KINDRED HEALTHCARE OPERATING, INC., a foreign corporation; KINDRED NURSING CENTERS WEST, LLC, a foreign corporation, d/b/a KINDRED NURSING AND REHABILITATION-WIND RIVER, Appellants (Defendants),
SUSAN BOYD, as Personal Representative for purposes of bringing a wrongful death action on behalf of Aletha Boyd, deceased, Appellee (Petitioner).
from the District Court of Fremont County The Honorable
Norman E. Young, Judge.
Representing Appellants: Thomas B. Quinn and Christopher R.
Jones of Gordon & Rees, LLP, Denver, Colorado. Argument
by Mr. Quinn.
Representing Appellee: Diana Rhodes, Esq., Cheyenne, Wyoming;
Jason Ochs, Esq., Casper, Wyoming. Argument by Ms. Rhodes.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Ninety-three-year-old Aletha Boyd (Aletha) died following her
discharge from Kindred Nursing and Rehabilitation - Wind
River. Her daughter, Susan Boyd (Ms. Boyd), filed a wrongful
death action against Kindred alleging that its negligence in
caring for her mother caused her death. Kindred moved to
compel arbitration pursuant to an alternative dispute
resolution (ADR) agreement signed by Leanna Putnam,
Aletha's other daughter and representative under a power
of attorney at the time of her admission into the facility.
The district court denied the motion. Kindred appeals,
claiming the district court erred in denying the motion to
compel arbitration. We reverse and remand with instructions
for the district court to order arbitration.
The issues for this Court's consideration are:
1. Whether Ms. Putnam had the authority to sign the ADR
agreement on Aletha's behalf and bind her to
2. Whether the ADR agreement is unconscionable.
3. Whether the ADR agreement lacks mutuality of assent and
consideration in light of the provision incorporating the
National Arbitration Forum Mediation Rules and Code of
Kindred Healthcare Operating, Inc. and Kindred Nursing
Centers West, LLC owned and operated a nursing home facility
in Riverton, Wyoming under the name Kindred Nursing and
Rehabilitation - Wind River (Kindred). On January 8, 2010,
Aletha Boyd was admitted to the facility. Prior to her
admission, in September of 2001, Aletha had signed a durable
general and medical power of attorney designating Ms. Putnam
as her attorney in fact and agent. At the time of
Aletha's admission into the nursing home, Ms. Putnam
signed the ADR Agreement at issue.
The title of the agreement is:
ALTERNATIVE DISPUTE RESOLUTION AGREEMENT (OPTIONAL)
next line of the agreement states (emphasis in original):
(THIS AGREEMENT IS NOT A CONDITION OF
ADMISSION TO OR CONTINUED RESIDENCE IN THE
The agreement goes on to provide that the parties to the
agreement, ("Kindred Nursing Centers West, LLC, [doing
business as] Wind River Healthcare & Rehabilitation
Center . . . and Aletha Boyd"), agree that
any disputes between them arising out of Aletha's stay at
the facility "shall be resolved exclusively by an ADR
[alternative dispute resolution] process that shall include
mediation and, where mediation is not successful, binding
arbitration." The agreement further provides:
THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE
THAT BY ENTERING INTO THIS AGREEMENT THEY ARE GIVING UP THEIR
CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTES DECIDED BY A
COURT OF LAW . . . .
The Parties recourse to a court of law shall be limited to an
action to enforce a binding arbitration decision entered in
accordance with this Agreement or to vacate such a decision
based on the limited grounds set forth in the Wyoming Uniform
Arbitration Act, Wyo. Stat. §§ 1-36-101 through
1-36-119. The parties agree that the speed, efficiency, and
cost-effectiveness of the ADR process, together with their
mutual undertaking to engage in that process, constitute good
and sufficient consideration for the acceptance and
enforcement of this Agreement.
Aletha remained in the nursing home until she was discharged
on May 17, 2014. She died thirteen days later on May 30. The
death certificate listed the primary cause of death as
Following Aletha's death, the district court appointed
Ms. Boyd as her personal representative for purposes of
bringing a wrongful death action. On May 13, 2016, Ms. Boyd,
as personal representative of her mother's estate,
submitted a notice of claim to the State of Wyoming's
Medical Review Panel in accordance with Wyo. Stat. Ann.
§ 9-2-1513 et seq. She asserted that during the
time her mother resided at the nursing home, Kindred and its
employees failed to meet their legal and contractual
obligations to her. Specifically, Ms. Boyd asserted that
Kindred and its employees failed to meet nutritional
standards, perform proper nursing assessments, properly
document, perform a complete assessment, develop and
implement a comprehensive care plan, implement proper fall
precautions and communicate them to staff, hire adequate and
appropriately trained staff, train and supervise staff,
provide adequate supervision and assistance for an individual
with limited mobility and provide the necessary care to
attain and maintain the highest practicable physical, mental
and psychosocial well-being of Aletha. Ms. Boyd asserted that
these failures on the part of Kindred led to Aletha falling
on at least six occasions and suffering injuries, including a
Kindred responded to the notice of claim, contending that the
dispute was subject to the ADR agreement, and that therefore,
pursuant to Wyo. Stat. Ann. § 9-2-1518(a),
medical review panel could not review the claim. As to the
specific allegations in the notice, Kindred denied that the
care provided to Aletha fell below the standard of care or
caused her injuries or death. The Medical Review Panel
dismissed the claim, and in August of 2016, Ms. Boyd filed a
wrongful death action in district court, again asserting that
Kindred's negligence caused her mother's injuries and
In response, Kindred filed a motion to compel arbitration.
Kindred argued that when Ms. Putnam signed the ADR agreement,
she was authorized to act as Aletha's legal and personal
representative and had authority to sign the agreement.
Kindred further asserted that Ms. Putnam's decision to
agree to arbitrate disputes concerning Aletha's care was
a health care decision within the meaning of the Wyoming
Health Care Decisions Act and Wyo. Stat. Ann. §
35-22-406. Anticipating a potential argument by Ms. Boyd,
Kindred contended that the ADR agreement Ms. Putnam signed
was not unconscionable or void as against public policy.
Finally, Kindred asserted that Ms. Boyd should be equitably
estopped from refusing to honor the ADR agreement because she
relied on the other admission documents concerning
Aletha's care and should not be allowed to single out one
document as invalid.
In response to Kindred's motion, Ms. Boyd argued that
pre-dispute nursing home arbitration agreements are illegal
pursuant to federal regulation; Kindred's ADR agreement
was unconscionable; there is no presumption in favor of
arbitration in a dispute concerning the validity of an
arbitration agreement; Kindred's ADR agreement is invalid
because it lacks mutuality and is not supported by
consideration; and the invalid provisions are not severable
because they go to the very essence of the agreement.
After considering the parties' arguments, the district
court denied Kindred's motion to compel arbitration
without providing reasons for doing so. Kindred timely
appealed to this Court.
Both the Federal Arbitration Act and the Uniform Arbitration
Act adopted by the Wyoming legislature make arbitration
agreements "valid, irrevocable, and enforceable save
upon such grounds as exist at law or in equity for the
revocation of any contract." 9 U.S.C.S. § 2; Wyo.
Stat. Ann. § 1-36-103 (LexisNexis 2017). Therefore, when
deciding whether an arbitration agreement is enforceable,
courts apply state law principles governing the formation of
contracts. Fox v. Tanner, 2004 WY 157, ¶ 18,
101 P.3d 939, 944 (Wyo. 2004) (citing First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct.
1920, 1924, 131 L.Ed.2d 985 (1995)). When language is clear
and unambiguous, the interpretation and construction of
contracts is a matter of law for the courts. Thorkildsen
v. Belden, 2011 WY 26, ¶ 8, 247 P.3d 60, 62 (Wyo.
2011) (citing Cheek v. Jackson Wax Museum, Inc.,
2009 WY 151, ¶ 12, 220 P.3d 1288, 1290 (Wyo. 2009)). We
review questions of law de novo without giving any
deference to the district court's determinations.
Id. The question of whether a contract is
unconscionable is also one of law. Roussalis v. Wyoming
Medical Center, Inc., 4 P.3d 209, 245 (Wyo. 2000).
Whether an agency relationship exists and the scope of the
agent's authority can be questions of fact. Ohio Cas.
Ins. Co. v. W.N. McMurry Const. Co, 2010 WY 57, ¶
39, 230 P.3d 312, 327 (Wyo. 2010). However, as with other
contracts, construction of a written contract creating an
agency and the agent's authority thereunder are questions
of law for the courts unless the instrument is ambiguous ...