Sierra Tucson, Inc. v.Bergin, __Ariz. Adv. Rep. __ No. 2 CA-SA 2016-0017 (App. Div. II, May 11, 2016) (J. Howard)

WRONGFUL DEATH CLAIMS NOT DERIVATIVE OF CLAIMS DECEDENT MIGHT HAVE/CONTRACT NOT BINDING ON THOSE NOT PARTY TO CONTRACT

Plaintiffs' decedent allegedly committed suicide while a patient at Sierra Tucson for treatment of suicidal tendencies.  When he entered the facility and again later when he was transferred to a different treatment house at the facility, he signed a contract which specified that Pinal County would be the agreed upon venue should any legal dispute arise.  Sierra Tucson is physically located in both Pima and Pinal County. Plaintiffs sued on their own behalf and on behalf of the estate for negligence, wrongful death and consumer fraud in Pima County.  Defendant moved to change venue to Pinal County based upon the contractual venue provision and ARS sec. 12-406(B)(3). The trial court denied the motion finding the venue contract provision was not binding on the plaintiffs' decedent. The defendants brought this special action. The Arizona Court of Appeals accepted jurisdiction on this case of first impression and denied the relief requested.

In Duenas v. Life Care Centers, Inc., 236 Ariz. 130, 336 P. 3d 763 (App. 2014) the court of appeals held that a contractual agreement to arbitrate legal claims signed by a decedent who died in a nursing home was not binding on his survivors.  Consistent with Duenas, the court found three factors to mandate upholding the trial court here.

1. Plaintiffs were not party to the contract providing a venue selection clause;
2. A wrongful death  claim is not derivative of any claim the decedent might have and
3. The plaintiffs' right to choose venue should not be “lightly disturbed.”

The court further found that a Consumer Fraud Act claim brought as part of a wrongful death action where it is alleged the consumer fraud was a cause of the death is likewise not derivative of any CFA claim the decedent might have.