Amended December 30, 2016 Mary E. Roth and Michael A. Roth, Individually and as Coexecutors of the Estate of Cletus Roth, Anna M. Roth, Individually, and Bradley E. Roth, Individually v. The Evangelical Lutheran Good Samaritan Society D/B/A Good Samaritan Society - George

IN THE SUPREME COURT OF IOWA
No. 15–2095

Filed October 21, 2016

Amended December 30, 2016

MARY E. ROTH and MICHAEL A. ROTH, Individually and as
Coexecutors of the Estate of Cletus Roth, ANNA M. ROTH, Individually,
and BRADLEY E. ROTH, Individually,

Plaintiffs,

vs.

THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY d/b/a
GOOD SAMARITAN SOCIETY - GEORGE,

Defendant.

Certified questions of law from the United States District Court for

the Northern District of Iowa, Mark W. Bennett, United States District

Court Judge.

A federal district court certified two questions of law concerning

adult children’s loss-of-consortium claims in a suit against a nursing

home. CERTIFIED QUESTIONS ANSWERED.

Pressley Henningsen and Benjamin P. Long of RSH Legal, P.C.,

Cedar Rapids, for plaintiffs.

Christopher P. Jannes and Kendall R. Watkins of Davis, Brown,

Koehn, Shors & Roberts, Des Moines, for defendant.
 2

MANSFIELD, Justice.

We have been asked to answer two certified questions of Iowa law

in a tort case brought by the adult children of a former nursing home

resident against the nursing home. The questions are as follows:

1. Does Iowa Code section 613.15 require that adult children’s

loss-of-parental-consortium claims be arbitrated when the deceased

parent’s estate’s claims are otherwise subject to arbitration?

2. Does the fact that a deceased parent’s estate’s claims are

subject to arbitration establish that it is impossible, impracticable, or not

in the best interest of the decedent’s adult children for the decedent’s

estate to maintain their claims for loss of parental consortium, such that

the loss-of-consortium claims can be maintained separately in court,

notwithstanding that the estate’s claims must be arbitrated?

For the reasons discussed herein, we answer these questions as

follows:

1. No.

2. It is not necessary to answer this question.

I. Background Facts and Proceedings.

On November 27, 2013, seventy-nine-year-old Cletus Roth was

admitted to a forty-five-bed nursing facility operated by The Evangelical

Lutheran Good Samaritan Society (Good Samaritan) in Lyon County.

Approximately two weeks later, on December 12, Cletus’s son Michael

signed a detailed admission agreement with Good Samaritan relating to

Cletus’s stay. At that time, Michael had general healthcare powers of

attorney for Cletus. Cletus’s daughter Mary also had the same powers of

attorney.

Part of the admission documentation was a separate two-page

document entitled “RESOLUTION OF LEGAL DISPUTES.” This item
 3

stated at the top in boldface type, “Please note that the Resident’s

agreement to arbitrate disputes is not a condition of admission or of

continued stay.” Beneath this sentence were a series of clauses:

A. Resident’s Rights. Any legal controversy, dispute,
disagreement or claim arising between the Parties hereto
after the execution of this Admission Agreement in which
Resident, or a person acting on his or her behalf, alleges a
violation of any right granted Resident under law or
contract shall be settled exclusively by binding arbitration
as set forth in Section C. below. This provision shall not
limit in any way the Resident’s right to file formal or
informal grievances with the Facility or the state or
federal government.

B. All Other Disputes. Any legal controversy, dispute,
disagreement or claim of any kind arising out of or related
to this Admission Agreement, or the breach thereof, or,
related to the care of stay at the Facility, shall be settled
exclusively by binding arbitration as set forth in Section
C. below. This arbitration clause is meant to apply to all
controversies, disputes, disagreements or claims
including, but not limited to, all breach of contract
claims, all negligence and malpractice claims, all tort
claims and all allegations of fraud concerning entering
into or canceling this Admission Agreement. This
arbitration provision binds all parties whose claims may
arise out of or relate to treatment or service provided by
the center including any spouse or heirs of the Resident.

C. Conduct of Arbitration. The Resident understands that
agreeing to arbitrate legal disputes means that he/she is
waiving his/her right to sue in a court of law and to a
trial by jury and that arbitration is not a limitation of
liability but merely shifts the Parties’ dispute(s) to an
alternate forum. The Resident shall indicate his/her
willingness to arbitrate by informing the Facility by
marking the YES or NO box below and signing and dating
where indicated. . . .

D. Governing Law. The Parties acknowledge that the
Facility regularly conducts transactions involving
interstate commerce and that services provided by the
Facility to the Resident involve interstate commerce. The
Parties therefore agree that this Admission Agreement is a
transaction involving interstate commerce. The Parties
agree that this Resolution of Legal Disputes provision and
all proceedings relating to the arbitration of any claim
shall be governed by and interpreted under the Federal
 4
Arbitration Act (FAA), 9 U.S.C. Sections 1-16 (or as
amended or superseded).

In the middle of the second page were two boxes:

YES I DO wish to arbitrate disputes and I received a copy of
this Resolution of Legal Disputes.
NO I DO NOT wish to arbitrate disputes.

Michael indicated that he wished to arbitrate disputes by

approving the checking of the first box and then signing and dating the

arbitration agreement. 1
Following Cletus’s death, on August 14, 2015, Mary and Michael

as coexecutors of his estate—as well as Mary, Michael, and their siblings

Anna and Bradley individually—filed an action against Good Samaritan.

The petition alleged that the defendant had “negligently cared for

Cletus . . . and violated numerous regulations, laws, rights, and industry

standards, causing Cletus . . . personal injury, illness, harm, and

eventual death . . . .” Five counts were set forth in the petition: “wrongful

death, negligence, gross negligence, and/or recklessness,” “breach of

contract,” “dependent adult abuse,” “loss of consortium for [Mary,

Michael, Anna, and Bradley],” and “punitive damages.” Good Samaritan

removed the case to federal court based on diversity of citizenship then

moved to compel arbitration.

1We note that in a final rule published October 4, 2016, the Federal Centers for
Medicare & Medicaid Services will prohibit nursing homes that receive Medicare or
Medicaid funding from entering into this type of arbitration agreement:
A facility must not enter into a pre-dispute agreement for binding
arbitration with any resident or resident’s representative nor require that
a resident sign an arbitration agreement as a condition of admission to
the [long-term care] facility.
Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care
Facilities, 81 Fed. Reg. 68,688, 68,867 (Oct. 4, 2016) (to be codified at 42 C.F.R. pt.
483).
 5

On December 7, the United States District Court for the Northern

District of Iowa filed a memorandum opinion. It directed that the claims

of Cletus’s estate be submitted to arbitration. However, the district court

asked this court to answer two certified questions of Iowa law relating to

the adult children’s loss-of-consortium claims.

II. Standard Applicable to Certified Questions.

We have said before,

It is within our discretion to answer certified questions
from a United States district court. We may answer a
question certified to us when (1) a proper court certified the
question, (2) the question involves a matter of Iowa law, (3)
the question “may be determinative of the cause . . . pending
in the certifying court,” and (4) it appears to the certifying
court that there is no controlling Iowa precedent.

Life Inv’rs Ins. Co. of Am. v. Estate of Corrado, 838 N.W.2d 640, 643 (Iowa

2013) (citation omitted) (quoting Iowa Code § 684A.1).

Here we elect to answer the certified questions. They arrive to us

from a proper court, they involve matters of Iowa law, they may be

determinative of the cause, and there is no controlling Iowa precedent.
See Oyens Feed & Supply, Inc. v. Primebank, 879 N.W.2d 853, 858 (Iowa

2016). Additionally, both parties urge us to answer the questions. See

id.

III. Analysis.

A. First Certified Question: Does Iowa Code Section 613.15

Require Adult Children’s Loss-of-Consortium Claims to Be Arbitrated

When the Estate’s Claims Are Otherwise Subject to Arbitration?

When a person dies due to the wrongful or negligent act of another, Iowa

law authorizes the personal representative to commence a wrongful-

death action on behalf of the estate. As we have explained,

Iowa recognizes no common law action for wrongful death.
Power to maintain such actions is entirely statutory. Our
 6
first statute was enacted in 1851 as Code § 2501. That
section is today § 611.20, a survival statute, which keeps
alive for the benefit of his estate the cause of action which
the deceased prior to his death could have brought had he
survived the injury, with recovery enlarged to include the
wrongful death.

Egan v. Naylor, 208 N.W.2d 915, 917 (Iowa 1973). Iowa Code section
611.20, the present statutory foundation for wrongful-death actions,
provides, “All causes of action shall survive and may be brought
notwithstanding the death of the person entitled or liable to the same.”
Iowa Code § 611.20 (2015). Furthermore, “Code §§ 611.20, 611.22 and
633.336 and their predecessors have consistently been held to vest the
right to recover wrongful death damages exclusively in the estate
representative.” Egan, 208 N.W.2d at 918.
In addition, Iowa recognizes a cause of action for loss of
consortium. When a minor child suffers injury or death, Iowa Rule of
Civil Procedure 1.206 provides, “A parent, or the parents, may sue for the
expense and actual loss of services, companionship and society resulting
from injury to or death of a minor child.” Iowa R. Civ. P. 1.206.
Otherwise, such as here when a parent dies allegedly due to the wrongful
act of another, Iowa Code section 613.15 provides,

In any action for damages because of the wrongful or
negligent injury or death of a woman, there shall be no
disabilities or restrictions, and recovery may be had on
account thereof in the same manner as in cases of damage
because of the wrongful or negligent injury or death of a
man. In addition she, or her administrator for her estate,
may recover for physician’s services, nursing and hospital
expense, and in the case of both women and men, such
person, or the appropriate administrator, may recover the
value of services and support as spouse or parent, or both,
as the case may be, in such sum as the jury deems proper;
provided, however, recovery for these elements of damage
may not be had by the spouse and children, as such, of any
person who, or whose administrator, is entitled to recover
same.

Iowa Code § 613.15.
 7

So worded, Iowa Code section 613.15 empowers the administrator

of a parent’s estate, rather than the children, to bring an action for the

children’s loss of the parent’s services. “In the case of a parent’s death,

the child’s claim for loss of parental consortium should be brought by the

decedent’s administrator under section 613.15.” Audubon-Exira Ready

Mix, Inc. v. Ill. Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983).

But although the personal representative normally files both

claims, there is a critical difference between the wrongful death cause of

action and the consortium cause of action. In the latter instance,

damages “are to be distributed by the trial court [to the children] under

section 633.336.” Id. at 151–52. Iowa Code section 633.336 codifies this

distinction:

When a wrongful act produces death, damages
recovered as a result of the wrongful act shall be disposed of
as personal property belonging to the estate of the deceased;
however, if the damages include damages for loss of services
and support of a deceased spouse, parent, or child, the
damages shall be apportioned by the court among the
surviving spouse, children, and parents of the decedent in a
manner as the court may deem equitable consistent with the
loss of services and support sustained by the surviving
spouse, children, and parents respectively.

Iowa Code § 633.336.

In our caselaw, we have reiterated these points:

Authority to sue for lost services and the recovery belonged
to the injured person rather than the deprived spouse or
child in the action under section 613.15. If the person died,
the only further recovery could be made under . . . section
613.15 in the case of death of a spouse or parent. Authority
to sue under section 613.15 passed to the administrator but,
under section 633.336, the recovery was to be apportioned to
the spouse and children of the decedent in accordance with
their loss.

Madison v. Colby, 348 N.W.2d 202, 207 (Iowa 1984). The cause of action

for parental consortium is “to be commenced by . . . the parent’s estate”
 8

although “the ownership of the proceeds [is] in the child.” Roquet by

Roquet v. Jervis B. Webb Co., 436 N.W.2d 46, 47 (Iowa 1989).

[A] child has a cause of action for loss of parental consortium
and support for the death or injury of a parent by a third
party. . . . Yet, such a claim is required to be brought
by . . . the administrator of the estate under Iowa Code
section 613.15.

Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 174 (Iowa 2002)

(citations omitted); see also Nichols v. Schweitzer, 472 N.W.2d 266, 271

(Iowa 1991) (“[S]ection 613.15 designates the personal representative of

the deceased as the proper party to bring a suit for the loss of

consortium of the deprived spouse. The independent claim of the

deprived spouse thus passes to the administrator on death of the injured

spouse.”).

Yet there is an exception to the rule that either the parent or—in

the case of the death—the administrator or executor of the parent’s

estate must commence an action to recover damages for loss of

consortium. See Nelson v. Ludovissy, 368 N.W.2d 141, 146 (Iowa 1985).

In Nelson, Hans Nelson was injured when his farm tractor collided with a

truck. Id. at 143. He and his wife sued the owner and the operator of
the truck seeking damages for Hans’s injuries and lost services and

support to their minor children. Id. However, they made no claim for

lost services and support on behalf of their adult children. Id. The adult

children brought separate actions, which the district court dismissed.

Id. We reversed. Id. at 146.

We explained that while child–parent consortium claims are

“subject to the mandates of [Iowa Code section 613.15] concerning who

could maintain the action,” that “does not completely eliminate” the

possibility of separate claims. Id. at 145–46. “There may be cases where
 9

joinder of claims is feasible, yet it is not in the best interests of a minor

or adult child that the injured parent bring or control the action.” Id. at

146. We elaborated,

[W]e must reject appellants’ claim that adult children may
pursue consortium and loss of support claims under section
613.15 in their own names as a matter of right. The statute
expressly provides that “recovery for these elements of
damage may not be had by the . . . children, as such, of any
person who . . . is entitled to recover same.” In order for
either a minor or adult child to avoid this statutory
proscription, we deem it necessary that the child must first
establish to the court’s satisfaction that it is impossible,
impracticable or not in the child’s best interest for the parent
to maintain the action.

Id. (quoting Iowa Code § 613.15). We continued,

The required showing may be inferred from the
circumstances. Where, as in the present case, the statutory
plaintiff has already commenced an action omitting the
claims of a child, it may be inferred that the statutory
plaintiff has elected against representing the child’s
interests. Such circumstance will justify maintaining the
action in the child’s own name subject, however, to joinder
with the parent’s claim to the extent required by Madison.
Because the issue is involved in the present actions, we
conclude that for this purpose consolidation of pending
actions is the equivalent of joinder.
Similarly, and again subject to the requirement of
joinder with the parent’s claim, we recognize that the rights
of adult children to manage and control their own affairs
requires that where disagreement arises over who shall
control the course of the litigation, this circumstance alone
should permit an adult child to maintain a claim under
section 613.15 in the child’s own name.

Id. In short, we recognized an exception to Iowa Code section 613.15 for

circumstances when it is “impossible, impracticable or not in the child’s

best interest for the parent to maintain the action.” Id. We found this

exception applied when the parent had commenced an action without

including the adult children’s consortium claims. Id.
 10

More recently, we have held that a minor child’s claim for loss of

consortium of a deceased parent is subject to the separate statute of

limitations applicable to minors. Christy v. Miulli, 692 N.W.2d 694, 706

(Iowa 2005). The logic of this decision was that Iowa Code section

613.15 is essentially a joinder rule for efficiency purposes. Id. at 705–06.

The administrator does not “own[]” the cause of action. Id. at 705.

Rather, “a loss-of-parental-consortium claim is independent of the

wrongful death claim and belongs to the child.” Id.; see also Beeck v.

S.R. Smith Co., 359 N.W.2d 482, 486–87 (Iowa 1984) (holding that a

minor child’s loss-of-consortium claim for an injured parent is subject to

“the statute [of limitations] applicable to minors,” not the statute

applicable to the parent).

We agree with the district court that when a personal

representative brings a wrongful-death action against a party with whom

the decedent entered into a binding arbitration agreement, the case is

subject to arbitration. This is due to the nature of the wrongful-death

action in Iowa:

Unlike the wrongful death statutes in many states,
Iowa’s death statutes have always been of the “survival” type.
Such a statute does not create a new cause of action in a
decedent’s survivors; rather, it preserves whatever rights and
liabilities a decedent had with respect to a cause of action at
the time of his death. The cause of action thus preserved is
deemed to accrue to the decedent’s estate representative “at
the time it would have accrued to the deceased if he had
survived.”

Weitl v. Moes, 311 N.W.2d 259, 270 (Iowa 1981) (plurality opinion)

(citations omitted) (quoting Iowa Code § 611.22), overruled on other

grounds by Audubon-Exira, 335 N.W.2d at 152.

The right to recover wrongful-death damages in Iowa is vested

exclusively in the estate representative, and the recovery belongs to the
 11

estate. See Iowa Code § 611.22; id. § 633.336; Troester v. Sisters of

Mercy Health Corp., 328 N.W.2d 308, 312 (Iowa 1982). Wrongful-death

damages are “damages the administrator of the estate can recover on

behalf of the estate.” State v. Izzolena, 609 N.W.2d 541, 546 n.2 (Iowa

2000). The administrator or executor is in all respects the successor in

interest to the party that entered into the arbitration agreement. See

Shook v. Crabb, 281 N.W.2d 616, 617–18 (Iowa 1979) (“[T]he capacity of

an estate to bring an action for wrongful death is contingent upon the

capacity of the estate’s decedent to bring the action had he or she

survived.”).

Notably, in other jurisdictions where wrongful-death actions are

brought by a personal representative who stands in the shoes of the

decedent, courts regularly hold that the personal representative must

abide by any arbitration agreement of the decedent. See Briarcliff

Nursing Home, Inc. v. Turcotte, 894 So. 2d 661, 664–65 (Ala. 2004)

(holding in two actions against a nursing home that the personal

representatives were “bound by the arbitration provisions contained in

the admission contracts”); Laizure v. Avante at Leesburg, Inc., 109 So. 3d

752, 754 (Fla. 2013) (concluding that the survivors of a nursing home

patient were obligated to arbitrate wrongful-death claims against the

nursing home because such claims are “derivative”); Sanford v. Castleton

Health Care Ctr., LLC, 813 N.E.2d 411, 422 (Ind. Ct. App. 2004) (holding

that wrongful-death claims must be arbitrated based upon an arbitration

clause in the decedent’s admission agreement because under Indiana law

“a personal representative may maintain a cause of action against an

alleged wrongdoer only if the decedent, if alive, might have maintained

such a cause of action”); Estate of Krahmer ex rel. Peck v. Laurel

Healthcare Providers, LLC, 315 P.3d 298, 300–01 (N.M. Ct. App. 2013)
 12

(reasoning that “a wrongful death representative is bound to arbitrate if

the decedent was personally bound by an arbitration agreement” because

“the representative’s rights [are] derivative of the decedent’s”);

MacPherson v. Magee Mem’l Hosp. for Convalescence, 128 A.3d 1209,

1226–27 (Pa. Super. Ct. 2015) (holding that personal representatives

bringing wrongful-death claims were “bound by otherwise enforceable

arbitration agreements signed by a decedent”).

By contrast, in jurisdictions where wrongful death is regarded as

an independent claim for the direct benefit of the estate’s beneficiaries,

i.e., the “many states” referenced in Weitl, 311 N.W.2d at 270, courts

generally do not find the decedent’s arbitration agreement to be binding.

See Estate of Decamacho ex rel. Guthrie v. La Solana Care & Rehab, Inc.,

316 P.3d 607, 614 (Ariz. Ct. App. 2014) (holding a wrongful-death claim

against a nursing home not arbitrable because in Arizona “a wrongful

death claim is independently held by the decedent’s statutory

beneficiaries”); Norton v. United Health Servs. of Ga., Inc., 783 S.E.2d

437, 440–41 (Ga. Ct. App. 2016) (determining that an arbitration

agreement executed by the decedent’s authorized representative during

the decedent’s lifetime was not binding in a wrongful-death action

because such a claim belongs to the survivors); Carter v. SSC Odin

Operating Co., LLC, 976 N.E.2d 344, 355–58 (Ill. 2012) (rejecting the

argument that a wrongful-death action is “a true asset of the decedent’s

estate” and can therefore be limited by the decedent’s agreement to

arbitrate); Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 600 (Ky. 2012)

(“[T]he wrongful death claimants would not be bound by their decedent’s

arbitration agreement, even if one existed, because their statutorily

distinct claim does not derive from any claim on behalf of the decedent,

and they therefore do not succeed to the decedent’s dispute resolution
 13

agreements.”); FutureCare NorthPoint, LLC v. Peeler, 143 A.3d 191, 209–

10, 213 (Md. Ct. Spec. App. 2016) (deciding that the decedent’s

arbitration agreement was not binding in a wrongful-death action

because Maryland “has construed its wrongful death statute as creating

a new and independent cause of action that does not belong to the

decedent or the decedent’s estate”); Lawrence v. Beverly Manor, 273

S.W.3d 525, 529 (Mo. 2009) (en banc) (finding a deceased nursing home

resident’s son could bring a wrongful-death action in court despite an

arbitration clause because Missouri law creates a “separate” and “not

derivative” wrongful-death action to be brought by the decedent’s lineal

descendants); Wolcott v. Summerville at Outlook Manor, LLC, ___ N.E.3d

___, ___, 2016 WL 1178579, at *4 (Ohio Ct. App. Mar. 24, 2016) (holding

that under Ohio law, a decedent cannot bind his or her beneficiaries to

arbitrate their wrongful-death claims); Boler v. Sec. Health Care, L.L.C.,

336 P.3d 468, 477 (Okla. 2014) (“We agree with the courts that have held

that a decedent cannot bind the beneficiaries to arbitrate their wrongful

death claim. Oklahoma’s Wrongful Death Act created a new cause of

action for pecuniary losses suffered by the deceased’s spouse and next of

kin by reason of his or her death. Recovery under the wrongful death act

does not go to the estate of the deceased, but inures to the exclusive

benefit of the surviving spouse and children or next of kin.”); Woodall v.

Avalon Care Ctr.–Fed. Way, LLC, 231 P.3d 1252, 1258–61 (Wash. Ct.

App. 2010) (holding that a wrongful-death action was not subject to the

decedent’s arbitration agreement because the personal representative of

the estate is merely a statutory agent or trustee acting in favor of the

beneficiaries, with no benefits flowing to the estate of the injured

deceased).
 14

The question we are asked to answer is whether the loss-of-

parental-consortium claim, which belongs to the children but is

ordinarily brought by the estate, is subject to arbitration based upon the

decedent’s agreement to arbitrate. Both the federal district court and the

parties have focused on the possibility that certain language in Iowa

Code section 613.15 means that consortium claims may only be brought

in court. In particular, the statute refers to an “action for damages” and,

later, to a recovery “in such sum as the jury deems proper.” Iowa Code

§ 613.15. The Roth children maintain that the phrase “in such sum as

the jury deems proper” requires consortium proceedings to be tried

before a jury. The federal district court suggested, based on the

combined use of the phrase “any action for damages” and the phrase “in

such sum as the jury deems proper,” that section 613.15 might allow

loss-of-parental-consortium claims to be asserted in jury or nonjury

court proceedings, but not in arbitration. On the other hand, Good

Samaritan argues that the term “any action for damages” encompasses

proceedings before any tribunal for the recovery of damages and that the

reference to a “jury” is just shorthand for a finder of fact.

At the outset, we are not persuaded by the Roth children’s

argument that Iowa Code section 613.15 requires a jury trial of

consortium claims without the possibility of a jury trial waiver. The

phrase, “in such sum as the jury deems proper,” does not say that such

actions must proceed before a jury. It can reasonably be read as

describing how damages would be determined unless the right to jury

has been properly waived, such as by failure to timely demand a jury.

See Iowa R. Civ. P. 1.902(1). This allows us to reconcile any conflict

between section 613.15 and rule 1.902(1). See Iowa Code § 4.7 (stating

that we construe general and special provisions if possible to avoid
 15

conflicts); Des Moines Flying Serv., Inc. v. Aerial Servs. Inc., 880 N.W.2d

212, 221 (Iowa 2016) (“Our job is to harmonize these statutes to give

effect to each.”).

Additionally, the presence of the words “any action for damages” at

the beginning of section 613.15 to some extent undercuts the Roth

children’s position that the phrase “in such sum as the jury deems

proper” later in the statute establishes a nonwaivable right to a jury trial

on parental consortium claims. Clearly, “any action for damages” must

include a nonjury proceeding. So, if the Roth children were right, section

613.15 would allow wrongful-death claims to be heard by the court but

require consortium claims brought by the same administrator in the

same case to be heard by a jury. That would be incongruous. See Iowa

Code § 4.4(3) (“In enacting a statute, it is presumed that . . . [a] just and

reasonable result is intended.”).

Also noteworthy are the circumstances surrounding the enactment

of Iowa Code section 613.15’s predecessor in 1911. See 1911 Iowa Acts

ch. 163, § 1 (providing that when a woman is injured by a negligent or

wrongful act resulting in death, “her administrator may sue and recover

for her estate, the value of her services as a wife or mother or both in

such sum as the jury may deem proportionate to the injury resulting in

her death.”). At that time, a separate Iowa statute authorized jury trial

waivers, just as rule 1.902(1) does today. See Iowa Code § 3733 (1897).

One could logically conclude that when the general assembly adopted

1911 Iowa Acts chapter 163, it well understood that the right to have a

jury could be waived in accordance with preexisting law.

This would not be the only instance where the Iowa Code literally

refers to a jury determination but, in context, the reference means a

determination by the factfinder. For example, Iowa Code section 622.25
 16

allows handwriting evidence to be given “by comparison by the jury, with

writings of the same person which are proved to be genuine.” Iowa Code

§ 622.25 (2015). A judge conducting a bench trial surely has the same

authority to compare handwriting. Similarly, chapter 646 regarding

recovery of real property states that “[i]n case of wanton aggression on

the part of the defendant, the jury may award exemplary damages.” Id.

§ 646.21. Presumably the court could award those damages even if the

trial were not to a jury. And Iowa Code section 659.6 provides that in

defamation cases, “an unproved allegation of the truth of the matter

charged shall not be deemed proof of malice, unless the jury on the

whole case finds that such defense was made with malicious intent.” Id.

§ 659.6. Again, we think this directive would apply even if the

defamation case were tried to the court.

If Iowa Code section 613.15 established a nonwaivable right to a

jury trial on consortium claims, so far as we know it would be the only

area of Iowa law where a jury could not be waived. In Peoples Natural

Gas Co., Division of UtiliCorp United Inc. v. City of Hartley, we held that

the jury could be waived in condemnation cases, notwithstanding

language in Iowa’s constitution providing that “damages shall be

assessed by a jury” in such cases. 497 N.W.2d 874, 876 & n.2 (Iowa

1993) (quoting Iowa Const. art. I, § 18). For the foregoing reasons, we

reject the Roth children’s position that section 613.15 consortium claims

can only be decided by juries.

However, to this point we have only determined that a jury trial

may be waived in favor of a bench trial in a consortium action under

section 613.15. This leaves open the larger question whether a

consortium action must be arbitrated if the decedent (or as here his

attorney in fact) entered into a binding arbitration agreement. We are
 17

not convinced that the phrase “any action for damages” in Iowa Code

section 613.15, read in context, establishes only a right to proceed in

court and not by way of arbitration. For one thing, the word “any” is

broad. See Dolphin Residential Coop., Inc. v. Iowa City Bd. of Review, 863

N.W.2d 644, 660 (Iowa 2015) (Zager, J., dissenting) (noting the breadth

of the term “any”). Arbitration, of course, is another way to waive a jury.

See Iowa Code § 679A.1(1).

Moreover, we are guided by the principle that we construe statutes

to avoid constitutional infirmities. See Iowa Dep’t of Human Servs. v.

Cmty. Care, Inc., 861 N.W.2d 868, 869 (Iowa 2015) (referring to “the

principle that we avoid interpreting ambiguous statutes in a manner that

leads to constitutional difficulties”); Simmons v. State Pub. Def., 791

N.W.2d 69, 73–74, 88 (Iowa 2010) (“Ordinarily, we construe statutes to

avoid potential constitutional infirmity if we may reasonably do so.”); see

also Iowa Code § 4.4(1) (setting forth a presumption that in enacting a

statute, compliance with the Iowa and United States Constitutions is

intended).

If Iowa Code section 613.15 were interpreted as requiring judicial

resolution—as opposed to arbitration—of a particular category of claims,

this would raise serious questions as to its validity under the Supremacy

Clause of the United States Constitution. See U.S. Const. art. VI. The

United States Supreme Court has indicated on several occasions that the

Federal Arbitration Act (FAA) preempts state laws that purport to forbid

arbitration of certain state-law claims. “When parties agree to arbitrate

all questions arising under a contract, the FAA supersedes state laws

lodging primary jurisdiction in another forum, whether judicial or

administrative.” Preston v. Ferrer, 552 U.S. 346, 359, 128 S. Ct. 978,

987, 169 L. Ed. 2d 917, 929 (2008). “When state law prohibits outright
 18

the arbitration of a particular type of claim, the analysis is

straightforward: The conflicting rule is displaced by the FAA.” AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 341, 131 S. Ct. 1740, 1747,

179 L. Ed. 2d 742, 752 (2011). 2

Because of its subject matter, Marmet Health Care Center, Inc. v.

Brown, 565 U.S. ___, 132 S. Ct. 1201, 182 L. Ed. 2d 42 (2012) (per

curiam) is pertinent in this regard. There the United States Supreme

Court considered three consolidated negligence cases filed against West

Virginia nursing homes. In each case, a family member of the resident

had sued the nursing home in state court following the resident’s death,

even though a clause in the nursing home admission agreement required

2The FAA provides,
A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction, or the
refusal to perform the whole or any part thereof, or an agreement in
writing to submit to arbitration an existing controversy arising out of
such a contract, transaction, or refusal, shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.
9 U.S.C. § 2 (2012).
[M]any—if not all—federal and state courts have held that nursing home
residency contracts similar to the one at issue here implicate interstate
commerce and the FAA. Generally, these holdings center on a common
theme: nursing home residency contracts usually entail providing
residents with meals and medical supplies that are inevitably shipped
across state lines from out-of-state vendors.
Dean v. Heritage Healthcare of Ridgeway, LLC, 759 S.E.2d 727, 732 (S.C. 2014).
Given that the arbitration agreement at issue indisputably
involves commerce and that Arbor Brook is subject to federal regulation
and control, we conclude that the FAA applies to the arbitration
agreement Plaintiff signed as a mandatory condition of nursing home
admission.
Strausberg v. Laurel Healthcare Providers, LLC, 304 P.3d 409, 417 (N.M. 2013). In the
present case, it is undisputed that Good Samaritan procures medical equipment and
supplies from a number of out-of-state sources and receives approximately half its
income from the Medicare and Medicaid programs.
 19

arbitration of disputes. Id. at ___, 132 S. Ct. at 1202–03, 182 L. Ed. 2d

at 44. The Supreme Court of Appeals of West Virginia declined to enforce

the arbitration clauses, holding that

as a matter of public policy under West Virginia law, an
arbitration clause in a nursing home admission agreement
adopted prior to an occurrence of negligence that results in a
personal injury or wrongful death, shall not be enforced to
compel arbitration of a dispute concerning the negligence.

Id. at ___, 132 S. Ct. at 1203, 182 L. Ed. 2d at 45 (quoting Brown ex rel.

Brown v. Genesis Healthcare Corp., 724 S.E.2d 250, 292 (W. Va. 2011)).

The United States Supreme Court granted the nursing home’s

petition for certiorari and vacated the state supreme court’s decision in a

per curiam opinion. Id. at ___, 132 S. Ct. at 1204, 182 L. Ed. 2d at 46.

Specifically, it held that

West Virginia’s prohibition against predispute agreements to
arbitrate personal-injury or wrongful-death claims against
nursing homes is a categorical rule prohibiting arbitration of
a particular type of claim, and that rule is contrary to the
terms and coverage of the FAA.

Id. at ___, 132 S. Ct. at 1203–04, 182 L. Ed. 2d at 45 (citing inter alia
Concepcion and Preston); see also Mastrobuono v. Shearson Lehman

Hutton, Inc., 514 U.S. 52, 56, 115 S. Ct. 1212, 1215–16, 131 L. Ed. 2d

76, 83–84 (1995) (FAA preempts state law requiring judicial resolution of

punitive damage claims); Southland Corp. v. Keating, 465 U.S. 1, 10, 104

S. Ct. 852, 858, 79 L. Ed. 2d 1, 12 (1984) (FAA preempts state statute’s

bar on arbitration of claims brought under that statute).

Marmet Health heightens our doubts as to the constitutionality of a

construction of Iowa Code section 613.15 that would require all

consortium claims to be resolved in a judicial forum. Such an outcome

would result in “a categorical rule prohibiting arbitration of a particular

type of claim,” and would appear to trigger FAA preemption. See Weaver
 20

v. Doe, 371 P.3d 1170, 1177 (Okla. Civ. App. 2016) (applying Marmet

Health and ordering arbitration of a personal injury claim against a

nursing home notwithstanding a provision of the Oklahoma Nursing

Home Care Act that rejected arbitration of such claims); Fredericksburg

Care Co., L.P. v. Perez, 461 S.W.3d 513, 528 (Tex. 2015) (ordering

arbitration of a wrongful-death claim against a nursing home after

finding that a Texas statute limiting arbitration of claims against health

care providers was preempted by the FAA).

Nonetheless, we do not find the Roth children’s consortium claims

subject to arbitration under the facts certified to us. These claims belong

to the adult children, and they never personally agreed to arbitrate. See

Order Certifying Questions at 6 (“The Roth children are correct that none

of them signed the arbitration agreement in their individual capacities or

otherwise agreed to arbitration of their individual claims.”). While loss-

of-consortium claims under Iowa Code section 613.15 could be subject to

arbitration, a decedent’s arbitration agreement alone is an insufficient

basis for this outcome.

We reach this conclusion for several reasons. First, it bears

emphasis that the child owns the cause of action and the personal

representative is “merely the conduit, the nominal plaintiff,” when

bringing the child’s consortium claim under Iowa Code section 613.15.

See Beeck, 359 N.W.2d at 487; see also Christy, 692 N.W.2d at 706. The

purpose for this arrangement is simply “to reduce a multiplicity of suits

and the possibility of double recovery.” Beeck, 359 N.W.2d at 487; see

also Christy, 692 N.W.2d at 705–06. Hence, as noted, we have

previously held that the child’s statute of limitations, not the personal

representative’s, applies to consortium claims. Christy, 692 N.W.2d at

706. We have also accepted that this rule “may result in a child’s claim
 21

being prosecuted independently.” Id. As we have noted in a different

setting, “[T]he substantive rights of a plaintiff can be at stake through the

application of a statute of limitations.” Rucker v. Taylor, 828 N.W.2d

595, 603 (Iowa 2013). Accordingly, we do not allow the identity of the

nominal plaintiff to define substantive rights when it comes to the statute

of limitations for consortium claims.

The FAA too has been viewed as substantive law. It “rests on the

authority of Congress to enact substantive rules under the Commerce

Clause.” Southland Corp., 465 U.S. at 11, 104 S. Ct. at 858, 79 L. Ed. 2d

at 12. It is “a body of federal substantive law.” Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74

L. Ed. 2d 765, 785 (1983). Given the FAA’s status as substantive law, it

seems quite wrong that an adult child could be bound to that body of law

absent his or her agreement, simply because the adult child’s claim is

routed procedurally through a different party. This, in our view,

confuses substance with procedure. See Mission Residential, LLC v.

Triple Net Props., LLC, 654 S.E.2d 888, 891 (Va. 2008) (finding that a

claim filed by a member of a limited liability company on behalf of the

LLC was not subject to the member’s arbitration agreement because the

member was only a “nominal plaintiff” bringing suit on behalf of the

LLC).

Second, even if we held that consortium claims brought by a

personal representative were subject to the decedent’s arbitration

agreement, the children would have an easy way to avoid arbitration.

Under Nelson, if “the statutory plaintiff has already commenced an action

omitting the claims of a child,” the child may bring the consortium claim

directly. 368 N.W.2d at 146. So, in the future, lawyers could sidestep

arbitration simply by the expedient of filing a wrongful-death claim
 22

without including any consortium claim, then later filing a consortium

action in court naming the children as plaintiffs. Normally, we don’t

interpret our law as endorsing rules that can be easily circumvented.

Third, in jurisdictions where the wrongful-death claim belongs to

the survivors but is brought by the personal representative, courts

regularly hold that the decedent’s arbitration agreement does not lead to

arbitration of the wrongful-death case. Here, the situation is somewhat

analogous: Under Iowa law, one party owns the claim, but a different

party gets to file it.

For example, Ohio courts hold that a personal representative is not

bound to arbitrate a wrongful-death claim despite a decedent’s

arbitration agreement because “[a] decedent cannot bind his or her

beneficiaries to arbitrate their wrongful-death claims.” Wolcott, 61

N.E.3d at 856, 2016 WL 1178579, at *2 (alteration in original) (quoting

Peters v. Columbus Steel Castings Co., 873 N.E.2d 1258, 1259 (Ohio

2007)). In Ohio, the personal representative is just the “nominal party”

bringing the claim. Id. (quoting Peters, 873 N.E.2d at 1259). So too in

Kentucky. See Ping, 376 S.W.3d at 598, 599 (noting that in Kentucky,

the wrongful-death cause of action is “prosecuted by the personal

representative” but “accrues separately to the wrongful death

beneficiaries and is meant to compensate them for their own pecuniary

loss”). Likewise in Oklahoma. See Boler, 336 P.3d at 476 (noting that a

wrongful-death action is “maintained by the personal representative of

the deceased person” but “[t]he amounts recovered are distributed to

those designated [survivors] as specified in the statute”). Similarly, in

Washington, although the personal representative is “the exclusive

statutory agent to bring the wrongful death claims on behalf of the

heirs,” no benefits flow to the estate and the decedent’s arbitration
 23

agreement therefore has no effect. Woodall, 231 P.3d at 1258–59; see

also Estate of Decamacho, 316 P.3d at 614 (finding not arbitrable “the

wrongful death claim[] brought by [the personal representative] on behalf

of herself, Ramiro Camacho, and Candelario Camacho”); Norton, 783

S.E.2d at 440–41; Carter, 976 N.E.2d at 355–56; FutureCare NorthPoint,

143 A.3d at 212–13. We think the same principle applies here, and the

nominal plaintiff status of the administrator or executor is not enough to

compel arbitration of claims owned by the adult children and not by the

estate.

As the certifying federal district court observed, we have in the past

characterized the loss of consortium cause of action as “derived” and not

“independent.” Roquet by Roquet, 436 N.W.2d at 47. But it is important

to note the context in which these terms were used. We meant that the

consortium cause of action is derived from a statute, not that it is

derivative of the decedent’s rights and therefore subject to the decedent’s

litigation-related agreements. See id. (stating that “this cause of action

was derived from Iowa Code section 613.15”). For all these reasons, we

determine that under Iowa law, adult children’s loss-of-consortium

claims are not arbitrable just because the wrongful-death action is

otherwise arbitrable.

B. Second Certified Question: Does the Fact That a Deceased

Parent’s Estate’s Claims Are Subject to Arbitration Establish That It

Is Impossible, Impracticable, or Not in the Best Interest of the

Decedent’s Adult Children for the Decedent’s Estate to Maintain

Their Claims for Loss of Parental Consortium? In light of our answer

to the previous question, this question has become moot.
 24

IV. Conclusion.

We have answered the certified questions as set forth above for the

reasons stated and return this case to the United States District Court

for the Northern District of Iowa for further proceedings consistent with

this opinion.

CERTIFIED QUESTIONS ANSWERED.