In Mikoff v. Unlimited Development, Inc., 2024 IL App (4th) 230513 (February 1, 2024), the Fourth District Illinois Appellate Court affirmed in part and reversed in part an order compelling arbitration.
There, plaintiff filed a lawsuit against defendant, a skilled nursing facility, alleging that the defendant was responsible for the decedent’s premature death from Covid-19. The trial court granted defendant’s motion to compel arbitration and plaintiff appealed. The appellate court affirmed the trial court’s referral of decedent’s claims under the Survival Act to arbitration but reversed the referral of plaintiff’s Wrongful Death Act claims, explaining that under existing precedent the arbitration agreement signed by the decedent did not survive her death for the purposes of pursuing the Wrongful Death Act claim but that the agreement was enforceable for the Survival Act claims.
The court reasoned that 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 the 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. Thus, the plaintiff is not prosecuting the wrongful-death claim on behalf of the decedent’s estate, and thus plaintiff is not bound by the decedent’s agreement to arbitrate for purposes of the Wrongful Death cause of action.