Carter v. SSC Odin Operating Company

                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                       Carter v. SSC Odin Operating Co., 

Caption in Supreme         SUE CARTER, Special Adm’r of the Estate of Joyce Gott, Deceased,
Court:                     Appellee, v. SSC ODIN OPERATING COMPANY, LLC, d/b/a Odin
                           Healthcare Center, Appellant.



Docket No.                 113204


Filed                      September 20, 2012


Held                       A wrongful death claim for the death of a nursing home resident did not
(Note: This syllabus       accrue until she died and was not governed by an arbitration agreement
constitutes no part of     that she had signed, but the Federal Arbitration Act was applicable and
the opinion of the court   arbitration could be compelled under the agreement as to claims for
but has been prepared      negligence and statutory violations occurring while she lived.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Fifth District; heard in that court
Review                     on appeal from the Circuit Court of Marion County, the Hon. David L.
                           Sauer, Judge, presiding.



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

                         Staci M. Yandle, of O’Fallon, for appellee.


Justices                 JUSTICE THEIS delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Thomas, Garman, and Burke
                         concurred in the judgment and opinion.
                         Justices Freeman and Karmeier took no part in this decision.



                                           OPINION

¶1        This appeal involves an arbitration agreement between plaintiff’s decedent and defendant
      nursing home. At issue is whether the arbitration agreement is enforceable and, if so, whether
      plaintiff can be compelled to arbitrate a wrongful-death claim against defendant. The
      appellate court ruled in favor of plaintiff, holding that the arbitration agreement is
      unenforceable based on a lack of mutuality of obligation, and that the wrongful-death claim
      is not subject to arbitration in any event. 

. The
      appellate court thus affirmed the trial court’s denial of defendant’s motion to compel
      arbitration. 

.
¶2        For the reasons that follow, we affirm in part and reverse in part the judgment of the
      appellate court, and remand to the trial court for further proceedings.

¶3                                       BACKGROUND
¶4        Plaintiff, Sue Carter, as the special administrator of the estate of Joyce Gott, deceased,
      filed a complaint in the circuit court of Marion County against defendant, SSC Odin
      Operating Company, LLC, that does business as Odin Healthcare Center, a nursing home
      located in Odin, Illinois. Gott was a resident of the nursing home for a two-month period
      during 2005, and again in early 2006 until her death on January 31, 2006. In count I, a
      survival action (755 ILCS 5/27-6 (West 2006)), plaintiff alleged that defendant violated the
      Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2006)) and, as a result, Gott
      sustained personal injury including gastrointestinal bleeding, anemia, and respiratory failure.
      In count II, a claim under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)),
      plaintiff sought damages for injuries sustained by Gott’s heirs resulting from Gott’s wrongful
      death.
¶5        Defendant filed a motion to compel arbitration, relying on two identical arbitration
      agreements executed at the time of Gott’s 2005 and 2006 nursing home admissions. The

                                                -2-
     2005 agreement was signed by plaintiff as Gott’s “Legal Representative.” The 2006
     agreement was signed by Gott herself. The parties agreed that, with respect to claims where
     the amount in controversy is at least $200,000,
              “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, negligence, wantonness, fraud, misrepresentation or
              suppression of fact or inducement.”
¶6        The parties also agreed that defendant would pay the fees of the arbitrators; defendant
     would pay up to $5,000 of the resident’s attorney fees and costs in claims against defendant;
     the resident would have the right to choose the location of the arbitration; and the Federal
     Arbitration Act (

 et seq.) (FAA) would govern the agreements.
¶7        After briefing, and without an evidentiary hearing, the trial court denied defendant’s
     motion to compel arbitration. The trial court ruled that the agreements were unenforceable
     because they violated Illinois public policy and lacked mutuality of obligation; the wrongful-
     death claim was not arbitrable; and the agreements did not evince a transaction involving
     commerce within the meaning of the FAA. Defendant appealed. The appellate court affirmed
     the denial of defendant’s motion to compel arbitration. Carter v. SSC Odin Operating Co.,
     

 (2008).
¶8        The appellate court examined Illinois public policy as set forth in sections 3-606 and 3-
     607 of the Nursing Home Care Act, which provide that any waiver by a resident, or his legal
     representative, of the right to commence an action under the Nursing Home Care Act, or to
     a jury trial of such action, shall be “null and void.” 210 ILCS 45/3-606, 3-607 (West 2006).
     The appellate court held that these antiwaiver provisions present a legitimate state law
     contract defense to the arbitration agreements that is not preempted by the FAA. Carter, 

. We allowed defendant’s petition for leave to appeal and reversed the
     judgment of the appellate court. Carter v. SSC Odin Operating Co., 

 (2010).
     We held that the antiwaiver provisions of sections 3-606 and 3-607 of the Nursing Home
     Care Act are the functional equivalent of antiarbitration legislation, which is preempted by
     the FAA and Supreme Court precedent. 

 at 48-49 (citing Southland Corp. v. Keating, 

 (1984)). We remanded the cause to the appellate court for consideration and resolution
     of the remaining issues on appeal. 

.
¶9        On remand, the appellate court again affirmed the trial court’s denial of defendant’s
     motion to compel arbitration. 

. The appellate court first held


                                                -3-
       that the arbitration agreements evince a transaction involving interstate commerce, rendering
       them subject to the FAA. 

. The appellate court next held, over a dissent, that
       defendant’s promise to arbitrate was illusory, and that the arbitration agreements were thus
       unenforceable for lack of mutuality of obligation. 

. The appellate majority explained:
                “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 [Gott] 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.” 

       The dissenting justice would not have found defendant’s promise to arbitrate to be illusory,
       noting that a claim against a nursing home resident in excess of $200,000 could arise where,
       for example, the resident intentionally or unintentionally started a fire causing damage to the
       nursing home. 

 (Spomer, J., concurring in part and dissenting in part).
¶ 10       The appellate court unanimously held, however, that even if the arbitration agreements
       are enforceable, plaintiff cannot be compelled to arbitrate the wrongful-death claim because
       plaintiff did not sign the arbitration agreement in her individual capacity. 

. The
       appellate court disagreed with defendant that the “derivative” nature of a wrongful-death
       claim required a different result. 

.
¶ 11       We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26,
       2010).

¶ 12                                         ANALYSIS
¶ 13                                   I. Standard of Review
¶ 14        The facts relevant to defendant’s motion to compel arbitration are not in dispute, and the
       trial court’s decision denying defendant’s motion was based on purely legal issues: (1) the
       enforceability of the arbitration agreement, and (2) the arbitrability of the wrongful-death
       claim, which raises issues of statutory construction. Accordingly, our review proceeds de
       novo. See Royal Indemnity Co. v. Chicago Hospital Risk Pooling Program, 

 (2007); Carter, 

.

¶ 15                                II. Mutuality of Obligation
¶ 16       The appellate court held that the arbitration agreements at issue here “evidence a
       transaction involving interstate commerce” and are thus governed by the FAA. 

. Plaintiff did not seek review of that issue before this court. Thus,
       we will proceed from the premise that, as held by the appellate court and expressly stated in
       the arbitration agreements, the FAA governs the agreements.


                                                  -4-
¶ 17       Originally adopted in 1925, the FAA was enacted “to reverse the longstanding judicial
       hostility to arbitration agreements” and “to place arbitration agreements upon the same
       footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 

 (1991).
       Section 2 of the FAA provides in relevant part that:
                   “A written provision in *** a contract evidencing a transaction involving
               commerce to settle by arbitration a controversy thereafter arising out of such contract
               or transaction *** shall be valid, irrevocable, and enforceable, save upon such
               grounds as exist at law or in equity for the revocation of any contract.” (Emphasis
               added.) 

 (2012).
¶ 18       Thus, an arbitration agreement may be invalidated by a state law contract defense of
       general applicability, such as fraud, duress, or unconscionability, without contravening
       section 2. Doctor’s Associates, Inc. v. Casarotto, 

 (1996). An arbitration
       agreement may not be invalidated, however, by a state law applicable only to arbitration
       agreements. 

¶ 19       Here, the state law contract defense on which the appellate court relied when it
       invalidated the arbitration agreements is a lack of mutuality of obligation. According to the
       appellate court, defendant’s promise to arbitrate is illusory based on the $200,000 arbitration
       floor, rendering the arbitration agreements unenforceable for lack of a mutual promise to
       arbitrate. 

.
¶ 20       “An illusory promise appears to be a promise, but on closer examination reveals that the
       promisor has not promised to do anything.” W.E. Erickson Construction, Inc. v. Chicago
       Title Insurance Co., 

 (1994). Although defendant disputes that its
       obligation to arbitrate its claims against Gott is illusory, defendant’s principal argument
       before this court is that mutuality of obligation is not essential to the validity of the
       arbitration agreements because Gott’s promise to arbitrate is supported by other
       consideration. In other words, according to defendant, a lack of mutual promises to arbitrate
       will not destroy the validity of the arbitration agreements.
¶ 21       The concept of “mutuality of obligation” is intimately tied to the concept of
       “consideration.” As this court explained:
               “While consideration is essential to the validity of a contract, mutuality of obligation
               is not. Where there is no other consideration for a contract the mutual promises of the
               parties constitute the consideration, and these promises must be binding on both
               parties or the contract falls for want of consideration, but where there is any other
               consideration for the contract mutuality of obligation is not essential.” Armstrong
               Paint & Varnish Works v. Continental Can Co., 

 (1921).
       Accord S.J. Groves & Sons Co. v. State of Illinois, 

 (1982), overruled
       on other grounds by Rossetti Contracting Co. v. Court of Claims, 

 (1985);
       McInerney v. Charter Golf, Inc., 

 (1997). See also Restatement (Second)
       of Contracts § 79 (1981) (“If the requirement of consideration is met, there is no additional
       requirement of *** ‘mutuality of obligation.’ ”); 3 Richard A. Lord, Williston on Contracts
       § 7:14, at 326-30 (4th ed. 2008) (mutuality of obligation is “simply an awkward way of
       stating that there must be a valid consideration”).

                                                 -5-
¶ 22        These principles apply equally to arbitration agreements as they do to other types of
       contracts. In Vassilkovska v. Woodfield Nissan, Inc., 

 (2005), for example,
       the appellate court was presented with a challenge to an arbitration agreement similar to the
       challenge in the instant case. There, the plaintiff claimed that the defendant’s promise to
       arbitrate was illusory, thus rendering the arbitration agreement unenforceable for lack of
       mutuality of obligation. Vassilkovska observed that mutuality of obligation is “nothing more
       than a proxy for consideration,” and that the court would review the plaintiff’s lack-of-
       mutuality challenge in terms of whether consideration existed for the parties’ agreement to
       arbitrate. Vassilkovska, 

 n.2. In Vassilkovska, however, the only
       consideration that could have supported the plaintiff’s promise to arbitrate was the
       defendant’s reciprocal promise, which the appellate court held was illusory. 

. Here,
       defendant argues that other consideration, apart from its own promise to arbitrate, supports
       Gott’s promise to arbitrate her disputes with defendant. If defendant is correct that other
       consideration exists, we need not decide whether defendant’s promise to arbitrate is illusory.
¶ 23        “Consideration” is the “bargained-for exchange of promises or performances, and may
       consist of a promise, an act or a forbearance.” McInerney, 

 (citing
       Restatement (Second) of Contracts § 71 (1981)). “Any act or promise which is of benefit to
       one party or disadvantage to the other is a sufficient consideration to support a contract.”
       Steinberg v. Chicago Medical School, 

 (1977). See also Lipkin v. Koren,
       

 (1946) (consideration “consists of some right, interest, profit or benefit
       accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered
       or undertaken by the other”). Thus, the enforceability of Gott’s promise to arbitrate, rather
       than to litigate, her claims against defendant is dependent upon whether defendant suffered
       a detriment, or Gott received a benefit, in exchange for that promise. See Vassilkovska, 

.
¶ 24        Principles of contract law do not require that the values Gott and defendant exchanged
       be equivalent. Ryan v. Hamilton, 

 (1903); Keefe v. Allied Home Mortgage
       Corp., 

 (2009). See also Restatement (Second) of Contracts § 79
       (1981) (“[i]f the requirement of consideration is met, there is no additional requirement of
       *** equivalence in the values exchanged”); Harris v. Green Tree Financial Corp., 

 (3d Cir. 1999) (observing that “state courts have concluded that an arbitration
       clause need not be supported by equivalent obligations”). Moreover, we will not inquire into
       the adequacy of the consideration to support a contract. Gallagher v. Lenart, 

 (2007); Ryan, 

. “[A]dequacy of the consideration is within the exclusive
       dominion of the parties where they contract freely and without fraud.” 

. See also
       2 Joseph M. Perillo & Helen Hadjiyannakis Bender, Corbin on Contracts § 6.1, at 207 (rev.
       ed. 1995) (to the extent courts use the term mutuality of obligation to require something
       tending toward equivalence of obligation, this is “ ‘simply a species of the forbidden inquiry
       into the adequacy of consideration’ ” (quoting Pine River State Bank v. Mettille, 

 (Minn. 1983))).
¶ 25        Defendant contends that, apart from its own promise to arbitrate, Gott’s promise to
       arbitrate is supported by the following consideration: defendant’s promise to pay the


                                                -6-
       arbitrators’ fees1; defendant’s promise to pay $5,000 of Gott’s attorney fees and costs in any
       action against defendant; and Gott’s right to choose the location of the arbitration. In her
       brief before this court, plaintiff does not address defendant’s contention that the foregoing
       provisions supply the consideration supporting Gott’s promise to arbitrate. At oral argument,
       plaintiff addressed only the attorney fee provision in the arbitration agreement, noting that
       under the Nursing Home Care Act defendant is already required to pay attorney fees to a
       resident whose rights (as specified in part 1 of article II of the Act) are violated. See 210
       ILCS 45/3-602 (West 2006). Thus, plaintiff argued that defendant’s promise to pay $5,000
       of Gott’s attorney fees is no consideration. We disagree.
¶ 26       Under the Nursing Home Care Act, Gott would only be entitled to attorney fees if she
       prevailed in a claim against defendant. Under the arbitration agreements, however, Gott is
       entitled to a portion of her attorney fees even if defendant prevails. The contractual fee
       provision thus supplements the statutory fee provision, constituting a benefit to Gott and a
       detriment to defendant. Similarly, defendant’s promise to pay the arbitrators’ fees, and Gott’s
       right to choose the location of the arbitration, each also constitute a benefit to Gott and a
       detriment to defendant.
¶ 27       Based on these contract provisions, we conclude that Gott’s promise to arbitrate, even
       if not met with a reciprocal promise to arbitrate by defendant, is nonetheless supported by
       consideration. Thus, we hold, contrary to the appellate court judgment, that the arbitration
       agreements are enforceable. The state law contract defense of lack of mutuality of obligation
       is not available under the facts of this case.
¶ 28       In light of this holding, we necessarily consider defendant’s further argument that the
       appellate court erred in holding that plaintiff is not required to arbitrate the wrongful-death
       claim.

¶ 29                                III. Wrongful-Death Action
¶ 30       The appellate court held that because plaintiff signed the agreement as Gott’s legal
       representative, and not in her individual capacity or on her own behalf as a potential
       wrongful-death plaintiff, the arbitration agreement is not binding upon her with regard to the
       wrongful-death claim. 

. As the appellate court succinctly
       stated, plaintiff “is not a party to the agreements.” 

. Thus, the appellate court’s
       holding is based on a basic principle of contract law. See Equal Employment Opportunity
       Comm’n v. Waffle House, Inc., 

 (2002) (“It goes without saying that a
       contract cannot bind a nonparty.”).
¶ 31       Defendant does not dispute that plaintiff signed the agreement only on behalf of Gott, and
       conceded at oral argument that nonsignatories to a contract are typically not bound.
       Defendant, nonetheless, urges us to reverse the appellate court judgment, contending that the
       court’s holding is based on a misunderstanding of the Wrongful Death Act. According to
       defendant, a wrongful-death action is an asset of the decedent’s estate that the decedent can


              1
                  The arbitration agreements require that disputes be settled by a panel of three arbitrators.

                                                     -7-
       limit during her lifetime. In this case, defendant continues, the decedent limited the forum
       in which the action could be heard. Defendant further argues that a wrongful-death action is
       derivative of, and thus limited to, what a decedent’s cause of action against the defendant
       would have been had the decedent lived, and if the decedent’s cause of action against the
       defendant would have been subject to arbitration, the wrongful-death claim against the
       defendant is likewise subject to arbitration. For these reasons, defendant contends that its
       motion to compel arbitration should have been granted. Because defendant’s arguments focus
       on the nature of a wrongful-death action, we begin our analysis with an overview of the
       Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)).
¶ 32        At common law, no cause of action existed to recover damages for the wrongful death
       of another, and a cause of action abated at the death of the injured party. Williams v.
       Manchester, 

 (2008). Thus, “ ‘it was cheaper for the defendant to kill the
       plaintiff than to injure him.’ ” 

 (quoting Prosser & Keeton on Torts § 127, at 945 (W. Page
       Keeton et al. eds., 5th ed. 1984)). In 1853, however, the legislature adopted the Injuries Act
       (

), now known as the Wrongful Death Act, creating a new cause of action
       for pecuniary losses suffered by the deceased’s spouse and next of kin by reason of the death
       of the injured person. Nudd v. Matsoukas, 

 (1956).
¶ 33        Section 1 of the Act provides in relevant part:
                “Whenever the death of a person shall be 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 and recover damages in respect thereof, then
                and in every such case the person who or company or corporation which would have
                been liable if death had not ensued, shall be liable to an action for damages ***.” 740
                ILCS 180/1 (West 2006).
       Although section 2 provides that every wrongful-death action shall be brought by and in the
       names of the “personal representatives” of the deceased, the action is filed for the “exclusive
       benefit of the surviving spouse and next of kin of such deceased person.” 740 ILCS 180/2
       (West 2006). Thus, the personal representative in a wrongful-death claim is “merely a
       nominal party to this action, effectively filing suit as a statutory trustee on behalf of the
       surviving spouse and next of kin, who are the true parties in interest.” Glenn v. Johnson, 

 (2002). See also Pasquale v. Speed Products Engineering, 

 (1995) (statutory requirement that wrongful-death action be brought by and in the name
       of the personal representative serves to avoid a multiplicity of suits by the next of kin, and
       ensures that the interests of all the beneficiaries are protected).
¶ 34        A wrongful-death action is perhaps best understood when contrasted with an action under
       our so-called “Survival Act,” now section 27-6 of the Probate Act of 1975. 755 ILCS 5/27-6
       (West 2006). The Survival Act allows an action (such as a claim under the Nursing Home
       Care Act) to survive the death of the injured person. Vincent v. Alden-Park Strathmoor, Inc.,
       

 (2011); National Bank of Bloomington v. Norfolk & Western Ry. Co.,
       

 (1978). Whereas the Wrongful Death Act created a new cause of action
       that does not accrue until death, the Survival Act simply allows a representative of the
       decedent to maintain those statutory or common law actions that had already accrued to the


                                                 -8-
       decedent prior to death. Wyness v. Armstrong World Industries, Inc., 

       (1989). In other words:
              “A survival action allows for recovery of damages for injury sustained by the
              deceased up to the time of death; a wrongful death action covers the time after death
              and addresses the injury suffered by the next of kin due to the loss of the deceased
              rather than the injuries personally suffered by the deceased prior to death.” 

.
       With this background we turn to defendant’s arguments.

¶ 35                            Section 2.1 of the Wrongful Death Act
¶ 36        Defendant directs our attention to section 2.1 of the Wrongful Death Act, which describes
       a wrongful-death action as an “asset” of the decedent’s estate. 740 ILCS 180/2.1 (West
       2006). Section 2.1 provides in pertinent part:
                “In the event that the only asset of the deceased estate is a cause of action arising
                under this Act, and no petition for letters of office for his or her estate has been filed,
                the court, upon motion of any person who would be entitled to a recovery under this
                Act, and after such notice to the party’s heirs or legatees as the court directs, and
                without opening of an estate, may appoint a special administrator for the deceased
                party for the purpose of prosecuting or defending the action.” 740 ILCS 180/2.1
                (West 2006).
       Based on this provision, defendant argues that the wrongful-death action plaintiff filed
       against it is an asset of Gott’s estate that Gott could and did limit when she entered into the
       arbitration agreement. Plaintiff counters that a wrongful-death action does not belong to the
       decedent, noting that the proceeds of a wrongful-death action do not pass through the
       decedent’s estate.
¶ 37        When construing a statute, the primary objective is to ascertain and give effect to the
       intent of the legislature, the language of the statute being the best indicator of such intent.
       Kean v. Wal-Mart Stores, Inc., 

 (2009). Words and phrases should not
       be considered in isolation. Sandholm v. Kuecker, 

. Rather, the language
       in each section of the statute must be examined in light of the statute as a whole (id.), which
       is construed in conjunction with other statutes touching on the same or related subjects (In
       re B.L.S., 

 (2002)). Legislative intent may be ascertained not only by
       examining the statutory language, but by considering the reason and necessity for the law,
       the evils to be remedied, and the objects and purposes to be obtained. People v. Lucas, 

 (2008).
¶ 38        Applying these principles in the present case, we observe that although section 2.1 plainly
       refers to a wrongful-death action as an “asset of the deceased estate” (740 ILCS 180/2.1
       (West 2006)), the legislature does not treat a wrongful-death action like other assets of the
       deceased’s estate. Pursuant to the Probate Act, assets of a deceased’s estate are subject to the
       claims of creditors and chargeable with the expenses of estate administration. 755 ILCS 5/18-
       14 (West 2006). With respect to a testate estate, assets of a deceased’s estate are distributed
       in accordance with the deceased’s will (755 ILCS 5/4-13 (West 2006)), and in the case of an
       intestate estate, according to the rules of descent and distribution (755 ILCS 5/2-1 (West

                                                   -9-
       2006)). These rules generally provide that an intestate estate is distributed one-half to the
       surviving spouse and one-half to the decedent’s descendants per stirpes. 

¶ 39       Under the Wrongful Death Act, however, amounts recovered in a wrongful-death action
       are not made subject to the provisions of the Probate Act. Rather, such amounts shall be
       distributed “to each of the surviving spouse and next of kin of such deceased person in the
       proportion, as determined by the court, that the percentage of dependency of each such
       person upon the deceased person bears to the sum of the percentages of dependency of all
       such persons upon the deceased person.” 740 ILCS 180/2 (West 2006).
¶ 40       The import of the distribution provision in the Wrongful Death Act was recognized by
       this court just a few short years after the Act’s adoption. At that time, the Act provided that
       amounts recovered “shall be distributed to such widow and next of kin in the proportion
       provided by law in relation to the distribution of personal property left by persons dying
       intestate.” 

, § 2. We observed:
               “The legislature intended that the money recovered should not be treated as a part of
               the estate of the deceased. They designed to exclude creditors from any benefit of it,
               and to prevent its passing by virtue of any provisions of the will of the deceased. The
               personal representative brings the action, not in right of the estate, but as trustee for
               those who had a more or less direct pecuniary interest in the continuance of the life
               of the deceased, and who had some claims, at least, upon his or her natural love and
               affection.” City of Chicago v. Major, 

 (1857).
       Although the Wrongful Death Act has undergone various amendments during its long
       history, this court’s observation that the “legislature intended the money recovered should
       not be treated as a part of the estate of the deceased” remains true today by virtue of the Act’s
       express directive, set forth in section 2, regarding distribution of amounts recovered under
       the Act.
¶ 41       Our analysis of the issue before this court is also informed by this court’s opinion in
       McDaniel v. Bullard, 

 (1966). There we held that a pending action under the
       Wrongful Death Act does not abate upon the beneficiary’s death, but is subject to the
       provisions of the Survival Act. McDaniel, 

. Thus, under McDaniel, the
       right to receive wrongful-death benefits is an asset of the estates of the next of kin, should
       they die; it is not an asset of the estate of the decedent who is the subject of the wrongful-
       death action. National Bank of Bloomington v. Podgorski, 

 (1978).
       McDaniel is consistent with our observation in Major, quoted above, that the “personal
       representative brings the action, not in right of the estate, but as trustee for those who had
       a more or less direct pecuniary interest in the continuance of the life of the deceased.”
       (Emphasis added.) Major, 

.
¶ 42       We conclude that a wrongful-death action is not a true asset of the deceased’s estate. That
       said, we are constrained to give effect to the statutory language in section 2.1. See Sheffler
       v. Commonwealth Edison Co., 

 (“statute should be construed, if
       possible, so that no word is rendered meaningless or superfluous”). We find guidance in our
       appellate court’s opinion in In re Estate of Savio, 

 (2009). There the
       appellate court considered whether an estate could be reopened following the discovery, after


                                                 -10-
       additional autopsies of the decedent, of a wrongful-death action. The former executor of the
       decedent’s estate, who was also the decedent’s ex-husband, objected, arguing in relevant part
       that a wrongful-death action is not an asset of the decedent’s estate and, therefore, the estate
       could not be reopened. See 755 ILCS 5/24-9 (West 2006) (providing that decedent’s estate
       may be reopened “to permit the administration of a newly discovered asset”).
¶ 43       To determine whether the wrongful-death action was an asset of the decedent’s estate,
       the appellate court considered wrongful-death law in Illinois, including section 2.1 of the
       Wrongful Death Act, on which defendant here relies. The appellate court stated:
                “It is clear that under Illinois law, a wrongful death claim may only be brought by the
                personal representative of the decedent. See 740 ILCS 180/2 (West 2006); Pasquale,
                

 ***. Moreover, section 2.1 of the Wrongful Death Act specifically
                references a cause of action for wrongful death as being an asset of the decedent’s
                estate. See 740 ILCS 180/2.1 (West 2006). *** The distinction to be made here is
                one of purpose. A wrongful death claim is not an asset of a decedent’s estate for the
                purpose of whether it may be used to satisfy the claims of creditors of the estate. See
                Berard v. Eagle Air Helicopter, Inc., 

, 781 *** (1994). However,
                a newly discovered wrongful death claim is an asset of a decedent’s estate for the
                purpose of whether the estate may be reopened under section 24-9 [of the Probate
                Act] ***. See 740 ILCS 180/2.1 (West 2006). Therefore, we affirm the portion of the
                trial court’s ruling granting the petition to reopen Savio’s estate.” Savio, 

.
¶ 44       We agree with the Savio opinion that whether a wrongful-death action is an “asset of the
       deceased estate” (740 ILCS 180/2.1 (West 2006)) is a matter of “purpose.” The language in
       section 2.1 of the Wrongful Death Act, and the language in the statute as a whole, does not
       evince an intent by the legislature to treat a wrongful-death action as an asset of the
       deceased’s estate for the purpose defendant urges, i.e., to allow the deceased to control the
       forum and manner in which a wrongful-death claim—in which the deceased has no
       interest—is determined. Rather, the statutory language indicates that the “asset” label
       adopted by the legislature is intended to facilitate the filing and prosecution of a wrongful-
       death claim. See also In re Estate of Fields, 

, 54 n.2 (Mo. Ct. App. 1979)
       (applying Illinois law and observing that the reference in section 2.1 to a wrongful-death
       action as an estate asset is “simply legislative shorthand or acknowledgment of the
       procedural legal fiction that, after death, an administrator can be appointed only if there is
       an estate subject to possible administration,” but “substantively the [wrongful-death] action
       is not a general asset of the decedent’s estate”).
¶ 45       To the extent the parties’ arguments suggest that an ambiguity exists in section 2.1, we
       will consider legislative history. See In re D.D., 

, 419 (2001) (noting that only
       when the meaning of an enactment cannot be ascertained from the language may a court
       resort to other aids for construction). Section 2.1 was adopted in 1977. Pub. Act 80-752 (eff.
       Sept. 16, 1977). Although this section was enlarged over the years, the language at issue here
       has remained intact since its adoption. Compare 740 ILCS 180/2.1 (West 2006), with Pub.
       Act 80-752 (eff. Sept. 16, 1977). The legislative history indicates that the intent of this new
       provision was to “make it more convenient” to bring a wrongful-death action, and “cut the

                                                  -11-
       red tape” by permitting a court to appoint a special administrator who could prosecute the
       action without opening an estate. 80th Ill. Gen. Assem., House Proceedings, May 3, 1977,
       at 142 (statements of Representative Beatty). Representative Beatty’s statements reinforce
       our conclusion that the legislature denominated a wrongful-death action an “asset of the
       deceased estate” for the primary purpose of facilitating the filing and prosecution of such an
       action.
¶ 46       For the foregoing reasons, we reject defendant’s argument that the wrongful-death action
       filed by plaintiff is an asset of Gott’s estate that she could limit via the arbitration agreement.

¶ 47                        Derivative Nature of Wrongful-Death Action
¶ 48        In urging this court to hold that the wrongful-death action is subject to arbitration,
       defendant also relies on the so-called “derivative” nature of a wrongful-death action.
¶ 49        Liability under section 1 of the Wrongful Death Act “depends upon the condition that the
       deceased, at the time of his death, had he continued to live, would have had a right of action
       against the same person or persons for the injuries sustained.” Biddy v. Blue Bird Air Service,
       

 (1940). Accord Varelis v. Northwestern Memorial Hospital, 

 (1995); Williams, 

. If the deceased had no right of action at the
       time of his or her death, then the deceased’s personal representative has no right of action
       under the Wrongful Death Act. Id.; Biddy, 

. In this sense, a wrongful-death
       action is said to be “derivative” of the decedent’s rights. Varelis, 

. The early
       case of Mooney v. City of Chicago, 

 (1909), is illustrative.
¶ 50        In Mooney, the decedent, Edward Dillon, was injured while driving a wagon for his
       employer when the wagon hit a pothole. Dillon settled his personal injury action with his
       employer, releasing him from all liability. Following Dillon’s death, allegedly from those
       injuries, the administrator of Dillon’s estate filed a wrongful-death action against the city for
       maintaining the streets in a dangerous condition. The appellate court expressed the opinion
       that the release executed by Dillon had no relation to the case and was erroneously admitted
       into evidence. Mooney, 

. We disagreed, explaining that the administrator’s
       right to maintain an action under the statute was dependent upon Dillon’s right to sue the city
       at the time of his death, but “if Dillon had released the cause of action the statute does not
       confer upon his administrator any right to sue.” 

. See also Varelis, 

       (following Mooney and holding that a wrongful-death action could not be pursued where the
       decedent, during his lifetime, obtained a judgment in a personal injury action based on the
       same occurrence).
¶ 51        Although cases like Mooney and Varelis involve instances where the decedent’s personal
       injury claim was settled in some manner during his lifetime, no legal significance attaches
       to the particular reason why a decedent’s claim would have been barred had he or she lived.
       If the decedent could not have maintained a personal injury action at the time of death, then
       no wrongful-death action can be maintained based on that injury and the death that ensued.
       

.
¶ 52        Defendant argues that just as a decedent’s settlement of a personal injury action
       constitutes a complete bar to a wrongful-death action based on the same occurrence, Gott’s

                                                 -12-
       agreement to arbitrate disputes with defendant limits the wrongful-death action in the same
       manner. Defendant relies on case law from several of our sister states generally holding that
       because a wrongful-death action is derivative of the decedent’s personal injury action, a
       wrongful-death action is subject to an arbitration agreement entered by the decedent. See In
       re Labatt Food Service, L.P., 

 (Tex. 2009) (collecting cases).
¶ 53       Plaintiff argues that the derivative nature of a wrongful-death action does not mean that
       she is subject to any and all contractual limitations—such as an agreement to arbitrate—that
       are applicable to the decedent. See Bybee v. Abdulla, 

 (Utah 2008) (rejecting
       argument that because decedent is master of his personal injury action he may, by contract,
       expose his unwilling heirs to any imaginable defense to their wrongful-death action).
       Plaintiff further responds that, as a nonparty to the arbitration agreements, she cannot be
       made to arbitrate the wrongful-death action, which does not belong to Gott’s estate. See
       Finney v. National Healthcare Corp., 

 (Mo. Ct. App. 2006) (holding
       that decedent’s daughter, who was a nonparty to the arbitration agreement, did not stand in
       the shoes of the decedent with respect to a wrongful-death action because such action did not
       belong to the decedent or decedent’s estate).
¶ 54       Defendant overstates the significance of the derivative nature of a wrongful-death action.
       Although a wrongful-death action is dependent upon the decedent’s entitlement to maintain
       an action for his or her injury, had death not ensued, neither the Wrongful Death Act nor this
       court’s case law suggests that this limitation on the cause of action provides a basis for
       dispensing with basic principles of contract law in deciding who is bound by an arbitration
       agreement.
¶ 55       Arbitration is a “creature of contract” (Board of Managers of the Courtyards at the
       Woodlands Condominium Ass’n v. IKO Chicago, Inc., 

 (1998)), and under
       basic principles of contract law, only parties to the arbitration contract may compel
       arbitration or be compelled to arbitrate (Gingiss International, Inc. v. Bormet, 

 (7th Cir. 1995); Vukusich v. Comprehensive Accounting Corp., 

       (1986)). The FAA’s policy favoring arbitration does not alter these principles. As the
       Supreme Court has stated:
               “The FAA directs courts to place arbitration agreements on equal footing with other
               contracts, but it ‘does not require parties to arbitrate when they have not agreed to do
               so.’ Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior
               Univ., 

 (1989). *** ‘Arbitration under the [FAA] is a matter of
               consent, not coercion.’ 

. *** It goes without saying that a contract cannot
               bind a nonparty.” Waffle House, 

.
       See also Grundstad v. Ritt, 

, 205 n.5 (7th Cir. 1997) (“the federal policy
       favoring arbitration applies to issues concerning the scope of an arbitration agreement
       entered into consensually by contracting parties; it does not serve to extend the reach of an
       arbitration provision to parties who never agreed to arbitrate in the first place” (emphasis
       omitted) (citing McCarthy v. Azure, 

 (1st Cir. 1994)).
¶ 56       In the present case, although the arbitration agreements purport to bind not only Gott, but
       also her “successors, assigns, agents, attorneys, insurers, heirs, trustees, and representatives,


                                                 -13-
       including the personal representative or executor of *** her estate,” no dispute exists that the
       only parties to the agreements are Gott and defendant. Although plaintiff signed the 2005
       arbitration agreement, she did so only as Gott’s legal representative. Accordingly, plaintiff
       is bound to arbitrate only to the extent that plaintiff is acting in Gott’s stead.
¶ 57        For purposes of count I of the complaint, which alleges a violation of the Nursing Home
       Care Act by defendant pursuant to our survival statute, plaintiff is bound to arbitrate that
       claim, which had already accrued to Gott prior to death and which is brought for the benefit
       of Gott’s estate. For purposes of count II, the wrongful-death action, plaintiff is not acting
       in Gott’s stead. As already discussed, a wrongful-death action does not accrue until death and
       is not brought for the benefit of the decedent’s estate, but for the next of kin who are the true
       parties in interest. Plaintiff, as Gott’s personal representative in the wrongful-death action,
       is merely a nominal party, effectively filing suit as a statutory trustee on behalf of the next
       of kin. See Glenn, 

. Plaintiff is not prosecuting the wrongful-death claim
       on behalf of Gott, and thus plaintiff is not bound by Gott’s agreement to arbitrate for
       purposes of this cause of action.
¶ 58        Defendant’s reliance on the Supreme Court’s recent decision in Marmet Health Care
       Center, Inc. v. Brown, 

, 

 (2012) (per curiam), as a basis for
       compelling arbitration of the wrongful-death claim, is misplaced. Marmet involved three
       negligence suits against nursing homes in West Virginia. In each case a family member of
       the deceased patient signed an agreement that contained an arbitration clause. The West
       Virginia Supreme Court held that the FAA does not preempt that state’s public policy against
       predispute arbitration agreements that apply to personal injury or wrongful-death claims
       against nursing homes, and thus, the arbitration clauses would not be enforced. 

 at ___,
       

. In two of the cases, the West Virginia court proposed an alternative
       holding, namely, that the arbitration clauses were unconscionable. 

 at ___, 

.
¶ 59        The Supreme Court vacated the West Virginia decision. 

 at ___, 

.
       Noting that the FAA’s text includes no exception for personal injury or wrongful-death
       claims, the Supreme Court 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.” 

 at ___, 

. Unclear as to the
       extent the West Virginia court’s alternative holding was influenced by its invalid, categorical
       antiarbitration rule, the Supreme Court remanded the case so that the West Virginia court
       could consider whether the arbitration clauses were unenforceable under state common law
       principles that are not specific to arbitration and preempted by the FAA. 

 at ___, 

.
¶ 60        Our holding in the present case that plaintiff, as a nonparty to the arbitration agreements,
       cannot be compelled to arbitrate a wrongful-death claim that does not belong to the decedent
       is not contrary to Marmet. Our holding, unlike the West Virginia court’s holding, is not
       based on a categorical antiarbitration rule; it is based on common law principles governing
       all contracts. Marmet recognized the significance of common law contract defenses when it
       returned that case to the West Virginia court to consider the validity of the arbitration clauses

                                                  -14-
       under that state’s common law. Moreover, Marmet noted that the FAA “ ‘requires courts to
       enforce the bargain of the parties to arbitrate.’ ” (Emphasis added.) 

 at ___, 

 (quoting Dean Witter Reynolds Inc. v. Byrd, 

 (1985)). Plaintiff here
       is not a party to the bargain to arbitrate.
¶ 61       We agree with the decision of the courts below that plaintiff cannot be compelled to
       arbitrate the wrongful-death claim against defendant.

¶ 62                                     CONCLUSION
¶ 63      For the reasons stated, we affirm in part and reverse in part the judgment of the appellate
       court, and remand this cause to the trial court for further proceedings.

¶ 64      Affirmed in part and reversed in part.
¶ 65      Cause remanded.




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