DARROL LEVONAS, individually, and as the Administrator Ad Prosequendum of the ESTATE OF ANASTASIA PREZLOCK, Plaintiff-Respondent,
REGENCY HERITAGE NURSING AND REHABILITATION CENTER, L.L.C., and DAVIS GROSS, Defendants-Appellants, and ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7610-09.
Christopher E. Martin argued the cause for appellants (Morrison Mahoney, L.L.P., attorneys; Mr. Martin, of counsel and on the brief; Emily C. Kidder, on the brief).
Deborah R. Gough argued the cause for respondent (The Gough Law Firm, L.L.P. And Kirsch Gartenberg Howard, L.L.P., attorneys; Thomas S. Howard, on the brief).
Before Judges Harris and Hayden.
We granted defendants Regency Heritage Nursing and Rehabilitation Center (Regency) and its owner, David Gross (collectively "defendants"), leave to appeal from an interlocutory order denying their motion to dismiss the complaint of plaintiff Darrol Levonas (plaintiff), brought individually and as the administrator of the estate of his mother, Anastasia Prezlock (Prezlock), for failure to arbitrate. We find that under the "totality of circumstances" test recently articulated in Cole v. Jersey City Medical Center, ___N.J. ___, ___(2013) (slip op. at 20), defendants waived their right to invoke the arbitration clause by active and protracted participation in the litigation. We affirm.
We discern the following facts from the record. On September 17, 2007, Prezlock, who had been diagnosed with dementia but otherwise had been managing her own financial affairs, was admitted to Regency following hospitalization for injuries sustained from a fall.
On October 12, 2007, plaintiff signed and initialed various provisions of Regency's "Nursing Home Admission Agreement" as the "Responsible Party." Prezlock's name was written on the agreement under the heading "Resident, " but she did not sign it. The agreement, which was not signed by a representative of Regency, had an arbitration provision, which included the following:
Any claim or dispute related to or arising from this Agreement or Resident's care at the Facility (whether based or [sic] contract or tort, in law or equity) shall be resolved by mandatory, final, binding arbitration in accordance with the rules of the American Arbitration Association ("AAA"), although the parties may choose to administer the arbitration through the arbitrator instead of the AAA; provided, however, that Resident/Responsible Party shall not be entitled to an award of exemplary or punitive damages.
Prezlock remained a resident at Regency until November 15, 2008, when she was transferred to Robert Wood Johnson University Hospital (Robert Wood Johnson). Plaintiff alleges that, while a resident at Regency, Prezlock fell approximately nineteen times, sustained vertebral fractures, fractured her right hip, and suffered from dehydration, malnutrition, and infection. She died sometime prior to July 28, 2009, while a resident of Park Place Care Center (Park Place). Plaintiff contended his mother died from injuries sustained while a resident at Regency and while admitted to Robert Wood Johnson.
Meanwhile, on February 3, 2009, Regency filed a two-count collection complaint in the Special Civil Part against Prezlock and plaintiff, as the "Responsible Party" under the admission agreement, seeking outstanding charges for services rendered.
On September 9, 2009, plaintiff, individually and as administrator of his mother's estate, filed a civil complaint against defendants and Robert Wood Johnson, setting forth claims for: gross negligence; negligence; medical malpractice and professional negligence; wrongful death; and deprivation of civil rights and violations of State and federal laws protecting nursing home residents. On October 29, 2009, defendants filed an answer and asserted twenty affirmative defenses, including a defense that "[p]laintiff's ...