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Court erred in denying nursing home’s motion to compel arbitration

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A trial court incorrectly concluded that an arbitration agreement contained in a nursing home’s facility admission agreement was ambiguous because the parties bound by the agreement are not clearly named, the Indiana Court of Appeals held Tuesday.

Birdie Sherls’ son, Oliver Sherls, signed an agreement with Lincolnshire Health Care Center to admit his mother to the facility after she suffered a stroke. In the agreement, “Lincolnshire” was handwritten in as a party. The agreement also included an arbitration clause.

Less than a year after she was admitted, Birdie Sherls died from bed sores and stage four decubitus ulcers, which led to sepsis. Her estate filed a lawsuit against Lincolnshire alleging its negligent care caused her death. Lincolnshire moved to compel arbitration. The trial court held that Oliver Sherls had the authority to sign the agreement on his mother’s behalf, but that the agreement is ambiguous because the judge could not determine which “facility” is supposed to be bound to provide care and services. The defendants named in the complaint are Tender Loving Care Management Inc. d/b/a TLC Management, LLC, d/b/a Lincolnshire Health Care Center, Inc., d/b/a Riverview Hospital, and Lincolnshire Health Care Center, Inc. The judge believed it wasn’t clear to which of these entities that the term “Lincolnshire” in the agreement refers.

The Court of Appeals reversed in part, finding based on extrinsic evidence, it’s clear that Oliver and Birdie Sherls understood they were entering into a contract with Lincolnshire Health Care Center. The judges affirmed that Oliver Sherls had authority to enter into the agreement on his mother’s behalf, which also includes the ability to agree to arbitration, and the finding that the agreement is not an unconscionable adhesion contract. The COA remanded for further proceedings in Tender Loving Care Management, Inc., d/b/a TLC Management LLC, et al. v. Randall Sherls, as Personal Representative of the Estate of Birdie Sherls, Deceased,
45A05-1311-CT-562.

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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