The Evangelical Lutheran Good Samaritan Society v. Susan Kowaleski (2011)

MEMORANDUM OF DECISION RE MOTION TO CONFIRM ARBITRATION AWARD

The plaintiff Evangelical Lutheran Good Samaritan Society (ELGSS) moves to confirm an award made in an arbitration between ELGSS and Susan Kowaleski.   The arbitration award is in the amount of $102,013.27.

In support of confirmation of the award ELGSS has submitted a form purportedly signed by Kowaleski in April 2007 agreeing to be responsible for the costs of care provided to Kowaleski's mother, Patricia Cody, at what appears to have been a nursing care facility operated by ELGSS in Daytona Beach, Florida.   Also submitted was a written agreement to arbitrate any legal disputes between Ms. Cody and ELGSS in accordance with the Code of Procedure of the National Arbitration Forum (NAF) also dated April 2007.   What appears to be Kowaleski's initials are on the agreement and the box to decline arbitration is not checked.   Kowaleski does not contest that she signed as responsible party, and did not decline the arbitration agreement.   According to statements made at the first hearing on this matter on January 31, 2011 by Kowaleski, who is representing herself, she had a power of attorney for her mother, a power that was removed in 2008.

The last document submitted by the ELGSS is the actual written award dated May 24, 2010 by the arbitrator assigned by NAF, Frank W. Swacker.   As is usually the case with NAF awards, there are a dozen or so boiler plate sentences such as “notice was duly delivered to the parties as required by the Forum rules;  “a hearing in this case [was conducted] in accord with the Forum Rules”;  “the evidence submitted supports the issuance of this Award,” etc.   Then, without any reference as to who, if anyone, attended the hearing, the subject matter of this dispute (presumably nursing home charges) or the nature of any evidence reviewed, the award in the amount stated above is set forth.

At the first hearing on the motion to confirm, there were several matters that concerned this court.   First, because of having pleaded nolo contendere in Florida to charges of exploiting the elderly, Kowaleski, who is on probation while living in Connecticut, is paying restitution to the State of Florida.¹  Second, a guardian appointed in Florida is now responsible for the care afforded Ms. Cody and the court wanted to learn whether the award against Kowaleski for nursing home charges were really her responsibility, or the responsibility of some other person or entity.

At the court's request the plaintiff's counsel undertook to obtain information, and as to the first issue, reported at the second hearing in February 2011, that Kowaleski's restitution payments are paid by the Florida courts to Mrs. Cody's present guardian, the Counsel on Aging of Volusia County.   These payments have been forwarded to ELGSS.   From April 2009 through February 10, 2010 these payments were applied to reduce interest on Ms. Cody's unpaid balance.   Since then, the court is informed, Medicaid has not allowed the restitution payments to reduce the balance due the nursing home, but in fact classified the payments as income to Ms. Cody, and thus decreased the amount Medicaid will pay and increased the amount payable by Mrs. Cody to ELGSS.

Counsel for the plaintiff also reports that the charges imposed against Kowaleski involve the period from April 2007 through October 2008.   The Counsel on Aging for Volusia County, Florida (COA) was appointed Ms. Cody's guardian on or about June 25, 2008.   COA applied for Medicaid, but certain delays occurred and Medicaid did not accept responsibility until November 1, 2008.   Apparently COA has neither the authority nor the funds to pay the expenses of its wards.

As the plaintiff points out, Kowaleski failed to file any motion pursuant to General Statutes §§ 52–518 or 519 to vacate or modify the award within thirty days of notification of the award as required by General Statutes § 52–520(b).  Even if Kowaleski did not receive notice until ELGSS's motion to confirm the award in October 2010, she submitted nothing to the court until January 31, 2011 when she submitted certain exhibits.   Nevertheless, the court has reviewed these documents.

Primarily, Kowaleski claims that the amount of the award is excessive and has submitted certain bills sent to her by ELGSS and other documents (Exhibits A and B) purporting to show that ELGSS charged slightly less than $60,000.00 for Ms. Cody's care from April 2007 through December 2007.   In fact, one of the documents shows that the charges amounted to over $69,000.00 through April 2008.   With charges at $200.00 per day, and some payments by Ms. Cody's social security benefits through October 2008, the amount of the award appears to be correct.

Second, Kowaleski contends that ELGSS did not serve its papers on her in a timely fashion, and its claim should have been dismissed.   Specifically, she argues that on May 26, 2009, NAF provided ELGSS 120 days to provide proof that initial claim documents were served on Kowaleski, and that papers were not served until October 8, 2009.   Exhibits J and N. The court's review, however, shows that what was served on October 8, 2009 were not initial claim documents, but ELGSS's response to Kowaleski's response to the initial claim documents.   Exhibit J. Therefore, this claim does not have merit.

Judicial review of arbitration decisions is narrowly confined.  McCann v. Department of Environmental Protection, 288 Conn. 203, 213 (2008).   Where the submission to arbitration is unrestricted, as it is here, courts will not review the evidence considered by arbitrators, nor review the award for errors of law and fact.  Harty v. Cantor Fitzgerald & Co., 275 Conn. 272, 280, (2005).   Indeed, this court has probably delved more deeply into the background of this matter than many appellate decisions in Connecticut would sanction.   However, the size of the award, the less than transparent processes followed by NAF, and the self-represented status of Kowaleski taken together required a more searching review of this case.   Having conducted that review, the court is constrained to confirm the award, and judgment may enter for the plaintiff in the amount of $102,013.27 with post-judgment interest to be accrued at 5% interest per annum.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Adjudication of guilt has not been rendered by a Florida court, pending Kowalski's completion of probation conditions lasting three years.   Exhibit K..  FN1. Adjudication of guilt has not been rendered by a Florida court, pending Kowalski's completion of probation conditions lasting three years.   Exhibit K.

Adams, Taggart D., J.