On December 14, 2021, the Washington State Court of Appeals issued an opinion, affirmatively holding that Washington law does not prohibit arbitration agreements between long term care providers and residents and that, if any state statute or rule imposed such a prohibition, it would be unenforceable.
In Drummond v. Bonaventure of Lacey et al., the assisted living facility moved to compel an arbitration agreement after a resident’s Estate filed a wrongful death claim. The trial court concluded that RCW 70.129.105 prohibited assisted living facilities in Washington from requesting a resident to waive the right to a jury trial by signing an arbitration agreement. The assisted living facility appealed.
The Washington Health Care Association, represented by Lane Powell, filed an amicus brief (friend of the court brief) in support of the enforceability of arbitration agreements in the long term care setting. The Court of Appeals agreed, holding that “RCW 70.129.005 does not contain a right to a jury trial, and thus, cannot be used as a basis to argue that the arbitration agreement violates RCW 70.129.105.” Moreover, the Court held that if Washington law were interpreted to prohibit a resident from voluntarily waiving the right to a jury trial, “a defining feature of arbitration agreements, generally,” then the statute would be unconstitutionally inconsistent with the Federal Arbitration Act, which prohibits any law that singles out the enforceability of arbitration agreements. The full text of the published opinion can be found here.
Thanks are extended to WHCA and its CEO Robin Dale for their willingness to get involved in this important case.