Nanney v. THI of South Carolina at Spartanburg, LLC (Lawyers Weekly No. 012-040-23, 11 pp.)

While the Adult Health Care Consent Act gave patient Betty’s son, Kaileb, authority to sign a nursing home Admission Agreement on behalf of Betty, the AHCCA did not give Kaileb authority to sign a separate Arbitration Agreement on Betty’s behalf. Although Kaileb signed both agreements at the same time, the terms of the Arbitration Agreement prevented merger of the agreements.

We modify and affirm the circuit court’s denial of defendants’ motion to compel arbitration.

The Arbitration Agreement states that it “shall survive any termination or breach of this Agreement or the Admission Agreement.” This is relevant in two ways.

First, it indicates on its face that the agreements are two separate entities in its use of the disjunctive “or” and its specific reference to the Admission Agreement. Furthermore, the Admission Agreement stated that “this Agreement represents the entire agreement and understanding between the parties . . . and may not be amended except by written agreement of the parties.” The Arbitration Agreement’s catch-all clause providing that “other Admissions materials . . . are made part of this Agreement by reference herein,” was not specific enough to indicate to Kaileb that the Arbitration Agreement was incorporated into the Admission Agreement by reference.

Second, agreements that can be terminated separately do not always merge. The language of the Arbitration Agreement clearly contemplates that the two agreements can be terminated separately. The Arbitration Agreement’s terms provide for the Arbitration Agreement to be binding regardless of whether either of the agreements is terminated. If both agreements terminated at the same time, as would be expected in case of a merger, there would be no need for this clarification.

The Arbitration Agreement could exist even if the Admission Agreement terminated; an intent for the agreements to function separately can easily be inferred from that fact. Furthermore, by their respective terms, the Admission Agreement and the Arbitration Agreement are to be considered under different bodies of law—the former under the laws of South Carolina, the latter under the Federal Arbitration Act. Such provisions further weigh against merger.

Affirmed as modified.

Nanney v. THI of South Carolina at Spartanburg, LLC (Lawyers Weekly No. 012-040-23, 11 pp.) (Per Curiam) Appealed from Spartanburg County Circuit Court (Grace Gilchrist Knie, J.) Stephen Lynwood Brown, Donald Jay Davis, Russell Grainger Hines and Gaillard Townsend Dotterer for appellants; Gary Poliakoff, Raymond Mullman, Jordan Christopher Calloway, and Whitney Boykin Harrison for respondent. South Carolina Court of Appeals (unpublished)