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Click here for the full text of this decision FACTS:Debra Slough worked as a nurse at Christus Spohn Health System Corp. doing business as Christus Spohn Hospital Shoreline. Jesus Alvarez abducted Slough from Christus Spohn’s parking garage and murdered her. Debra Slough’s husband, Corey Slough, filed suit on premises liability grounds against Christus Spohn individually and on behalf of their three minor children. Christus Spohn contended that the trial court erred in failing to grant its motion to compel arbitration based on an arbitration clause included in its employee benefit plan. The Slough family contended, inter alia, that there was not a valid arbitration agreement and their claims did not fall within the scope of that agreement. The family raised further defenses to arbitration, including waiver, estoppel, and procedural and substantive unconscionability. Christus Spohn sought a writ of mandamus ordering the trial court to compel arbitration of the suit. HOLDING:The court denied the petition for a writ of mandamus. There is a strong presumption against waiver of arbitration rights, the court stated. Waiver, the court stated, occurs only where a party has acted inconsistently with its right to arbitrate and such actions have prejudiced the other party. Therefore, the court stated that the test for determining waiver is two-pronged: 1. did the party seeking arbitration substantially invoke the judicial process; and 2. did the opposing party prove that it suffered prejudice as a result. Actions that are inconsistent with the right to arbitrate, thus raising the issue of waiver, include some combination of filing an answer, setting up a counterclaim, pursuing extensive discovery, moving for a continuance or failing to timely request arbitration. Examples that indicate the party is attempting to achieve a satisfactory result through litigation before turning to arbitration include moving for summary judgment or seeking a final resolution of the dispute. But delay does not establish waiver, the court stated. The court noted that the Sloughs’ suit was originally filed on Dec. 16, 2005. Spohn, however, did not move to compel arbitration until Feb. 8, 2007, after the case had been set for trial on three separate dates and almost 14 months after the inception of the suit. During the 14-month interval before the motion to compel arbitration was filed, the court found that the parties substantially litigated the case. For example, the matter was set for trial on no less than three occasions before Spohn first mentioned the issue of arbitration. The parties engaged in voluminous discovery, the court stated. Thus, considering the individual facts and circumstances of this case, the court concluded that Spohn substantially invoked the judicial process. Examining whether prejudice occurred, the court stated that the Sloughs’ attorney testified by affidavit that compelling arbitration would “greatly prejudice” real parties in interest. In particular, the attorney testified that the Sloughs spent approximately $60,000 to $70,000 in expenses developing the matter for trial. Based on the record, the court concluded that the Sloughs made a clear showing of prejudice. OPINION:Valdez, C.J.; Valdez, C.J., and Benavides and Vela, JJ.

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