Personal Injury and Wrongful Death Claims: Arbitration Agreements

Corporate America continues to use mandatory arbitration agreements to strip consumers of their right to make civil claims in court. medicalrecords-200x300

“Voluntary” and forced arbitration agreements are quickly becoming the norm as businesses seek to shield themselves from liability. Kiplinger Finance recently examined the trend of forced arbitration agreements in credit card and other financial contracts. In many cases, consumers are given the option of opting out of arbitration. It’s critical to read the fine print of your contracts and follow up by opting out of such agreements whenever possible.

While most civil claims, including personal injury and wrongful death lawsuits, are decided in court, arbitration agreements force both sides to agree to settle their differences through an arbitrator of facts, outside the court of law. Frequently, these arbitrators survive on corporate business.

Our Fort Myers injury lawyers have written about arbitration agreements in nursing home contracts as nursing home operators increasingly look to force clients and their families into arbitration to resolve disputes involving nursing home negligence or abuse. In a recent Wyoming case, plaintiff argued pre-dispute nursing home arbitration agreements are illegal per federal regulation and that the agreement was actually unconscionable. The claim was won in trial court but reversed on appeal.

Mandatory arbitration agreements have become commonplace in our consumer society. It’s likely you have been asked to enter one when purchasing a product, entering a facility or venue, or renting a car.

The problem is serious, as underscored by a recent New York Times investigation. It’s been characterized by legal analysts as one of the most profound legal shifts in our generation. Essentially, arbitration allows business to opt out of the legal system and violate rights without reproach.

While several federal measures aimed at curbing the abuses of arbitration agreements have been proposed in Congress, none have passed. In many cases, both state and federal law and court decisions have leaned toward requiring arbitration, in part because it reduces case loads.

In Florida, a number of court decisions have found in favor of compelling arbitration. Florida courts view arbitration as a preferred mechanism of dispute resolution, and it is often repeated in Florida courts that any doubt regarding the arbitrability of a claim should be resolved in favor of allowing arbitration.

While your injury lawyers in Fort Myers can still file a personal injury or wrongful death lawsuit, the Florida Arbitration Code, F.S. §682.01 et seq. , provides that any party may apply by motion for an order directing the parties to a lawsuit to comply with a governing arbitration clause.

In tort claims, whether an agreement is “governing” may rely upon a number of factors:

Who signed the agreement: A growing body of law provides a way out of arbitration agreements when the agreement was not executed by the adult victim (as is often the case for nursing home residents when family signs), or was otherwise not signed by the plaintiff (as may be the case in a wrongful death action where damages are being sought by a victim’s estate).

Was the arbitration agreement mandatory: Agreements that are mandatory may not be as enforceable.

Is the arbitration agreement controlling: While the courts often rule in favor of arbitration when the issue is found to be controlled by the agreement,  tort claims, which often include allegations of negligence, may be outside the bounds of what such agreements are meant to govern.

Arbitration agreements severely curb plaintiff rights. While a lawsuit is still possible, these cases are best handled by a law firm with extensive experience.

If you or a loved one is injured, call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

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