                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


              THE ESTATE OF JOSEFA U. DECAMACHO,
           BY AND THROUGH PERSONAL REPRESENTATIVE
            ESTELA GUTHRIE, BOTH INDIVIDUALLY AND
           ON BEHALF OF ALL STATUTORY BENEFICIARIES,
                      Plaintiffs/Appellants,

                                 v.

     LA SOLANA CARE AND REHAB, INC., A UTAH CORPORATION;
         INFINIA AT DOUGLAS, INC., A UTAH CORPORATION,
                      Defendants/Appellees.

                      No. 2 CA-CV 2013-0086
                      Filed January 14, 2014

        Appeal from the Superior Court in Cochise County
                       No. CV2012000320
            The Honorable John F. Kelliher Jr., Judge

           AFFIRMED IN PART; REVERSED IN PART


                            COUNSEL

Knapp & Roberts, P.C., Scottsdale
By David L. Abney
Counsel for Plaintiffs/Appellants

Campbell, Yost, Clare & Norell, P.C., Phoenix
By Stephen C. Yost and Jeffrey McLerran
Counsel for Defendants/Appellees
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court


                              OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Howard and Judge Miller concurred.


V Á S Q U E Z, Presiding Judge:

¶1           Estela Guthrie, as personal representative of the Estate
of Josefa DeCamacho and on behalf of DeCamacho’s statutory
beneficiaries, appeals from the trial court’s order compelling
arbitration of her claims against La Solana Care and Rehab, Inc. and
Infinia at Douglas, Inc. (“La Solana”). On appeal, Guthrie argues the
signed contract containing an arbitration clause, upon which the
court’s order was based, is neither valid nor enforceable. She also
contends the contract’s arbitration clause does not apply to the
statutory beneficiaries’ claims brought under Arizona’s Wrongful
Death Act or to the estate’s claims brought under the Adult
Protective Services Act (“APSA”). For the reasons set forth below,
we reverse the court’s order compelling arbitration of the wrongful
death claims but otherwise affirm.

                   Factual and Procedural Background1

¶2          In 2007, Josefa DeCamacho was suffering from multiple
cognitive and physical ailments, including “dementia, confusion,


      1We    view the facts in the light most favorable to upholding
the trial court’s ruling. See Ruesga v. Kindred Nursing Ctrs., L.L.C.,
215 Ariz. 589, ¶ 26, 161 P.3d 1253, 1261 (App. 2007) (“In view of the
procedural mandate in [A.R.S.] § 12-1502(A) and the absence of any
request for an evidentiary hearing, the trial court was authorized to
make ‘[i]ncidental findings of fact,’ to which we ‘accord[] the usual
[deference] given to such findings of fact in appellate review.’”),
quoting Maxwell v. Fid. Fin. Servs., Inc., 184 Ariz. 82, 87, 907 P.2d 51,
56 (1995) (first and second alterations in Ruesga).


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             DeCAMACHO ESTATE v. LA SOLANA
                 CARE AND REHAB, INC.
                   Opinion of the Court

short-term memory impairment, varying memory function,
unsteady gait and balance problems.”        In early 2007, after
DeCamacho recovered from a serious fall, her daughter, Estela
Guthrie, decided to admit her into La Solana’s skilled-nursing and
short-term rehabilitative facility.

¶3          When Guthrie and DeCamacho first arrived at the La
Solana facility, employees presented Guthrie with a “Resident
Admission Agreement,” which contained an arbitration clause.
Although information for several of the blank spaces in the
agreement had not been filled in, Guthrie signed on DeCamacho’s
behalf, and DeCamacho was admitted to the facility for housing and
care.

¶4            La Solana continuously provided care for DeCamacho
at the facility from 2007 until July 23, 2010, when she was injured
after falling from her wheelchair outside the facility’s front door.
DeCamacho died six days later in a hospital. She was survived by
her children, Ramiro Camacho, Candelario Camacho, and Guthrie,
who was appointed as personal representative of DeCamacho’s
estate.

¶5           On May 18, 2012, Guthrie filed a lawsuit against La
Solana, asserting an APSA claim on behalf of the estate, as well as
wrongful death claims on behalf of DeCamacho’s children. La
Solana moved to dismiss the lawsuit and to compel arbitration
pursuant to the admission agreement. Guthrie responded that the
agreement was not a valid or enforceable contract and that the
arbitration clause did not apply in any event to the APSA and
wrongful death claims. 2 On January 22, 2013, the trial court
summarily ruled in favor of La Solana, staying the proceedings until
the parties completed arbitration.


      2 Guthrie also argued the contract violated the reasonable-
expectations doctrine and was unconscionable, but she does not
raise these issues on appeal. We therefore do not address them
further.


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              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

¶6          Guthrie requested special action review, but this court
declined jurisdiction because Guthrie had not followed “the
procedure outlined by our supreme court in Southern California
Edison Co. v. Peabody Western Coal Co., 194 Ariz. 47, ¶¶ 16-20, 977
P.2d 769, 774-75 (1999).” Estate of Josefa U. DeCamacho v. La Solana
Care & Rehab, No. 2 CA-SA 2013-0024 (order filed Apr. 11, 2013). At
Guthrie’s request, the trial court entered the necessary language to
make its ruling appealable pursuant to Rule 54(b), Ariz. R. Civ. P.
This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(1). See S. Cal. Edison Co., 194 Ariz. 47, ¶ 19, 977 P.2d at 775.

                              Discussion

¶7           Guthrie argues the trial court erred in compelling
arbitration because: (1) “[a]s a matter of basic contract law, the
admission agreement and its arbitration clause are invalid and
unenforceable,” and (2) “[t]he arbitration clause applies to no claims
in this case and does not bind the Estate of Josefa DeCamacho, its
personal representative, or any statutory beneficiary.”

¶8              “The trial court’s review on a motion to compel
arbitration is limited to the determination as to whether an
arbitration agreement exists.” Nat’l Bank of Ariz. v. Schwartz, 230
Ariz. 310, ¶ 4, 283 P.3d 41, 42 (App. 2012). “We must defer, absent
clear error, to the factual findings upon which the trial court’s
conclusions are based.” Harrington v. Pulte Home Corp., 211 Ariz.
241, ¶ 16, 119 P.3d 1044, 1049-50 (App. 2005). To the extent the
issues “require[] us to consider and interpret legal principles and
statutes, . . . our review is de novo.” Smith v. Pinnamaneni, 227 Ariz.
170, ¶ 7, 254 P.3d 409, 412 (App. 2011).

   I.    Validity of the Contract

¶9           Guthrie argues “[t]he admission agreement and its
arbitration clause are, under basic contract law, invalid and
unenforceable because they do not contain a valid contract’s
elements.” The validity and enforceability of a contract and
arbitration clause are mixed questions of fact and law, subject to de


                                    4
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

novo review. See Nickerson v. Green Valley Recreation, Inc., 228 Ariz.
309, ¶ 19, 265 P.3d 1108, 1117 (App. 2011) (contract); Schoneberger v.
Oelze, 208 Ariz. 591, ¶ 12, 96 P.3d 1078, 1081 (App. 2004) (arbitration
clause).

¶10          Section 12-1501, A.R.S., provides that “a provision in a
written contract to submit to arbitration any controversy thereafter
arising between the parties is valid, enforceable and irrevocable,
save upon such grounds as exist at law or in equity for the
revocation of any contract.” See also Schoneberger, 208 Ariz. 591, ¶ 17,
96 P.3d at 1082 (“Arbitration is a creature of contract law.”);
Broemmer v. Abortion Servs. of Phx., Ltd., 173 Ariz. 148, 150, 840 P.2d
1013, 1015 (1992) (enforceability of agreement to arbitrate
determined by contract law principles).            Accordingly, “the
fundamental prerequisite to arbitration is the existence of an actual
agreement or contract to arbitrate.” Schoneberger, 208 Ariz. 591, ¶ 17,
96 P.3d at 1082.

¶11          Quoting the Restatement (Second) of Contracts § 33(1)
(1981), Guthrie argues that the admission agreement lacks sufficient
specificity and therefore “cannot . . . form a contract.” In particular,
she maintains the agreement never went into effect because the
“specific clause” providing for the effective date of the agreement
had not been filled in.3 A valid contract is formed when there is an


      3In  the statement of facts section of her opening brief, Guthrie
also asserts, among other things, that the agreement “was undated[,]
. . . did not name the facility to which it supposedly applied[,] . . .
lacked any signature by anyone on behalf of the nursing home[, and]
. . . lacked the mandated statement explaining why the relevant
‘Resident’ (Josefa DeCamacho) was unable to sign the agreement.”
But Guthrie does not argue or support these assertions in her
opening brief’s argument section. Therefore, we typically would not
consider them as part of her argument. See Sholes v. Fernando, 228
Ariz. 455, n.1, 268 P.3d 1112, 1114 n.1 (App. 2011). Moreover, these
assertions do not, in any event, affect our analysis below in light of
DeCamacho and La Solana’s three-year performance under the

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              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

offer, an acceptance, consideration, Goodman v. Physical Res. Eng’g,
Inc., 229 Ariz. 25, ¶ 7, 270 P.3d 852, 855 (App. 2011), and sufficient
certainty of terms so that the obligations involved can be
determined, Schade v. Diethrich, 158 Ariz. 1, 9, 760 P.2d 1050, 1058
(1988). But “[t]he requirement of certainty is not so much a
contractual validator as a factor relevant to determining . . . whether
the parties manifested assent or intent to be bound.” Id. “Any
requirement of ‘reasonable certainty’ is satisfied if the agreement
that was made simply provides ‘a basis for determining the
existence of a breach and for giving an appropriate remedy.’” Id. at
10, 760 P.2d at 1059, quoting Restatement (Second) of Contracts
§ 33(2).

            The fact that one or more terms of a
            proposed bargain are left open or uncertain
            may show that a manifestation of intention
            is not intended to be understood as an offer
            or as an acceptance.

                   ....

            . . . But the actions of the parties may show
            conclusively that they have intended to
            conclude a binding agreement, even
            though one or more terms are missing or
            are left to be agreed upon. In such cases
            courts endeavor, if possible, to attach a
            sufficiently definite meaning to the bargain.

Schade, 158 Ariz. at 9, 760 P.2d at 1058, quoting Restatement § 33(3),
cmt. a (second omission and emphasis in Schade). And, “[t]he fact
that [both parties] . . . ha[ve] begun performance is nearly always
evidence that they regard the contract as consummated and intend
to be bound thereby.” Id. at 10, 760 P.2d at 1059 (internal quotation


contract’s terms. See Schade v. Diethrich, 158 Ariz. 1, 10, 760 P.2d
1050, 1059 (1988).


                                  6
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

omitted); see also Restatement § 22 cmt. b (“Offer and acceptance
become still less important after there have been repeated occasions
for performance . . . .”). Here, DeCamacho resided at the La Solana
facility for over three years. We therefore have little difficulty
concluding that DeCamacho and La Solana entered into a valid and
enforceable contract.

¶12           We also disagree with Guthrie’s related argument that
the arbitration clause is unenforceable because it “has no reasonable
certainty on the procedures and terms of the purported arbitration.”
If an arbitration agreement does not so provide, the court “shall
appoint one or more arbitrators,” A.R.S. § 12-1503, who “shall
appoint a time and place for the hearing,” A.R.S. § 12-1505(1), at
which “[t]he parties are entitled to be heard, to present evidence
material to the controversy and to cross-examine witnesses
appearing at the hearing,” A.R.S. § 12-1505(2). Thus, even when an
arbitration agreement does not specify the procedures and terms
relating to arbitration, the statutes clearly do.

¶13          Guthrie nevertheless contends that, as between La
Solana and the statutory beneficiaries and estate, there was no offer,
acceptance, consideration, specificity of terms, or mutual assent. She
therefore maintains “[t]he arbitration clause cannot bind the
Plaintiffs because they are third parties who never agreed to
arbitrate anything.” 4 We agree that, although Guthrie signed the
agreement on behalf of DeCamacho, she was not a party to the


      4 In her reply brief, Guthrie contradicts this statement by
claiming she “did not sign for her mother; [she] only signed as a
‘Responsible Party.’” Because Guthrie did not make this argument
in the trial court, we do not consider it on appeal. See Odom v.
Farmers Ins. Co. of Ariz., 216 Ariz. 530, ¶ 18, 169 P.3d 120, 125 (App.
2007); see also Sholes, 228 Ariz. 455, n.2, 268 P.3d at 1114 n.2
(disregarding portions of reply brief not rebutting answering brief).
Instead, we rely on Guthrie’s preliminary statement, in which she
asserts she was “[a]cting for her mother” when she signed the
admission agreement disputed in this case.


                                  7
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

contract. See Ferrarell v. Robinson, 11 Ariz. App. 473, 475, 465 P.2d
610, 612 (1970) (person “who signs an agreement as the agent of a
fully disclosed principal is not a party to that agreement”).
“Nonsignatories, however, can be required to arbitrate under certain
circumstances.” Smith, 227 Ariz. 170, ¶ 23, 254 P.3d at 416.
“Arbitration rests on an exchange of promises. Parties to a contract
may decide to exchange promises to substitute an arbitral for a
judicial forum. Their agreement to do so may end up binding (or
benefitting) nonsignatories.” Schoneberger, 208 Ariz. 591, ¶ 20, 96
P.3d at 1083. We therefore turn our attention to the arbitration
clause.

   II.   Scope of Arbitration Clause

¶14          Guthrie argues “[t]he arbitration clause does not apply
to any disputes or events that are relevant to the lawsuit.” The
interpretation of a contract is a question of law we review de novo.
Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, ¶ 9, 218 P.3d 1045,
1050 (App. 2009). The purpose of contract interpretation is to
determine and give effect to the parties’ intent. Taylor v. State Farm
Mut. Auto. Ins. Co., 175 Ariz. 148, 152, 854 P.2d 1134, 1138 (1993).
“‘Where the intent of the parties is expressed in clear and
unambiguous language, there is no need or room for construction or
interpretation and a court may not resort thereto.’” Grosvenor
Holdings, L.C., 222 Ariz. 588, ¶ 9, 218 P.3d at 1050, quoting Mining Inv.
Grp., LLC v. Roberts, 217 Ariz. 635, ¶ 16, 177 P.3d 1207, 1211 (App.
2008).

¶15          The rules of contract interpretation apply equally in the
context of arbitration clauses. “Although it is commonly said that
the law favors arbitration, it is more accurate to say that the law
favors arbitration of disputes that the parties have agreed to
arbitrate.” S. Cal. Edison Co., 194 Ariz. 47, ¶ 11, 977 P.2d at 773.

¶16          Here, the arbitration clause states as follows:

                 It is understood that any dispute as
             to medical malpractice, that is as to


                                   8
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

            whether any medical services rendered
            under this contract were unnecessary or
            unauthorized      or    were     improperly,
            negligently, or incompetently rendered,
            will be determined by submission to
            arbitration as provided by State law, and
            not by a lawsuit or court process except as
            State law provides for judicial review of
            arbitration proceedings. All parties to this
            contract, by entering into it, are giving up
            their constitutional right to have any such
            dispute decided in a court of law before a
            jury, and instead are accepting the use of
            arbitration.

                   The Resident and Facility further
            agree that any dispute arising between
            them from torts, contracts, or otherwise,
            including any claims for punitive damages
            and any actions brought on the behalf of
            the Resident by third parties, but excepting
            claims pertaining to the amount of the
            Facility’s charges, shall be submitted upon
            the request of either the Resident or the
            Facility to arbitration as provided by State
            law.

¶17           Because the language is clear and unambiguous, we
apply it as written. See United Cal. Bank v. Prudential Ins. Co., 140
Ariz. 238, 259, 681 P.2d 390, 411 (App. 1983); Mining Inv. Grp., LLC,
217 Ariz. 635, ¶ 16, 177 P.3d at 1211. Although the first sentence of
the clause broadly encompasses “any dispute as to medical
malpractice,” the second sentence limits the first by providing that
“[a]ll parties to this contract” agree to arbitrate “any such dispute.”
Put simply, the first paragraph only requires arbitration of medical
malpractice claims brought by or on behalf of DeCamacho against
La Solana.



                                  9
               DeCAMACHO ESTATE v. LA SOLANA
                   CARE AND REHAB, INC.
                     Opinion of the Court

¶18          The second paragraph of the arbitration clause similarly
provides that the “Resident and Facility further agree” to arbitrate
“any dispute arising between them from torts, contracts, or
otherwise, including any claims for punitive damages and any
actions brought on behalf of the Resident by third parties.” Like the
preceding paragraph, this language does not purport to bind the
rights of anyone other than DeCamacho and La Solana.

¶19           The second clause does make clear, however, that if a
third party asserts such claims in an action brought on DeCamacho’s
behalf, the claim still shall be determined by an arbitrator.
Therefore, to the extent the APSA and other claims originate from
the rights of DeCamacho, they are subject to arbitration, despite the
fact that a third party has initiated the lawsuit.

¶20            Guthrie further contends, however, that the APSA and
wrongful death claims are “separate and independent” from the
rights of DeCamacho and are not actions brought on her behalf.
This issue raises questions of statutory interpretation, which we
review de novo. Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶ 6, 19
P.3d 1241, 1244 (App. 2001). “[W]e must construe the statute so as to
fulfill legislative intent.” City of Tucson v. Clear Channel Outdoor, Inc.,
218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App. 2008). If the statute’s
language is clear and unambiguous, we will apply that language
“‘without using other means of construction.’” Id., quoting Hughes v.
Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823 (2002).

¶21           An APSA claim is “a statutory civil cause of action”
pursuant to A.R.S. § 46-455(B). Cornerstone Hosp. of Se. Ariz., L.L.C. v.
Marner, 231 Ariz. 67, ¶ 22, 290 P.3d 460, 467 (App. 2012). The statute
is designed to “protect[] vulnerable adults by imposing criminal
penalties on and providing for civil enforcement against those who
violate its terms.” Estate of Braden ex rel. Gabaldon v. State, 228 Ariz.
323, ¶ 6, 266 P.3d 349, 351 (2011). In relevant part, § 46-455(B)
provides:

                   A vulnerable adult whose life or
             health is being or has been endangered or


                                    10
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

             injured by neglect, abuse or exploitation
             may file an action in superior court against
             any person or enterprise that has been
             employed to provide care, that has
             assumed a legal duty to provide care or
             that has been appointed by a court to
             provide care to such vulnerable adult for
             having caused or permitted such conduct.

¶22           A cause of action under APSA “shall not be limited or
affected by the death of the vulnerable adult.” A.R.S. § 46-455(P).
The cause of action thus continues as an “estate asset.” In re Estate of
Winn, 214 Ariz. 149, ¶ 20, 150 P.3d 236, 240 (2007). But the
legislature only provided recovery for actual damages suffered by
the vulnerable adult and not, for example, the claims others may
have for loss of consortium or the “inherent value” of the life lost. In
re Estate of Winn, 225 Ariz. 275, ¶¶ 8-11, 13, 237 P.3d 628, 630-31
(App. 2010). Thus, the estate’s right to recovery under APSA is
protected only if “the incapacitated or vulnerable adult could have
brought the claim had he or she been alive.” In re Estate of
Wyttenbach, 219 Ariz. 120, ¶ 16, 193 P.3d 814, 818 (App. 2008). The
estate’s right is therefore derivative of DeCamacho’s right to pursue
such a claim.

¶23          In contrast, a wrongful death claim brought in Arizona
is not wholly derivative of a decedent’s rights. Huebner v. Deuchle,
109 Ariz. 549, 549-50, 514 P.2d 470, 470-71 (1973). Our wrongful
death statute, A.R.S. § 12-611, provides in pertinent part:

                    When death of a person is caused by
             wrongful act, neglect or default, and the
             act, neglect or default is such as would, if
             death had not ensued, have entitled the
             party injured to maintain an action to
             recover damages in respect thereof, then,
             and in every such case, the person who or
             the corporation which would have been
             liable if death had not ensued shall be liable


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              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

             to an action for damages, notwithstanding
             the death of the person injured . . . .

¶24          A wrongful death action must “be brought by and in
the name of the surviving husband or wife, child, parent or
guardian, or personal representative of the deceased person for and
on behalf of the surviving husband or wife, children or parents, or if
none of these survive, on behalf of the decedent’s estate.” A.R.S.
§ 12-612(A). The amount recovered is distributed to those same
parties “in proportion to their damages.” A.R.S. § 12-612(C). The
potential damages include the “‘loss of love, affection,
companionship, consortium, personal anguish and suffering.’”
Vasquez v. State, 220 Ariz. 304, ¶ 16, 206 P.3d 753, 759 (App. 2008),
quoting Mullen v. Posada del Sol Health Care Ctr., 169 Ariz. 399, 400,
819 P.2d 985, 986 (App. 1991). Section 12-611 thus “confers an
original and distinct claim for the damages sustained by named
statutory beneficiaries[; i]t is not derived from nor is it a
continuation of claims which formerly existed in a decedent.”
Huebner, 109 Ariz. at 549-50, 514 P.2d at 470-71; see also Schoenrock v.
Cigna Health Plan of Ariz., Inc., 148 Ariz. 548, 550, 715 P.2d 1236, 1238
(App. 1985).

¶25           Several jurisdictions also have addressed the scope of
arbitration clauses in this context, and nearly all distinguish between
derivative and independent claims in this manner. See Ruiz v.
Podolsky, 237 P.3d 584, 591 n.2 (Cal. 2010). For example, those states
that treat wrongful death actions as separate and distinct from the
decedent’s underlying claims do not bind claimants to the
decedent’s arbitration agreement. See, e.g., Daniels v. Sunrise Senior
Living, Inc., 151 Cal. Rptr. 3d 273, 277-78 (Ct. App. 2013); Peters v.
Columbus Steel Castings Co., 873 N.E.2d 1258, ¶ 19 (Ohio 2007); Bybee
v. Abdulla, 189 P.3d 40, ¶ 40 (Utah 2008); Woodall v. Avalon Care Ctr.-
Fed. Way, LLC, 231 P.3d 1252, ¶ 43 (Wash. Ct. App. 2010); cf. Bush v.
Horizon W., 140 Cal. Rptr. 3d 258, 264 (Ct. App. 2012) (negligent
infliction of emotional distress claim is not derivative and thus not
subject to arbitration agreement). But states that consider wrongful
death actions as derivative of the decedent’s claims conclude that
the decedent’s heirs are bound. See, e.g., Ballard v. Sw. Detroit Hosp.,


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              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

327 N.W.2d 370, 371-72 (Mich. Ct. App. 1982); Estate of Krahmer ex rel.
Peck v. Laurel Healthcare Providers, LLC, No. 30,868, ¶¶ 8, 16, 2013 WL
5297138 (N.M. Ct. App. Sept. 16, 2013); In re Labatt Food Serv., L.P.,
279 S.W.3d 640, 645-46 (Tex. 2009).

¶26         We find the analysis of the Washington Court of
Appeals in Woodall particularly informative. There, the court made
the same distinction between wrongful death and survival statutes
that we make between the wrongful death and APSA claims in this
case:

            [For wrongful death claims,] the personal
            representative of the estate is merely a
            statutory agent or trustee acting in favor of
            the class designated in the statute, with no
            benefits flowing to the estate of the injured
            deceased.     In other words, under no
            circumstances does the estate of the
            decedent benefit by the [wrongful death]
            action. Anything realized therefrom goes
            to the beneficiaries. A cause of action for
            wrongful death is not one which ever
            belonged to the decedent.

                   ....

            . . . [But the survival] claims are an asset of
            [the] estate.      They originated as [the
            decedent]’s existing causes of action which
            survived his death and continue[d] as an
            asset of his estate.        Accordingly, [the
            personal representative] may assert these
            claims against Avalon . . . . [But u]nder the
            ordinary contract principle of agency,
            Avalon may properly require those claims
            to be arbitrated under its agreement with
            [the decedent].



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              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

Woodall, 231 P.3d 1252, ¶¶ 27, 29 (second and sixth alterations in
Woodall) (internal quotations omitted).

¶27           We conclude that an APSA claim is derivative of the
decedent’s rights, whereas a wrongful death claim is independently
held by the decedent’s statutory beneficiaries. Therefore, the APSA
claim is brought on behalf of DeCamacho’s estate by Guthrie as
personal representative and squarely falls within the scope of the
arbitration clause. Conversely, the wrongful death claim, brought
by Guthrie on behalf of herself, Ramiro Camacho, and Candelario
Camacho, is not subject to the terms of the admission agreement’s
arbitration clause.5

¶28          Citing Jeanes v. Arrow Insurance Co., 16 Ariz. App. 589,
494 P.2d 1334 (1972), La Solana nevertheless argues that the
statutory beneficiaries are bound by the arbitration clause because
they are third-party beneficiaries. The issue in Jeanes was whether
an automobile passenger injured in a vehicle collision was subject to
the arbitration clause of the driver’s uninsured motorist insurance
policy. 16 Ariz. App. at 589, 494 P.2d at 1334-35. The trial court
granted judgment in favor of the insurance company, thereby
sending the case to arbitration. Id. at 590, 494 P.2d at 1335. On
appeal, this court affirmed. Id. at 592, 494 P.2d at 1337. We
explained that, although the passenger did not sign the contract, she
was a third-party beneficiary: “The rights here involved were
created by that contract, and in order to accept benefits under that
contract she must accept and abide by the terms of the contract.” Id.

¶29        This case, however, is distinguishable from Jeanes
because the statutory beneficiaries did not accept, nor are they


      5 Because we have concluded the plain language of the
admission agreement does not bind the statutory beneficiaries as
parties to the contract, we need not address the broader question of
whether express language in the agreement purporting to bind the
statutory heirs to arbitrate their wrongful death claims would have
been valid and enforceable.


                                 14
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

seeking, any benefits under the contract. See also Schoneberger, 208
Ariz. 591, ¶ 13, 96 P.3d at 1081 (defendants argued plaintiffs could
not “demand benefits under the Trusts without accepting all of their
terms”). Rather, the statutory beneficiaries are seeking redress
under the wrongful death statute.        As discussed above, the
admission agreement applied to claims brought by and on behalf of
DeCamacho. Thus, the statutory beneficiaries are not third-party
beneficiaries.

¶30          Relying on Schoenrock, 148 Ariz. at 550, 715 P.2d at 1238,
La Solana argues that Arizona “permits an action for wrongful death
only if the decedent could have maintained an action had the person
lived.” La Solana reasons that “because [DeCamacho] would have
only been entitled to pursue her claims through arbitration, the
[statutory beneficiaries’] wrongful death claims are also subject to
arbitration.” Again, Schoenrock is distinguishable.

¶31          In Schoenrock, the decedent settled his medical
malpractice lawsuit against the defendants for failure to timely
diagnose lung cancer. 148 Ariz. at 548-49, 715 P.2d at 1236-37. After
the decedent passed away, his wife brought a wrongful death
lawsuit against those same parties. Id. at 549, 715 P.2d at 1237. The
trial court granted summary judgment in favor of the defendants,
and this court affirmed. Id. at 549, 551, 715 P.2d at 1237, 1239. We
explained that “even if the decedent’s injury had not resulted in
death, he still would be precluded from maintaining an action
because of the settlement.” Id. at 551, 715 P.2d at 1239. Accordingly,
we concluded that “the decedent’s settlement and release of his
personal injury claim prior to death extinguished any claim for
wrongful death.” Id. By contrast, here, there was no settlement and
release of DeCamacho’s claims.

¶32          Moreover, La Solana places too much emphasis on the
language in § 12-611 that the decedent would have been “entitled . . .
to maintain an action to recover damages . . . if death had not
ensued.” Section 12-611 does not specify that a wrongful death
claim must be pursued in exactly the same manner, such as through
arbitration, as one brought by the decedent. Rather, “the phrase


                                  15
              DeCAMACHO ESTATE v. LA SOLANA
                  CARE AND REHAB, INC.
                    Opinion of the Court

relied upon by [La Solana] is merely descriptive of the nature of the
wrong committed to determine if a cause of action exists as a matter
of substantive law for the alleged wrongful conduct.” Frongillo v.
Grimmett, 163 Ariz. 369, 370, 788 P.2d 102, 103 (App. 1989).

¶33           We therefore conclude that although the APSA claim
falls under the terms of the admission agreement and is subject to
arbitration, the statutory beneficiaries are not required to arbitrate
their wrongful death claims against La Solana pursuant to the
arbitration clause of the admission agreement. The trial court erred
in determining otherwise.6 See Harrington, 211 Ariz. 241, ¶ 16, 119
P.3d at 1049-50; Smith, 227 Ariz. 170, ¶ 7, 254 P.3d at 412.

                             Conclusion

¶34         For the reasons stated above, we reverse the trial court’s
order compelling arbitration of the wrongful death claims, but
otherwise affirm its order.




      6  This result has no effect on the trial court’s stay of
proceedings. See A.R.S. § 12-1502; Hallmark Indus., L.L.C. v. First
Systech Int’l, Inc., 203 Ariz. 243, ¶ 11, 52 P.3d 812, 815 (App. 2002)
(“[I]f an action or proceeding involves multiple, inseparable claims,
only some of which are arbitrable, the court action must be stayed
pending the arbitration.”).


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