Mandatory Arbitration Clauses - 'Til Death Do Us Arbitrate?

November 2, 2011
By Parker Scheer LLP on November 2, 2011 11:54 AM |

Written by Attorney Susan M. Bourque

On September 9, 2011, in a matter of first impression for the Commonwealth of Massachusetts, the United State District Court (Zobel, D.J.) held that a mandatory arbitration clause, agreed to by a decedent, is not binding on the estate in connection with its claim for wrongful death. The case was brought, in part, by the parents of Lisa Tam Chung who was killed while on a student tour in Mexico organized by the defendant, The Chungs alleged that the defendant tour operator was negligent and legally responsible for the wrongful death of their daughter.

The defendant sought to dismiss the case citing the mandatory arbitration clause agreed to by Lisa when she booked the trip using the on-line registration form which stated, in pertinent part, "that any dispute...concerning my Trip, the Trip itself or any claim for damages due to injury or death which occurs on the Trip shall be resolved exclusively by binding arbitration." Based on this provision, the defendant insisted that the plaintiff was compelled to arbitrate their claim rather than have it heard by a jury. The Court disagreed, stating that because the wrongful death statute is not derivative of the decedent's claim, it would "be inconsistent with fundamental tenets of contract law to nonetheless hold that those beneficiaries, who did not sign an arbitration agreement, are bound by the decision of the decedent, whose estate holds no interest in this claim, to sign the arbitration clause." The Court relied upon similar holdings in other jurisdictions where this issue has been addressed.

This decision will have significant impact on the growing trend to include mandatory arbitration clauses in Nursing Home Contracts. Such clauses, which have been upheld as valid in Massachusetts, still apply to non-death cases where the plaintiff claiming injury is the one who signed the agreement. However, in the most serious of cases, where negligence is alleged to have caused a death, the Chung case may help to level the playing field by allowing families to pursue their wrongful death claims through the court system where the case can be decided by a jury of their peers.

If you or someone you know has been injured, learn more about your rights by contacting the Complex Personal Injury team for a free consultation, toll free, at (866) 414-0400. There is never a charge to discuss your potential case and all information is maintained in strict confidence.

Please see Father Dies at Patriot Stadium After Heated Argument with Stadium Security, Boys crushed by gate while playing at school and It's Time Massachusetts Was Accountable for the Injuries and Deaths it Causes for related personal injury posts.