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Are Wrongful Death Claims Subject to Arbitration Clauses Signed by The Decedent Under Missouri Law?

April 17th, 2008 by John Campbell

Summary
Recently, in Lawrence v. Beverly Manor, No. WD 67920, 2008 WL 731561 (Mo. Ct. App. Mar. 18, 2008), the  Missouri Court of Appeals for the Western District relied on a recent Missouri Supreme Court decision in holding that wrongful death claims are derivative, potentially subjecting them to arbitration if a clause was signed by the decedent.  However, the Court affirmed denial of a motion to compel arbitration, reasoning that the new pronouncement of the Missouri Supreme Court regarding the derivative nature of arbitration clauses did not apply retroactively.  The decision does not provide a clear answer to the underlying question of whether or not future filed wrongful death actions are likely to be subject to arbitration.  One judge held that the recent Supreme Court stated that wrongful death actions are derivative only in dictum and was not binding law.  Another judge held that the Supreme Court decision applied only to amended petitions. 

Discussion
The Missouri Court of Appeals, Western District, was faced with a difficult task recently.  After a nursing home (Beverly Manor) was alleged to have neglected Mr. Lawrence’s mother, resulting in her death, Mr. Lawrence filed a wrongful death action against Beverly Manor.  Beverly Manor moved to compel arbitration, arguing that the arbitration clause signed by Ms. Lawrence was binding upon her son, who was not a party to the agreement.  The Court was required to determine whether or not a wrongful death claim is derivative, and whether, on the facts, arbitration should be compelled.  The Court concluded that 1) wrongful death claims are now derivative in Missouri; and 2) the derivative nature of wrongful death claims is new law pronounced by the Missouri Supreme Court which should not be applied retroactively.  

Whether or not a wrongful death claim is derivative would have been an easy question prior to January 5, 2007.  A long line of cases in Missouri held that a wrongful death action was a new and independent cause of action separate and distinct from any cause of action the deceased party would have had while living.  See, e.g., O’Grady v. Brown, 654 N.W.2d 904, 910 (Mo. 1983) (holding that wrongful death actions are a new cause of action not belonging to the deceased); Finney v. Nat’l Healthcare Corp., 193 S.W.3d 393, 395 (Mo. Ct. App. 1994) (holding that “[t]he wrongful death claim does not belong to the deceased or even to a decedent’s estate”).

However, in State ex rel. Burns v. Whittington, 219 S.W.3d 224, 255 (Mo. 2007) the Missouri Supreme Court held that “[a]lthough death is the necessary final event in a wrongful death claim, the cause of action is derivative . . .” because it is based on the underlying wrongdoing that gave rise to the injury.”  As such, the Court of Appeals determined that it was bound to follow the holding; however, it made clear its reservations.  It referred to applying Burns as producing “untenable” results, and in explanation for its holding, stated only “Burns held that a wrongful death claim is a derivative action, and we dutifully follow.”

The Court then considered whether to retroactively apply the Burns rule for wrongful death claims to Lawrence’s claims. According to the Court, because Burns involved a “clear departure” from previous law, and because well-settled law before Burns suggested to the parties that wrongful death claims were not derivative, fairness dictated that Lawrence’s claims should be construed as the law existed when the agreement was entered.

The Court’s three judges unanimously held that Lawrence’s particular claims were not arbitrable under the circumstances.  Two judges filed opinions concurring only in the result. One judge opined that Burns was distinguishable as applying only to amended wrongful death claims. Another judge believed that the characterization of wrongful death claims in Burns was dictum unnecessary to its disposition and not binding on the Court.

My Thoughts
A question: Can it possibly be that people, when they entrust themselves to a health facility for care, are reasonably expecting that their children or grandchildren will have to arbitrate the very events alleged to have given rise to their own death?  The potential implications of Lawrence are troubling, and serve as another example of the danger of pre-dispute, mandatory, binding arbitration clauses.  I urge anyone who reads this post to support the Arbitration Fairness Act, designed  to remove arbitration clauses from a number of contracts.  Numerous organizations have supported the bill, embracing the phrase “Give Us Back Our Rights” to summarize their position.  (Click here to read an article about the dangers of pre-dispute binding mandatory arbitration or here to read the text of the bill.)   We must make an effort to keep our courts open and accessible to all people. You can easily write your representative officials by clicking here and sending a letter.  Please do so today.

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