By Glen M. Wilkerson
Last Friday, the Texas Supreme Court handed down another arbitration case in In Re Odyssey Healthcare. P worked at hospice. She had employment agreement with non-subscriber (no worker’s compensation) that included an arbitration provision. She slipped at the home of a patient. P lived and accident occurred in El Paso.
The Arbitration language provided: Panel of arbitrators would be from Dallas County.
The Court compelled arbitration:
1. Agreement was not unconscionable because the panel was selected from Dallas. Party resisting arbitration had burden of showing unconscionability due to cost. Further, arbitrator has power to move the proceeding. It was unclear whether the agreement required the arbitration to be in Dallas
although testimony from the D representative stated that they “always” arbitrate in Dallas.
2. The non-waiver in the Labor Code did not apply. Arbitration does not waive any substantive right.
3. Provision does not violate the 10th Amendment. Compliance with the Federal Arbitration Act would NOT directly impair Texas governmental functions.
4. The promises in the agreement were not illusory.
Mandamus was granted to compel arbitration.
There was also a provision in the agreement which stated – – when going to the doctor: employees must “allow an authorized representative of the Company to go with you to appointments with health care providers.”
The Supreme Court did NOT rule on this provision and stated in footnote #1 that the fact that this provision might be NOT enforceable did not go to the enforceability of the arbitration provision as a whole. The court said in Footnote #2:
“The trial court also found unconscionable a provision in the agreement that employees must “allow an authorized representative of the Company to go with you to appointments with health care providers.” However, in considering an arbitration clause, unconscionability “must specifically relate to the [arbitration clause] itself, not the contract as a whole, if [unconscionability is] to defeat arbitration.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). Therefore, we express no opinion as to this determination of unconscionability, as it does not relate to whether to enforce the arbitration clause at issue.” (Emphasis added)
Glen M. Wilkerson is a shareholder at Davis & Wilkerson, P.C. where he focuses on the areas of Personal Injury Law, Insurance Law & Litigation, Construction Law & Litigation, Commercial Litigation, Civil Litigation, and Professional Liability. Mr. Wilkerson holds a J.D. from The University of Texas and a B.S. from The University of Texas-Arlington. He may be reached at: email@example.com.