dissenting.
11 Citing a handful of cases from other states, the majority disregards long-standing Oklahoma case law that finds wrongful death actions derivative of the rights of the deceased. Riley v. Brown and Root, Inc., 1992 OK 114, ¶ 10, 836 P.2d 1298, 1300-1301 ("The action for wrongful death is not a separate and distinct tort, but is an action which derives from the rights of the decedent."). While it is true that Oklahoma's wrongful death statutes allow a cause of action to be brought by decedent's beneficiaries, this right of action "is predicated solely upon the right of the action which was personal to the decedent had he lived." Hill v. Graham, 1967 OK 10, ¶ 14, 424 P.2d 35, 37-38.
12 Wrongful death beneficiaries stand in the same legal shoes as the decedent, carrying "no more and no less rights than did the decedent." Riley v. Brown and Root, Inc., 1992 OK 114, ¶ 13, 836 P.2d 1298, 1301. See also Haws v. Luethje, 1972 OK 146, ¶ 13, 503 P.2d 871. In Haws, the Court held that a wrongful death claimant "may not accomplish what the decedent could not" even though the wrongful death claim does not technically accrue until the decedent's death. To conclude otherwise would provide the beneficiaries with greater rights than those enjoyed by the decedent.
T 8 The majority's need to characterize the wrongful death action as either wholly or partially derivative is a distinction without difference. Our case law has long provided that the rights of the beneficiaries are derivative under the wrongful death statutes and, as such, the beneficiaries should be bound by the decedent's agreement to arbitrate. Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298. |
T 4 The majority points out that the Oklahoma Constitution "provides that the right of action to recover damages for injuries resulting in death shall never be abrogated." I agree. Enforcement of the parties' arbitration agreement in this matter in no way abrogates the right to recover damages, it merely changes the forum in which the case is heard. The decedent's daughter, as the authorized legal representative by virtue of a Durable Power of Attorney, signed a three page arbitration agreement, which was contained within the decedent's admission agreement with Appellant. The validity of this agreement has not been challenged by the *478beneficiaries on appeal. Because I believe the decedent would be required to arbitrate any claims she may have had against the nursing home prior to her death, her beneficiaries should be compelled to do the same pursuant to the terms of the binding arbitration agreement.1 Accordingly, I respectfully dissent.
. Significantly, the United States Supreme Court has ruled in favor of the enforceability of an arbitration agreement even when an existing state law, much like the Nursing Home Act in this case, prohibits its enforcement. See Marmet Health Care Ctr., Inc. v. Brown, - U.S. -, 132 S.Ct. 1201, 182 LEd.2d 42 (2012)(per cu-riam). In Marmet, the Court upheld an arbitration agreement between a West Virginia nursing home and its resident even though West Virginia law prohibited the enforcement of arbitration agreements in nursing home residential contracts, citing the preemptive force of the Federal Arbitration Act, 9 U.S.C. § 2.