By: Faith Van Horn
The Georgia Supreme Court held this month in United Health Services of Georgia v. Norton that a wrongful death claim brought by the husband of a nursing home resident was barred by the arbitration agreement signed by the patient.[1] Before she was admitted to the defendant nursing home, Mrs. Norton, the patient, signed an arbitration agreement through Kim Norton, her general power of attorney, which expressly stated that it applied to claims brought for wrongful death.[2] The court held that Mr. Norton’s claims for wrongful death was covered by the arbitration agreement.[3] Below, the Georgia Court of Appeals had held that Mr. Norton’s wrongful death claim was not covered by the arbitration agreement.[4] The court held that wrongful death claims “belong to the survivors” and are “not addressed to the injuries suffered by the decedent prior to death.”[5] The Georgia Supreme Court reversed, holding that a wrongful death action is merely a continuation of whatever claims for injury the decedent would have had while she was living.[6]
The Iowa Supreme Court has reached the same conclusion as the Georgia Supreme Court on the issue of whether such wrongful death claims are covered by pre-dispute arbitration agreements signed with nursing homes. However, in Roth v. Evangelical Lutheran Good Samaritan Society the Iowa Supreme Court provided a more thorough explanation as to which claims are or are not covered by an arbitration agreement signed by the decedent.[7] In Roth, the court looked to the nature of the claims involved, explicitly distinguishing between wrongful death claims brought by a representative of the estate and loss of consortium claims brought by the adult children of the decedent. The court in Roth held that the arbitration agreement signed by the decedent (through the decedent’s son who held general power of attorney for him) did cover wrongful death claims brought by his estate, but that the loss of consortium claims were not covered.[8]
The court in Roth reasoned that the statutes providing the basis for wrongful death claims do not create a new cause of action, but merely preserves the rights and claims the decedent would have had at the time of his death.[9] Because the decedent agreed to arbitrate any claims he had relating to his stay at the defendant nursing facility, this agreement to arbitration applies to the claim for wrongful death brought on behalf of his estate.[10]
However, the court reasons that the claims for loss of consortium brought by the decedent’s adult children are not covered by the arbitration agreement signed by the decedent.[11] The court notes that although plaintiffs could be required to arbitrate loss of consortium claims if they had previously agreed to arbitration, because the plaintiffs here did not personally agree to arbitration, they cannot be compelled to arbitrate their claims.[12] The court in Roth distinguishes the arbitrability of claims based on whether the action is brought on behalf of the estate, or by a third party who was not a signatory to the arbitration agreement.
Endnotes:
[1] United Health Servs. of Ga. v. Norton, 2017 Ga. LEXIS 168.
[2] Norton, 2017 Ga. 168 at 1.
[3] Id. at 6.
[4] Norton v. United Health Services of Georgia, Inc., 336 Ga. App. 51, 54-55 (2016).
[5] Id. at 54 (quoting Pope v. Goodgame, 223 Ga. App. 672, 676 (6) (b) (478 SE2d 636) (1996)).
[6] Norton, 2017 Ga. 168 at 5-6.
[7] Roth v. Evangelical Lutheran Good Samaritan Soc’y, 886 N.W.2d 601 (Iowa 2016).
[8] Id.
[9] Roth, 886 N.W. 2d at 608.
[10] Id.
[11]Roth, 886 N.W. 2d at 613.
[12] Id.