United States Court of Appeals
For the First Circuit
No. 18-1779
GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR
CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a
Golden Living Center - Heathwood,
Plaintiffs, Appellees,
v.
JACKALYN M. SCHRADER, as the personal representative of the
estate of Emma J. Schrader,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,
David J. Hoey, and Law Offices of David J. Hoey, P.C. were on
brief, for appellant.
William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.
Bagby on brief for AARP and AARP Foundation, amici curiae.
Robert E. Curtis, Jr. on brief for Massachusetts Advocates
for Nursing Home Reform, amicus curiae.
Joseph M. Desmond, with whom Justin L. Amos and Morrison
Mahoney LLP were on brief, for appellees.
February 26, 2019
LYNCH, Circuit Judge. This case is about arbitration
agreements, nursing homes, and wrongful death claims under
Massachusetts law. A set of organizations (collectively, GGNSC)
that oversees the Golden Living Center Heathwood (Heathwood) in
Chestnut Hill sued in federal court to compel arbitration of an
underlying state wrongful death action brought by the personal
representative of a deceased former Heathwood resident. The
federal court compelled arbitration and declined to issue a stay
of the state wrongful death action. GGNSC Chestnut Hill LLC v.
Schrader, No. CV 16-10525-DPW, 2018 WL 1582555, at *9-10 (D. Mass.
Mar. 31, 2018). Whether arbitration was required turns on how
state law characterizes wrongful death actions.
The personal representative appeals. She argues that as
the plaintiff in the wrongful death suit, under state law, she is
not bound by the decedent's agreement to arbitrate with GGNSC
because her wrongful death right of recovery is independent of the
decedent's wrongful death claim. GGNSC argues, to the contrary,
that Massachusetts beneficiaries' wrongful death claims are
derivative of the decedent's wrongful death claim, and so the
arbitration agreement is binding. Because that dispute turns on
the characterization of wrongful death actions by the
Commonwealth, we certify questions to the Massachusetts Supreme
Judicial Court (SJC) under its Rule 1:03. See Bos. Gas Co. v.
Century Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008).
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I.
The parties do not dispute the relevant facts, which we
take largely from the district court opinion. Emma Schrader was
brought by ambulance to Heathwood in February 2013. After Emma's
admission and treatment, Jackalyn M. Schrader (Schrader), Emma's
daughter and appellant here, signed several documents for her
mother, including a standard (undated) "Alternative Dispute
Resolution Agreement" (Agreement). Schrader had authority to sign
these documents on her mother's behalf -- on September 11, 2011,
Emma had executed a document granting Schrader her power of
attorney.
The Agreement states in bold letters that a signature on
the Agreement is not a condition of admission to or continued
residence in the facility. It also says that the resident may
revoke "the Agreement by sending written notice to [Heathwood]
within thirty (30) days of signing it." The Agreement form has
two signature lines: one to accept and one to decline. Schrader
signed the accept line.
The Agreement provides that any dispute covered by the
Agreement "shall be resolved exclusively by an ADR process that
shall include mediation and, where mediation is not successful,
binding arbitration." The Agreement applies to "the Resident," a
term that the Agreement defines to include "all persons whose claim
is or may be derived through or on behalf of the Resident,
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including any next of kin, guardian, executor, administrator,
legal representative, or heir of the Resident, and any person who
has executed this Agreement on the Resident's behalf."1
Emma died on December 3, 2013. Schrader brought a
wrongful death action against GGNSC in Massachusetts state court
on February 4, 2016.2 The state complaint alleges that Schrader
brought the action as the personal representative of Emma's estate
"on behalf of the heirs of the decedent." And it alleges that
Emma's injuries were "injuries for which she would have been
entitled to bring an action had she survived, and the right to
bring such action survives her." The injuries alleged were a
"preventable sacral decubitus" and resulting pain and suffering,
which eventually required surgery and transfer to a special care
facility, and from which Emma never recovered.
GGNSC then brought this federal court action on March
15, 2016, under the Federal Arbitration Act to compel Schrader to
arbitrate the dispute. The district court granted the motion to
compel. Schrader, 2018 WL 1582555, at *10. The district court
1 GGNSC has never argued that Jackalyn's wrongful death
claims are subject to the Agreement's mandatory arbitration
provision because she is the "person who has executed th[e]
Agreement on the Resident's behalf."
2 Jackalyn says she also brought a negligence claim. The
district court treated this case as only concerning wrongful death,
finding the two claims to be equivalent for these purposes. The
parties have done the same on appeal, so we do too.
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first found that there was a valid contractual agreement to
arbitrate, id. at *4, and that the agreement was neither
procedurally nor substantively unconscionable under Massachusetts
law, id. at *5. Schrader has not appealed those conclusions, so
we take them as established fact.
The district court next considered whether Schrader's
wrongful death claims, which she brought in her capacity as
personal representative of her mother's estate, were derivative of
claims that Emma could have brought such that the claims were
subject to arbitration. Id. at *6. Schrader contended that her
wrongful death claims were not subject to the Agreement because a
wrongful death beneficiary's claims are independent of any claims
falling within the scope of the Agreement. Id.
Both parties argued that the issue turned on
Massachusetts state law. As no state opinion clearly decided the
issue, the district court made an informed prediction that the SJC
would hold that "a wrongful death claim is a derivative claim as
to which the decedent's representatives and beneficiaries would be
bound by [the decedent's] agreement to arbitrate." Id. at *8.
The district court highlighted several reasons for its conclusion:
First, claimants "can only recover if the decedent died under such
circumstances that the deceased could have recovered damages for
personal injuries if his death had not resulted." Id. at *7
(internal quotation marks omitted). Second, "the elements in a
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wrongful death claim mirror the elements necessary to prove
negligence had the decedent survived," so, "effectively," "there
would be no cause of action unless the decedent could have sued."
Id. at *7 n.3. And third, under Massachusetts law, one can only
bring a "wrongful death claim as the executor or administrator of
the decedent's estate." Id. at *7. The district court added that,
though the issue was one that might yield a different outcome from
state to state, "the weight of persuasive authority treats wrongful
death claims as derivative." Id. at *8.
After this, Schrader, for the first time, asked the
district court for certification to the SJC. GGNSC Chestnut Hill
LLC v. Schrader, No. CV 16-10525-DPW, 2018 WL 3405339, at *1 (D.
Mass. July 12, 2018). The district court declined to certify any
question at the "thirteenth-hour." Id.
II.
This court may, on its own motion, certify questions to
the SJC when those questions may be determinative of the pending
cause of action and when there is no controlling precedent that
answers them. Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98
(1st Cir. 2010); Mass. S.J.C. R. 1:03. This case meets both
conditions. Because the Agreement's enforceability as to
Schrader's claims turns on important issues of state law, including
statutory interpretation, common law, and matters of policy, we
think it best to certify questions to the SJC.
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We begin with background. "[A]rbitration is a matter of
contract." Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67
(2010). State contract law controls "who is bound by [arbitration
agreements]." Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630
(2009). We look to Massachusetts law to determine whether
Schrader, in bringing the wrongful death action, is bound by her
mother's Agreement to arbitrate claims against GGNSC.3 Resolution
of this state law issue will resolve this federal case.
The parties argue that wrongful death claims are either
"independent" (Schrader) or "derivative" (GGNSC) of the claim
concerning the decedent's death. Schrader argues that
Massachusetts segregates the rights of claimants and gives five
independent bases on which a claimant may bring a wrongful death
claim. See Mass. Gen. Laws ch. 229, § 2.
GGNSC responds that, in a case, like this one, that is
based on Section 2(1) or 2(2) of the wrongful death statute, the
plaintiff must prove that the defendant negligently caused the
decedent's death. GGNSC argues that because proving wrongful death
3 We reject Schrader's general argument that she, a non-
signatory to the Agreement (only having signed it using her
mother's power of attorney), cannot be compelled to arbitrate her
wrongful death beneficiary claims. Schrader waived this argument
by not raising it before the district court. See Vineberg v.
Bissonnette, 548 F.3d 50, 57 (1st Cir. 2008). Even absent waiver,
the argument lacks merit: There are exceptions to the "general
proposition" that "a contract cannot bind a non-party." Grand
Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir.
2014); see id. at 9-10.
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is contingent on proving underlying negligence against the
decedent, the beneficiaries' right of recovery must be viewed as
derived from the decedent's wrongful death claim. GGNSC highlights
that Massachusetts requires that all wrongful death actions be
brought by a personal representative of the decedent. And GGNSC
adds that its view is consistent with how the SJC has treated
analogous claims, and that good policy reasons support its reading.
Schrader responds that, although only a personal
representative may bring the suit, "it is the [beneficiary's] cause
of action." Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972).
Schrader adds that, under the Massachusetts wrongful death
statute, beneficiaries may receive different damages from those
that would have been available to a decedent or her estate.
Schrader also argues that Massachusetts law is not
unsettled and that it has resolved this question. She says the
SJC has consistently viewed wrongful death claims as independent.
GGNSC responds that, although Massachusetts may once have viewed
its wrongful death action as independent, see, e.g., McCarthy v.
Wood Lumber Co., 107 N.E. 439, 440 (1914), later amendments to the
wrongful death statute have invalidated that classification. In
1958, the legislature limited recovery under the statute to "such
circumstances that the deceased could have recovered damages for
personal injury if his death had not resulted." 1958 Mass. Acts
122, ch. 238 § 1. And the SJC has since held that the
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Commonwealth's "wrongful death statutes w[ould] no longer be
regarded as 'creating the right' to recovery for wrongful death" --
the law had "evolved to the point where it may now be held that
the right to recovery for wrongful death is of common law origin."
Gaudette, 284 N.E.2d at 229.
We hold that Massachusetts law does not clearly decide
the independent/derivative or other relevant questions about the
status of wrongful death actions in relation to the decedent. The
parties have provided us with no citation to a dispositive case.
Our own research reveals that the SJC has most recently reserved
the question this case presents. See Johnson v. Kindred
Healthcare, Inc., 2 N.E.3d 849, 856 n.14 (Mass. 2014) (declining
to address whether "a decedent's agreement to arbitrate future
disputes" binds "the statutory beneficiaries of a wrongful death
claim").
Even absent controlling precedent, certification may be
inappropriate when "the course the state court would take is
reasonably clear." Ropes & Gray LLP v. Jalbert (In re Engage,
Inc.), 544 F.3d 50, 53 (1st Cir. 2008) (internal quotation marks
and alterations omitted). This is not such a case.
It may be that the SJC will conclude that wrongful death
claims have both independent and derivative aspects. As noted, in
Massachusetts, claims under the first clause of the Massachusetts
wrongful death statute require a personal representative to show
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negligence against the decedent resulting in death. See Mass.
Gen. Laws ch. 229, § 2. But as the SJC has noted, "[i]n a very
real sense," a wrongful death claim "is the [beneficiary's] cause
of action." Gaudette, 284 N.E.2d at 230.
The issue here has yielded "profound conflict" across
the nation.4 Restatement (Second) of Judgments § 46 cmt. b. GGNSC
asserts that twenty-seven states find wrongful death claims to be
derivative, while fourteen states find them to be independent.
GGNSC adds a wrinkle. It says that the answer to the
independent/derivative question may possibly require addressing
another state-law issue. It argues that at least one state,
despite holding that a wrongful death claim is independent, has
held that, depending on the facts, such a claim may still be
subject to the decedent's arbitration agreement. See Allen v.
Pacheco, 71 P.3d 375, 379 (Colo. 2003) (en banc).
There are also substantial policy considerations at
stake. The SJC has observed that "[l]ike all common-law causes of
action, [Massachusetts's] common law of wrongful death evolves to
meet changes in the evolving life of the Commonwealth." Matsuyama
v. Birnbaum, 890 N.E.2d 819, 837 (Mass. 2008). The American
4 Decisions within the District of Massachusetts under
Massachusetts law are also split. Compare Schrader, 2018 WL
1582555, with Angelo v. USA Triathlon, No. CIV.A. 13-12177-LTS,
2014 WL 4716195 (D. Mass. Sept. 19, 2014), and Chung v.
StudentCity.com, Inc., No. CIV.A. 10-10943-RWZ, 2011 WL 4074297
(D. Mass. Sept. 9, 2011).
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Association of Retired Persons (AARP) and Massachusetts Advocates
for Nursing Home Reform, amici in favor of reversal, ably highlight
numerous issues that may or may not come under the rubric of
"changes in the evolving life of the Commonwealth."5
Because this case presents an unresolved question of
Massachusetts law whose answer is unclear, and because resolving
that issue may implicate policy judgments best left to the SJC, we
exercise our discretion in favor of certification. See In re
Engage, 544 F.3d at 53; see also Steinmetz v. Coyle & Caron, Inc.,
862 F.3d 128, 142 (1st Cir. 2017); Showtime Entm't, LLC v. Town of
Mendon, 769 F.3d 61, 82 (1st Cir. 2014).
We certify these questions to the Massachusetts SJC:
1. Is the wrongful death claim of Emma
Schrader's statutory heirs derivative or
independent of Emma Schrader's own cause
of action?
2. If the answer to the first question does
not resolve the issue presented to the
federal court, is Jackalyn Schrader's
wrongful death claim nonetheless subject
to Emma Schrader's Agreement that her
"next of kin, guardian, executor,
administrator, legal representative, or
heir" would arbitrate claims against
GGNSC?
5 AARP argues that nursing facility residents suffer from
high rates of abuse and neglect, that federal and state enforcement
efforts have inadequately protected those residents, and that
arbitration fails to address that culture of abuse and neglect.
Massachusetts Advocates for Nursing Home Reform add that the
Commonwealth has a public policy interest in maintaining
transparency in nursing homes because decisions in litigation are
public and that is not necessarily true of arbitrations.
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We welcome any additional observations about Massachusetts law
that the SJC may wish to offer.
III.
We direct the Clerk of this court to forward to the
Massachusetts SJC, under this court's official seal, a copy of the
certified questions and our decision here, and a copy of the briefs
and appendix filed by the parties and amici curiae, and a copy of
the record filed in the district court, which set forth all facts
relevant to the issues certified. We retain jurisdiction pending
that court's determination.
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