## I LLINOIS 

## O FFICIAL 

## R EPORTS Supreme Court

Carter v. SSC Odin Operating Co., 2012 IL 113204

Caption in Supreme Court: SUE CARTER, Special Adm’r of the Estate of Joyce Gott, Deceased, Appellee, v. SSC ODIN OPERATING COMPANY, LLC, d/b/a Odin Healthcare Center, Appellant.

Docket No. 113204

Filed September 20, 2012

Held ( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader

. ) A wrongful death claim for the death of a nursing home resident did not accrue until she died and was not governed by an arbitration agreement that she had signed, but the Federal Arbitration Act was applicable and arbitration could be compelled under the agreement as to claims for negligence and statutory violations occurring while she lived.

Decision Under Review Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Marion County, the Hon. David L. Sauer, Judge, presiding.

Judgment Affirmed in part and reversed in part. Cause remanded.Counsel on

Appea l W. J eff rey Muskopf and Mark R. Fe ldhaus, of L ashly & Ba er, P.C., of St. L ouis, Missouri, and Malcolm J

. Har kins I I I
, and James F. Seg roves, of Proskauer Rose, L L P, of Washington, D.C., for a ppellant.

Staci M. Yandle, of

O’F allon, for a

ppellee.

J ustices J USTI CE THEI S delivered the judgme nt of the cour t, with opinion. Chief J ustice Kilbride and J ustices T h o mas, Gar man, and Bur

ke

concur red in the judg ment and opinion.
J ustices Fr eema

n and Ka rmeier took no part in this decision.

OP INION

¶ 1 This appea l involves an arbitration a g r e e me n t b e tw e e n p la intiff’s dece dent and def endant nursing home. At issue is whether the arbitration ag ree ment is enfor cea ble and, if so, whether plaintiff can be compelled to arbitra te a wrong ful-death claim ag ainst defe ndant. The appellate court ruled in favo r of plaintiff, holding that the arbitration ag ree ment is unenfor cea

ble based on a lack of mutuality of obligation, and that the wrong ful-death claim is not subject to arbitration in any event. 2011 I L App (5th) 070392-B
, ¶¶ 29, 34. The appellate court thus aff

irmed the trial court’s denial of defe ndant’s motion to compel arbitration. Id. ¶ 36. ¶ 2 For the rea sons that follow, we af fi rm i n p ar t and reve rse in part the judgme nt of the appellate court, a

nd rema nd to the trial court f

or fur ther proc eeding s.

¶ 3 BA CKGROUND ¶ 4 Plaintiff, Sue Carter, a s the s pecia l administrator of the estate of J oy ce G ott, decea sed, filed a complaint in the circu i t court of Marion County ag ainst defe ndant, SSC Odin Op erating Company
, L L C, that does business as Odin Hea lthcare Center, a nursing home located in Odin, I llinois

. Gott was a resident of the nursing hom e fo r a two-month period during 2005, and ag ain in ear ly 2006 until h er d ea t h o n J an uary 31, 2006. I n count I
, a survival action (755 I L CS 5/27-6 (West 2006)), plaintiff alleg ed that defe ndant violated the Nursing Home Care Act (210 I L CS 45/1-101 et seq. (We s t 2 0 0 6 )) and, as a result, Gott sustained persona l injury including g astrointestinal bleeding
, anemia, and r e s p ir a tory failure

. I n count I I
, a claim under the Wrongf ul Death Act (740 I L CS 180/0.01 et seq. (West 2006)),
p laintiff soug ht damag es for injuries sustained by Gott’s heirs resulting from Gott’s wrong f u l death. ¶ 5 Def

endant filed a motion to compel arbitr at i o n , re l y i n g on two identical ar bitration
ag ree ments executed at the t i m e o f Gott’s 2005 and 2006 nursing home admissions. The

-2-2005 ag ree ment was signe d by plaintiff as Gott’s “L eg al R ep re sentative.” The 2006

ag ree ment was signe d by Gott herse lf. The parties ag ree d that, with respe ct to claims wher e the amount in controve rsy is at least $200,000, “they shall s u b m i t to binding arbitra tion all disputes ag ainst eac h other and their
repr esentatives, aff

iliates, g overning bodies, ag ents and employ ees arising out of or in any way related or connec ted to the Admission Ag ree ment and all matters rela ted there to including matters involving the Resident’s stay and car e p rovi ded at the Fa cility
, including but not limit ed to any disputes conce rning alleg ed persona l injury
to the Resident cause d by improper or inadequate car e i n cludi ng alleg ations of medical malprac tice; any disputes conce rning whether an y statutory provisions relating to the Resident’s rig hts under I llinois law wer e violated; any d ispute s relating
to the pay ment or non-pa

y ment for the Re sident’s ca re a nd stay at t he Facility ; and
any other dispute under state or Fe dera l law based on contra ct, tort, statute (including
any dece ptiv e t rade prac tices and consumer protec tion statutes), war ranty or any al l eged brea ch, defa

ult, neg lige nce, wantonness, fra ud, misrepre sentation o r suppression of fa ct or induce ment.” ¶ 6 The parties also ag ree d that defe ndant would pay the fee s of t h e arbitrators; defe ndant would pay up to $5,000 of the resident’ s attorney fee s and costs in claims ag ainst defe ndant;
t h e re sident would have the rig ht to choose the location of the arbitration; and the Fe d er al Arbitration Ac t (9 U.S.C. § 1 et seq. ) (F AA) w ould gove rn the a g ree ments. ¶ 7 After briefing
, and without an evidentiar y hear ing, the trial court den i ed d ef en d ant’s motion to compel a

rbitration. The trial court ruled that the a g ree ments were unenfor cea ble beca use they violated I llinois public policy and lacke d mutuality of obliga tion; the wrong fuldeath claim was no t ar bitrable; and the ag ree ments did not evince a transac tion involving

commerc e w ithin the meaning of the FAA

. Def endant appea led. The appellate court aff irmed the denial of defe ndant’s motion to compel arbitration. Carter v

. SSC O din O perating Co.
, 381 I ll. App. 3d 717 (2008). ¶ 8 The appellate court examined I llinois public policy as set forth in sections 3-606 and 3- 607 of the Nursing Home Care Act, which provide that any waiver by a resident, or his leg al
repr esentative, of the rig ht to commence an action under the Nursing Home Care Act, or to

a jury trial of such action, shall be “null and void.” 210 I L CS 45/3-606, 3-607 (West 2006). The appellate court held that these antiwaiver provisions prese nt a leg itimate state law
contra ct defe nse to the arbitration ag ree ments that is not pree mpted by the FAA

. Carter
, 381 I ll. App. 3d at 722-23. We allowed defe ndant’s petition for leave to appea l and reve rsed the judgme n t of t he appellate court. Carter v. SSC Odin Operating Co.
, 237 I ll. 2d 30 (2010). We held that the antiwaiver provisions of sections 3-606 and 3-607 of the Nursing Home Care Act are the functional equivalent of antiarbitration leg islation, which is pree mpted by the FAA and Supreme Court prec edent. Id. at 48-49 (citing Southland Corp. v. Keating
, 465 U.S. 1 (1984))

. We rema

nded the cause to the appellate court for consideration and resolution of the re maining issues on a ppeal. Id. at 51. ¶ 9 On rema

nd, the appellate co u rt aga i n af fi rm ed the trial court’s denial of def endant’ s motion to compel arbitration. 2011 I L App (5th) 070392-B
, ¶ 1. The appellate court first held

-3-that the arbit r a tion ag ree ments evince a transac tion involving interstate commerc e, rende ring
t h em subject to the FAA

. Id. ¶ 21. The appellate court next held, over a dissen t , t h at defe ndant’s promise to arbitrate was illusory
, and that the arbitration ag ree ments wer e thus unenfor cea

ble for lack of mutuality of obligation. Id. ¶ 29. The appellate majority explained:
“B y excluding all claims but those $200,000 and g rea ter from the require ments of the arbitration ag ree ment, the d ef en d an t essentially ensure d that none of its claims against J oy ce [ Gott] would have to be arbitrated under t he terms of t he agr eeme nt. I nstead, only J oy ce’ s claims for persona l injuries due to the defe ndant’s improper or inadequate car e would ever have to be arbitrated u n d er t h e ag ree ments. The defe ndant cannot offe r an y rea listi c scena rio wher e the amount in controve rsy in disputes relating to the nonpay ment of J oy ce’ s car e would equal or exceed $200,000. The a rbitration ag ree ments, theref ore, do not contain mutually binding pr omises to arbitrate, but only a unilatera l obligation on the part of J oy ce to arbitrate her persona l injury claims. The a g ree ments, theref ore, a re not e nforc eable .” Id. The dissenting justice would not have found defe ndant’s promise to arbitra te to be illusory
, noting that a claim ag ainst a nursing home resident in excess of $200,000 could arise wher e, for example, the resident intentionally or unintentionally started a fire causing damag e to the nursing home. Id. ¶¶ 40- 41 (Spomer, J., concurringin part and dissenting in part). ¶ 10 The appellate court unanimously held, howeve r, that even if the arbitration ag ree ments

are enfor cea

ble, plaintiff cannot be compelled to arbitrate the wrong ful-death claim beca use plaintiff did not sign the arbitra tion ag ree ment in her individua l capa city

. Id. ¶ 34. The appellate court disag ree d with defe ndant that the “d eriva tive” nature of a wrong ful-death claim re quired a

differ ent re sult. Id. ¶¶ 33- 34. ¶ 11 We allowed defenda nt’s petition for leave to appea l. I l l

. S

. C t

. R. 315(a) (ef f. Feb. 26, 2010).

¶ 12 ANAL YSI S ¶ 13 I . Standard of Re view ¶ 14 The fac ts rele vant to defe ndant’s motion to compel arbitration are not in dispute, and the trial court’ s decision deny ing de fenda

nt’s motion was based on purely leg al issues: (1) the enfor cea bility of the arbitration ag ree ment, and (2) the arbitra bility of the wrong ful-death claim, which raises issues of statutory construction. Acc ording ly
, our revie w proce eds de

novo

. See Royal Indem nity Co. v. Chicago Hospital Risk Pooling Program
, 372 I ll. App. 3d 104, 107 (2007); Carter , 237 I ll. 2d at 39.

¶ 15 I I . Mutuality of Oblig ation ¶ 16 T h e ap p el l at e court held that the arbitra tion ag ree ments at issue here “ev i d en ce a transac tion involving interstate commerc e” and are thus g overne d by the FAA

. 2011 I L App (5th) 070392-B
, ¶¶ 16-21. Plaintiff did not seek revie w of that issue befor e this court. Thus,

we will proce ed from the premise that, as held by the appellate court and expressly stated in the ar bitration ag ree ments, the FA A g overns the a g ree ments.

-4-¶ 17 Orig inally adopted in 1925, the F AA wa s enac ted “to re verse the longsta nding judicial hostili ty to arbitration ag ree ments” and “to place arbitrati o n ag ree ments upon the same footing as other contra cts.” Gilmer v. Interstate/Johnson Lane Corp.
, 500 U.S. 20, 24 (1991). Section 2 of the F AA provide s in releva nt part that:
“A written provision in *** a contra ct ev i d en cing a transac tion involving

commerc e to settle by arbitration a controve rsy there afte r arising out of such contra ct

or transac tion *** s h all be valid, irrevoc able, and enfor cea ble, save upon such grounds as exist at

law or in equity for t he rev ocation of any contract .” (Emphasis added.) 9 U.S.C. § 2 (2012). ¶ 18 Thus, an arbitra tion agre em en t may be invalidated by a state law contra ct defe nse of
g ener al applicability
, such as fra ud, duress, or unconsciona bility
, without contra

vening section 2. Doctor’s Associates, Inc. v. Casarott o , 517 U.S. 681, 687 (1996). An arbitration
ag ree ment may not be invalidated, howeve r, by a state law applicabl e o n l y t o arbitration
ag ree ments. Id. ¶ 19 Her e, the state law co n t ra ct d ef en s e o n wh i ch the appellate court relied when it invalidated the arbitration ag ree ments is a lack of mutuality of obliga tion. Acc ording to the appellate court, defe ndant’s promise to arbitra te is illusory based on the $200,000 arbitration floor, rende ring the arb i t ra t i o n ag ree ments unenfor cea ble for lack of a mutual promise to arbitrate. 2011 I LApp (5th) 070392- B, ¶ 29. ¶ 20 “An illusory promise appea rs to be a promise, but on closer examination reve als that the promiso r h as n o t promised to do any thing.” W .E. Erickson Construction, Inc. v. Chicago Titl e Insurance Co.
, 266 I ll. App. 3d 905, 909 (1994). Although defe ndant disputes that its obligati o n to arbitrate its claims ag ainst Gott is illusory
, defe ndant’s principal argument befor e this court is that mutuality of obl i gation is not essential to the validity of the arbitration ag ree ments beca use Gott’s prom ise to arbitrate is supported by other consideration. In other words, acc ording to defe ndant, a lack of mutual promises to arbitrate will not destroy

the validity

of the a rbitration ag ree ments. ¶ 21 T h e co n ce p t o f “m u t u al i t y o f o b liga tion” is intimately tied to the conce p t o f “conside ration.” A s this court expl ained: “While consideration is essential to the validity of a contra ct, mutuality of obligation is not. Where there is no other consideration for a contra ct the mutual promises of the parties consti t u t e the consideration, and these promises must be binding on both parties or the contra ct falls for wa nt of consideration, but wher e there is any other consideration for the contra ct mutual i t y o f obligation is not essential.” Armstrong Paint & Varnish W

orks v. Continental Can Co. , 301 I ll. 102, 108 (1921).
Acc ord S.J. Grove

s & Sons Co. v. State of Illinois
, 93 I ll. 2d 397, 403-04 (1982), overruled

on other grounds by Rossetti Contracting Co. v. Court of Claims
, 109 I ll. 2d 72, 79 (1985); McI nerney v. Charter Golf, Inc.
, 176 I ll. 2d 482, 488 (1997). See also Restatement (Second) of Contracts § 79 (1981) (“I f the require ment of consideration is met, there is no additional require ment of *** ‘mutuality of obligation.’ ”); 3 Richard A. L ord, Wil liston on Contracts § 7:14, at 326-30 (4th ed. 20 0 8 ) (m u t u ali ty of obligation is “simply an awkwa rd way of stating that there must be a valid consideration”).

-5-¶ 22 These p ri n ci p l es apply equally to arbitration ag ree ments as they do to other ty pes of
contra cts. I n Vassilkovska v. W oodfield Nissan, Inc.
, 358 I ll. App. 3d 20 (2005), for example, the appellate court was prese nted with a challeng e to an arbitration ag ree ment simil ar to the challeng e in the instant case

. There
, t h e p l ai n t i ff claimed that the defe ndant’s promise to arbitrate was illusory
, thus rende ring the arbitration ag ree ment unenfor cea ble for lack o f mutuality of obligation. Vassilkovska observe d that mutuality of obligation is “nothing more than a proxy for consideration,” and that the court would revie w the plaintiff’ s lack- ofmutuality challeng e in te rms of whether consideration e x isted for the parties’ ag ree ment to arbitrate. Vassi lko vska
, 358 I ll. App. 3d at 25 n.2. I n Vassilkovska
, howeve r, the only consideration that could have supported the plaintiff’s promise to arbitrate was the defe ndant’s rec iproca l promise, which the appellate court held was illusory

. Id. at 29. Her e, defe ndant arg

ues that other consideration, apar t from its own promise to arbitrate, supports Gott’s p ro m i s e t o arbitrate her disputes with defe ndant. I f defe ndant is corr ect that other consideration exis ts, we need not decide whether defe ndant’s promise to arbitrate is illusory

. ¶ 23 “Considera tion” is the “bar g ained- for exchang e of promises or pe rfor mance s, and may consi st of a promise, an act or a forbe ara nce.” McI

nerney , 176 I ll. 2d at 4 8 7 (c i t i n g Restatement (Second) of Contracts § 71 (1981))

. “Any act or promise which is of benef it to

one party or disadvantag e to the oth er is a sufficie nt consideration to support a contra ct.” Steinberg v. Chicago Medic al Sc hool
, 69 I ll. 2d 320, 330 (1977). See also Lipkin v. Koren
, 392 I ll. 400, 406 (1946) (consider ation “consists of some rig ht, interest, profit or bene fi t

acc ruing to one party , or some forbe ara nce, detriment, loss or responsibility g iven, suffe red or undertaken by the other” ). Thus, the e nforc eability of Gott’s promise to ar

bitrate, ra ther than to litigate, her claims ag ainst defe ndant is depende nt upon whether defe ndant suffe red

a detriment, or Gott rec eived a benef it, in exchang e for that promise. See Vassilkovska
, 358 I ll. App. 3d at 26. ¶ 24 Principles of contra ct law do not re quire that the va lues Gott and def endant e x chang ed be equivalent. Ryan v . Hamilton , 205 I ll. 191, 197 (1903); Keefe v. Allied Home Mortgage Corp.
, 393 I ll. App. 3d 226, 230 (2009). See also Restatement (Second) of Co n t racts § 79 (1981) ( “[i] f the re quirement of c onsideration is met, there is no additional require ment of *** equivalenc e in the values exchang ed”) ; Harris v. Gree n Tree Financial Corp.
, 183 F.3d 173, 180 (3d Cir. 1999) (obser ving that “state courts have conclude d that an ar b i t ra t i on clause need not be supported by equivalent obligations”). Moreove r, we will not inquire into the adequa cy of the considera tion to support a contra ct. Gallagher v. Lenart
, 226 I ll. 2d 208, 243 (2007); Ryan
, 205 I ll. at 197. “[A]dequacy of the considera tion is within the exclusive dominion of t h e parties where they contra ct freely and without fra ud.” Id. at 198. See also 2 J oseph M. Perillo & Helen Hadjiy annakis Be nder, Corbin on Contracts § 6.1, at 207 (re v. ed. 1995) (to th e ex t en t courts use the term mutuality of obligation to require something tending toward equivalenc e of obligation, this is “ ‘simply a specie s of the forbidden inquiry into the adequa cy of considera tion’ ” (quoting Pine River State Bank v. Mettille
, 333 N.W.2d 622, 629 (Minn. 1983)))

. ¶ 25 Def

endant contends that, apar t from i t s o wn p ro m i s e to arbitrate, Gott’s promise to arbitrate is supported by the following consideration: defe ndant’s promise to pay the

-6-arbitrators’ fee s ; defe ndant’s promise to pay $5,000 of Gott’s attorney fee s and costs in any 1 action ag ainst defe ndant; and Gott’s rig ht to choose the l o ca t i o n o f the arbitra tion. I n her brief be fore this court, plaintiff does not address defendant’s contention that the foreg oing provisions supply the considera tion supporting Gott’s promise to arbitrate. At oral argument, plaintiff addr essed only the attorney fee provision in the arbitration ag ree ment, noting that under the Nu rs i n g Ho m e Care Act defe ndant is alre ady require d to pay attorney fee s to a resident whose rig hts (as specifie d in part 1 of article I I of the Act) ar e v i o l at ed. See 210 I L CS 45/3-602 (West 2006). Thus, plaintiff argued that defe ndant’s promise to pay $5,000 of Gott’s attorne y

fee s is no consideration. We disag ree

. ¶ 26 Un d er t h e Nu rsi ng Home C are Act, Gott would only be entitl ed to attorney fee s if she
preva iled in a claim ag ainst defe ndant. Under the arbitration ag ree ments, howeve r, Gott is entitled to a portion of her attorney fee s even if defe ndant preva ils. The contra ctual fee provision thus supplements the statutory fee provision, constituti ng a bene fit to Gott and a detriment to defe n d a

nt. Simi larly
, defe ndant’s promise to pay the arbitrators’ fee s, and Gott’s rig ht to choose t h e location of the arbitration, eac h also constitute a benef it to Gott and a detriment to defe ndant. ¶ 27 Ba sed on t h es e contract provisions, we conclude that Gott’s promise t o arbitra te, eve n if not m et wi th a reciproc al promi se t o arbitrate by defe ndant, i s nonetheless supported by consideration. Thus, we hold, contra ry to the appe llate cour

t judgment, that the arbitration
ag ree ments are enfor cea

ble. The state law contra ct defe nse of lack of mutuality of obligation is not available unde r the fa cts of this case

. ¶ 28 I n light of this holding, we nece ssarily consider defe ndant ’s further argument that the appellate court err ed in holding that plaintiff is not require d to arbitrate the wrong ful-death claim.

¶ 29 I I I . Wrongf ul-Death Action ¶ 30 T h e ap p el l at e court held that beca use plaintiff signe d the ag ree ment as Gott’s leg al
repr esentative, and n o t i n her individual capa city or on her own behalf as a potential
wrong ful-dea

th plaintiff, the arbitration ag ree ment is not binding upon her with reg ard to the
wrong ful-dea

th claim. 2011 I L App (5th) 070392-B
, ¶ 34. As the appellate court succinc tly

s t at ed
, p laintiff “is not a party to the ag ree ments.” Id. ¶ 32. Thus, the appellate court’ s h olding is based on a basic principle of contra ct law. See Equal Employme nt Opportunity Comm’n v. W

a f f l e Ho use, Inc.
, 534 U.S. 279, 294 (2002) (“I t g oes without saying that a contra ct ca

nnot bind a nonparty .”). ¶ 31 Def

endant does not dispute that plaintiff signe d the ag ree ment only on behalf of Gott, a nd

conce ded at oral argument that nonsignatories to a contra ct are ty pically not bound. Def endant, nonetheless, urg es us to reve rse the appellate court judgme nt, contending that the court’s holding is b as ed o n a misunderstanding of the Wrongf ul Death Act. Acc ording to defe ndant, a wrong ful-dea th action is an asset of the dece dent’s estate that the dece dent can

T he a rbi tr at ion agree m ent s r equ ir e that dis put es be set tl ed by a pa nel of th re e a rbi tr at ors

. 1

-7-limit during her lifetime. I n this case , defe ndant continues, the decedent lim ited the forum

in which the action could be hear d. Def endant further argues that a wrong ful-death action is derivative o f, an d thus limit ed to, what a dece dent’s cause of action ag ainst the defe ndant would have been had the dece dent lived, and if the dece dent’s cause of action agai n st the defe n d an t wo uld have been subject to arbitration, the wrong ful-death claim ag ainst the defe ndant is likewise subject to arbitration. For these rea sons, defen d an t co ntends that its motion to compel arbitration should have been g rante d

. B e c a u s e d e f e n d a n t’ s a r g u me n ts f ocus

on the nature of a wrong ful-death action, we beg in our analy sis with an o vervie w of the Wrongf ul Death Ac t (740 I L CS 180/ 0.01 et seq. (West 2006)). ¶ 32 At common law, no cause of ac tion ex isted to recove r dama g es for the wrong ful death of another
, and a ca u s e of action abate d at the death of the injured party

. W illiams v. Manche ster , 228 I ll. 2d 404, 418 (2008). Thus, “ ‘it was chea per for the defe ndant to kill the plaintiff than to injure him.’ ” Id. (quoting Prosser & Kee ton on Torts § 127, at 945 (W. Pag e Kee ton et al. eds., 5th ed. 1984)). I n 1853, howeve r, the leg islature adopted the I njuries Act (1853 I ll. L aws 97), now known as the Wrongf ul Death Act, cre ating a new cause of action for pecunia

ry losses suffe red by the dece ased’ s spouse and next of kin by rea son of the death of the injured pe rson. Nudd v. Matsoukas , 7 I ll. 2d 608, 612 (1956). ¶ 33 Section 1 of the Ac t provides in rele vant par t: “Wheneve r the death of a person shall be cause d by wrong ful act, neg lect or defa ult, and the act, neg lect or defa ult is such as would, if death had not ensued, have entitled the party injured to maintain an action and rec over damag es in respe ct there of, then and in ever

y such case the person who or company or corpor ation which would have been liable if death had not ensued, shall be liable to an action for damag es ***.” 740 I L CS 180/ 1 (West 2006). Although section 2 provides that ever y wrong ful-dea

th action shall be broug ht by and in the

names of the “per sonal repr esenta tives” of the dece ased, the action is filed for the “exclusive benef it of t he surviving s pouse and next of ki n of such dece ased person.” 740 I L CS 180/2 (West 2006). Thus, the personal representa tive in a wrong ful-death claim is “mer ely a nominal party to this action, eff ectively filing suit as a statu t o ry trustee on behalf of the surviving spouse and next of kin, who are the true parties in interest.” Glenn v. Johnson
, 198 I ll. 2d 575, 583 (2002). See a lso Pasquale v. Speed Products Engineering
, 166 I ll. 2d 337, 361 (1995) (statutory require ment that wrong ful-death action be broug ht by and in the name of the pe rsonal re prese ntative serve s to avoid a multipli city of suits by the next of kin, and

ensure s that the interests of a ll the benef iciarie s are protec ted). ¶ 34 A wrong ful-dea th action is perha

ps best understood when c o n tr a s te d with an action under

our so-ca lled “Survival Act,” now section 27-6 of the Probate Act of 1975. 755 I L CS 5/27-6 (West 2006). The Surviva l Act allows an action (such as a claim under the Nursing Home Care Act) to survive the death of the injured person. Vincent v. Alden-Park Strathmoor, Inc.
, 241 I ll. 2d 495, 50 3 (2 0 1 1); National Bank of Bloomington v. N orfolk & W

estern Ry. Co.
, 73 I ll. 2d 160, 172 (1978). Wherea s the Wrong ful Death A ct cre ated a new cause of action that does n o t acc rue until death, the Survival Act simply allows a repr esenta tive of the dece dent to maintain those statutory or common law actions that had alre ady acc rued to the

-8-dece dent prior to death. W yness v. Armstrong W

orld Industries, Inc.
, 131 I ll. 2d 403, 410-12 (1989). In other wor ds:
“A survival act i o n allows for rec overy of damag es for injury sustained by the dece ased up to the time of death; a wrong ful death action cover s the time afte r death and addresses the injury suffe red by t h e n ex t of ki n due to the l oss of t he decea sed rathe r than the injuries persona lly suffe red by the dece ased prior to death.” Id. at 410. Wit h this backg round we turn to defe ndant’s ar g uments.

¶ 35 Section 2.1 of the W rongful Death Act ¶ 36 Def

endant direc ts our attention to section 2

. 1 o f th e Wr ong ful Death Act, which desc ribes

a wrong ful-dea

th action as an “asse t” of the dece dent’s es t at e. 740 I L CS 180/2.1 (West 2006). Section 2.1 provides in pe rtinent part:
“I n the event that the only asset o f t h e d ecease d estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court, upon motion of any person who would be entitled to a rec overy under this Act, and afte r such notice to the party ’s heirs or leg atee s as the co u rt d i re cts, and without opening of an estate, may appoint a specia l administrator for the dece ased party for the p u rp ose of prosec uting or defe nding the action.” 740 I L CS 180/2.1 (West 2006).
Ba sed o n this provision, defe ndant argues that the wrong ful-death action plaintiff filed
ag ainst it is an asset of Gott’s estate that Gott could and did limit when she enter ed into the arbitration ag ree ment. Plaintiff counter s that a wrong ful-death action does not belong to the dece dent, noting that the proce eds of a wrong ful-death action do not pass throug h the dece dent’s esta te. ¶ 37 Wh en co n s t ru i n g a statute, the primary objective is to asce rtain and g ive eff ect to the intent of t he legislature
, the l ang uag e of the s tatute being the best indicator o f s u ch i n tent. Kean v. W

al -M art Stores, Inc.
, 235 I ll. 2d 351, 361 (2009). W ords and phrase s should not be considere d in isolation. Sandholm v. Kueck er , 2012 I L 111443, ¶ 41. Rather, the lang uag e in eac h section of the statute must be examined in light of the statute as a whole ( id. ), which is c onstrued in conjunction with other statutes touching on the same or rela ted subjects ( In

re B.L.S.
, 20 2 I l l

. 2 d 510, 515 (2002))

. L eg islative intent may be asce rtained not only by examining t he st atutory languag e, but by consi dering the reason and nece ssity for the law, the evils to be reme died, and the objects and purposes to be obtained. People v. Lucas
, 231 I ll. 2d 169, 176 (2008). ¶ 38 A

p p ly in g these principles in the prese nt case , we observe that althoug h section 2.1 plain ly ref ers to a wrong ful-dea

th action as an “a s s et o f the dece ased estate” (740 I L CS 180/2.1 (West 2006)), the leg islature does not tre at a wr ong ful-death action like other a ssets of the dece ased’ s estate. Pursuant to the Probate Act, assets of a dece ased’ s estate are subject to the claims of cre ditors and char g eable with the expenses of est a te a d mi n istra tion. 755 I L CS 5/18- 14 (West 2006). Wit h respe ct to a testate estate, assets of a dece ased’ s estate are distributed in acc ordanc e with the dece ased’ s will (755 I L CS 5/4-13 (West 2006)), and in the case of an intestate estate, acc ording to the rules of desce nt and distribution (755 I L C S 5/2-1 (West

-9-2006)). These ru l es gen era lly provide that an intestate estate is distributed one-ha lf to the

surviving spouse and one- half to the de cede nt’s desce ndants per stirpes

. Id. ¶ 39 Under the Wrongf ul Death Act, howeve r, amounts rec overe d in a wrong ful-death action

are not made subject to the provisio n s o f t h e Probate Act. Rather, such amounts shall be distributed “to eac h of the survivingspouse and ne x t of kin of such dece ased person in the proportion, as deter

mined by the court, that the perc entage o f d ep en dency of eac h such
person upon the decease d person bears t o t h e sum of t he perce ntag es of depende ncy of all such per sons upon the dece ased pe rson.” 740 I L CS 180/ 2 (West 2006). ¶ 40 The import of the distribution provision in the W rong ful Death Act was re cog nized by this court just a few short y ear s afte r the Act’s adoption. At that time, the Act provided that
amounts rec overe d “shall be distribute d t o s u ch widow and next of kin in the proportion provided by law in relation to the distribution of persona l p ro p er t y left by persons dy ing intestate.” 1853 I ll. L aws 97, § 2. We obser ved: “The leg islature intended that the money rec overe d should not be trea ted as a part of the estate of the dece ased. They desig ned to exclude cre ditors from any benef it of it, and to preve nt its passing by virtue of any provisions of the will of the dece ased. The
persona l repr esenta

tive bring s the action, not in rig ht of the estate, but as trustee for those who had a more or less direc t pe cuniar y interest in the continuance of the life of the dece ased, and who had some claims, at least, upon his or her natura l love and aff ection.” City of Chi cago v. M ajor , 18 I ll. 349, 358 (1857). Although the Wrongf

ul Death Act has underg one various amendments duri n g i t s long history
, this court’s observation t hat t he “leg islature int ended the mon ey rec overe d should
not be treated as a part of the estate of the dece ased” rema ins true today by virtue of the Act’s express directive, se t forth in section 2, re g arding distribution of amounts rec overe d under the Act. ¶ 41 Our analy sis of the issue befor e this court is als o i n fo rm ed by this court’s opinion in McD aniel v. Bull ard
, 34 I ll. 2d 487 (1966). There we held that a p ending action under the Wrongf ul Dea th Act does not abate upon the benef iciary ’s death, but is subject to the provisions of the Survival Act. McD aniel
, 34 I ll. 2d at 490-91. Thus, unde r McD aniel , the rig ht to rec eive wrong ful-dea th benef its is an asset of the estate s of the next of ki n, should they die; it is not an asset of t he estate of t he decede nt who i s the s ubject of t h e wr o n gful

death action. National Bank of B loomington v

. Podgorski
, 57 I ll. App. 3d 265, 267 (1978). McD aniel is consistent with our observation in Major
, quoted above, th at t h e “per sonal
repr esentative bring s the action, not in right of the estat e , b u t as t rustee for thos e who had

a more or less direc t pecunia ry i n t er es t in the continuance of the life of the dece ased.” (Emphasis adde d.) Major , 18 I ll. at 358. ¶ 42 We conclude that a wrong ful-death action is not a true asset of the dece ased’ s estate. That said, we a re c onstrained to g ive ef

fec t to the statutory

languag e in section 2.1. See Sheffler

v. Commonwealth Edison Co.
, 2011 I L 110166, ¶ 77 (“statute should be co n s t rued, if possible, so that no word is rende red meaning less or superf luous”). We find g uidance in our appellate court’s opinion in In re Estate of Savio
, 388 I ll. App. 3 d 242 (2009). There the appellate court considere d whether an estate could be reope ned f o llowing the discovery
, afte r

-10-additional autopsies of the dece dent, of a wrong ful-dea th action. The former executor of the dece dent’s estate, who was also the dece dent’s ex-husband, objected, arguing in rele vant part that a wrong ful-dea

th action is not an asset of the dece dent’s estate and, there fore
, the estate could not be reope ned. See 755 I L CS 5/24-9 (West 2006) (providing that dece dent’s estate may be re opened “ to permit the administration of a ne wly discovere d asset”)

. ¶ 43 To deter

mine whe ther the wrong ful-death action was an asset of t he decede nt’s estate, the appellate court considere d wrong ful-death law in I llinois
, including section 2.1 of the Wrongf ul Death Ac t, on which def endant he re r elies. The a

ppellate c ourt stated:
“I t is clea r that under I llinois law, a wrong ful death claim may only be broug ht by the
persona l repr esentative of the dece dent. See 740 I L CS 180/2 (West 2006); Pasquale
, 166 I ll. 2d at 361 ***. Moreove r, section 2.1 of the Wrongf ul Death Act specific ally reference s a cause of action for wrong ful death as being an asset of the dece dent’s

es t at e. See 740 I L CS 180/2.1 (West 2006). *** The distinction to be made here i s

one of purpose. A wrong ful death claim is not an asset of a dece dent’s estate for the
purpose of whether it may be used to satisfy the claims of cre ditors of the estate. See Berard v. Eagle Air Helicopter, Inc.
, 257 I ll. App. 3d 778, 781 *** (1994). Howeve r,

a newly discovere d wrong ful death claim is an asset of a d ece dent’s estate for the
purpose of whether the estate may be reope ned under section 24-9 [of the Probate Act] ***. See 740 I L CS 180/2.1 (West 2006). There fore
, we aff irm the portion of the trial court’s ruling g ranting the petition to reope n Savio’s estate.” Savio
, 388 I ll. App. 3d at 248-49. ¶ 44 We ag ree with the Savio opinion that whether a wrong ful-death action is an “asse t of the dece ased estate” (740 I L CS 180/2.1 (West 2006)) is a matter of “purpose .” The lang uag e in section 2.1 of the Wrongf ul D eath Act, and the lang uag e in the statute as a whole, does not evince an intent by the leg islature to trea t a wrong ful-deat h ac t ion as an asset of the dece ased’ s estate f

or the purpose defe ndant urg es, i.e. , to a llow the dece ased to c ontrol the forum and manner in which a wrong ful -d ea t h cl aim—in which the dece ased has no interest—is deter

mined. Rather, the statutory lang uag e indicates t h at the “asse t” label adopted by the leg islature is intende d to f acilitate the filing a

nd prosec ution of a wrong fuldeath claim. See also In re Estate of Fiel d s , 588 S.W .2d 50, 54 n.2 (Mo. Ct. App. 1979) (applying I llinois law and observing that the ref ere nce in section 2.1 to a wr o ng ful-death action as an est ate asset is “simply leg islative shorthand or acknow ledg ment of the
proce dural lega l fiction that, afte r death, an adminis trator can be appointed only i f there is

an estate subject to possible administration,” but “substantively the [wrongf ul-dea th] action is not a g ener al asset of

the dec edent’ s estate” ). ¶ 45 To the extent the parties’ arguments sug g est that an ambig uity exis ts in section 2.1, we will consider leg islative history

. See In re D.D.
, 196 I ll. 2d 405, 419 (2001) (noting that only when th e m ea n i n g o f an enac tment cannot be asce rtained from the lang uag e may a court

resor t to other aids for construction). Section 2.1 was adopted in 1977. Pub. Act 80-752 (ef f. Sept. 16, 1977). Although this section was enlar g ed over the y ear s, the lang uag e at issue here has rema ined intact since its a doption. Compare 740 I L CS 180/2.1 (West 2006)
, with Pub. Act 80-752 (ef

f. Sept. 16, 1977). The leg islative history indicates that the intent of this new provision w as to “ make it more convenie nt” to bring a wrong ful-dea th a ction, and “cut the

-11-red tape” by permitting a court to appoint a special administrato r wh o could prosecute the

action without opening an estate. 80th I ll. Gen. Assem., House Procee dings, May 3, 1977, at 142 (stateme nts of Represe ntative Beatty ). R epre sentative Beatty ’s statements re inforce

our conclusion t h at the leg islature denominated a wrong ful-death action an “asse t of the dece ased estate” for the primary purpose of fac ilitating the filing and prosec ution of such an action. ¶ 46 For the fore g oing rea sons, we reje ct defe ndant’s arg ument that the wrong ful-death action filed by plaintiff is an asset of Gott’s estate that she could limit via the arbitration ag ree ment.

¶ 47 Derivative Nature of W rongful-Death Action ¶ 48 I n urg ing this court to hold that the wrong ful -d ea t h ac t i o n i s s u b j ect to arbitration, defe ndant also re lies on the so-ca lled “der ivative” nature of a wrong ful-death action. ¶ 49 L iability under section 1 of the Wrongf ul Death Act “depe nds upon the condition that the dece ased, at the time of his death, had he continued to live, would have had a rig ht of action
ag ainst the same person or persons for the injuries sustained.” Biddy v. Blue Bird Air Servic e , 374 I ll. 506, 513-14 (1940). Acc ord Varelis v. Northw estern Mem orial Hospital
, 167 I ll. 2d 449, 454 (199 5 ); W

i l liams
, 228 I ll. 2d at 421. I f the dece ased had no rig ht of action at the time of hi s or her death, then the dec ea s ed ’s p ersonal repr esenta tive has no rig ht of action under the Wrongf

ul Dea th Act. Id. ; Biddy
, 374 I ll. at 51 4

. I n t his sense, a wrong ful-death action is said to be “der ivative” of the dece dent’s rig hts. Varelis
, 167 I ll. 2d at 454. The ear ly

case of Mooney

v. City of Chicago , 239 I ll. 414 (1909), is illust rative. ¶ 50 I n Mooney
, the dece dent, Edwar d Dillon, was injured while d ri v i n g a wa go n fo r his employ er when the wag on hit a pothole. Dillon settled his per s o n al i njury action with his employ er, rele asing him from all liabili t y

. Following Dillon’s death, alleg edly from those injuries, the administrator of Dillon’s estate filed a wrong ful-death action ag ainst the city for maintaining the streets in a dang erous condition. The appellate court expressed the opinion that the rele ase executed by Dillon had no rela tion to the case and was err oneously admitted into evidenc e. Mooney
, 239 I l l

. at 422. We disag ree d, explaining that the administrator’s rig ht to maintain an action under the statute was depende nt upon Dillon’s rig ht to sue the city
at t he ti me of his death, but “if Dillon had rele ased the cause of action the s tatute does not confe r upon his administrator any rig ht to sue.” Id. at 423. See also Varelis
, 167 I ll. 2d at 456 (following Mooney and holding that a wrong ful-death action could not be pursued wher e the dece dent, during his lifetime, obtained a judg ment in a per sonal injury action based on the

same oc curr ence ). ¶ 51 Although case s like Mooney and Varelis involve instances wher e the dece dent’ s persona l injury claim was settled in some manner dur ing his lifetime, no leg al sig nificanc e attaches
to the particula

r rea son why a dece dent’s claim would have been barr ed had he or she lived. I f the dece dent could not have maintained a persona l injury action at the time of death, then

no wrong ful-dea

th action can be maintained based on that injury and the death that ensued. Id. at 460. ¶ 52 Def

endant argues that just as a dece dent’s settlement o f a p er s o n al i n j u ry ac t i o n constitutes a complete bar to a wrong ful-death action based on the same occur renc e, Gott’s

-12-ag ree ment to arbitrate disputes with defe ndant limit s the wrong ful-dea th action in the same

manner

. Def

endant relies on case law from sever al of our sister states g ener ally holding that beca use a wrong ful-dea

th action is deriva tive of th e dece dent’s persona l injury action, a wrong ful-dea

th action is subject to an arbitra tion ag ree ment enter ed by the dece dent. See In re Labatt Food Service

, L.P. , 279 S.W .3d 640, 646-47 (Te x . 2009) (c ollecting case s). ¶ 53 Plaintiff argues that the derivative nature of a wrong ful-death action does not mean that she is subject to any and all contra ctual limit ations—such as an ag ree ment to arbitrate—that

are applicable to the dece dent. See Bybe e v. Abdulla
, 189 P.3d 40, 46 (Utah 2008) (re jecting
argument that beca

use dece dent is master of his persona l injury action he may , by contra ct, expose his unwilling heirs to any imag inable defe nse to their wrong ful-death action). Plaintiff further responds that, as a nonparty to the arbitration agreements, she cannot be made to arbit rate the wrong ful-dea th action, which does not belong to Gott’s estate. See Finney v. National Healthcare Corp.
, 193 S.W .3d 393, 395 (Mo. C t. App. 2006) (holding that dece dent’s daug hter, who was a nonparty to the arbitration a g ree ment, did not stand in the shoes of the dece dent with respe ct to a wrong ful-death action beca use such action did not belong to the dece dent or de cede nt’s estate)

. ¶ 54 Def

endant overstate s the signific ance of the deriva tive nature of a wrong ful-death a ction. Although a wrong ful-dea

th action is depende nt upon the dece dent’s entitlement to maintain

an action for his or her injury
, had death not ensued, neither the Wrongf ul Death Act nor this court’s case l aw sug g ests that this limit ation on the cause of action provides a basis for dispensing with basic principles of contra ct law in de ciding who is bound by an arbitration
ag ree ment. ¶ 55 Arbitration i s a “c re at u re of contra ct” ( Board of Managers of the Courtyards at the W oodlands Condominium Ass’n v. IKO Chicago, Inc.
, 183 I ll. 2d 66, 74 (1998))
, and under b as ic principles of contra ct law, only parties to the arbitration contra ct may co m p el arbitration or be compelled to arbitrate ( Gingiss International, Inc. v. Bormet
, 58 F.3d 328, 331 (7th Cir. 1995); Vukusich v. Comprehensive Acc ounting Corp.
, 150 I ll. App. 3d 634, 640 (1986))

. The FAA ’s policy favor ing arbitration does not alter these principles. As the Supreme Court has state d: “The FAA direc ts courts to place arbitration ag ree ments on equal footing with other
contra cts, but it ‘does not require parties to arbitrate when they have not ag ree d to do so.’ Volt I nformation Sc ience

s, Inc. v . Board of Trustees of Leland Stanford J unior Univ.
, 489 U.S. 468, 478 (1989). *** ‘Arbitration under the [FAA] is a matter of consent, not c oerc ion.’ Id.
, at 479. *** I t g oes without saying that a contra ct cannot bind a nonpar

ty .” W affle House , 534 U.S. at 293-94.
See also Grundstad v. Ritt
, 106 F.3d 2 0 1
, 2 0 5 n.5 (7th Cir. 1997) (“the fede ral policy favor ing arbitration applies to issues concern i n g t h e scope of an arbitra tion ag ree ment enter ed into consensua lly by contra cting parties; it doe s not se rve to e x tend the rea ch of an arbitration provision to parties wh o n ev er ag ree d to arbitrate in the first place ” (empha sis omitted) (citing McCarthy v . Azure , 22 F.3d 351 ( 1st Cir. 1994)). ¶ 56 I n the prese nt case , althoug h the arbitration ag ree ments purport to bind not only Gott, but also her “succ essors, assig ns, ag ents, attorney s, insurers, heirs, trustees, and repr esenta tives,

-13-including the persona l repr esenta tive or executor of *** her estate,” no dispute exis ts that the

only parties to the ag ree ments are Gott and defe ndant. Although plaintiff signe d the 2005 arbitration ag ree ment, she did so only as Gott’s leg al repr esenta tive. Acc ording ly
, plaintiff is bound to arbitrate only

to the extent that plainti ff is ac ting in Gott’s stea d. ¶ 57 For purposes of count I of the complaint, which alleg es a violation of the Nursing Home C ar e Ac t by defe ndant pursuant to our survival statute, plaintiff is bound to arbitrate that claim, which had alre ady acc rued to Gott prior to death and which is broug ht for the benef it of Gott ’s estate. For purposes of count I I
, the wrongf ul-dea th action, plainti ff is not acting in Gott’s stead. As alre ady discussed, a wrong ful-death action does not acc rue until death and is not broug ht for the benef it of the dece dent’s estate, but for the next of kin who are the true parties in intere st. Pl aintiff, as Gott’s persona l r epre sentative in the wr ong ful-death action, is merely a nominal party
, eff

ectively filing suit as a statutory trustee on behalf of the next

o f k in. See Glenn
, 198 I ll. 2d at 583. Plaintiff is not prosec uting the wrong ful-death clai m

on behalf of Gott, and thus plaintiff is not bound by Gott’s ag ree ment to arbitrate for purposes of this ca

use of a ction. ¶ 58 De fe n d an t ’s relianc e on the Supreme Court’s rec ent decision in Marmet Health C a r e Center, Inc

. v. B r o wn , 565 U.S. ___, 132 S. Ct. 1201 (2012) ( per curiam ), as a basis for compelli ng arbitration of the wrong ful-death claim, is misplaced. Marmet involved t h re e neg lige nce suits ag ainst nursing homes in West Virginia. I n eac h case a fa

mily member of the dece ased patient signe d an ag ree ment that contained an arbitration clause

. The West Virg inia Supreme Court held that the FAA does not pree mpt that state’s public policy ag ainst predispute arbitration ag ree ments that apply to persona l injury or wrongfu l -d eath claims
ag ainst nursing homes, and thus
, the arbitration clau s es woul d not be enforce d. Id. at ___, 132 S. Ct. at 1203. I n two of the case s, the W es t Virg inia court proposed an alterna tive holding, namely
, that the arbitration clauses we re unc onscionable. Id. at ___, 132 S. Ct. at 1204. ¶ 59 The S upreme Court vaca ted t he West Virg inia decision. Id. at ___, 132 S. Ct. at 1202. Noting that the FAA ’s text includes no exception for persona l injury or wrong ful-death claims, the Supreme Court held that “West Virg inia’s prohibition ag ainst predispute
ag ree ments to arbitrate personal-injury or wrongf ul-dea th claims ag ainst nursing homes is

a cate g orica l rule prohibiting arbitration of a particula r ty pe of claim, and that rule is contra ry to the terms and cover ag e of the FAA .” Id. at ___, 132 S. Ct. at 1203-04. Unclea r as to the
extent the West Virg inia court’s alternative holding was influence d by its invalid, cate g orica l antiarbitration rule, the Supreme Court re m an d ed the case so that the West Virg inia court could consider whether the arbitration clause s wer e unenfor cea ble under state common law principles that ar e not specific to arbitration and preempted by the FAA. Id. at ___, 132 S. Ct. at 1204. ¶ 60 Our holding in the prese nt case that plaintiff, as a nonparty to the arbitration ag ree ments, cannot be compelled to arbitrate a wrong ful-death claim that does not belong to the dece dent is not contra

ry to Marmet

. Our holding, unl i k e t h e W es t Virg inia court’s holding, is not based on a cate g orica l antiarbitration rule; it is based on common law principles g overning all contra cts. Marmet rec og nized the signific ance of common law contra ct defe nses when it
returne d that case to the West Virg inia court to consider the validity of the arbitra tion clause s

-14-under that state’s common law. Moreove r, Marmet noted that the FAA “ ‘re quires courts to

enfor ce the barg ain of the parties to arbitrate.’ ” (Emphasis added.) Id. at ___, 132 S. Ct. at 1203 (quoting Dean W

itter Rey nolds Inc. v. Byrd
, 470 U.S. 213, 217 (1985))

. Plaintiff here is not a party

to the barg ain to arbitrate. ¶ 61 We agr ee wi t h t h e d ecision of the courts below that plaintiff cannot be compelled to arbitrate the wr ong ful-dea th claim ag ainst defe ndant.

¶ 62 CONCL USI ON ¶ 63 For the rea sons stated, we aff irm in part and reve rse in part the judgme nt of the appellate court, a nd rema nd this cause to the tria l court for further proce eding s.

¶ 64 Affir

med in part a

nd reve rsed in par

t. ¶ 65 Cause re manded.

-15-