Waiver of Right To Compel Arbitration


Health Care Authority for Baptist Health, etc. v. Dickson, [Ms. 1190179, Jan. 15, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Stewart, J.; Parker, C.J., and Wise, J., concur; Bolin and Sellers, JJ., concur in the result) affirms the Autauga Circuit Court’s denial of Health Care Authority for Baptist Health (“HCA”)’s motion to compel arbitration. The Court concludes HCA waived its right to compel arbitration.

The appropriate test for determining whether a party has waived its right to arbitration has two prongs: “[(1)] whether the party’s actions as a whole have substantially invoked the litigation process and [(2)] whether the party opposing arbitration would be prejudiced if forced to submit its claims to arbitration subsequent to the other party’s actions invoking the litigation process.” Hoover General, 201 So. 3d at 553. Waiver must be determined “‘based on the particular facts of each case.”’ Ms. *9, quoting Voyager Life Ins. Co. v. Hughes, 841 So. 2d 1216, 1219 (Ala. 2001).

Ms. *9.

The Court rejects HCA’s argument that it moved to arbitrate as soon as it discovered that [Plaintiff] Dickson’s BCBS policy required arbitration and explains

The HCA entities might not have obtained a copy of Dickson’s BCBS policy until April 29, 2019, but they had from May19, 2017, the day Dickson filed his complaint asserting claims based on the provider agreement, to subpoena BCBS for the policy, to contact Dickson’s counsel, or to take any other action necessary to discern whether they could assert the applicability of the arbitration provision in the provider agreement. Instead, the HCA entities waited over two years, after the action had been transferred, after their motion to dismiss had been denied, and after class-related discovery had begun, to inquire into whether Dickson’s BCBS policy contained an arbitration provision.


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