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Kero v. Palacios

Court of Appeals of Illinois, First District, First Division

July 23, 2018

JAMES KERO and PAMELA KERO, Plaintiffs,
v.
SHARON PALACIOS, R.N.; NORTHWESTERN MEDICINE; NORTHWESTERN MEMORIAL HOSPITAL; NORTHWESTERN MEMORIAL HEALTHCARE; and SYMPHONY OF LINCOLN PARK, LLC, Defendants, (James Kero, Plaintiff-Appellant; Symphony of Lincoln Park, LLC, Defendant-Appellee).

          Appeal from the Circuit Court of Cook County 16 L 496 The Honorable William E. Gomolinski, Judge Presiding.

          JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Griffin concurred in the judgment and opinion.

          OPINION

          MIKVA JUSTICE

         ¶ 1 Appellant and the plaintiff in this case, James Kero, appeals from an order of the circuit court that granted a motion by one of the defendants, Symphony of Lincoln Park, LLC to compel arbitration of the negligence claims that Mr. Kero had filed against it, and denied Mr. Kero's motion to reconsider the court's prior order striking two of his claims against Symphony for intentional misconduct. On appeal, Mr. Kero argues that the court's enforcement of the arbitration agreement was wrong for two reasons: (1) Symphony was not a party to the arbitration agreement and (2) Mr. Kero signed the agreement under duress. Mr. Kero also argues that the court improperly struck the intentional misconduct claims against Symphony and his notice of appeal references another circuit court order. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On June 29, 2017, Mr. Kero and his wife, Pamela Kero, who is not a party to this appeal (collectively, the Keros), filed their fourth amended complaint and the operative complaint in this appeal against Symphony and various other defendants who are not parties to this appeal- including Sharon Palacios, R.N., Northwestern Medicine, Northwestern Memorial Hospital, Northwestern Memorial Healthcare, and Yasser Farid, M.D. The factual background relevant to this appeal is as follows.

         ¶ 4 The Keros alleged that Mr. Kero was a patient of Symphony's rehabilitation facility in July 2016. He was injured during his stay when, on July 19, and again on July 31, 2016, he fell out of his bed. The Keros alleged two counts of negligence and two counts of intentional misconduct against Symphony. On June 30, 2017, the circuit court struck the intentional misconduct counts.

         ¶ 5 On July 20, 2017, Symphony filed a motion to compel arbitration and to dismiss the negligence counts of the Keros' complaint under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)). Symphony argued that a valid arbitration agreement existed between the parties, that the agreement required Mr. Kero to arbitrate claims of negligence, and that, "using its then operative name 'Imperial Grove Pavilion, '" Symphony was a party to the arbitration agreement that Mr. Kero had signed.

         ¶ 6 Symphony attached Mr. Kero's admission packet to the motion, which included the admission contract and the arbitration agreement. The admission contract, signed by Mr. Kero on May 12, 2016, indicates that it was between Mr. Kero as the "resident" and "The Imperial Grove Pavilion" as the "facility." Mr. Kero's initials are on multiple pages of the contract and his name is printed and signed as the resident.

         ¶ 7 The "Health Care Arbitration Agreement" (arbitration agreement) lists "The Imperial Grove Pavilion" as the "facility," and then states that the facility "includes the particular facility where the Resident resides, its parents, affiliates, and subsidiary companies, owners, officers, directors, medical directors, employees, successors, assigns, agents, attorney and insurers." It further provides:

"In the event of any claim arising out of (1) any dispute between you and us, (2) any dispute relating to services rendered for any condition, (3) injuries alleged to have been received by patient, *** (4) services rendered for any condition and arising out of the diagnosis, treatment or care of patient, and (5) collection proceedings in excess of $50, 000.00, the claim will be submitted to binding arbitration pursuant to the provisions of this health care arbitration agreement.
Resident certifies that Resident has read this agreement and has legal representation regarding thereto or has been given the right to have this agreement reviewed by Resident's legal representation.
Resident has signed this Agreement of Resident's free will and not under duress of any nature and fully accepts the terms thereof."

         ¶ 8 At the bottom, just above Mr. Kero's signature, the arbitration agreement states:

"AGREEMENT TO ARBITRATE HEALTH CARE NEGLIGENCE ...

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