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 , 886 N.W.2d 601 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 15–2095
Filed October 21, 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,
Plaintiffs,
vs.
THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY d/b/a
GOOD SAMARITAN SOCIETY - GEORGE,
Defendant.
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
home. CERTIFIED QUESTIONS ANSWERED.
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.
2
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
follows:
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
attorney.
Part of the admission documentation was a separate two-page
document entitled “RESOLUTION OF LEGAL DISPUTES.” This item
3
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
4
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.
483).
5
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
id.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
6
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
same.
Iowa Code § 613.15.
7
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
distinction:
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”
8
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
spouse.”).
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
9
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.10
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
survived.”
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
11
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
survived.”).
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)
12
(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
13
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
deceased).
14
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
15
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
16
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
17
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
intended).
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,
987, 169 L. Ed. 2d 917, 929 (2008). “When state law prohibits outright
18
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.
Brown, 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
admission.
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.
19
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
20
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
21
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
LLC).
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
22
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, ___
N.E.3d at __, 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
23
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
estate.
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.
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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.
CERTIFIED QUESTIONS ANSWERED.