Lawrence v. Manor, No. WD67920 (Mo. App. 3/18/2008)

• Decision Date: 18 March 2008
• Docket Number: No. WD67920.,WD67920.
• Parties: Dale Lawrence, Respondent, v. Beverly Manor, Appellant.
• Court: Missouri Court of Appeals

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Dale Lawrence, Respondent, v. Beverly Manor, Appellant.

No. WD67920.

Court of Appeals of Missouri, Western District.

March 18, 2008.

Appeal from the Circuit Court of Jackson County, Hon. Jon R. Gray.

Stephen Strum, for Appellant.

Phillip Burdick, for Respondent.

Before Howard, C.J., and Holliger, J.

OPINION

PAUL M. SPINDEN, Judge.

Beverly Manor appeals the order of the circuit court of Jackson County denying its motion to compel arbitration of Dale Lawrence's wrongful death claim. Although Beverly Manor asserts that it has a right to interlocutory appeal pursuant to Section 435.440.1(1), RSMo 2000, and 9 U.S.C. Section 16(a)(1)(B) (1999), its agreement to arbitrate declared that the federal statutes would govern.

This lawsuit concerns an agreement between Beverly Manor and Dorothy Lawrence executed during March 2003 by Lawrence's daughter, acting as Lawrence's attorney in fact, to obtain Lawrence's acceptance as a resident at Beverly Manor's facility. The agreement between Beverly Manor and Lawrence contained provisions for arbitrating any claims that Lawrence had against Beverly Manor.

Lawrence died a brief time after being admitted to Beverly Manor's facility. Her son, Dale Lawrence, filed a two—count wrongful death petition against Beverly Manor. He alleged that his mother suffered fatal injuries to her head when Beverly Manor's employees negligently dropped her. Beverly Manor responded to Dale Lawrence's lawsuit by filing a motion to compel arbitration of his claims. The circuit court denied its motion, and Beverly Manor appeals.

Beverly Manor asserts three points on appeal, but it actually has but one claim: that the circuit court erred in overruling its motion to compel arbitration. Beverly Manor asserts that the arbitration agreement is binding on Dale Lawrence although he was not a party to the agreement.

This court's review of the circuit court's denial of a motion to compel arbitration is de novo. Finney v. National Healthcare Corporation, 193 S.W.3d 393, 394 (Mo. App. 2006). Before the circuit court compels parties to arbitrate their disputes, it must determine whether or not they contracted to arbitrate. Id. at 395. The circuit court cannot compel a party to arbitrate unless he or she has agreed to do so. Id.

The arbitration agreement between Dorothy Lawrence and Beverly Manor said:

It is understood and agreed by [Beverly Manor] and [Dorothy Lawrence] that any and all claims, disputes and controversies . . . arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by [Beverly Manor] to [Dorothy Lawrence] shall be resolved exclusively by binding arbitration[.]

It is the intention of the parties to this Arbitration Agreement that it shall inure to the benefit of and bind the parties, their successors, and assigns, including without limitation the agents, employees and servants of [Beverly Manor], and all persons whose claim is derived through or on behalf of [Dorothy Lawrence], including any parent, spouse, sibling, child, guardian, executor, legal representative, administrator or heirs of [Dorothy Lawrence]. The parties further intend that this agreement is to survive the lives or existence of the parties hereto.

Dale Lawrence did not sign the agreement, and, after his mother's death, he filed a petition against Beverly Manor asserting two wrongful death claims under Section 537.080. This statute says:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured[.]

The parties agree that, were Dorothy Lawrence alive, the arbitration agreement would be binding on her and would require her to arbitrate any negligence claim that she might assert against Beverly Manor. The parties also agree that, if Dale Lawrence's wrongful death claims are derivative claims derived from his mother's claims, he is bound by the arbitration agreement. Indeed, if Dale Lawrence is asserting claims through a derivative right, he has no greater right than his mother's and could not make any claims that she would be prohibited from making. See Roberts v. Progressive Northwestern Insurance Company, 151 S.W.3d 891, 899 (Mo. App. 2004).

In denying Beverly Manor's motion to compel arbitration, the circuit court concluded that Dale Lawrence's wrongful death claims were not derivative claims but were new and independent claims:

Despite the fact that the decedent's daughter was an agent for the purpose of securing residential treatment for the decedent during her lifetime, nothing in the arbitration agreement can be construed to extend to new and independent causes of action others would have such as this action for wrongful death. The decedent had no right of action for wrongful death. It therefore follows that she could not bind or limit any person who had a right of action arising by reason of her death at some point in the future.

In reaching this conclusion, the circuit court relied on Finney v. National Healthcare Corporation, 193 S.W.3d 393, 395 (Mo. App. 2006), which declared:

The wrongful death claim does not belong to the deceased or even to a decedent's estate. Campbell v. Callow, 876 S.W.2d 25, 26 (Mo. App. S.D.1994). "`The wrongful death act creates a new cause of action where none existed at common law and did not revive a cause of action belonging to the deceased.'" O'Grady v. Brown, 654 S.W.2d 904, 910 (Mo. banc 1983) (quoting State ex rel. Jewish Hospital v. Buder, 540 S.W.2d 100, 104 (Mo. App. St. L. D. 1976)). A wrongful death action is not a transmitted right nor a survival right but is created and vested in the statutorily designated survivors at the moment of death. Id. at 910. The damages under section 537.080 are different than the damages Decedent would have been entitled to in a personal injury action against Appellants. Under Missouri's wrongful death statute, the party or parties may receive "pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death." Section 537.090.

The circuit court is correct that the issue in Finney is essentially identical to the issue raised by Dale Lawrence's action. In Finney, the decedent was admitted to a nursing home, and her granddaughter signed an arbitration agreement on her behalf, which required her to arbitrate any claims against the nursing home. After the decedent's death, her daughter brought a wrongful death claim against the nursing home. Relying on the legal principle that a wrongful death claim is a new and independent cause of action and is not derived from a cause of action that the decedent would have had, the Finney court held that the daughter was not bound by an arbitration agreement that she did not sign.

The legal position announced in Finney—that a wrongful death claim is a new and independent cause of action and not a derivative action—is consistent with the legal position that the Supreme Court has taken. The Finney court correctly quoted the Supreme Court's opinion in O'Grady: "`The wrongful death act creates a new cause of action where none existed at common law and did not revive a cause of action belonging to the deceased'. . . . The right of action thus created is neither a transmitted right nor a survival right." 654 S.W.2d at 910 (citation omitted). The Supreme Court reiterated this legal position in Sullivan v. Carlisle, 851 S.W.2d 510, 515 (Mo. banc 1993), and American Family Mutual Insurance Company v. Ward, 774 S.W.2d 135, 136—37 (Mo. banc 1989). In Ward, the Supreme Court traced this legal principle back to the 1940s. Hence, at first blush, Finney would provide an appropriate legal basis for the circuit court's conclusion.

Since the circuit court issued its order on January 5, 2007, however, the Supreme Court issued its opinion in State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007), in which it held: "Although 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." In Burns, the original plaintiff filed a personal injury lawsuit in the circuit court of the city of St. Louis. The General Assembly later amended the venue statute to provide that tort cases must be filed in the county where the plaintiff is "first injured," which in this case would have been St. Louis County. After this amendment, the original plaintiff died, and his heir amended the petition to file a wrongful death claim. The defendant filed a motion to transfer venue to St. Louis County on the ground that the wrongful death claim was a new cause of action and, therefore, the new venue statute was applicable. After the circuit court granted the motion, the plaintiff filed for a writ of mandamus. The Supreme Court framed the issue as whether or not an "amended petition asserting a wrongful death claim constituted a new cause of action requiring transfer to St. Louis County" and held that venue was proper in the city of St. Louis. Id. at 225.

Given the Supreme Court's framing of the issue—whether or not an "amended petition asserting a wrongful death claim constituted a new cause of action requiring transfer to St. Louis County"—for it to conclude that venue was proper in the city of St. Louis, the court necessarily had to hold that a wrongful death claim was not a new and independent cause of action that was subject to the new venue statute. Burns unquestionably changed Missouri's wrongful...