprises, Inc., 

376 S.W.3d 581, 590 (Ky. 2012), we find that Article V of Tommy’s POA 

authorized Kenneth to enter into the mandatory Arbitration Agreement when 

exercising his agency powers as to Tommy’s “maintenance” and “health” by 

admitting him to a long-term care facility. We consequently reverse the Court 
7

of Appeals’ decision that the Arbitration Agreement is not enforceable against 

Tommy’s Estate.2

As to Kenneth’s primary appellate issue – whether the Court of Appeals 

erred by concluding that Kenneth’s signature in his individual capacity on the 

Arbitration Agreement requires arbitration of his interest in a subsequent 

wrongful death recovery action – we disagree with Kenneth. We affirm the 

Court of Appeals’ decision that Kenneth’s claim is arbitrable.

Thus, we conclude that both Tommy’s Estate and Kenneth’s individual 

claims are subject to arbitration and remand this case to the trial court for 

further proceedings consistent with this Opinion. Due to this resolution, the 

Court of Appeals’ conclusion that Kenneth’s wrongful death claim must be 

arbitrated before any further action occurs in circuit court is now moot.

3

 

2 Signature also presents the argument that to the extent Kenneth asserts a 

wrongful death claim on behalf of individuals other than himself, any such claim 

should also be deemed subject to the Arbitration Agreement, noting that in Ping this 

Court stated that wrongful death beneficiaries “do not succeed to the decedent’s 

dispute resolution agreements,” a position Signature argues that should be viewed as 

preempted by the Federal Arbitration Act. Although Signature’s motion for 

discretionary review did not set forth this argument, Signature suggests this Court 

should revisit Ping and deem it preempted by the FAA, such that any wrongful death 

claims asserted in this action are subject to the Arbitration Agreement. We decline 

Signature’s invitation.

3 Kenneth argues that the Court of Appeals erred in its ruling that all litigation 

must be stayed pending arbitration. Considering our ruling today, we decline further 

to address this issue, leaving to the trial court on remand the resolution of a possible 

litigation stay affecting the non-arbitrable claims asserted by parties who are not 

participants in this appeal. 
8

ANALYSIS

I. The Arbitration Agreement is valid and enforceable as to Tommy 

Patton’s Estate claim.

The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq., and Kentucky 

Uniform Arbitration Act (KUAA), KRS 417.050 et seq., generally favor the 

enforcement of arbitration agreements.4 Louisville Peterbilt, Inc. v. Cox, 132 

S.W.3d 850, 854 (Ky. 2004) (citations omitted). Because arbitration is 

fundamentally a matter of contract, Rent–A–Center, West, Inc. v. Jackson, 561 

U.S. 63, 67 (2010), an arbitration agreement is treated as all other contracts 

and if the agreement is valid, it will be enforced, 9 U.S.C. § 2; KRS 417.050; 

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); Ally Cat, LLC v. 

Chauvin, 274 S.W.3d 451, 457 (Ky. 2009). Once the party seeking to enforce 

an agreement meets its burden of establishing with prima facie evidence a valid 

arbitration agreement exists, the burden shifts to the party seeking to avoid the 

agreement to rebut the presumption. Louisville Peterbilt, 132 S.W.3d at 857 

(citation omitted). As Moses H. Cone Memorial Hospital v. Mercury Construction 

Corp. explains, “any doubts concerning the scope of arbitrable issues should be 

resolved in favor of arbitration, whether the problem at hand is the 

 

4 Arbitration as a means of dispute resolution in the Commonwealth dates back 

to at least 1799 when the drafters of Kentucky’s Second Constitution included in 

Article VI. § 10 a duty on the part of the General Assembly to “pass such laws as shall 

be necessary and proper to decide differences by arbitrators.” All subsequent versions 

of our state constitution, continuing to the present one adopted in 1891, have 

contained this language, Ky. Const. § 250, and the General Assembly has fulfilled its 

duty by adopting the Uniform Arbitration Act, KRS 417.045 et seq.
9

construction of the contract language itself or an allegation of waiver, delay, or 

a like defense to arbitrability.” 460 U.S. 1, 24–25 (1983).

Both the FAA and KUAA apply to arbitration agreements for existing 

disputes and disputes which may arise after the contract’s formation.

9 U.S.C. § 2 states:

A written provision in any maritime transaction or a contract 

evidencing a transaction involving commerce to settle by 

arbitration a controversy thereafter arising out of such contract or 

transaction, or the refusal to perform the whole or any part 

thereof, or an agreement in writing to submit to arbitration an 

existing controversy arising out of such a contract, transaction, or 

refusal, shall be valid, irrevocable, and enforceable, save upon 

such grounds as exist at law or in equity for the revocation of any 

contract.5

Similarly, KRS 417.050 reads: 

A written agreement to submit any existing controversy to 

arbitration or a provision in written contract to submit to 

arbitration any controversy thereafter arising between the parties 

is valid, enforceable, and irrevocable, save upon such grounds as 

exist at law for the revocation of any contract.6

 

5 Containing exceptions to operation of title, 9 U.S.C. § 1 states:

“Maritime transactions”, as herein defined, means charter parties, bills of 

lading of water carriers, agreements relating to wharfage, supplies 

furnished vessels or repairs to vessels, collisions, or any other matters in 

foreign commerce which, if the subject of controversy, would be 

embraced within admiralty jurisdiction; “commerce”, as herein defined, 

means commerce among the several States or with foreign nations, or in 

any Territory of the United States or in the District of Columbia, or 

between any such Territory and another, or between any such Territory 

and any State or foreign nation, or between the District of Columbia and 

any State or Territory or foreign nation, but nothing herein contained 

shall apply to contracts of employment of seamen, railroad employees, or 

any other class of workers engaged in foreign or interstate commerce.

6 The remainder of KRS 417.050 states: 

This chapter does not apply to:
10

Signature contends the Arbitration Agreement is a valid contract that 

Kenneth represented he had the proper authority to execute and that in fact he 

provided Signature with a copy of Tommy’s POA which granted Kenneth the 

authority to submit to arbitration “with respect to a claim or litigation.” 

Kenneth disputes that the POA provided such authority. As they did before the 

trial court and Court of Appeals, Signature and Kenneth advance their 

arguments by comparing and contrasting Ping, Clark and Wellner. We review 

these cases briefly to provide context for the parties’ specific arguments.

In Ping, the power of attorney document at issue stated that the 

principal’s daughter-agent, 

Ms. Ping was given authority “to do and perform any, all, and every 

act and thing whatsoever requisite and necessary to be done, to 

and for all intents and purposes, as I might or could do if 

personally present, including but not limited to the following: . . .” 

The document then specifically authorized several acts pertaining 

to the management of [the principal’s,] Mrs. Duncan’s, property 

and finances . . . . The document also authorized Ms. Ping “[t]o 

make any and all decisions of whatever kind, nature or type 

 

(1) Arbitration agreements contained within the collective bargaining 

agreements entered into by employers and the respective representatives 

of member employees;

(2) Insurance contracts. Nothing in this subsection shall be deemed to 

invalidate or render unenforceable contractual arbitration provisions 

between two (2) or more insurers, including reinsurers; and

(3) Arbitration agreements entered by any industrial insured captive 

insurer that is created under the Product Liability Risk Retention Act of 

1981, 15 U.S.C. secs. 3901 et seq., as amended.

KRS 417.050 was amended in 2019. 2019 Ky. Acts ch. 75, § 2 amended subsection 

(1) and 2019 Ky. Acts ch. 166, § 4 created subsection (3). Prior to these amendments, 

KRS 417.050 was last amended in 1996.
11

regarding my medical care, and to execute any and all documents, 

including, but not limited to, authorizations and releases, related 

to medical decisions affecting me; and [t]o generally do any and 

every further act and thing of whatever kind, nature, or type 

required to be done on my behalf.

376 S.W.3d at 586-87 (emphasis added). In Ping, execution of an arbitration 

agreement was not a condition of admittance to the long-term care facility 

where Mrs. Duncan resided. In that context, this Court held that “Mrs. 

Duncan’s power of attorney, properly construed as giving her daughter 

authority to manage Mrs. Duncan’s property and finances and to make healthcare decisions on her behalf, did not thereby authorize Ms. Ping to waive, 

where there was no reasonable necessity to do so, her mother’s right of access 

to the courts.” Id. at 594. 

Five years later, Clark was before the United States Supreme Court 

following this Court’s issuance of Extendicare Homes, Inc. v. Whisman, 478 

S.W.3d 306 (Ky. 2015), deciding three consolidated arbitration cases: 

Extendicare Homes, Inc. v. Whisman, No. 2013-SC-000426-I; Kindred Nursing 

Centers Ltd. Partnership v. Clark, No. 2013-SC-000430-I (Clark, No. 2013-SC000430-I); and Kindred Nursing Centers Ltd. Partnership v. Wellner, No. 2013-

SC-000431-I (Wellner, No. 2013-SC-000431-I). In that 2015 decision, a divided 

Kentucky Supreme Court held that unless clearly stated in the power of 

attorney document, an attorney-in-fact does not have authority to bind his 

principal to a pre-dispute arbitration agreement – a holding now commonly 

referred to as the clear-statement rule. 478 S.W.3d at 313. Kindred Nursing 

Centers Limited Partnership sought review of both Clark, No. 2013-SC-000430-
12

I, and Wellner, No. 2013-SC-000431-I.7 The United States Supreme Court then 

issued the consolidated opinion styled Kindred Nursing Centers Ltd. Partnership 

v. Clark, 581 U.S. ___, 137 S. Ct. 1421 (2017). The Supreme Court concluded 

that the clear-statement rule singles out arbitration agreements for disfavored 

treatment and accordingly violates the FAA. Id. at 1427-28. Because a 

majority of this Court had relied solely on the clear-statement rule in 

concluding that Clark’s power of attorney did not grant the agent authority to 

enter an arbitration agreement, the Supreme Court reversed Clark, No. 2013-

SC-000430-I. Id. at 1429. The Supreme Court remanded Wellner, No. 2013-

SC-000431-I, however, because it was unclear if this Court’s decision in that 

case resulted from application of the clear-statement rule or was premised on 

other grounds. Id.

The Wellner power of attorney provisions at issue were Joe Wellner’s 

grant of 1) the power “to demand, sue for, collect, recover and receive all debts, 

monies, interest and demands whatsoever now due or that may hereafter be or 

become due to me (including the right to institute legal proceedings therefor)”; 

and, 2) the power “to make, execute and deliver deeds, releases, conveyances 

and contracts of every nature in relation to both real and personal property, 

including stocks, bonds, and insurance.” Wellner, 533 S.W.3d at 193. On 

remand, this Court, again in a divided opinion, ultimately held that the 

decision in the 2015 Whisman case “that neither of [these] two POA provisions 

 

7 Extendicare Homes, Inc. did not seek review by the United States Supreme 

Court and the Whisman case became final.
13

relied upon by Kindred gave the agent, Beverly Wellner, the authority to 

execute on behalf of her principal, Joe Wellner, a pre-dispute arbitration 

agreement,” “was wholly independent of the clear statement rule.” Id. at. 192, 

194.

Signature contends that the Arbitration Agreement is valid because 

Tommy’s POA authorized his attorney-in fact to act on his behalf in “legal 

actions,” including expressly the power to “submit to arbitration, settle, and 

propose or accept a compromise with respect to a claim or litigation.” Kenneth 

argues that Tommy’s POA, unlike many power of attorney documents, provided 

no broad, general grant of authority, and did not explicitly grant or imply to 

Kenneth the authority to make health care decisions. He acknowledges, relying 

on Ping, that when authority is granted as to health care decisions that power 

allows the attorney-in-fact to bind the principal to an arbitration agreement if 

the principal’s admittance to a nursing home is conditioned upon execution of 

the agreement. Kenneth contends that the POA limited his authority to 

contract in matters related to Tommy’s financial dealings, as reflected in its 

title “Durable Power of Attorney for Finance of Tommy R. Patton,” and as 

further reflected in Article IV’s reference to “assets and liabilities,” as well as 

the enumerated powers being further narrowed under the six subheadings, 

with only Sections E and F mentioning arbitration. Finally, Kenneth argues 

that the POA did not authorize him to agree to arbitration before a dispute 

arose. Kenneth contends that Article IV(E), with its language “submit to 

arbitration, settle, and propose or accept a compromise with respect to a claim 
14

or litigation,” identifies discrete actions the attorney-in-fact can take relative to

existing claims and litigation.

In response to Kenneth’s contention that Tommy’s POA did not authorize 

him to make health care decisions for Tommy, Signature asserts that the 

absence of express language addressing health care decision-making is entirely 

irrelevant because Tommy’s POA includes an express grant of authority to 

submit to arbitration. In addition, however, during oral argument before the 

circuit court and also argument before the Court of Appeals, Signature, relying 

on Ping, advocated that Article V,8 granting Tommy’s agent broad power to act 

and make decisions related to Tommy’s maintenance and health, is another 

provision within Tommy’s POA which authorized Kenneth to sign the 

mandatory Arbitration Agreement.

Signature also counters that in light of the United States Supreme 

Court’s invalidation of the clear-statement rule in Clark, Kenneth’s argument 

that the POA must specifically grant the authority to enter into a pre-dispute 

arbitration agreement should be rejected. Kenneth rebuts Signature’s Clark

argument by noting that, as in Wellner, Tommy’s POA did not encompass predispute language. Kenneth asserts that while Wellner supports him, Ping is 

dispositive of the issue whether Tommy’s POA granted Kenneth authority to 

sign a pre-dispute arbitration agreement related to nursing home admission 

because as in Ping, there was no express authority to do so.

 

8 The parties’ briefs to this Court do not explicitly reference Article V when 

making arguments related to health care or otherwise.
15

The Court of Appeals, applying Wellner’s analysis and the long-standing 

principal that a power of attorney document is to be strictly and narrowly 

construed, concluded that the only authority Tommy granted Kenneth was 

arbitration of existing claims; hence, Kenneth could not agree to arbitrate a 

claim on Tommy’s behalf before it arose and the Arbitration Agreement was not 

enforceable against the Estate’s claim. Upon review of Tommy’s POA, applying 

Ping, we agree with Signature that the POA granted Kenneth the authority to 

enter into the Arbitration Agreement on Tommy’s behalf, but we premise our 

holding on Article V, which grants the agent “all powers as are necessary or 

desirable to provide for [Tommy’s] support, maintenance, [and] health.”

The construction of a power of attorney is a question of law, Ping, 376 

S.W.3d at 590, generally requiring application of the rules for interpretation of 

written instruments and the principles governing the law of agency, see id. at 

590-94. In Ping, explaining contract construction principles applicable to a 

power of attorney document, this Court stated:

The scope of [authority is] left to the principal to declare, and 

generally that declaration must be express. In Rice [v. Floyd, 768 

S.W.2d 57, 59 (Ky. 1989)], this Court explained that even a 

“comprehensive” durable power would not be understood as 

implicitly authorizing all the decisions a guardian might make on 

behalf of a ward. Rather, we have indicated that an agent’s 

authority under a power of attorney is to be construed with 

reference to the types of transaction expressly authorized in the 

document and subject always to the agent’s duty to act with the 

“utmost good faith.” Wabner [v. Black, 7 S.W.3d 379, 381 (Ky. 

1999)]. This is consistent with section 37 of the Restatement 

(Second) of Agency, which provides that

(1) Unless otherwise agreed, general expressions used in 

authorizing an agent are limited in application to acts done in 
16

connection with the act or business to which the authority 

primarily relates.

(2) The specific authorization of particular acts tends to show that 

a more general authority is not intended.

376 S.W.3d at 592. In regard to general expressions, “[u]nless otherwise 

agreed, authority to conduct a transaction includes authority to do acts which 

are incidental to it, usually accompany it, or are reasonably necessary to 

accomplish it.” Id. (quoting Restatement (Second) of Agency § 35 (1958)). 

Furthermore, it is a fundamental rule that a written agreement generally will be 

construed “as a whole, giving effect to all parts and every word in it if possible.” 

City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986).

Applying these principles to Tommy’s POA, we begin with Article V which 

states in full, “My Agent shall have all powers as are necessary or desirable to 

provide for my support, maintenance, health, emergencies, and urgent 

necessities.” Clearly, Tommy did authorize his son in succinct and unmistakeable terms to have and exercise all powers “necessary or desirable to 

provide” for Tommy’s “maintenance [and] health.”

In Ping, this Court decided similarly to other courts, that when a power 

of attorney document authorizes the agent to make medical care decisions 

along with related required acts and “the arbitration agreement is not a 

condition of admission to the nursing home, but is an optional, collateral 

agreement, . . . [the] authority to choose arbitration is not within the purview of 

a health-care agency, since in that circumstance agreeing to arbitrate is not a 

‘health care’ decision.” 376 S.W.3d at 593 (citations omitted). As Kenneth 
17

himself notes, Ping also explains in contrast, that when “an agreement to 

arbitrate is presented to the patient as a condition of admission to the nursing 

home, courts have held that the authority incident to a health-care durable 

power of attorney includes the authority to enter such an agreement.” Id.

(citing Owens v. National Health Corporation, 263 S.W.3d 876 (Tenn. 2008); 

Triad Health Management of Ga., III, LLC v. Johnson, 679 S.E.2d 785 (Ga. App. 

2009)).

Although more succinct in some provisions, Tommy’s POA is not unlike 

the power of attorney document considered in Ping. As in Ping, Tommy’s POA 

relates expressly to the management of his property and financial affairs and to 

assuring that decisions regarding his health and maintenance could be made 

on his behalf. For most of the authority regarding his property and financial 

affairs, Tommy specifically describes in Article IV certain acts that his agent 

may perform, but in Article V Tommy generally grants “all powers as are 

necessary or desirable” related to his “health” and “maintenance.” Although 

Kenneth apparently views Tommy’s Article V grant of “all powers as are 

necessary or desirable to provide for my support, maintenance, health, 

emergencies, and urgent necessities” as not explicitly granting or implying the 

authority to make health care decisions, we cannot discern an alternate 

interpretation of these plain words. Article V unequivocally expresses Tommy’s 

intent to make a comprehensive grant of authority to his son, Kenneth, as his 

agent, to do what is “necessary or desirable” to provide for Tommy’s health and 

maintenance.
18

Because Tommy granted his agent all powers as are necessary or 

desirable to provide for his care, which would encompass Tommy’s admission 

into a nursing home when he was no longer able to physically care for himself, 

and because Signature required a facility resident or his agent to agree to 

arbitration of future disputes, we are presented with a circumstance different 

from, but acknowledged in, Ping. Here, in accordance with Ping and its 

expressed principles of agency, we apply the rule that when an agreement to 

arbitrate is presented as a condition of admission to a nursing home, unless 

otherwise agreed, a power of attorney expressing general authority to make 

necessary health care decisions includes the incidental or reasonably 

necessary authority to enter that agreement. In light of Kenneth’s authority to 

sign a necessary, non-optional arbitration agreement in order to obtain 

Tommy’s admittance into Signature’s facility, we must conclude the Arbitration 

Agreement is valid and enforceable. Thus, we find Ping’s guidance dispositive 

of this issue, albeit not in Kenneth’s favor.

Although we find Article V of the POA dispositive, Signature asks this 

Court particularly to interpret Article IV(E) in which Tommy granted his agent 

authority to “submit to arbitration, settle, and propose or accept a compromise 

with respect to a claim or litigation.” Signature argues this provision does not 

prohibit Kenneth from entering into a pre-dispute arbitration agreement and 

further asserts the Court of Appeals’ decision misapplied Wellner and violated 

Clark’s prohibition of the clear-statement rule. Given our holding as to Article 

V, which plainly authorizes “all powers as are necessary or desirable” 
19

pertaining to Tommy’s health and maintenance, we need not consider the 

breadth of Article IV.

9

Finally, Kenneth raises another challenge to the validity of the 

Arbitration Agreement which was not raised before the circuit court. Article II 

of Tommy’s POA, entitled “Effectiveness; Effective Immediately,” states, “This 

Power of Attorney shall become effective immediately . . . .” Tommy’s signature 

on the document was notarized on October 17, 2016, but for reasons unknown 

the date line above Tommy’s signature states, “Dated this 17th day of October, 

2017,” the underlined elements being handwritten. Given that Tommy died on 

March 18, 2017, it is readily apparent that he did not sign and date the POA in 

October of 2017. Nevertheless, Kenneth argues that the POA was not effective 

when he signed the Arbitration Agreement with Signature in February 2017. 

Kenneth’s argument asserting the alleged date discrepancy appearing on 

the face of the POA document was not made in the trial court. The trial court 

gave no basis for its ruling, but without findings of fact, the record below does 

not support the argument Kenneth asserts on appeal. See Emberton v. GMRI, 

Inc., 299 S.W.3d 565, 576 (Ky. 2009) (holding that an appellate court may 

affirm a lower court on any basis supported by the record). More fact-finding is 

required to analyze Kenneth’s claim that the POA document was void, and factfinding is beyond this Court’s function. Although Kenneth, as the appellee, 

 

9 We note that the Concurring Opinion addresses Article IV’s provision for 

submitting to arbitration “a claim or litigation” on behalf of the principal, Tommy 

Patton, and finds therein a second basis for Kenneth’s authority to execute the 

Arbitration Agreement.
20

does not have the same issue-preservation burden as Signature had when 

attempting to reverse the trial court’s judgment, we decline to exercise our 

discretion to consider Kenneth’s novel argument on appeal, an argument 

requiring additional fact finding and likely raising new responsive legal 

arguments from Signature, matters that could and should have been raised in 

the trial court. Cf., Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 

326 S.W.3d 803, 812 n.3 (Ky. 2010) (addressing a novel issue on appeal that 

was solely legal in nature). 

II. The Arbitration Agreement is enforceable and valid as to Kenneth 

Patton’s individual wrongful death claim.

Kenneth, as Administrator of the Estate of Tommy Robert Patton, 

initiated this suit by filing a complaint alleging negligence and wrongful 

death.10 The Court of Appeals held that any wrongful death claim asserted by 

Kenneth on his own behalf is subject to arbitration under the Arbitration 

Agreement. Challenging the Court of Appeals’ decision as erroneous, Kenneth 

presents four arguments in support of his claim that he should not be required 

to arbitrate his individual wrongful death claim. Signature counters that the 

Court of Appeals correctly decided this issue because Kenneth signed the 

Arbitration Agreement in both his representative and individual capacities. We 

address Kenneth’s arguments in turn.

 

10 As explained in Ping, 376 S.W.3d at 597-98, a personal injury or negligence 

claim belongs to a decedent’s estate under the survival statute, KRS 411.140, while a 

wrongful death action is recognized by the Kentucky Constitution and authorized by 

KRS 411.130, in favor of certain designated beneficiaries of the decedent.
21

A. A fair reading of the complaint reflects that the surviving 

beneficiaries are suing for wrongful death.

Kenneth first asserts that contrary to the Court of Appeals’ conclusion, 

he brought suit solely in his capacity as Administrator of Tommy’s Estate, not 

in his own individual capacity, and consequently, the Court of Appeals 

considered a non-justiciable matter. He does not acknowledge that the 

complaint, which expressly asserts “NEGLIGENCE/WRONGFUL DEATH,” also 

encompasses a wrongful death claim as authorized by KRS 411.130. We must 

disagree with Kenneth’s proposed construction of the complaint.

In Kentucky, except in two circumstances not pertinent here,11 a 

wrongful death lawsuit must be brought in the name of the personal 

representative of an estate. KRS 411.130(1); see also CR12 17.01; CR 

24.01(1).13 The personal representative is only a nominal party but he or she is 

the party expressly selected by the General Assembly to act on behalf of the 

individual statutory beneficiaries. Pete v. Anderson, 413 S.W.3d 291, 297-99 

 

11 The exceptions are when the personal representative has refused to file the 

action and when there is fraud or collusion between the personal representative and 

the alleged wrongdoer. Louisville & N.R. Co. v. Turner, 162 S.W.2d 219, 221 (Ky. 

1942); Vaughn’s Adm’r v. Louisville N.R. Co., 179 S.W.2d 441, 445 (Ky. 1944).

12 Kentucky Rule of Civil Procedure.

13 CR 17.01: “Every action shall be prosecuted in the name of the real party in 

interest, but a personal representative, . . . or a person expressly authorized by statute 

to do so, may bring an action without joining the party or parties for whose benefit it is 

prosecuted. . . .”

CR 24.01(1): “Upon timely application anyone shall be permitted to intervene in 

an action . . . (b) when the applicant claims an interest relating to the property or 

transaction which is the subject of the action and is so situated that the disposition of 

the action may as a practical matter impair or impede the applicant's ability to protect 

that interest, unless that interest is adequately represented by existing parties.”
22

(Ky. 2013). Over seventy-five years ago, in Vaughn’s Adm’r, this Court 

addressed the general outlines of a wrongful death action.

This action is brought under KRS 411.130, which gives a cause of 

action to a personal representative for the sole benefit of named 

beneficiaries. . . . The substance of the present action is that the 

surviving beneficiaries are suing, since they only are entitled to the 

benefit of a recovery. The statutory authority of the administrator, 

where the decedent leaves any of the kindred named in the statute, 

is to sue for the benefit of the next of kin. The administrator is 

merely a nominal plaintiff. The real parties in interest are the 

beneficiaries whom he represents.

179 S.W.2d at 445. “Identity of parties is not a mere matter of form, but of 

substance. Parties nominally the same may be, in legal effect, different; and 

parties nominally different may be, in legal effect, the same.” Id. (internal 

citations omitted).

Here, Kenneth as the Administrator of Tommy’s Estate “is merely acting 

in a representative capacity for [his siblings] and himself, individually” id. at 

444, in filing a wrongful death action. As to arbitrability of that action, 

Kenneth was free to enter into an arbitration agreement regarding his own 

wrongful death claim, Whisman, 478 S.W.3d at 314 n.7, and the Court of 

Appeals properly considered the Arbitration Agreement’s impact on the 

wrongful death claim brought on Kenneth’s individual behalf subsequent to 

Tommy’s death. Apparently other individuals are also entitled to assert 

wrongful death claims following Tommy’s death, e.g., Kenneth’s siblings, and 

while the complaint is sufficient to assert their claims, those individuals are 

not bound by the Arbitration Agreement which Kenneth signed in his 

individual capacity. See Ping, 376 S.W.3d at 597-600.
23

B. Ping does not support Kenneth’s position that an individual 

capacity claim was not brought.

Kenneth asserts that Ping supports his position that by bringing the 

wrongful death claim in his capacity as the Estate’s Administrator, he was not 

asserting an individual capacity claim. Kenneth points out that like him, Ms. 

Ping signed a nursing home arbitration agreement as her mother’s authorized 

representative and the agreement reflected that she was related to the resident 

both as daughter and as power of attorney, Ping, 376 S.W.3d at 587, but when 

Ping brought suit in her representative capacity, no individual capacity claim 

was asserted. Furthermore, Kenneth contends that although he was free to 

enter into an arbitration agreement regarding his wrongful death claim, like the 

daughter-agent in Ping, he did not in fact do so because he did not sign the 

Arbitration Agreement as a “wrongful death claimant.”

We cannot agree with Kenneth’s reading of Ping. First, Ping did in fact 

involve the assertion of both negligence and statutory violation claims on the 

part of the estate and wrongful death claims on behalf of the survivors. 376 

S.W.3d at 588. That decision makes clear, however, that Ping signed the 

arbitration agreement at issue solely in her capacity as agent under her 

mother’s power of attorney. Id. at 596. Ping did not in any way purport to 

agree to arbitrate her own individual wrongful death claims. Id. at 599. Here, 

in contrast, Kenneth signed the Arbitration Agreement in his individual 

capacity in addition to signing as his father’s authorized representative. Ping 

does not support Kenneth’s position because his facts are distinguishable.
24

C. Signature’s prehearing statement does not warrant reversal of the 

Court of Appeals’ decision on the merits.

Kenneth next claims that Signature did not preserve the issue of the 

arbitrability of his individual capacity claim by including it in Signature’s

Court of Appeals’ CR 76.03 prehearing statement. For this proposition, 

Kenneth cites Wright v. House of Imports, 381 S.W.3d 209, 212-13 (Ky. 2012), 

which explains the Court of Appeals may consider on appeal only those issues 

identified in the prehearing statement unless the unpreserved issue would 

support a finding of palpable error. “[T]he significance of this rule is that the 

Court of Appeals will not consider arguments to reverse a judgment that have 

not been raised in the prehearing statement or on timely motion.” Id. at 212 

(quoting Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 549 (Ky. 2008); 

emphasis previously added). Here, Signature’s prehearing statement identified 

the issue to be raised as: “Did the Circuit Court err in denying the motion to 

compel arbitration? Appellee claims POA did not grant authority to enter into 

an arbitration agreement. Appellants argue that POA grants attorney-in-fact 

power to act on resident’s behalf in ‘legal actions,’ including expressly the 

power to ‘submit to arbitration . . . .’”

In Wright, House of Imports’ prehearing statement identified the issues 

on appeal as: “Whether the Defendant was entitled to a directed verdict on the 

issue of liability, or at the very least, an instruction that the Plaintiff was 

negligent as a matter of law.” Id. at 212. House of Imports did not succeed on 

these issues at the Court of Appeals, but instead was successful on an issue 

not identified in the prehearing statement but nevertheless argued. Id. at 213. 
25

The successful argument at the Court of Appeals, but not before this Court, 

was whether the trial court committed palpable error in admitting expert 

testimony concerning building code violations without instructing the jury as to 

the applicability of the code. Id.

Prior to Wright, when considering a deficient prehearing statement 

argument, this Court stated in Young v. J.B. Hunt Transportation, Inc.:

Without undertaking an exhaustive review of the authorities, we 

observe that CR 73.02(2) vests considerable discretion in appellate 

courts to determine the appropriate manner to deal with 

procedural error and that deciding cases on the merits is a primary 

objective of appellate procedure. Discerning no unfair prejudice to 

appellant by the Court of Appeals’ consideration of this issue and 

with due regard for that Court’s exercise of its sound discretion, we 

decline to disturb its decision to reach the issue on the merits.

781 S.W.2d 503, 504 (Ky. 1989) (internal citations omitted).

Signature contends that since the question whether Kenneth’s wrongful 

death claim was subject to the Arbitration Agreement, signed by Kenneth in his 

individual capacity, was preserved by argument at the circuit court, there was 

no prejudice or unfair surprise to Kenneth when this specific argument, falling 

under the broad issue identified in the prehearing statement, was briefed by 

both parties and the Court of Appeals addressed the argument on its merits. 

We agree. Although Signature could have presented its arguments with more 

specificity in the prehearing statement, the argument was clearly preserved in 

the circuit court and briefed by both parties for the Court of Appeals. As in 

Young, we decline to allow an alleged procedural misstep from which Kenneth 

suffers no evident unfair prejudice to serve as a reason to disturb the Court of 
26

Appeals’ holding on the merits that Kenneth’s wrongful death claim is subject 

to arbitration.

D. Kenneth had reasonable notice that he was signing the 

Arbitration Agreement in his individual capacity.

Lastly, Kenneth argues that although the Arbitration Agreement states 

under Kenneth’s signature that he is signing in his “individual capacit[y],” that 

reference cannot bind him individually. Citing Dixon v. Daymar Colleges Group, 

LLC, 483 S.W.3d 332 (Ky. 2015), Kenneth asserts that terms that come after or 

under a signature are typically not considered part of an agreement. In Dixon, 

this Court held an arbitration agreement between students and a for-profit 

college was unenforceable, lacking an expression of assent by the students 

when the arbitration terms on the back of the page were not incorporated by 

reference in language above the signature. Id. at 345-46. Kenneth claims that 

like in Dixon, there is no clear indication in the document above his signature 

that he understood or assented to sign it in his individual capacity, and thus 

the Arbitration Agreement is not enforceable against him. He further contends 

that he did not receive any consideration for signing the agreement in his 

individual capacity.

Signature counters that the facts of this case are different from Dixon. 

Signature contends the language identifying the capacity in which Kenneth 

signed the Arbitration Agreement is an element of the signature line itself, not a 

contract term. And unlike in Dixon, where the arbitration provisions at issue 

were on the back of a contract that was signed only on the front page, Kenneth 

had reasonable notice that he was signing a mandatory arbitration agreement 
27

in both individual and representative capacities and cannot reasonably argue 

that he did not assent to doing so.

We agree with Signature that this is not a case like Dixon in which the 

signature line’s position calls into question whether the signee understood 

terms following it were incorporated into the agreement. This case instead 

involves well-settled principles of contract law.

It is the settled law in Kentucky that one who signs a contract is 

presumed to know its contents, and that if he has an opportunity 

to read the contract which he signs he is bound by its provisions, 

unless he is misled as to the nature of the writing which he signs

or his signature has been obtained by fraud.

Hathaway v. Eckerle, 336 S.W.3d 83, 89–90 (Ky. 2011) (quoting Clark v. 

Brewer, 329 S.W.2d 384, 387 (Ky. 1959)). Consequently, a person is presumed 

to know those things which reasonable diligence on his part would bring to his 

attention. Since Kenneth presents no evidence that Signature attempted to 

conceal the signature line notation, deceive him, or fraudulently induce him to 

sign the Arbitration Agreement, we must also reject this argument that he did 

not sign the agreement in his individual capacity. Lastly, in regard to 

Kenneth’s lack of consideration argument we reiterate that “an arbitration 

clause requiring both parties to submit equally to arbitration constitutes 

adequate consideration.” Energy Home, Div. of S. Energy Homes, Inc. v. Peay, 

406 S.W.3d 828, 835 (Ky. 2013) (quoting Kruse v. AFLAC Intern., Inc., 458 F. 

Supp. 2d 375, 385 (E.D. Ky. 2006)).

Upon consideration of Kenneth’s arguments, we conclude the Arbitration 

Agreement is binding on Kenneth individually. The Court of Appeals correctly 
28

held that his wrongful death claim is subject to arbitration and we affirm that 

portion of the appellate court’s opinion.

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the Court 

of Appeals’ opinion rendered in this case. We remand this case to the Jefferson 

Circuit Court for entry of an order compelling arbitration consistent with this 

Opinion.

Minton, C.J.; Lambert, and VanMeter, JJ., concur. Keller and Wright, 

JJ., concur in result only. Nickell, J., not sitting.

HUGHES, J., CONCURRING: Just as two roads can lead to the same 

destination, two separate provisions in a legal document can require the same 

conclusion. As author of the majority opinion, I fully agree that the Article V 

broad grant of “all powers as are necessary or desirable to provide for my 

support, maintenance, [and] health” empowered Kenneth to sign the 

mandatory Arbitration Agreement on behalf of his father. That simple, direct 

route dictates our conclusion that the Estate’s claims are arbitrable. 

Nevertheless, I also firmly believe that the language in Article IV, Section E, 1 

and 5 of Tommy’s POA, quoted in the majority opinion, authorized Kenneth to 

agree to arbitrate the Estate’s claims. I strongly dissented in Kindred Nursing 

Centers Ltd. Partnership v. Wellner, 533 S.W.3d 189 (Ky. 2017), and continue to 

believe that the 4-3 majority wrongly decided that case. However, even under 

Wellner nothing prevents a finding that the Article IV authorization to submit 
29

“a claim” to arbitration granted Kenneth the power to sign the Arbitration 

Agreement.

In Wellner, the agent was authorized to pursue any existing or future 

claim on behalf of the principal, including through litigation, and also to 

execute contracts relating to the principal’s “real and personal property.” The 

power of attorney document did not contain any specific reference to 

arbitration, but the long-term care facility insisted that the power of attorney, 

especially the power to contract, included the authority to enter into an 

arbitration agreement for any dispute that might arise in the future. Focusing 

on the precise language of the instrument, the majority held:

At this point it is worth recalling that the “act” of Wellner’s 

agent which required authorizing language from the POA 

document was not the enforcement, through legal proceedings or 

otherwise, of something then due or to become due to Joe Wellner; 

nor was it the making of a contract or instrument pertaining to any 

of Joe Wellner’s property. The “act” that required authorization 

was signing an agreement which makes no reference at all to Joe’s 

property and instead pertains exclusively to his constitutional 

rights [to a jury trial].

. . . .

Kindred’s pre-dispute arbitration contract did not relate to any 

property rights of Joe Wellner. It did not buy, sell, give, trade, 

alter, repair, destroy, divide, or otherwise affect or dispose of in any 

way any of Joe Wellner’s personal property. By executing 

Kindred’s pre-dispute arbitration agreement, Beverly did not 

“make, execute and deliver deeds, releases, conveyances and 

contracts of [any] nature in relation to [Joe’s] property.” The only 

“thing” of Joe Wellner’s affected by the pre-dispute arbitration 

agreement was his constitutional rights, which no one contends to 

be his real or personal property.
30

Id. at 192, 194. By contrast, the power of attorney document before us 

pertains specifically to authority to submit to arbitration “a claim” on behalf of 

the principal. It is not a general power to contract clause with limiting 

language on which a distinction can be drawn between contracts respecting 

real and personal property rights vis-a-vis contracts regarding constitutional 

rights, the foundation on which Wellner is built. Instead, Article IV, Section E 

of Tommy’s POA expressly authorizes Kenneth to “submit to arbitration, settle 

and propose or accept a compromise with respect to a claim or litigation.” This 

section empowers Kenneth to agree to arbitrate any claim, whatever it pertains 

to and whenever it may arise, and thus provides an independent basis for 

concluding the Arbitration Agreement is enforceable.

Minton, C.J.; and VanMeter, J., join.

COUNSEL FOR APPELLANTS/CROSS-APPELLEES:

John David Dyche

Leigh Vandiver Graves

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Vanessa B. Cantley

Patrick E. Markey