Arbitration Clause in Wrongful Death Action and APSA Claim

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Estate of DeCamacho v. La Solana Care & RTehab. Inc., __Az. Adv. Rep. __ 2 CA-CV 2013-0086 (Ct. App. Div. II, January 14, 2014) (J. Vasquez)

ARBITRATION CLAUSE IN NURSING HOME CONTRACT IS BINDING ON VULNERABLE ADULT CLAIMS BUT, AS WRITTEN, NOT WRONGFUL DEATH CLAIMS

Plaintiffs' placed their decedent mother in the defendant nursing home and were required to sign a contract with a mandatory arbitration clause on behalf of mom. Three years later mom dies at the home after a fall. Plaintiffs then sue for wrongful death and violation of the Arizona Adult Protective Services Act (APSA). Defendants are granted dismissal by the trial court arguing plaintiffs were required to arbitrate these claims and had no right to sue. The Arizona Court of Appeals reversed in part and remanded.

The court of appeals rejected plaintiffs' argument that there was no binding contract because the document was not dated. The court found that performance under the terms of the contract for three years cured any alleged defects in the contract clearly demonstrating the parties intent to be bound by the agreement despite the fact there was no date as to when it was to take effect.

The court then addressed the scope of the arbitration clause focusing particularly on this language: "[a]ll parties to this contract" agree to arbitrate "any such dispute." The court found the contract unambiguous and binding on the ASPSA claim because all claims under this statute were derivative of the plaintiffs' decedent who was the "party to the contract." Arizona law favors arbitration where there is an unambiguous binding contract.

However, the claims under the wrongful death statute in Arizona are personal to the decedent's beneficiaries. " Loss of love, companionship, affection and society" are not derivative of the decedent and therefore not subject to the arbitration clause as written in this contract. Significantly the court declined to rule on whether plaintiffs' decedents could be bound by an arbitration clause in a contract to which they were not a party (third party beneficiary?) despite the language of the contract.

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