                           ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




                Carter v. SSC Odin Operating Co., 2011 IL App (5th) 070392-B




Appellate Court            SUE CARTER, Special Administrator of the Estate of Joyce Gott,
Caption                    Deceased, Plaintiff-Appellee, v. SSC ODIN OPERATING COMPANY,
                           LLC, d/b/a/ Odin Healthcare Center, Defendant-Appellant.



District & No.             Fifth District
                           Docket No. 5-07-0392


Filed                      August 18, 2011
Rehearing denied           September 16, 2011
Held                       In a wrongful death action arising from the death of a resident of
(Note: This syllabus       defendant’s nursing home, the trial court properly denied defendant’s
constitutes no part of     motion to compel arbitration pursuant to the agreements signed by
the opinion of the court   decedent and plaintiff as her representative, since the arbitration
but has been prepared      agreement was unenforceable for a lack of mutuality and on the ground
by the Reporter of         that it did not apply to plaintiff’s wrongful death claim.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Marion County, No. 06-L-75; the Hon.
Review                     David L. Sauer, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  W. Jeffrey Muskopf and Mark R. Feldhaus, both of Lashly & Baer, P.C.,
Appeal                      of St. Louis Missouri, and Malcolm J. Harkins III and James F. Segroves,
                            both of Proskauer Rose LLP, of Washington D.C., for appellant.

                            Staci M. Yandle, of Law Offices of Staci M. Yandle, LLC, of O’Fallon,
                            for appellee.


Panel                       JUSTICE STEWART delivered the judgment of the court, with opinion.
                            Justice Goldenhersh concurred in the judgment and opinion.
                            Justice Spomer concurred in part and dissented in part, with opinion.




                                               OPINION

¶1          The plaintiff, Sue Carter, as the special administrator of the estate of Joyce Gott,
        deceased, filed a complaint against the defendant, SSC Odin Operating Company, LLC,
        doing business as Odin Healthcare Center, alleging that the defendant negligently provided
        nursing home services to Joyce that resulted in injuries to Joyce and contributed to the cause
        of her death. The defendant filed a motion to compel arbitration of the claim pursuant to two
        signed arbitration agreements. The circuit court denied the defendant’s motion to compel
        arbitration. Initially, we affirmed the circuit court’s order, holding that the arbitration
        agreements were void for being against the public policy set forth in the antiwaiver
        provisions of the Nursing Home Care Act (210 ILCS 45/3-606, 3-607 (West 2006)).1 Carter
        v. SSC Odin Operating Co., 381 Ill. App. 3d 717, 885 N.E.2d 1204 (2008). The supreme
        court reversed, holding that the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2000))
        preempted the Nursing Home Care Act. Carter v. SSC Odin Operating Co., 237 Ill. 2d 30,
        927 N.E.2d 1207 (2010). The court remanded the cause to us for consideration of the other
        issues raised by the parties that we did not previously address, including whether the parties’
        arbitration agreements evidence a transaction “involving [interstate] commerce” within the
        meaning of section 2 of the Federal Arbitration Act (9 U.S.C. § 2 (2000)), whether the


                1
                   Section 3-606 of the Nursing Home Care Act provides, “Any waiver by a resident or his
        legal representative of the right to commence an action under Sections 3-601 through 3-607,
        whether oral or in writing, shall be null and void, and without legal force or effect.” 210 ILCS
        45/3-606 (West 2006).
                  Section 3-607 of the Nursing Home Care Act provides, “Any party to an action brought
        under Sections 3-601 through 3-607 shall be entitled to a trial by jury and any waiver of the right
        to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be
        null and void, and without legal force or effect.” 210 ILCS 45/3-607 (West 2006).

                                                    -2-
     arbitration agreements are void for a lack of mutuality, and whether the arbitration
     agreements apply to the plaintiff’s claim under the Wrongful Death Act (740 ILCS 180/0.01
     et seq. (West 2006)). After consideration of the additional issues raised by the parties, we
     again affirm the order of the circuit court.

¶2                                      BACKGROUND
¶3       The defendant operates a nursing home facility in Odin, Illinois. The plaintiff alleged in
     her complaint that Joyce was admitted to the facility from May 20, 2005, through July 29,
     2005, and again from January 12, 2006, until her death on January 31, 2006. At the
     beginning of Joyce’s first stay at the defendant’s facility, the plaintiff, as Joyce’s “legal
     representative,” executed a written “Health Care Arbitration Agreement” with the defendant.
     This agreement is dated May 20, 2005. Six days after Joyce’s second admission to the
     defendant’s facility, Joyce herself signed a second written “Health Care Arbitration
     Agreement” with the defendant, the terms of which are identical to those of the first
     agreement. This second agreement is dated January 18, 2006. The plaintiff’s signature does
     not appear on the second arbitration agreement.
¶4       Both arbitration agreements state that they “shall not apply to any dispute where the
     amount in controversy is less than two hundred thousand ($200,000.00) dollars.” The
     agreements further provide as follows:
             “In consideration of this binding Agreement, the Facility and the Resident
         acknowledge that they are agreeing to a mutual arbitration, regardless of which party is
         making a claim; that the Facility agrees to pay the fees of the arbitrators and up to
         $5,000.00 of reasonable and appropriate attorney’s fees and costs for the Resident in any
         claims against the Facility; that the Resident shall have the right to choose the location
         of any arbitration under this Agreement; that the parties will mutually benefit from the
         speedy and efficient resolution of disputes which arbitration is expected to provide; and
         other good and valuable consideration, the receipt and sufficiency of which is hereby
         acknowledged by all parties hereto. Intending to be legally bound, the parties expressly
         agree that this Agreement will be governed by the Federal Arbitration Act, 9 U.S.C. § 1-
         16 (‘FAA’). It is the express intent of the parties to have a binding arbitration agreement
         and the parties further agree as follows:
             The parties agree that they shall submit to binding arbitration all disputes against each
         other and their representatives, affiliates, governing bodies, agents and employees arising
         out of or in any way related or connected to the Admission Agreement and all matters
         related thereto including matters involving the Resident’s stay and care provided at the
         Facility, including but not limited to any disputes concerning alleged personal injury to
         the Resident caused by improper or inadequate care including allegations of medical
         malpractice; any disputes concerning whether any statutory provisions relating to the
         Resident’s rights under Illinois law were violated; any disputes relating to the payment
         or non-payment for the Resident’s care and stay at the Facility; and any other dispute
         under state or Federal law based on contract, tort, statute (including any deceptive trade
         practices and consumer protection statutes), warranty or any alleged breach, default,


                                               -3-
         negligence, wantonness, fraud, misrepresentation or suppression of fact or inducement.”
¶5       The agreements further state as follows: “Each party agrees to waive the right to a trial,
     before a judge or jury, for all disputes, including those at law or in equity, subject to binding
     arbitration under this Agreement.” The agreements state that the parties intend for the
     agreements to bind “the Resident, his/her successors, assigns, agents, attorneys, insurers,
     heirs, trustees, and representatives, including the personal representative or executor of his
     or her estate; and the Legal Representative, his/her successors, assigns, agents, attorneys,
     insurers, heirs, trustees, and representatives or executor of his or her estate.”
¶6       Joyce died on January 31, 2006, during her second stay at the defendant’s nursing home
     facility. On November 22, 2006, the plaintiff filed a two-count complaint against the
     defendant. Count I of the complaint alleges a statutory survival action pursuant to the Probate
     Act of 1975 (755 ILCS 5/27-6 (West 2006)) and the Nursing Home Care Act (210 ILCS
     45/1-101 et seq. (West 2006)) (the survival action). Count II alleges a statutory action under
     the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)) (the wrongful death
     action). In both counts, the plaintiff alleged that the defendant had failed to provide Joyce
     with adequate care. In the survival action, the plaintiff alleged that the defendant’s acts
     and/or omissions resulted in Joyce suffering pain, emotional distress, and mental anguish
     between January 12, 2006, and January 31, 2006. In the wrongful death action, the plaintiff
     alleged that the defendant’s acts and/or omissions resulted in Joyce’s death and that,
     therefore, her heirs were deprived of her companionship and society.
¶7       In its answer to the complaint, the defendant raised the arbitration agreements as an
     affirmative defense to the claims. The defendant also filed a motion to compel arbitration
     based on the arbitration agreements. The plaintiff contested the motion to compel arbitration,
     arguing that the agreements are void for being in violation of Illinois public policy, as set
     forth in sections 3-606 and 3-607 of the Nursing Home Care Act (210 ILCS 45/3-606, 3-607
     (West 2006)), that the arbitration agreements are void due to a lack of mutuality, that the
     contract does not fall under the Federal Arbitration Act (9 U.S.C. § 1 et seq. (2000)) because
     the agreements are not contracts evidencing a transaction involving interstate commerce, and
     that the arbitration agreements did not apply to the plaintiff’s claim under the Wrongful
     Death Act (740 ILCS 180/0.01 et seq. (West 2006)).
¶8       On June 20, 2007, the circuit court entered an order denying the defendant’s motion to
     compel arbitration. With regard to the survival action, the circuit court concluded that the
     agreements were not enforceable because they were “in direct violation of emphatically
     stated public policy and for lack of mutuality” and because, with regard to interstate
     commerce, “in the aggregate the economic activity does not represent general practice
     subject to federal control.” With regard to the wrongful death action, the circuit court ruled
     that although Joyce was bound by the agreements with regard to her own claims, a plaintiff
     bringing a wrongful death claim on behalf of survivors was not bound by the agreements.
     The defendant filed a timely notice of interlocutory appeal.
¶9       We affirmed the circuit court’s order, holding that the arbitration agreements were void
     for being against the public policy set forth in the antiwaiver provisions of the Nursing Home
     Care Act (210 ILCS 45/3-606, 3-607 (West 2006)). Carter v. SSC Odin Operating Co., 381


                                               -4-
       Ill. App. 3d 717, 885 N.E.2d 1204 (2008). In our decision, we held that the Federal
       Arbitration Act did not preempt the Nursing Home Care Act. Because we affirmed the circuit
       court’s order pursuant to the antiwaiver provisions of the Nursing Home Care Act, we did
       not address the alternative issues raised by the parties.
¶ 10        The defendant appealed to the supreme court, and the supreme court reversed our
       decision, holding that the Federal Arbitration Act preempted the Nursing Home Care Act.
       Carter v. SSC Odin Operating Co., 237 Ill. 2d 30, 927 N.E.2d 1207 (2010). The court
       remanded the cause to us for consideration of the other issues raised by the parties that we
       did not previously address, including whether the arbitration agreements evidence a
       transaction “involving [interstate] commerce” within the meaning of section 2 of the Federal
       Arbitration Act (9 U.S.C. § 2 (2000)), whether the arbitration agreements are void for a lack
       of mutuality, and whether the arbitration agreements apply to the plaintiff’s claim under the
       Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)). We now address each of these
       additional issues in turn.

¶ 11                               STANDARD OF REVIEW
¶ 12        An order to compel arbitration is injunctive in nature and is appealable under Illinois
       Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010). Peach v. CIM Insurance Corp., 352 Ill.
       App. 3d 691, 694, 816 N.E.2d 668, 671 (2004). Generally, an order granting or denying a
       motion to compel arbitration is reviewed under the abuse-of-discretion standard. Peach, 352
       Ill. App. 3d at 694, 816 N.E.2d at 671. However, in an appeal from the denial of a motion
       to compel arbitration without an evidentiary hearing, the standard of review is de novo.
       Ragan v. AT&T Corp., 355 Ill. App. 3d 1143, 1147, 824 N.E.2d 1183, 1186-87 (2005). In
       the present case, there was no evidentiary hearing. Accordingly, we will review the trial
       court’s ruling de novo. This court may affirm the judgment of a trial court on any basis
       warranted by the record. Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 418,
       869 N.E.2d 195, 206 (2007).

¶ 13                                       DISCUSSION
¶ 14                                              I
¶ 15           Contract Evidencing a Transaction Involving Interstate Commerce
¶ 16       The first issue we address is whether the arbitration agreements are contracts evidencing
       a transaction involving interstate commerce. Section 2 of the Federal Arbitration Act “is a
       congressional declaration of a liberal federal policy favoring arbitration agreements,
       notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone
       Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983). The United States
       Supreme Court has noted that the Federal Arbitration Act was enacted pursuant to
       Congress’s substantive power to regulate interstate commerce and admiralty. Prima Paint
       Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 405 (1967). Section 2 of the Federal
       Arbitration Act applies only to “any maritime transaction or a contract evidencing a
       transaction involving commerce.” 9 U.S.C. § 2 (2000). “Section 2 ‘embodies a clear federal
       policy of requiring arbitration unless the agreement to arbitrate is not part of a [maritime

                                                -5-
       transaction or a] contract evidencing interstate commerce,’ in which case section 2 would
       simply not apply ***.” Fosler v. Midwest Care Center II, Inc., 398 Ill. App. 3d 563, 572, 928
       N.E.2d 1, 10 (2009) (quoting Perry v. Thomas, 482 U.S. 483, 489 (1987)). The words
       “involving commerce” in section 2 of the Federal Arbitration Act “signal[ ] an intent to
       exercise Congress’ commerce power to the full.” Allied-Bruce Terminix Cos. v. Dobson, 513
       U.S. 265, 277 (1995).
¶ 17       We believe that the record establishes that the arbitration agreements in the present case
       evidence a transaction involving interstate commerce. The defendant’s memorandum of law
       in support of its motion to compel arbitration included the affidavit of the administrator of
       the defendant’s nursing home facility in Odin, Illinois. The administrator stated in the
       affidavit that Joyce’s nursing care was paid for by the federal Medicare program. The
       defendant made its request for payment for Joyce’s care to Mutual of Omaha, which is “a
       fiscal intermediary that processes Medicare claims for the federal government.” The affidavit
       states that Mutual of Omaha’s office for processing Medicare payments to the defendant is
       located in Nebraska. Mutual of Omaha processed the defendant’s Medicare request, and the
       defendant received $8,667.99 in Medicare payments for Joyce’s care at the defendant’s
       facility. The affidavit further states that for the two-year period beginning in 2005 and ending
       in 2006, the defendant received more than $9.3 million in Medicare and Medicaid funds for
       nursing care provided to various patients at the defendant’s Odin nursing home facility.
¶ 18       The affidavit further establishes that the defendant received various supplies, including
       food, oxygen tanks, beds, maintenance, and office supplies, from several different vendors
       that are located in Missouri, Wisconsin, Minnesota, Nebraska, Kentucky, Georgia, Texas,
       Florida, Colorado, and California. The defendant provides its residents with therapy services
       from companies situated in Pennsylvania, Tennessee, Florida, Nevada, and Oregon, and its
       payroll is processed in an office located in Texas.
¶ 19       In Fosler, the court held that an arbitration agreement contained within a nursing home
       care agreement evidenced a transaction involving interstate commerce where the nursing
       home facility received Medicare and Medicaid payments for services provided to
       approximately 15% of its residents, received out-of-state insurance payments on behalf of
       the plaintiff, and purchased medical equipment, medical supplies, and over-the-counter
       medication from vendors outside Illinois. Fosler, 398 Ill. App. 3d at 578, 928 N.E.2d at 14-
       15. We agree with the Fosler court’s analysis and hold that the arbitration agreements in the
       present case evidence a transaction involving interstate commerce.
¶ 20       Courts from other jurisdictions have also considered similar evidence and found it
       sufficient to satisfy the interstate commerce requirement of the Federal Arbitration Act. In
       Triad Health Management of Georgia, III, LLC v. Johnson, 679 S.E.2d 785, 787-88 (Ga. Ct.
       App. 2009), the Court of Appeals of Georgia held that evidence of Medicaid and Medicare
       payments and out-of-state supply purchases and insurance providers was sufficient to show
       a contract involving interstate commerce. In Estate of Ruszala v. Brookdale Living
       Communities, Inc., 1 A.3d 806, 817 (N.J. Super. Ct. App. Div. 2010), the Superior Court of
       New Jersey found the facilities’ purchases of out-of-state supplies, food, medicine, and
       equipment left “little doubt that the residency agreements at issue *** involve interstate
       commerce.” See also Vicksburg Partners, L.P. v. Stephens, 2004-CA-01345-SCT (¶ 17)

                                                 -6-
       (Miss. 2005) (a nursing home admissions agreement affected interstate commerce where the
       nursing home facility procured goods and services from out-of-state vendors, took in out-of-
       state residents, and received payments from out-of-state insurance carriers, including
       Medicare and Medicaid programs).
¶ 21       “Congress’ Commerce Clause power ‘may be exercised in individual cases without
       showing any specific effect upon interstate commerce’ if in the aggregate the economic
       activity in question would represent ‘a general practice . . . subject to federal control.’ ”
       Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57 (2003) (per curiam) (quoting Mandeville
       Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948)). The nursing
       home facility in the present case cannot function without the supplies and services procured
       from out-of-state merchants and businesses. It collects a substantial amount of revenue from
       out-of-state insurance carriers, including Medicaid and Medicare. The facility’s aggregate
       economic activities clearly have an effect upon interstate commerce, rendering the arbitration
       agreements in the present case subject to the Federal Arbitration Act.

¶ 22                                                II
¶ 23                                            Mutuality
¶ 24       Even though the arbitration agreements at issue in the present case are contracts
       evidencing interstate commerce and are subject to the Federal Arbitration Act, this
       conclusion does not end our analysis, because “generally applicable contract defenses, such
       as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements
       without contravening [the Federal Arbitration Act].” Doctor’s Associates, Inc. v. Casarotto,
       517 U.S. 681, 687 (1996). Section 2 of the Federal Arbitration Act allows a party to raise
       contract defenses if they are based “upon such grounds as exist at law or in equity for the
       revocation of any contract.” 9 U.S.C. § 2 (2000). In the present case, the plaintiff maintains
       that the arbitration agreements are void and are not enforceable due to a lack of mutuality.
¶ 25       “In its most elemental sense, the doctrine of mutuality of obligation means that unless
       both parties to a contract are bound by its terms, neither is bound.” Schwinder v. Austin Bank
       of Chicago, 348 Ill. App. 3d 461, 473, 809 N.E.2d 180, 193 (2004). “ ‘[M]utuality of
       obligation in bilateral contracts is but another way of stating that consideration is essential.’ ”
       Schwinder, 348 Ill. App. 3d at 473, 809 N.E.2d at 193 (quoting 25 Richard Lord, Williston
       on Contracts § 67:42 at 332 (4th ed. 2002)). The parties to a contract do not have to have
       identical rights and obligations. Hofmeyer v. Willow Shores Condominium Ass’n, 309 Ill.
       App. 3d 380, 385, 722 N.E.2d 311, 315 (1999). “The mutuality requirement is satisfied if
       each party has given sufficient consideration for the other’s promise.” Hofmeyer, 309 Ill.
       App. 3d at 385, 722 N.E.2d at 315. “Valuable consideration for a contract consists of some
       right, interest, profit or benefit accruing to one party *** or undertaken by the other.” City
       of Chicago Heights v. Crotty, 287 Ill. App. 3d 883, 886, 679 N.E.2d 412, 414 (1997). If each
       party has given adequate consideration for the other’s promise, the contract does not lack
       mutuality merely because its obligations appear unequal or because every obligation or right
       is not met by an equivalent counterobligation or right in the other party. Gordon v. Bauer,
       177 Ill. App. 3d 1073, 532 N.E.2d 855 (1988). “Mutuality becomes a nonissue when


                                                  -7-
       consideration has otherwise been conferred upon one of the parties.” Carrico v. Delp, 141
       Ill. App. 3d 684, 687, 490 N.E.2d 972, 975 (1986). The mutual promises of the parties must
       be binding if no other consideration has been transferred. Carrico, 141 Ill. App. 3d at 687,
       490 N.E.2d at 975. In other words, “where there is no consideration independent of the
       mutuality of obligation[,] then both parties to an agreement are bound or neither is bound.”
       Vassilkovska v. Woodfield Nissan, Inc., 358 Ill. App. 3d 20, 28, 830 N.E.2d 619, 625 (2005).
¶ 26        In Vassilkovska, the court considered a stand-alone arbitration agreement and found
       mutuality to be lacking where the agreement required only one party to arbitrate. The plaintiff
       in Vassilkovska purchased a used automobile from the defendant and signed a sales contract
       for the purchase. In addition to the sales contract, the plaintiff also signed a separate
       arbitration agreement. In the arbitration agreement, the plaintiff agreed to waive her right to
       pursue any cause of action related to the sales agreement. The defendant, in turn, also agreed
       to waive the right to pursue any legal action but excluded a long list of potential claims. The
       plaintiff filed a complaint against the defendant, alleging fraud in the vehicle purchase, and
       the defendant moved to dismiss and compel arbitration pursuant to the arbitration agreement.
       The trial court denied the defendant’s motion.
¶ 27        In affirming the trial court’s order, the Vassilkovska court held that the arbitration
       agreement was a separate contract from the contract for the sale of the car and required its
       own consideration. Vassilkovska, 358 Ill. App. 3d at 25, 830 N.E.2d at 623-24. The court
       stated that there must be some detriment to the defendant, or some benefit to the plaintiff,
       that was bargained for in exchange for the plaintiff’s promise to arbitrate all disputes.
       Vassilkovska, 358 Ill. App. 3d at 26, 830 N.E.2d at 624. The court found that there was no
       consideration for the plaintiff’s agreement to arbitrate because the arbitration agreement did
       not contain a promise on the defendant’s part to submit claims to arbitration. Vassilkovska,
       358 Ill. App. 3d at 27, 830 N.E.2d at 625. Instead, the defendant exempted a host of issues
       from arbitration, primarily the issues involving the recoupment of money from the plaintiff.
       Vassilkovska, 358 Ill. App. 3d at 28, 830 N.E.2d at 626.
¶ 28        The court stated as follows: “The language of the Arbitration Agreement makes clear that
       its purpose is to force the plaintiff to arbitrate any claim she may assert against [the
       defendant], while excluding [the defendant] from that same promise.” Vassilkovska, 358 Ill.
       App. 3d at 27, 830 N.E.2d at 625. Therefore, the court concluded that the separate arbitration
       agreement “itself did not contain consideration for the plaintiff’s promise in the form of a
       promise by [the defendant] to submit disputes to arbitration.” Vassilkovska, 358 Ill. App. 3d
       at 27, 830 N.E.2d at 625. “[W]here the agreement to arbitrate is itself a separate document,
       purporting to bind each party to the arbitration agreement, but subsequently creates a total
       exclusion of one party’s obligation to arbitrate, the obligation to arbitrate is illusory and
       unenforceable.” Vassilkovska, 358 Ill. App. 3d at 29, 830 N.E.2d at 626.
¶ 29        In the present case, the arbitration agreements are separate and apart from any other
       contracts. Accordingly, these stand-alone agreements must be supported by consideration or
       mutually binding agreements to arbitrate. The agreements provide that the parties agree to
       arbitrate their claims against the other, but the agreements exclude “any dispute where the
       amount in controversy is less than two hundred thousand ($200,000.00) dollars.” We agree
       with the plaintiff that because the arbitration agreements do not apply to claims less than

                                                -8-
       $200,000, the defendant’s promise to arbitrate is illusory. By excluding all claims but those
       $200,000 and greater from the requirements of the arbitration agreement, the defendant
       essentially ensured that none of its claims against Joyce would have to be arbitrated under
       the terms of the agreement. Instead, only Joyce’s claims for personal injuries due to the
       defendant’s improper or inadequate care would ever have to be arbitrated under the
       agreements. The defendant cannot offer any realistic scenario where the amount in
       controversy in disputes relating to the nonpayment of Joyce’s care would equal or exceed
       $200,000. The arbitration agreements, therefore, do not contain mutually binding promises
       to arbitrate, but only a unilateral obligation on the part of Joyce to arbitrate her personal
       injury claims. The agreements, therefore, are not enforceable. See also Gonzalez v. West
       Suburban Imports, Inc., 411 F. Supp. 2d 970, 972 (N.D. Ill. 2006) (“[A]lthough the
       Agreement purports to bind both parties to arbitrate disputes arising out of the transaction,
       the exceptions listed within the definition of ‘dispute’ leaves no claim that Defendant would
       be required to submit to arbitration. Thus, without the requisite mutual obligation to arbitrate,
       the agreement lacks consideration and is unenforceable.”).

¶ 30                                               III
¶ 31                                    Wrongful Death Claim
¶ 32        The plaintiff also argues that the arbitration agreements do not apply to her claim under
       the Wrongful Death Act. She correctly notes that she is not a party to the agreements. Joyce
       signed one of the arbitration agreements herself, and the plaintiff signed the other agreement
       as Joyce’s “Legal Representative.” The plaintiff did not sign the arbitration agreement in her
       individual capacity.
¶ 33        While a wrongful death claim is derivative of the action the decedent would have had if
       the death had not occurred (Limer v. Lyman, 220 Ill. App. 3d 1036, 1042, 581 N.E.2d 411,
       415 (1991)), it is also an independent claim designed to compensate the surviving spouse and
       the next of kin for the pecuniary losses resulting from the decedent’s death. In re Estate of
       Savio, 388 Ill. App. 3d 242, 247-48, 902 N.E.2d 1113, 1119 (2009). Claims under the
       Wrongful Death Act are “those of the individual beneficiaries.” Wilbon v. D.F. Bast Co., 73
       Ill. 2d 58, 68, 382 N.E.2d 784, 788 (1978).
¶ 34        In Curto v. Illini Manors, Inc., 405 Ill. App. 3d 888, 940 N.E.2d 229 (2010), the wife of
       a deceased nursing home resident brought a wrongful death action against a nursing home.
       The wife had signed an arbitration agreement as “Resident Representative.” The court held,
       “[The wife’s] signature carries no legally binding weight regarding the arbitration of her
       personal claims against the nursing home under the Wrongful Death Act or the Family
       Expense Act.” Curto, 405 Ill. App. 3d at 897, 940 N.E.2d at 236 (citing Ward v. National
       Healthcare Corp., 275 S.W.3d 236 (Mo. 2009) (en blanc), and Goliger v. AMS Properties,
       Inc., 19 Cal. Rptr. 3d 819 (Cal. Ct. App. 2004)). Likewise, in the present case, the
       agreement’s use of the word “Legal Representative” under the plaintiff’s signature made
       clear that she was not signing in her individual capacity or on her own behalf as a potential
       wrongful death plaintiff. Therefore, even if the arbitration agreements were valid, the
       plaintiff’s signature on the May 20, 2005, agreement is not binding with regard to arbitration


                                                 -9-
       of a wrongful death claim.

¶ 35                                   CONCLUSION
¶ 36      For the foregoing reasons, the circuit court’s order denying the defendant’s motion to
       compel arbitration is affirmed.

¶ 37      Affirmed.

¶ 38        JUSTICE SPOMER, concurring in part and dissenting in part.
¶ 39        I concur in that portion of the opinion in which the majority finds that the arbitration
       agreements in the present case evidence a transaction involving interstate commerce, and
       thus, I agree that the Federal Arbitration Act applies to the arbitration agreements at issue.
       In addition, I agree with the majority’s conclusion that the plaintiff’s signature as “Legal
       Representative” for the decedent on the May 20, 2005, agreement does not bind her to
       arbitrate her independent wrongful death claim. However, I respectfully dissent from the
       majority’s conclusion that the arbitration agreements between the decedent and the defendant
       are unenforceable for a lack of mutuality. In the agreements at issue, both parties agreed to
       arbitrate all claims where the amount in controversy is greater than $200,000. Conversely,
       both parties retained the right to litigate all claims where the amount in controversy is less
       than $200,000. The promises made by both parties are equal.
¶ 40        I do not find the defendant’s promise to arbitrate all claims where the amount in
       controversy is greater than $200,000 to be illusory. This case is distinguishable from
       Vassilkovska and Gonzalez, cited by the majority, in which the arbitration clauses at issue
       excluded all types of claims that the defendants in those cases would have against the
       plaintiffs, regardless of the amount in controversy. Vassilkovska, 358 Ill. App. 3d at 28 (the
       defendant exempted itself from arbitration by specifically securing its rights to seek
       assistance in a court of law for a host of issues); Gonzalez, 411 F. Supp. 2d at 972 (the
       exceptions listed within the definition of “dispute” left no claim that the defendant would be
       required to submit to arbitration).
¶ 41        Unlike Vassilkovska and Gonzalez, it is not impossible to conceive of situations where
       the defendant would be required to arbitrate its disputes against a signatory resident,
       including contract actions for unpaid bills and tort actions for personal injury or property
       damage where the amount in controversy exceeds $200,000. For example, in a case where
       a nursing home resident caused a fire, intentionally or unintentionally, the damages to the
       nursing home could easily exceed that amount. It is not the province of this court to
       determine the relative frequency of such claims but only to determine that both parties made
       promises to arbitrate. See Keefe v. Allied Home Mortgage Corp., 393 Ill. App. 3d 226, 230
       (2009) (“ ‘A contract does not lack mutuality merely because its obligations appear unequal
       or because every obligation or right is not met by an equivalent counterobligation or right in
       the other party.’ ” (quoting Piehl v. Norwegian Old Peoples’ Home Society of Chicago, 127
       Ill. App. 3d 593, 595 (1984))).


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¶ 42       For the foregoing reasons, I would affirm that portion of the circuit court’s order which
       denied the motion to compel the arbitration of the plaintiff’s wrongful death claim but would
       reverse that portion of the circuit court’s order which denied the motion to compel the
       arbitration of the survival claims of the decedent, and I would remand with directions that
       the circuit court enter an order compelling the arbitration of those claims.




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