NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

GERALDINE FAAS, Plaintiff/Appellee,

v.

SUNLAND HEALTH ASSOCIATES, LLC, et al., Defendants/Appellants.

No. 1 CA-CV 22-0006

Appeal from the Superior Court in Maricopa County

No. CV2021-091416

The Honorable Stephen M. Hopkins, Judge

AFFIRMED

COUNSEL

Calderon Barton PLLC, Mesa

By Joshua D. Barton 

Counsel for Plaintiff/Appellee

Jones Skelton & Hochuli PLC, Phoenix

By Jonathan Paul Barnes, Jr. 

Co-Counsel for Defendants/Appellants

Ensign Services, Inc., Higley

By Michael J. Ryan, Michael S. Redhair

Co-Counsel for Defendants/Appellants

FILED 11-1-2022
FAAS v. SUNLAND HEALTH, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.

P A T O N, Judge:

¶1 Sunland Health Associates, LLC, Montecito Post Acute Care 

and Rehabilitation, the Ensign Group, Inc., Ensign Services, Inc., Bandera 

Healthcare LLC, Bandera Healthcare Inc., and Karl Cooper (collectively 

“Montecito”) appeal the superior court’s order denying a motion to compel 

arbitration of Geraldine Faas’s wrongful death claim.

¶2 The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, does 

not preempt Arizona case law set forth in Dueñas v. Life Care Centers of 

America, Inc., 236 Ariz. 130 (App. 2014) and Estate of DeCamacho ex rel. 

Guthrie v. La Solana Care and Rehab, Inc., 234 Ariz. 18 (App. 2014) that a nonsignatory to an arbitration agreement is not bound to arbitrate a wrongful 

death claim. We affirm. 

FACTS AND PROCEDURAL HISTORY

¶3 Faas’s decedent signed an arbitration agreement in 2019 that 

applied to the medical services provided by Montecito that expressly bound 

his heirs and family members. The arbitration agreement provided that any 

future arbitration shall be conducted “in accordance with the procedures 

set forth in the [FAA]” and stated that the “agreement evidences a 

transaction involving interstate commerce.”

¶4 After Faas filed a lawsuit alleging wrongful death, medical 

negligence, violation of the Adult Protective Services Act, and breach of 

contract, Montecito moved to compel arbitration of all claims based on the

arbitration agreement. Under Arizona case law, a non-signatory statutory 

beneficiary’s wrongful death claim is not subject to a decedent’s arbitration 

agreement, even if the agreement purported to bind the decedent’s heirs. 

Dueñas, 236 Ariz. at 134, ¶ 2; id. at 138-39, ¶¶ 24-29; see also DeCamacho, 234 

Ariz. at 25, ¶ 27. Accordingly, the superior court denied the motion to 

compel arbitration of the wrongful death claim.
FAAS v. SUNLAND HEALTH, et al.

Decision of the Court

3

DISCUSSION

¶5 Montecito argues the superior court erred in denying its 

motion to compel arbitration of Faas’s wrongful death claim as violative of 

congressional intent under the FAA. We review de novo the denial of a 

motion to compel arbitration. Rizzio v. Surpass Senior Living LLC, 251 Ariz. 

413, 417, ¶ 8 (2021). 

¶6 The FAA mandates enforcement of arbitration agreements 

“evidencing a transaction involving commerce.” 9 U.S.C. § 2. Section 2 of 

the FAA establishes federal substantive arbitration law applying to any 

arbitration agreement within the FAA and reflects congressional intent to 

establish a “liberal federal policy favoring arbitration agreements” despite 

contrary state policy. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 

460 U.S. 1, 24 (1983). Both state and federal courts must enforce the FAA 

with respect to all arbitration agreements covered by that statute. Id.

¶7 When deciding whether parties agreed to arbitrate under the 

FAA, courts apply ordinary state-law principles regarding contract 

formation. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). 

A court may invalidate an arbitration agreement without contravening 

section 2 of the FAA based on generally applicable state-law contract 

defenses. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-87 (1996). A

court should give no preference to arbitration agreements but should apply 

generally applicable law to decide whether a party agreed to arbitrate. See 

Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1713-14 (2022). 

¶8 When an Arizona court determines the enforceability of an 

arbitration agreement under the FAA, it applies Arizona common law 

pertaining to contracts generally. Sec. Alarm Fin. Enters., L.P. v. Fuller, 242 

Ariz. 512, 516, ¶ 11 (App. 2017); WB, The Bldg. Co., LLC v. El Destino, LP, 227 

Ariz. 302, 308, ¶ 14 (App. 2011). The general rule is that an arbitration 

agreement only binds the parties to the agreement. Dueñas, 236 Ariz. at 139, 

¶ 26.

¶9 An arbitration agreement with a nursing home signed by a 

patient does not bind non-signatory statutory beneficiaries to arbitrate their 

wrongful death claims. Id. at 138-39, ¶¶ 23-29; see also DeCamacho, 234 Ariz. 

at 25, ¶ 27. This is because a wrongful death claim is a claim for an act that 

would “if death [of the decedent] had not ensued, have entitled [the 

decedent]” to sue for the injury. A.R.S. § 12-611. Because a decedent cannot 

maintain an action, the Legislature provided for the cause of action to vest 

in the decedent’s survivors. A.R.S. § 12-612. As such, it belongs solely to 
FAAS v. SUNLAND HEALTH, et al.

Decision of the Court

4

the statutory beneficiary and at no point belongs to the decedent. See

DeCamacho, 234 Ariz. at 24-25, ¶¶ 24-27 (statutory beneficiary 

independently holds the wrongful death claim); Huebner v. Deuchle, 109 

Ariz. 549, 549-50 (1973); A.R.S. §§ 12-611, -612. 

¶10 Any express language in an arbitration agreement purporting 

to bind non-signatory statutory beneficiaries to arbitrate is unenforceable

as to a wrongful death claim. Dueñas, 236 Ariz. at 138-39, ¶ 25. Thus, under 

Arizona law, the superior court here correctly ruled that the arbitration 

agreement did not bind Faas, a non-signatory statutory beneficiary, on her 

wrongful death claim. WB, The Bldg. Co., 227 Ariz. at 306, ¶ 11 (noting that 

a court will only compel arbitration when an arbitration provision is 

enforceable). 

¶11 Montecito argues the FAA preempts Dueñas and DeCamacho

because the judicially created rules set forth in those cases impermissibly 

discriminate against Arizona arbitration agreements by treating them 

differently from other agreements. Indeed, Dueñas and DeCamacho both 

recognized that a settlement agreement between a patient and healthcare 

facility as to the patient’s personal injury claim may bar a claim by a 

statutory beneficiary based on the same underlying conduct, but that an 

arbitration agreement signed by a patient is not enforceable against a nonsignatory statutory beneficiary as to a wrongful death claim. Dueñas, 236 

Ariz. at 139, ¶¶ 27-29; DeCamacho, 234 Ariz. at 25-26, ¶¶ 27-33. Montecito

argues this disparate treatment is impermissible under the FAA, relying on 

AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). In Concepcion, the 

United States Supreme Court stated that the FAA displaces state-law 

contract defenses applied in a way that has a disproportionate impact on 

arbitration agreements. 563 U.S. at 341-43. But Dueñas and DeCamacho do 

not contravene Concepcion; these cases merely interpret Arizona wrongful 

death law and statutes to determine who holds an interest in a claim and 

whether a non-signatory to an arbitration agreement can have that interest 

impaired by another person. Dueñas, 236 Ariz. at 138-39, ¶¶ 23-29; 

DeCamacho, 234 Ariz. at 24-25, ¶¶ 24-27.

¶12 In other words, because the decedent never owned the claim 

that Faas now brings, the decedent could not—while alive—agree to 

arbitrate that claim after the decedent dies. See Duenas, 236 Ariz. at 138-39, 

¶ 25. Whereas, because the wrongful death action itself cannot accrue if the 

underlying injury claim is settled before the decedent dies, a settlement of 

the injury is necessarily a settlement of the wrongful death claim. See A.R.S. 

§ 12-611; see also Schoenrock v. Cigna Health Plan of Ariz., Inc., 148 Ariz. 548, 

551 (App. 1985). This is due to the unique nature of a wrongful death action 
FAAS v. SUNLAND HEALTH, et al.

Decision of the Court

5

in that it accrues after death; it is not the result of a rule that categorically 

disfavors arbitration.

¶13 Montecito correctly notes that the FAA requires courts to

enforce arbitration agreements involving interstate commerce, and 

“includes no exception for personal-injury or wrongful-death claims.” 9 

U.S.C. § 2; Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 532-33 (2012) 

(vacating state court decision setting forth general state policy prohibiting 

enforcement of pre-dispute arbitration clauses in a nursing home admission 

agreement to arbitrate personal-injury or wrongful-death claims as a 

categorical rule prohibiting arbitration of a particular type of claim). But 

the fact that wrongful death claims can be arbitrable—if, for example, Faas 

had been a party to the agreement—does not mean that the superior court 

must enforce an arbitration agreement to which Faas was not a party. The 

FAA does not require parties to arbitrate claims when they have not agreed 

to do so. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219-21 (1985).

¶14 Ultimately, this case is about consent. Volt Info. Scis., Inc. v. 

Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989) (stating that 

“[a]rbitration under the [FAA] is a matter of consent, not coercion . . . .”). A 

patient who signs an arbitration agreement binding his heirs consents to 

arbitrate his own personal injury claim. See U.S. Insulation Inc. v. Hilro 

Const. Co., Inc., 146 Ariz. 250, 256 (App. 1985) (stating that “the arbitration 

clause constitutes the consent of the parties to the establishment of extralegal machinery for the settlement of their disputes”). But a patient does 

not—and cannot—consent on behalf of non-signatory statutory 

beneficiaries to arbitrate the statutory beneficiaries’ future wrongful death 

claim. See Dueñas, 236 Ariz. at 139, ¶ 27 (noting that patient’s agent “could 

not contractually limit the children’s personal claims without their assent”).

¶15 Nothing in the FAA “purports to alter background principles 

of state contract law regarding the scope of agreements” or “who is bound 

by them.” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630 (2009). The FAA 

does not preempt Arizona law that a non-signatory to an arbitration 

agreement is not bound to arbitrate a wrongful death claim. Faas may 

litigate her wrongful death claim.

CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court’s 

ruling denying Montecito’s motion to compel arbitration of Faas’s 

wrongful death claim. Because this action does not arise out of a contract 

within the meaning of the applicable statute, we deny Faas’s request for 
FAAS v. SUNLAND HEALTH, et al.

Decision of the Court

6

attorneys’ fees under A.R.S. § 12-341.01. See ML Servicing Co., Inc. v. Coles, 

235 Ariz. 562, 570, ¶¶ 30-32 (App. 2014). We award costs to Faas upon 

compliance with Arizona Rule of Civil Appellate Procedure 21.