Arbitrability of Wrongful Death Cases

Well, the Florida arbitration blog has another interesting post today. It concerns a Missouri case where a court refused to compel arbitration of a wrongful death case against a nursing home. According to that case, since the Missouri wrongful death statute creates a new cause of action in favor of the decedent’s statutory beneficiaries, and it is not a cause of action that the decedent could have had prior to his/her death, the statutory beneficiaries could not be forced to arbitrate their wrongful death claim against a nursing home, notwithstanding the fact that the decedent signed the nursing home admission form, which in turn contained an arbitration clause. (link to a .pdf of the opinion here)

In Texas, of course, we also have a wrongful death statute which sets forth statutory beneficiaries who have the claim; Texas wrongful death claims, in other words, do not belong to the estate of the decedent. Therefore, the Missouri court’s logic ought to apply here in Texas as well. Simply put, since a living person cannot have a wrongful death claim, that person cannot agree to arbitrate one. The decedent’s survival claims would be a different issue, of course, since those belong to the estate. I suppose we could have a situation where the wrongful death claims are tried but the survival claims must be arbitrated (assuming it’s an FAA case and the TAA’s strict personal injury arbitration requirements are preempted). Or we could have a situation where nursing homes require that potential residents round up all their potential wrongful death beneficiaries (in Texas, parents, spouse and children of the deceased) and make them sign the arbitration clause before admission.

It’s an interesting issue, and I do not know of a Texas case specifically addressing it, although I suppose if I had a quiet moment today I could actually look.

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