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North Carolina court rejects arbitration without consent.


An arbitration agreement unwittingly signed is not valid, the North Carolina Supreme Court The Supreme Court of North Carolina is the state's highest appellate court. The court consists of six associate justices and one chief justice, although the number of justices has varied from time to time.  ruled in March in Milon v. Duke University. (559 S.E.2d 789 (N.C. 2002).)

"This ruling should give pause to people--especially to health care providers--who seek to hide misdeeds from public view by diverting them to arbitration," said John Vail Vail (vāl), town (1990 pop. 3,569), Eagle co., W central Colo., on Gore Creek, in the Gore Range of the Rocky Mts.; founded as a ski resort 1962, inc. as a town 1966.  of the Center for Constitutional Litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called litigation.
 (CCL 1. CCL - Coral Common LISP.
2. CCL - Computer Control Language. English-like query language based on COLINGO, for IBM 1401 and IBM 1410.
) in Washington, D.C., which assisted local counsel in the case.

James Milon went to Duke Hospital for routine prostate surgery and emerged a paraplegic paraplegic /para·ple·gic/ (-ple´jik)
1. pertaining to or of the nature of paraplegia.

2. an individual with paraplegia.
. He hired a lawyer and sued Duke for malpractice malpractice, failure to provide professional services with the skill usually exhibited by responsible and careful members of the profession, resulting in injury, loss, or damage to the party contracting those services.  after formal mediation failed. Two weeks before filing suit, Milon visited his long-time doctor, whose practice Duke had recently acquired.

During the visit, Milon was given some "routine" paperwork to sign, including an "assignment of benefits" form, containing an arbitration agreement. His wife, Rosa, signed it with his name.

A couple of months after Milon filed the malpractice suit, Duke moved to compel arbitration, saying his wife had acted as his agent in signing the arbitration agreement.

The Milons argued that Rosa was not authorized au·thor·ize  
tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es
1. To grant authority or power to.

2. To give permission for; sanction:
 to sign the form. The judge agreed with them and ordered the case to trial, but the court of appeals reversed in a 2-1 decision.

Judge Albert Thomas Albert Thomas may refer to:
  • Albert Thomas (minister), (1878-1932), French politician, Minister of Armament
  • Albert Richard Thomas, (1898-1966), American politician
 Jr. disagreed with his two colleagues. "Because Mrs. Milon did not have apparent authority to enter into an arbitration agreement on behalf of her husband, and because [the] defendants could not have reasonably and prudently relied on the arbitration form as signed by her, I respectfully dissent," he wrote. He noted that the trial court had found unequivocally "that there was no authority (apparent or otherwise) to bind Mr. Milon to a contract."

The Milons' lawyers--John Bugg and William Wolf of Durham, North Carolina Durham is a city in the U.S. state of North Carolina. It is the county seat of Durham CountyGR6 and is the fourth-largest city in the state by population. , and Gayle Malone Jr. of Nashville, Tennessee--hired CCL to assist in the appeal to the state supreme court.

The center's brief argued that Rosa Milon did not have authority from her husband to sign the agreement and that she was not acting as his agent. "This case is about Mr. Milon's rights, rights which are individual to him and over which the law gives him, and only him, dominion," it said.

The brief concluded, "This court should reverse the decision of the court of appeals' majority, adopt the dissent, and affirm the decision of the trial court that 'there does not exist any valid or enforceable agreement between the parties that would require the arbitration of the plaintiffs' claims against the defendants.'"

Three weeks after oral arguments, the supreme court adopted Thomas's dissent, ruling in a one-sentence per curiam [Latin, By the court.] A phrase used to distinguish an opinion of the whole court from an opinion written by any one judge.

Sometimes per curiam signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement
 opinion that James Milon had not given his wife permission to sign the form and that Duke, which had "dealt with plaintiffs for years," could not reasonably believe that he had. The case is now headed for trial.

"The court did not condemn voluntary arbitration," Vail said. "It did, however, make clear that arbitration requires consent. Especially when unsophisticated parties are dealing with trusted health care providers, consent requires people's actual understanding of what they sign.

"It's not a broad ruling, but it does get rid of a horrible precedent," he said. "It means that when lawyers are litigating cases, they should be very careful to look at who waived the right to go to court. It's not something that anyone else can do for a person."
COPYRIGHT 2002 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2002, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Porter, Rebecca
Publication:Trial
Geographic Code:1U5NC
Date:May 1, 2002
Words:559
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