Beverly Manor was represented during argument by Jon W. Jordan of Sandberg, Phoenix & Von Gontard of St. Louis, and Lawrence was represented by Tim Dollar of

Kansas City
.

Dale Lawrence’s mother was admitted to Beverly Manor, a long-term care facility, in March 2003. To be admitted, her attorney–in-fact, her daughter Phyllis Skoglund, signed an agreement providing for arbitration of any claims that Mother had against Beverly Manor. Mother died five days after she was admitted, after her head hit the floor when she was lifted from a chair and dropped. In December 2004,

Lawrence
sued Beverly Manor for the wrongful death of his mother, arguing its negligence led to her death. Beverly Manor sought to compel arbitration of the claims. In January 2007, the circuit court overruled the motion. Beverly Manor appeals.

Beverly Manor argues its arbitration agreement with Mother is binding on

Lawrence
even though he was not a party to the agreement. It contends Skoglund signed the valid, enforceable arbitration agreement pursuant to her durable power of attorney, which meant Skoglund had authority to consent to the agreement and to act on Mother’s behalf. Beverly Manor asserts the arbitration agreement applies to

Lawrence
‘s wrongful death claim because his mother agreed to arbitrate all claims arising out of any healthcare provided by Beverly Manor and because his wrongful death claim is derivative of the claim his mother could have brought. It further argues this Court acknowledged wrongful death claims are derivative in State ex rel. Burns v. Whittington, 219 S.W.3d 224 (

Mo.
banc 2007), and, therefore, are covered by Mother’s arbitration agreement. It contends Burns should be applied retroactively.


Lawrence
responds the arbitration agreement is not binding on his wrongful death claim because the it only covers claims arising out of any healthcare provided by Beverly Manor to Mother during her lifetime. He contends his wrongful death claim is not derivative of the claim Mother could have brought. He asserts that, although Skoglund held durable power of attorney, she was not the one who brought the wrongful death claim.

Lawrence
argues Burns should not be applied retroactively as it was not the law at the time this action arose.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, that the alternative dispute resolution provision between Mother and Beverly Manor is not binding on wrongful death claims. It contends that only the parties to a contract are bound by the terms of the agreement to arbitrate and that the contract’s terms cannot be forced onto a non-party.

The Missouri Chamber of Commerce and Industry argues, as a friend of the Court, that wrongful death actions are derivative and, therefore, the rights of a claimant are limited to those the decedent would have had. Accordingly, it contends

Lawrence
is bound by his mother’s arbitration agreement.

Author: Steven Strum from SANDBERG PHOENIX & von GONTARD P.C.

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