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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40583

SHARLEEN PFEIFFER-ANDERSON,

Personal Representative of the Probate

Estate of B.P., Deceased,

Plaintiff-Appellee,

v.

THE EVANGELICAL LUTHERAN GOOD

SAMARITAN SOCIETY d/b/a GOOD

SAMARITAN SOCIETY -- MANZANO

DEL SOL VILLAGE; SANFORD HEALTH

FOUNDATION; LISA MEYER, Administrator;

and GAYLENE MONTEZ, Director of Nursing,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Joshua A. Allison, District Court Judge

Harvey and Foote Law Firm, LLC

Jennifer J. Foote

Dusti Harvey

Albuquerque, NM

for Appellee

Miller Stratvert P.A.

Thomas R. Mack

Samantha E. Kelly

Albuquerque, NM

Fudge Broadwater P.A.

Donna J. Fudge

Keith M. Hoffman

St. Petersburg, FL
for Appellants

MEMORANDUM OPINION

BUSTAMANTE, Judge, retired, sitting by designation.

{1} Defendants Evangelical Lutheran Good Samaritan Society (Evangelical 

Lutheran), Sanford Health Foundation, Lisa Meyer, and Gaylene Montez appeal the 

district court’s order that granted in part and denied in part Defendants’ motion to 

compel arbitration. Defendants argue that the district court erred in determining that 

Plaintiff Sharleen Pfeiffer-Anderson, the personal representative of the estate of B.P., 

specifically challenged the arbitrability provision in their arbitration agreement, and that 

Plaintiff’s common law sexual assault claims are not subject to arbitration. We affirm.

BACKGROUND

{2} This case arises from a claim for personal injuries filed by B.P.’s estate against a 

nursing home operated by Evangelical Lutheran. According to the first amended 

complaint, B.P. was a resident at the nursing home for eight years. Toward the end of 

her stay, B.P. suffered a fall and was a victim of a sexual assault perpetrated by another 

resident of the facility. The first amended complaint alleged that both incidents occurred 

because of the nursing home’s negligent failure to follow and comply with applicable 

standards of care for nursing homes. 

{3} As part of B.P.’s admission paperwork to the nursing home, Plaintiff, as the lawful 

agent for B.P., entered into an agreement titled, “Resolution of Legal Disputes” (the 

Arbitration Agreement) on B.P.’s behalf. B.P. passed away and Plaintiff, in her capacity 

as the personal representative of B.P.’s estate, filed suit on behalf of the estate. 

Defendants moved to stay the action and compel arbitration based on the Arbitration 

Agreement. Defendants further argued that the Arbitration Agreement contained an 

arbitrability provision that delegated gateway issues of arbitrability to an arbitrator. 

Plaintiff responded arguing that the Arbitration Agreement was unenforceable because 

it was substantively and procedurally unconscionable. Plaintiff’s response stated that 

she “specifically challenges the ‘delegation clause’ on the same basis that she 

challenges the broader arbitration clause, as the procedurally unconscionable 

circumstances surrounding its signing . . . render it unenforceable.” She also argued 

that her claims regarding sexual assault were not within the scope of the Arbitration 

Agreement. 

{4} After reviewing the parties’ briefing and holding a hearing, the district court 

granted in part and denied in part Defendants’ motion. The district court determined that 

Plaintiff’s procedural unconscionability arguments were sufficiently specific to attack the 

arbitrability provision. The district court then determined that the sexual assault claim 
was not arbitrable.1 Finally, it declined to stay the matter regarding the nonarbitrable 

claim. Defendant appeals. 

DISCUSSION

I. Plaintiff Specifically Challenged the Arbitrability Provision

{5} “Arbitration agreements are a species of contract, subject to the principles of 

New Mexico contract law.” Hunt v. Rio at Rust Ctr., LLC, 2021-NMCA-043, ¶ 12, 495 

P.3d 634 (internal quotation marks and citation omitted). “Accordingly, we apply New 

Mexico contract law in the interpretation and construction of the arbitration agreement.” 

Id. (alterations, internal quotation marks, and citation omitted). We address Defendants’ 

arguments, applying a de novo standard of review. See Cordova v. World Fin. Corp. of 

N.M., 2009-NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901 (“We apply a de novo 

standard of review to a district court’s denial of a motion to compel arbitration. Similarly, 

whether the parties have agreed to arbitrate presents a question of law, and we review 

the applicability and construction of a contractual provision requiring arbitration de 

novo.” (internal quotation marks and citations omitted)).

{6} “[G]ateway questions of arbitrability typically involve matters of a kind that 

contracting parties would likely have expected a court to decide, such as the validity of 

an arbitration provision, the scope of an arbitration provision, or whether an arbitration 

agreement covers a particular controversy.” Felts v. CLK Mgmt., Inc., 2011-NMCA-062, 

¶ 17, 149 N.M. 681, 254 P.3d 124 (alteration, internal quotation marks, and citation 

omitted), aff’d on other grounds, Nos. 33,011, 33,013, dec. (N.M. Aug. 23, 2012) 

(nonprecedential). “The general rule is that the arbitrability of a particular dispute is a 

threshold issue to be decided by the district court unless there is clear and unmistakable 

evidence that the parties decided otherwise under the terms of their arbitration 

agreement.” Hunt, 2021-NMCA-043, ¶ 13 (emphasis, internal quotation marks, and 

citation omitted). Nevertheless, “even if there is a clear and unmistakable intent to 

arbitrate, a court may still consider a challenge to the delegation clause in an arbitration 

agreement” if a party “specifically challenge[s] the delegation provision.” Juarez v. Thi of 

N.M. at Sunset Villa, LLC, 2022-NMCA-056, ¶ 22, 517 P.3d 918 (internal quotation 

marks omitted); see id. (determining that a district court must consider “(1) [W]as there a 

clear and unmistakable agreement to arbitrate arbitrability? and (2) did the challenger 

mount a ‘specific challenge’ to that agreement” to determine gateway questions of 

arbitrability? (alterations, internal quotation marks, and citation omitted)). 

{7} Because the parties agree there was a clear and unmistakable agreement to 

arbitrate gateway issues of arbitrability, we turn to whether the district court erred in 

determining Plaintiff mounted a specific challenge to the arbitrability provision. 

 

1Defendants note that the district court incorrectly referred to the alleged “sexual battery claims.” 

Plaintiff’s first amended complaint referenced a sexual assault. We ignore the mistake as a simple 

typographical error. See Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 31, 132 N.M. 459, 50 P.3d 554.
{8} Plaintiff sufficiently challenged the delegation provision in the Arbitration 

Agreement. In Plaintiff’s response to Defendants motion to compel arbitration, she 

argued that the Arbitration Agreement was both substantively and procedurally 

unconscionable. Plaintiff argued it was substantively unconscionable because it does 

not meet federal regulations regarding nursing homes and arbitration, and that “the 

arbitration clause requires the parties to share the cost of arbitration.” Plaintiff argued 

that it was procedurally unconscionable because the circumstances surrounding her 

signing the Arbitration Agreement demonstrated that she did not have a real choice in 

signing the Arbitration Agreement. For example, Plaintiff was worried about her mother 

and concerned that if she did not sign the documents they would not admit her mother; 

she did not understand the terms of the Arbitration Agreement; the employees did not 

review the paperwork with her or offer her time to review it; and Plaintiff was unfamiliar 

with arbitration. This argument was based on Plaintiff’s affidavit where she also stated, 

“I would have never signed this [A]rbitration [A]greement had I known it would mean that 

it would cost so much money to have this case heard, that it would mean we couldn’t go 

to court, or that it would have included something as terrible as the rape of my mother.” 

Plaintiff also asserted that she “specifically challenges the ‘delegation clause’ on the 

same basis that she challenges the broader arbitration clause, as the procedurally 

unconscionable circumstances surrounding its signing were the same as outlined in her

attached affidavit, and equally render it unenforceable.” 

{9} We agree with the district court that Plaintiff sufficiently challenged the delegation 

provision to the Arbitration Agreement based on her failure to comprehend arbitration 

and her statements that she would not have agreed to arbitration had she known how 

expensive the proceedings would be. Plaintiff further stated that she would not have 

agreed to arbitration disputes concerning the sexual assault of her mother. The 

circumstances here are similar to those in Clay v. N.M. Title Loans, Inc., 2012-NMCA102, ¶ 13, 288 P.3d 888, wherein the plaintiff argued there was fraud in the inducement 

based on alleged misrepresentation by the lender of neutrality of the two organizations 

identified to administer the arbitration proceedings and the fact that the two 

organizations had stopped administering arbitration of collections. It is also similar to 

Felts, wherein the plaintiff’s arguments that class action ban rendered both the 

arbitration agreement and the delegation clause unconscionable and that the company 

selected to perform the arbitration had ceased its consumer arbitration business were 

sufficient to specifically challenge the arbitrability provision. 2011-NMCA-062, ¶ 30. 

{10} Juarez is not controlling on our inquiry because there the plaintiff argued the 

arbitration agreement was procedurally unconscionable based on her affidavit stating, 

“[The p]laintiff did not read the paperwork, was not asked to review the paperwork, felt 

as if she had no choice but to sign, and was on medication at the time of signing.” 2022-

NMCA-056, ¶ 7. She then stated, “[The p]laintiff also challenges this ‘delegation clause’ 

under the same grounds she challenges the ‘Agreement.’” Id. (internal quotation marks 

omitted). This Court determined that the plaintiff did not sufficiently challenge the 

delegation provision because the delegation clause itself was not attacked. Id. ¶¶ 37, 

38. Again, Juarez is distinct from this case in which Plaintiff specifically argued about 
the unconscionability of the cost of arbitration and arbitrating claims regarding the 

sexual assault of B.P. 

II. Plaintiff’s Claims Related to the Sexual Assault of B.P. Are Not Within the 

Scope of the Arbitration Agreement

{11} Defendants next argue that the district court erred in concluding the Arbitration 

Agreement did not include Plaintiff’s claims regarding the sexual assault of B.P. The 

issue on appeal centers on whether Plaintiff’s claim related to the sexual assault of B.P. 

is subject to the Arbitration Agreement. A court cannot compel arbitration in the absence 

of an enforceable agreement to arbitrate. Alexander v. Calton & Assocs., Inc., 2005-

NMCA-034, ¶ 9, 137 N.M. 293, 110 P.3d 509. We decide this issue as a matter of 

contract. See Clay, 2012-NMCA-102, ¶ 14 (“[The general] rule is that arbitration is a 

matter of contract and a party cannot be required to submit to arbitration any dispute 

which he has not agreed so to submit.” (internal quotation marks and citation omitted)). 

In doing so, we seek to fulfill the intent of the parties and look to the plain meaning of

the contractual language when possible. Id. ¶¶ 14, 20; Santa Fe Technologies, Inc. v. 

Argus Networks, Inc., 2002-NMCA-030, ¶ 52, 131 N.M. 772, 42 P.3d 1221. We review 

de novo the district court’s denial of the motion to compel arbitration on Plaintiff’s claims 

based on the sexual assault of B.P. See Cordova, 2009-NMSC-021, ¶ 11.

{12} “We construe ambiguities in a contract against the drafter to protect the rights of 

the party who did not draft it.” Heye v. Am. Golf Corp., 2003-NMCA-138, ¶ 14, 134 N.M. 

558, 80 P.3d 495. Arbitration clauses drafted with broad strokes require broad 

interpretation. Santa Fe Technologies, Inc., 2002-NMCA-030, ¶ 55. “When parties 

voluntarily contract to arbitrate their grievances, an order to arbitrate the particular 

grievance should not be denied unless it may be said with positive assurance that the 

arbitration clause is not susceptible of an interpretation that covers the asserted 

dispute.” Horne v. Los Alamos Nat’l Sec., L.L.C., 2013-NMSC-004, ¶ 46, 296 P.3d 478 

(alteration, internal quotation marks, and citation omitted); see Heimann v. KinderMorgan CO2 Co., L.P., 2006-NMCA-127, ¶ 7, 140 N.M. 552, 144 P.3d 111 (“[A]mbiguity 

in arbitration clauses should be resolved to favor arbitration.”). 

{13} Despite these canons of construction, our prior cases dealing with broadly 

worded arbitration clauses have required some relationship between the dispute at 

issue and the general substance of the underlying agreement. See Clay, 2012-NMCA102, ¶ 14 (“In order to fall within the scope of the arbitration clause, the claims at issue 

must bear a ‘reasonable relationship’ to the contract in which the arbitration clause is 

found.” (citation omitted)); Santa Fe Technologies, Inc., 2002-NMCA-030, ¶ 52. 

Although the arbitration provision we examined in Clay—by its terms—applied only to 

matters that arose from or were related to the underlying agreement, we were 

nonetheless persuaded that “even the most broadly[] worded arbitration agreements still 

have limits founded in general principles of contract law,” and that courts should “refuse 

to interpret any arbitration agreement as applying to outrageous torts that are 

unforeseeable to a reasonable consumer in the context of normal business dealings.” 

2012-NMCA-102, ¶¶ 18, 22-23 (internal quotation marks and citation omitted). Thus, a 
party to even the most general arbitration agreement “may be assumed to have 

intended to arbitrate issues that are closely related to those governed by the agreement 

itself, but not those that are unrelated to the agreement, out of the context of the 

agreement, or outrageous and unforeseeable.” Id. ¶ 20.

{14} Plaintiff made a claim of negligence against Defendants that included B.P. 

suffering injuries and harm based on the “sexual assault by a male resident.” The list of 

claims covered by the Arbitration Agreement is as follows:

A. Resident’s Rights. Any legal controversy, dispute, disagreement or 

claim arising between the Parties hereto after the execution of this 

Admission Agreement in which Resident, or a person acting on his or her 

behalf, alleges a violation of any right granted Resident under law or 

contract shall be settled exclusively by binding arbitration as set forth in 

Section C. below. This provision shall not limit in any way the Resident’s 

right to file formal or informal grievances with the Facility or the state or 

federal government.

B. All Other Disputes. Any, legal controversy, dispute, disagreement 

or claim of any kind arising out of, or related to this Admission Agreement, 

or the breach thereof, or, related to the care of stay at the Facility, shall be 

settled exclusively by binding arbitration as set forth in [S]ection C. below. 

This arbitration clause is meant to apply to all controversies, disputes, 

disagreements or claims including, but not limited to, all breach of contract 

claims, all negligence and malpractice claims, all tort claims and all 

allegations of fraud concerning entering into or canceling this Admission 

Agreement. This arbitration provision binds all parties whose claims may 

arise out of or relate to treatment or service provided by the center 

including any spouse or heirs of the Resident. 

There is no question that the parties had a valid, enforceable arbitration clause that was 

broad in scope and contained in the Arbitration Agreement. As we noted above, 

although a broad arbitration clause requires a broad interpretation as to its scope, “the 

claims at issue must bear a ‘reasonable relationship’ to the contract in which the 

arbitration clause is found.” Id. ¶ 14; Santa Fe Technologies, Inc., 2002-NMCA-030, ¶¶ 

52, 55. “A party may be assumed to have intended to arbitrate issues that are closely 

related to those governed by the agreement itself, but not those that are unrelated to the 

agreement, out of the context of the agreement, or outrageous and unforeseeable.” 

Clay, 2012-NMCA-102, ¶ 20.

{15} We agree with the district court that “even if B.P. agreed to arbitrate certain 

claims concerning her residency and care, it is not reasonable . . . to conclude that she 

intended to give up a right to a jury trial concerning her alleged sexual assault by 

another resident. To do so would be contrary to the parties’ intentions and would allow 

the arbitration of unforeseeable events.” See Castillo v. Arrieta, 2016-NMCA-040, ¶ 12, 

368 P.3d 1249 (noting with approval a Tenth Circuit opinion stating that if “two small 
business owners execute a sales contract including a general arbitration clause, and 

one assaults the other, it is elementary that the sales contract did not require the victim 

to arbitrate the tort claim because the tort claim is not related to the sales contract” 

(alterations, internal quotation marks, and citation omitted)). 

{16} Defendants attempt to differentiate the facts here from Clay because the 

agreement at issue in that case “did not expressly include torts, and the question 

became whether such torts ‘arise from or relate to’ the parties’ agreement.” The 

agreement in Clay did in fact include “disputes based upon contract, tort, consumer 

rights, fraud and other intentional torts.” 2012-NMCA-102, ¶ 17 (emphasis, internal 

quotation marks, and citation omitted). Thus, the Arbitration Agreement’s inclusion of 

language relating to torts is not dispositive on the issue. Defendants also argue that the 

“arising out of or relating to” language included in the arbitration agreement in the Clay 

matter is also different than the language in the Arbitration Agreement. Again, the 

difference is not dispositive because we stated that “even the most broadly[] worded 

arbitration agreements still have limits founded in general principles of contract law,” 

and that courts should “refuse to interpret any arbitration agreement as applying to 

outrageous torts that are unforeseeable to a reasonable consumer in the context of 

normal business dealings.” Clay, 2012-NMCA-102, ¶¶ 18, 22-23 (internal quotation 

marks and citation omitted). We therefore conclude that the Arbitration Agreement’s 

arbitration requirement does not apply to Plaintiff’s claims relating to the sexual assault 

of B.P. 

CONCLUSION

{17} For the reasons stated herein, we affirm the district court.

{18} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge,

retired, Sitting by designation

WE CONCUR:

J. MILES HANISEE, Judge

KRISTINA BOGARDUS, Judge