concurring in part and dissenting part.
I concur with the Court’s determination in part IIIA that the district court’s order is appealable but I dissent with regard to part IIIB in which the Court concludes that the arbitration clause should be enforced. I would uphold the district court’s ruling that arbitration is no longer required under the arbitration clause.
The arbitration clause provides in pertinent part that, “Any controversy or claim arising out of or relating to this Policy, or the breach thereof, shall be settled by arbitration in accordance with the applicable rules of the American Arbitration Association ...” It appears from the record that the AAA adopted a policy after this controversy arose whereby it would no longer arbitrate health care disputes involving individual patients without a post-dispute agreement to arbitrate. This new AAA requirement is spelled out in the Affidavit of Robert Meade, a senior vice president of the AAA. According to Mr. Meade, the AAA implemented a policy, effective on January 1, 2003, whereby it would decline to arbitrate health care disputes between an individual and his or her insurer or provider unless the parties had voluntarily entered into a post-disputed agreement to arbitrate. Mr. Meade’s affidavit discloses the policy to be in conformity with the 1998 report of the Commission on Health Care Disputes, which provided in part:
PRINCIPLE 3: KNOWING AND VOLUNTARY AGREEMENT TO USE ADR The agreement to use ADR should be knowing and voluntary. Consent to use an ADR process should not be a requirement for receiving emergency care or treatment. In disputes involving patients, binding forms of dispute resolution should be used only where the parties agree to do so after a dispute arises.
Whether one calls AAA’s refusal to arbitrate, without a voluntary post-dispute agreement, a policy, rule, or principle, it is clear the AAA will not arbitrate a health care dispute involving an individual patient unless the parties voluntarily enter into such an agreement. This is more than a forum or arbitrator selection clause. It is a determination by the AAA that it will not get involved in the arbitration of this type of health care dispute unless the parties specifically and voluntarily agree to arbitrate after the dispute arises. The parties in this case agreed that they would arbitrate in accordance with AAA rules and this certainly appears to qualify as such. Deeds has declined to enter into a post-dispute agreement to arbitrate and, therefore, any arbitration, even one conducted by a non-AAA arbitrator, would not comply with basic AAA rules. The district court correctly determined:
The decision by the AAA that its rules governing arbitration no longer apply to this sort of dispute is certainly more substantive than the personality of the arbitrator. It is the arbitration process itself, that the AAA has addressed. The AAA has acted to remove arbitration from use by the parties.
Under these circumstances, I.C. § 7-903 does not apply. This case does not present a failure in the appointment mechanism, rather a failure in the arbitration process itself. Thus, the arbitration clause is unenforceable and Deeds should be permitted to proceed with her action in district court.