source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    Daniel Ray WEATHERS v. METROPOLITAN LIFE INSURANCE COMPANY.
    No. 2007-CT-01180-SCT.
    Supreme Court of Mississippi.
    July 2, 2009.
    John A. Owens, Susie Taylor Carver, Dudley H. Carter, Columbus, attorneys for appellant.

      Sheryl Bey, Jackson, attorney for appel-lee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court.

¶ 1. Daniel Ray Weathers petitioned this Court for writ of certiorari after the Court of Appeals affirmed the Lowndes County Circuit Court’s dismissal of his claims as time-barred. Finding error, we reverse and remand so that Weathers may proceed in the trial court on his claims.

FACTS AND TRIAL COURT PROCEEDINGS

¶ 2. In April 1993, Weathers and James McKie, an insurance agent for Metropolitan Life Insurance Company (“MetLife”), discussed Weathers’s interest in purchasing a life insurance policy. McKie pitched the idea that Weathers could purchase a policy that included “vanishing” premiums. McKie orally represented to Weathers that he would have to pay premiums for only ten years, and after that time, the policy would become self-sustaining through dividends. At his deposition, McKie provided the following, relevant testimony:

Q: Did — did [Weathers] buy this [policy] under the representation from you that the premiums shown here, if he paid these ... for ten years, that he would have to pay no more premiums ever?
[objection to form]
McKie: Right.
Q: Were there any — was there any equivocation about that or if s or but’s about that?
McKie: No.
[objection to form]
Q: Had MetLife ever asked you or directed you to tell them that there might be circumstances where that would not happen?
McKie: No.

McKie supported his oral statements with various illustrations that showed out-of-pocket premium payments stopping after ten years.

¶3. On October 21, 1993, Weathers signed and submitted an application to purchase a L-98 (“Life Paid-up at Age 98”) life insurance policy from McKie. McKie delivered the policy to Weathers on or about February 1, 1994. The policy contained a premium schedule that specified: “PREMIUMS ARE DUE ON DATE OF POLICY AND EVERY 1 MONTH(S) AFTER THAT DATE[.]” The premium schedule also provided that Weathers was to pay $531.17 monthly for fifty-nine years. The policy further provided that “[t]he benefits of your policy depend on the payment of premiums when due. Premiums are payable, while the insured is alive, on or before their due dates as shown in the premium schedule on page 3.”

¶ 4. As for dividends, the policy provided:

Every year we determine an amount to be paid to our policyholders as dividends. We will determine the share, if any, for this policy and credit it as a dividend at the end of the policy year. We do not expect that any dividend on this policy will be paid until 2 years from its date.

You may choose to use dividends in any one of these ways:

1. Paid-Up Additions — To buy more insurance on the insured’s life.
2. Dividend Acmmulations — To be left with us to earn interest at the rate we set from time to time.
3. Premium Payment — To be applied toward the payment of premiums. Any excess will be used to buy Paid-Up Additions.
4. Cash — To be paid to you by check.

¶ 5. Relevant to Weathers’s claims, the policy expressly provided that no sales representative “may (a) make or change any contract of insurance; or (b) change or waive any of the terms of this policy.”

¶ 6. Weathers testified at his deposition that he did not read the policy when McKie delivered it, but he noticed the plan was entitled, “Life Paid-up at Age 98.” Weathers asked McKie if the title meant that he would have to pay out-of-pocket premiums beyond ten years. McKie reassured Weathers that he would have to pay out-of-pocket premiums for only ten years. Thereafter, McKie and Weathers did not discuss the policy until 1999, when Weathers received notice of a class-action suit involving MetLife’s sale of vanishing-premium policies. Upon receipt of the notice, Weathers called McKie. McKie informed Weathers that the policy might not perform as expected and advised Weathers to contact MetLife’s home office.

¶ 7. Weathers alleges that he first discovered that he would have to pay out-of-pocket premiums beyond ten years when he received the class-action notice in 1999. Weathers opted-out of the class-action suit and filed his complaint against MetLife on December 20, 2001, alleging breach of contract, fraud/misrepresentation, fraudulent inducement, and negligent training/supervision.

¶ 8. Following discovery, MetLife filed a motion for summary judgment, arguing that Weathers’s claims were time-barred under Section 15-1-49 of the Mississippi Code. MetLife argued that Weathers’s claims accrued in 1994 when he received the policy, as it expressly provided that premiums were to be paid for fifty-nine years. Conversely, Weathers denied that his claims were time-barred and argued the statute of limitations was tolled under Section 15-1-67 of the Mississippi Code.

¶ 9. The trial court entered an order granting MetLife’s motion for summary judgment. The trial court found Weathers’s claims were time-barred under Section 15-1-49 as Weathers failed to put forth evidence of fraudulent concealment which would have tolled the statute of limitations under Section 15-1-67. Miss. Code Ann. §§ 15-1-49, 15-1-67 (Rev. 2003). The trial court further found that Weathers had a duty to read the insurance policy, which the court found contradicted McKie’s oral representations. Weathers timely appealed the order granting summary judgment.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 10. The Court of Appeals found that the statute of limitations began to run in 1994 upon completion of the sale of the insurance policy. Weathers v. Metro. Life Ins. Co., 14 So.3d 732, 734, 2008 Miss.App. LEXIS 426, *5 (Miss.Ct.App. July 22, 2008). The Court of Appeals reasoned that, absent tolling under Section 15-1-67, Weathers’s claims were time-barred. Id. at 734-35, 2008 Miss.App. LEXIS 426, *6-*7. The Court of Appeals found that Weathers had failed to exercise due diligence to discover the fraud, since Weathers was “put on notice” of the misrepresentations when he inquired as to the meaning of “Life Paid-up at 98.” Id. at 735, 2008 Miss.App. LEXIS 426, *8-9. The appellate court held that “Weathers unreasonably relied upon McKie’s reassurance and failed to exercise due diligence to address his concerns. Therefore, the statute of limitations was not tolled, and Weathers’s claim was time-barred when he filed suit against MetLife in 2001.” Id. at 736, 2008 Miss.App. LEXIS 426, *9.

¶ 11. After the Court of Appeals rendered its judgment, this Court granted Weathers’s Petition for Writ of Certiorari.

DISCUSSION

¶ 12. This Court applies a de novo standard of review to the statute of limitations. Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998). Furthermore, “[t]his Court reviews grants of summary judgment under the de novo standard.” Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 814 (Miss.2006). Pursuant to Rule 56 of the Mississippi Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The court views the evidence in the light most favorable to the nonmoving party. Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 817 (Miss.2006). “The moving party bears the burden of demonstrating there is no genuine issue of material fact.” Id. This Court also has held that “[w]here there is doubt whether a fact issue exists, the non-moving party is the beneficiary of that doubt.” Allen v. Mac Tools, Inc., 671 So.2d 636, 640 (Miss.1996).

¶ 13. MetLife’s motion for summary judgment alleged that Weathers’s claims were barred by the statute of limitations, and additionally, that Weathers could not establish the requisite elements of the asserted causes of action. Finding the statute-of-limitations issue to be dispositive, the trial court granted summary judgment, addressing only the statute-of-limitations question. The Court of Appeals likewise affirmed dismissal solely on the statute-of-limitations issue. Therefore, we will consider only the issue of whether the claims are time-barred due to expiration of the statute of limitations.

¶ 14. There is no dispute that the applicable statute of limitations for all the claims asserted by Weathers is three years pursuant to Section 15-1-49 of the Mississippi Code. Miss.Code Ann. § 15-1-49 (Rev.2003); see also CitiFinancial Mortgage Co. v. Washington, 967 So.2d 16, 17 (Miss.2007) (ruling three-year statute of limitations applies to claims of fraudulent misrepresentation and breach of contract); Carter v. Citigroup, Inc., 938 So.2d 809, 817 (Miss.2006) (ruling three-year statute of limitations applies to claims of negligent hiring and concealment); Sanderson Farms, Inc. (Prod. Div.) v. Ballard, 917 So.2d 783, 789 (Miss.2005) (ruling three-year statute of limitations applies to claims of fraud and fraudulent inducement). This statute provides, in part, that:

(1) All actions for which no other period of limitations is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitations is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss.Code Ann. § 15-1-49(1)-(2) (Rev.2003) (emphasis added). This Court has held that a cause of action accrues “ ‘when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested/ ” Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 815 (Miss.2006) (quoting Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346 (1943)) (emphasis added). In other words, the statute of limitations “begins to run when all the elements of a tort, or cause of action, are present.” Caves v. Yarbrough, 991 So.2d 142, 147 (Miss.2008). Under Section 15-1-49, “the statute of limitations commences upon discovery of an injury, and discovery is an issue of fact to be decided by a jury when there is a genuine dispute.” Donald v. Amoco Prod. Co., 735 So.2d 161, 167 (Miss.1999). Therefore, the critical question with which we are confronted is whether, in a summary judgment context, we can identify as a matter of law, the point at which Weathers knew or should have known or should have made an inquiry, based on the information available to him.

¶ 15. Weathers argues that he would not have been on notice of any cause of action if he had read the policy when it was issued. He asserts that the cause of action accrued in 1999 when he received notice of the class-action lawsuit.

¶ 16. MetLife argues that Weathers would have discovered the alleged misrepresentation/fraud had he read the policy. MetLife contends that McKie’s representations- were in direct contradiction to the policy’s unambiguous terms: 1) premiums to be paid for fifty-nine years; 2) dividends, if any, could be used to pay premiums; and 3) the terms of the policy could not be varied by an agent. According to MetLife, Weathers’s claims accrued in 1994, the year in which the policy was issued. MetLife argues that Stephens v. Equitable Life Assurance Society of the United States, 850 So.2d 78, 84 (Miss.2003), controls the outcome of this case. The Court of Appeals agreed. See Weathers v. Metro. Life Ins. Co., 14 So.3d at 734-35, 2008 Miss.App. LEXIS 426, *5-7 (Miss.Ct.App. July 22, 2008). The Court of Appeals cited Stephens, finding that the “statute of limitations accrues upon the completion of the sale of the insurance policy.” Id. at 734, 2008 Miss. App. LEXIS 426, *5-6. We find this statement to be erroneous and more restrictive than was intended by this Court. Indeed, this Court attempted to clarify the rule pertaining to the accrual of a fraud claim in a recent vanishing premium case, Wilbourn v. Equitable Life Assurance Society of the United States, 998 So.2d 430, 437 (Miss.2008). In Wilbourn, the Court emphasized that a fraud claim accrues either (1) upon the completion of the sale induced by such false representations, or (2) upon the consummation of the fraud. Id. According to Wilbowm, there may be a genuine issue of material fact as to “whether the alleged representations regarding the source of premium payments [are] inconsistent with the policy.” Id. Furthermore, a genuine issue of material fact may exist as to when fraud is “consummated.” Id. at 438.

¶ 17. In Stephens, this Court addressed the “issues of misrepresentation, fraud and fraudulent concealment” as those claims related to the sale of vanishing-premium policies. Stephens, 850 So.2d at 79 n. 1. The plaintiffs in Stephens alleged that the insurer had misrepresented the number of required premium payments. Id. at 79-80. This Court specifically found that the written terms of both policies in question unambiguously contradicted the agent’s misrepresentations to the plaintiffs. Id. at 83. The Court held that “[t]he policies were unambiguous and clearly stated the terms of payment[,]” thus, the fraud claims accrued when the policies were purchased. Id. at 81, 83-84 (emphasis added).

¶ 18. However, the Stephens Court also provided an alternative analysis, noting that the plaintiffs continued to pay premiums years after the alleged vanishing date. Id. at 84-85. The Court noted that the plaintiffs were on notice of the alleged fraud when they continued to pay the premiums past the vanishing date. Id. at 84. The Court concluded that the plaintiffs had six years following notice of the fraud in which to file suit. Id-. Because the plaintiffs failed to file suit within the six-year statute of limitations, the Court held that the claims were time-barred. Id. at 85.

¶ 19. We read Stephens to hold that if an insured is put on notice by the plain language of the policy that the agent’s verbal representations are false, a fraud claim accrues on the date of the sale. See id. at 81. This reading of Stephens is consistent with our prior caselaw, namely, “ ‘[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.’ ” Ballard v. Commercial Bank of DeKalb, 991 So.2d 1201, 1207 (Miss.2008) (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991)). On the other hand, if the plain language of the policy does not clearly contradict the agent’s representations such that the insured is put on notice, a fraud claim accrues when the insured becomes aware of the misrepresentation. See Stephens, 850 So.2d at 84-85. In other words, the discovery exception of Section 15-1-49(2) applies, so that the statute of limitations begins to run when the insured discovers or should have discovered the alleged misrepresentations. Fletcher v. Lyles, 999 So.2d 1271, 1277 (Miss.2009); see also Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999) (noting that the Court has applied the discovery exception in instances where the plaintiff is “precluded from discovering harm or injury because of the secretive or inherently undis-eoverable nature of the wrongdoing in question.”).

¶ 20. We now turn our focus to the policy issued to Weathers in 1994 and the question of whether the plain language of the policy contradicts McKie’s representations to Weathers, such that Weathers should have been put on notice that the representations were false. The policy is entitled “Life Paid-up at Age 98,” and it clearly states that premiums are to be paid for fifty-nine years, and an agent cannot vary the policy’s terms. MetLife argues that this language, in addition to the policy provisions regarding dividends (see supra at ¶ 4), should have put Weathers on notice of the agent’s misrepresentations. However, Weathers does not dispute that premiums are to be paid for fifty-nine years, and he acknowledges that McKie was not at liberty to vary the terms of the written policy. Although the policy itself does not explicitly mention “vanishing premiums,” Weathers contends that McKie’s representations are not inconsistent with the policy’s terms. In fact, the policy does provide alternate means by which premiums could be paid other than directly from Weathers’s pocket. We also note from McKie’s deposition testimony that even he was unaware that the policy would not perform as represented. McKie testified that he would not have sold the policy to Weathers if he had known that the premiums would not vanish in ten years.

¶ 21. When reviewing the terms of the policy in the case sub judiee in the light most favorable to Weathers (as we must when reviewing a grant of summary judgment), we find that a genuine issue of material fact exists as to whether McKie’s representations conflicted with the plain language of the policy, so as to place Weathers on notice of any alleged misrepresentation or fraud at the time the policy was issued. The policy did not expressly ■ address the relevant question at issue in this case: how the premiums were to be paid after the vanishing date. See Wilb-ourn v. Equitable Life Assurance Soc’y of the U.S., 998 So.2d 430, 437 (Miss.2008) (noting that the representations concerned how, not whether premiums were to be made). Furthermore, a juror could conclude reasonably that the sale of the policy was structured so that Weathers would have no way of knowing he had been defrauded until after the applicable statute of limitations had run. See Szymanski v. Boston Mut. Life Ins. Co., 56 Mass.App. Ct. 367, 778 N.E.2d 16, 23 (2002) (“A jury could find that it was the very essence of the marketing strategy behind the vanishing-premiums sales pitch to create a false sense of security and complacency whereby the policy holder continued to pay premiums for several years based on unrealistic expectations of the policy’s future value.”).

¶ 22. After careful consideration of the record and viewing it in the light most favorable to Weathers, we conclude that the “triggering event cannot be pinpointed as matter of law, but poses a question of fact as to when a reasonable policy holder should have realized from the available information that the policy [would not or] was not performing as allegedly promised and that the so-called vanishing premiums were a fiction.” Id. at 20. Because the trial court did not reach the other issue raised by MetLife in its motion for summary judgment, we decline to address the alternative issue that Weathers could not establish the elements of the asserted causes of action. These issues are more appropriately addressed by the trial court on remand.

CONCLUSION

¶ 23. Based on the foregoing analysis, this Court reverses the Court of Appeals’ decision affirming the circuit court’s order granting summary judgment, as well as the trial court’s grant of summary judgment. We remand this case to the trial court for further proceedings consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS, AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. CHANDLER, J., NOT PARTICIPATING.

      .“In vanishing premium litigation, insureds [claim] that life insurers sold policies by misrepresenting that the obligation to pay premiums would eventually 'vanish.' Insureds [claim] ... that the insurers’ agents represented that a portion of premiums paid in early policy years would be invested by the insurers on the insureds' accounts. Once those invested premiums grew at specific rates of return, the invested premiums would be sufficient to pay all future premiums on the policy. Insureds [argue] that agents misrepresented the rates of return on those investments, and, of course, that had the agents not misrepresented those rates of return, insureds would not have purchased the policies.” Jeffrey Jackson, Mississippi Insurance Law and Practice § 2:1 (2008).

      . Weathers initially alleged in his complaint that McKie had represented that Weathers would have to pay premiums for seven years; however, in subsequent pleadings and in the briefs before this Court, the parties maintain that the representation concerned ten years. Thus, this Court uses the term of ten years.

      . Prior to purchasing the policy, Weathers was shown a computer printout that illustrated premium payments stopping after ten years as the annual dividends increased in value to pay for the premiums. Weathers was also shown a "stop-and-go” illustration that represented the age at which he would start paying premiums and the age at which he could stop paying premiums because the policy would become self-sustaining at that point.

      . Weathers received the notice prior to the represented vanishing date.

      . The Court applied the statute of limitations as it existed in 1972.

      . In most vanishing-premium cases, the insured becomes aware of the misrepresentation only at the time the premiums are supposed to vanish, but do not, and the insureds are required to continue making payments.


author: RANDOLPH, Justice, GRAVES, Presiding Justice,

text:
    COVENANT HEALTH & REHABILITATION OF PICAYUNE, LP and Covenant Dove, Inc. v. ESTATE OF Mittie M. MOULDS, By and Through James BRADDOCK, Administrator for the Use and Benefit of the Estate and Wrongful Death Beneficiaries of Mittie M. Moulds.
    No. 2007-CT-01250-SCT.
    Supreme Court of Mississippi.
    Aug. 6, 2009.

      John L. Maxey, II, Heather Marie Aby, Paul Hobart Kimble, Jackson, attorneys for appellant.
    F.M. Turner, Hattiesburg, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. The issue presented is the enforcement vel non of an arbitration clause made part of a contract. James Braddock asserts that the contract is one of adhesion and contains multiple unconscionable provisions. Alternatively, Braddock urges that if the arbitration clause is enforceable, the forum putatively agreed to is unavailable. We have considered more than one case involving this same arbitration agreement, and in other cases, very similar clauses. Almost unanimously, we have declared several of these contested provisions to be unconscionable. Previously, a majority of this Court determined that the contract, as amended by the Court, including the arbitration provision, should be enforced, but not without dissent.

¶ 2. Despite this Court’s admonitions to the drafters of such contracts to eliminate unconscionable clauses and the reluctance of courts to reform and rewrite contracts, a veritable deluge of contests over arbitration issues continues in the courts of our state.

¶ 3. Based on the issues considered and the application of basic contract-law principles, we conclude that this contract is unconscionable, as it contains numerous unconscionable provisions. The contract weaves unconscionable nonforum terms into the arbitration provision. Arbitration is limited to choice of forum. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444, 456 (1985); Stephens, 911 So.2d at 525. This conclusion is consistent with our body of law regarding the enforcement of contracts, and conforms to the national body of law addressing similar issues. The course we follow exceeds the excision of numerous unconscionable provisions, and voids the eon-tract. Furthermore, since arbitration is about forum choice, were we to assume arguendo the validity of the contract, the contested agreement to arbitrate still would be unenforceable, as the forum putatively agreed upon is unavailable. The learned trial judge rightly denied arbitration as the forum for this dispute.

¶ 4. Braddock (the administrator of the plaintiff estate) filed a wrongful-death action against Covenant Health and Rehabilitation of Picayune, LP (“Covenant Health”), and its general partner, Covenant Dove, Inc., in the Circuit Court of Pearl River County. The circuit court denied Covenant Health’s motion to compel arbitration, finding inter alia that the admissions agreement, as a whole, was unconscionable. The Court of Appeals reversed and remanded. Covenant Health, and Rehab. of Picayune, LP v. Moulds, 14 So.3d 736, 742-43, 2008 WL 3843820, at *5 (Miss.Ct.App. Aug. 19, 2008). Braddock’s motion for rehearing was denied. This Court granted Braddock’s petition for cer-tiorari. Covenant Health & Rehab, of Picayune, LP v. Braddock, 999 So.2d 1280 (Miss.2009).

THE COURT OF APPEALS OPINION

¶ 5. The Court of Appeals has expressed its “serious misgivings about the language included in the admissions agreement,” but that court concluded that it was “compelled to confirm the substantive conscion-ability of the admissions agreement and the arbitration clause.” Moulds, 14 So.3d at 742, 2008 WL 3843820, at *5. The Court of Appeals noted that this Court has dealt with the same contract language along with very similar facts. Id.

¶ 6. Separately, on the issue of the nonavailability of the arbitral forum, the Court of Appeals found that the arbitration agreement would allow the circuit court to choose an arbitrator if the forum chosen by the parties was unavailable. Moulds, 14 So.3d at 743, 2008 WL 3843820, at **5-6; See also Scott, —• So.3d at --•, 2008 WL 73682, at *6.

BACKGROUND ON APPLICABLE LAW

¶ 7. We recognize that the use of arbitration to resolve disputes finds favor under federal and state law. In IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96 (Miss.1998), this Court discussed two conflicting lines of cases. Id. at 103-04. One favored arbitration, while the other would allow a contracting party to revoke an arbitration agreement if it did so while the agreement was still executory (before an award was made). Id. The Court settled the conflict as follows:

This Court hereby overturns the former line of case law that jealously guarded the court’s jurisdiction. Again, we expressly state that this Court will respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution.

Id. at 104. The IP Timberlands Court also recognized that Congress, by enacting section two of the Federal Arbitration Act (“FAA”), “ ‘declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.’ ” Id. at 107 (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 12 (1984)). IP Timberlands cites U.S. Supreme Court precedent for the proposition that “[djoubts as to the availability of arbitration must be resolved in favor of arbitration.” IP Timberlands, 726 So.2d at 107 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 785 (1983)). However, the Moses H. Cone Court separately held that the FAA explicitly makes an exception where “grounds [] exist at law or in equity for the revocation of any contract.” Moses H. Cone, 460 U.S. at 24 (quoting Federal Arbitration Act, 9 U.S.C. § 2 (2006)).

¶ 8. Arbitration agreements and other contract terms should be on equal footing, in that state courts may not invalidate arbitration agreements under laws that affect only arbitration agreements. Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 1656, 134 L.Ed.2d 902, 909 (1996). That is, arbitration clauses shall not receive especial treatment not otherwise available under basic state contract principles. This principle comports with the pronouncement of the U.S. Supreme Court in Perry v. Thomas, 482 U.S. 483, 489, 107 S.Ct. 2520, 2523, 96 L.Ed.2d 426 (1987), which held the only exceptions to the federal policy lie in contracts not evidencing interstate commerce or that are revocable “upon such grounds as exist at law or in equity for the revocation of any contract.” Id. at 489, 107 S.Ct. 2520 (quoting FAA, 9 U.S.C. § 2).

¶9. Applying FAA language and U.S. Supreme Court decisions, we have held that “applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002) (citing Casarotto, 517 U.S. at 686, 116 S.Ct. 1652).

¶ 10. “[E]quity has a long history of concern with the substantive eonscionability of the exercise of rights given by agreement.” 7-29 Corbin on Contracts § 29.2 (2009). One court explained its rationale for denying specific performance of an unconscionable contract as follows:

a party who has offered and succeeded in getting an agreement as tough as this one is, should not come to a chancellor and ask court help in the enforcement of its terms. That equity does not enforce unconscionable bargains is too well established to require elaborate citation.

Campbell Soup Co. v. Wentz, 172 F.2d 80, 83 (3d Cir.1948).

¶ 11. Corbin expounds on the meaning of “unconscionable” as follows:

“Unconscionable” is a word that defies lawyer-like definition. It is a term borrowed from moral philosophy and ethics. As close to a definition as we are likely to get is “that which ‘affronts the sense of decency.’ ” A much-quoted judicial definition is “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”

7-29 Corbin on Contracts § 29.4 (2009) (quoting Gimbel Bros. Inc. v. Swift, 62 Misc.2d 156, 307 N.Y.S.2d 952, 954 (1970); Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965)).

¶ 12. Our precedent follows the Williams (“absence of meaningful choice”) language as quoted above from Corbin. See Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (Miss.1998) (quoting Bank of Indiana, Nat’l Ass’n. v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss.1979)). Unconscionability can be procedural or substantive. East Ford, 826 So.2d at 714. Under “substantive uncon-seionability, we look within the four corners of an agreement in order to discover any abuses relating to the specific terms which violate the expectations of, or cause gross disparity between, the contracting parties.” Stephens, 911 So.2d at 521. Substantive unconscionability is proven by oppressive contract terms such that “there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach....” Holyfield, 476 F.Supp. at 110. One example of a one-sided agreement is one that allows one party to go to court, but restricts the other to arbiti*ation. See Pridgen v. Green Tree Fin. Servicing Corp., 88 F.Supp.2d 655, 658 (S.D.Miss.2000).

¶ 13. Our courts may remedy unconscionable agreements as follows:

“The law of Mississippi imposes an obligation of good faith and fundamental fairness in the performance of every contract ... this requirement is so pronounced that courts have the power to refuse to enforce any contract ... in order to avoid an unconscionable result.” Section 75-2-302 of the Mississippi Code provides: “If the court as a matter of law finds the contract to have been unconscionable ... [it] may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result!’

Jeffrey Jackson and Mary Miller, Encyclopedia of Mississippi Law, Vol. 3, § 21.54 (Mississippi Practice Series, 2001) (quoting Holyfield, 476 F.Supp. at 109).

¶ 14. Mississippi Code Section 75-2-302, a Uniform Commercial Code provision, has been applied by this Court to contracts other than for sales of goods. Miss.Code Ann. § 75-2-302 (Rev.2002). See Brown, 949 So.2d at 741; Stephens, 911 So.2d at 525; Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 836 (Miss.2003) (raising livestock for owner). Corbin on Contracts states that the unconscionability “provision has entered the general law of contracts and has been applied to numerous transactions outside the coverage of Article 2 of the UCC.” 7-29 Corbin on Contracts § 29.3 (2009). The official comment to the statute states that a “court, in its discretion, may refuse to enforce the contract as a whole if it is permeated by the unconscionability.... ” Miss.Code Ann. § 75-2-302 cmt. 2 (Rev.2002).

FACTS

¶ 15. Mittie Moulds, a seventy-six-year-old female, suffering from a host of medical problems, was admitted to the Picayune Convalescent Center (“nursing home”) on November 16, 2000. Moulds resided at the nursing home continuously from November 16, 2000, until September 20, 2004. The nursing home is a skilled nursing facility operated by the defendant, Covenant Health. Moulds was neither involved nor present when the 2000 admissions paperwork was signed. Her son, James Braddock, acted as a “responsible party” and signed the admissions agreement, which included an arbitration clause.

¶ 16. In April 2002, a new admissions agreement was presented to Braddoek for his signature. In addition to Braddock’s signature on the “Responsible Party” line, Moulds’s name also was written on the “Resident” lines. Whether Moulds signed the 2002 document is contested. The 2002 agreement contains clause E4, which states that it “constitutes the entire agreement ... and supersedes all prior agreements, representations and all understandings of the Parties.” The agreement also is signed by a “Facility Representative” and two witnesses. On September 20, 2004, Moulds was transferred from the nursing home to a local hospital, where she died on October 2, 2004. Braddoek alleges that Moulds was injured at the nursing home and that these injuries led to her hospitalization and death.

ISSUES

¶ 17. “The Supreme Court’s review on the grant of certiorari shall be conducted on the record and briefs previously filed in the Court of Appeals and on any supplemental briefs filed. The Supreme Court may limit the question on review.” Miss. R.App. P. 17(h) (emphasis in original). We limit our review in this case to the following issues:

(1) Whether the trial court erred in denying the Motion to Compel Arbitration because the 2002 admissions agreement as a whole is substantively unconscionable.
(2) Whether the 2002 arbitration agreement is unenforceable because the designated arbitration forum is unavailable.
(3) Whether an arbitration agreement ever came into effect because no one with legal capacity to bind Moulds executed the admissions agreement.

DISCUSSION

¶ 18. We apply “a de novo standard of review to denials of motions to compel.” Brown, 949 So.2d at 736 (citing Stephen,s, 911 So.2d at 513). The FAA applies to the contract at issue. Contract defenses, other than substantive uncon-scionability, are inapplicable here.

I. Whether the trial court erred in denying the Motion to Compel Arbitration because the 2002 admissions agreement as a whole is substantively unconscionable.

¶ 19. This Court twice before has found the admissions agreement at issue in this case to be a contract of adhesion: See Brown, 949 So.2d at 746; Stephens, 911 So.2d at 520. Contracts of adhesion are those that are “ ‘drafted unilaterally by the dominant party and then presented on a “take-it-or-leave-it” basis to the weaker party who has no real opportunity to bargain about its terms. Such contracts are usually prepared in printed form....’” East Ford, Inc. v. Taylor, 826 So.2d 709, 716 (Miss.2002) (quoting Restatement (Second) of Conflicts § 203 cmt. b (1971)). This Court stated in Stephens that finding a contract to be one of adhesion does not automatically mean that the contract or any provision thereof is substantively unconscionable. Stephens, 911 So.2d at 523. However, such a finding “makes an argument targeting a provision for a substantive unconscionability review easier to prove.... [Thus, it] can make a facially oppressive term presumptively invalid.” Id.

¶ 20. Further, each time this contract has come before this Court, the litigants have urged additional terms to be declared unconscionable and unenforceable. In Stephens, clauses E7 and E8 were invalidated by this Court. Id. at 523-24. In Brown, in addition to E7 and E8, this Court reformed the contract to invalidate clauses C5, C8, E5, E6, E12, E16, and the last sentence of the arbitration agreement. Brown, 949 So.2d at 741-42. Covenant Health concedes that all these provisions are unenforceable in this case. In a previous case before the Court of Appeals, Covenant Health conceded the unenforceability of all these provisions, as well as two additional clauses, D4 and E13. Covenant Health & Rehab, of Picayune, LP v. Estate of Lambert, 984 So.2d 283, 287 (Miss.Ct.App.2006). In another case before the Court of Appeals, the Court of Appeals found several provisions unenforceable, including E14, which was held to be in violation of a statute. Barber, 988 So.2d at 923.

¶ 21. In addition to the plethora of provisions previously adjudicated unconscionable and/or violative of statute, the admissions agreement contains several other questionable provisions. Clause A5 is similar to clause C5 in that it would allow Covenant Health to go to court to litigate a dispute. Clause E9 requires the patient to submit any damage recovery to any third-party payor (including Medicare and Medicaid) to reimburse the payor’s expenses. Clause E15 requires that any dispute resolution or legal proceedings be brought in the county where the facility is located.

¶ 22. This Court in Pitts v. Watkins, 905 So.2d 553 (Miss.2005), reversed a grant of summary judgment in favor of a defendant home inspector. Id. at 554. An arbitration clause and a limitation-of-liability clause were found to be unconscionable and unenforceable. Id. at 558. The arbitration clause unreasonably favored the home inspector, allowing him to pursue litigation in court, while the customer was limited to arbitration. Id. The attempt to shorten the statute of limitations was unconscionable, because it was oppressive and in violation of a statute. Id. The limit on liability also was unconscionable because it left the customer without an effective remedy. Id. As noted above, this Court in Stephens found two provisions of the admissions agreement to be unconscionable, but allowed enforcement of the remainder of the contract. Stephens, 911 So.2d at 523. Referring to Pitts, the Stephens Court said:

We have considered our recent decision in [Pitts ] and find that this case is clearly distinguishable. In Pitts we were confronted with a contract which, inter alia, (1) allowed one party to the contract to go to court to recover damages, while the other party was limited to arbitration, (2) attempted to shorten the statute of limitations, and (3) limited the amount of damages one of the parties could otherwise recover as a matter of law. The language in the arbitration clause in today’s case pales in comparison to the oppressive language contained in the arbitration clause in Pitts.

Id. at 525 (internal citation omitted).

1123. In Brown, this Court found nine provisions of the same contract used in Stephens to be unconscionable, and cited Pitts multiple times in its analysis of the unconscionable terms. Brown, 949 So.2d at 739-41. The Brown Court enforced the remainder of the contract, but not without dissent. See id. at 741-48.

¶ 24. The contract at issue contains unconscionable provisions that mirror those found in Pitts, and several more. The application of basic contract principles leads this Court to the same conclusion as that of the learned trial judge, consistent with the “serious misgivings” of the Court of Appeals. We reach the inescapable conclusion that the contract is unconscionable, thus unenforceable.

¶ 25. The arbitration clause, which leads to court examination of the contract of adhesion, is not the only unconscionable provision. The arbitration clause itself includes, by its own terms and by reference to other provisions, several unconscionable, nonforum terms. “Arbitration is about choice of forum — period.” Stephens, 911 So.2d at 525. However, this contract has woven unconscionable, nonforum terms into the clause ostensibly designed to establish forum. The drafters of arbitration clauses, who truly seek the benefits of arbitration, including reduction of dispute costs, would be wise to heed the prior pronouncements of this Court, such as:

Neither is it wise to allow companies to draft arbitration clauses with unconscionable provisions and then let them try them out in the marketplace, secure in the knowledge that the courts will at worst sever the offending [provisions] after plaintiffs have been forced “to jump through hoops in order to invalidate those agreements.”

Sanderson Farms, 848 So.2d at 852 (Cobb, J., dissenting; Smith, P.J., and Carlson, J., joining) (dissent would have held the arbitration agreement unconscionable; plurality did not address unconscionability, as it held that Sanderson Farms had waived its right to compel arbitration) (quoting Cooper v. MRM Inv. Co., 199 F.Supp.2d 771 (M.D.Tenn.2002), rev’d in part, vacated in part on other issues, 367 F.3d 493 (6th Cir.2004)). Thus, we adopt the circuit court’s rationale that the arbitration clause sub judice, coupled with a multitude of unconscionable provisions, makes this an unconscionable contract as a whole.

¶ 26. Courts of other states have refused to enforce similar contracts which were found to be substantively unconscionable. A Florida district court of appeals, in Romano v. Manor Care, Inc., 861 So.2d 59 (Fla.Dist.Ct.App.2003), refused to enforce an arbitration agreement which required a waiver of punitive damages, limited noneconomic damages to $250,000, and disallowed awards of attorney fees. Id. at 61. The court found that these three provisions made the agreement “substantively unconscionable to a great degree....” Id. at 62.

¶ 27. The Romano analysis has found favor in other cases. See Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630 (Fla.Dist.Ct.App.2008); Prieto v. Healthcare & Ret. Corp. of Am., 919 So.2d 531 (Fla.Dist.Ct.App.2005); Lacey v. Healthcare & Ret. Corp. of Am,., 918 So.2d 333 (Fla.Dist.Ct.App.2005). In Lacey, the court noted that “[t]he presence of an unlawful provision in an arbitration agreement may serve to taint the entire arbitration agreement, rendering the agreement completely unenforceable.” Lacey, 918 So.2d at 335 (quoting Presidential Leasing, Inc. v. Krout, 896 So.2d 938, 942 (Fla.Dist.Ct.App.2005)). That court also found that the absence of a severance clause distinguished Lacey from previous cases in which the court severed unlawful provisions, but the court was more persuaded by the fact that the agreement was “titled an ‘arbitration and limitation of liability agreement.’ ” Lacey, 918 So.2d at 335. This “suggested] that the offensive limitations of liability [went] to the ‘essence’ of the contract.” Id. The agreement in this case is simply titled “Arbitration,” but weaves in unconscionable waivers and award limits. Another similarity between the Florida cases and this case is the fact that the courts repeatedly have been required to deal with the same or very similar arbitration agreements. See Woebse, 977 So.2d at 634; Prieto, 919 So.2d at 533; Lacey, 918 So.2d at 334.

¶ 28. Tennessee also has found similar agreements unconscionable. Hill v. NHC Healthcare/Nashville, LLC, 2008 WL 1901198, at *13 (Tenn.Ct.App. Apr.30, 2008) (requirement of party bringing the action to pay up-front fees of approximately $18,000 “prevents vindication of a statutory right”). Tennessee rightly recognizes, as do we, that the purpose of arbitration is to provide a fonim for dispute resolution. In Hill, the court stated the following:

With regard to substantive unconsciona-bility, our Supreme Court has detei*-mined that an agreement to arbitrate, including one made in the context of the provision of medical services, is not generally unconscionable when its provisions do not alter legal duties or limit liabilities and simply provide an alternative forum for the resolution of disputes. However, inequality in the provisions of such an agreement, where the agreement is an adhesion contract, may result in a finding of unconscionability.

Hill, 2008 WL 1901198, at *12 (citing Taylor v. Butler, 142 S.W.3d 277, 286 (Tenn.2004); Buraczynski v. Eyring, 919 S.W.2d 314, 321 (Tenn.1996)).

¶ 29. Other state courts have invalidated arbitration agreements in various types of contracts. The Supreme Court of Alabama found an arbitration agi’eement included in a loan contract to be unconscionable in American General Finance, Incorporated v. Branch, 793 So.2d 738 (Ala.2000). The court applied the factors from its precedent case, Layne v. Garner, 612 So.2d 404 (Ala.1992). The Layne factors are:

(1) whether there was an absence of meaningful choice on one paidy’s part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided, or patently unfair terms in the contract.

Id. at 408. The court held that the contract was unconscionable for one of the plaintiffs, Branch, but not the other, Reaves. Branch, 793 So.2d at 751-52. The distinguishing factor was that at the time Branch signed the contract, it would have been much more difficult to obtain a loan without having to agree to arbitration; thus Branch had no meaningful choice. Id.

¶ 30. A California court found an arbitration agreement and other provisions of an employment contract to be unconscionable. Stirlen v. Supercuts, 51 Cal.App.4th 1519, 1552, 60 Cal.Rptr.2d 138 (Cal.Ct.App.1997). The court explained its analysis as follows: “an adhesive contract ‘would remain fully enforceable unless (1) all or part of the contract fell outside the reasonable expectations of the weaker party or (2) it was unduly oppressive or unconscionable under applicable pi’inciples of equity.’ ” Id. at 1530, 60 Cal.Rptr.2d 138 (quoting Izzi v. Mesquite Country Club, 186 Cal.App.3d 1309, 1317, 231 Cal.Rptr. 315 (Cal.Ct.App.1986) (emphasis in original)). The court found the contract in Stirlen to be excessively one-sided in that it allowed the employer to use the court system, but restricted the employee to arbitration and a shortened statute of limitations, not subject to tolling. Id. at 1542, 60 Cal.Rptr.2d 138. The employee gave up statutorily-protected rights that would have allowed punitive damages, while the employer was protected from liability for all fraud, willful injury, and violation of laws. Id. In finding that the FAA would not be offended by nullifying this agreement, the court stated, “The FAA was clearly not designed to save an arbitration agreement as egregiously one-sided as the one before us, which would not survive scrutiny under legal or equitable principles applicable in almost every American jurisdiction.” Id. at 1546, 60 Cal.Rptr.2d 138.

¶ 31. Other state courts have held arbitration agreements to be unconscionable. See Bolter v. Superior Court, 87 Cal.App.4th 900, 902, 909, 104 Cal.Rptr.2d 888 (Cal.Ct.App.2001) (in carpet-cleaning franchise agreement, excessive costs and limitation on damages prevented a remedy); Discover Bank v. Shea, 362 N.J.Super.200, 827 A.2d 358, 366 (Law Div.2001) (credit-card agreement was contract of adhesion with unconscionable provisions); In re Turner Bros. Trucking Co., 8 S.W.3d 370, 372 (Tex.App.1999) (employment contract); Wilder v. Whittaker Corp., 169 Cal.App.3d 969, 975, 215 Cal.Rptr. 536 (1985) (employment contract at issue had been determined to be adhesory by a prior opinion of the court).

¶ 32. Like the courts listed above, this Court also has refused to enforce unconscionable arbitration agreements outside the nursing home arena. See Pitts, 905 So.2d at 558 (home-inspection contract); East Ford, 826 So.2d at 717 (sale of a used car). As noted above, FAA section two prevents a court from singling out arbitration agreements for special or unique analysis. See 9 U.S.C. § 2; Casarotto, 517 U.S. at 687, 116 S.Ct. 1652. We also have found contracts to be unconscionable for clauses other than arbitration agreements. See Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1208 (Miss.1998); In re Will of Johnson, 351 So.2d 1339, 1341 (Miss.1977) (wife prohibited from renouncing or contesting husband’s will).

¶ 33. Our law “imposes an obligation of good faith and fundamental fairness in the performance of every contract governed thereby....” Holy field, 476 F.Supp. at 109. Caselaw and legislative enactments address refusal to enforce a contract in its entirety, or any portion thereof, if it is found to be unconscionable. See Miss. Code Ann. § 75-2-302(1) (Rev.2002); East Ford, 826 So.2d at 717; Burdette Gin, 726 So.2d at 1208; Johnson, 351 So.2d at 1341; Terre Haute Cooperage v. Branscome, 203 Miss. 493, 503, 35 So.2d 537, 541 (1948). Mississippi and U.S. Supreme Court precedent provide for the invalidation of arbitration agreements for unconscionability without offending the FAA. East Ford, 826 So.2d at 711 (citing Casarotto, 517 U.S. at 686, 116 S.Ct. 1652). Accordingly, we hold that the contract in its entirety, and this arbitration agreement specifically, are unconscionable and unenforceable. To do otherwise would “result[] in this Court rewriting a contract which favors a goal of the nullifying party; an undeserved reward for unconscionable conduct.” Brown, 949 So.2d at 748 (5-4 decision) (Randolph, J., dissenting).

¶ 34. This decision does not prevent nursing homes, or for that matter, any legal entity or person from entering contracts that include arbitration agreements. Our courts will enforce arbitration agreements when they do not seek to impose terms deemed unconscionable by this Court. See Bedford Health Props., LLC v. Estate of Davis, — So.Sd-,-, 2008 WL 5220594, at *4 (Miss.Ct.App. Dec.16, 2008); Forest Hill Nursing Ctr., Inc. v. McFarlan, 995 So.2d 775, 785 (Miss.Ct.App.2008).

¶ 35. As Bro-um and Stephens dealt with nearly identical contracts, to the extent that those rulings are inconsistent with today’s opinion, they are overruled.

II. Whether the 2002 arbitration agreement is unenforceable because the designated arbitration forum is unavailable.

¶ 36. In Stephens, this Court stated, “Arbitration is about choice of forum— period.” Stephens, 911 So.2d at 525. In the admissions agreement signed on April 24, 2002, Covenant Health proposed to have any disputes administered by AAA as follows:

The Resident and Responsible Party agree that any and all claims, disputes and/or controversies between them and the Facility or its Owners, officers, directors or employees shall be resolved by binding arbitration administered by the American Arbitration Association and its rules and procedures.

The AAA announced nearly seven years ago that it “no longer aecept[s] the administration of cases involving individual patients without a post-dispute agreement to arbitrate.” The AAA continues to administer health-care arbitrations in which “businesses, providers, health care companies, or other entities are involved on both sides of the dispute.” Id. The AAA stated that the policy was a part of its “ongoing efforts ... to establish and enforce standards of fairness for alternative dispute resolution....” The Senior Vice President of the AAA was quoted as follows:

Although we support and administer pre-dispute arbitration in other case areas, we thought it appropriate to change our policy in these cases since medical problems can be life or death situations and require special consideration.

Id.

¶ 37. Another alternate-dispute-resolution organization, the American Healthcare Lawyers Association (“AHLA”), has made a similar announcement about healthcare arbitrations. Owens v. Nexion Health at Gilmer, Inc., 2007 WL 841114, at *3 (E.D.Tex. Mar.19, 2007). The AHLA also has announced that it would administer an arbitration without a post-dispute agreement only if ordered to do so by a court. Id. Covenant Health argues that AHLA’s policy is relevant to this case and speculates that the AAA is likely to follow the AHLA’s lead and administer disputes if ordered to do so. The AAA has made no such announcement.

¶ 38. The Court of Appeals correctly found that it should not speculate whether the AAA might agree to administer the dispute. Moulds, 14 So.3d at 743, 2008 WL 3843820, at *6. However, the Court of Appeals went on to find that the arbitration agreement allows the circuit court to choose an arbitrator if the agreed forum is unavailable. Id. We do not share this reading. The language referred to by the Court of Ajspeals relates only to selection of an arbitrator and not more generally to the choice of forum or the rules and procedures to be utilized. Assuming arguendo that the forum was chosen by the parties to be the AAA, and it refused to accept the dispute, this defeats the primai-y stated purpose of arbitration, that being to avoid crowded dockets (speed of resolution) and involvement of courts (reduce costs of resolution). Thus, a court should not become a party to redrafting or reforming agreements. A court should not be used to reform a contract to select a forum not anticipated by either of the parties. To do so, the court must become involved and assume powers over parties. Courts’ involvement is limited to determining whether to compel agreed-upon arbitration vel non. As the court’s participation and involvement increase, the reason for arbitration in the first place becomes greatly diminished, and its purpose defeated.

¶ 39. U.S. Supreme Court and Mississippi precedent supports this conclusion, as follows:

The U.S. Supreme Court has stated that, ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.’ ... The Supreme Court has also said that, “section 4 of the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that ‘arbitration ‘proceed in the manner provided for in [the parties’] agreement.’

B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 487-88 (Miss.2005) (emphasis in original) (quoting AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648, 655 (1986); Volt Info. Scis. v. Bd. of Trs., 489 U.S. 468, 475, 109 S.Ct. 1248, 1253, 103 L.Ed.2d 488, 497 (1989)). In B.C. Rogers Poultry, this Court affirmed the denial of a motion to compel arbitration because the dispute concerned contracts entered into before the parties had instituted an arbitration agreement. Id. at 493. In AT & T Techs., Inc., the U.S. Supreme Court held that arbitrability should be decided by courts, not arbitrators. Id. at 651. In Volt Info. Scis., the U.S. Supreme Court held that arbitrations should be governed by the rules chosen by the parties, not by FAA-mandated rules. Id. at 476, 109 S.Ct. 1248 (California statutory rules applied in accordance with the arbitration agreement’s terms).

¶40. In Magnolia Healthcare, Inc. v. Barnes, 994 So.2d 159 (Miss.2008), a plurality of this Court would have held that an arbitration agreement was unenforceable because the parties’ forum choice was no longer available. Id. at 162. In Barnes, the arbitration agreement called for the use of AHLA rules, but did not require AHLA administration. Id. at 160. The plurality cited AHLA rules, which require a post-dispute agreement to arbitrate. Id. The plurality concluded that, because the patient’s injuries occurred after AHLA’s policy was implemented, and there was no post-dispute agreement, “there was no valid agreement to arbitrate.” Id. at 162. The Barnes rationale applies here. Assuming there were no substantively unconscionable provisions in the agreement, and further assuming Covenant Health prevailed on all other issues, the agreement called for the AAA to administer disputes, and the trial court was required to chose an arbitrator; the arbitrator would still be bound to apply AAA rules, which would require Braddock to agree, post-dispute, to be bound to arbitrate, which he has expressly disavowed his interest in doing.

¶ 41. In National Iranian Oil Co. v. Ashland Oil, 817 F.2d 326 (5th Cir.1987), the Fifth Circuit Court of Appeals held that an arbitration agreement was unenforceable because the chosen forum was no longer available. Id. at 328; see also Northrop Grumman, Ship Sys. Inc. v. The Ministry of Def. of the Republic of Venezuela, 575 F.3d 491 (5th Cir.2009). National Iranian Oil Co. (“NIOC”) drafted the agreement, which called for arbitra-tions to occur in Tehran and to be governed by Iranian law. Id. at 334. After the revolution in Iran, NIOC attempted to institute arbitration proceedings in Mississippi. Id. at 327-28. For NIOC to prevail, it was required to show that the situs was merely a minor consideration and that the essence of the bargain was to arbitrate. Id. at 333. Here, Covenant Health prescribed AAA administration. Both of the agreements in this case (November 2000 and April 2002) have the same language requiring AAA administration. Moulds remained in the nursing home for two years after the AAA announced its new policy. Covenant Health replaced the original agreement with another agreement with different terms. Administration by the AAA was a contract requirement, which remained a part of the agreement, if it was otherwise enforceable.

¶ 42. Covenant Health urges that, even if the clause requiring AAA administration is stricken from the contract, arbitration still should be compelled here. Covenant Health cites clause E6, claiming that it offers proof that the parties agreed generally to arbitrate without regard to which organization should administer it. This argument fails for two reasons. It ignores the fact that Covenant Health has conceded, and this Court has agreed, that E6 is unenforceable. It also misreads the language of E6, in which the parties agree that if mediation fails, they will “arbitrate the dispute, claim and/or controversy as set forth below [in the arbitration agreement.]”

¶ 43. The courts of several other states have dealt with the AAA/AHLA policy-change issue. We find no other state court that has held that an arbitration may go forward if the arbitration agreement requires AAA administration. See Mathews v. Life Care Ctrs. of Am., Inc., 217 Ariz. 606, 177 P.3d 867 (2008) (enforced agreement that required AAA arbitrators, but not AAA administration); Hill, 2008 WL 1901198, at *16-17 (held agreement unconscionable, but did not reach on forum choice); Owens v. Nat’l Health Corp., 263 S.W.3d 876 (Tenn.2007) (court enforced agreement that called for either AAA or AHLA administration, but the court noted that AHLA would administer if ordered); Blue Cross Blue Shield v. Rigas, 923 So.2d 1077 (Ala.2005) (enforced agreement that required AAA rules, but not AAA administration); Broughsville v. OHECC, LLC, 2005 Ohio 6733, 2005 WL 3483777 (Ohio Ct.App.2005) (enforced agreement which called for an AHLA procedure).

¶ 44. Here, the Court of Appeals held that the arbitration agreement allows the circuit court to pick an arbitrator if the forum is unavailable. Moulds, 14 So.3d at 743, 2008 WL 3843820, at *6. We find no basis for such an interpretation of the agreement. The agreement requires that the arbitration be administered by the AAA in accordance with the rules and procedures of that organization. The language referred to by the Court of Appeals relates only to the selection of an arbitrator, not the overall rules and administration of the arbitration. The rules of the organization referenced in the agreement, the AAA, require that it refuse to administer arbitrations of this type of case, unless the parties agree post-dispute to be bound by arbitration. Thus, not only are our courts being asked to rewrite the agreement in favor of the drafter, but also now to select a forum not anticipated by either party. We decline. The whole purpose of arbitration is to avoid dispute resolution in a court of law. In declining, we follow the rationale espoused by a plurality of this Court in Barnes, 994 So.2d at 161-62.

¶ 45. We find that Covenant Health sought to have its disputes administered by the AAA. That forum refuses to arbitrate without a post-dispute agreement. There is no post-dispute agreement. This court declines to order the contract rewritten and declines to order the lower court to pick a forum.

III. Whether an arbitration agreement ever came into effect because no one with legal capacity to bind Moulds executed the admissions agreement.

¶ 46. We choose not to address Braddock’s authority to bind his mother to arbitration, for issues of material fact exist whether Moulds signed the 2002 contract, thus preventing a Hinyub analysis at this stage of the proceeding. See Miss. Care Ctr. of Greenville, LLC v. Hinyub, 975 So.2d 211 (Miss.2008).

¶ 47. The two cases are distinguishable in other relevant ways. In Hinyub, the arbitration agreement was a separate document, which stated explicitly that arbitration was not a precondition for admission. Id. at 218. Here, the nursing-home administrator asserted post-suit that arbitration was not a pre-condition for admission, but such a policy is not found within the contract we are analyzing. Further, the Hinyub arbitration agreement was re-scindable within thirty days. Id. The admissions agreement here, at paragraph D, allowed for termination within one day of signing, but required an immediate discharge from the facility. However, the arbitration clause was one of eleven listed contract provisions that were to survive the admissions agreement, regardless of the reason it was terminated. In Hinyub, the admissions documents at issue were signed upon admission. Id. at 213. Here, the “admissions agreement” in dispute was signed seventeen months after admission.

CONCLUSION

¶48. For the reasons stated, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Pearl River County. The case is remanded to that court for further proceedings consistent with this opinion.

¶ 49. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS REINSTATED AND AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.

GRAVES, Presiding Justice,

Concurring in Result Only.

¶ 50. I agree with the majority that the arbitration provision here is unconscionable. I write separately because the majority addresses issues raised in the principal briefs but not in the petition for writ of certiorari. I would address only the issues which were put before us in the petition for wit of certiorari.

¶ 51. In the petition, the plaintiffs allege that the Court of Appeals incorrectly found that James Braddock possessed the authority to bind his mother to arbitration. At Mittie Moulds’ admission to the nursing home, Braddock signed the admission agreement as her “Responsible Party.” The admission agreement contained an arbitration clause.

¶ 52. In Covenant Health Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss.2007), and in Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 516 (Miss.2005), this Court determined that an elderly nursing home patient’s adult child, acting as a health-care surrogate, could bind the patient to arbitration. The Court did not specifically state that entering an arbitration agreement was a health-care decision covered by Mississippi Code Section 41-41-21, but that is the result of both opinions. The statute provides:

(1) A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

Miss. Code Ann. § 41-41-21 (Rev.2005). A “health-care decision” is defined as:

(h) “Health-care decision” means a decision made by an individual or the individual’s agent, guardian, or surrogate, regarding the individual’s health care, including:
(i) Selection and discharge of healthcare providers and institutions;
(ii) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
(iii) Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care.

Miss.Code Ann. § 41-41-203 (Rev.2005).

¶ 53. I disagree with the majority of this Court inasmuch as I am of the opinion that a decision to arbitrate is not a healthcare decision. I previously expressed my opinion that entering an arbitration agreement is not authorized by the health-care surrogate statutes and that an arbitration agreement entered by a surrogate is therefore not binding. See Magnolia, Healthcare, Inc. v. Barnes, 994 So.2d 159, 162 (Miss.2008) (Graves, J., dissenting).

¶ 54. The Court of Appeals in the instant case relied on Covenant Health Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss.2007), and Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 516 (Miss.2005), but failed to note this Court’s later opinion in Mississippi Care Center of Greenville, LLC v. Hinyub, 975 So.2d 211, 218 (Miss.2008). In that case, we discussed Brown and Stephens and distinguished them on the basis that the arbitration agreements in those cases had been essential parts of the consideration for those contracts. Hinyub, 975 So.2d 211, 218. Arbitration had not been a necessary precondition in Hinyub. Id. There, the admissions agreement clearly stated that the execution of the arbitration agreement was not a precondition to the furnishing of services to the patient by the nursing home. Id. This Court in Hinyub held that, since the surrogate was not required to sign the arbitration provision prior to the patient’s admission to the facility, then the surrogate lacked the authority to bind the patient to arbitration. Id. In sum, the rule after Hinyub is that the surrogate can bind the patient to arbitration only if the arbitration clause is a necessary, non-negotiable element of the entire admission contract. If the arbitration clause is not a required part of the contract, then the surrogate cannot bind the patient to arbitration. While I do not agree with this current state of the law, it nevertheless is the law.

¶ 55. Here, the arbitration clause was not a required provision of the contract. The plaintiffs submitted an affidavit from an administrator at the Covenant Nursing Home who stated that the patient would have been admitted to the facility even if the arbitration agreement had been refused. The administrator stated that Covenant never refused patients based on a refusal to consent to the arbitration provision. The affiant stated that the surrogate could have opted out of the arbitration clause without consequence. This case should simply be decided based on Hi-nyub. Hence, I concur in result only.

      . Covenant Health Rehab. of Picayune, L.P. v. Brown, 949 So.2d 732, 735-42 (Miss.2007); Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 521-25 (Miss.2005). See also Trinity Mission Health & Rehab. of Clinton v. Estate of Scott,-So.3d-,-, 2008 WL 73682, at **4-5 (Miss.Ct.App. Jan.8, 2008); Trinity Mission of Clinton v. Barber, 988 So.2d 910, 922-24 (Miss.Ct.App.2007); Covenant Health & Rehab. of Picayune, LP v. Estate of Lambert, 984 So.2d 283, 286-89 (Miss.Ct.App.2006).

      . Brown, 949 So.2d at 742-48 (Diaz, J., dissenting, joined by Graves, J.; Randolph, J., concurring in part and dissenting in part, joined by Waller, P.J. and Diaz, J., in part); Stephens, 911 So.2d at 526. See also Scott, - So.3d at -, 2008 WL 73682, at *6; Barber, 988 So.2d at 924-26; Lambert, 984 So.2d at 289.

      . Other issues briefed include: consideration, fraud in the inducement, third-party beneficiary, equitable estoppel, apparent authority, agency, the definition of "health care decision," and the required showing of incapacity.

      . The admissions agreements in Stephens and Brown are nearly identical to the one here. The arbitration clauses in those cases are exactly the same as the one here. In Stephens, as in this case, one agreement was signed upon admission, and another was signed later. Brown, 949 So.2d at 737-740, 746; Stephens, 911 So.2d at 510-11, 522-25.

      .E7 sought to limit the liability of the nursing home to the lesser of $50,000 or the number of days the patient resided at the facility multiplied by the daily room rate. (Note — nothing we do here means that contracting parties cannot agree on liquidated damages. However, contracts intended to exculpate a party of liability for its own negligence draw rigid judicial scrutiny. See Turnbough v. Ladner, 754 So.2d 467, 469 (Miss.1999)). E8 is a-bilateral waiver of punitive damages. Although E8 ostensibly is bilateral, this Court has noted that it is one-sided in practical effect, as the patient is much more likely to be justified in seeking punitive damages. Stephens, 911 So.2d at 523-24.

      .C5 requires the patient and responsible party to hold the facility harmless when an injury could have been avoided with private-duty care. C5 also requires the patient and responsible party to indemnify and hold the facility harmless "from and against claims, loss, costs and expenses incurred as a result of claims against the facility ... unless such claim, loss, cost and expense is the result of the Facility's willful misconduct.” C8 requires the patient and responsible party to hold the facility harmless for criminal acts, whether committed by employees or others. E5 sets preconditions for arbitration, requiring the patient and responsible party to submit to a grievance procedure, while the facility could go to court with its disputes. E6 requires mediation, with the parties to share costs equally. E12 awards all costs to the other party if a party fails lo comply with the arbitration procedures. El6 attempts to institute a one-year statute of limitations. The last sentence of the arbitration agreement refers to other unconscionable provisions, E7 and E8.

      . D4 is a survival clause, allowing eleven listed clauses to survive the termination of the agreement and the death of any party. El3 is a bilateral waiver of a right to a "jural” trial.

      . E14 sets a $3.00/page charge for copies requested by parties.

      . A5 awards Covenant Health all costs (including attorney fees and other costs of litigation ) if an account becomes delinquent.

      . The court also found that the agreement was in violation of a Florida statute, the Nursing Home Resident’s Rights Act, a remedial statute enacted after an investigation showed substantial abuse of nursing home residents. Id. at 62-63. The court also found the agreement procedurally unconscionable, as Florida, unlike Mississippi, will not hold an agreement unenforceable unless both types of unconscionability are proven. Id. at 62.

      . AAA Healthcare Policy Statement, http:// www.adr.org/sp.asp?id=32192 (last visited July 31, 2009).

      . Archive of AAA Healthcare Policy Statement, http://web.archive.org/web/2006 0930010034/hltp://www.adr.org/sp.asp?id = 21975 (last visited July 31, 2009).

      . The nursing-home administrator submitted an affidavit in which she acknowledged the signatures on the Admissions Agreement as those of Mittie Moulds as resident and James Braddock as responsible party. However, Braddock's affidavit states that Moulds was not present, and that she would have been unable to read or understand the contract, if it had been presented to her. In I-Iinyub, it was undisputed that the patient did not sign the arbitration agreement, and that his daughter had signed it for him, along with his other admissions documents. Id. at 213.

      . The clauses that survive contract termination are C5, E5, E6, E7, E8, E9, El2, El3, El4, El5, and F. Each of these is described above in one or more of the following sections: already declared unconscionable, viola-tive of statute, acknowledged unenforceable, or questionable.