Amended December 30, 2016 Mary E. Roth and Michael A. Roth, Individually and as Coexecutors of the Estate of Cletus Roth, Anna M. Roth, Individually, and Bradley E. Roth, Individually v. The Evangelical Lutheran Good Samaritan Society D/B/A Good Samaritan Society - George ( 2016 )

  •                 IN THE SUPREME COURT OF IOWA
                                    No. 15–2095
                              Filed October 21, 2016
                           Amended December 30, 2016
    MARY E. ROTH and MICHAEL A. ROTH, Individually and as
    Coexecutors of the Estate of Cletus Roth, ANNA M. ROTH, Individually,
    and BRADLEY E. ROTH, Individually,
          Certified questions of law from the United States District Court for
    the Northern District of Iowa, Mark W. Bennett, United States District
    Court Judge.
          A federal district court certified two questions of law concerning
    adult children’s loss-of-consortium claims in a suit against a nursing
          Pressley Henningsen and Benjamin P. Long of RSH Legal, P.C.,
    Cedar Rapids, for plaintiffs.
          Christopher P. Jannes and Kendall R. Watkins of Davis, Brown,
    Koehn, Shors & Roberts, Des Moines, for defendant.
    MANSFIELD, Justice.
          We have been asked to answer two certified questions of Iowa law
    in a tort case brought by the adult children of a former nursing home
    resident against the nursing home. The questions are as follows:
          1. Does Iowa Code section 613.15 require that adult children’s
    loss-of-parental-consortium claims be arbitrated when the deceased
    parent’s estate’s claims are otherwise subject to arbitration?
          2. Does the fact that a deceased parent’s estate’s claims are
    subject to arbitration establish that it is impossible, impracticable, or not
    in the best interest of the decedent’s adult children for the decedent’s
    estate to maintain their claims for loss of parental consortium, such that
    the loss-of-consortium claims can be maintained separately in court,
    notwithstanding that the estate’s claims must be arbitrated?
          For the reasons discussed herein, we answer these questions as
          1. No.
          2. It is not necessary to answer this question.
          I. Background Facts and Proceedings.
          On November 27, 2013, seventy-nine-year-old Cletus Roth was
    admitted to a forty-five-bed nursing facility operated by The Evangelical
    Lutheran Good Samaritan Society (Good Samaritan) in Lyon County.
    Approximately two weeks later, on December 12, Cletus’s son Michael
    signed a detailed admission agreement with Good Samaritan relating to
    Cletus’s stay.   At that time, Michael had general healthcare powers of
    attorney for Cletus. Cletus’s daughter Mary also had the same powers of
          Part of the admission documentation was a separate two-page
    document entitled “RESOLUTION OF LEGAL DISPUTES.”                 This item
    stated at the top in boldface type, “Please note that the Resident’s
    agreement to arbitrate disputes is not a condition of admission or of
    continued stay.” Beneath this sentence were a series of clauses:
         A. Resident’s Rights.       Any legal controversy, dispute,
            disagreement or claim arising between the Parties hereto
            after the execution of this Admission Agreement in which
            Resident, or a person acting on his or her behalf, alleges a
            violation of any right granted Resident under law or
            contract shall be settled exclusively by binding arbitration
            as set forth in Section C. below. This provision shall not
            limit in any way the Resident’s right to file formal or
            informal grievances with the Facility or the state or
            federal government.
         B. All Other Disputes. Any legal controversy, dispute,
            disagreement or claim of any kind arising out of or related
            to this Admission Agreement, or the breach thereof, or,
            related to the care of stay at the Facility, shall be settled
            exclusively by binding arbitration as set forth in Section
            C. below. This arbitration clause is meant to apply to all
            controversies,   disputes,    disagreements      or   claims
            including, but not limited to, all breach of contract
            claims, all negligence and malpractice claims, all tort
            claims and all allegations of fraud concerning entering
            into or canceling this Admission Agreement.             This
            arbitration provision binds all parties whose claims may
            arise out of or relate to treatment or service provided by
            the center including any spouse or heirs of the Resident.
         C. Conduct of Arbitration. The Resident understands that
            agreeing to arbitrate legal disputes means that he/she is
            waiving his/her right to sue in a court of law and to a
            trial by jury and that arbitration is not a limitation of
            liability but merely shifts the Parties’ dispute(s) to an
            alternate forum. The Resident shall indicate his/her
            willingness to arbitrate by informing the Facility by
            marking the YES or NO box below and signing and dating
            where indicated. . . .
         D. Governing Law.        The Parties acknowledge that the
            Facility regularly conducts transactions involving
            interstate commerce and that services provided by the
            Facility to the Resident involve interstate commerce. The
            Parties therefore agree that this Admission Agreement is a
            transaction involving interstate commerce. The Parties
            agree that this Resolution of Legal Disputes provision and
            all proceedings relating to the arbitration of any claim
            shall be governed by and interpreted under the Federal
              Arbitration Act (FAA), 9 U.S.C. Sections 1-16 (or as
              amended or superseded).
           In the middle of the second page were two boxes:
           YES I DO wish to arbitrate disputes and I received a copy of
           this Resolution of Legal Disputes.
           NO I DO NOT wish to arbitrate disputes.
           Michael indicated that he wished to arbitrate disputes by
    approving the checking of the first box and then signing and dating the
    arbitration agreement. 1
           Following Cletus’s death, on August 14, 2015, Mary and Michael
    as coexecutors of his estate—as well as Mary, Michael, and their siblings
    Anna and Bradley individually—filed an action against Good Samaritan.
    The petition alleged that the defendant had “negligently cared for
    Cletus . . . and violated numerous regulations, laws, rights, and industry
    standards, causing Cletus . . . personal injury, illness, harm, and
    eventual death . . . .” Five counts were set forth in the petition: “wrongful
    death, negligence, gross negligence, and/or recklessness,” “breach of
    contract,” “dependent adult abuse,” “loss of consortium for [Mary,
    Michael, Anna, and Bradley],” and “punitive damages.” Good Samaritan
    removed the case to federal court based on diversity of citizenship then
    moved to compel arbitration.
           1We note that in a final rule published October 4, 2016, the Federal Centers for
    Medicare & Medicaid Services will prohibit nursing homes that receive Medicare or
    Medicaid funding from entering into this type of arbitration agreement:
           A facility must not enter into a pre-dispute agreement for binding
           arbitration with any resident or resident’s representative nor require that
           a resident sign an arbitration agreement as a condition of admission to
           the [long-term care] facility.
    Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care
    Facilities, 81 Fed. Reg. 68,688, 68,867 (Oct. 4, 2016) (to be codified at 42 C.F.R. pt.
            On December 7, the United States District Court for the Northern
    District of Iowa filed a memorandum opinion. It directed that the claims
    of Cletus’s estate be submitted to arbitration. However, the district court
    asked this court to answer two certified questions of Iowa law relating to
    the adult children’s loss-of-consortium claims.
          II. Standard Applicable to Certified Questions.
            We have said before,
                  It is within our discretion to answer certified questions
            from a United States district court. We may answer a
            question certified to us when (1) a proper court certified the
            question, (2) the question involves a matter of Iowa law, (3)
            the question “may be determinative of the cause . . . pending
            in the certifying court,” and (4) it appears to the certifying
            court that there is no controlling Iowa precedent.
    Life Inv’rs Ins. Co. of Am. v. Estate of Corrado, 
    838 N.W.2d 640
    , 643 (Iowa
    2013) (citation omitted) (quoting Iowa Code § 684A.1).
            Here we elect to answer the certified questions. They arrive to us
    from a proper court, they involve matters of Iowa law, they may be
    determinative of the cause, and there is no controlling Iowa precedent.
    See Oyens Feed & Supply, Inc. v. Primebank, 
    879 N.W.2d 853
    , 858 (Iowa
    2016). Additionally, both parties urge us to answer the questions. See
            III. Analysis.
            A. First Certified Question: Does Iowa Code Section 613.15
    Require Adult Children’s Loss-of-Consortium Claims to Be Arbitrated
    When the Estate’s Claims Are Otherwise Subject to Arbitration?
    When a person dies due to the wrongful or negligent act of another, Iowa
    law authorizes the personal representative to commence a wrongful-
    death action on behalf of the estate. As we have explained,
            Iowa recognizes no common law action for wrongful death.
            Power to maintain such actions is entirely statutory. Our
          first statute was enacted in 1851 as Code § 2501. That
          section is today § 611.20, a survival statute, which keeps
          alive for the benefit of his estate the cause of action which
          the deceased prior to his death could have brought had he
          survived the injury, with recovery enlarged to include the
          wrongful death.
    Egan v. Naylor, 
    208 N.W.2d 915
    , 917 (Iowa 1973). Iowa Code section
    611.20, the present statutory foundation for wrongful-death actions,
    provides, “All causes of action shall survive and may be brought
    notwithstanding the death of the person entitled or liable to the same.”
    Iowa Code § 611.20 (2015). Furthermore, “Code §§ 611.20, 611.22 and
    633.336 and their predecessors have consistently been held to vest the
    right to recover wrongful death damages exclusively in the estate
    representative.” Egan, 208 N.W.2d at 918.
          In addition, Iowa recognizes a cause of action for loss of
    consortium. When a minor child suffers injury or death, Iowa Rule of
    Civil Procedure 1.206 provides, “A parent, or the parents, may sue for the
    expense and actual loss of services, companionship and society resulting
    from injury to or death of a minor child.”        Iowa R. Civ. P. 1.206.
    Otherwise, such as here when a parent dies allegedly due to the wrongful
    act of another, Iowa Code section 613.15 provides,
                In any action for damages because of the wrongful or
          negligent injury or death of a woman, there shall be no
          disabilities or restrictions, and recovery may be had on
          account thereof in the same manner as in cases of damage
          because of the wrongful or negligent injury or death of a
          man. In addition she, or her administrator for her estate,
          may recover for physician’s services, nursing and hospital
          expense, and in the case of both women and men, such
          person, or the appropriate administrator, may recover the
          value of services and support as spouse or parent, or both,
          as the case may be, in such sum as the jury deems proper;
          provided, however, recovery for these elements of damage
          may not be had by the spouse and children, as such, of any
          person who, or whose administrator, is entitled to recover
    Iowa Code § 613.15.
          So worded, Iowa Code section 613.15 empowers the administrator
    of a parent’s estate, rather than the children, to bring an action for the
    children’s loss of the parent’s services. “In the case of a parent’s death,
    the child’s claim for loss of parental consortium should be brought by the
    decedent’s administrator under section 613.15.” Audubon-Exira Ready
    Mix, Inc. v. Ill. Cent. Gulf R.R., 
    335 N.W.2d 148
    , 152 (Iowa 1983).
          But although the personal representative normally files both
    claims, there is a critical difference between the wrongful death cause of
    action and the consortium cause of action.         In the latter instance,
    damages “are to be distributed by the trial court [to the children] under
    section 633.336.” Id. at 151–52. Iowa Code section 633.336 codifies this
                When a wrongful act produces death, damages
          recovered as a result of the wrongful act shall be disposed of
          as personal property belonging to the estate of the deceased;
          however, if the damages include damages for loss of services
          and support of a deceased spouse, parent, or child, the
          damages shall be apportioned by the court among the
          surviving spouse, children, and parents of the decedent in a
          manner as the court may deem equitable consistent with the
          loss of services and support sustained by the surviving
          spouse, children, and parents respectively.
    Iowa Code § 633.336.
          In our caselaw, we have reiterated these points:
          Authority to sue for lost services and the recovery belonged
          to the injured person rather than the deprived spouse or
          child in the action under section 613.15. If the person died,
          the only further recovery could be made under . . . section
          613.15 in the case of death of a spouse or parent. Authority
          to sue under section 613.15 passed to the administrator but,
          under section 633.336, the recovery was to be apportioned to
          the spouse and children of the decedent in accordance with
          their loss.
    Madison v. Colby, 
    348 N.W.2d 202
    , 207 (Iowa 1984). The cause of action
    for parental consortium is “to be commenced by . . . the parent’s estate”
    although “the ownership of the proceeds [is] in the child.”     Roquet by
    Roquet v. Jervis B. Webb Co., 
    436 N.W.2d 46
    , 47 (Iowa 1989).
          [A] child has a cause of action for loss of parental consortium
          and support for the death or injury of a parent by a third
          party. . . . Yet, such a claim is required to be brought
          by . . . the administrator of the estate under Iowa Code
          section 613.15.
    Clark v. Estate of Rice ex rel. Rice, 
    653 N.W.2d 166
    , 174 (Iowa 2002)
    (citations omitted); see also Nichols v. Schweitzer, 
    472 N.W.2d 266
    , 271
    (Iowa 1991) (“[S]ection 613.15 designates the personal representative of
    the deceased as the proper party to bring a suit for the loss of
    consortium of the deprived spouse.        The independent claim of the
    deprived spouse thus passes to the administrator on death of the injured
          Yet there is an exception to the rule that either the parent or—in
    the case of the death—the administrator or executor of the parent’s
    estate must commence an action to recover damages for loss of
    consortium. See Nelson v. Ludovissy, 
    368 N.W.2d 141
    , 146 (Iowa 1985).
    In Nelson, Hans Nelson was injured when his farm tractor collided with a
    truck. Id. at 143. He and his wife sued the owner and the operator of
    the truck seeking damages for Hans’s injuries and lost services and
    support to their minor children. Id. However, they made no claim for
    lost services and support on behalf of their adult children. Id. The adult
    children brought separate actions, which the district court dismissed.
    Id. We reversed. Id. at 146.
          We explained that while child–parent consortium claims are
    “subject to the mandates of [Iowa Code section 613.15] concerning who
    could maintain the action,” that “does not completely eliminate” the
    possibility of separate claims. Id. at 145–46. “There may be cases where
    joinder of claims is feasible, yet it is not in the best interests of a minor
    or adult child that the injured parent bring or control the action.” Id. at
    146. We elaborated,
          [W]e must reject appellants’ claim that adult children may
          pursue consortium and loss of support claims under section
          613.15 in their own names as a matter of right. The statute
          expressly provides that “recovery for these elements of
          damage may not be had by the . . . children, as such, of any
          person who . . . is entitled to recover same.” In order for
          either a minor or adult child to avoid this statutory
          proscription, we deem it necessary that the child must first
          establish to the court’s satisfaction that it is impossible,
          impracticable or not in the child’s best interest for the parent
          to maintain the action.
    Id. (quoting Iowa Code § 613.15). We continued,
                 The required showing may be inferred from the
          circumstances. Where, as in the present case, the statutory
          plaintiff has already commenced an action omitting the
          claims of a child, it may be inferred that the statutory
          plaintiff has elected against representing the child’s
          interests. Such circumstance will justify maintaining the
          action in the child’s own name subject, however, to joinder
          with the parent’s claim to the extent required by Madison.
          Because the issue is involved in the present actions, we
          conclude that for this purpose consolidation of pending
          actions is the equivalent of joinder.
                Similarly, and again subject to the requirement of
          joinder with the parent’s claim, we recognize that the rights
          of adult children to manage and control their own affairs
          requires that where disagreement arises over who shall
          control the course of the litigation, this circumstance alone
          should permit an adult child to maintain a claim under
          section 613.15 in the child’s own name.
    Id. In short, we recognized an exception to Iowa Code section 613.15 for
    circumstances when it is “impossible, impracticable or not in the child’s
    best interest for the parent to maintain the action.” Id. We found this
    exception applied when the parent had commenced an action without
    including the adult children’s consortium claims. Id.
          More recently, we have held that a minor child’s claim for loss of
    consortium of a deceased parent is subject to the separate statute of
    limitations applicable to minors. Christy v. Miulli, 
    692 N.W.2d 694
    , 706
    (Iowa 2005).      The logic of this decision was that Iowa Code section
    613.15 is essentially a joinder rule for efficiency purposes. Id. at 705–06.
    The administrator does not “own[]” the cause of action.             Id. at 705.
    Rather, “a loss-of-parental-consortium claim is independent of the
    wrongful death claim and belongs to the child.” Id.; see also Beeck v.
    S.R. Smith Co., 
    359 N.W.2d 482
    , 486–87 (Iowa 1984) (holding that a
    minor child’s loss-of-consortium claim for an injured parent is subject to
    “the statute [of limitations] applicable to minors,” not the statute
    applicable to the parent).
          We   agree     with    the   district   court   that   when   a   personal
    representative brings a wrongful-death action against a party with whom
    the decedent entered into a binding arbitration agreement, the case is
    subject to arbitration. This is due to the nature of the wrongful-death
    action in Iowa:
                  Unlike the wrongful death statutes in many states,
          Iowa’s death statutes have always been of the “survival” type.
          Such a statute does not create a new cause of action in a
          decedent’s survivors; rather, it preserves whatever rights and
          liabilities a decedent had with respect to a cause of action at
          the time of his death. The cause of action thus preserved is
          deemed to accrue to the decedent’s estate representative “at
          the time it would have accrued to the deceased if he had
    Weitl v. Moes, 
    311 N.W.2d 259
    , 270 (Iowa 1981) (plurality opinion)
    (citations omitted) (quoting Iowa Code § 611.22), overruled on other
    grounds by Audubon-Exira, 335 N.W.2d at 152.
          The right to recover wrongful-death damages in Iowa is vested
    exclusively in the estate representative, and the recovery belongs to the
    estate.   See Iowa Code § 611.22; id. § 633.336; Troester v. Sisters of
    Mercy Health Corp., 
    328 N.W.2d 308
    , 312 (Iowa 1982). Wrongful-death
    damages are “damages the administrator of the estate can recover on
    behalf of the estate.” State v. Izzolena, 
    609 N.W.2d 541
    , 546 n.2 (Iowa
    2000). The administrator or executor is in all respects the successor in
    interest to the party that entered into the arbitration agreement.    See
    Shook v. Crabb, 
    281 N.W.2d 616
    , 617–18 (Iowa 1979) (“[T]he capacity of
    an estate to bring an action for wrongful death is contingent upon the
    capacity of the estate’s decedent to bring the action had he or she
          Notably, in other jurisdictions where wrongful-death actions are
    brought by a personal representative who stands in the shoes of the
    decedent, courts regularly hold that the personal representative must
    abide by any arbitration agreement of the decedent.         See Briarcliff
    Nursing Home, Inc. v. Turcotte, 
    894 So. 2d 661
    , 664–65 (Ala. 2004)
    (holding in two actions against a nursing home that the personal
    representatives were “bound by the arbitration provisions contained in
    the admission contracts”); Laizure v. Avante at Leesburg, Inc., 
    109 So. 3d 752
    , 754 (Fla. 2013) (concluding that the survivors of a nursing home
    patient were obligated to arbitrate wrongful-death claims against the
    nursing home because such claims are “derivative”); Sanford v. Castleton
    Health Care Ctr., LLC, 
    813 N.E.2d 411
    , 422 (Ind. Ct. App. 2004) (holding
    that wrongful-death claims must be arbitrated based upon an arbitration
    clause in the decedent’s admission agreement because under Indiana law
    “a personal representative may maintain a cause of action against an
    alleged wrongdoer only if the decedent, if alive, might have maintained
    such a cause of action”); Estate of Krahmer ex rel. Peck v. Laurel
    Healthcare Providers, LLC, 
    315 P.3d 298
    , 300–01 (N.M. Ct. App. 2013)
    (reasoning that “a wrongful death representative is bound to arbitrate if
    the decedent was personally bound by an arbitration agreement” because
    “the    representative’s   rights   [are]   derivative   of   the   decedent’s”);
    MacPherson v. Magee Mem’l Hosp. for Convalescence, 
    128 A.3d 1209
    1226–27 (Pa. Super. Ct. 2015) (holding that personal representatives
    bringing wrongful-death claims were “bound by otherwise enforceable
    arbitration agreements signed by a decedent”).
            By contrast, in jurisdictions where wrongful death is regarded as
    an independent claim for the direct benefit of the estate’s beneficiaries,
    i.e., the “many states” referenced in Weitl, 311 N.W.2d at 270, courts
    generally do not find the decedent’s arbitration agreement to be binding.
    See Estate of Decamacho ex rel. Guthrie v. La Solana Care & Rehab, Inc.,
    316 P.3d 607
    , 614 (Ariz. Ct. App. 2014) (holding a wrongful-death claim
    against a nursing home not arbitrable because in Arizona “a wrongful
    death    claim   is   independently    held   by   the   decedent’s    statutory
    beneficiaries”); Norton v. United Health Servs. of Ga., Inc., 
    783 S.E.2d 437
    , 440–41 (Ga. Ct. App. 2016) (determining that an arbitration
    agreement executed by the decedent’s authorized representative during
    the decedent’s lifetime was not binding in a wrongful-death action
    because such a claim belongs to the survivors); Carter v. SSC Odin
    Operating Co., LLC, 
    976 N.E.2d 344
    , 355–58 (Ill. 2012) (rejecting the
    argument that a wrongful-death action is “a true asset of the decedent’s
    estate” and can therefore be limited by the decedent’s agreement to
    arbitrate); Ping v. Beverly Enters., Inc., 
    376 S.W.3d 581
    , 600 (Ky. 2012)
    (“[T]he wrongful death claimants would not be bound by their decedent’s
    arbitration agreement, even if one existed, because their statutorily
    distinct claim does not derive from any claim on behalf of the decedent,
    and they therefore do not succeed to the decedent’s dispute resolution
    agreements.”); FutureCare NorthPoint, LLC v. Peeler, 
    143 A.3d 191
    , 209–
    10, 213 (Md. Ct. Spec. App. 2016) (deciding that the decedent’s
    arbitration agreement was not binding in a wrongful-death action
    because Maryland “has construed its wrongful death statute as creating
    a new and independent cause of action that does not belong to the
    decedent or the decedent’s estate”); Lawrence v. Beverly Manor, 
    273 S.W.3d 525
    , 529 (Mo. 2009) (en banc) (finding a deceased nursing home
    resident’s son could bring a wrongful-death action in court despite an
    arbitration clause because Missouri law creates a “separate” and “not
    derivative” wrongful-death action to be brought by the decedent’s lineal
    descendants); Wolcott v. Summerville at Outlook Manor, LLC, ___ N.E.3d
    ___, ___, 
    2016 WL 1178579
    , at *4 (Ohio Ct. App. Mar. 24, 2016) (holding
    that under Ohio law, a decedent cannot bind his or her beneficiaries to
    arbitrate their wrongful-death claims); Boler v. Sec. Health Care, L.L.C.,
    336 P.3d 468
    , 477 (Okla. 2014) (“We agree with the courts that have held
    that a decedent cannot bind the beneficiaries to arbitrate their wrongful
    death claim.   Oklahoma’s Wrongful Death Act created a new cause of
    action for pecuniary losses suffered by the deceased’s spouse and next of
    kin by reason of his or her death. Recovery under the wrongful death act
    does not go to the estate of the deceased, but inures to the exclusive
    benefit of the surviving spouse and children or next of kin.”); Woodall v.
    Avalon Care Ctr.–Fed. Way, LLC, 
    231 P.3d 1252
    , 1258–61 (Wash. Ct.
    App. 2010) (holding that a wrongful-death action was not subject to the
    decedent’s arbitration agreement because the personal representative of
    the estate is merely a statutory agent or trustee acting in favor of the
    beneficiaries, with no benefits flowing to the estate of the injured
          The question we are asked to answer is whether the loss-of-
    parental-consortium claim, which belongs to the children but is
    ordinarily brought by the estate, is subject to arbitration based upon the
    decedent’s agreement to arbitrate. Both the federal district court and the
    parties have focused on the possibility that certain language in Iowa
    Code section 613.15 means that consortium claims may only be brought
    in court. In particular, the statute refers to an “action for damages” and,
    later, to a recovery “in such sum as the jury deems proper.” Iowa Code
    § 613.15. The Roth children maintain that the phrase “in such sum as
    the jury deems proper” requires consortium proceedings to be tried
    before a jury.     The federal district court suggested, based on the
    combined use of the phrase “any action for damages” and the phrase “in
    such sum as the jury deems proper,” that section 613.15 might allow
    loss-of-parental-consortium claims to be asserted in jury or nonjury
    court proceedings, but not in arbitration.       On the other hand, Good
    Samaritan argues that the term “any action for damages” encompasses
    proceedings before any tribunal for the recovery of damages and that the
    reference to a “jury” is just shorthand for a finder of fact.
          At the outset, we are not persuaded by the Roth children’s
    argument that Iowa Code section 613.15 requires a jury trial of
    consortium claims without the possibility of a jury trial waiver.      The
    phrase, “in such sum as the jury deems proper,” does not say that such
    actions must proceed before a jury.         It can reasonably be read as
    describing how damages would be determined unless the right to jury
    has been properly waived, such as by failure to timely demand a jury.
    See Iowa R. Civ. P. 1.902(1).     This allows us to reconcile any conflict
    between section 613.15 and rule 1.902(1). See Iowa Code § 4.7 (stating
    that we construe general and special provisions if possible to avoid
    conflicts); Des Moines Flying Serv., Inc. v. Aerial Servs. Inc., 
    880 N.W.2d 212
    , 221 (Iowa 2016) (“Our job is to harmonize these statutes to give
    effect to each.”).
          Additionally, the presence of the words “any action for damages” at
    the beginning of section 613.15 to some extent undercuts the Roth
    children’s position that the phrase “in such sum as the jury deems
    proper” later in the statute establishes a nonwaivable right to a jury trial
    on parental consortium claims. Clearly, “any action for damages” must
    include a nonjury proceeding. So, if the Roth children were right, section
    613.15 would allow wrongful-death claims to be heard by the court but
    require consortium claims brought by the same administrator in the
    same case to be heard by a jury. That would be incongruous. See Iowa
    Code § 4.4(3) (“In enacting a statute, it is presumed that . . . [a] just and
    reasonable result is intended.”).
          Also noteworthy are the circumstances surrounding the enactment
    of Iowa Code section 613.15’s predecessor in 1911. See 1911 Iowa Acts
    ch. 163, § 1 (providing that when a woman is injured by a negligent or
    wrongful act resulting in death, “her administrator may sue and recover
    for her estate, the value of her services as a wife or mother or both in
    such sum as the jury may deem proportionate to the injury resulting in
    her death.”). At that time, a separate Iowa statute authorized jury trial
    waivers, just as rule 1.902(1) does today. See Iowa Code § 3733 (1897).
    One could logically conclude that when the general assembly adopted
    1911 Iowa Acts chapter 163, it well understood that the right to have a
    jury could be waived in accordance with preexisting law.
          This would not be the only instance where the Iowa Code literally
    refers to a jury determination but, in context, the reference means a
    determination by the factfinder. For example, Iowa Code section 622.25
    allows handwriting evidence to be given “by comparison by the jury, with
    writings of the same person which are proved to be genuine.” Iowa Code
    § 622.25 (2015). A judge conducting a bench trial surely has the same
    authority to compare handwriting.        Similarly, chapter 646 regarding
    recovery of real property states that “[i]n case of wanton aggression on
    the part of the defendant, the jury may award exemplary damages.” Id.
    § 646.21. Presumably the court could award those damages even if the
    trial were not to a jury. And Iowa Code section 659.6 provides that in
    defamation cases, “an unproved allegation of the truth of the matter
    charged shall not be deemed proof of malice, unless the jury on the
    whole case finds that such defense was made with malicious intent.” Id.
    § 659.6.   Again, we think this directive would apply even if the
    defamation case were tried to the court.
          If Iowa Code section 613.15 established a nonwaivable right to a
    jury trial on consortium claims, so far as we know it would be the only
    area of Iowa law where a jury could not be waived. In Peoples Natural
    Gas Co., Division of UtiliCorp United Inc. v. City of Hartley, we held that
    the jury could be waived in condemnation cases, notwithstanding
    language in Iowa’s constitution providing that “damages shall be
    assessed by a jury” in such cases. 
    497 N.W.2d 874
    , 876 & n.2 (Iowa
    1993) (quoting Iowa Const. art. I, § 18). For the foregoing reasons, we
    reject the Roth children’s position that section 613.15 consortium claims
    can only be decided by juries.
          However, to this point we have only determined that a jury trial
    may be waived in favor of a bench trial in a consortium action under
    section 613.15.     This leaves open the larger question whether a
    consortium action must be arbitrated if the decedent (or as here his
    attorney in fact) entered into a binding arbitration agreement. We are
    not convinced that the phrase “any action for damages” in Iowa Code
    section 613.15, read in context, establishes only a right to proceed in
    court and not by way of arbitration. For one thing, the word “any” is
    broad. See Dolphin Residential Coop., Inc. v. Iowa City Bd. of Review, 
    863 N.W.2d 644
    , 660 (Iowa 2015) (Zager, J., dissenting) (noting the breadth
    of the term “any”). Arbitration, of course, is another way to waive a jury.
    See Iowa Code § 679A.1(1).
          Moreover, we are guided by the principle that we construe statutes
    to avoid constitutional infirmities.    See Iowa Dep’t of Human Servs. v.
    Cmty. Care, Inc., 
    861 N.W.2d 868
    , 869 (Iowa 2015) (referring to “the
    principle that we avoid interpreting ambiguous statutes in a manner that
    leads to constitutional difficulties”); Simmons v. State Pub. Def., 
    791 N.W.2d 69
    , 73–74, 88 (Iowa 2010) (“Ordinarily, we construe statutes to
    avoid potential constitutional infirmity if we may reasonably do so.”); see
    also Iowa Code § 4.4(1) (setting forth a presumption that in enacting a
    statute, compliance with the Iowa and United States Constitutions is
          If Iowa Code section 613.15 were interpreted as requiring judicial
    resolution—as opposed to arbitration—of a particular category of claims,
    this would raise serious questions as to its validity under the Supremacy
    Clause of the United States Constitution. See U.S. Const. art. VI. The
    United States Supreme Court has indicated on several occasions that the
    Federal Arbitration Act (FAA) preempts state laws that purport to forbid
    arbitration of certain state-law claims. “When parties agree to arbitrate
    all questions arising under a contract, the FAA supersedes state laws
    lodging primary jurisdiction in another forum, whether judicial or
    administrative.” Preston v. Ferrer, 
    552 U.S. 346
    , 359, 
    128 S. Ct. 978
    169 L. Ed. 2d 917
    , 929 (2008). “When state law prohibits outright
    the   arbitration      of     a   particular    type    of   claim,   the   analysis   is
    straightforward: The conflicting rule is displaced by the FAA.”                     AT&T
    Mobility LLC v. Concepcion, 
    563 U.S. 333
    , 341, 
    131 S. Ct. 1740
    , 1747,
    179 L. Ed. 2d 742
    , 752 (2011). 2
           Because of its subject matter, Marmet Health Care Center, Inc. v.
    565 U.S.
    132 S. Ct. 1201
    182 L. Ed. 2d 42
     (2012) (per
    curiam) is pertinent in this regard.                There the United States Supreme
    Court considered three consolidated negligence cases filed against West
    Virginia nursing homes. In each case, a family member of the resident
    had sued the nursing home in state court following the resident’s death,
    even though a clause in the nursing home admission agreement required
           2The   FAA provides,
                  A written provision in any maritime transaction or a contract
           evidencing a transaction involving commerce to settle by arbitration a
           controversy thereafter arising out of such contract or transaction, or the
           refusal to perform the whole or any part thereof, or an agreement in
           writing to submit to arbitration an existing controversy arising out of
           such a contract, transaction, or refusal, shall be valid, irrevocable, and
           enforceable, save upon such grounds as exist at law or in equity for the
           revocation of any contract.
    9 U.S.C. § 2 (2012).
           [M]any—if not all—federal and state courts have held that nursing home
           residency contracts similar to the one at issue here implicate interstate
           commerce and the FAA. Generally, these holdings center on a common
           theme: nursing home residency contracts usually entail providing
           residents with meals and medical supplies that are inevitably shipped
           across state lines from out-of-state vendors.
    Dean v. Heritage Healthcare of Ridgeway, LLC, 
    759 S.E.2d 727
    , 732 (S.C. 2014).
                  Given that the arbitration agreement at issue indisputably
           involves commerce and that Arbor Brook is subject to federal regulation
           and control, we conclude that the FAA applies to the arbitration
           agreement Plaintiff signed as a mandatory condition of nursing home
    Strausberg v. Laurel Healthcare Providers, LLC, 
    304 P.3d 409
    , 417 (N.M. 2013). In the
    present case, it is undisputed that Good Samaritan procures medical equipment and
    supplies from a number of out-of-state sources and receives approximately half its
    income from the Medicare and Medicaid programs.
    arbitration of disputes. Id. at ___, 132 S. Ct. at 1202–03, 182 L. Ed. 2d
    at 44. The Supreme Court of Appeals of West Virginia declined to enforce
    the arbitration clauses, holding that
          as a matter of public policy under West Virginia law, an
          arbitration clause in a nursing home admission agreement
          adopted prior to an occurrence of negligence that results in a
          personal injury or wrongful death, shall not be enforced to
          compel arbitration of a dispute concerning the negligence.
    Id. at ___, 132 S. Ct. at 1203, 182 L. Ed. 2d at 45 (quoting Brown ex rel.
    Brown v. Genesis Healthcare Corp., 
    724 S.E.2d 250
    , 292 (W. Va. 2011)).
          The United States Supreme Court granted the nursing home’s
    petition for certiorari and vacated the state supreme court’s decision in a
    per curiam opinion. Id. at ___, 132 S. Ct. at 1204, 182 L. Ed. 2d at 46.
    Specifically, it held that
          West Virginia’s prohibition against predispute agreements to
          arbitrate personal-injury or wrongful-death claims against
          nursing homes is a categorical rule prohibiting arbitration of
          a particular type of claim, and that rule is contrary to the
          terms and coverage of the FAA.
    Id. at ___, 132 S. Ct. at 1203–04, 182 L. Ed. 2d at 45 (citing inter alia
    Concepcion and Preston); see also Mastrobuono v. Shearson Lehman
    Hutton, Inc., 
    514 U.S. 52
    , 56, 
    115 S. Ct. 1212
    , 1215–16, 
    131 L. Ed. 2d 76
    , 83–84 (1995) (FAA preempts state law requiring judicial resolution of
    punitive damage claims); Southland Corp. v. Keating, 
    465 U.S. 1
    , 10, 
    104 S. Ct. 852
    , 858, 
    79 L. Ed. 2d 1
    , 12 (1984) (FAA preempts state statute’s
    bar on arbitration of claims brought under that statute).
          Marmet Health heightens our doubts as to the constitutionality of a
    construction of Iowa Code section 613.15 that would require all
    consortium claims to be resolved in a judicial forum. Such an outcome
    would result in “a categorical rule prohibiting arbitration of a particular
    type of claim,” and would appear to trigger FAA preemption. See Weaver
    v. Doe, 
    371 P.3d 1170
    , 1177 (Okla. Civ. App. 2016) (applying Marmet
    Health and ordering arbitration of a personal injury claim against a
    nursing home notwithstanding a provision of the Oklahoma Nursing
    Home Care Act that rejected arbitration of such claims); Fredericksburg
    Care Co., L.P. v. Perez, 
    461 S.W.3d 513
    , 528 (Tex. 2015) (ordering
    arbitration of a wrongful-death claim against a nursing home after
    finding that a Texas statute limiting arbitration of claims against health
    care providers was preempted by the FAA).
          Nonetheless, we do not find the Roth children’s consortium claims
    subject to arbitration under the facts certified to us. These claims belong
    to the adult children, and they never personally agreed to arbitrate. See
    Order Certifying Questions at 6 (“The Roth children are correct that none
    of them signed the arbitration agreement in their individual capacities or
    otherwise agreed to arbitration of their individual claims.”). While loss-
    of-consortium claims under Iowa Code section 613.15 could be subject to
    arbitration, a decedent’s arbitration agreement alone is an insufficient
    basis for this outcome.
          We reach this conclusion for several reasons.        First, it bears
    emphasis that the child owns the cause of action and the personal
    representative is “merely the conduit, the nominal plaintiff,” when
    bringing the child’s consortium claim under Iowa Code section 613.15.
    See Beeck, 359 N.W.2d at 487; see also Christy, 692 N.W.2d at 706. The
    purpose for this arrangement is simply “to reduce a multiplicity of suits
    and the possibility of double recovery.” Beeck, 359 N.W.2d at 487; see
    also Christy, 692 N.W.2d at 705–06.          Hence, as noted, we have
    previously held that the child’s statute of limitations, not the personal
    representative’s, applies to consortium claims. Christy, 692 N.W.2d at
    706. We have also accepted that this rule “may result in a child’s claim
    being prosecuted independently.” Id. As we have noted in a different
    setting, “[T]he substantive rights of a plaintiff can be at stake through the
    application of a statute of limitations.”   Rucker v. Taylor, 
    828 N.W.2d 595
    , 603 (Iowa 2013). Accordingly, we do not allow the identity of the
    nominal plaintiff to define substantive rights when it comes to the statute
    of limitations for consortium claims.
            The FAA too has been viewed as substantive law. It “rests on the
    authority of Congress to enact substantive rules under the Commerce
    Clause.” Southland Corp., 465 U.S. at 11, 104 S. Ct. at 858, 79 L. Ed. 2d
    at 12. It is “a body of federal substantive law.” Moses H. Cone Mem’l
    Hosp. v. Mercury Constr. Corp., 
    460 U.S. 1
    , 24, 
    103 S. Ct. 927
    , 941, 
    74 L. Ed. 2d 765
    , 785 (1983). Given the FAA’s status as substantive law, it
    seems quite wrong that an adult child could be bound to that body of law
    absent his or her agreement, simply because the adult child’s claim is
    routed procedurally through a different party.          This, in our view,
    confuses substance with procedure.        See Mission Residential, LLC v.
    Triple Net Props., LLC, 
    654 S.E.2d 888
    , 891 (Va. 2008) (finding that a
    claim filed by a member of a limited liability company on behalf of the
    LLC was not subject to the member’s arbitration agreement because the
    member was only a “nominal plaintiff” bringing suit on behalf of the
            Second, even if we held that consortium claims brought by a
    personal representative were subject to the decedent’s arbitration
    agreement, the children would have an easy way to avoid arbitration.
    Under Nelson, if “the statutory plaintiff has already commenced an action
    omitting the claims of a child,” the child may bring the consortium claim
    directly. 368 N.W.2d at 146. So, in the future, lawyers could sidestep
    arbitration simply by the expedient of filing a wrongful-death claim
    without including any consortium claim, then later filing a consortium
    action in court naming the children as plaintiffs.       Normally, we don’t
    interpret our law as endorsing rules that can be easily circumvented.
           Third, in jurisdictions where the wrongful-death claim belongs to
    the survivors but is brought by the personal representative, courts
    regularly hold that the decedent’s arbitration agreement does not lead to
    arbitration of the wrongful-death case. Here, the situation is somewhat
    analogous: Under Iowa law, one party owns the claim, but a different
    party gets to file it.
           For example, Ohio courts hold that a personal representative is not
    bound to arbitrate a wrongful-death claim despite a decedent’s
    arbitration agreement because “[a] decedent cannot bind his or her
    beneficiaries to arbitrate their wrongful-death claims.”         Wolcott, 61
    N.E.3d at 856, 
    2016 WL 1178579
    , at *2 (alteration in original) (quoting
    Peters v. Columbus Steel Castings Co., 
    873 N.E.2d 1258
    , 1259 (Ohio
    2007)). In Ohio, the personal representative is just the “nominal party”
    bringing the claim. Id. (quoting Peters, 873 N.E.2d at 1259). So too in
    Kentucky. See Ping, 376 S.W.3d at 598, 599 (noting that in Kentucky,
    the wrongful-death cause of action is “prosecuted by the personal
    representative”     but   “accrues   separately   to   the   wrongful   death
    beneficiaries and is meant to compensate them for their own pecuniary
    loss”). Likewise in Oklahoma. See Boler, 336 P.3d at 476 (noting that a
    wrongful-death action is “maintained by the personal representative of
    the deceased person” but “[t]he amounts recovered are distributed to
    those designated [survivors] as specified in the statute”).     Similarly, in
    Washington, although the personal representative is “the exclusive
    statutory agent to bring the wrongful death claims on behalf of the
    heirs,” no benefits flow to the estate and the decedent’s arbitration
    agreement therefore has no effect. Woodall, 231 P.3d at 1258–59; see
    also Estate of Decamacho, 316 P.3d at 614 (finding not arbitrable “the
    wrongful death claim[] brought by [the personal representative] on behalf
    of herself, Ramiro Camacho, and Candelario Camacho”); Norton, 783
    S.E.2d at 440–41; Carter, 976 N.E.2d at 355–56; FutureCare NorthPoint,
    143 A.3d at 212–13. We think the same principle applies here, and the
    nominal plaintiff status of the administrator or executor is not enough to
    compel arbitration of claims owned by the adult children and not by the
          As the certifying federal district court observed, we have in the past
    characterized the loss of consortium cause of action as “derived” and not
    “independent.” Roquet by Roquet, 436 N.W.2d at 47. But it is important
    to note the context in which these terms were used. We meant that the
    consortium cause of action is derived from a statute, not that it is
    derivative of the decedent’s rights and therefore subject to the decedent’s
    litigation-related agreements. See id. (stating that “this cause of action
    was derived from Iowa Code section 613.15”). For all these reasons, we
    determine that under Iowa law, adult children’s loss-of-consortium
    claims are not arbitrable just because the wrongful-death action is
    otherwise arbitrable.
          B. Second Certified Question: Does the Fact That a Deceased
    Parent’s Estate’s Claims Are Subject to Arbitration Establish That It
    Is Impossible, Impracticable, or Not in the Best Interest of the
    Decedent’s Adult Children for the Decedent’s Estate to Maintain
    Their Claims for Loss of Parental Consortium? In light of our answer
    to the previous question, this question has become moot.
          IV. Conclusion.
          We have answered the certified questions as set forth above for the
    reasons stated and return this case to the United States District Court
    for the Northern District of Iowa for further proceedings consistent with
    this opinion.