IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-IA-00594-SCT EMILE DALON, IN HIS INDIV IDUAL CAPACITY AS WRONGFUL DEATH BENEFICIARY OF CAROL ANN DALON, DECEASED AND THE ESTATE OF CAROL ANN DALON

v. MS HUD OCEAN SPRINGS LLC d/b/a OCEAN SPRINGS HEALTH AND REHABILITATION CENTER, INCORRECTLY NAMED AS GULF COAST HEALTH CARE OF DELAWARE, LLC a/k/a GULF COAST HEALTH CARE LLC, AND LINDA COSIO DATE OF JUDGMENT: 04/02/2018 TRIAL JUDGE: HON. KATHY KING JACKSON TRIAL COURT ATTORNEYS: DOUGLAS LAMONT TYNES, JR. COURTNEY PARKER W ILSON LYNDA CLOW ER CARTER ASHLEY W . GUNN COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: DOUGLAS LAMONT TYNES, JR. COURTNEY PARKER W ILSON ATTORNEYS FOR APPELLEES: LYNDA CLOW ER CARTER ASHLEY W . GUNN NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED - 09/12/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ. ISHEE, JUSTICE, FOR THE COURT: ¶1. This is a nursing-hom e n egligence case concerning the death of Carol Dalon at Ocean Springs Health and Rehabilitation Center (OSHRC). Carol’s son Em ile Dalon, who is theadm inistrator of her estate and a wrongf ul-death benef

iciary , f iled suit in the Jackson County Circuit Court, alleging that OSHRC and its em ploy ees n egligently caused C arol’s death. The circuit court granted the def e ndants’ m otion to com

pel arbitration, and Em i le appeals. FACTS ¶2. Carol was transf

erred f rom another nursing hom e to OSHRC on June 2, 2011, af ter sustaining injuries. At the tim e she was adm itted, Carol had a h i s t o r y of dem entia, depression, anxiety , insom nia, and delirium , along with other conditions af f ecting h er

com m unication skills, daily

tasks, and decisionm aking capacity

. ¶3. O SHRC’s a dm ission agreem ent, which included an arbitration agreem ent, w a s s i g n e d by Em ile. Carol h ad previously granted E mi l e a G e n eral Durable Power of Attorney (General P OA) a nd a Power of A ttorney f or Health C are (Health Care P OA), both of which were in ef

f ect when Em ile signed the adm ission agreem ent on Carol’s behalf

. ¶4. It was alleged that in late May or early June o f 2 015, Carol f ell and s uf

f ered a broken leg. She d ied about a m onth af t er her injury was discovered. E m ile and Carol’s estate then brought suit, a lleging negligence and w rongf ul death. The def

endants m oved to dism iss or, in the alternative, to stay proceedings and com pel arbitration. The circuit c ourt denied the

m otion to dism iss but granted the m otion to stay proceedings and com p el arbitration. Em ile and the e state now appeal, arguing Em ile had no authority to s ubm it his m other’s claim s to arbitration. DISCUSSION ¶5. The s ole issue bef o re this Co u r t i s w h e t her the c ircuit court erred b y g ranting the

2m otion to com pel arbitration. Em ile argues three p oints: (1) he l acked authority to execute the arbitration agreem ent, (2) arbitration is unconscionable, and (3) the chosen f orum is not available.
1. Arbitration Generally ¶6. M i s s i s s i p p i will “liberally construe agreem e nts with a presum pt i o n i n f

a v o r o f arbitrat i o n . ” Q u a lcom m Inc. v. Am . W ireless L icense Grp., LLC , 980 So. 2d 261, 269 (Miss. 2007) (citing T

erm inix Int’l, Inc. v. R ice , 90 4 S o . 2 d 1 0 5 1, 1054 (Miss. 2004)). “Under the Federal Arbitration A ct, the Court emp l o y s a two-part test: (1) ‘whether the parties intended to arbitrate the dispute,’ and (2) ‘whethe r l egal c onstraints e xternal to the parties’ agreem ent f

oreclosed the arbitration of those claim s.’” Harrison Cty. Com m ercial Lot, LLC v. H. Gordon Myrick, Inc. , 1 0 7 S o . 3d 943, 949 (Miss. 2 013) (quoting Scruggs

v. Wyatt , 60 So. 3 d 7 58, 766 ( Miss. 2011)). For the reasons explained below, this Court f inds that both pa r t i e s i n t e nded t o arbitrate and that n o external legal constraints f oreclosed arbitration.
2. Em ile’s Authority ¶7. Arbitration agreem ents are contracts and are governed as such. Scruggs , 60 So. 3d
at 767. “The elem ents of a contract are ‘ (1) two or m o re contrac t i n g p a r t i e s , (2) consideration, (3) an agreem ent that is suf f i ciently def

inite, ( 4) parties with legal c apacity to

m ake a contract, (5) m

utual assent, and (6) no legal p rohibition precluding contract f orm ation.’” A dam s C

m t y . C a r e C t r ., LLC v. Reed , 37 So. 3d 1155, 1158 (Miss. 2010) (quoting G

renada L iving Ctr., L LC v. Colem an , 9 6 1 S o . 2 d 33, 37 ( Miss. 2007)). Em ile

3argues that the legal-capacity elem ent is m issing here be c a use he lacked t he authority to

execute the agreem ent on Carol’s behalf

. W e f i n d this argum ent m eritless because, at the tim e the arbitration agreem ent was signed, Em ile had both a G eneral POA and a Healthcare POA over Carol. ¶8. Additionally , Em ile argues that he had neither express nor apparent a uthority to sign the arbitration a greem ent on Carol’s beha l f

. B u t w e f

i nd that the General P OA and Healthcare POA gave Em ile the express authority to sign the arbitration agreem ent. A. General POA ¶9. Em ile a r g u e s t h a t t h e G e n e ral P OA d id not grant him authority to execute the arbitration agreem ent b ecause it did not expressly convey C a r o l ’ s r i g h t to waive a trial by jury to him

. W e disagree. The Gen e r a l P O A stated, “m y attorney -in-f act s hall have the
power a nd authority to handle all of m y af f airs and transactions in the State of Mississippi

. . . .” It a l so vested Em ile with the authority “ to execute, acknowledge and d eliver any and all contracts

. . . and any other instrum ent or agreem ent of any kind or nature w hatsoever

. . . .” ¶10. Additionally , the General POA stated,
I HEREBY GIVE AND GRANT u nto m y said atto rney f ull power and authority to do and perf

orm every act and thing whatsoever requisit e a n d necessary to b e done in and ab o u t the prem i ses, as f ully to all i ntents and purposes as I m ight or c o u l d d o i f p ersonally present, with f u ll power of substitution or revocation, hereby ratif y ing and conf

ir mi n g a l l that m y said attorney , or her su b s t i t u t e or substitutes, have done, shall do, or cause to be done lawf ully by virtue of

these presents.
A plain reading o f the Gene r a l POA shows Em i le possessed t he authority t o sign the

4arbitration agreem ent on Carol’s behalf

. B. Healthcare POA ¶11. Carol h ad a lso executed a Healthcare P OA that appoints E mi le as Carol’s agent to

m ake “all healthcare decisions” on her behalf

. Em ile argues that w h ile the Healthcare POA vested him

with the authority

to m ake healthcare decisions f or Carol, it did not perm it him
to waive Carol’s c o n s t i t u t ional right to a jury t rial or her r ight to f ull legal redress. This
argum ent lacks m erit. The Mississippi Code states, (h) “Health-care d ecision” m eans a decision m a de by an individual o r the individual’s agent, guardian, or surrogate, regarding the individual’s health care, including: (i) Selection and discharge of health-care providers and institutions; (ii) A pproval o r d isapproval of diagnostic tests, surgical procedures, program s of

m edication, and orders not to resuscitate; and (iii) Directions to p r ovide, withhold or withdraw a r tif icial n utrition and hy dration and all other f

orm s of health care. Miss. Code Ann. § 41-41-203(h) (Rev. 2018). ¶12. This Court has f

ound num erous tim es that signing an a r b i t r a t i o n a g r eem ent is a healthcare d e c i s i o n . Miss. Care Ctr. of Greenville, LLC v. Hinyub , 975 So. 2 d 211, 218 (Miss. 2008); Covenant H e alth Rehab of

Picayune v. Brown , 949 So. 2d 732 (Miss. 2007), overruled on other grounds by Covenant Health Rehab of P icayune v. Estate of

M oulds ex rel. Braddock , 14 So. 3 d 6 95 ( Miss. 2009); V i cksburg Partners, L.P. v. Stephens , 911 So. 2d 507 (Miss. 200 5 ) , o v erruled on other grounds by Moulds , 1 4 So. 3d 695. Em ile’s decision to sign the a rbitration agreem ent is considered a healthcare de c i s i o n that the

5Healthcare POA authorized him to m ake on Carol’s behalf

. 3. Unconscionability ¶13. Em ile als o a r g u e s t he arbitration agreem ent is both procedurally and substantively unconscionable. If “an arbitration agreem ent is f ound to be u nconsc i o n a b l e pursuant to
gen e r a l state law principles, then it m ay b e invalidated without o f f ending the Federal Arbitration Act.” E. Ford, Inc. v. Taylor , 826 So. 2 d 709, 7 11 (Miss. 2002) (citing Doctor’s Assocs., Inc. v. Casarotto , 517 U.S. 681, 686, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996)). The existence of e ither procedural or substantive unconscionability is suf f i cient to render the
agreem ent invalid.

A. Procedural Unconscionability ¶14. The indicat o r s of procedural unconscionability generally f all into two areas: (1) lack of knowledge, and (2) lack of v oluntariness. A lack o f k nowledge is dem onstrated by a l ack o f understanding of the cont r a c t t erm s a rising f rom inconspicuous print or the use of com plex, legalistic languag e , d i s parity in sophistication of p a rties, and lack o f o p p o r tunity to study the contract and inquire about contract term s. A lack of v oluntariness i s d e m o nstrated in contracts of ad h e s i o n when there is a great i m balance in the parties’ relative bargaining power, the stronger party ’s term s are u nnegotiable, and the w eaker party is prevented by m arket f actors, tim ing or o ther pressures f rom being able to contract with a nother party o n m ore f avorable term s o r t o ref

rain f rom contracting at all. Entergy Miss., Inc. v. Burdette Gin Co. , 7 26 So. 2d 1202, 1207 (Miss. 1998) (quoting Bank of Ind., Nat’l Ass’n v. Holyfield , 476 F. Supp. 104, 109-10 (S.D. Miss. 1979)). ¶15. H e r e , t h e arbitration agreem ent was c o nspicuous. It was wr i t t e n a s a s e p a r a t e
agreem ent with its own signature lines a nd was titled, i n capital letters, AGREEMENT TO ARBITRATION O F A LL CLAIMS (MISSISSIPPI). The agreem ent was highly visible and

6was not buried within a larger docum ent. The arbitration agreem ent was also f ewer than two pages long and explained its term s without com plex legal language. ¶16. Em ile presented n o ev i d e n c e h e l a c k e d t h e o p p o rtunity to study the arbitration
agreem ent and to inquire about its term s. Em ile does not argue he was tim e p ressured when signing t he a greem e nt. Additionally , the arbitration agreem e nt explained that Em ile had the right to seek legal counsel concerning the arbitration agreem ent. If Em ile had concerns or questions about th e a r b i t r a tion a greem ent, he could have asked the f acility , r esearched the question on his own, or hired an attorney to assist him

. ¶17. Em ile argues he was f orced to sign the arbitration agreem ent i n order to get h is m other the care she needed. W e f ind this claim m eritless. The a r b i t r a t ion agreem ent s pecif ically

m entioned that the signor “has the right to s e ek legal counsel concerning this agreem ent.”
It also e xplained that the signor is not required to use O SHRC f or her healthcare needs and that m any other qualif

ied f a cilities were available. Additionally , Em ile was not in an

em ergency situation; he chose to transf er Carol to OSHRC f

rom another f

acility

. He could have chosen a ny other f

acility , but Em ile f

reel y and voluntarily chose to adm i t Carol to OSHRC. ¶18. We c o n c l u d e t h a t E mi l e entered into the a rbitration agreem ent knowingly an d voluntarily . Theref

ore, the arbitration agreem ent was not procedurally unconscionable.
B. Substantive Unconscionablity ¶19. “Substantive unconscionability is proven by oppressive contra c t t e r m s s u c h t h a t ‘there is a o ne-sided agreem ent whereby one party i s deprived of all the benef its of the agreem ent

7or lef

t w ithout a rem edy f

or another p arty ’s n onperf o rm an c e o r b r e ach.’” Caplin Enters., Inc. v. Arrington , 145 So. 3d 608, 614 (Miss. 2014) (quoting Moulds , 14 So. 3d at 699). ¶20. Em ile cites Moulds , but it is distinguishabl e . I n M o u l d s t h i s C o u r t f

o u n d a n arbitration agreem ent substantively unconscionable b ecause the agreem ent allowed only the f acility , and not the custom er, to litigate disputes in court, and it required t hat any dispute be brought in the sam e county the f acility is located. Moulds , 14 So. 3d a t 7 02. The arbitration
agreem ent h ere has no s im ilar language; it m erely designates t he A m erican Arbitration Association (AAA) as the a greed-upon f orum a nd subjects both parties’ claim s to arbitration. ¶21. I n U

n i t e d C r e d i t C o r p . v. Hubbard , 905 So. 2d 1 176, 1179 (Miss. 20 0 4 ) , a n arbitration agreem ent between a corporation and an individual was deem ed “not substantively unconscionable because both parties were guaranteed the sam e rights by the
agreem ent.” Like H

ubbard , the parties here can both dem and and enf orce t he agreem ent to arbitrate and are theref

ore “guaranteed the sam e rights by the agreem ent.” ¶22. W e f

ind that the arbitration agreem ent is substantively conscionable.
4. The Forum ¶23. The arbitration a g r e e m e n t r equires that any dispute “ shall be s ettled exclusively by bin d i n g arbitration adm i nistered by the Am e rican Arbitration Association under its m ost recent version of its Com m ercial Dispute Resolution Procedures . . . .” ¶24. In 2003, the A AA changed its policy to no longer accept the adm i nistration of cases in t he healthcare area involving individuals w ithout a post-dispute a g r e e me n t to arbitrate.
Em ile argues that this c h ange m akes the A AA, the f orum selected by the arbitration

8agreem ent, unavailable. W e have held that w h e n t h e f o rum selected in an arbitration
agreem ent is unavailable, the agreem ent to arbitrate is unenf orceable. Moulds , 14 So. 3d at 707-09. ¶25. However, the AAA’s 2003 policy is no longer in ef

f ect. Its statem e nt on the policy change reads, in relevant part
In 2003, the Am erican Arbitration Association® (“AAA”) announced that it would not adm inister healthcare arbitrations between i ndividual p atients and healthcare service providers that relate to m edical services, such as negligence and m edical m alpractice disputes, unless a ll parties agreed to subm it the m atter to arbitration af

ter the dispute arose. This policy is consistent w i t h t h e Am erican A rbitration Asso ciation/Am erican B ar Association/Am erican Medical Association Due P rocess Protocol f or the Mediation and Arbitration of Health Care Disputes. However, the AAA will adm inister disputes between patients and h ealthcare providers to the extent a court order d irects s u ch a dispute to arbitration where the parties’ a greem e nt provides f or the AAA’s rules or AAA a dm inistration. 1
The c urrent policy only requires that a court af f irm atively direct that t he m atter be arbitrated, whi c h the circuit c ourt has already done. E m ile again cites M oulds , 14 So. 3d at 707, and
argues that requiring a court o r der to arbitrate requires t he court to i ntervene in the contractual relationship o f the parties. W e disagree. The court sim ply enf orced the already

agreed-upon contract; it d id not redraf t or ref orm the agreem ent as the court did in Moulds

. ¶26. Em ile also argues t h a t t h e 2 0 0 3 policy controls b ecause it was i n ef f ect when the arbitration agreem ent was s igned. But the arbitration agreem ent states that the dispute shall

1 T h e A A A H e a l t h c a r e P o l i c y S t a t e m e n t i s a v a i l a b l e a t h t t p s : / / w w w . a d r . o r g / s i t e s / d e f a u l t / f i l e s / docum ent_repository

/AAA_Healthcare_Policy

_ Statem ent.pdf

(last visited May 14, 2019).

9be “adm inistered by the Am erican Arbitration Association under its m ost recent version of

its C om m ercial Dispute Resolution Procedures

. . . . ” E m i le interprets “m ost recent” to m ean the m ost recent version of the procedures. W e do not agree w ith this interpretation. In Reed

v. J ohnson , No. 4:14-CV-176-SA-JMV, 2016 W L 913232, at *4 (N.D. Miss. Mar. 9, 2016), the United States D istrict C ourt f or the Northern D i strict of Mississippi discussed the sam e issue and held,
In accordance with this exception, the subject arbitration agreem e nt calls f or adm inistration “ by the A m erican Arbitration Association under its m o st recent version of its Com m ercial Dispute Resolution Procedures

. . . .” Thus, if this Court grants the m otion to com pel and orders the case to arbitration, t he AAA will adm inister the arbitration notwithstanding the general prohibition discussed above.
W e agree with Reed and interpret “m ost recent” t o m ean t he procedures in ef f ect a t the t im e the dispute arose, not the procedures in ef f ect when the arbitration agreem ent was signed. CONCLUSION ¶27. W e f

ind Em ile’s argum ents m e ritless, and we af f irm the d e c i s i o n o f t h e J a c k s on County Circuit Court granting the m otion to com p el arbitration. ¶28. AFFIRMED. RANDOLPH, C .J., KITCHENS AND KING, P.JJ., COLEMAN, M AX WELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR.

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