[Cite as Vickers v. Canal Pointe Nursing Home & Rehab Ctr., 2016-Ohio-3244.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

MARCUS VICKERS, et al.                                   C.A. No.         27757

        Appellant

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
CANAL POINTE NURSING HOME AND                            COURT OF COMMON PLEAS
REHAB CTR., et al.                                       COUNTY OF SUMMIT, OHIO
                                                         CASE No.   CV-2014-07-3466
        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: June 1, 2016



        CARR, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Marcus Vickers, Administrator of the Estate of Jack Johnson,

appeals from the judgment of the Summit County Court of Common Pleas. This Court reverses

and remands for further proceedings.

                                                    I.

        {¶2}    Mr. Johnson was a resident of Defendant-Appellee, Canal Pointe Nursing Home

and Rehab Center (“Canal Pointe”), from January 12, 2013, to June 22, 2013. His son, Mr.

Vickers, arranged for his care at the facility after Mr. Johnson suffered a debilitating stroke. As

part of Mr. Johnson’s admission paperwork, Mr. Vickers signed an arbitration agreement on his

behalf. On June 22, 2013, Mr. Johnson passed away while under the care of Canal Pointe.

        {¶3}    Subsequently, Mr. Vickers brought a medical malpractice suit against Canal

Pointe, alleging that its negligence led to his father’s death. He advanced several claims,

including a survivorship claim on behalf of his father and a wrongful death claim on behalf of his
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father’s estate and next of kin. Canal Pointe answered the complaint, but, shortly thereafter, filed

a motion to stay the proceedings and compel arbitration. It was Canal Pointe’s position that the

arbitration agreement Mr. Vickers executed on behalf of his father applied to all of the claims

that he advanced in his complaint.

       {¶4}    Mr. Vickers responded in opposition to Canal Pointe’s motion to compel

arbitration. He argued that, even if his survivorship claims were subject to arbitration, Ohio

Supreme Court precedent provided that his wrongful death claims were not. In reply, Canal

Pointe asserted that the Federal Arbitration Act preempted the case law upon which Mr. Vickers

had relied.

       {¶5}    The trial court issued a ruling based upon the parties’ respective filings. The

court agreed that the Federal Arbitration Act preempted the case law upon which Mr. Vickers

relied. Consequently, it granted Canal Pointe’s motion to stay the proceedings and compel

arbitration as to all of Mr. Vickers’ claims.

       {¶6}    Mr. Vickers now appeals from the trial court’s judgment and raises one

assignment of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR

       WHETHER THE TRIAL COURT ERRED WHEN IT HELD THAT THE
       DEFENDANT-APPELLEE’S     ARBITRATION AGREEMENT      IS
       ENFORCEABLE AGAINST THE WRONGFUL DEATH CLAIMS OF JACK
       JOHNSON’S NEXT-OF-KIN[.]

       {¶7}    In his sole assignment of error, Mr. Vickers argues that the trial court erred when

it granted Canal Pointe’s motion to stay and compel arbitration with respect to the wrongful

death claim that he brought on behalf of his father’s next-of-kin. We agree.
                                                 3


       {¶8}    “The question of whether an arbitration provision is applicable presents a matter

of contract interpretation.” Varga v. Drees Co., 9th Dist. Lorain No. 13CA010385, 2014-Ohio-

643, ¶ 6. Thus, “[t]he arbitrability of a claim is a question of law, and we review the arbitrability

of a claim de novo.” Murray v. David Moore Builders, Inc., 177 Ohio App.3d 62, 2008-Ohio-

2960, ¶ 7 (9th Dist.), quoting McManus v. Eicher, 2d Dist. Greene No. 2003-CA-30, 2003-Ohio-

6669, ¶ 11. “[W]hen deciding motions to compel arbitration, the proper focus is whether the

parties actually agreed to arbitrate the issue, i.e., the scope of the arbitration clause, not the

general policies of the arbitration statutes.” Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d

411, 2011-Ohio-5262, ¶ 20.

       {¶9}    There is no dispute that Mr. Vickers signed an arbitration agreement on behalf of

his father when he arranged for his care at Canal Pointe. The arbitration agreement provides, in

relevant part, that it sets forth “a resolution procedure by which the Resident and [Canal Pointe]

intend to resolve all disputes which may arise between them concerning any disagreement

arising out of the Nursing Facility Admission Agreement.” It describes the disputes subject to

the terms of the agreement as

       [a]ny controversy, dispute, disagreement or claim of any kind arising out of, or
       related to the Nursing Facility Agreement * * *. These disputes include, but are
       not limited to, all claims based upon breach of contract (other than claims arising
       out of nonpayment of charges), negligence, medical malpractice, tort, breach of
       statutory duty, resident’s rights, and any departures from accepted standards of
       care.

Because Mr. Vickers’ wrongful death claim sounded in negligence, tort, and medical

malpractice, Canal Pointe argued that it fell within the scope of the arbitration agreement.

       {¶10} In Peters v. Columbus Steel Castings Co., the Ohio Supreme Court considered

“whether the personal representative of a decedent’s estate is required to arbitrate a wrongful-

death claim when the decedent had agreed to arbitrate all claims against the alleged tortfeasor.”
                                                 4


Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, at ¶ 1. The facts

were such that, a few days before his death, Mr. Peters signed an employment arbitration

agreement that purported to bind all of his heirs and beneficiaries. Id. at ¶ 2-3. When his

beneficiaries later sought to bring a wrongful death action against his employer, the employer

invoked the arbitration agreement. Id. at ¶ 4. The Supreme Court determined, however, that

“survival claims and wrongful-death claims are distinct claims that belong to separate

individuals, even though they are generally brought by the same nominal party (the personal

representative of the estate).” Id. at ¶ 17. Because Mr. Peters had no right to the claims of his

beneficiaries, the Supreme Court found that the arbitration agreement he signed did not prevent

his beneficiaries from later pursuing a wrongful death action in court. Id. at ¶ 19. Specifically, it

held that “a decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death

claims.” Id. Absent beneficiaries independently agreeing to arbitrate their claims, the Supreme

Court held, “they cannot be forced into arbitration.” Id.

       {¶11} In opposing Canal Pointe’s motion to stay and compel arbitration, Mr. Vickers

relied upon Peters. Canal Pointe, meanwhile, acknowledged Peters, but argued that it was no

longer good law. Canal Pointe relied upon Marmet Health Care Ctr., Inc. v. Brown, 565 U.S.

___, 132 S.Ct. 1201 (2012), in which the United States Supreme Court discussed the preemptive

effect of the Federal Arbitration Act.

       {¶12} In Marmet Health Care Ctr., Inc., the United States Supreme Court held that

states may not create categorical bans “against predispute agreements to arbitrate personal-injury

or wrongful-death claims against nursing homes * * *.” Marmet Health Care Ctr., Inc. at 1204.

There, family members in three consolidated cases signed admission agreements with nursing

homes on behalf of their relatives, who were unable to do so at the time of their admissions. All
                                                5


three agreements contained arbitration clauses that the nursing homes later sought to invoke.

The Supreme Court of Appeals of West Virginia determined that the arbitration clauses were

unenforceable as a matter of public policy. See Brown ex rel. Brown v. Genesis Healthcare

Corp., 228 W.Va. 646 (2011). In essence, the West Virginia Court carved out an exception for

arbitration agreements that arise in the context of nursing home admissions due to the inherently

complicated and stressful circumstances that typically exist in those circumstances. The United

States Supreme Court held, however, that “‘[w]hen state law prohibits outright the arbitration of

a particular type of claim, * * * [t]he conflicting rule is displaced by the [Federal Arbitration

Act].’” Marmet Health Care Ctr., Inc. at 1203, quoting AT & T Mobility LLC v. Concepcion,

563 U.S. 333, 131 S.Ct. 1740, 1747 (2011).          Because the West Virginia Court’s holding

amounted to a categorical ban on the arbitration of certain claims against nursing homes, the

United States Supreme Court reversed the West Virginia Court’s judgment. See Marmet Health

Care Ctr., Inc. at 1203-1204.

       {¶13} Upon review, we do not agree that the Ohio Supreme Court in Peters created the

same type of categorical ban against arbitration that the United States Supreme Court struck

down in Marmet Health Care Ctr., Inc. Peters was not a public policy decision. Rather, the

Peters Court issued its decision on the basis of an accepted contractual principle: “that only

signatories to an arbitration agreement are bound by its terms.” McFarren v. Emeritus at

Canton, 5th Dist. Stark No. 2013CA00040, 2013-Ohio-3900, ¶ 29, citing Peters, 115 Ohio St.3d

134, 2007-Ohio-4787.      The Federal Arbitration Act specifically provides that arbitration

provisions are valid and enforceable, “save upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. 2. “‘[A]rbitration is a matter of contract and a party cannot

be required to submit to arbitration any dispute which he has not agreed so to submit.’” Council
                                                  6


of Smaller Ent. v. Gates, McDonald & Co., 80 Ohio St.3d 661, 665 (1998), quoting AT & T

Tech., 475 U.S. 643, 648 (1986). Accordingly, “[t]he holding in Peters requiring a real party in

interest to sign an arbitration agreement for [it] to be enforceable is not in conflict with the [Act]

* * *.” McFarren at ¶ 29.

       {¶14} As previously set forth, wrongful death claims arise separately from survivorship

claims and “belong to separate individuals, even though they are generally brought by the same

nominal party (the personal representative of the estate).” Peters at ¶ 17. Mr. Vickers signed an

admission agreement and arbitration agreement with Canal Pointe as his father’s representative.

Canal Pointe never argued that he signed the agreement in an individual capacity such that it

might be enforceable against him. See McFarren at ¶ 30. Absent Mr. Vickers or his father’s

other beneficiaries signing the arbitration agreement in an individual capacity, “they cannot be

forced into arbitration.” Peters at ¶ 19. As such, the trial court erred when it granted Canal

Pointe’s motion to stay and compel arbitration as to the wrongful death claim that Mr. Vickers

brought on behalf of his father’s beneficiaries. See McFarren at ¶ 29-31. Mr. Vickers’ sole

assignment of error is sustained.

                                                 III.

       {¶15} Mr. Vickers’ assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

MARTIN S. DELAHUNTY, III, Attorney at Law, for Appellant.

SUSAN M. AUDEY, ERNEST W. AUCIELLO, and SARAH A. STOVER, Attorneys at Law,
for Appellee.
