Professional Negligence Law Reporter

A Georgia appellate court held that compelled arbitration was not warranted where a man had signed an assisted living facility’s resident and arbitration agreements on behalf of his father, for whom he served as guardian and conservator.

Jobe West was appointed guardian and conservator of his father, Ronald West. Ronald was admitted to Provident Village at Creekside, an assisted living facility, a month later. At the time of the admission, Jobe signed the facility’s resident and arbitration agreements as Ronald’s “responsible party.” Ronald did not sign the agreements. An employee of the facility later allegedly shoved Ronald, causing him to suffer injuries that led to his death.

Jobe, individually and on behalf of Ronald’s estate, sued Provident Group-Creekside Properties, LLC, and others for his father’s wrongful death. The defense moved to dismiss and to compel arbitration. The trial court granted the motion to compel arbitration.

Reversing, the appellate court noted that pursuant to Ga. Code Ann. §29-4-23, a guardian may bring, defend, or participate in legal, equitable, or administrative proceedings to support and care for a ward. Under this section, the court added, a conservator may enter into contracts for labor or service within certain budgetary constraints. The court concluded that Jobe’s power as guardian and conservator did not extend to signing a voluntary predispute arbitration agreement on behalf of his father, who did not assent to the terms of the agreement. Thus, the court said that the arbitration agreement is not enforceable against Ronald.

The court rejected the defendants’ argument that the Federal Arbitration Act (FAA) preempts §29-4-23. Citing case law, the court said that lack of assent is a generally applicable contract defense that may therefore invalidate an arbitration agreement consistent with the FAA. The FAA does not require parties to arbitrate when they have not agreed to do so, the court concluded.

Citation: West v. Bowser, 2021 WL 2621663 (Ga. Ct. App. June 25, 2021).

Plaintiff counsel: Lance T. McCoy and Robert Lige Walker, both of Cartersville, Ga.