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Rejecting unambiguous language from the Missouri Supreme Court declaring that wrongful death claims are derivative and not independent causes of action, the Missouri Court of Appeals has affirmed a trial court order denying a health care provider's motion to compel arbitration of wrongful death claims.
In Sennett v. National Healthcare Corp., No. 28825, 2008 WL 4334615 ( Mo. Ct. App. Sept. 24, 2008), Schmeets was admitted to NHC's nursing home facility. As part of the admission paperwork, Schmeets' son Sennett executed a broadly-worded arbitration agreement covering all claims arising out of the patient-facility relationship.
After Schmeets died at NHC's facility, Sennett and his siblings (the Sennetts) filed a wrongful death suit against NHC. NHC moved to compel arbitration. The trial court denied the motion, holding that the siblings were not parties to the agreement and were not bound to arbitrate their claims.
On appeal, NHC argued that the Sennetts were bound to arbitrate their wrongful death claims because they were derivative under Missouri law. In light of a recent decision by the Missouri Supreme Court, NHC maintained that wrongful death claims were arbitrable, even when the claims had not arisen at the time the arbitration agreement was entered on behalf of the decedent. See State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 ( Mo. 2007).
The Court disagreed that Burns changed Missouri law regarding the derivative nature of wrongful death claims. It noted NHC's reliance on the interpretation of Burns in Lawrence v. Beverly Manor, No. WD 67920, 2008 WL 731561 ( Mo. Ct. App. June 24, 2008), for the proposition that under Missouri law, wrongful claims are now derivative and thus subject to an arbitration agreement binding on the decedent.
In denying that such a change had been articulated in Burns, the Court first characterized the Lawrence holding as "offering three disparate rationales" for ordering arbitration of the wrongful death claim. While one judge in Lawrence found that Burns unquestionably characterized wrongful death suits as derivative, another judge opined that Burns was distinguishable as applying only to amended wrongful death claims. Still another Lawrence judge believed that the characterization of wrongful death claims in Burns was dictum unnecessary to its disposition.
Engaging in its own interpretation of Burns, the Court decided that the Missouri Supreme Court's statement that a wrongful death "cause of action is derivative of the underlying tortious acts that caused the fatal injury" was not "necessary to the determination in Burns." Because the Court found it "historically unlikely… that the Supreme Court of Missouri would overturn in excess of one hundred years of wrongful death case law with a single sentence fragment buried in a large paragraph in a venue case based on a writ of mandamus," the Court found the declaration regarding wrongful death suits in Burns to be dicta and declined to follow it.
Instead, the Court followed pre-Burns wrongful death jurisprudence in holding that such claims asserted by survivors were independent causes of action not subject to a pre-dispute arbitration agreement entered into by the decedent. See, e.g., Finney v. Nat'l Healthcare Corp., 193 S.W.2d 393, 394-95 (Mo. Ct. App. 2006). Finding the circumstances surrounding Schmeets' admission and arbitration agreement indistinguishable from those in Finney, the Court affirmed the order denying arbitration of the Sennett siblings' wrongful death claims.
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