Court Clerk: SJC-12714 GGNSC
Administrative Services LLC v Jackalyn M. Schrader.
-: Mr Vail, good morning.
-: Morning Mr Chief Justice, may it please the court.
I'm John Vail for the Plaintiff.
If I could, I'd like to reserve three minutes for rebuttal.
-: We don't generally allow that
but we'll see if anything emerges.
-: First, I'm, of course, I'm aware of the previous case
and I wanna make clear that we have no release
such language at issue here.
We have the issue of the ownership of the claim.
And no owner of the Wrongful Death Claim here
has agreed to arbitrate that claim.
No agent that they authorized agreed on their behalf
to arbitrate that claim.
They could, today, agree to arbitrate their claim.
There's no barrier to arbitration.
-: It's a little ironic, isn't it that.
So the person who's actually bringing the suit,
is the one who put her into the nursing home, right?
In this case, so the--
-: Who was her agent to do that.
-: And she had the Power of Attorney to sign that
and now-- -: That's correct.
-: And in those circumstances, she's sort of the actor.
It just seems like a bad case
to kinda make the argument, isn't it?
-: But she signed this agreement only in her capacity
as agent for, and had no authority
to sign for beneficiaries in general
and I think beneficiaries in general has to be an issue here
but as you interpret this statute and try and make it whole
and I'm gonna.
But they don't want to arbitrate and they don't have to
because that's how property works
and that's how contracts work.
This is their property.
It's theirs to alienate if they choose to
and they haven't chosen to.
-: So help me to understand pragmatically.
I gather if the Executor of the Estate
wishes to recover for pain and suffering,
that is a matter that is arbitrable.
-: We have conceded that, yes.
-: Okay, so that means that if you proceed,
there could be arguably two separate actions.
What if the arbitration goes first?
-: Well, I think the arbitration should not go first
under the Beacon Theaters' rationale.
What Beacon Theaters tells you is
when, constitutionally, when you have two matters
that are parallel
and one of them involves the right to jury trial,
that the matter that does not
involve the right to jury trial should come second.
Precisely to protect the right to jury trial
in the fact finding, in this case,
on behalf of the people who do it.
Now, if there's a preclusion,
if preclusion doctrines are to apply here,
that would suggest that the jury trial matter go first
and the arbitral matter be stayed pending resolution
of the jury matter.
-: And that would mean that through preclusion,
the issue of negligence would be resolved,
and the jury action, the only issue would be,
if there were negligence, what the damages were
for the arbitration.
-: Presumably yes, because you do recognize that,
all of the final judicial decisions
are generally recognized in arbitral forums.
The other way around is untenable
because we've had the position here
where my colleagues have argued that,
that somehow,
if you had to do it that way,
if the Federal Arbitration Act
compels one case to be arbitrated,
that you have to arbitrate everything.
And that's exactly not what the FAA does.
The FAA realizes early on that it's a weird exception
to the idea of judicial economy
and it says, that's the price we pay
for having parallel actions pending,
is the price you can pay
for enforcing arbitration agreements.
-: Another pragmatic question.
So, if you had a situation in which you have a nursing home
which was negligent and therefore allowed the patient
to fall and break her hip and she was incapacitated,
that claim would be arbitrated, correct?
-: If-- -: If she were still alive?
-: If she were still alive and she signed,
she or her authorized agent
signed the arbitration agreement, yes.
-: And then if she died as a result of complications
arising from that, what would happen then?
You're in the middle of an arbitration,
you may have completed an arbitration.
How would that play out?
-: Her claim would be pending
in the arbitral forum when she died.
So presumably there's a procedure in the arbitral forum
to convert it to the Estate's Claim.
And then you would raise the question,
if the subsequent claim were filed,
I don't believe that Beacon Theaters would require it.
I think Beacon Theaters applies to the cases
that are simultaneous or pending simultaneously.
I believe the prior case pending doctrine
would trump in that case.
-: Are you married to the result of the first case?
Could there be,
is there an argument that says,
the release applies to the heirs
but the arbitration agreement does not?
-: The first case,
the Dardy case?
-: Yeah. -: That's right here?
I think the Dardy case is reconcilable with,
and I think that,
I can try to respond to some the concerns you had
in the Dardy argument because I think
one of the things to do
is focus on the language of section two
and if you interpret the language of section two
about circumstances such as
the deceased could have recovered.
To refer to the tort itself
and not any separate actions of either
the decedent or the tortfeasor
but to the conduct that gives rise.
-: Why wouldn't they include it in clause one as well then?
And why in four and five do they keep--
-: Clause one addresses the survival claim
in gross negligence.
-: Not really, it just says negligence
and it doesn't have that language the Chief read
and in the second clause it does.
Because if it applies to clause one,
you got a easy winner, don't you?
I'm just trying to.
Well you got an easy loser actually.
(laughing)
So I'm just trying to make sure I understand
why you say it doesn't apply to clause one.
-: Well I think again to,
Clause one is dealing with
liability to the decedent.
-: So it says negligence.
-: But it's dealing with liability to the decedent.
-: All of them deal-- -: Not to their hers.
-: No it's not, it's dealing with.
It's a, I don't think so, but maybe I'm misreading it
because honestly, the Chief caught something I didn't.
-: I think we can excuse both of us if we have difficulty
making some sense of the statutory language.
-: But unfortunately, that may be at the heart
of both of these cases, right?
-: Well again, not this case because there's no release here.
There's no release.
There's no language affected.
-: But if a negligence claim is not separable
from the negligence that caused the death of the descendant,
you're out of luck.
-: Well you have over a hundred years of jurisprudence
saying that it is separate
from the McCarthy case forward at least.
The key thing here is that the decedent has no power
to release the claim.
The decedent has no power to settle the claim.
That's been clear.
-: If the statute itself does,
if two applies to one and you don't have a negligence action
unless the decedent would have an action,
you're in real trouble here.
-: I don't think so.
You have settled this in your jurisprudence.
This is not an open question.
This is settled-- -: Which case settled?
-: Interpretation of the statute.
Well, McCarthy for one.
McCarthy is the 1914 case.
Beausoleil describes these cases
and cites these cases indicum.
You discussed this matter in Webb v. Gaudette.
But I think the law is clear
that this belongs to
the decedents and the law is clear.
Excuse me, to the beneficiaries.
The law is clear that the decedent has no power
to settle the claim.
The decedent settling the decedent's claim
has no effect on the existence
of the claim of the beneficiaries.
That is crystal clear.
-: The argument we heard moments ago is,
even if that's true.
If the decedent can't settle a claim
that belongs to the heirs,
what they can do is they can say.
Okay in this circumstance,
there's a common law duty to me,
but I'm signing this
so you don't have any common law duty to me.
Wait one sec, full claim of the argument.
So now, the decedent couldn't give away
the cause of action of the heirs,
but what the decedent gave away was one of the elements
of the cause of the action of duty.
I'm just saying that's the argument,
I'm not saying it's right.
-: Yeah, I don't believe that,
I think that the right way to interpret that
is to say that the statute, by designating the beneficiaries
as the owners of a cause of action,
has recognized that a separate duty is owed to them
and you make sense of this whole mess by acknowledging that
and acknowledging just as the decedent had no power
to compromise their claim,
it had no power to release the tortfeasor
from a duty it owed to the beneficiaries.
-: So if you were a nursing home
which wanted a comprehensive arbitration cause,
you'd have to get not only the nursing home resident
or his or her Power of Attorney to sign it,
but you'd also have to get each of the heirs to sign it.
-: If you wanted a pre-dispute arbitration agreement,
you could still have a post-dispute arbitration agreement
once those persons are identified.
Those persons are not identified prior to death
because one element of their cause of action is the death.
And you have to determine--
-: So are you saying that a nursing home
could then never get an arbitration agreement
with regard to the wrongful death matter?
-: I think the nursing home could search out people
and find them for persons it believed would be heirs
or who were heirs at a given time
knowing that there's this small possibility
that could shift over time.
But that's their duty.
That's how contracts work.
It's just like if you're a Real Estate Developer
and you wanna develop a piece of property.
You can't go out and say,
"Well you know, you 62 people live on this block,
"I wanna redevelop this block
"and I've decided I'm gonna do that."
You have to get contracts with each one.
And that's what a nursing home has to do
if it wants, again, a pre-dispute arbitration clause,
there is no current barrier to arbitration of this clause,
of this cause to volitional arbitration of this case.
We simply don't express the volition.
-: And what happens if the resident has two sons
and one son signs it and one does not?
-: I think one son could bind himself to arbitrate his claim.
Now this raises obviously,
we come up against the procedural question
of the preference of the legislature
that these be resolved in one suit with one thing.
But it's the Federal Arbitration Act.
The Federal Arbitration's Act requirement
that the arbitration clauses be enforced.
That's the barrier to doing that.
It's not the ownership interest
of the persons in their claims.
Justice Gaziano: Can I ask you a silly question?
-: Of course.
-: I thought that this was a certified question
from the Federal Court.
Is it not a certified question?
Mr Vail: Yes it is.
-: And the certified question has to do with whether or not
the wrongful-death claim of her heirs
is derivative or independent
of her own cause of action, right?
Mr Vail: That's correct.
-: And isn't that basically what's at issue
in the other case?
Whether the claim is a wrongful death claim
as a derivative or independent?
Mr. Vail: It's in the Dardy case.
-: Yes, the one we just did.
-: It's in part an issue there but again
in the Dardy case you can hold that the claim is independent
but that the release was operative
if you find that no Duty was owed
by the tortfeasor to the beneficiaries.
That's not an issue in this case.
-: [Mr Chief Justice] Okay thank you.
-: You're welcome.
Chief Justice: Mr Desmond.
-: Good morning Mr. Chief Justice and Associate Justices,
may it please the court.
I wanna first correct something that was said.
In terms of the Order of Proceedings,
if one case were arbitrated et cetera,
The Massachusetts arbitration act requires
that where a case must be arbitrated
in their remaining claims,
that the arbitration go first
and that the other claims be stayed
pending the result of the arbitration
which is what the opposite of what my brother said.
That's by statute.
-: Would that work under his theory though?
Because his theory would be that those claims
are not even covered by that because they're independent.
-: It absolutely works.
In Miller versus Carter which is a 2007 case
decided by this court with the same Defendant involved
in a similar issue where Dr Carter
was a Doctor who was accused of malpractice,
my nursing home client heard the arbitration agreements,
and this court held that the arbitral claims
that Mr Vail has now considered must be arbitrated.
That is the claims that belongs to the Estate
which are wrongful-death, conscious pain and suffering,
punitive damages must be arbitrated.
Those would have Res Judicata effect
on any subsequent action if the court went that way,
however, the biggest difference here in this case
between this case and the one that we heard before us
is that the Wrongful Death Statute
and the issue in this case is the procedural mechanism.
The Wrongful Death Statute says
that there shall be a single action very clearly
and it is uncontroverted here in open court
that the wrongful-death action of the Estate
which was signed by Miss Schrader on behalf of her mother
as the Attorney-in-Fact.
That case will be arbitrated and the question remaining
is whether or not a separate action can be held
arising from the wrongful death action.
And the Wrongful Death Statute is very clear.
There shall an action, singular.
And this court has been focusing on
the first five paragraphs which are the triggers
for wrongful death damages.
The first part of the statute says there were five,
basically coupled with conduct actions
that trigger the three remedies
but the last part of the statute is the key one
Which it says that all of those actions,
whether it arises out of the death,
or recklessness or common carrier,
and then it describes the damages,
all of those claims shall be considered in action
brought by the Executor and Mr Chief Justice
asked a question, what if there's two beneficiaries?
And I'm thinking here, what if there are seven?
And one wants to litigate in
the home State of the Defendant,
which in this case is Texas,
and one wants to litigate in the forum in Delaware
where they're incorporated
and one wants to litigate in Federal Court
because it's diversity.
One wants to litigate in State Court
because it's a State Court action.
And one wants to be jury-waived
and one wants to arbitrate and the last one's indifferent.
Well they had that property right.
In our case we're not discussing whether or not
there's a waiver in the claim.
The question is, what is this forum
that single action must be brought in?
In this case where we have two or six,
as it happens often with the children,
family members, the wife and kids of the decedent,
you may have six different claims that are independent
inasmuch as that wife has a consortium claim
for her loss of consortium, society,
companionship and advice under the Wrongful Death Statute.
Which is different than the son who was at the bedside
and different than the daughter who was at the bedside
and certainly different than the son
who was the prodigal son.
They have different claims but they must be brought
in a single action brought by the Executor
and the Executor is the person that determines the forum
and the Executor in our case is bound
by the arbitration agreement, signed by the decedent
but in this case, by the decedent's Attorney-in-Fact,
who is also the beneficiary and the Executor of the Estate.
And those claims, and that's why we have a concession
that those claims must be arbitrated.
They will be arbitrated
and the statute does not allow room for a separate action.
Again if there are three different beneficiaries,
they don't get to pick three different forum
as the single action
and that's why this case must be arbitrated
including the claims of the beneficiaries.
-: The statute only says quote,
"Damages under this section shall be recovered
"in an action of tort by the Executor or Administrator
of the deceased".
-: Correct.
-: That's the language you're focusing on?
Mr Desmond: Correct, an action, and it says it twice.
-: But you threw in the word single.
-: Well, it says an action.
It's stated in the singular.
It doesn't say multiple actions may be brought.
It authorizes an action by an Executor.
In any wrongful death case,
the signature must come from the Executor.
I can't get a release of the beneficiaries claims
by direct claim by the beneficiary
because the beneficiary can't bring an independent claim.
The Executor brings the claim.
The Executor has the right to control the claim,
to answer the interrogatories,
to make demands and settlements, to hire Counsel.
It all comes through an action, singular.
And to the extent I didn't mean to mislead the court
about a singular action.
It's spoken in the singular,
two times consecutively in the statute.
-: But yet you say, that person is bound
by the arbitration agreement.
On what basis is that person, the Executor,
bound by the arbitration agreement?
-: Because that is the Directive of the decedent
who signed the agreement directing and waiving all claims
for his own, the Wrongful Death Claim in the--
-: How can he waive something that's not his or hers?
Mr Desmond: I'm sorry?
-: How can he or she waive something that is not his or hers
to begin with? -: Hasn't waived anything.
Again, the claims of the decedent,
There are two, first we have the five culpable conduct
that results in three classes of the images.
Two of which belong to the Estate.
Those are the claims that certainly must be arbitrated
and they have to be.
There's no waiver of the third claim.
There's no impact in any way on the substance of damages
that may be recovered.
The only limitation is given
that the statute only authorizes an action
brought by the Executor.
The Executor is bound
to arbitrate the Wrongful Death Claims.
-: So how do we answer the question
posed by the Federal Court whether the Wrongful Death Claim
of Emma Schrader's heirs are derivative or independent
of her own cause of action?
How do we answer that?
Mr Desmond: They are derivative.
-: Why?
-: They are derivative for a variety of reasons.
-: Of which of this procedure?
-: Because the sine qua non of a Wrongful Death Statute
is negligent act or culpable conduct to the decedent.
It's not a separate act of negligence to the beneficiaries.
In this court in four or five different contexts
has acknowledged that while technically independent,
the claims of symbiotic and the trigger for liability
is the single negligent act or reckless act to the decedent
that resulted in the decedent's death
and it is from that action that the other claims arise
and specifically in Sisson versus Lhowe,
a claim for personal injury and wrongful death of the court
described the consortium claims
under the Wrongful Death Statute as symbiotic
and we might be off into the land of semantics.
But the symbiotic claim, as this court has described
is related to a single set of operative facts.
And in the case in which
Your Honor actually asked the question,
what happens if during the arbitration, the decedent dies
and now you have a wrongful death claim?
That's Sisson versus Lhowe except it wasn't an arbitration,
it was in the context of a State Court Action
and after the death,
the plaintiff sought to amend the complaint
in contravention of the Statute of Repose
because the medical malpractice had occurred
more than four years before the incident.
And this court held that there is no difference in the claim
and specifically the court held that
for the purposes of the Statute of Repose
the term action which is the same term
we're dealing with here
can be seen as referring to the group of operative facts
and not of the various remedial claims based on the facts.
And that's what we have here, a symbiotic claim.
-: The Chief asked a question,
could the result in this case be different
from the result in the other case?
The other case they're saying
there's no liability whatsoever.
You're saying that you've got to go to arbitration.
Could we decide in your favor
and the opposite way in the other case
that they're not released and if, so how?
-: I think you could because at least in my case
and without having started the briefs in the other case.
In my case it's a simple issue
and Mr Vail's raised the issue of property rights
there is no waiver.
They've got every possible remedy
under the Wrongful Death Statute and arbitration
in a case that will be arbitrated brought by the Executor.
There's no issues of waiver or you don't have to get
to the issue of was there a release of Duty?
We acknowledge Duty.
We acknowledge--
-: But Justice Lenk's question is a derivative?
You say it is derivatives,
but they say they win in the other case
because it's derivative in his release
so I'm trying to understand how
we can reach the opposite result in two cases
if under both theories it's derivative.
-: I'm not advancing, the idea on the other case,
I can't speak to it..
-: I'm not saying you have to
but I'm trying to understand, is it possible?
And you suggested that it is
because we're not reading this waiver as broadly
but we are reading the derivative broadly in both cases.
-: Well the other cases that speak to whether
it's derivative are informative.
For instance Res Judicata applies.
That's Fiddler versus Parker.
In other words, if a claim is barred,
in other words, in my case if the arbitration
which under the Mass Arbitration Act must go forward first
then there is a defense verdict, the claim is barred.
Again, indicating that it is derivative.
You can't re-litigate the issue of negligence.
It's the same set of operative facts.
In Corcoran versus GE,
the wife's consortium claim was barred
because the husband's workers compensation claim
was deemed not to arise
out of the course and scope of employment.
She couldn't re-litigate it.
In Tobin versus Norwood,
the comparative negligence of the plaintiff
which may be more applicable to the other case.
That is a defense that if a plaintiff,
decedent in that case is 51% negligent
that the consortium plaintiffs are barred
under the Comparative Negligence Statute
because Chapter 231, Section 85,
says that it applies to wrongful death cases
and Tobin versus Norwood is this court's confirmation
of the fact that the claim is barred
by the Comparative Negligence Statute.
In Hallett versus the town of Wrentham,
this court said that although there are different claims
under the Wrongful Death Statute,
for the purposes of governmental immunity,
there is one statutory cap
that applies to both the Wrongful Death Claim
and the loss of consortium claims.
You can only get one cap if there are seven beneficiaries.
You don't get seven caps.
They split up the 100,000.
In all of those cases, in each one of those contexts'
is indicative of the fact that they are derivative
and again, whether the words are controlling,
that's what the court, that the Federal District.
The First Circuit Court of Appeal certified
and in this case after the trial of the Evidentiary Hearing
about enforceability of the arbitration agreement,
Judge Woodlock, I think it's footnote three,
of his decision said that it is derivative in that
it's the same set of operative facts
that in order to prove negligence
under clause one of the Wrongful Death Statute
or clause two, they're the same elements
in that you have Duty, breach, causation and damages.
Damages being the death of the resident.
He finds no distinction between those magic words
that this court has been understandably struggling with
in terms of why they're in sections two and four
but not one of three because they're the same elements
of proof in whether its negligence
or negligence under the circumstances
under which the defendant may have recovered.
-: Now if Mr Veil were allowed to speak on rebuttal
which he will not be, he would say there is a waiver.
There's a waiver to the right of the jury trial.
Why should they be bound by the waiver
of the right to a Jury Trial?
-: They don't have the right to decide it.
Under the statute the Executor determines
where that single action is filed.
They don't have a right as if we had the two
or the seven folks in terms of,
where we going to litigate this case?
Whether it's jury-waived or whether it's gonna be arbitrated
and I believe Judge Kafker sit in the first case today
that this legislature, we hope, writes workable statutes
and to have a workable statute here
under the Wrongful Deaths Statute,
there has to be a single action
because it has been before the court
but how many beneficiaries in this case?
The Wrongful Death Statute certainly doesn't contemplate
seven beneficiaries having seven different actions.
It says you cannot have that you'll have a single action.
So they're not wearing any substantive rights
because they don't have the right to waive.
It's the Executor who makes that decision.
Not the beneficiaries.
-: I'm really confused then, about why the Federal Court
is so interested in whether or not
it's derivative or independent.
-: I think because the cases from other jurisdictions
and they're cited in the brief.
That is how the other courts have determined.
-: And you think it's all settled in Massachusetts already?
-: What I think it's settled is Wrongful Death Act.
The clause of the statute that determines the outcome
of this case is settled.
There shall be a single action.
-: Would that be what was controlled by.
Would that be controlled by the order in a different case
with the logic in a different case by Judge Zobel?
-: I'm sorry--
-: Wasn't there different order
in a different cases by Judge Zobel
coming out a different way?
-: In a federal District court there was.
-: And so, how does this that affect this at all or not?
It just presents contrary opinion or?
-: It's contrary to Judge Woodlock who,
in his decision in this case, specifically disagreed
and identified why. -: But they're basically
based on the same underlying legal claim, right?
-: Yes.
-: Okay.
-: The last thing to answer your question, Your Honor,
about whether it's derivative,
I believe 41 States have considered whether or not
the consortium claims under a Wrongful Death Statute
are derivative or not.
27 of the 41 have decided that it is derivative.
And again that is the language that has been used.
Justice Gaziano: But it's not it settled
in Massachusetts, is it?
-: I don't think that the term
whether its derivative for certain purposes
has been specifically decided
and the question that I have is whether or not,
that's the real term that should be used.
-: But that is the term that Judge Woodlock
uses any certification, is it not?
-: Correct.
-: Where I asked can you decide that question?
-: Correct and I, for the reasons in the cases I cited,
I say that it is derivative
because it's the same elements of cause of action.
They're the same limitations on any recovery.
The same procedural defences apply.
The Statute of Repose et cetera.
Because it arises from the same set of operative facts
and that's what this court has held
and said that it is symbiotic.
Justices: Thank you.
-: Thank you, Judge.
Chief Justice: We'll do our morning break.