MADDEN v. KAISER FOUNDATION HOSPITALS (1975)

Court of Appeal, Second District, Division 2, California.

Terry MADDEN, Plaintiff and Respondent, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Appellants.

Civ. 45331.

Decided: August 21, 1975

Thelen, Marrin, Johnson & Bridges by James W. Baldwin, Los Angeles, and Curtis A. Cole, Fresno, for defendants and appellants. Harney, Bambic & Moore, by Richard B. Wolfe, Los Angeles, for plaintiff and respondent.

Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Health (Kaiser) and Angela Roman Young, M.D., appeal from an order denying their petition to compel arbitration in a dispute between Kaiser and respondent Terry Madden. (Code Civ.Proc., § 1281, 1281.2.)

In 1961 State of California (State) enacted the Meyer-Geddes Employees' Medical and Hospital Care Act (Act) (Gov. Code, § 22751 et seq.),^* and thereby declared its public policy to increase economy and efficiency in State service and to protect State's investment in its employees by promoting and preserving their good health and to provide for that purpose health benefit plans commonly provided in private industry. (§ 22752.) The Board of Administration of the State Employees Retirement System (Board) was empowered to administer Act (§ 22771), and to contract for a uniform term of one year ‘automatically renewable from term to term’ (§ 22792) with carriers ‘offering basic health benefit plans' (§ 22774) on condition only that such plans embrace and/or do not violate Act and, specifically, none of sections 22790–22795. Act provided for enrollment, transfer and reinstatement of employees (§§ 22810–22816) and/or members of their families in any plan contracted for by Board and required State to contribute ‘a portion of the cost’ of plan. (§§ 22825–22829.)

Pursuant to the authority vested in it, Board did shortly after Act's effective date, complying in all respects with Act, execute a written contract with Kaiser (Kaiser-Board contract).

Angela Roman Young, M.D. is a surgeon who at all times relevant herein was and is associated with Southern California Permanente Medical Group. The Southern California Permanente Medical Group contracts with the Kaiser Foundation Health Plan, Inc., to provide medical services to people who are members of the Plan. Kaiser Foundation Hospitals also contract with Kaiser Foundation Health Plan to provide hospital services to members of Kaiser Foundation Health Plan. Kaiser Foundation Health Plan also contracts with various employee and labor union groups to provide prepaid medical and hospital services to individual members of those groups.

Kaiser shall be used to designate all appellants collectively. On appeal they are represented by the same counsel and all raise the same arguments.

Kaiser-Board contract obligated Kaiser to provide eligible State employees and their families with medical, surgical, hospital and related health care benefits. It defined Kaiser Foundation Health Plan, Southern California Permanente Health Group, and Kaiser Foundation Hospitals as independent contractors and provided that State employees for a fixed monthly fee would receive the services and benefits from all of them as agreed with Board. Among its terms, it provided ‘D. AGREEMENT BINDING ON MEMBERS. * * * Board makes * * * Plan coverage available to persons who are eligible under Section 3, however, this Agreement shall be subject to amendment, modification or termination in accordance with any provision hereof or by mutual agreement between * * * [Kaiser] and * * * Board without the consent or concurrence of the Members. By electing medical and hospital coverage pursuant to this Agreement, or accepting benefits hereunder, all Members legally capable of contracting, and the legal representatives of all Members incapable of contracting, agree to all terms, conditions and provisions hereof.’ (Emphasis added.)

Kaiser-Board contract and Plan provided for were thereafter renewed from year to year. All renewals contained the same language with respect to modification and amendment quoted above.

In April 1965 and in each renewal year of Plan pertinent herein, respondent executed an enrollment form provided by the State agency in which she was employed.¹ The form did not give any of the specifics of Kaiser-Board contract or Plan as consumated between Board and Kaiser, but it was and has been from the initial execution of Kaiser-Board contract and the included Plan, Kaiser's policy to mail at least once a year a brochure describing the terms of Kaiser-Board contract, the benefits and obligations under Plan. Each brochure reflected, in addition, the annual negotiations carried on between Kaiser and Board. Kaiser-Board contract and its embraced Plan are still viable.

On May 28, 1971, Kaiser and Board consensually amended Kaiser-Board contract in several respects,² including a provision for binding arbitration for ‘Any claim arising from the violation of a legal duty incident to this Agreement * * *’ and detailed the machinery for arbitration. The brochure mailed by Kaiser to all of its members stated ‘Claims involving professional liability and personal injury arising out of the Plan's contract must be submitted to arbitration.’ (Arbitration Amendment.) The Arbitration Amendment was retroactive effective as of April 1, 1971.

On April 1, 1971, Kaiser distributed a brochure to all subscribers consisting of 21 pages. On page 15 thereof members were advised by a one sentence statement that claims involving professional liability and personal injury must be submitted to arbitration. No details as to how arbitration was to be initiated, conducted and carried out or who was to pay for same were given in the brochure.

On or about August 1, 1971, respondent Terry Madden underwent a hysterectomy at Kaiser Hospital located in Los Angeles. During surgery, the bladder of Madden was perforated. Blood transfusions followed, after which Madden contracted serum hepatitis. The blood transfusions were necessitated by reason of the iatrogenic injury at the time of surgery. The blood was obtained from two independent blood banks, to wit, California Transfusion Service and the American Red Cross, and delivered to the Kaiser Facility prior to August 1, 1971, and stored at the Kaiser facility for use when necessary.

Respondent filed a complaint in malpractice against Kaiser, including Dr. Young, and the two independent blood banks mentioned above. Kaiser filed a motion to stay the action and compel arbitration.

Respondent, in contesting Kaiser's motion to stay, declared that: ‘* * * at the time coverage with Kaiser commenced, I had no notice or knowledge whatsoever of any then-existing arbitration plan, nor was I given any notice nor did I have any knowledge that the plan would later be amended so as to compel arbitration of any claims * * *. At no time prior to and including, May 28, 1971, did I receive any written or oral notification of any arbitration clause, * * *. At no time, have I ever entered into any bargaining agreement, or entered into any negotiations with anyone to contract away my basic civil right to a jury trial for claims arising out of malpractice committed against myself. Had I been aware of any arbitration clause, or had I been given notice about any arbitration clause, either at the time I became covered by Kaiser or any time thereafter, I would never have committed myself to the care of * * * [Kaiser], nor would I have waived my right to a jury trial and simply agreed to arbitrate claims arising out of malpractice committed against myself.’

Kaiser's motion to stay was denied. Kaiser filed a motion for reconsideration; it was also denied. The two blood bank defendants were not parties to either of these motions. Each has answered and denied negligence.

Kaiser appeals from the order denying the stay and refusing to compel arbitration.

Assuming respondent had no notice of the Arbitration Amendment, we decide for the reasons hereinafter stated that Kaiser's motion to stay respondent's action should have been granted.

Preliminarily, however, we comment on respondent's declaration on the basis of which the motion to stay was denied. We note: respondent is charged with knowledge of the law; does not disclaim knowledge of Act, its purposes, the authority of Board; Kaiser-Board contract; Section 3 D permitting modification of said contract; and she was but one of many thousands of employees for whom Board was charged with the responsibility of negotiating a contract for the health, welfare of employees and for whose benefit Kaiser-Board contract was executed.

Respondent's declaration is limited to the subjective facts of her lack of knowledge of any contract at the time she enrolled in 1965 (concededly there was none); of the execution of arbitration Amendment in 1971, and the assertion she would not have enrolled in 1965 had she known there was any provision for arbitration of disputes. Respondent does not deny she received brochures annually and in respect of the brochure referring to Arbitration Amendment respondent does not deny it was mailed; she avers only that by reason of illness she was absent from her employment and did not receive it, and nowhere in the declaration does she aver that she intends to ask for, persist and insist upon a jury trial of her pending action.

We assume that State in enactment of Act properly exercised its police power to promote and preserve the good health of its employees and in furtherance of that objective legally appointed and authorized Board to execute a contract embracing a Plan providing medical and disability benefits for its employees at a reasonable cost to which State was bound to contribute, which Plan, however, employees could accept or reject at their option.

The soundness of State's policy in seeking group insurance for its employees is echoed by Elfstrom v. New York Life Ins. Co. (1967) 67 Cal.2d 503, 63 Cal.Rptr. 35, 432 P.2d 731, in which case the court says at p. 508, 63 Cal.Rptr. at p. 39, 432 P.2d at p. 735: ‘The employer, the employee, and the insurer enjoy distinct advantages from this form of insurance. The employer, at a comparatively small cost, is enabled to reduce labor turnover and to enhance the loyalty of its employees and their families. The employee benefits by obtaining insurance at modest cost, without the necessity of a physical examination. Group insurance is profitable to the insurer because it sells policies on a mass basis at negligible percapita sales cost. Moreover, such policies show a low rate of lapse and the administration cost is minimal.’³

The propriety of State's policy as reflected in Act and its power to authorize Board to execute a contract reflecting the objective of Act are not questioned.

Respondent's primary contention is that irrespective of its beneficial purpose, State could enact no legislation which enabled Board to deprive her or any State employee of a constitutional right to trial by jury without specific consent; Arbitration Amendment was added to Kaiser-Board contract without her specific consent, and is void.

The resolution of the question requires analysis of the legal relationship of Board with State's employees who enrolled in Plan.

Act appoints Board as agent of State to select an insurer and to execute a contract with such insurer which will effectuate the purposes of Act and provides that Board in negotiation of the terms of such contract should act as well as agent for State employees. Employees who elect to enroll in a Plan embraced in a contract negotiated and executed on their behalf and for State have thus accepted Board as their agent and by their act of enrollment ratify the terms of a contract so negotiated and executed. (Blos v. Bankers Life Co. (1955) 133 Cal.App.2d 147, 283 P.2d 744; Doyle v. Giuliucci (1965) 62 Cal.2d 606, 43 Cal.Rptr. 697, 401 P.2d 1; Elfstrom v. New York Life Ins. Co. (1967) 67 Cal.2d 503, 63 Cal.Rptr. 35, 432 P.2d 731; Boseman v. Connecticut General Life Insurance Co. (1937) 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036.)

Elfstrom makes it clear that when an employer is negotiating the terms of a contract, as distinguished from administering its terms, it is negotiating for itself to cases such as Blos⁴ and says: ‘The rationale of these cases appears to be that [an] employer is acting for its own benefit or for its employees in performing these tasks, rather than serving the purposes of the insurer, and that the real insured is the employer acting for the employees as a group, that the employer and the employees are allied in their interests, and that these interests are adverse to the insurer.’ (Emphasis added.) (Elfstrom v. New York Life Ins. Co. (1967) 67 Cal.2d 503, 511, 63 Cal.Rptr. 35, 41, 432 P.2d 731, 737.)

It is trite law that knowledge of the agent is knowledge of the principal and will bind the principal. (Doyle v. Giuliucci (1965) 62 Cal.2d 606, 43 Cal.Rptr. 697, 401 P.2d 1; Columbia Pictures Corp. v. DeToth (1948) 87 Cal.App.2d 620, 630, 197 P.2d 580.) And, further, a principal will be bound to terms of an amendment to a contract so executed of which he has no knowledge or notice and to which he is not a signatory. (Ware v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1972) 24 Cal.App.3d 35, 100 Cal.Rptr. 791; Gear v. Webster (1968) 258 Cal.App.2d 57, 65 Cal.Rptr. 255; Larrus v. First National Bank (1954) 122 Cal.App.2d 884, 266 P.2d 143.)

The Arbitration Act, Title 9 of the California Code of Civil Procedure, section 1280 et seq., recognizes the right of an agent to bind his principal. Section 1280 provides: ‘As used in this title: (a) ‘Agreement’ includes but is not limited to agreements providing for valuations, appraisals and similar proceedings and agreements between employers and employees or between their respective representatives * * *.' (Emphasis added.)

Respondent contends peripherally that Kaiser-Board contract is one of adhesion and does not bind her. We do not agree. Board at all times prior to the original execution of Kaiser-Board contract and during each of its annual renewals and with respect to Arbitration Amendment had fully as much if not more bargaining power than Kaiser in respect of all facets of the contract executed and Plan which it embraced, none of which are attacked by respondent except Arbitration Amendment which was severally and separately negotiated and agreed to by the contracting parties. Since Board was the agent of all employees, the bargaining power and knowledge of Board as agent of employees was the power and knowledge of employees. Kessler, Contracts of Adhesion, 43 Col.L.Rev. 629 (1943) relied on by respondent has no application, nor does Windsor Mills, Inc. v. Collins & Aikman Corp. (1972) 25 Cal.App.3d 987, 101 Cal.Rptr. 347. In Windsor there was no contract to arbitrate. Arbitration Amendment was by its terms a clear contract to arbitrate.

If Arbitration Amendment is not binding on respondent, it is not because of any principle of adhesion, but because of Board's abuse of its powers and responsibilities as a fiduciary.

The record does not show which of the parties initiated the discussion on the Arbitration Amendment. Logically, it could have been either one. In recent years the rising costs of medical malpractice has caused: ‘* * * financial stress on claimants, the courts, and the medical profession and its insurance carriers.’ (Henderson, Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice (1972) 58 Va.L.Rev. 947.) If the costs of providing medical service goes up to the medical profession, this cost will be passed on to the patient. Certainly the prime purpose of Act and the whole concept of group insurance is to obtain maximum coverage at a reasonable cost for the group to be benefited. (Elfstrom v. New York Life Ins. Co. (1967) 67 Cal.2d 503, 508, 63 Cal.Rptr. 35, 432 P.2d 731.)

Board and Kaiser were faced with the problem of rising costs. Board was called upon to decide how to retain the benefits and services of Plan without substantial escalation of rates to the enrollee and to State. Board's dual fiduciary responsibility in respect of execution of Arbitration Amendment was no different than that of any employer. Board had the same dual responsibility when it negotiated the original Kaiser-Board contract.

The law is clear that Board was well within its authority to bind enrollees of whom respondent was one to the Kaiser-Board contract originally negotiated. Respondent's consistent re-enrollment in Plan since 1965 accepts that authority. Since Board's status as respondent's agent is thus recognized, the ancillary question is whether respondent is bound by amendments and modifications of Plan of which she has no notice even though one or more of the amendments made are of such a nature that she would not have continued in Plan had she been advised of their substance.

It appears to us obvious that if Board is to have the power to negotiate for medical and hospital benefits for State employees on favorable terms it must have the discretion to make binding agreements for their benefit.

An employee who elects to take advantage of Plan cannot disaffirm provisions made for the benefit of all employees because of lack of personal knowledge of one or more of the terms of Plan. If, after having elected to enroll, respondent could attack single provisions of Plan, Board's function under the Act to select and bargain with an insurer to obtain the most favorable benefits at the most favorable rates would be so attenuated that the primary purpose of Act would be aborted.

Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, cited and relied upon by respondent is inapposite. In Tunkl a prospective patient to a hospital was required to release hospital from future negligence as a condition to admission. In brief, she was required to give up any cause of action which might by reason of hospital's negligence accrue to her.

Arbitration Amendment does not cut off a member's right to redress medical or hospital torts, it merely designates the forum in which such disputes will be settled. (Doyle v. Giuliucci (1965) 62 Cal.2d 606, 610, 43 Cal.Rptr. 697, 401 P.2d 1.) The authority of a fiduciary to waive an action at law with respect to malpractice and substitute arbitration is recognized by Doyle. 5 Doyle endorses arbitration of a malpractice dispute arising our of a prepaid health agreement of which a minor unable to contract for himself was the beneficiary. It is true, of course, that respondent (as distinguished from the minor in Doyle) could have omitted or refused to enroll in Plan and contracted with some other insurer separately for herself; but all the circumstances and pertinent facts in this case indicate that she knowingly gave up the right to contract separately for health insurance and for genuine legal considerations entrusted that problem to Board. It would appear that the test applied to a parent fiduciary who elects to waive an action at law for a minor in favor of arbitration should be more stringent than one applied to a fiduciary selected by a person who has the legal power to contract. In the latter case the only check on the fiduciary is one of high responsibility and good faith. In the case of a minor there is the identical check plus court control of a settlement or compromise of a minor's claim whether such settlement or compromise be as a result or independent of an action at law.

The test of Board's authority to bind an employee in respect of any of the terms and/or conditions of Kaiser-Board contract and specifically the Arbitration Amendment in our opinion depends on whether Board as a dual fiduciary representing State and its employees with the knowledge of both discharged its high standard of duty to each of its principals and received a quid pro quo for any rights, legal or otherwise, of its beneficiaries which Board waived, impaired, or relinquished. We think Board met its standard of duty. In this connection it should be emphasized that Board as a fiduciary is not chargeable with what is problematically better or best for respondent in this particular case, but what was best for all beneficiaries of Plan at the time Arbitration Amendment was executed. Respondent did know and she has not denied that she always knew she was one of many beneficiaries.

Arbitration is and has been for many years looked upon with favor as part of the legal system of State and in California has been specifically recognized with respect to malpractice arising from treatment called for by group insurance contracts.⁶ (Doyle v. Giuliucci (1965) 62 Cal.2d 606, 610, 43 Cal.Rptr. 697, 401 P.2d 1.)

We test Board's exercise of its power to execute Arbitration Amendment by settled equitable principles which govern performance of fiduciary duty to determine whether there was an abuse of its high responsibility to respondent, and we assume that: Board was knowledgeable of Doyle which specifically endorses the right of a fiduciary to contract to arbitrate rather than litigate medical torts with an insurer of group health services and benefits; medical and hospital malpractice and the costs of insurance therefor had, particularly in the past few years, reached crisis proportions; arbitration in lieu of an action at law was consistent with the public policy of State and Board was reasonably familiar with the plethora of studies made and compiled over a period of years by interested organizations and knowledgeable individuals of prominence, which studies detail the relative merits of various proposals for the compensation of victims in a numerous and highly industrialized urban society of negligence generally and of malpractice in particular. A discussion of the subject attended by a galaxy of experts was sponsored by Center for the Study of Democratic Institutions (Center). In 1971 Center in cooperation with a Commission appointed by the Secretary of H.E.W. held a three-day conference at Center. Its proceedings were reduced to writing and were published. Current interest in the subject impelled the republication of the 1971 proceedings in the July-August 1975 edition of The Center Magazine. In pertinent remarks by Donald McDonald, Editor of the magazine, introducing republication he says: ‘Another point that tends to get lost in the public's concentration on doctors' strikes, million-dollar jury awards, and rocketing medical insurance rates is equity for patients. For every plaintiff winning a courtroom award in six figures, many more receive nothing because their potential award of say, ten or fifteen thousand dollars is not large enough to attract the services of competent trial lawyers. On the other hand, an arbitration system, which would compensate such patients, might well abridge at least certain state constitutional rights to a jury trial unless specific safeguards are built into it. The arbitration approach was both defended and questioned at the Center's conference.’

Analysis of the Center's discussion reveals that all participants agreed that thousands of victims of malpractice whose claims are less than ten or fifteen thousand dollars get little or nothing.

On larger claims it was argued by some of the participants that the parties involved should be permitted to seek their forum. However, there is no evidence available to show that the injured victim would not on an average fair as well with an arbitration award as with a jury verdict. Unlike industrial compensation or no fault insurance, arbitration, in addition to simple procedures, speedy trial, finality of award, and relaxed rules of evidence, permits proof of all elements of damage including those for mental and physical pain and suffering and punitive damages, to the same extent as in an action at law.

Respondent argues specifically that arbitration affected her adversely because she was, among other things, required to deposit $150 to initiate the arbitration process, but she says nothing about the cost of a jury trial in an action at law.

Presumably respondent argues on the assumption that when a substantial tort injury has the complexion of liability and a responsible defendant is involved, the litigation costs will be advanced by a seasoned lawyer specialist in return for contingent compensation. However, there is no reason to assume that specialists in tort litigation would not accept employment on the same basis if the forum for such litigation were limited to an arbitration tribunal, which is in effect a small jury with power in the majority to make an award.

As a practical matter, it is difficult to conclude that Board relinquished anything to the detriment of respondent. When a fiduciary considers the costs in connection with a jury trial; relaxation of the rules of evidence; speedy and final relief which ordinarily would inspire offers of early settlement, and the other benefits incident to arbitration, one is impelled to the conclusion that Board violated no fiduciary obligation to respondent even if it had been contracting for respondent alone, instead of for thousands when it determined under all the circumstances implicit in the negotiation and execution of the Arbitration Amendment to change the forum for the litigation of a medical tort to an arbitration tribunal rather than a court of law.

Finally, respondent contends that a stay of her action in respect of Kaiser will lead to piecemeal and protracted litigation because she has named as defendants the two blood banks. We agree that respondent in her complaint may proceed against such parties she thinks are primarily liable (Thornton v. Luce (1962) 209 Cal.App.2d 542, 552, 26 Cal.Rptr. 393), and properly joined Red Cross and California Transfusion Service as parties defendant (Landau v. Salam (1971) 4 Cal.3d 901, 95 Cal.Rptr. 46, 484 P.2d 1390; Kraft v. Smith (1944) 24 Cal.2d 124, 148 P.2d 23), but such right does not empower respondent to subvert her obligation to Kaiser to arbitrate any dispute in which she is involved with Kaiser.

If a complete adjudication cannot be made because the blood bank defendants were not parties to the Arbitration Amendment, the issue as to said defendants may be severed. In Cook v. Superior Court (1966) 240 Cal.App.2d 880, 50 Cal.Rptr. 81, the Court says at p. 885, 50 Cal.Rptr. at p. 83: ‘Since the complaint states causes of action against defendants not parties to the construction contract, and also raises issues predicated on the financing agreement which is not encompassed by the arbitration provision, the question arises whether the court abused its discretion in staying all proceedings. Code of Civil Procedure section 1281.4 seems broad enough to vest the court with authority to stay ‘the action or proceeding’ as to all issues, as to all causes of action, and as to all parties, until arbitration is concluded or such earlier time as the court specifies. It is possible, of course, that such a broad application of the statute might result in prejudice to a litigant in multiple issue or multiple party actions if all proceedings are brought to a standstill pending arbitration of issues that may be collateral. To prevent this result, the concluding paragraph of section 1281.4 vests the trial court with discretion to sever issues by providing: ‘If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.’'

The orders appealed from are reversed.

FOOTNOTES

FOOTNOTE.  All references are to the Government Code unless otherwise stated.

1.  During oral argument we stated from the Bench that the members of this Court were also members of Plan and that we may be disqualified. No objection was made and the case proceeded to submission.

2.  Other amendments are not relevant to the issue at bench.

3.  The Elfstrom court said at p. 508, 63 Cal.Rptr. at p. 39, 432 P.2d at p. 735: ‘Group insurance is a relatively new social device the use of which has phenomenally increased since 1945. In 1966 group life insurance alone amounted to more than 300 billion dollars in coverage and constituted 35 percent of all life insurance in force. Eighty-five percent of the group policies written were issued to employer-employee entities.’

4.  ‘Blos v. Bankers Life Company (1955) 133 Cal.App.2d 147, 283 P.2d 744, involves the distinguishable factual situation. These, the question was not whether a grocer's association was the agent for the insurer in administering a group insurance policy but whether the association was the agent in negotiating the terms of the group policy.’ (Elfstrom v. New York Life Ins. Co. (1967) 67 Cal.2d 503, 512. ftn. 5, 63 Cal.Rptr. 35, 41, 432 P.2d 731, 737.)

5.  Doyle involved a contract for benefit of a minor with a group insurer (Ross-Loos) for health and hospital benefits substantially similar in its terms to the Kaiser-Board contract at bench.

6.  In Henderson, Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice (1972) 58 Va.L.Rev. 947, Stanley D. Henderson, Professor of Law, points out that 30 states have adopted arbitration statutes and says at p. 956: ‘No doctrine of public policy or rule of law precludes the use of arbitration in the area of medical services. Indeed, with the coming of the legislative era of arbitration, negative judicial attitudes have largely evaporated. Today judges are not reluctant to find in arbitration statutes a compelling expression of policy favoring arbitration disputes. This sympathetic reception has, in turn, spurred expansion of the use of arbitration to vast and diverse subject matters, including the ordinary transactions of medical entities.’Professor Henderson further goes on to say at p. 958: ‘The earliest such medical program making use of arbitration, that of the closed panel Ross-Loos Group of Los Angeles, requires a subscriber to execute a lengthy contract, including the following clause: ‘In the event of any controversy between the subscribing group and subscriber or dependent, or the heirs at law or personal representative of the subscriber or dependent, as the case may be, and Ross-Loos, when involving a claim in tort, contract or otherwise, the same shall be settled by arbitration.’'

ROTH, Presiding Justice.

FLEMING and COMPTON, JJ., concur.