Zombie Law: Arbitration Agreements Bind the Dead and the Undead

By Robyn Hagan Cain on August 15, 2012 | Last updated on March 21, 2019

Nursing homes. We can't live without them, and sometimes we can't live in them either. So how can you resolve a wrongful death claim against a nursing home?

The answer depends on whether the patient who resided at the home signed an arbitration agreement, according to the Eleventh Circuit Court of Appeals.

For example, Edith Entrekin was admitted to Westside Terrace, a nursing home in Dothan, Alabama after suffering a major heart attack. Upon admission, she signed a contract requiring the arbitration of all claims or disputes that she or the executor of her future estate might have against the nursing home.

Specifically, the contract provided:

  • All disputes shall be resolved by binding arbitration.

  • The arbitrator(s), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, formation, or scope of this Agreement.

  • The dispute resolution agreement shall survive the death of the resident ... and shall apply to all disputes whether they arise or are asserted before, during, or after the resident's stay at the nursing home.

Ten days after signing the dispute resolution agreement, Entrekin suffered another major heart attack and died. The executor of her estate later filed this lawsuit against Westside Terrace, seeking damages under Alabama's wrongful death statute. The complaint alleged that Westside Terrace negligently failed to treat Entrekin's heart condition, which "resulted in her untimely, needless, and avoidable death."

Westside Terrace denied liability and moved to compel arbitration.

Entrekin's executor claimed that that the dispute resolution agreement didn't apply to the wrongful death claim, reasoning that it was not her claim or the claim of her estate because neither the claim nor her estate existed when she signed the agreement. Since the wrongful death claim never belonged to Entrekin or her estate, she never had the authority to sign a contract requiring arbitration of the claim.

The district court sided with Entrekin's estate. The Eleventh Circuit Court of Appeals reversed.


The Alabama Supreme Court has heard a number of cases involving executor-advocated wrongful death suits that challenged binding arbitration agreements, (most notably Briarcliff Nursing Home, Inc. v. Turcotte and Carraway v. Beverly Enterprises Alabama, Inc).

The weight of Alabama precedent supports the idea that executors must arbitrate a wrongful death claim if there was a valid arbitration agreement between the decedent and the nursing home, so Entrekin's executor was similarly ordered to arbitrate.

Whether or not your client's wrongful death claim would be subject to binding arbitration would turn on state law, but the Eleventh Circuit demonstrates in this case that a dispute resolution agreement can bind both the living and the dead.

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