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Finney v. Nat’l Healthcare Corp, 193 S.W.3d 393 (Mo. Ct. App. 2006)

On admission to the nursing home, the resident’s granddaughter executed an admission contract that included an arbitration agreement. Later, after the resident died, the resident’s daughter filed a wrongful death action. The trial court denied the motion to arbitrate, finding that Missouri law applied, that it was not pre-empted by the Federal Arbitration Act, that there was no basis to conclude interstate commerce was present and that the mandatory warning required by Missouri law was not present. On appeal, the case was reviewed do novo. The appeals court found it unnecessary to reach the trial court’s conclusions regarding pre-emption because there was no agreement to arbitrate the wrongful death claim. A wrongful death claimant does not stand in the resident’s shoes. “The wrongful death claim does not belong to the deceased or even to a decedent’s estate. Campbell v. Callow, 876 S.W.2d 25, 26 (Mo. App. S.D. 1994). “‘The wrongful death act creates a new cause of action where none existed at common law and did not revive a cause of action belonging to the deceased.'” O’Grady v. Brown, 654 S.W.2d 904, 910 (Mo. banc 1983) (quoting State ex rel. Jewish Hospital v. Buder, 540 S.W.2d 100, 104 (Mo. App. St.L.D. 1976)). A wrongful death action is not a transmitted right nor a survival right but is created and vested in the statutorily designated survivors at the moment of death.” The court expressly rejected the notion that the wrongful death claim is covered by the agreement because it arises out of the same set of circumstances. Since the wrongful death claimant was a non-party to the initial agreement, she was not bound by it.

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