concurring in judgment only.
{¶ 59} I concur in the conclusion reached by the majority, finding the arbitration contract both procedurally and substantively unconscionable. I write separately because my route to finding it substantively unconscionable is different.
{¶ 60} As I have written previously: “Courts should scrutinize consumer contracts more closely for unconscionability * * *. Commercial reasonability is not the only consideration when analyzing the substantive unconscionability of a contract.” Manley v. Personacare of Ohio, 11th Dist. No. 2005-L-174, 2007-Ohio-343, 2007 WL 210583, at ¶ 54. (O’Toole, J., dissenting.) See also Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 49, quoting Williams v. Aetna Fin. Co. (1998), 83 Ohio St.3d 464, 472, 700 N.E.2d 859 (“To be sure, an arbitration clause in a consumer contract with some characteristics of an adhesion contract ‘necessarily engenders more reservations than an arbitration clause in a different setting,’ such as a collective-bargaining agreement or a commercial contract between two businesses”). In this case, I respectfully find the reasoning of the majority slightly tautological: the arbitration contract is commercially unreasonable (and thus, substantively unconsciona*633ble), since it requires appellant to pursue two separate litigations in order to enforce the rights of the estate. I agree — but, since wrongful-death claims are not subject to arbitration unless the beneficiaries agree, while a decedent may bind his or her estate to arbitrate a survival action, such inefficiencies inhere in Ohio’s legal system. Cf. Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258, at ¶ 15-19.
{¶ 61} Rather, I rely on two points. First, I respectfully agree with the concurrence in Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, that arbitration contracts such as that at issue are substantively unconscionable since they violate the public policy of Ohio, as expressed by the General Assembly in enacting R.C. Chapter 3721. Writing for herself and Justice Lundberg Stratton, Justice Lanzinger stated:
{¶ 62} “I depart, however, from the majority’s conclusion that this arbitration agreement is not substantively unconscionable. I agree with the dissent that the agreement strips away statutory protections granted to nursing-home residents and defeats the will of the legislature. The majority cites commercial cases in emphasizing the public policy that favors arbitration rights. But the General Assembly has also expressed clearly its intent to protect nursing-home residents through enactment of R.C. Chapter 3721. This is the first time we have considered an arbitration agreement in the nursing-home setting, and we look to the content of the agreement itself to determine whether it is substantively unconscionable. The arbitration clause here waives appellee’s rights to punitive damages and attorney fees but refers to patient rights only by implication in the encompassing words ‘any dispute’ to be subject to arbitration. Because the General Assembly has granted special rights and remedies to those in appellee’s circumstances, unless an arbitration clause specifically explains the rights and remedies to be affected by the arbitration agreement, it is substantively unconscionable.” Id. at ¶ 47.
{¶ 63} Second, I am dismayed by the effects that collateral estoppel might work. As the Court of Appeals for the Eighth Appellate District has held: “An arbitration award has the same preclusive effect as a court judgment for the matters it decided. * * * [T]he party seeking to avoid issue preclusion has the burden of showing that the arbitrators did not decide that issue.” Cleveland v. Assn. of Cleveland Fire Fighters, Local 93 (1984), 20 Ohio App.3d 249, 254-255, 485 N.E.2d 792. See also Thompson v. Wing (1994), 70 Ohio St.3d 176, 184, 637 N.E.2d 917 (holding that the decedent’s beneficiaries are barred by collateral estoppel from relitigating in a wrongful-death action any issues previously resolved in an action by the decedent against the tortfeasor). Many similar issues inhere in the resolution of any survival action and wrongful-death action involving the same decedent. Peters, 115 Ohio St.3d 134, 2007-Ohio-4787, 873 *634N.E.2d 1258, at ¶ 16. I am reluctant to encourage as conscionable contracts that may cause a decedent to waive his or her beneficiaries’ rights to resolution by our trial courts of all the issues involved in a wrongful-death action simply because a survival action, in arbitration, is likely to conclude more swiftly.
{¶ 64} I respectfully concur.