02/16/2024
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 22, 2023 Session
JAMES WILLIAMS v. SMYRNA RESIDENTIAL, LLC ET AL.
Appeal by Permission from the Court of Appeals
Circuit Court for Rutherford County
No. 78245 Bonita Jo Atwood, Judge
___________________________________
No. M2021-00927-SC-R11-CV
___________________________________
Granville Williams, Jr., died while residing at an assisted-living facility. The central
question in this appeal is whether his son’s ensuing wrongful-death action against the
facility must be arbitrated. To answer that question, we must resolve two subsidiary
issues—first, whether the attorney-in-fact who signed the arbitration agreement as
Williams’s representative had authority to do so and, second, whether Williams’s son and
other wrongful-death beneficiaries who were not parties to the arbitration agreement
nevertheless are bound by it. We hold that signing an optional arbitration agreement—that
is, one that is not a condition of admission to a health care facility—is not a “health care
decision” within the meaning of the Durable Power of Attorney for Health Care Act. The
durable power of attorney that gave Williams’s attorney-in-fact authority to act for him in
“all claims and litigation matters” thus provided authority to enter the optional arbitration
agreement even though it did not specifically grant authority to make health care decisions.
We further hold that Williams’s son is bound by the arbitration agreement because his
wrongful-death claims are derivative of his father’s claims. Because we conclude that the
claims in this action are subject to arbitration, we reverse the Court of Appeals’ contrary
decision and remand to the trial court.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Remanded to the Circuit Court
SARAH K. CAMPBELL, J., delivered the opinion of the court, in which JEFFREY S. BIVINS
and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, C.J., and SHARON G. LEE, J., filed
dissenting opinions.
Christy T. Crider and Caldwell G. Collins, Nashville, Tennessee, for the appellants,
Americare Systems, Inc., and Smyrna Residential, LLC.
Richard D. Piliponis, Benjamin J. Miller, and Sarah L. Martin, Nashville, Tennessee, for
the appellee, James Earl Williams.
OPINION
I.
A.
In 2007, Granville Williams, Jr., executed a durable power of attorney naming his
daughter, Karen Sams, as his attorney-in-fact. The power of attorney was executed in
Tennessee and provides that Tennessee law will govern the use of the document. Under
the heading, “Attorney-in-fact Powers,” the document includes the sentence, “Select the
powers you want to give your attorney.” Appearing below that sentence is a list of the
following ten powers:
[1] To sell, mortgage, exchange, lease or otherwise deal with real estate, land
and business.
[2] To buy, sell[, and] deal with chattels and goods[](tangible personal
property).
[3] To control bank and financial interest.
[4] To control or direct personal business or business interest.
[5] To control any insurance or annuity policy.
[6] To act for me in estate, trust and other beneficiary transaction.
[7] To act for me by managing assets transferred to any living trust that I may
have.
[8] To act for me in all claims and litigation matters.
[9] To act for me in securing all governmental benefits owed to me.
[10] To take any action required to fulfill tax obligations.
Williams selected all ten powers. And when asked whether he “wish[ed] to put
restrictions on [his] attorney-in-fact,” Williams answered “no.” The power of attorney did
not include an end date, and the parties agree that it remained in effect at all times relevant
to this action.
In early 2020, Williams was admitted to an assisted-care living facility called Azalea
Court. Relying on the power of attorney, Sams signed the admission agreement as
Williams’s representative.
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The admission agreement contains an alternative dispute resolution clause that
subjects all disputes under the agreement to arbitration. The clause incorporates the terms
and conditions of a separate arbitration agreement, which Sams also signed as Williams’s
representative. That agreement, in turn, provides that “any dispute” under the admission
agreement will be submitted to arbitration as provided by Tennessee law “except to the
extent preempted by the Federal Arbitration Act.” The arbitration agreement applies
broadly to “any legal claim or civil action of either party in connection with or related to
[a] [r]esident’s stay at the [f]acility.” And it provides that the arbitration agreement is
enforceable against not only the parties to the arbitration agreement, but also their heirs,
personal representatives, successors, and assignees.
The alternative dispute resolution clause provides that signing the arbitration
agreement “shall not be a condition of admission” to the facility. Similarly, the separate
arbitration agreement states that signing the agreement is not “a precondition to the
furnishing of services under the [a]dmission [a]greement.” A resident may terminate the
arbitration agreement within ten days after signing it. Even if a resident exercises the right
to terminate the arbitration agreement, the other terms of the admission agreement “remain
in full force and effect.”
B.
Williams died on April 27, 2020, only two months after he was admitted to Azalea
Court. Williams’s surviving son, James Williams, as next of kin and on behalf of his
father’s wrongful-death beneficiaries, sued two businesses that managed or operated
Azalea Court—Smyrna Residential, LLC, and Americare Systems, Inc., both doing
business as Azalea Court. His complaint asserted claims for negligence as well as “gross
negligence, willful, wanton, reckless, malicious and/or intentional misconduct.”
Defendants moved to compel arbitration. They argued that the 2007 power of
attorney vested Sams with “broad and encompassing” authority, including the authority to
enter into the arbitration agreement, and that the express terms of the agreement require
arbitration of the wrongful-death action.
Plaintiff disagreed. He argued that the power of attorney did not give Sams authority
to enter the arbitration agreement on Williams’s behalf because it did not specify that Sams
had authority to make health care decisions for Williams. In plaintiff’s view, signing the
arbitration agreement constituted a “health care decision” within the meaning of Tennessee
Code Annotated section 34-6-203 (2001) and therefore required a specific grant of
authority. Alternatively, plaintiff argued that even if Sams had authority to sign the
arbitration agreement, the agreement could not bind plaintiff because he was not a party to
it.
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The trial court declined to compel arbitration. The court agreed with plaintiff that
Sams lacked authority to sign the arbitration agreement. The court reasoned that entering
the agreement constituted a “health care decision” and the power of attorney did not grant
Sams authority to make health care decisions. And it further concluded that plaintiff would
not be bound by the arbitration agreement in any event because he was not a party to it.
The Court of Appeals affirmed. See Williams v. Smyrna Residential, LLC, No.
M2021-00927-COA-R3-CV, 2022 WL 1052429, at *1 (Tenn. Ct. App. Apr. 8, 2022),
perm. app. granted, (Tenn. Sept. 29, 2022). Its analysis relied heavily on this Court’s
decision in Owens v. National Health Corp., 263 S.W.3d 876 (Tenn. 2007), abrogated on
other grounds by Welch v. Oaktree Health & Rehab. Ctr. LLC, 674 S.W.3d 881 (Tenn.
2023). The Court of Appeals held that, under Owens, the decision to sign the optional
arbitration agreement was “part and parcel of a healthcare decision.” Williams, 2022 WL
1052429, at *6. The court acknowledged that “signing a stand-alone arbitration agreement
is a legal decision,” but it reasoned that the arbitration agreement here was a health care
decision because it “was executed in the context of [Williams’s] admission to Azalea Court
. . . [and] was intertwined with the decision to admit [Williams].” Id. Because the power of
attorney executed by Williams “did not provide or even contemplate healthcare decision-
making power,” it did not give Sams authority to enter the arbitration agreement. Id.
Relying on Beard v. Branson, 528 S.W.3d 487 (Tenn. 2017), the Court of Appeals further
held that neither plaintiff nor other statutory wrongful-death beneficiaries would be bound
by the arbitration agreement in any event. Williams, 2022 WL 1052429, at *9. They were
not signatories to the agreement, and plaintiff was “not merely a representative of
[Williams] or his estate” but rather was “bringing his own right of action for his own benefit
and the benefit of the other statutory beneficiaries for wrongful death.” Id.
We granted defendants’ application for permission to appeal. That application raised
five issues, but we reach only two. First, we consider whether Sams had authority to enter
the arbitration agreement on Williams’s behalf. We conclude that she did. Second, we
consider whether plaintiff and Williams’s other wrongful-death beneficiaries are bound by
that agreement even though they were not parties to it. We conclude that they are.1
1
Because we hold that Sams had authority to enter the arbitration agreement under the durable
power of attorney, we need not reach defendants’ alternative arguments that Sams satisfied the statutory
requirements to act as Williams’s health care surrogate or that the Court of Appeals erred in determining
that defendants had waived that argument. And because we hold that the arbitration agreement is
enforceable, we need not consider defendants’ argument that the failure to enforce the agreement would
violate the Federal Arbitration Act.
-4-
II.
We review the denial of a motion to compel arbitration de novo, with no
presumption of correctness. Owens, 263 S.W.3d at 882; see also Tenn. R. App. P. 13(d).
Both the Federal Arbitration Act and corresponding Tennessee statutes make clear that
“agreements to arbitrate disputes should be treated in the same manner as other contracts.”
Harvey ex rel. Gladden v. Cumberland Tr. & Inv. Co., 532 S.W.3d 243, 266 (Tenn. 2017).
So we apply ordinary principles of contract law to determine whether there is an
enforceable agreement to arbitrate. See Taylor v. Butler, 142 S.W.3d 277, 284 (Tenn.
2004); Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn. 1999).
We also review questions of statutory interpretation de novo. See Lawson v.
Hawkins Cnty., 661 S.W.3d 54, 59 (Tenn. 2023). We generally interpret statutory terms
according to their “natural and ordinary meaning.” State v. Deberry, 651 S.W.3d 918, 925
(Tenn. 2022) (quoting Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015)). That
is, we ask “how a reasonable reader, fully competent in the language, would have
understood the text at the time it was issued.” Id. at 924 (quoting Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012)). When the statute
itself defines a term, however, we must follow that definition even if it differs from the
term’s ordinary meaning. See Tanzin v. Tanvir, 592 U.S. 43, 47 (2020); see also Burgess
v. United States, 553 U.S. 124, 129–30 (2008) (“Statutory definitions control the meaning
of statutory words . . . in the usual case.” (quoting Lawson v. Suwannee Fruit & S.S. Co.,
336 U.S. 198, 201 (1949))); 2A Shambie Singer, Sutherland Statutes and Statutory
Construction § 47:7 (7th ed.), Westlaw (database updated Nov. 2023).
Because the interpretation of a power of attorney is a question of law, our review of
that issue likewise is de novo. See Tenn. Farmers Life Reassurance Co. v. Rose, 239
S.W.3d 743, 750 (Tenn. 2007). In general, “[t]he language of a power of attorney
determines the extent of the authority conveyed.” Id. at 749 (quoting Armstrong v. Roberts,
211 S.W.3d 867, 869 (Tex. Ct. App. 2006)). We interpret a power of attorney “according
to [its] plain terms” and “us[e] the same rules of construction generally applicable to
contracts and other written instruments.” Id. at 749–50. A power of attorney should be
given “neither a ‘strict’ nor a ‘liberal’ interpretation . . . but rather a fair construction that
carries out the author’s intent as expressed in the instrument.” Id. at 750. We also must
consider any relevant governing statutes and interpret the power of attorney consistently
with those laws. See Owens, 263 S.W.3d at 884.
III.
The parties do not dispute that plaintiff’s claims are related to Williams’s stay at
Azalea Court and therefore fall within the scope of the arbitration agreement. Their
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disagreement instead centers on whether the arbitration agreement was validly entered in
the first place and, if so, whether it is enforceable against plaintiff, a non-signatory. We
address each issue in turn.
A.
Our analysis of the first issue proceeds in three parts. We begin by introducing the
statutory framework that governs powers of attorney in Tennessee. We then consider
whether entering the arbitration agreement is a “health care decision” within the meaning
of the Durable Power of Attorney for Health Care Act. Finally, we determine whether the
durable power of attorney that Williams executed gave Sams authority to enter the
agreement.
1.
The Uniform Durable Power of Attorney Act—or Uniform Act, for short—
establishes a legal framework to govern durable powers of attorney. See Uniform Durable
Power of Attorney Act, ch. 299, §§ 1–13, 1983 Tenn. Pub. Acts 509–11 (codified as
amended at Tenn. Code Ann. §§ 34-6-101 to -112 (1984)). The Act enumerates twenty-
two non-exclusive categories of authority that a principal may grant to an attorney-in-fact
simply by incorporating that statutory provision by reference. See Tenn. Code Ann. § 34-
6-109 (2001).2 The Act further provides, however, that these enumerated categories should
not be construed “to vest an attorney in fact with, or authorize an attorney in fact to
exercise” certain specified powers. Id. § 34-6-108(c) (2001). Those specified powers
include the authority to “[m]ake any decisions regarding medical treatments or health care,
except as incidental to decisions regarding property and finances.” Id. § 34-6-108(c)(9). A
principal is always free, however, to grant an attorney-in-fact that power, as well as other
powers that are not enumerated in section -109 or that are excluded under section -108. See
id. § 34-6-108(b)(1). Similarly, a principal may “[d]elete any of the powers otherwise
granted in [section -109].” Id. § 34-6-108(b)(2).
The power of attorney executed by Williams did not reference section -109 or
expressly adopt the categories enumerated in that provision. Consequently, the limiting
language of section -108 does not apply in this case. See id. § 34-6-108(a) (“Upon the
principal clearly expressing an intention to do so within the instrument creating a power of
attorney, the language contained in § 34-6-109 may be incorporated into such power of
attorney by appropriate reference.”); Tenn. Farmers, 239 S.W.3d at 749 (explaining that
when the power of attorney does “not mention any provisions of the [Uniform] Act” or
2
This provision of the Uniform Act has since been amended, but the 2001 version governs here
because it was in effect when Williams executed the power of attorney.
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“otherwise clearly express an intention to adopt the language contained in section 34-6-
109,” resolution of the case “does not involve the application of sections 34-6-108 and 34-
6-109”). The scope of Sams’s authority under the power of attorney instead is controlled
by the language of the power of attorney itself, subject to any other applicable laws. See
Tenn. Farmers, 239 S.W.3d at 749.
The Durable Power of Attorney for Health Care Act—or Health Care Act, for
short—establishes requirements for durable powers of attorney for health care. See Durable
Power of Attorney for Health Care Act, ch. 831, §§ 1–14, 1990 Tenn. Pub. Acts 355–61
(codified as amended at Tenn. Code Ann. §§ 34-6-201 to -215 (1991)). A “durable power
of attorney for health care” is defined as a “durable power of attorney to the extent that it
authorizes an attorney in fact to make health care decisions for the principal.” Tenn. Code
Ann. § 34-6-201(1) (2001). Any “durable power of attorney for health care executed after
July 1, 1991,” must comply with certain statutory requirements to be effective. Id. § 34-6-
202(a).
Of particular significance here is the requirement that a health care power of
attorney must “specifically authorize[] the attorney in . . . fact to make health care
decisions.” Id. § 34-6-203(a)(1). The Health Care Act defines the terms “health care” and
“health care decision.” See id. § 34-6-201(2)–(3). “Health care” means “any care,
treatment, service or procedure to maintain, diagnose or treat an individual’s physical or
mental condition, and includes medical care as defined in § 32-11-103(5).” Id. § 34-6-
201(2). “Health care decision” means “consent, refusal of consent or withdrawal of consent
to health care.” Id. § 34-6-201(3).3
2.
Plaintiff argues that entering the arbitration agreement constituted a “health care
decision” within the meaning of the Health Care Act because it was part of the process of
admitting Williams to an assisted-living facility. In plaintiff’s view, Sams lacked authority
to enter the arbitration agreement because the durable power of attorney that Williams
executed did not grant her specific authority to make health care decisions.
Defendants disagree. First, they contend that entering an arbitration agreement is a
legal decision and urge the Court to reject a reading of the Health Care Act that would strip
an attorney-in-fact of her authority to make those decisions simply because they occurred
in the health care context. Second, they contend that the arbitration agreement in this case
3
A third statute enacted in 2004, the Tennessee Health Care Decisions Act, provides that durable
powers of attorney for health care that comply with that law may be treated as advance directives. See Tenn.
Code Ann. § 68-11-1803(j) (2006).
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is not a “health care decision” within the meaning of the Health Care Act because it was
not a condition of admission.
Because both parties rely on Owens to support their respective positions, we start
by discussing that decision.
a.
In Owens, as here, this Court considered whether an attorney-in-fact had authority
to enter an arbitration agreement in the course of admitting a principal to a nursing home.
263 S.W.3d at 879. Unlike here, however, the arbitration agreement in that case was a
condition of admission to the facility, and the durable power of attorney granted the
attorney-in-fact authority to make health care decisions but did not confer other authority.
See id. at 879–81, 887, 890. We concluded that “an attorney-in-fact acting pursuant to a
durable power of attorney for health care may sign a nursing-home contract that contains
an arbitration provision because this action is necessary to ‘consent . . . to health care.’” Id.
at 884 (quoting Tenn. Code Ann. § 34-6-201(3)). We acknowledged that signing an
arbitration agreement is a “legal decision” but rejected as “untenable” an approach that
would allow “the attorney-in-fact [to] make one ‘legal decision,’ contracting for health care
services for the principal, but not another, agreeing in the contract to binding arbitration.”
Id. at 884–85. “Holding that an attorney-in-fact can make some ‘legal decisions’ but not
others,” we explained, “would introduce an element of uncertainty into health care
contracts signed by attorneys-in-fact” that could make it harder to obtain health care. Id. at
885.
Both sides cite Owens to support their positions. Plaintiff points to Owens in arguing
that all decisions made in the course of admitting someone to a health care facility
constitute “health care decisions” that require a specific grant of authority. Defendants,
meanwhile, cite Owens to bolster their view that entering an arbitration agreement is a
“legal decision” that Sams had authority to make under the power of attorney Williams
executed.
Owens, however, does not dictate the outcome in this case. The issue in Owens,
although superficially similar to the question here, differed in material respects. The
attorney-in-fact in Owens only had authority to make health care decisions. Id. at 879. And
the arbitration agreement there was a condition of admission to the facility. Id. at 879–81,
887, 890. To resolve this case, we must look beyond Owens and consider as a matter of
first impression whether an attorney-in-fact with general authority to act for a principal in
“all claims and litigation matters,” but no specific authority to make health care decisions,
may enter an arbitration agreement in the course of admitting a principal to a health care
facility when that agreement is not a condition of admission.
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b.
To determine whether signing the arbitration agreement here was a “health care
decision” within the meaning of the Health Care Act, we examine the statutory language.
The Health Care Act defines the terms “health care” and “health care decision” for purposes
of the statute, so those statutory definitions control. “Health care” means “any care,
treatment, service or procedure to maintain, diagnose or treat an individual’s physical or
mental condition, and includes medical care as defined in § 32-11-103(5).” Tenn. Code
Ann. § 34-6-201(2).4 “Health care decision” means “consent, refusal of consent or
withdrawal of consent to health care.” Id. § 34-6-201(3). The term “consent” is not defined
by the statute. But dictionaries define the term to mean “[a]greement; approval;
permission” or a “voluntary agreement by a person in the possession and exercise of
sufficient mental capacity to make an intelligent choice to do something proposed by
another.” Consent, Black’s Law Dictionary 305 (6th ed. 1990); see also Consent, The
Oxford English Dictionary 760 (2d ed. 1989) (“Voluntary agreement to or acquiescence in
what another proposes or desires; compliance, concurrence, permission.”).
Sams did not make a “health care decision” when she signed the arbitration
agreement as part of the process of admitting Williams to Azalea Court. An arbitration
agreement is an agreement to submit certain legal disputes to arbitration. The only thing
Sams “consent[ed] to” when she entered the arbitration agreement in this case was to have
Williams’s claims adjudicated in a particular forum. The arbitration agreement was not a
condition of admission to the facility or otherwise required for Williams to obtain health
care. In these circumstances, unlike in Owens, signing the arbitration agreement was not
“necessary to ‘consent . . . to health care.’” Owens, 263 S.W.3d at 884 (quoting Tenn. Code
Ann. § 34-6-201(3)).
The Court of Appeals acknowledged that “signing a stand-alone arbitration
agreement is a legal decision” and that the arbitration agreement here was optional.
Williams, 2022 WL 1052429, at *6. It nevertheless deemed the arbitration agreement in
this case a “health care decision” because “it was bound up in the context of a healthcare
decision” and “part and parcel of” that decision. Id.
4
Tennessee Code Annotated 32-11-103(5) defines “[m]edical care” to include “any procedure or
treatment rendered by a physician or health care provider designed to diagnose, assess or treat a disease,
illness or injury.” Such procedures and treatments include “surgery; drugs; transfusions; mechanical
ventilation; dialysis; cardiopulmonary resuscitation; artificial or forced feeding of nourishment, hydration
or other basic nutrients, regardless of the method used; radiation therapy; or any other medical act designed
for diagnosis, assessment or treatment or to sustain, restore or supplant vital body function.” Tenn. Code
Ann. § 32-11-103(5) (2001).
-9-
That reasoning cannot be reconciled with the language of the Health Care Act. The
Act defines the term “health care decision” to mean “consent, refusal of consent or
withdrawal of consent to health care.” Tenn. Code Ann. § 34-6-201(3). The statutory
definition focuses narrowly on the consent to health care or the refusal or withdrawal
thereof; it does not sweep in any and all decisions related to or occurring in the context of
health care. An optional agreement to arbitrate in no way confers or withdraws consent to
receive “any care, treatment, [or] service . . . to maintain, diagnose or treat an individual’s
physical or mental condition.” Id. § 34-6-201(2). Consequently, it does not constitute a
“health care decision.”
Plaintiff contends that, in Owens, we “rejected the notion that some decisions made
in the process of admitting a person to a long-term care facility can be carved out as legal
decisions while the rest remain healthcare decisions.” But our holding in Owens rested
largely on the statutory definitions of “health care” and “health care decision.” The
arbitration agreement there constituted “consent . . . to health care” because it was required
for admission to the facility. 263 S.W.3d at 884 (quoting Tenn. Code Ann. § 34-6-201(3)).
We had no occasion in Owens to consider the distinct question presented in this case:
whether an arbitration agreement that is not a condition of admission is a “health care
decision.” We now hold that it is not.
Other state appellate courts with similar statutory definitions have reached the same
conclusion. See, e.g., State ex rel. AMFM, LLC v. King, 740 S.E.2d 66, 75 (W. Va. 2013)
(“[A]n agreement to submit future disputes to arbitration, which is optional and not
required for the receipt of nursing home services, is not a health care decision under the
West Virginia Health Care Decisions Act.” (citing W. Va. Code Ann. § 16-30-1 et seq.
(LexisNexis 2006))); Gayle v. Regeis Care Ctr., LLC, 191 A.D.3d 598, 599–600 (N.Y.
App. Div. 2021) (holding that health care surrogate did not have authority to execute
“entirely optional” arbitration agreement that “had no bearing” on receipt of health care
(citing N.Y. Pub. Health Law § 2994-a(12), (14) (McKinney 2015))); Primmer v.
Healthcare Indus., 43 N.E.3d 788, 792–93 (Ohio Ct. App. 2015) (explaining that decision
to “submit disputes between nursing homes and their patients to binding arbitration” is not
a “health care decision” where “execution of the arbitration agreement was not necessary
for admission” (citing Ohio Rev. Code Ann. § 1337.11(G)–(H) (LexisNexis 2006)));
GGNSC Stanford, LLC v. Rowe, 388 S.W.3d 117, 124 (Ky. Ct. App. 2012) (holding that
“separate and ancillary” arbitration agreement did “not concern any type of medical
treatment, procedure, or intervention” and “was not a necessary part” of the facility
admission agreement (citing Ky. Rev. Stat. Ann. § 311.621(8) (LexisNexis 1995))).
And still other courts have held the same by interpreting language in the power of
attorney itself that granted authority to make health care decisions. See, e.g., Ping v. Beverly
Enters., Inc., 376 S.W.3d 581, 592–94 (Ky. 2012) (holding that a power of attorney
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granting the agent authority to make health care decisions, among other broad powers, did
not confer authority to enter optional arbitration agreement); Life Care Ctrs. of Am. v.
Smith, 681 S.E.2d 182, 185 (Ga. Ct. App. 2009) (similar); Tex. Cityview Care Ctr., L.P. v.
Fryer, 227 S.W.3d 345, 352 (Tex. Ct. App. 2007) (similar); cf. Primmer, 43 N.E.3d at 793
(holding that “plain language of the power attorney” further supported the conclusion that
the arbitration agreement was not a “health care decision”).
The Court of Appeals cited two unpublished decisions from the United States
District Court for the Western District of Tennessee as support for its contrary holding.
Williams, 2022 WL 1052429, at *4–6 (citing Crawford v. Allenbrooke Nursing & Rehab.
Ctr., LLC, No. 2:21-cv-02054-TLP-tmp, 2021 WL 3926244, at *7–10 (W.D. Tenn. Sept.
1, 2021), and Sykes v. Quince Nursing & Rehab. Ctr., LLC, No. 2:19-cv-02602-SHL-tmp,
2020 WL 7866881, at *3 (W.D. Tenn. Sept. 1, 2020)). But Crawford and Sykes are
distinguishable. In each case, the broader agreement containing the arbitration clause
expressly stated that “the signing of th[e] [a]greement, both by itself and in conjunction
with the corresponding admission and receipt of services, is a health care decision.”
Crawford, 2021 WL 3926244, at *6; see Sykes, 2020 WL 7866881, at *3. And in each case,
the court focused on the “plain language” of the arbitration agreement itself in concluding
that the agreement was a health care decision. Crawford, 2021 WL 3926244, at *6; Sykes,
2020 WL 7866881, at *3. Sykes does not even mention, let alone carefully interpret and
apply, the statutory definition of “health care decision.” Although Crawford cites that
definition, it does not explain why the arbitration agreement in that case fits within it. See
2021 WL 3926244, at *4. Finally, neither Crawford nor Sykes indicated whether the
arbitration agreements at issue in those cases were conditions of admission. We do not find
these non-binding precedents persuasive.
Because we conclude that signing an optional arbitration agreement during
admission to a health care facility is not a “health care decision” within the meaning of the
Health Care Act, we need not reach defendants’ broader argument that the Health Care Act
does not preclude an attorney-in-fact with general authority to make legal decisions from
exercising that authority in the health care context, even if the decision falls within the
statutory definition of “health care decision.”
c.
The dissenting opinions raise a few points that warrant response.
First, the dissenting opinions argue that it is unclear whether the arbitration
agreement in Owens was actually mandatory. But both the opinion in Owens and the
parties’ filings in that case confirm that the agreement was a condition of admission to the
facility.
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Start with the opinion. One of the issues we addressed in Owens was the plaintiff’s
contention “that it is illegal to require a patient to sign an arbitration agreement waiving
the right to a jury trial as a precondition for being admitted to a nursing home.” 263 S.W.3d
at 887. That argument was premised on a federal statute and regulation that prohibit a
“nursing facility” from receiving “any gift, money, donation, or other consideration as a
precondition” to admitting a Medicare or Medicaid recipient to the facility. Id. (emphasis
omitted) (quoting 42 U.S.C. § 1396r(c)(5)(A)(iii) (Supp. 2007) and 42 C.F.R.
§ 483.12(d)(3) (2006)). In rejecting the plaintiff’s argument, this Court did not question
whether the arbitration agreement was mandatory. It instead concluded that the agreement
did not violate federal law because “requiring a nursing-home admittee to agree to arbitrate
a dispute with the nursing home is not equivalent to charging an additional fee or other
consideration.” Id. Had the arbitration agreement not been mandatory—or had there been
some uncertainty in that regard—we surely would have mentioned it instead of addressing
the plaintiff’s argument on the merits.
Next consider the parties’ filings. In opening and reply briefs filed in this Court, the
plaintiff in Owens stated that the arbitration clause was “a condition of admission” that
could not “be revoked independent of revocation of the entire admission agreement.” Brief
of Plaintiff-Appellant at xiv, Owens, 263 S.W.3d 876 (No. M2005-01272-SC-R11-CV);
Reply Brief of Plaintiff-Appellant at xii, Owens, 263 S.W.3d 876 (No. M2005-01272-SC-
R11-CV). The defendants’ brief did not dispute this assertion, either in its statement of
facts or its response to the plaintiff’s argument that the agreement constituted “‘other
consideration’ as [a] precondition of admission to the nursing home.” See Brief of
Defendants-Appellees at 23–24, Owens, 263 S.W.3d 876 (No. M2005-01272-SC-R11-
CV).
After losing in this Court, the plaintiff in Owens filed a petition for certiorari in the
United States Supreme Court. The question presented stated in relevant part:
The defendants below, Respondents here, are the owners and
operators of a nursing home that requires the execution of a pre-dispute
arbitration clause waiving all rights to access to the courts and a jury trial as
a condition of admission to their facility. . . . [T]he question presented in this
petition is [whether] a nursing home [may] require a Medicare recipient to
waive substantive rights by entering into a binding and mandatory pre-
dispute arbitration clause as a condition of admission.
Petition for Writ of Certiorari at i, Owens v. Nat’l Health Corp., 129 S. Ct. 59 (2008) (No.
07-1380), 2008 WL 1969300, at *i (emphasis added). The petition also included the
following statement: “It is undisputed that agreeing to [the arbitration] provision is a
condition of admission to the nursing home. It cannot be revoked independent of revocation
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of the entire admission agreement.” Id. at 7, 2008 WL 1969300, at *7 (emphasis added).
The brief in opposition filed by the defendants in Owens did not dispute that the arbitration
provision was a condition of admission. See Brief in Opposition, Owens, 129 S. Ct. 59,
2008 WL 2355787. Again, had there been any disagreement on that front, the defendants
surely would have mentioned it.
Second, Justice Lee’s dissenting opinion contends that, even if the arbitration
agreement in Owens was mandatory, that is not a valid ground for distinguishing Owens.
In her view, any decision that is “required to be made upon admission” to a health care
facility is a health care decision, even if the decision is “not required to be made in a certain
way.” This reasoning suffers from the same problem as the Court of Appeals’ analysis in
the decision below: it cannot be squared with the text of the Health Care Act. A “health
care decision” is defined narrowly as “consent, refusal of consent or withdrawal of consent
to health care.” Tenn. Code Ann. § 34-6-201(3). An ancillary agreement that is not a
precondition to admission to a health care facility cannot plausibly be understood as
“consent . . . to health care” because it is not a necessary part of granting permission for
treatment. Id.
Justice Lee also argues that the “arbitration agreement was part of the admission
agreement—not a separate agreement” because the larger admission agreement expressly
references the arbitration provision and contains an integration clause. This argument is
largely beside the point. The plain language of the contract made clear that signing the
agreement was not “a condition of admission” or a “precondition to the furnishing of
services.” Even if the signed arbitration agreement is properly understood as part of the
larger admission agreement, that does not change the arbitration agreement’s optional
nature.
Third, the dissenting opinions claim that our opinion leaves many questions
unanswered and creates uncertainty in this area of the law. To the extent we are leaving
questions unanswered, that is because we may only decide the questions that are presented
by this case. See, e.g., State v. Bristol, 654 S.W.3d 917, 924–25 (Tenn. 2022); Dorrier v.
Dark, 537 S.W.2d 888, 890 (Tenn. 1976). “We have neither constitutional authority nor
inherent power to give advisory opinions” on other issues that are not before us. Dorrier,
537 S.W.2d at 890.
Chief Justice Kirby’s dissenting opinion asserts that it “would be much more
practical for the Court to just overrule” Owens rather than distinguish it. But no party has
asked us to overrule Owens, let alone briefed the issue of whether Owens should be
overruled. In fact, when asked at oral argument whether the Court should overrule Owens,
counsel for defendants insisted that Owens is distinguishable and need not be overruled to
resolve this appeal. Deciding whether to overrule a precedent entails consideration of
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several factors, not simply whether that outcome would be “more practical.” See Frazier
v. State, 495 S.W.3d 246, 253 (Tenn. 2016). Accordingly, that question is best addressed
in a case where it is raised by the parties and developed through adversarial presentation.
Cf. Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2347 n.5 (2020) (“Before
overruling precedent, the Court usually requires that a party ask for overruling, or at least
obtains briefing on the overruling question, and then the Court carefully evaluates the
traditional stare decisis factors.”).
As for uncertainty, the distinction we draw between mandatory and optional
arbitration agreements follows from the plain language of the Health Care Act. If that
distinction proves problematic, the legislature may amend the statute. In the meantime,
nothing prevents an individual from executing both a health care power of attorney and a
general durable power of attorney to ensure that an attorney-in-fact has authority to make
all decisions that may arise in the course of seeking and obtaining health care.
3.
We next consider whether Williams’s durable power of attorney granted Sams the
authority to enter the arbitration agreement. To answer that question, we look to the “plain
terms” of the power of attorney and give those terms a “fair construction.” Tenn. Farmers,
239 S.W.3d at 750.
Recall that the power of attorney granted Sams ten powers. One of those powers
was to act on Williams’s behalf “in all claims and litigation matters,” without restriction.
The noun “claim” means “[t]he aggregate of operative facts giving rise to a right
enforceable by a court,” or “[t]he assertion of an existing right; any right to payment or to
an equitable remedy, even if contingent or provisional.” Claim, Black’s Law Dictionary
281–82 (9th ed. 2009). “Litigation” means “[t]he process of carrying on a lawsuit.”
Litigation, Black’s Law Dictionary 1017 (9th ed. 2009). The word “litigation” modifies
the noun “matter,” which means “[a] subject under consideration, esp. involving a dispute
or litigation.” Matter, Black’s Law Dictionary 1067 (9th ed. 2009).
The power to act on Williams’s behalf “in all claims and litigation matters”
encompasses the authority to sign an arbitration agreement. By signing the arbitration
agreement, Sams agreed that Williams’s “legal claim[s]” arising from his stay at Azalea
Court would be “determined by submission to arbitration . . . and not by a lawsuit or resort
to court process” and further agreed that Williams would “giv[e] up [his] constitutional
right to have any such dispute decided in a court of law before a jury.” In other words,
Sams decided where Williams’s claims would be resolved. The power of attorney confers
authority to act on Williams’s behalf “in all claims,” without restriction to claims pending
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in a judicial forum and without directing that claims must be resolved in a particular way.
The power to act on Williams’s behalf with respect to “all claims” thus includes the
authority to decide the means of resolving those claims. See Stephen J. Ware, Principles of
Alternative Dispute Resolution § 1, at 3 (3d ed. 2016) (explaining that claims only
sometimes lead to litigation and that “[t]he possible means of disputing [a claim] are
limited only by disputants’ imaginations”).
We are not the only court to hold that a “claims and litigation” clause in a power of
attorney confers authority to sign an arbitration agreement. The Florida District Court of
Appeal similarly has held that “the power to act with respect to ‘claims and litigation’ is
commonly understood to include the power to submit to arbitration.” Candansk, LLC v.
Est. of Hicks ex rel. Brownridge, 25 So. 3d 580, 584 (Fla. Dist. Ct. App. 2009); see also
Zephyr Haven Health & Rehab Ctr., Inc. v. Est. of Clukey ex rel. Clukey, 133 So. 3d 1230,
1232 (Fla. Dist. Ct. App. 2014). As Candask noted, moreover, statutes in many other States
specify that “claims and litigation” language in a power of attorney “empowers the
attorney-in-fact to submit to arbitration or ‘alternative dispute resolution.’” 25 So. 3d at
583. And so too does a more recent version of the Uniform Power of Attorney Act proposed
by the Uniform Law Commission. Unif. Power of Att’y Act § 212, 8B U.L.A. 241–42
(2014) (providing that “language in a power of attorney granting general authority with
respect to claims and litigation authorizes the agent to . . . submit to alternative dispute
resolution”). Tennessee does not have a similar statutory provision, but these laws further
support our conclusion that a provision conferring authority to act for a principal in “all
claims and litigation matters” is most reasonably understood to include the power to enter
an arbitration agreement.
* * *
In sum, we hold that (1) signing an arbitration agreement that is not a condition of
admission to a health care facility is not a “health care decision” under the Health Care
Act, and (2) Sams had authority to sign the arbitration agreement because the durable
power of attorney gave her the power to act for Williams “in all claims and litigation
matters.”
B.
We now turn to our final question: whether plaintiff, as a wrongful-death
beneficiary, is bound by the arbitration agreement even though he was not a party to it.
We apply “ordinary contract principles” to determine who is bound by an arbitration
agreement. Harvey, 532 S.W.3d at 265. Although an arbitration requirement generally may
be invoked only by and against a signatory to that agreement, a non-signatory who would
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be bound by an agreement under traditional principles of contract or agency law or other
generally applicable legal principles likewise will be bound by an arbitration agreement.
See id. (noting that the “way in which a party may become bound by a written arbitration
provision is limited only by generally operative principles of contract law” (alteration
omitted) (quoting Fisser v. Int’l Bank, 282 F.2d 231, 233 (2d Cir. 1960))); see also Benton
v. Vanderbilt Univ., 137 S.W.3d 614, 618–20 (Tenn. 2004) (applying general principles of
contract law to conclude that an “arbitration provision in a contract is enforceable against
a third-party beneficiary who has filed a cause of action seeking to enforce the contract”);
E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269
F.3d 187, 194 (3d Cir. 2001) (explaining that “a non-signatory cannot be bound to arbitrate
unless it is bound ‘under traditional principles of contract and agency law’ to be akin to a
signatory of the underlying agreement” (quoting Bel-Ray Co. v. Chemrite (Pty) Ltd., 181
F.3d 435, 444 (3d Cir. 1999))).
One circumstance in which other courts have held a non-signatory to be bound by a
contract is when the non-signatory is in privity with the signatory. See, e.g., Isp.com LLC
v. Theising, 805 N.E.2d 767, 774 (Ind. 2004) (“An arbitration clause, like any other
contract, binds the parties to the agreement and those in privity.”); see also 6 C.J.S.
Arbitration § 15, Westlaw (database updated Aug. 2023) (explaining that “[g]eneral
contract rules apply as to . . . who is bound by[] an agreement to arbitrate” and “[t]hus, a
person must be a party to or in privity with a party to an arbitration agreement in order to
. . . be bound by it” (footnote omitted)). We have defined privity as a “mutual
. . . relationship to the same rights of property.” Fultz v. Fultz, 175 S.W.2d 315, 316 (Tenn.
1943) (alteration in original) (quoting 24 American and English Encyclopaedia of Law 746
(David S. Garland et al. eds., 2d ed. 1903)); see also Phillips v. Gen. Motors Corp., 669
S.W.2d 665, 669 (Tenn. Ct. App. 1984) (noting that “[p]rivity in the traditional sense
mean[s] mutual or successive relationship to the same rights of property”); Pers. Loan &
Fin. Co. v. Kinnin, 408 S.W.2d 662, 664 (Tenn. Ct. App. 1966) (citing Black’s Law
Dictionary for the same definition).
Defendants argue that the claims of plaintiff and Williams’s other wrongful-death
beneficiaries must be arbitrated because those claims are “derivative” of any claim that
Williams would have had. They contend that wrongful-death beneficiaries “stand[] in the
shoes” of the decedent to assert the claims that belonged to the decedent. In support of that
argument, defendants point to the statutes creating the wrongful-death cause of action in
Tennessee and our precedents discussing that cause of action. We thus recap the history of
wrongful-death actions in Tennessee before addressing defendants’ argument.
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1.
A claim for wrongful death did not exist at common law. Beard, 528 S.W.3d at 496.
That was because “in a civil court the death of a human being could not be complained of
as an injury.” Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 596 (Tenn. 1999)
(quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 127, at 945 (5th
ed. 1984)). “This rule of non-liability for wrongful death was previously the prevailing
view in both England and in the United States.” Id.
In 1846, to address the “harsh effect of denying recovery for personal injuries
resulting in death,” the British Parliament enacted “Lord Campbell’s Act.” Id. This
legislation “created a cause of action for designated survivors that accrued upon the tort
victim’s death.” Id.
Only four years later, in 1850, Tennessee’s General Assembly enacted legislation
allowing personal representatives to pursue legal action on behalf of widows or next of kin
in cases of wrongful death. Id. The new legislation permitted a legal action even if no
proceedings had been commenced before the victim’s death. Id.
Tennessee was not an outlier. All States eventually abrogated the common-law rule
by enacting what generally have been characterized as either “survival statutes” or “purely
wrongful death statutes.” Beard, 528 S.W.3d at 496 (quoting Jordan, 984 S.W.2d at 597).
Survival statutes “permit the victim’s cause of action to survive the death, so that the
victim, through the victim’s estate, recovers damages that would have been recovered by
the victim had the victim survived.” Id. at 496 (quoting Jordan, 984 S.W.2d at 597). These
statutes “do not create a new cause of action” but transfer the cause of action from the
victim at the time of death “to the person designated in the statutory scheme to pursue it.”
Id. at 496–97 (quoting Jordan, 984 S.W.2d at 597). Recoverable damages are limited to
those “to which the decedent would have been entitled, such as lost wages, medical
expenses, [and] pain and suffering.” Id. at 497.
Wrongful-death statutes, by contrast, “create a new cause of action in favor of the
survivors of the victim for their loss occasioned by the death.” Id. (quoting Jordan, 984
S.W.2d at 597). These survivors are entitled to not only the damages the decedent would
have recovered, but also the “loss of the economic benefit which they might reasonably
have expected to receive from the decedent in the form of support, services or contributions
during the remainder of [the decedent’s] lifetime if [the decedent] had not been killed.” Id.
(alteration in original) (quoting Jordan, 984 S.W.2d at 598).
We have described Tennessee’s current wrongful-death statutory scheme as a
“hybrid” scheme with a “split personality.” Id. (quoting Jordan, 984 S.W.2d at 598). On
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the one hand, the scheme resembles a survival statute because it provides that the cause of
action a decedent “would have had against the wrongdoer . . . shall not abate or be
extinguished by the person’s death but shall pass to the person’s surviving spouse[,] . . .
children or next of kin[,] or . . . personal representative, for the benefit of the person’s
surviving spouse or next of kin.” Tenn. Code Ann. § 20-5-106(a) (1994 & Supp. 2006).5
On the other hand, it also resembles a pure wrongful-death statute because any funds
recovered from a wrongful-death action are “free from the claims of creditors,” id., and
statutory beneficiaries may recover both the damages suffered by the decedent and the
damages suffered by the beneficiaries, id. § 20-5-113 (1994).
Notwithstanding its hybrid nature, we have referred to our statutory scheme “as
‘survivor legislation’ because [it] preserve[s] whatever cause of action the decedent had at
the time of death.” Beard, 528 S.W.3d at 499. Our statutes “do not create a new cause of
action in the beneficiaries,” but instead “provide for the continued existence and passing
of the right of action of the deceased.” Id. (internal quotation mark omitted) (quoting
Jordan, 984 S.W.2d at 598).
2.
Defendants contend that the “plain language” of our wrongful-death statute and this
Court’s precedents require that plaintiff’s claims be submitted to arbitration. We agree.
As explained above, our wrongful-death statute provides that the decedent’s cause
of action “pass[es] to the person’s surviving spouse” and other beneficiaries. Tenn. Code
Ann. § 20-5-106(a). The term “pass,” when used as a verb, as it is here, means “[t]o transfer
from one owner to another; to sell or assign.” Pass, Noah Webster, An American Dictionary
of the English Language 592 (3d ed. 1830); see also Pass, Robert Gordon Latham, A
Dictionary of the English Language 980 (1876) (“Transfer to another proprietor, or into
the hands of another.”).
When Williams died, his wrongful-death action “passed”—i.e., was transferred—to
his beneficiaries. The claims of his beneficiaries therefore are derivative of Williams’s
claims and are subject to the same limitations as those claims. Tellingly, plaintiff concedes
that, “[i]f the decedent were to release all claims related to the injury-producing incident
while he were still alive, such a release would necessarily extinguish all other potential
causes of action arising from that same incident, including a wrongful death action,”
because there would be “no claim to survive the decedent’s death.” Plaintiff attempts to
5
The statutory scheme gives the surviving spouse priority to bring the cause of action and control
the litigation. If there is no surviving spouse, then priority goes to the children, and then to the next of kin.
Beard, 528 S.W.3d at 499–500.
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distinguish an arbitration agreement from a release by reasoning that “an arbitration
agreement does not extinguish any claims.” But it would be an “anomalous result” to bind
wrongful-death beneficiaries to a contract that extinguishes their claims altogether and not
to one that merely changes the forum for resolving them. In re Labatt Food Serv., L.P., 279
S.W.3d 640, 646 (Tex. 2009).
This conclusion fits with this Court’s precedents, which uniformly treat a wrongful-
death claim as derivative of the claim belonging to the decedent. See, e.g., Flax v.
DaimlerChrysler Corp., 272 S.W.3d 521, 529 (Tenn. 2008) (“It is well settled that a
wrongful death action is a claim belonging to the decedent, not the decedent’s
beneficiaries.”); Sullivan ex rel. Wrongful Death Beneficiaries of Sullivan v. Chattanooga
Med. Invs., LP, 221 S.W.3d 506, 511 (Tenn. 2007) (“[A] wrongful death action belongs to
the deceased person and not to his survivors.”); Ki v. State, 78 S.W.3d 876, 880 (Tenn.
2002) (“The decedent’s survivors are only asserting the decedent’s right of action on behalf
of the decedent.”); Kline v. Eyrich, 69 S.W.3d 197, 206 (Tenn. 2002) (“[T]he statutes
permitting an action for the wrongful death of another create ‘no right of action exist[ing]
independently of that which the deceased would have had, had [he or she] survived’”
(alterations in original) (quoting Rogers v. Donelson-Hermitage Chamber of Com., 807
S.W.2d 242, 245 (Tenn. Ct. App. 1990))); Lynn v. City of Jackson, 63 S.W.3d 332, 335
(Tenn. 2001) (recognizing that Tennessee’s “wrongful death statute does not create a new
cause of action in the beneficiaries”); Jordan, 984 S.W.2d at 601 (holding that
“consortium-type damages may be considered [in wrongful-death actions] when
calculating the pecuniary value of a deceased’s life” and making clear that “[t]his holding
d[id] not create a new cause of action”).
This conclusion also aligns with the decisions of courts in other States with
wrongful-death claims that are derivative in nature. See, e.g., Searcy Healthcare Ctr., LLC
v. Murphy, No. CV-13-210, 2013 WL 6047164, at *3 (Ark. Nov. 14, 2013) (“[B]ecause
the wrongful-death claim is derivative, the wrongful-death beneficiaries have the same
limitations as the decedent would if the decedent brought the claim, and are bound by the
agreements entered into by the decedent involving the decedent’s claims.”); Laizure v.
Avante at Leesburg, Inc., 109 So. 3d 752, 762 (Fla. 2013) (“[T]he nature of a wrongful
death cause of action in Florida is derivative in the context of determining whether a
decedent’s estate and heirs are bound by the decedent’s agreement to arbitrate. The estate
and heirs stand in the shoes of the decedent for purposes of whether the defendant is liable
and are bound by the decedent’s actions and contracts with respect to defenses and
releases.”); Labatt, 279 S.W.3d at 646 (explaining that Texas’s statutory wrongful-death
claim is “an entirely derivative cause of action” that depends on “the decedent’s right to
maintain suit for his injuries”); Cleveland v. Mann, 942 So. 2d 108, 119 (Miss. 2006)
(“Because [the decedent] agreed to arbitrate, he could not have brought this claim for
medical malpractice even if death had not ensued. He would have been required to submit
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his claim to arbitration. Therefore, since [the decedent] could not have brought this claim,
neither can plaintiffs.”); Ballard v. Sw. Detroit Hosp., 327 N.W.2d 370, 371–72 (Mich. Ct.
App. 1982) (explaining that Michigan’s wrongful-death “cause of action is expressly made
derivative of the decedent’s rights” and that the personal representative therefore is “bound
by the arbitration agreement to the same extent the decedent would have been bound had
she survived”).
Plaintiff urges us to consider instead the Illinois Supreme Court’s decision in Carter
v. SSC Odin Operating Co., 976 N.E.2d 344 (Ill. 2012). Although that court had previously
described a wrongful-death claim as “derivative,” it nevertheless held that a wrongful-
death plaintiff was not bound by an arbitration agreement entered by the decedent. Id. at
358–59, 361. The court acknowledged that a wrongful-death plaintiff could be bound by
an arbitration agreement signed by the decedent “to the extent th[e] plaintiff is acting in
[the decedent’s] stead.” Id. at 360. But it explained that the plaintiff in that case, who was
the personal representative of the decedent and not a wrongful-death beneficiary, was
“merely a nominal party, effectively filing suit as a statutory trustee on behalf of the next
of kin” who are “the true parties in interest.” Id.; see also id. at 354 (referencing the
statutory requirement that a wrongful-death action be “brought by and in the names of the
‘personal representatives’ of the deceased” (quoting 740 Ill. Comp. Stat. 180/2 (2006))).
Because the plaintiff was “not prosecuting the wrongful-death claim on behalf of” the
decedent, he was “not bound by [the decedent’s] agreement to arbitrate.” Id. at 360.
Carter is of little help to plaintiff. The Illinois Supreme Court reached a different
conclusion only because the wrongful-death statute at issue in that case created a “new
cause of action” to be brought by the decedent’s personal representative on behalf of the
next of kin. Id. at 354. In Tennessee, by contrast, the decedent’s cause of action “pass[es]”
to the surviving spouse, next of kin, or personal representative, who stands in the shoes of
the decedent to bring the decedent’s claim. Tenn. Code Ann. § 20-5-106(a).
Other cases that have declined to bind wrongful-death plaintiffs to arbitration
agreements signed by the decedent similarly involved wrongful-death statutes that created
a new cause of action. See, e.g., Boler v. Sec. Health Care, L.L.C., 336 P.3d 468, 476–77
(Okla. 2014) (citing Article 23, section 7, of Oklahoma’s constitution which “provides that
the right of action to recover damages for injuries resulting in death shall never be
abrogated,” and Oklahoma’s Wrongful Death Act, which “created a new cause of action
for pecuniary losses,” in holding that “a decedent cannot bind the beneficiaries to arbitrate
their wrongful death claim”); Ping, 376 S.W.3d at 598–600 (explaining that wrongful-
death claims are not derivative, but “separate and distinct,” in holding that wrongful-death
beneficiaries were not bound by decedent’s arbitration agreement); Lawrence v. Beverly
Manor, 273 S.W.3d 525, 529 (Mo. 2009) (en banc) (holding that wrongful-death plaintiffs
were not bound by an arbitration agreement because “[a] claim for wrongful death is not
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derivative from any claims [the decedent] might have had, and the damages are not
awarded to the wrongful death plaintiffs on [the decedent’s] behalf”); Peters v. Columbus
Steel Castings Co., 873 N.E.2d 1258, 1262 (Ohio 2007) (holding that, unlike survival
actions brought on behalf of a decedent’s estate, wrongful-death claims “accrue[]
independently to [the decedent’s] beneficiaries for the injuries they personally suffered as
a result of the death” and, therefore, non-signatory beneficiaries “cannot be forced into
arbitration”); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. Ct. 2013)
(holding “that Pennsylvania’s wrongful death statute creates an independent action distinct
from a survival claim that, although derived from the same tortious conduct, is not
derivative of the rights of the decedent” and concluding that wrongful-death claimants were
not subject to arbitration agreement); Woodall v. Avalon Care Ctr.-Fed. Way, LLC, 231
P.3d 1252, 1261 (Wash. Ct. App. 2010) (holding that heirs were not required to arbitrate
wrongful-death claims and explaining that “wrongful death claims in Washington are not
‘derivative’”).6
Plaintiff also relies on our decision in Beard in arguing that a wrongful-death
beneficiary should not be bound by a decedent’s pre-death arbitration agreement.
Specifically, plaintiff points to our statement in Beard that a surviving spouse who brings
a wrongful-death claim “asserts his own right of action for his own benefit and for the
benefit of the other statutory beneficiaries who share in any recovery.” 528 S.W.3d at 503.
Read in context, however, that language from Beard does not support plaintiff’s
position. The issue in Beard was whether a surviving spouse could litigate a wrongful-
death claim pro se. Id. at 495. We explained that the “right of self-representation extends
only to the individual’s right to conduct and manage his or her own case” and does not
permit a non-attorney to “conduct litigation on behalf of an entity or another individual.”
Id. The plaintiff spouse argued that he was bringing his own case. Id. at 496. The defendants
contended that the plaintiff was acting in a representative capacity on behalf of the decedent
or other statutory beneficiaries. Id. We rejected the defendants’ view that the spouse was
acting “in a representative capacity” and concluded instead that the spouse was “assert[ing]
his own right of action for his own benefit and for the benefit of the other statutory
beneficiaries who share in any recovery.” Id. at 503. We made clear, however, that spouse
was not asserting a “new cause of action” but rather the very same cause of action that
6
At least one state court has focused on the intent of the contracting parties in determining whether
a wrongful-death plaintiff is bound by an arbitration agreement entered by a decedent. See, e.g., Allen v.
Pacheco, 71 P.3d 375, 379–80 (Colo. 2003) (en banc) (holding that a beneficiary is bound when the contract
reflects the parties’ intent to bind beneficiaries).
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originally belonged to the decedent and later passed to the surviving spouse. Id. at 499.
Beard thus further supports our conclusion.7
CONCLUSION
In sum, we hold that entering an optional arbitration agreement with a health care
facility is not a “health care decision” within the meaning of the Durable Power of Attorney
for Health Care Act; that Sams had the authority under the “claims and litigation matters”
clause of the 2007 power of attorney to sign the arbitration agreement on Williams’s behalf;
and that plaintiff is bound by that agreement. We therefore reverse the decision of the Court
of Appeals and remand for further proceedings consistent with this opinion. Costs of this
appeal are taxed to plaintiff, for which execution may issue.
_____________________________
SARAH K. CAMPBELL, JUSTICE
7
Defendants argue in the alternative that plaintiff is bound to arbitrate under the “plain language”
of the arbitration agreement itself. Given our conclusion that plaintiff is bound to arbitrate under ordinary
contract principles, we need not address that argument.
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