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Wrongful Death Action Cannot Be Limited By Arbitration Agreement Between Decedent and Defendant, But Nursing Home Care Act Claim Can


As part of a nursing home admission process, a woman signed an arbitration agreement with a nursing home operator. Another woman signed an identical arbitration agreement as the nursing home resident’s legal representative. While the woman resided in the nursing home she suffered injuries and died. The woman who signed as the nursing home resident’s legal representative filed a claim under the Nursing Home Care Act for the injuries the resident suffered. This claim passed to the resident’s heirs via the Survival Act. Another claim was filed for wrongful death.

 

The defendant filed a motion to compel arbitration that the trial court denied. The appellate court affirmed the trial court, holding that the arbitration agreement is unenforceable based on a lack of mutuality of obligation, and that, regardless of the enforceability of the arbitration agreement, the wrongful death claim is not subject to arbitration.

 

The Supreme Court of Illinois affirmed in part and reversed in part the judgment of the appellate court, and remanded to the trial court for further proceedings. The court held that the claim under the Nursing Home Care Act pursuant to the Survival Act could be limited via an arbitration agreement between the special representative of the nursing home resident’s estate acting as the resident’s legal representative and the operator of the nursing home.  The court reasoned that the claim had already accrued to the resident prior to her death and was being brought for the benefit of the resident’s estate.

 

However, the court concluded that the wrongful death action was not an asset of the nursing home resident's estate. Therefore, it could not be limited via an arbitration agreement between the resident and the nursing home operator, nor via an arbitration agreement between the special representative of the nursing home resident’s estate acting as the resident’s legal representative and the operator of the nursing home. The special representative was not individually a party to the arbitration agreements. With respect to the wrongful death claim, the special representative was not acting in the resident's stead as it did not accrue until the resident's death. Instead, the special representative was merely a nominal party, effectively filing suit as a statutory trustee on behalf of the resident's next of kin.

 

See: Carter v. SSC Odin Operating Co., LLC, 2012 IL 113204 (Ill., September 20, 2012) (not designated for publication).

 

 

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