Carter v. SSC Odin Operating Co. ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Carter v. SSC Odin Operating Co., 2011 IL App (5th) 070392-BAppellate Court SUE CARTER, Special Administrator of the Estate of Joyce Gott,
Caption Deceased, Plaintiff-Appellee, v. SSC ODIN OPERATING COMPANY,
LLC, d/b/a/ Odin Healthcare Center, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-07-0392
Filed August 18, 2011
Rehearing denied September 16, 2011
Held In a wrongful death action arising from the death of a resident of
(Note: This syllabus defendant’s nursing home, the trial court properly denied defendant’s
constitutes no part of motion to compel arbitration pursuant to the agreements signed by
the opinion of the court decedent and plaintiff as her representative, since the arbitration
but has been prepared agreement was unenforceable for a lack of mutuality and on the ground
by the Reporter of that it did not apply to plaintiff’s wrongful death claim.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Marion County, No. 06-L-75; the Hon.
Review David L. Sauer, Judge, presiding.
Judgment Affirmed.
Counsel on W. Jeffrey Muskopf and Mark R. Feldhaus, both of Lashly & Baer, P.C.,
Appeal of St. Louis Missouri, and Malcolm J. Harkins III and James F. Segroves,
both of Proskauer Rose LLP, of Washington D.C., for appellant.
Staci M. Yandle, of Law Offices of Staci M. Yandle, LLC, of O’Fallon,
for appellee.
Panel JUSTICE STEWART delivered the judgment of the court, with opinion.
Justice Goldenhersh concurred in the judgment and opinion.
Justice Spomer concurred in part and dissented in part, with opinion.
OPINION
¶1 The plaintiff, Sue Carter, as the special administrator of the estate of Joyce Gott,
deceased, filed a complaint against the defendant, SSC Odin Operating Company, LLC,
doing business as Odin Healthcare Center, alleging that the defendant negligently provided
nursing home services to Joyce that resulted in injuries to Joyce and contributed to the cause
of her death. The defendant filed a motion to compel arbitration of the claim pursuant to two
signed arbitration agreements. The circuit court denied the defendant’s motion to compel
arbitration. Initially, we affirmed the circuit court’s order, holding that the arbitration
agreements were void for being against the public policy set forth in the antiwaiver
provisions of the Nursing Home Care Act (210 ILCS 45/3-606, 3-607 (West 2006)).1 Carter
v. SSC Odin Operating Co., 381 Ill. App. 3d 717, 885 N.E.2d 1204 (2008). The supreme
court reversed, holding that the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2000))
preempted the Nursing Home Care Act. Carter v. SSC Odin Operating Co., 237 Ill. 2d 30,
927 N.E.2d 1207 (2010). The court remanded the cause to us for consideration of the other
issues raised by the parties that we did not previously address, including whether the parties’
arbitration agreements evidence a transaction “involving [interstate] commerce” within the
meaning of section 2 of the Federal Arbitration Act (9 U.S.C. § 2 (2000)), whether the
1
Section 3-606 of the Nursing Home Care Act provides, “Any waiver by a resident or his
legal representative of the right to commence an action under Sections 3-601 through 3-607,
whether oral or in writing, shall be null and void, and without legal force or effect.” 210 ILCS
45/3-606 (West 2006).
Section 3-607 of the Nursing Home Care Act provides, “Any party to an action brought
under Sections 3-601 through 3-607 shall be entitled to a trial by jury and any waiver of the right
to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be
null and void, and without legal force or effect.” 210 ILCS 45/3-607 (West 2006).
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arbitration agreements are void for a lack of mutuality, and whether the arbitration
agreements apply to the plaintiff’s claim under the Wrongful Death Act (740 ILCS 180/0.01
et seq. (West 2006)). After consideration of the additional issues raised by the parties, we
again affirm the order of the circuit court.
¶2 BACKGROUND
¶3 The defendant operates a nursing home facility in Odin, Illinois. The plaintiff alleged in
her complaint that Joyce was admitted to the facility from May 20, 2005, through July 29,
2005, and again from January 12, 2006, until her death on January 31, 2006. At the
beginning of Joyce’s first stay at the defendant’s facility, the plaintiff, as Joyce’s “legal
representative,” executed a written “Health Care Arbitration Agreement” with the defendant.
This agreement is dated May 20, 2005. Six days after Joyce’s second admission to the
defendant’s facility, Joyce herself signed a second written “Health Care Arbitration
Agreement” with the defendant, the terms of which are identical to those of the first
agreement. This second agreement is dated January 18, 2006. The plaintiff’s signature does
not appear on the second arbitration agreement.
¶4 Both arbitration agreements state that they “shall not apply to any dispute where the
amount in controversy is less than two hundred thousand ($200,000.00) dollars.” The
agreements further provide as follows:
“In consideration of this binding Agreement, the Facility and the Resident
acknowledge that they are agreeing to a mutual arbitration, regardless of which party is
making a claim; that the Facility agrees to pay the fees of the arbitrators and up to
$5,000.00 of reasonable and appropriate attorney’s fees and costs for the Resident in any
claims against the Facility; that the Resident shall have the right to choose the location
of any arbitration under this Agreement; that the parties will mutually benefit from the
speedy and efficient resolution of disputes which arbitration is expected to provide; and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by all parties hereto. Intending to be legally bound, the parties expressly
agree that this Agreement will be governed by the Federal Arbitration Act, 9 U.S.C. § 1-
16 (‘FAA’). It is the express intent of the parties to have a binding arbitration agreement
and the parties further agree as follows:
The parties agree that they shall submit to binding arbitration all disputes against each
other and their representatives, affiliates, governing bodies, agents and employees arising
out of or in any way related or connected to the Admission Agreement and all matters
related thereto including matters involving the Resident’s stay and care provided at the
Facility, including but not limited to any disputes concerning alleged personal injury to
the Resident caused by improper or inadequate care including allegations of medical
malpractice; any disputes concerning whether any statutory provisions relating to the
Resident’s rights under Illinois law were violated; any disputes relating to the payment
or non-payment for the Resident’s care and stay at the Facility; and any other dispute
under state or Federal law based on contract, tort, statute (including any deceptive trade
practices and consumer protection statutes), warranty or any alleged breach, default,
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negligence, wantonness, fraud, misrepresentation or suppression of fact or inducement.”
¶5 The agreements further state as follows: “Each party agrees to waive the right to a trial,
before a judge or jury, for all disputes, including those at law or in equity, subject to binding
arbitration under this Agreement.” The agreements state that the parties intend for the
agreements to bind “the Resident, his/her successors, assigns, agents, attorneys, insurers,
heirs, trustees, and representatives, including the personal representative or executor of his
or her estate; and the Legal Representative, his/her successors, assigns, agents, attorneys,
insurers, heirs, trustees, and representatives or executor of his or her estate.”
¶6 Joyce died on January 31, 2006, during her second stay at the defendant’s nursing home
facility. On November 22, 2006, the plaintiff filed a two-count complaint against the
defendant. Count I of the complaint alleges a statutory survival action pursuant to the Probate
Act of 1975 (755 ILCS 5/27-6 (West 2006)) and the Nursing Home Care Act (210 ILCS
45/1-101 et seq. (West 2006)) (the survival action). Count II alleges a statutory action under
the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)) (the wrongful death
action). In both counts, the plaintiff alleged that the defendant had failed to provide Joyce
with adequate care. In the survival action, the plaintiff alleged that the defendant’s acts
and/or omissions resulted in Joyce suffering pain, emotional distress, and mental anguish
between January 12, 2006, and January 31, 2006. In the wrongful death action, the plaintiff
alleged that the defendant’s acts and/or omissions resulted in Joyce’s death and that,
therefore, her heirs were deprived of her companionship and society.
¶7 In its answer to the complaint, the defendant raised the arbitration agreements as an
affirmative defense to the claims. The defendant also filed a motion to compel arbitration
based on the arbitration agreements. The plaintiff contested the motion to compel arbitration,
arguing that the agreements are void for being in violation of Illinois public policy, as set
forth in sections 3-606 and 3-607 of the Nursing Home Care Act (210 ILCS 45/3-606, 3-607
(West 2006)), that the arbitration agreements are void due to a lack of mutuality, that the
contract does not fall under the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2000)) because
the agreements are not contracts evidencing a transaction involving interstate commerce, and
that the arbitration agreements did not apply to the plaintiff’s claim under the Wrongful
Death Act (740 ILCS 180/0.01 et seq. (West 2006)).
¶8 On June 20, 2007, the circuit court entered an order denying the defendant’s motion to
compel arbitration. With regard to the survival action, the circuit court concluded that the
agreements were not enforceable because they were “in direct violation of emphatically
stated public policy and for lack of mutuality” and because, with regard to interstate
commerce, “in the aggregate the economic activity does not represent general practice
subject to federal control.” With regard to the wrongful death action, the circuit court ruled
that although Joyce was bound by the agreements with regard to her own claims, a plaintiff
bringing a wrongful death claim on behalf of survivors was not bound by the agreements.
The defendant filed a timely notice of interlocutory appeal.
¶9 We affirmed the circuit court’s order, holding that the arbitration agreements were void
for being against the public policy set forth in the antiwaiver provisions of the Nursing Home
Care Act (210 ILCS 45/3-606, 3-607 (West 2006)). Carter v. SSC Odin Operating Co., 381
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Ill. App. 3d 717, 885 N.E.2d 1204 (2008). In our decision, we held that the Federal
Arbitration Act did not preempt the Nursing Home Care Act. Because we affirmed the circuit
court’s order pursuant to the antiwaiver provisions of the Nursing Home Care Act, we did
not address the alternative issues raised by the parties.
¶ 10 The defendant appealed to the supreme court, and the supreme court reversed our
decision, holding that the Federal Arbitration Act preempted the Nursing Home Care Act.
Carter v. SSC Odin Operating Co., 237 Ill. 2d 30, 927 N.E.2d 1207 (2010). The court
remanded the cause to us for consideration of the other issues raised by the parties that we
did not previously address, including whether the arbitration agreements evidence a
transaction “involving [interstate] commerce” within the meaning of section 2 of the Federal
Arbitration Act (9 U.S.C. § 2 (2000)), whether the arbitration agreements are void for a lack
of mutuality, and whether the arbitration agreements apply to the plaintiff’s claim under the
Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)). We now address each of these
additional issues in turn.
¶ 11 STANDARD OF REVIEW
¶ 12 An order to compel arbitration is injunctive in nature and is appealable under Illinois
Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010). Peach v. CIM Insurance Corp., 352 Ill.
App. 3d 691, 694, 816 N.E.2d 668, 671 (2004). Generally, an order granting or denying a
motion to compel arbitration is reviewed under the abuse-of-discretion standard. Peach, 352
Ill. App. 3d at 694, 816 N.E.2d at 671. However, in an appeal from the denial of a motion
to compel arbitration without an evidentiary hearing, the standard of review is de novo.
Ragan v. AT&T Corp., 355 Ill. App. 3d 1143, 1147, 824 N.E.2d 1183, 1186-87 (2005). In
the present case, there was no evidentiary hearing. Accordingly, we will review the trial
court’s ruling de novo. This court may affirm the judgment of a trial court on any basis
warranted by the record. Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 418,
869 N.E.2d 195, 206 (2007).
¶ 13 DISCUSSION
¶ 14 I
¶ 15 Contract Evidencing a Transaction Involving Interstate Commerce
¶ 16 The first issue we address is whether the arbitration agreements are contracts evidencing
a transaction involving interstate commerce. Section 2 of the Federal Arbitration Act “is a
congressional declaration of a liberal federal policy favoring arbitration agreements,
notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone
Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983). The United States
Supreme Court has noted that the Federal Arbitration Act was enacted pursuant to
Congress’s substantive power to regulate interstate commerce and admiralty. Prima Paint
Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 405 (1967). Section 2 of the Federal
Arbitration Act applies only to “any maritime transaction or a contract evidencing a
transaction involving commerce.” 9 U.S.C. § 2 (2000). “Section 2 ‘embodies a clear federal
policy of requiring arbitration unless the agreement to arbitrate is not part of a [maritime
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transaction or a] contract evidencing interstate commerce,’ in which case section 2 would
simply not apply ***.” Fosler v. Midwest Care Center II, Inc., 398 Ill. App. 3d 563, 572, 928
N.E.2d 1, 10 (2009) (quoting Perry v. Thomas, 482 U.S. 483, 489 (1987)). The words
“involving commerce” in section 2 of the Federal Arbitration Act “signal[ ] an intent to
exercise Congress’ commerce power to the full.” Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. 265, 277 (1995).
¶ 17 We believe that the record establishes that the arbitration agreements in the present case
evidence a transaction involving interstate commerce. The defendant’s memorandum of law
in support of its motion to compel arbitration included the affidavit of the administrator of
the defendant’s nursing home facility in Odin, Illinois. The administrator stated in the
affidavit that Joyce’s nursing care was paid for by the federal Medicare program. The
defendant made its request for payment for Joyce’s care to Mutual of Omaha, which is “a
fiscal intermediary that processes Medicare claims for the federal government.” The affidavit
states that Mutual of Omaha’s office for processing Medicare payments to the defendant is
located in Nebraska. Mutual of Omaha processed the defendant’s Medicare request, and the
defendant received $8,667.99 in Medicare payments for Joyce’s care at the defendant’s
facility. The affidavit further states that for the two-year period beginning in 2005 and ending
in 2006, the defendant received more than $9.3 million in Medicare and Medicaid funds for
nursing care provided to various patients at the defendant’s Odin nursing home facility.
¶ 18 The affidavit further establishes that the defendant received various supplies, including
food, oxygen tanks, beds, maintenance, and office supplies, from several different vendors
that are located in Missouri, Wisconsin, Minnesota, Nebraska, Kentucky, Georgia, Texas,
Florida, Colorado, and California. The defendant provides its residents with therapy services
from companies situated in Pennsylvania, Tennessee, Florida, Nevada, and Oregon, and its
payroll is processed in an office located in Texas.
¶ 19 In Fosler, the court held that an arbitration agreement contained within a nursing home
care agreement evidenced a transaction involving interstate commerce where the nursing
home facility received Medicare and Medicaid payments for services provided to
approximately 15% of its residents, received out-of-state insurance payments on behalf of
the plaintiff, and purchased medical equipment, medical supplies, and over-the-counter
medication from vendors outside Illinois. Fosler, 398 Ill. App. 3d at 578, 928 N.E.2d at 14-
15. We agree with the Fosler court’s analysis and hold that the arbitration agreements in the
present case evidence a transaction involving interstate commerce.
¶ 20 Courts from other jurisdictions have also considered similar evidence and found it
sufficient to satisfy the interstate commerce requirement of the Federal Arbitration Act. In
Triad Health Management of Georgia, III, LLC v. Johnson, 679 S.E.2d 785, 787-88 (Ga. Ct.
App. 2009), the Court of Appeals of Georgia held that evidence of Medicaid and Medicare
payments and out-of-state supply purchases and insurance providers was sufficient to show
a contract involving interstate commerce. In Estate of Ruszala v. Brookdale Living
Communities, Inc., 1 A.3d 806, 817 (N.J. Super. Ct. App. Div. 2010), the Superior Court of
New Jersey found the facilities’ purchases of out-of-state supplies, food, medicine, and
equipment left “little doubt that the residency agreements at issue *** involve interstate
commerce.” See also Vicksburg Partners, L.P. v. Stephens, 2004-CA-01345-SCT (¶ 17)
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(Miss. 2005) (a nursing home admissions agreement affected interstate commerce where the
nursing home facility procured goods and services from out-of-state vendors, took in out-of-
state residents, and received payments from out-of-state insurance carriers, including
Medicare and Medicaid programs).
¶ 21 “Congress’ Commerce Clause power ‘may be exercised in individual cases without
showing any specific effect upon interstate commerce’ if in the aggregate the economic
activity in question would represent ‘a general practice . . . subject to federal control.’ ”
Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57 (2003) (per curiam) (quoting Mandeville
Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948)). The nursing
home facility in the present case cannot function without the supplies and services procured
from out-of-state merchants and businesses. It collects a substantial amount of revenue from
out-of-state insurance carriers, including Medicaid and Medicare. The facility’s aggregate
economic activities clearly have an effect upon interstate commerce, rendering the arbitration
agreements in the present case subject to the Federal Arbitration Act.
¶ 22 II
¶ 23 Mutuality
¶ 24 Even though the arbitration agreements at issue in the present case are contracts
evidencing interstate commerce and are subject to the Federal Arbitration Act, this
conclusion does not end our analysis, because “generally applicable contract defenses, such
as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements
without contravening [the Federal Arbitration Act].” Doctor’s Associates, Inc. v. Casarotto,
517 U.S. 681, 687 (1996). Section 2 of the Federal Arbitration Act allows a party to raise
contract defenses if they are based “upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2 (2000). In the present case, the plaintiff maintains
that the arbitration agreements are void and are not enforceable due to a lack of mutuality.
¶ 25 “In its most elemental sense, the doctrine of mutuality of obligation means that unless
both parties to a contract are bound by its terms, neither is bound.” Schwinder v. Austin Bank
of Chicago, 348 Ill. App. 3d 461, 473, 809 N.E.2d 180, 193 (2004). “ ‘[M]utuality of
obligation in bilateral contracts is but another way of stating that consideration is essential.’ ”
Schwinder, 348 Ill. App. 3d at 473, 809 N.E.2d at 193 (quoting 25 Richard Lord, Williston
on Contracts § 67:42 at 332 (4th ed. 2002)). The parties to a contract do not have to have
identical rights and obligations. Hofmeyer v. Willow Shores Condominium Ass’n, 309 Ill.
App. 3d 380, 385, 722 N.E.2d 311, 315 (1999). “The mutuality requirement is satisfied if
each party has given sufficient consideration for the other’s promise.” Hofmeyer, 309 Ill.
App. 3d at 385, 722 N.E.2d at 315. “Valuable consideration for a contract consists of some
right, interest, profit or benefit accruing to one party *** or undertaken by the other.” City
of Chicago Heights v. Crotty, 287 Ill. App. 3d 883, 886, 679 N.E.2d 412, 414 (1997). If each
party has given adequate consideration for the other’s promise, the contract does not lack
mutuality merely because its obligations appear unequal or because every obligation or right
is not met by an equivalent counterobligation or right in the other party. Gordon v. Bauer,
177 Ill. App. 3d 1073, 532 N.E.2d 855 (1988). “Mutuality becomes a nonissue when
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consideration has otherwise been conferred upon one of the parties.” Carrico v. Delp, 141
Ill. App. 3d 684, 687, 490 N.E.2d 972, 975 (1986). The mutual promises of the parties must
be binding if no other consideration has been transferred. Carrico, 141 Ill. App. 3d at 687,
490 N.E.2d at 975. In other words, “where there is no consideration independent of the
mutuality of obligation[,] then both parties to an agreement are bound or neither is bound.”
Vassilkovska v. Woodfield Nissan, Inc., 358 Ill. App. 3d 20, 28, 830 N.E.2d 619, 625 (2005).
¶ 26 In Vassilkovska, the court considered a stand-alone arbitration agreement and found
mutuality to be lacking where the agreement required only one party to arbitrate. The plaintiff
in Vassilkovska purchased a used automobile from the defendant and signed a sales contract
for the purchase. In addition to the sales contract, the plaintiff also signed a separate
arbitration agreement. In the arbitration agreement, the plaintiff agreed to waive her right to
pursue any cause of action related to the sales agreement. The defendant, in turn, also agreed
to waive the right to pursue any legal action but excluded a long list of potential claims. The
plaintiff filed a complaint against the defendant, alleging fraud in the vehicle purchase, and
the defendant moved to dismiss and compel arbitration pursuant to the arbitration agreement.
The trial court denied the defendant’s motion.
¶ 27 In affirming the trial court’s order, the Vassilkovska court held that the arbitration
agreement was a separate contract from the contract for the sale of the car and required its
own consideration. Vassilkovska, 358 Ill. App. 3d at 25, 830 N.E.2d at 623-24. The court
stated that there must be some detriment to the defendant, or some benefit to the plaintiff,
that was bargained for in exchange for the plaintiff’s promise to arbitrate all disputes.
Vassilkovska, 358 Ill. App. 3d at 26, 830 N.E.2d at 624. The court found that there was no
consideration for the plaintiff’s agreement to arbitrate because the arbitration agreement did
not contain a promise on the defendant’s part to submit claims to arbitration. Vassilkovska,
358 Ill. App. 3d at 27, 830 N.E.2d at 625. Instead, the defendant exempted a host of issues
from arbitration, primarily the issues involving the recoupment of money from the plaintiff.
Vassilkovska, 358 Ill. App. 3d at 28, 830 N.E.2d at 626.
¶ 28 The court stated as follows: “The language of the Arbitration Agreement makes clear that
its purpose is to force the plaintiff to arbitrate any claim she may assert against [the
defendant], while excluding [the defendant] from that same promise.” Vassilkovska, 358 Ill.
App. 3d at 27, 830 N.E.2d at 625. Therefore, the court concluded that the separate arbitration
agreement “itself did not contain consideration for the plaintiff’s promise in the form of a
promise by [the defendant] to submit disputes to arbitration.” Vassilkovska, 358 Ill. App. 3d
at 27, 830 N.E.2d at 625. “[W]here the agreement to arbitrate is itself a separate document,
purporting to bind each party to the arbitration agreement, but subsequently creates a total
exclusion of one party’s obligation to arbitrate, the obligation to arbitrate is illusory and
unenforceable.” Vassilkovska, 358 Ill. App. 3d at 29, 830 N.E.2d at 626.
¶ 29 In the present case, the arbitration agreements are separate and apart from any other
contracts. Accordingly, these stand-alone agreements must be supported by consideration or
mutually binding agreements to arbitrate. The agreements provide that the parties agree to
arbitrate their claims against the other, but the agreements exclude “any dispute where the
amount in controversy is less than two hundred thousand ($200,000.00) dollars.” We agree
with the plaintiff that because the arbitration agreements do not apply to claims less than
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$200,000, the defendant’s promise to arbitrate is illusory. By excluding all claims but those
$200,000 and greater from the requirements of the arbitration agreement, the defendant
essentially ensured that none of its claims against Joyce would have to be arbitrated under
the terms of the agreement. Instead, only Joyce’s claims for personal injuries due to the
defendant’s improper or inadequate care would ever have to be arbitrated under the
agreements. The defendant cannot offer any realistic scenario where the amount in
controversy in disputes relating to the nonpayment of Joyce’s care would equal or exceed
$200,000. The arbitration agreements, therefore, do not contain mutually binding promises
to arbitrate, but only a unilateral obligation on the part of Joyce to arbitrate her personal
injury claims. The agreements, therefore, are not enforceable. See also Gonzalez v. West
Suburban Imports, Inc., 411 F. Supp. 2d 970, 972 (N.D. Ill. 2006) (“[A]lthough the
Agreement purports to bind both parties to arbitrate disputes arising out of the transaction,
the exceptions listed within the definition of ‘dispute’ leaves no claim that Defendant would
be required to submit to arbitration. Thus, without the requisite mutual obligation to arbitrate,
the agreement lacks consideration and is unenforceable.”).
¶ 30 III
¶ 31 Wrongful Death Claim
¶ 32 The plaintiff also argues that the arbitration agreements do not apply to her claim under
the Wrongful Death Act. She correctly notes that she is not a party to the agreements. Joyce
signed one of the arbitration agreements herself, and the plaintiff signed the other agreement
as Joyce’s “Legal Representative.” The plaintiff did not sign the arbitration agreement in her
individual capacity.
¶ 33 While a wrongful death claim is derivative of the action the decedent would have had if
the death had not occurred (Limer v. Lyman, 220 Ill. App. 3d 1036, 1042, 581 N.E.2d 411,
415 (1991)), it is also an independent claim designed to compensate the surviving spouse and
the next of kin for the pecuniary losses resulting from the decedent’s death. In re Estate of
Savio, 388 Ill. App. 3d 242, 247-48, 902 N.E.2d 1113, 1119 (2009). Claims under the
Wrongful Death Act are “those of the individual beneficiaries.” Wilbon v. D.F. Bast Co., 73
Ill. 2d 58, 68, 382 N.E.2d 784, 788 (1978).
¶ 34 In Curto v. Illini Manors, Inc., 405 Ill. App. 3d 888, 940 N.E.2d 229 (2010), the wife of
a deceased nursing home resident brought a wrongful death action against a nursing home.
The wife had signed an arbitration agreement as “Resident Representative.” The court held,
“[The wife’s] signature carries no legally binding weight regarding the arbitration of her
personal claims against the nursing home under the Wrongful Death Act or the Family
Expense Act.” Curto, 405 Ill. App. 3d at 897, 940 N.E.2d at 236 (citing Ward v. National
Healthcare Corp., 275 S.W.3d 236 (Mo. 2009) (en blanc), and Goliger v. AMS Properties,
Inc., 19 Cal. Rptr. 3d 819 (Cal. Ct. App. 2004)). Likewise, in the present case, the
agreement’s use of the word “Legal Representative” under the plaintiff’s signature made
clear that she was not signing in her individual capacity or on her own behalf as a potential
wrongful death plaintiff. Therefore, even if the arbitration agreements were valid, the
plaintiff’s signature on the May 20, 2005, agreement is not binding with regard to arbitration
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of a wrongful death claim.
¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, the circuit court’s order denying the defendant’s motion to
compel arbitration is affirmed.
¶ 37 Affirmed.
¶ 38 JUSTICE SPOMER, concurring in part and dissenting in part.
¶ 39 I concur in that portion of the opinion in which the majority finds that the arbitration
agreements in the present case evidence a transaction involving interstate commerce, and
thus, I agree that the Federal Arbitration Act applies to the arbitration agreements at issue.
In addition, I agree with the majority’s conclusion that the plaintiff’s signature as “Legal
Representative” for the decedent on the May 20, 2005, agreement does not bind her to
arbitrate her independent wrongful death claim. However, I respectfully dissent from the
majority’s conclusion that the arbitration agreements between the decedent and the defendant
are unenforceable for a lack of mutuality. In the agreements at issue, both parties agreed to
arbitrate all claims where the amount in controversy is greater than $200,000. Conversely,
both parties retained the right to litigate all claims where the amount in controversy is less
than $200,000. The promises made by both parties are equal.
¶ 40 I do not find the defendant’s promise to arbitrate all claims where the amount in
controversy is greater than $200,000 to be illusory. This case is distinguishable from
Vassilkovska and Gonzalez, cited by the majority, in which the arbitration clauses at issue
excluded all types of claims that the defendants in those cases would have against the
plaintiffs, regardless of the amount in controversy. Vassilkovska, 358 Ill. App. 3d at 28 (the
defendant exempted itself from arbitration by specifically securing its rights to seek
assistance in a court of law for a host of issues); Gonzalez, 411 F. Supp. 2d at 972 (the
exceptions listed within the definition of “dispute” left no claim that the defendant would be
required to submit to arbitration).
¶ 41 Unlike Vassilkovska and Gonzalez, it is not impossible to conceive of situations where
the defendant would be required to arbitrate its disputes against a signatory resident,
including contract actions for unpaid bills and tort actions for personal injury or property
damage where the amount in controversy exceeds $200,000. For example, in a case where
a nursing home resident caused a fire, intentionally or unintentionally, the damages to the
nursing home could easily exceed that amount. It is not the province of this court to
determine the relative frequency of such claims but only to determine that both parties made
promises to arbitrate. See Keefe v. Allied Home Mortgage Corp., 393 Ill. App. 3d 226, 230
(2009) (“ ‘A contract does not lack mutuality merely because its obligations appear unequal
or because every obligation or right is not met by an equivalent counterobligation or right in
the other party.’ ” (quoting Piehl v. Norwegian Old Peoples’ Home Society of Chicago, 127
Ill. App. 3d 593, 595 (1984))).
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¶ 42 For the foregoing reasons, I would affirm that portion of the circuit court’s order which
denied the motion to compel the arbitration of the plaintiff’s wrongful death claim but would
reverse that portion of the circuit court’s order which denied the motion to compel the
arbitration of the survival claims of the decedent, and I would remand with directions that
the circuit court enter an order compelling the arbitration of those claims.
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