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Howell v. NHC Healthcare-Fort Sanders2/25/2003
ocedure would work, except as who would administer it.
The facts surrounding the execution of the agreement militate against enforcement. The Trial Court found Ms. Howell had to be placed in a nursing home expeditiously, and that the admission agreement had to be signed before this could be accomplished. The agreement was presented to Mr. Howell on a "take-it-or-leave-it" basis. Moreover, Mr. Howell had no real bargaining power. Howell's educational limitations were obvious, and the agreement was not adequately explained regarding the jury trial waiver.
The fact that Howell cannot read does not excuse him from a contract he voluntarily signed. See Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351, 359 (Tenn. Ct. App. 2001). But the circumstances here demonstrate that Larkin took it upon herself to explain the contract, rather than asking him to read it, and that her explanation did not mention, much less explain, that he was waiving a right to a jury trial if a claim was brought against the nursing home. As we have observed, the defendant who is seeking to enforce the arbitration provision has the burden of showing the parties "actually bargained over the arbitration provision or that it was a reasonable term considering the circumstances." Brown. Given the circumstances surrounding the execution of this agreement, and the terms of the agreement itself, appellant has not demonstrated that the parties bargained over the arbitration terms, or that it was within the reasonable expectations of an ordinary person.
We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to NHC Healthcare-Fort Sanders, Inc.
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