Signing an Alternative Dispute Resolution (ADR) agreement in Pennsylvania does not preclude one’s family members from filing a wrongful death complaint in court on the merits of their own injury.
That is the impact of the Pennsylvania Supreme Court’s recent refusal to hear an appeal from the state Superior Court of a ruling that gives a state statute precedence over the scope of even the most broadly worded ADR agreement.
The ruling in Pisano v. Extendicare Homes, Inc. (77 A. 3d 651 – Pa: Superior Court 2013), affords the members of a deceased person’s family the right to file a wrongful death action in civil court, even if the deceased person executed an ADR agreement that waived their right to a jury trial in matters related to wrongful death claims.
When Jamie Pisano placed her elderly father, Vincent, in a long-term care facility in 2010, she used his power of attorney to sign an ADR agreement furnished by the care provider, Extendicare Care Homes. The agreement required any legal claims against Extendicare to be resolved through binding arbitration rather than a jury trial.
Vincent Pisano died early in 2011. Michael Pisano, Vincent’s son and the administrator of his estate, filed a wrongful death suit against Extendicare in the Westmoreland County (Pa.) Court of Common Pleas at the beginning of 2012. Extendicare filed an objection to the jurisdiction of the court, citing the existence of the ADR agreement. Extendicare argued that the ADR agreement governed any claims stemming from Vincent Pisano’s stay at their facility, including wrongful death claims.
Judge Richard E. McCormick overruled Extendicare’s objection, finding that Michael Pisano, as Vincent Pisano’s son, was entitled under the statute to file a wrongful death claim. Such a claim is an independent action, the court said, distinct from any actions that might have derived from the jury trial rights that Vincent Pisano waived when the ADR was executed in his name.
Though the language of the ADR agreement specified that “any and all disputes arising out of or in any way relating to [the agreement] or to [Vincent Pisano’s] stay at [Extendicare’s facility, including] . . . death or wrongful death” would be subject to arbitration, Michael Pisano was not a party to the ADR agreement, McCormick wrote, and thus not bound to settle his dispute with Extendicare through arbitration.
In appealing the case to the Pennsylvania Superior Court, Extendicare argued that the trial court had erred in finding Michael Pisano’s right of action did not derive from his father’s rights at the time of his death. The Superior Court disagreed, upholding the lower court’s ruling. Judge Jacqueline Shogan wrote in her opinion that Extendicare’s argument was based heavily on 19th-century precedents that had been superseded by a 1911 revision of Pennsylvania’s wrongful death statute. Since then, Shogan wrote, “Pennsylvania courts have consistently interpreted [the law] to mean that two separate and distinct causes of action arise from a single injury.” The first, a survival action, would have derived its rights from Vincent Pisano’s. The wrongful death statute, however, afforded any of Vincent Pisano’s children statutory standing to make a claim independent of whatever rights they may have held through their father’s estate.
In an amicus curiae brief it filed with the Superior Court in support of Extendicare, the Pennsylvania Defense Institute, which described itself to the court as “a state-wide association of defense counsel and insurance company executives,” warned that allowing Michael Pisano’s wrongful death claim to stand outside the ADR agreement would “substantially increase costs associated with resolving claims against health care providers, including nursing homes, as well as against all other parties, will multiply proceedings, and burden the courts of the Commonwealth.”
Extendicare appealed to the Pennsylvania Supreme Court, but the court in late February declined to hear the case.