first case of the called the docket today was they may twenty three two thousand and twelve as agenda number twelve case number one one three two zero far two zero four excuse me carter versus  thank you your honor good morning and may please the court this case when everything is said and done is about a contract you mention your name i'm sorry your honor  you case as i said is about a contract it raises two issues first whether a contract exists and secondly if it does who is bound by the contract it happens that arbitration is the subject of the contract but under federal law and under this court's decision when the case was here originally the fact that arbitrations involved should make no difference general principles of contract law ought to decide this case in on this record there ou be no question that the arbitration contract is valid and it's an forcible below the appellate court explicitly refused to enforce the arbitration contract because quote the arbitration agreements therefore do not contain mutually binding promises to arbitrate but only a unilateral obligation on the part of joyce the deceit and to arbitrate her personal injury claims you grievance therefore are not enforceable the problem with that is that the appellate court has premised its conclusion on the assumption that in order for an arbitration contract to be viable there must be mutually binding promises to arbitrate and that's not a correct statement of the law this court's decision and armstrong makes that very clear that mutually binding promises let alone mutually binding promises to arbitrate are not required that what is required is consideration and even if you assume that the health care center in this case promise to arbitrate nothing there is consideration in this arbitration agreement a plenty for one thing the center agreed that it would pay the fees of the arbitrators win or lose the center also agreed that it would pay up to five thousand dollars of attorney's fees and costs that the resident occurred in arbitration again win or lose the center agreed that the resident could choose the location of the arbitration and finally by specifically saying that the arbitration was subject to the federal arbitration act the center agreed that the results of the arbitration were binding and could be appealed only for the very limited reasons that section ten of the federal act provides basically some sort of fraud or misconduct on the part of the the arbitrators even if there was no neutral promise to arbitrate each one of those things individually constitutes a detriment for one party and a benefit to the other party and individually each one of them would provide consideration to support the contract and that becomes very clear if you look at two of those elements that can be quantified a dollar value middle one of a speculative promise to pay five thousand dollars in attorney's fees when you lose and then the promise to pay the arbitrators fees again win or loose the arbitrators fees as we point out in our brief could be significant strides to six figures possibly when those promises are taken together there is overwhelming consideration what happened here and where i believe the pella court went wrong  because it refused to enforce the contracts because the arbitration agreements did not contain mutually binding promises to arbitrate the court effectively adopted a special consideration rule that applied only to arbitration contracts promises to be exchanged you can't have unilateral contracts and you probably exclude most option contracts because there's no it's not mutual promises in one instance it's a promise to pay in return for performance the case that the appellate court relied upon do not stand for the proposition that there must be mutually binding promises to arbitrate their two cases one is guns ours and the other one frankly i always get tongue tied when i try to say that th cop i got close i think the courts found that there was no other consideration other than the proport it promised to arbitrate and that that promise was a looser e because the car dealer had specifically excluded anything that it might be required to arbitrate but if we were to change the facts and use a hypothetical here if the car dealer had said to the purchasers if you promise to arbitrate i will pay for the first five thousand dollars of gas that you use in that car and if you agree to take that car on a trip to las vegas and stay there for one week i would pay all of your travel expenses there would be no question that that cut that arbitration agreement should be enforceable because there's binding consideration in the form of the five thousand die dollars and the promise to pay the attorneys fees fact that it said that the claim the wrongful death claim was an independent claim that belonged to the beneficiaries and i think that those things are wrong and you can you can see that when you look at the wrongful death act part of the problem below was that the court did not consider the terms of the wrongful death fact were discords decisions interpretating it now if you look at the wrongful death back i think there are four things that you take from that they are pertinent in resolving the question that you pos such that the deceit and at the time of his death could have maintained an action to obtain damages therefore the third point is that section two point one of the act characterizes the wrongful death cause of action as an asset of the estate and the fourth point is that section two provides that the wrongful death cause of action must be brought by the personal representative of the deceit and and no one else the meaning of those provisions as they are applied can be found in this court's decisions the first is with respect to section one it's the toward that is committed against the decision that gives rise to the wrongful death cause of action of the of the decisions death is that it causes the wrongful death cause of action in this court's words to survive to his representative but whether he lives or dies the cause of action is the same and then in williams of course this court held that the wrongful death act transfers the cause of action to the personal representative so that the personal representative cause of action is derived from the i'd like you guys in terms of damages the amount recovered shall be for the exclusive benefit of that surviving spouse and next of kin and of such of such deceased persons furthermore we've said amounts recovered are for the injury is done to the deceased person the recovery the damages for the losses of the survivors doesn't that somehow set that part this is not  correct but the problem with that is it's only providing a special rule of how the damages are to be calculated in the first instance and to whom they're to go it's exempting them from the normal transfer or the normal rules that would apply recovery were in fact to pass through the estate and it applies to the act as you know says that the court has to make the distribution and it provides how the distribution is to be made but i believe it provides a special rule for how the damages  calculated and who gets them but it doesn't change the fact that the statute provides that the cause of action is an asset of the estate but in the distinction here is it goes back to your question drawn up is that who gets the damages doesn't dictate the nature of the cause of action or who possesses it well maybe i want to pursue this a little bit more with you and certainly damages are an element of a cost of action and the damages are not i don't think this is simple would at all but i do think that we have to be guided by the words of the statute in terms of deciding whether or not the the personal representative the executor here is bound by the underlyin contract and the words of the statute provide that the personal representative has to bring the cause of action and that the person and that the the cause of action is an asset of the estate now the fact that someone else gets those damages does not change the implications of the statute in terms of who has to bring it and own and the the fact that the personal representative is according to the statute is bringing it as the personal representative of the deceased person and that it's an asset of the state but who gets the damages doesn't change that but again it is one less time it's not just with where the dollars go it's what is the nature of the injury and the injury that's being compensated are the survivors grief sile and mental suffering it's their own loss that is being compensated through the wrongful death injury it's not the law's it's not the damages n pain suffering of the deceit it's separated from the deceit but obviously that's what the statute says and i can't disagree with that we may be talking past one another but but what i keep coming back to is the fact that the damages are to go to the next of kin but the cause of action was the deceit and scores of action and under the language of this court's opinions that cause of action is transferred lock stock and barrel to the personal representative and to the state it makes it i think it it if it's derivative means anything if transferred means anything or survives the personal representative means anything i think it means that the when the personal representative brings that cause of action he or she is in a position where they're bringing what the decision had nothing more and nothing less but difference of course is that the measure of damages is different but i don't believe that that affects the underlying cause of cause of action i think the situation here is that the wrongful death cause a vacuum is a specie of property it's the show's an action and the show's an action transfers to be a state the personal representatives rights in the show's inaction are derivative under the case law here of the deceit its rights in the show's inaction if this were a piece of real property for example we cite one case in a book where i'm sorry i think i brought the allergies here you're couple weeks behind us and they seem to be flaring up i apologize but you know in our brief we cite one case in which there was an  easement that passed through the estate and the heirs were bound by the easement that would be true if there were a lease and i would suggest that if if a lease contained a clause that required arbitration the personal representative would be bound by that lease  the terms of the lease despite the fact that he or she had had signed it i think that's the situation that we have here we don't have a real property that is being devolved we have personal t v we have the shows an action that is being devolved and you get that subject to whatever limitations the deceit put on it at the time that's what is that is the essence of the realist case and it becomes perfectly clear if you read the claim belong to the beneficiaries this court of course reverse that and said that the critical factor under the wrongful death act was that because the wrongful death act is derivative and the cd must have been able to pursue the action for damages at the time of his death as a result in that case and if you were calling for alice what happened was that there was an overdose of medication in the hospital and the deceiving initially sued judgment was entered it wasn't final at the time of the dissidents death but then afterwards that there was a satisfaction and the release specifically reserved to his wife the ability to bring wrongful death claims but this court said no that's not possible because action at the time of his death your state couldn't bring to the the cause of action but i think that if he if we don't come to that conclusion if we can say that real property that devolves upon me the personal representative in the state goes to the states subject to whatever limitations were placed on it by the decision but that's not true of the shows an action that involves arbitration we're back in that conundrum where we are having special rules for arbitration i think that's the point that the texas supreme court was making as a practical matter when it said that it doesn't make any sense it creates an anomaly to say as burrell says that a deceiving can eliminate the entire cause of action by obtaining a judgment prior to death or entering into a settlement but that the deceiving can limit the cause of action by entering into an arbitration clause and it is the texas court said in the butt that creates a problem because that's a special rule but crew precluded by the f a a that falls exactly within the u s supreme court's recent decision in marmet from overturning the wisconsin please the court but in the stacy handle and i represent the apple only sue carter and i agree with my colleague but this case comes down to basic contract principles i also agree that this case at this point in time is really not about arbitration as it is because that's the subject matter but it basically comes down to whether or not there's an in forcible contract period and if so if of the appellant's arguments is basically asking this court to in fact treat the arbitration and arbitration agreement as a super contract the state of federal law does provide that an arbitration agreement must be hailed on equal footing with any other contract and that generally a political contract defenses apply and that's all that we are asking in this case i think to start off with basic contract principles a without question the plane itself or the a pale the appellee sue carter was not a signatory was not a party to the contract i need to back up for one second because throughout the history of this case we've been operating under the assumption i believe our premise that there were two agreements here there weren't two agreements here there were two separate admissions to this nursing home misguided originally went into the nursing home  two thousand and five at that time she signed an admissions agreement and a separate this separate arbitration agreement with the facility she successfully rehab from the facility and was discharged unfortunately she deteriorated and a year later she went back into the facility at that point in time she signed another admission contract and the two thousand and six agreement under the law in this state in particular as we cited in our brief the a on case when you have to agreements that cover their cover the same subject matter and as is true in this case with these arbitration agreements are totally identical then the the initial believes it is valid or as a player here was only signed by a sim card or in her represent the capacity not in her individual capacity so she was not a party to this to these agreements and that brings us to basic contract law take that term and the concept of it being derivative and essentially stretch it from illinois to texas and all over the country but this court is clear what this court meant by that and what this court has said is derivative in the sense that in order for the beneficiaries to have a wrongful death claim the to see at the time that he or she died must have had a viable claim for injuries so the derivative nature of the wrongful death claim only goes to the fact that the victim or the the seton who suffered the initial the original injuries at the time that they die must have had a viable claim for those injuries the whole purpose of that limiting lane which was to prevent a situation where you had injuries the deceiving prior to dying had a claim for injuries and that they'd expose that claim was a extinguished extinguished in some way in other words that either by selling the case are selling their claim are going to trial and having the judgment but at the time that the state those proceeds are never subject to other limitations that the season has and pulls on his estate for example wrongful death proceeds do not pass through the estate and they're not subject to it well but what we do with it is we have to look at what their realistically mean is and what and what it realistically means is in that situation or raffle death claim this is an asset but is not actually an asset of the scenes the state is not treated as any other asset of the state it does not pass through the estate is not subject to like this it is not subject to the the scenes creditors it's not  subject to lose it's not even subject to the medicare supervising believe it or not because and that is because as this court pointed out and i think pointed out in the williams decision is that and you explain to summarize the dual nature of the wrongful death action and summary a wrongful death action is a statutory independent cause of action that does not arise until the death the action is  derivative of the injury to the deceit and and is grounded on the same wrongful act of the of the defended by the injured party during this lifetime but this court has also consistently hailed as as as was discussed earlier that the the claim doesn't belong to the c it belongs to the the next the statutory beneficiaries the spouse and the next of kin and so there have been other jurisdictions and which  seen you could say i want to leave all my assets and have nothing to two children but not my spouse and another child now the assets that belong to the deceit and the assets that actually flow through the seasons of state have to be distributed according to their will but not wrongful death proces he can't he cannot effect by then we'll he cannot affect the fact that the statutory beneficiaries the spouse and the children have the right to th based on the care i received here i have a personal injury claim i will agree that the choice of law would be the law of the state of georgia now if in fact she had a valid arbitration agreement contain that are valid agreement then i think she can limit herself to the ga choice law but let's say that she still had a viable claim at the time of her death and  her belief issues brought a wrongful death claim are they then are they then required to to use georgia law to be subjected to georgia or all i don't think so why because that was her claim she can limit her claim but this is viable claim but they did not take their claims subject to any and all of limitations that may have been a poll imposed by the seeding during her life time by contract or some other action because it doesn't belong to her otherwise why not treat wrongful death claim or are the proceeds just as you would any other asset of the estate they're not treated that way and so that's the difference here and there is going on this court has never expanded it to that extent to make to basically make the wrongful death claim of the beneficiaries subject to any procedural are other contractual or other type of limitation that may may have been imposed by the wrong would have to sign such an agreement no i don't i don't believe that i think that there may be for instance one of the the other reason that that is that that is true in this case is because the agree and i think that the as serious because it is like any other contract and because unless there is some specific statute or our area of law that would bound  yes if the beneficiaries had signed had signed the agreement and if the limit was otherwise he'll to be valid then at that point time i think there's no question they would be subject to it because their parties to the contract at that point frankly we are asking the court not to make because whether the state of the law is now supports the whole reasoning or rationale behind the limitation of the limitation that in order for the wrong extinguished extinguished her right to bring a cause of action for her injuries if she had done that then the then miss carter and the other beneficiaries with that have had their right as well  what they said at all they acknowledge that if the contract is supported by consideration when it's a good contract what they said was this contract was not supported by consideration because the only consideration were were five thousand dollars of attorney's fees are paying the arbitrators remember this was a case under the nursing home care act under the nursing home care act she in fact already had a right to reasonable attorney's fees which of in fact would not have been have the same argument and again based paint that they could find a long full time yes your honor we're talking about basic contract principles and while an arbitration agreement should be on equal footing and that's all equal footing it should be treated like any other contract in this state otherwise workable i mean my last hypothetical was that workable three years to sign off one and then the court how does the court work that you have an arbitration agreement with respect to two of the years that signed off and then the quit the federal court when talking about arbitration under f a a i recognize that there may be situations where some portion of the claims were are born others were not that's just i mean and so that's the situation but the flipside of that here on it would be again to to to hold parties to a contract to a contract which is against basic contract law thank you thank you but i'd like to address just a couple of points my colleague made the the the argument that the courts never made the wrongful death claim subject to procedural or contract will limitations imposed by the dissident in fact if the court reads it they eat this court's decision in the biddy case that addresses that issue and biddy essentially what was its stake was its not called this in the opinion but for lack of a better term the choice of law provision the but the decision in biddy was employed by a company in michigan at that time in michigan  the workers comp was only applied if the employer and the employee agreed that they would be applied and if they did not come to that agreement then the employer had no liability under the worker's comp laws to the employee if the employer employee would get injured in the course of his employment what happened was that the employer contracted with an illinois corporation that owned airplanes to fly the decision around so that he could take pictures of some trains and things unfortunately the airplane crashed and it crashed in illinois in that case the the beneficiaries of the state got the benefit of the choice that the deceit had made under the michigan law because he and the employer had agreed that it would be subject to the worker's comp statute they had a choice they could recover under the worker's comp statute were they could bring a third party claim in court essentially the decision that the decision made was binding on the heirs they chose to recover under the worker's comp statute and then tried to bring a separate action in illinois arguing that they were not signatories to the contract and they hadn't agreed to the agreement between the employer and the deceit and in this court held that that couldn't be done that they couldn't use that as some sort of a device to pull an end run around the choice that the deceit and had made to say you get one of two remedies i'm sorry forgot to bring this with me but what the act says they have to recite ing what the intention to bind the facility in its representatives is that the resident his or her successors assigns agents attorneys insurers heirs trustees and representatives including the personal representative or or executor of his or her state and the legal representative his or her successors assigns that's who's bound the personal representative here is at least a successor to the disk to the dissidents claims at the very least but it also applies to the representative and to the executor one other point my colleague appellate court's decision and trover that it is actually an interesting case she was talking about it in the context of a case that indicates that non signatories are not bound to an arbitration agreement what was going on in that case was that there was a dispute between the members of some l l season who had gotten together with in an effort to develop golf courses in those kinds of things and the when the dispute arose and the defendants attempted to compel arbitration and the court goes through a litany of defendants and finds that they were not signatories to the agreement and there were therefore were not compelled to bar bitrate however it also finds that one of the defendants bought shares of stock in one of the l c s and the court finds that by operation of law that purchaser the guy who purchased the stock is bound to the arbitration agreements that are found in the l operating certificates he says by buying the stock he essentially balance himself to those to those agreements even though he never signed those agreements and that that's all i have if the court has questions otherwise