Justices Won't Mull Arb Agreements' Impact on Wrongful-Death Suits

, The Legal Intelligencer



The Pennsylvania Supreme Court will not hear arguments over whether wrongful-death suits can be controlled by decedents' arbitration agreements.

The state Superior Court ruled in a case of first impression last August that a nursing-home arbitration agreement did not bind a resident's heirs because a wrongful-death lawsuit is an independent cause of action.

The justices issued a one-page order denying allocatur in the case Tuesday.

In Pisano v. Extendicare Homes, according to court documents, Westmoreland County defendant Extendicare Homes, operating under the "fictitious name" Belair Health and Rehabilitation Center, had argued that the wrongful-death suit by Michael V. Pisano, the administrator of Vincent F. Pisano's estate, was controlled by an alternative dispute resolution agreement signed by Vincent Pisano's daughter, who had a power of attorney. Belair further argued that the Pennsylvania Wrongful Death Act creates a cause of action that is solely derivative of the underlying tort.

Superior Court Judge Jacqueline O. Shogan, writing for the unanimous panel of Judge Anne E. Lazarus and Senior Judge John L. Musmanno, said that arbitration could not be compelled for the wrongful-death suit because Pennsylvania's wrongful-death statute creates an independent action deriving from the decedent's death but not from the rights of the decedent.

In support of its argument that wrongful-death actions are derivative of the rights of decedents, according to Shogan, Belair cited the state Supreme Court's 1896 ruling in Hill v. Pennsylvania Railroad, in which the justices held that under the Act of April 15, 1851, as amended by the Act of April 26, 1855, wrongful-death actions were derivative of a decedent's rights.

But Shogan said the legislature amended the Wrongful Death Act in 1911.

"Unlike its 19th century predecessors, Pennsylvania's wrongful-death statute, as of 1911, distinguished a wrongful-death action from a survival action, currently providing that 'the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased,'" Shogan said. "Pennsylvania courts have consistently interpreted this language to mean that two separate and distinct causes of action arise from a single injury, one dependent 'on the rights of action which the decedent possessed at the time of her death,' and the other dependent on 'the rights of action that the [claimants], as named by statute, possess.'"

There are two types of derivative actions, Shogan said. There are derivative actions such as the right of shareholders to bring suit on behalf of a corporation to recover losses for the benefit of the corporation and the right in subrogation insurance law for the subrogee to stand in the shoes of the subrogor to sue a third party. In those types of cases, the right to sue is contingent, Shogan said.

But in derivative actions in tort law, legal rights are derivative of decedents' injuries but are not derivative of decedents' rights, Shogan said.

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