ADR LAW & POLICY UPDATE

Federal Cases

Law Firm Did Not Waive Right to Arbitrate by Filing Collection Lawsuit
Hodson v. Javitch, Block & Rathbone, LLP, No. 1:07 CV 2085, 2008 WL 191062 (N.D. Ohio Jan. 18, 2008)
1/18/2008

In ordering arbitration of a lawsuit brought by a credit card holder against a law firm that filed collection lawsuits on the cards, a federal district court in Ohio rejected the argument that the law firm waived its right to demand aribtration by filing the collection lawsuits. Even though it didn't rise to the level of waiver in this case, the filing of a collection lawsuit may jeopardize the enforceability of an arbitration agreement under other legal doctrines.

In Hodson v. Javitch, Block & Rathbone, LLP, No. 1:07 CV 2085, 2008 WL 191062 (N.D. Ohio Jan. 18, 2008), Hodson obtained two Capital One credit cards by filling out an on-line application. When Hodson defaulted on his payment obligations, Capital One hired Javitch, Block & Rathbone (JBR) to act as attorney in its collection efforts... Full Story

Court Affirms Arbitrators' Authority to Grant Summary Judgment
Sherrock Brothers, Inc. v. DaimlerChrysler Motors Co., LLC., No. 06-4767, 2008 WL 63300 (3rd Cir. Jan. 7, 2008)
1/7/2008

The Third Circuit Court of Appeals upheld a lower court's decision determining that arbitrators are empowered to grant any relief reasonably fitting the matter submitted, including summary judgment.

In Sherrock Brothers, Inc. v. DaimlerChrysler Motors Co., LLC., No. 06-4767, 2008 WL 63300 (3rd Cir. Jan. 7, 2008), Sherrock and DaimlerChrysler submitted an automobile dealership dispute to arbitration... Full Story

Sixth Circuit: Arbitrability Determined Under "Could Be Maintained Without Reference to the Contract," Not Broader "Touch Upon" Standard
NCR Corp. v. Korala Associates, Ltd., No. 06-3685, 2008 WL 140978 (6th Cir. Jan. 16, 2008)
1/16/2008

The correct Sixth Circuit arbitrability standard examines "whether an action could be maintained without reference to the contract," and not whether the claims "touch upon matters covered by the agreement," according to the Sixth Circuit Court of Appeals.

In NCR Corp. v. Korala Associates, Ltd., No. 06-3685, 2008 WL 140978 (6th Cir. Jan. 16, 2008), NCR instituted a court action against Korala on various counts of direct and contributory copyright infringement, tortious interference with contract, illegal importation, and common law unfair competition, stemming from the copying and distribution of two ATM software programs... Full Story

Court Does Not Have Authority to Dismiss Case Sua Sponte in Favor of Arbitration
CPL, Inc. v. Fragchem Corp., No. 07-1784, 2008 WL 80637 (7th Cir. Jan. 9, 2008)
1/9/2008

The Seventh Circuit Court of Appeals held that a sua sponte order of dismissal is improper because an objection to venue can be waived or forfeited.

In CPL, Inc. v. Fragchem Corp., No. 07-1784, 2008 WL 80637 (7th Cir. Jan. 9, 2008), CPL, a seller of chemicals used in the manufacturing of generic pharmaceutical products, and Fragchem, an importer and exporter of chemicals, entered into an exclusive Supply Agreement for a five-year term. The Supply Agreement contained an agreement to arbitrate disputes... Full Story

Arbitration Agreements in Gaming Compacts Can Invoke Federal Court Jurisdiction if Affecting "Remedies for Breach of Contract"
Wisconsin v. Ho-Chunk Nation, No. 07-1584, 2008 WL 114887 (7th Cir. Jan. 14, 2008)
1/14/2008

Arbitration agreements within gaming compacts between states and Native American tribes can invoke federal jurisdiction when those agreements affect "remedies for breach of contract" under the Indian Gaming Regulatory Act (IGRA), according to the Seventh Circuit Court of Appeals.

In Wisconsin v. Ho-Chunk Nation, No. 07-1584, 2008 WL 114887 (7th Cir. Jan. 14, 2008), Wisconsin and the Ho-Chunk Nation disputed whether the Nation had breached a compact concerning revenue sharing with the State. The compact contained an agreement contemplating arbitration of certain disputes between the parties arising out of the contract and the waiver of sovereign immunity in certain circumstances... Full Story

Court Confirms Arbitration Award Despite Alleged TILA Violations
Pham v. Chase Bank USA, N.A., No. 1:07CV0005 JMM, 2008 WL 94739 (E.D. Ark. Jan. 7, 2008)
1/7/2008

A federal court in Arkansas granted summary judgment dismissing a credit card holder's claim that the credit card issuer violated the Truth in Lending Act (TILA) by, for instance, filing an arbitration claim when there was allegedly no agreement to arbitrate. As the Court noted, it was clear that the parties had entered into an arbitration agreement, and as such, the Court confirmed the arbitration award that had been rendered in favor of the card issuer.

In Pham v. Chase Bank USA, N.A., No. 1:07CV0005 JMM, 2008 WL 94739 (E.D. Ark. Jan. 7, 2008), Pham had a credit card account with Chase. The cardholder agreement was later amended to include an arbitration agreement, and Pham did not exercise her right to reject this amendment. Accordingly, when Pham defaulted on her account, Chase filed an arbitration claim for the unpaid balance... Full Story

Challenge to Motion to Compel Arbitration Doomed By Failure to Present Evidence of Ineffective Mailing of Amendments
Krutchik v. Chase Bank USA, N.A., No. 07-61136-CIV-COHN/SELTZER, 2008 WL 194434 (S.D. Fla. Jan. 23, 2008)
1/23/2008

A Florida federal district court has rejected a cardholder's challenge to a motion to compel arbitration because he failed to present evidence that contract amendments were never received or that related, third-party litigation had prejudiced his interests.

In Krutchik v. Chase Bank USA, N.A., No. 07-61136-CIV-COHN/SELTZER, 2008 WL 194434 (S.D. Fla. Jan. 23, 2008), Krutchik filed a complaint alleging Chase had improperly denied his dispute of several allegedly fraudulent charges made by a third party on his credit card account. Chase moved to compel arbitration of the claim under an arbitration agreement previously added by a mailed amendment to the credit card contract... Full Story

Attorney Fees Permitted Under Arbitration Agreement Where Prevailing Party Compelled to Enforce Award
Reid v. Harvey Motorcycle and Camper, No. 05 C 5375, 2007 WL 4277435 (N.D. Ill. Nov. 30, 2007)
11/30/2007

A federal court in Illinois interpreted an arbitration agreement to permit an award of attorney fees where the consumer won in arbitration and was compelled to enforce the agreement in court.

In Reid v. Harvey Motorcycle and Camper, No. 05 C 5375, 2007 WL 4277435 (N.D. Ill. Nov. 30, 2007), William Reid and Renee Picl attempted to purchase a vehicle from HMC. They were subjected to numerous questionable sales and financing tactics which culminated in Picl filing a lawsuit against HMC for numerous violations of state and federal consumer protection statutes... Full Story

Dispute Over Credit Insurance Does Not Trigger Reverse Preemption Under McCarran-Ferguson Act
Eaves-Leanos v. Assurant, Inc., Civ. A. No. 3:07-CV-18-S, 2008 WL 114889 (W.D. Ky. Jan. 10, 2008)
1/10/2008

In a dispute pertaining to a credit card account a separate agreement for credit insurance, a federal district court in Kentucky held that arbitration agreements in contracts for the extension of credit are not invalidated by reverse-preemption under the McCarran-Ferguson Act because such contracts are not insurance contracts or policies.

In Eaves-Leanos v. Assurant, Inc., Civ. A. No. 3:07-CV-18-S, 2008 WL 114889 (W.D. Ky. Jan. 10, 2008), Eaves-Leanos sued Citibank in connection with insurer Assurant's alleged failure to discharge a balance on Eaves-Leanos' credit card account with Citibank. Eaves-Leanos also sought to bring the suit as a class action... Full Story

Arbitration Award Vacated Due to Evident Partiality Created by a Commercial Interest in the Dispute
Superior Grains, Inc. v. Palouse Empire Marketing, Inc., No. 4:07-MC-11, 2008 WL 151253 (D. N.D. Jan. 11, 2008)
1/11/2008

A North Dakota federal district court concluded that an arbitrator's commercial interest in the dispute created evident partiality and prevented him from serving as an arbitrator.

In Superior Grains, Inc. v. Palouse Empire Marketing, Inc., No. 4:07-MC-11, 2008 WL 151253 (D. N.D. Jan. 11, 2008), Superior entered intro a contract with Palouse under which Palouse would purchase a large amount of split peas and lentils from Superior... Full Story

FAA Venue Limitation Does Not Apply to Motions to Stay Arbitration
Maronian v. American Communications Network, Inc., NO. 07-CV-6314(CJS), 2008 WL 141753 (W.D.N.Y. Jan. 14, 2008)
1/14/2008

A New York federal court enjoined a Michigan arbitration proceeding, holding the Federal Arbitration Act (FAA) venue limitation imposed on orders compelling arbitration did not apply to motions to stay arbitration. The Court reasoned that it would be against fundamental principles of arbitration policy to force a party to dispute the very existence of an arbitration agreement in the forum selected by the agreement.

In Maronian v. American Communications Network, Inc., NO. 07-CV-6314(CJS), 2008 WL 141753 (W.D.N.Y. Jan. 14, 2008), Andre Maronian was an independent representative of ACN. ACN claimed that Maronian signed an arbitration agreement with a forum selection clause included in the contract with ACN... Full Story

Law Firm Did Not Waive Right to Arbitrate by Filing Collection Lawsuit
Hodson v. Javitch, Block & Rathbone, LLP, No. 1:07 CV 2085, 2008 WL 191062 (N.D. Ohio Jan. 18, 2008)
1/18/2008

In ordering arbitration of a lawsuit brought by a credit card holder against a law firm that filed collection lawsuits on the cards, a federal district court in Ohio rejected the argument that the law firm waived its right to demand arbitration by filing the collection lawsuits. Even though it did not rise to the level of waiver in this case, the filing of a collection lawsuit may jeopardize the enforceability of an arbitration agreement under other legal doctrines.

In Hodson v. Javitch, Block & Rathbone, LLP, No. 1:07 CV 2085, 2008 WL 191062 (N.D. Ohio Jan. 18, 2008), Hodson obtained two Capital One credit cards by filling out an on-line application. When Hodson defaulted on his payment obligations, Capital One hired Javitch, Block & Rathbone (JBR) to act as attorney in its collection efforts. JBR filed two collection lawsuits, one for each card. Both cases were ultimately dismissed for improper venue, and following dismissal, Hodson sued JBR for allegedly violating the Fair Debt Collection Practices Act (FDCPA)... Full Story

Judge's Previous Private Practice Drafting and Enforcing Arbitration Agreements Not Sufficient Grounds for Recusal
Edmunds v. Wyatt V.I., Inc., No. SX-02-CV-642, 2007 WL 4698597 (D. V.I. Nov. 6, 2007)
11/6/2007

The mere fact that a judge had previously drafted and enforced employment-related arbitration agreements while in private practice does not warrant the judge's recusal in an employment-related arbitration matter, according to a federal district court in the Virgin Islands.

In Edmunds v. Wyatt V.I., Inc., No. SX-02-CV-642, 2007 WL 4698597 (D. V.I. Nov. 6, 2007), Edmunds filed notice requesting recusal of the judge an arbitration-related employment dispute, alleging that the judge's prior practice in drafting and enforcing employment-related arbitration agreements constituted probable bias or prejudice against the party challenging the arbitration agreement... Full Story

State Cases

Under Mississippi Law, Health Care Surrogates Have Statutory Authority to Agree to Arbitration
Magnolia Healthcare, Inc. v. Barnes ex rel. Grigsby, No. 2006-CA-00427-SCT, 2008 WL 95814 (Miss. Jan. 10, 2008)
1/10/2008

The Mississippi Supreme Court held that a primary caregiver had statutory authority as a health care surrogate to agree to arbitration on behalf of her dependent because it was undisputed that the dependent lacked capacity to manage her own affairs and Mississippi case law has previously established that an agreement to arbitrate, where necessary to the provision of health care, constitutes a "health-care decision."

In Magnolia Healthcare, Inc. v. Barnes ex rel. Grigsby, No. 2006-CA-00427-SCT, 2008 WL 95814 (Miss. Jan. 10, 2008), Grigsby and her husband were the primary caregivers for Barnes, an adult with the mental capacity of a three-year-old. When Grigsby's husband became seriously ill, Grigsby admitted Barnes to a nursing home owned by Magnolia Healthcare (Magnolia)... Full Story

Arkansas Court of Appeals Refuses to Enforce Arbitration Agreement Against Defrauded Non-Signatory Business Owner
Sterne, Agee & Leach, Inc. v. Way, No. CA 06-1410, 2007 WL 4415205 (Ark. Ct. App. Dec. 19, 2007)
12/19/2007

The Arkansas Court of Appeals refused to bind a non-signatory business owner to an arbitration agreement within an investment contract where the owner's representative allegedly entered the contract without the approval of the owner.

In Sterne, Agee & Leach, Inc. v. Way, No. CA 06-1410, 2007 WL 4415205 (Ark. Ct. App. Dec. 19, 2007), Way hired an attorney, Moser, to handle Way's farm and business affairs. Without Way's knowledge, Moser withdrew funds from Way's business accounts and opened an investment account in Way's name with Sterne... Full Story

Party-Appraiser in Fire Insurance Case Immune from Suit under Doctrine of Arbitral Immunity
Lambert v. Carneghi, No. A113388, 2008 WL 110510 (Cal. Ct. App. 1 Dist. Jan. 11, 2008)
1/11/2008

A Californian appellate court held that an appraisal constitutes arbitration under California law; and further held that the party-selected appraiser was immune from suit for actions taken pursuant to his role in the appraisal under the doctrine of arbitral immunity.

In Lambert v. Carneghi, No. A113388, 2008 WL 110510 (Cal. Ct. App. 1 Dist. Jan. 11, 2008), Winston and Elaine Lambert owned a home that was accidentally destroyed by fire. During the four years it took to obtain necessary permits to rebuild their home, many costs were incurred, the valuation of which was in dispute. A fire insurance appraisal proceeding ensued, whereby the Lamberts and the insurance company each selected an appraiser... Full Story

California Court of Appeal: One Common Issue of Law or Fact Between Arbitrable and Non-Arbitrable Claims Is Enough to Require a Stay
Heritage Provider Network, Inc. v. Superior Court, No. B201298, 2008 WL 115746 (Cal. Ct. App. Jan. 14, 2008)
1/14/2008

Upon finding a common issue of law or fact between arbitrable and non-arbitrable claims, a California court is required to grant a motion to stay judicial proceedings on the non-arbitrable claims, according to the California Court of Appeal.

In Heritage Provider Network, Inc. v. Superior Court, No. B201298, 2008 WL 115746 (Cal. Ct. App. Jan. 14, 2008), Heritage engaged in business acquisition discussions with Eastland. After talks broke down, a number of physicians under contract with Eastland entered into contracts with Heritage... Full Story

Court Determines that Power of Attorney on Behalf of Nursing Home Resident Did Not Specifically Confer Authority to Agree to Arbitrate
In re Estate of McKibbin, No. 2D06-5452, 2008 WL 161322 (Fla. Dist. Ct. App. Jan. 18, 2008)
1/18/2008

A Florida district court of appeals determined that a son's power of attorney over his mother did not grant him the legal authority to enter into an agreement to arbitrate with the nursing home of which she was a resident.

In In re Estate of McKibbin, No. 2D06-5452, 2008 WL 161322 (Fla. Dist. Ct. App. Jan. 18, 2008), Larry McKibbin, as personal representative of the Estate of Loyette McKibbin brought suit against Alterra Health Care Corporation, an assisted living facility of which Ms. McKibbin was a resident... Full Story

Court Determines Insurance Dispute Falls Within Scope of Insurance Policy's Arbitration Agreement
Mason v. State Farm Mutual Auto. Ins. Co., No. 33358, 2007 WL 4472244 (Idaho Dec. 24, 2007)
12/24/2007

The Idaho Supreme Court determined that an insurance coverage dispute fell within the insurance policy's arbitration agreement and remanded the case to arbitration proceedings.

In Mason v. State Farm Mutual Auto. Ins. Co., No. 33358, 2007 WL 4472244 (Idaho Dec. 24, 2007), Mason was involved in a car accident. After, Mason sought treatment for pain his neck and shoulders... Full Story

Court Affirms Award Confirmation Based on Appellant's Failure to Produce Evidence
NCO Portfolio Management, Inc. v. Folsom, No. Oxf-07-59, 2007 WL 4531840 (Me. Dec. 27, 2007)NCO Portfolio Management, Inc. v. Folsom, No. Oxf-07-59, 2007 WL 4531840 (Me. Dec. 27, 2007)
12/27/2007

The Maine Supreme Court affirmed a lower court's award confirmation because the aggrieved party did not meet the burden of proof by failing to produce a transcript of the lower court hearing.

In NCO Portfolio Management, Inc. v. Folsom, No. Oxf-07-59, 2007 WL 4531840 (Me. Dec. 27, 2007), NCO obtained an arbitration award against Folsom. NCO then sought confirmation of the award under the Maine Arbitration Act... Full Story

New York Convention Requires Signature on International Arbitration Agreements
Seaboard Corp v. Grindrod Ltd., No. WD67628, 2008 WL 123887 (Mo. Ct. App. Jan. 15, 2008)
1/15/2008

Affirming a trial court ruling denying a motion to compel arbitration of an employment dispute, a Missouri appellate court found that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards requires parties to sign an arbitration agreement for it to be enforceable.

In Seaboard Corp v. Grindrod Ltd., No. WD67628, 2008 WL 123887 (Mo. Ct. App. Jan. 15, 2008), Seaboard sued its former employee Nielson, alleging that Nielson began working for Grindrod and attempted to lure other Seaboard employees to leave and work for Grindrod... Full Story

Nursing Home Arbitration Agreement Deemed Inherently Confusing and Held Unconscionable
Adkins v. Laurel Healthcare of Clovis, LLC, No. 26759 (N.M. Ct. App. Dec. 19, 2007)
12/19/2007

A New Mexico Appellate court affirmed a lower court decision determining that an arbitration agreement between a nursing home and its resident was procedurally unconscionable, and therefore not enforceable.

In Adkins v. Laurel Healthcare of Clovis, LLC, No. 26759 (N.M. Ct. App. Dec. 19, 2007), Ruth Painter was admitted to Laurel, a nursing home facility, and died three days later. Adkins, her son, sued Laurel for various claims resulting in personal injury and wrongful death to Painter... Full Story

Arbitration Agreement Between Members of LLC Does Not Require LLC to Arbitrate
Mission Residential, LLC v. Triple Net Properties, LLC, Record No. 062250, 2008 WL 108954 (Va. Jan. 11, 2008)
1/11/2008

The Virginia Supreme Court held that an arbitration provision in the operating agreement for a limited liability company (LLC) required members of the LLC to arbitrate, but not the LLC itself. Accordingly, the arbitration provision did not apply to a derivative claim brought on behalf of the LLC by one LLC member against another member.

In Mission Residential, LLC v. Triple Net Properties, LLC, Record No. 062250, 2008 WL 108954 (Va. Jan. 11, 2008), Mission and Triple formed an LLC called Holdings for the purpose of purchasing, managing, and selling real estate properties as securities investments. The operating agreement contained an arbitration provision... Full Story

ADR Legislation & Regulation

LEGISLATION

AZ S 1241
AUTHOR: Burton Cahill [D]
TITLE: Health Security Plan
DISPOSITION: Pending
Commentary: Creating the Health Security Plan. As it relates to dispute resolution, the bill includes a requirement that parties exhaust all administrative remedies in resolving a dispute, including good faith mediation, before resorting to judicial review. Additionally, the bill requires the Commission to include due process safeguards in its dispute resolution provisions.

AZ S 1349
AUTHOR: McCune Davis [D]
TITLE: Home Equity Theft Prevention Act
DISPOSITION: Pending
LOCATION: Senate First Consideration
Commentary: Makes amendments concerning the Home Equity Theft Prevention Act. Any contract provision requiring arbitration of any dispute arising under this act is void at the option of the equity seller.

CA A 69
AUTHOR: Lieu [D]
TITLE: Mortgage Lending: Reporting
DISPOSITION: Pending
LOCATION: SENATE
Commentary: Enacts the Uniform Debt Settlement Services Act, the Debt Management Act, and the Credit Counselors Law to provide for the licensure and regulation of providers of debt settlement and debt management services. Relating to arbitration, the bill states: "Except as permitted by the California Arbitration Act (Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure), [the agreement shall not] contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than as provided in this division." The bill would also forbid agreements from containing a choice of law provision other than California or applicable federal law.

CA A 550
AUTHOR: Ma [D]
TITLE: Workers' Compensation: Occupational Care Project
DISPOSITION: Pending
LOCATION: Senate Labor and Industrial Relations Committee
Commentary: Authorizes the Managed Risk Medical Insurance Board to operate a health care service plan and to comply with provisions regulating health care service plans. Requires the board to comply with other provisions regulating health care service plans. Amendments in Senate include: (2) Within 20 days after service of the decision of the Director of the Department of Managed Health Care pursuant to subdivision (f) of Section 1374.33 of the Health and Safety Code, an aggrieved party may file an appeal of that decision with the administrative director. Within five days from the date of filing the appeal, the administrative director shall assign the appeal to an arbitrator. The appeal shall not be consolidated with other issues for trial by a workers' compensation administration law judge. Arbitration proceedings shall be conducted pursuant to regulations adopted by the administrative director, and the decision of the arbitrator shall be served on the parties within 45 days of the date of filing the appeal. The findings of fact, order, or decision of the arbitrator shall have the same force and effect as an order or decision of a workers' compensation administrative law judge.

CA A 1867
AUTHOR: Keene [R]
TITLE: Real Estate Appraisers
DISPOSITION: Pending
LOCATION: ASSEMBLY
Commentary: Amends the Business and Professions Code to provide "Any waiver by a member, including, but not limited to, an agreement to arbitrate a claim, that is required as a condition of submitting a proposal or doing business with a public agency shall be presumed involuntary, unconscionable, against public policy, and unenforceable."

CO H 1135
SPONSOR: Carroll M [D]
TITLE: Common Interest Communities
DISPOSITION: Pending
LOCATION: Senate Local Government Committee
Commentary: Amends an act concerning common interest communities which provides for alternative dispute resolution. The amendments include adding a requirement that the parties agree to go to mediation and adds other means of alternative dispute resolution besides arbitration for express inclusion in the bylaws regarding specific disputes.

FL S 1380
AUTHOR: Jones [R]
TITLE: Electronic Gaming Machines
DISPOSITION: Pending
Commentary: Relates to electronic gaming machines; authorizes electronic gaming machines in certain pari mutuel facilities; prohibits persons under 21 years of age from operating electronic gaming machines; provides for days and hours of operation of eligible facilities; provides for regulatory preemption to the state. As it relates to arbitration, the bill provides for the arbitration of disputes regarding licensure, including procedure for selection of arbitrators and the application of AAA commercial arbitration rules.

HI H 2691
AUTHOR: Say [D]
TITLE: Condominium Revision Bill
DISPOSITION: Pending
LOCATION: House Consumer Protection and Commerce Committee
Commentary: Amends various provisions of the Hawaii Revised Statutes relating to condominiums for the purpose of correcting errors and references. Amendments include: "At the request of any party, any dispute concerning or involving one or more shareholders and a corporation, its board of directors, managing agent, resident manager, or one or more other shareholders relating to the interpretation, application, or enforcement of this chapter or the corporation's articles of incorporation, bylaws, or rules adopted in accordance with its bylaws shall be submitted first to mediation. When all reasonable efforts for mediation have been made and the dispute is not settled either in conference between the parties or through mediation, the dispute shall be submitted to arbitration in the same manner and subject to the same requirements, to the extent practicable, which now apply to condominium property regimes under part VII of chapter 514A or section 514B 162."

HI H 2692
AUTHOR: Say [D]
TITLE: Volume 11
DISPOSITION: Pending
LOCATION: House Consumer Protection and Commerce Committee
Commentary: Amends various provisions of Volume 11 of the Hawaii Revised Statutes for the purpose of correcting errors and references, and clarifying language. Amendments made are in relation to arbitration procedure.

HI H 2836
AUTHOR: Herkes [D]
TITLE: External Review Procedure
DISPOSITION: Pending
LOCATION: House Health Committee
Commentary: Conforms the law to a recent Hawaii supreme court decision by amending the Patients' Bill of Rights external review procedure under which patients may appeal a managed care plan's final, internal decision denying coverage of a health intervention; relates to external review procedure. Amendments include a preservation of remedies: Maintains the enrollee's right to seek contractual or other civil remedies allowed by law; enrollee shall not be required to exhaust any remedies under this chapter prior to seeking civil redress in court or by arbitration. Any action in court or by arbitration shall not be brought as an appeal from any decision rendered by the commissioner or independent review organization under this chapter but shall be an action independent of and separate from the external review procedure provided in this chapter.

HI H 3331
COMPANION: HI S 2889
AUTHOR: Brower [D]
TITLE: Condominiums
DISPOSITION: Pending
LOCATION: House Consumer Protection and Commerce Committee
Commentary: Amends statutes regarding condominiums. Specifies matters that are subject to mediation; Permits unsatisfied parties to mediation to pursue arbitration after 30 days.

ID S 1261
AUTHOR: Judiciary and Rules Cmt
TITLE: Uniform Mediation Act
DISPOSITION: Pending
LOCATION: House Judiciary, Rules and Administration Committee
Commentary: A bill to adopt the Uniform Mediation Act.

IN H 1359
AUTHOR: Bardon [D]
TITLE: Various Financial Institutions Matters
DISPOSITION: Pending
LOCATION: SENATE
Commentary: A lender making small loans, or an assignee of a small loan, shall not commit nor cause to be committed any of the following acts: (j) Including any of the following provisions in a loan document: (iii) A mandatory arbitration clause, unless the terms and conditions of the arbitration have been approved by the director of the department.

IN S 159
AUTHOR: Gard [R]
TITLE: Third Party Health Service Agreements
DISPOSITION: Pending
LOCATION: House Public Health Committee
Commentary: Specifies terms under which a third party may obtain a contractor's rights and responsibilities concerning a provider's delivery of health care services. As it relates to arbitration, a health care contract may provide for arbitration of disputes arising under the bill.

IN S 200
AUTHOR: Gard [R]
TITLE: Department of Environmental Management Matters
DISPOSITION: Pending
LOCATION: House Environmental Affairs Committee
Commentary: Amends requirements to become a mediator pursuant to Indiana environmental laws. Instead of fulfilling separate requirements, potential mediators are instead only required to be qualified as a mediator under Rule 2.5 of the Indiana Supreme Court Rules for Alternative Dispute Resolution.

KY H 8 BR: 916
SPONSOR: Wilkey [D]
TITLE: Medical Malpractice
DISPOSITION: Pending
LOCATION: House Judiciary Committee
Commentary: Amends filing requirements for medical malpractice insurance rates with the Office of Insurance; prohibits certain components from being included in a medical malpractice rate filing; restricts premiums for medical malpractice polices covering health care providers who deliver one or more babies per year. Amendments include: requirement to mediate all claims of professional negligence against health care providers and also outlines procedures for mediation.

MD H 577
AUTHOR: Simmons [D]
TITLE: Right to Jury Trial Act
DISPOSITION: Pending
Commentary: Amends the Right to Jury Trial Act. Provides that any provision in a contract with a consumer that requires the waiver of a trial by jury is void and unenforceable unless preempted by federal law. Amendments include the provision of a new definition for consumer, and provides for the nullity of a written arbitration agreement in consumer contracts except where preempted by federal law and except where limited elsewhere in the act.

MO S 1024
SPONSOR: Scott [R]
TITLE: Civil Actions Against Government Entities
DISPOSITION: Pending
LOCATION: Senate Judiciary & Civil & Criminal Jurisprudence Committee
Commentary: Repeals sections relating to civil actions against government entities, agents, officers, and employees, including: 226.095. Upon request of the plaintiff in a negligence action against the department of transportation as defendant, the case shall be arbitrated by a panel of three arbiters pursuant to the provisions of chapter 435, RSMo.

MS H 326
AUTHOR: Upshaw [R]
TITLE: Mediation
DISPOSITION: Pending
LOCATION: House Judiciary A Committee
Commentary: Requires pursuit of mediation in all civil litigation and provides for mediation procedure.

NJ A 1991
SPONSOR: Johnson [D]
TITLE: Uniform Common Interest Ownership Act
DISPOSITION: Pending
LOCATION: Assembly Housing and Local Government Committee
Commentary: Enacts the New Jersey Uniform Common Interest Ownership Act. Provides a dispute resolution process including mediation and arbitration. Also provides that a "unit owner who does not believe that the mediation phase of the alternative dispute resolution procedure has satisfactorily resolved the matter and who does not agree to continue the procedure as binding arbitration shall not be prevented from seeking a judicial remedy in a court of competent jurisdiction."

NJ S 1028
SPONSOR: Rice [D]
TITLE: New Homebuyers' Bill Of Rights Act
DISPOSITION: Pending
LOCATION: Senate Community and Urban Affairs Committee
Commentary: Enacts the New Homebuyers' Bill of Rights Act. Requires the inclusion of a "New Homebuyer Bill of Rights," which includes a description of a homebuyer's responsibility in arbitration, including an explanation of how to proceed in the case of an allegedly biased arbitrator.

OK S 1839
AUTHOR: Corn [D]
TITLE: The Uniform Arbitration Act
DISPOSITION: Pending
LOCATION: SENATE
Commentary: Amends the Uniform Arbitration Act to read that it shall not apply to collective bargaining agreements and contracts which reference insurance, except for those contracts between insurance companies.

OK S 1852
AUTHOR: Lerblance [D]
TITLE: The Uniform Arbitration Act
DISPOSITION: Pending
LOCATION: SENATE
Commentary: Would amend Oklahoma's RUAA to state, "A consumer arbitration agreement is void and unenforceable except to the extent allowed by federal law."

PA S 1 PN: 1726
AUTHOR: Pileggi [R]
TITLE: Right to Know Act of 1957
DISPOSITION: Pending
LOCATION: Bills on Concurrence in Senate Amendments
Commentary: Amends the Right to Know Act of 1957, establishing an informal mediation process to resolve disputes under the act. Also excepts from public record status a record pertaining to strategy or negotiations relating to an arbitration award. However, that doesn't apply to any final or executed contract or agreement or arbitration award between the parties.

SC H 4538
AUTHOR: Funderburk [D]
TITLE: Government Accountability
DISPOSITION: Pending
LOCATION: House Judiciary Committee
Commentary: Enacts the Government Accountability Act of 2008; As it relates to mediation, involved parties must participate in nonbinding mediation in good faith. Further, the PSC will encourage other forms of alternative dispute resolution.

TN H 4053
AUTHOR: Rinks [D]
TITLE: Hospitals and Health Care Facilities
DISPOSITION: Pending
LOCATION: HOUSE
Commentary: Concerns Hospitals and Health Care Facilities; provides that tort actions against long term care facilities involving health related services are to be brought solely as medical malpractice action; authorizes use of arbitration agreements by and on behalf of patient, but requires that a party may not be denied admission due to refusal to enter into an arbitration agreement.

TN S 2001 SAME AS: TN H 1993
AUTHOR: Norris [R]
TITLE: Tort Liability and Reform
DISPOSITION: Pending
LOCATION: House Judiciary Committee
Commentary: Amending Tenn. Code Ann. Tit. 29, Chptr 26, Part 1, Relative to health care liability by inserting new text. Section 4(4) Arbitration mention in regards to fair contingency attorney fees.

UT S 143
AUTHOR: VanTassell [R]
TITLE: Insurance Code
DISPOSITION: Pending
LOCATION: Senate Business and Labor Committee
Commentary: Modifies the Insurance Code to address financial requirements related to insurers or insurance products. As related to arbitration, amendment states that Utah law doesn't override parties' agreement to arbitrate.

VT H 698
AUTHOR: Adams [R]
TITLE: Executive Fees
DISPOSITION: Pending
LOCATION: House Ways and Means Committee
Commentary: Enacts a bill relating to executive fees. As it relates to arbitration, "[t]he bill proposes to allow fees to be appealed, it puts the burden upon the government in establishing that the fees are justified, and allows resort to binding or nonbinding arbitration."

WA H 2902
AUTHOR: Wood [D]
TITLE: Collection of the Lemon Law Arbitration Condition
DISPOSITION: Pending
LOCATION: HOUSE
Commentary: Conditions the collection of the lemon law arbitration fee upon initial registration of new motor vehicles in Washington state; provides if the new motor vehicle will be initially registered in the state of Washington, a three dollar arbitration fee shall be collected by either the new motor vehicle dealer or vehicle lessor from the consumer upon execution of a retail sale or lease agreement.

WA H 3272
AUTHOR: Orcutt [R]
TITLE: Liability of County and City Governments
DISPOSITION: Pending
LOCATION: House Local Government Committee
Commentary: Relates to Liability of County and City Governments. As it relates to arbitration, a new chapter was added which reads "Notwithstanding the provisions of RCW 7.06.010 and 7.06.020, all actions, regardless of the amount in claim, for damages resulting from the negligent failure of a county or city to enforce the provisions of the state building code are subject to mandatory arbitration."

WA S 6695
AUTHOR: Weinstein [D]
TITLE: Distressed Home Transactions
DISPOSITION: Pending
LOCATION: SENATE
Commentary: Concerns distressed home transactions; NEW SECTION. Sec. 9 (1) Any provision in a contract that attempts or purports to require arbitration of any dispute arising under this chapter is void at the option of the distressed homeowner.

WI A 542
AUTHOR: Lasee [R]
TITLE: Interstate Insurance Product Regulation Compact
DISPOSITION: Pending
LOCATION: Senate Health, Human Services, Insurance and Job Creation Committee
Commentary: This bill would enact the Interstate Insurance Product Regulation Compact (compact). The stated purposes of the compact include promoting and protecting the interests of consumers of annuity, life insurance, disability income, and long-term care insurance products (insurance products); developing uniform standards for insurance products; establishing a central clearinghouse for review of insurance products, and advertisements related to insurance products, that are filed with the Interstate Insurance Product Regulation Commission (commission); and giving regulatory approval to insurance products and related advertisements filed with the commission. As it relates to ADR, the Compact would restrict the use of arbitration clauses in such contracts that were not pre approved by rule or pre approved by the Interstate Insurance Product Regulation Commission or which do not conform with the form contracts in use among the compacting states.

REGULATIONS

Delaware 18 DAC 1313
AGENCY: Department of Insurance
TITLE: Arbitration of Health Disputes
Commentary: Requires health insurance carriers to submit to arbitration any dispute with a health care provider regarding reimbursement for an individual claim, procedure, or service upon request by the health care provider. Currently, the system would be administered by the State.

Utah 30861 2007
AGENCY: Department of Insurance/Division of Administration
TITLE: Individual and Group Health Insurance
Commentary: A bill requiring the state to write rules to recognize arbitration as an acceptable method of alternative dispute resolution with regards to health benefit plans. The rule will define the many forms of arbitration.