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Click here for the full text of this decision FACTS:When Marguerite Kepka’s husband was admitted to a nursing home in November 2002, Kepka signed multiple documents, including a document entitled “agreement for arbitration.” The arbitration agreement required Kepka’s husband, and Kepka, as “legal representative,” to arbitrate all disputes with the nursing home. Kepka signed the contract as her husband’s legal representative. Kepka’s husband died a month after he was admitted. Kepka sent the nursing home a notice of intent to sue under the version of the medical malpractice statute then in effect, Texas Civil Practice & Remedies Code Article 4590i. Kepka then filed suit against the nursing home, a doctor and a nurse, alleging claims for negligence under both the survival statute and the wrongful-death statute. Her wrongful-death claim included an allegation that Kepka had been damaged and sought compensation for pecuniary loss, loss of companionship and society, mental anguish and loss of inheritance. The nursing home moved to compel arbitration. Without specifying its reasons, the trial court granted the motion, sending Kepka’s wrongful-death and survival claims against the hospital to arbitration. Kepka then filed for a writ of mandamus. Kepka argues that the trial court abused its discretion in sending both of her claims to arbitration because the arbitration agreement did not comply with former Article 4590i, 15.01, which delineates arbitration agreement requirements. That section requires arbitration agreements to include a conspicuous notice provision. The notice failure should not matter, says the nursing home, because the case is governed by the Federal Arbitration Act. HOLDING:Writ conditionally granted. The court acknowledges that the arbitration agreement did not comply with former Article 4590i 15.01 because the agreement did not include the proper notice provision. The court then turns to whether the Federal Arbitration Act (FAA) should apply instead of Article 4590i 15.01, or whether the McCarran-Ferguson Act (MFA), which reverse pre-empts the FAA, is the controlling statute. The MFA, the court explains, prevents a federal statute from pre-empting a state statute if: 1. the federal statute does not specifically relate to the business of insurance; 2. the state law was enacted for the purpose of regulating the business of insurance; and 3. the federal statute operates to invalidate, impair or supersede the state law. The court confirms that only the second element of the MFA is at issue here: whether former Article 4590i in general, and 15.01 in particular, was enacted for the purpose of regulating the business of insurance. The court rejects the nursing home’s contention that 15.01 can be read in isolation. The whole statute must be evaluated. The court recites the findings and purposes section of the former statute and finds it clear that the purpose of the entire statute was to decrease the costs of health-care liability claims through modifications of the insurance, tort and medical-practice systems “in order to make insurance reasonably affordable so that health-care providers could have protection against potential liability and so that citizens could have more affordable and accessible health care.” Consequently, former Article 4590i, including 15.01, was a law enacted for the purpose of regulating the business of insurance. As such, the MFA prevents the FAA from pre-empting former Article 4590i’s arbitration notice requirements. The trial court abused its discretion in implicitly concluding that the medical-malpractice statute’s notice requirements were pre-empted by FAA, did not apply to the arbitration agreement and did not invalidate the agreement. Neither of Kepka’s claims should have been sent to arbitration. Acknowledging that its holding above is one of first impression, the court says it will explore an alternative ground raised by Kepka, which is that her wrongful-death claim should not have been sent to arbitration because she brought the claim in her individual capacity only. The court agrees that Kepka was not a party to the arbitration agreement in her individual capacity. When Kepka signed in her representative capacity, she signed as her husband’s agent, nothing more. Because Kepka did not sign the arbitration agreement in her individual capacity, and because her wrongful-death claim was necessarily brought in her individual capacity for damages personal to her, the court holds that the trial court abused its discretion in ordering her individual wrongful-death claim to arbitration. Though the court found support for its holding on the preemption issue from Allen v. Pacheco, 71 P.3d 375 (Colo. 2003), which analyzed a comparable medical malpractice liability statute, the court says it does not agree with the Pacheco court in its interpretation of which claims should fall within an arbitration agreement. That court’s holding was based on a prior Colorado Supreme Court decision on an issue that the Texas Supreme Court has held differently. In Texas, the presumption and strong policy favoring arbitration do not apply until after the party seeking arbitration has shown the existence of a valid arbitration agreement. OPINION:Tim Taft, J.; Taft, Keyes and Hanks, JJ.

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