Under Missouri Law, Wrongful Death Claims Now Arbitrable Under Decedent's Arbitration Agreement

According to the Missouri Court of Appeals, a recent decision of the Missouri Supreme Court has "unquestionably changed Missouri's wrongful death law," characterizing such claims as derivative and therefore subject to an arbitration agreement binding on the decedent.

In Lawrence v. Beverly Manor, No. WD 67920, 2008 WL 731561 (Mo. Ct. App. Mar. 18, 2008), Lawrence filed a wrongful death action against Beverly Manor after his mother died while in the facility's care. Beverly Manor moved to compel arbitration of the claims, alleging that Lawrence was bound to arbitrate his claims pursuant to an arbitration agreement signed by his mother's representative at admission. Beverly Manor characterized the wrongful death claim as derivative, and therefore, arbitrable.

The trial court denied the motion to compel. It held that Lawrence's wrongful death claims were not derivative under Missouri law, but were new and independent claims that were not arbitrable under the agreement.

On appeal, the Court noted that the trial court's characterization of wrongful death claims as derivative was correct at the time the motion to compel was denied. 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, the Court noted a recent change in the characterization of wrongful death claims in Missouri. In State ex rel. Burns v. Whittington, 219 S.W.3d 224, 255 (Mo. 2007), issued after the trial court's denial of Beverly Manor's motion to compel, 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 of the underlying tortious acts that caused the fatal injury."

To the Court, this holding "unquestionably changed Missouri's wrongful death law," and bound the Court to find wrongful death claims, such as Lawrence's, to be derivative. While Burns involved an amended petition rather than a new petition alleging wrongful death, the Court refused to distinguish Burns on those grounds or categorize its pronouncement as mere dictum.

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.

While 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.

The characterization of wrongful death claims as derivative by the Missouri Supreme Court in Burns is consistent with the majority view among states' highest courts considering this question in the context of claim arbitrability. Compare Cleveland v. Mann, 942 So.2d 108 (Miss. 2006) (patient may bind non-signatory beneficiaries to arbitrate wrongful death claims), Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661 (Ala. 2004) (arbitration agreements signed by residents through their agents may bind executors of residents' estates), and Allen v. Pacheco, 71 P.3d 375 (Colo. 2003) (arbitration in HMO contract with member bound heirs to arbitrate wrongful death claims), with Peters v. Columbus Steel Castings Co., 873 N.E.2d 1258 (Ohio 2007) (wrongful death claims are independent of decedent's claims and therefore not arbitrable).