FutureCare NorthPoint, LLC v. Peeler

ARTHUR, J. FutureCare NorthPoint, LLC, filed a petition to compel Valerie Peeler to arbitrate a wrongful death claim that Ms. Peeler had asserted in a separate lawsuit. FutureCare contended that Ms. Peeler should be required to arbitrate her wrongful death claim, because the decedent, Ms. Peeler’s mother, had signed an arbitration agreement upon being admitted to a FutureCare nursing facility. The circuit court denied FutureCare’s petition to compel arbitration. FutureCare appealed.

It presents an issue that both parties characterize as a matter of first impression in Maryland: “Whether wrongful death beneficiaries are bound by a valid and enforceable agreement signed by their decedent.” On its own motion, this Court raised the issue of whether a party has the right to appeal from an order denying a petition to compel arbitration when, as in this case, it is brought as an independent action, and not as a motion in the existing action ¹¹⁵ commenced by the person whom the party seeks to compel to arbitrate. On the threshold issue, we hold that an order denying an independent, freestanding petition to compel arbitration is a final judgment from which the aggrieved party has the right to appeal. On the merits, we hold that a decedent’s arbitration agreement ordinarily does not bind the decedent’s family members to arbitrate a claim under the Maryland wrongful death statute. Because the circuit court correctly refused to compel arbitration, we affirm the judgment.

Factual and Procedural Background A. The Arbitration Agreement Between FutureCare and Peeler’s Mother In February 2012, Phyllis Butz was admitted as a resident at the FutureCare NorthPoint skilled nursing facility in Baltimore County. At the time of her admission, Mrs. Butz executed a written agreement to resolve a broad range of potential controversies by binding arbitration pursuant to the Maryland Uniform Arbitration Act (MUAA). The scope of the agreement extended to “any action, dispute, claim or controversy of any kind ... now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with or relating to” the provision of services by FutureCare, acts or omissions of FutureCare’s agents, as well as “any survival action or wrongful death claim[.]” Another section of the agreement stated it would “inure to the direct benefit of and bind the parties and their respective personal representatives, heirs, successors and assigns, including ... all persons whose claims derive through, or on behalf of, the Resident, including those of any parent, spouse, child, guardian, executor, administrator, legal representative, or heir of the Resident, as well as any survivor or wrongful death claim [sic ]....” The agreement further stated that the parties were “each relinquishing and waiving their right under applicable law to have any claim decided in a court of law before a judge and/or a jury.” ¹¹⁶ While she was a resident at the facility, Mrs. Butz received medical care from FutureCare employees. Mrs. Butz died on March 24, 2012.

She was survived by her daughter, Ms. Peeler. In pre-litigation discussions, FutureCare informed Ms. Peeler of the arbitration agreement that Mrs. Butz had signed. Ms. Peeler declined FutureCare’s request to resolve claims arising from her mother’s death through arbitration. B. Peeler’s Wrongful Death Action Against FutureCare On August 1, 2014, Ms. Peeler filed a complaint against FutureCare in the Circuit Court for Baltimore County.

The action was designated as Valerie Peeler v. 1046 North Point, LLC, Case No. 03-C-14-8301. Ms. Peeler’s complaint contained a single count for wrongful death as a result of medical malpractice. Ms. Peeler sought to recover damages under Maryland’s wrongful death statute for the mental anguish, emotional pain and suffering, and loss of society, comfort, advice, and guidance that she claimed to have experienced as a result of her mother’s death. She requested a jury trial.

As an affirmative defense, FutureCare asserted that Ms. Peeler’s wrongful death claim was “subject to an enforceable binding arbitration agreement.]” FutureCare moved to stay the proceedings pending the outcome of a separate petition to compel arbitration. C. FutureCare’s Separate Petition to Compel Arbitration On August 25, 2014, FutureCare commenced a separate and independent action in the circuit court by filing a petition for an order to arbitrate pursuant to Md. Code (1974, 2013 Repl. Vol.), § 3-207 of the Courts and Judicial Proceedings Article (“CJP”). This action, FutureCare North Point, LLC v. Valerie Peeler, was assigned case number 03-C-14-9157.

In its petition, FutureCare asserted that it had entered into a valid and enforceable arbitration agreement with the dece ¹¹⁷ dent, Mrs. Butz. FutureCare asked the court to “enforce the parties’ Arbitration Agreement and [o]rder [Ms. Peeler] to arbitrate the medical negligence claim against [FutureCare].” Ms. Peeler opposed the petition. She denied the existence of an agreement between herself and FutureCare. She asserted that she had never signed the agreement, had never intended to be bound by the agreement, had never given her mother authority to enter an agreement on her behalf, was not a third-party beneficiary of the agreement, and had never attempted to enforce any of its provisions.

On its own motion, the court consolidated the wrongful death action with the action to compel arbitration. Nonetheless, the court maintained separate files for the two actions. D. Denial of the Petition to Compel Arbitration On January 13, 2015, the circuit court held a hearing in the two, consolidated cases to determine whether Ms. Peeler should be compelled to arbitrate. At the hearing, the court rejected the argument that Ms. Peeler was bound by Mrs. Butz’s agreement to arbitrate.

On that basis, the court announced that the “Petition for Order of Arbitration [wa]s denied.” FutureCare requested clarification about whether the court intended to issue a final order in its freestanding action to compel arbitration. The hearing judge concluded that the two actions had been consolidated for a “limited purpose,” but that the cases were “not joined for the merits” and ultimately would “be treated separately[.]” After the hearing, the judge signed an order stating that FutureCare’s petition to compel arbitration was denied and that that action was no longer consolidated with the tort litigation in Case No. 03-C-14-8301. The order included language, which had been drafted by FutureCare, stating that the order would “constitute a final, appealable order as to the issue of arbitration pursuant to Maryland Rule 2-602(b) in case No. 03-C-14-9157.” ¹¹⁸ On January 27, 2015, the clerk docketed the order in FutureCare’s freestanding action to compel arbitration. A week later, FutureCare filed a notice of appeal from that order.

Separately, FutureCare moved to stay proceedings in Ms. Peeler’s wrongful death case pending the outcome of its appeal in the other case. The court granted that motion. Appellate Jurisdiction Except in a case involving one of the narrow exceptions under CJP § 12-303, the collateral order doctrine, or Rule 2-602(b), a party may appeal only from a final judgment on the merits. See, e.g., Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 273 , 983 A.2d 138 (2009); CJP § 12-301.

An appellate court has the power to dismiss an appeal on its own motion if the appeal is not allowed by rule or by other law. See Md. Rule 8-602(a)(l). This Court must resolve any serious question as to its jurisdiction even if the parties have overlooked the issue or would prefer an immediate appellate determination. See, e.g., Baltimore Cnty. v. Baltimore Cnty.

Fraternal Order of Police Lodge No. 4, 439 Md. 547, 561-62 , 96 A.3d 742 (2014); Zilichikhis v. Montgomery Cnty., 223 Md.App. 158, 172 , 115 A.3d 685 , cert. denied, 444 Md. 641 , 120 A.3d 768 (2015). After the parties submitted their appellate briefs, this Court ordered them to show cause in writing why the appeal “should not be dismissed as an impermissible interlocutory appeal” and to address “whether the circuit court’s January 27, 2015 order complied with both the procedure and the substance of Rule 2-602(b)[.]” In pertinent part, that Rule provides: “If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment ... as to one or more but fewer than all of the claims or parties[.]” Md. Rule 2-602(b)(l). FutureCare responded that the appeal should not be dismissed because the order denying the petition to compel was not an interlocutory order in Ms. Peeler’s wrongful death case, ¹¹⁹ but rather the final judgment in FutureCare’s separate, freestanding action under the MUAA. According to FutureCare, the order had mentioned Rule 2-602(b) only “to avoid any shadow of doubt” about whether the court intended to render a final decision.

Ms. Peeler did not dispute the contention that FutureCare had the right to appeal from the order denying the MUAA petition. We conclude that, although Rule 2-602(b) does not apply in this case, the order was nevertheless appealable under CJP § 12-301 as the final judgment entered in a civil case. “[A] party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” CJP § 12-301. An order of the circuit court is a final judgment if it has three attributes: “(1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court acts pursuant to Maryland Rule 2-602(b) to direct the entry of a final judgment as to less than all of the claims or all of the parties, it must adjudicate or complete the adjudication of all claims against all parties; (3) it must be set forth and recorded in accordance with Rule 2-601.” Metro Maint. Sys.

South, Inc. v. Milburn, 442 Md. 289, 298 , 112 A.3d 429 (2015) (citing Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989)). In addition, each judgment must be set forth on a separate document signed by the judge or clerk. See Md. Rule 2-601(a); Hiob v. Progressive American Ins. Co., 440 Md. 466, 478-79 , 103 A.3d 596 (2014).

The order that denied FutureCare’s freestanding petition to compel arbitration easily satisfies most of the elements of a final judgment. The judge signed a document that denied all relief in unqualified terms, and the clerk memorialized the denial of relief in a proper docket entry. The document, consistent with the oral comments at the hearing, expressed the judge’s subjective intention that the order would “constitute a final, appealable order as to the issue of arbitration!.]” The remaining question is whether the ¹²⁰ court’s ruling was sufficiently final in its nature so that it could have been entered as a final judgment. 1 By way of dicta, the Court of Appeals has commented that “[a]n order denying a claim that arbitration should be compelled in an action in which that is the sole claim asserted is an appealable judgment.” Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs.

Ltd. P’ship, 346 Md. 122 , 126 n. 5, 695 A.2d 153 (1997) (citing Litton Bionetics, Inc. v. Glen Constr. Co., 292 Md. 34, 41-42 , 437 A.2d 208 (1981)). This Court, also in dicta, has similarly observed that: [B]y statute, a petition to compel arbitration may properly be filed as a freestanding action against the party refusing to submit the dispute to arbitration. In that situation, a court’s order deciding such an action disposes of the action in its entirety, regardless of whether the order grants or denies the petition.

Once the court orders arbitration, or denies it, there is nothing left for it to do. Accordingly, the court’s order is a final judgment under [CJP §] 12-301. NRT Mid-Atlantic, Inc. v. Innovative Props., Inc., 144 Md.App. 263, 277 , 797 A.2d 824 (2002) (citation omitted); see All State Home Mortg., Inc. v. Daniel, 187 Md.App. 166, 178 , 977 A.2d 438 , cert. denied, 410 Md. 560 , 979 A.2d 707 (2009); Essex Corp. v. Susan Katharine Tate Burrowbridge, LLC, 178 Md.App. 17, 30 , 940 A.2d 199 (2008); Rourke v. Amchem ¹²¹ Prods., Inc., 153 Md.App. 91, 107 , 835 A.2d 193 (2003), aff'd, 384 Md. 329 , 863 A.2d 926 (2004); Commonwealth Equity Servs., Inc. v. Messick, 152 Md.App. 381, 392 , 831 A.2d 1144 , cert. denied, 378 Md. 614 , 837 A.2d 926 (2003). 2 If the Maryland appellate decisions are any indication, most litigants do not attempt to compel another party to arbitrate by filing a separate, independent, and freestanding petition to compel as FutureCare did in this case, but by filing a motion to compel in an existing action commenced by the party who is allegedly required to arbitrate. In a series of decisions between 2009 and 2013, the Court of Appeals held that when a court denies a motion to compel in an existing action commenced by the person who is allegedly required to arbitrate, the denial is neither a final judgment, nor is it appealable under any exception to the final judgment rule.

In Addison v. Lochearn Nursing Home, LLC, 411 Md. 251 , 983 A.2d 138 (2009), and Schuele v. Case Handyman & Remodeling Services, LLC, 412 Md. 555 , 989 A.2d 210 (2010), the Court of Appeals held that none of the exceptions to the final judgment rule authorized an immediate appeal from an order denying a motion to compel arbitration in an action brought by the person who is allegedly required to arbitrate. The Court specifically held that the denial of such a motion is not appealable under CJP § 12-303(3)(ix), which authorizes an interlocutory appeal from a (functionally identical) order granting a petition to stay arbitration. See Schuele, 412 Md. at 566-67 , 989 A.2d 210 ; Addison, 411 Md. at 273-84 , 983 A.2d 138 . Nor can a court certify the denial of such a motion as a final judgment as to one or more but fewer than all the claims ¹²² under Rule 2 — 602(b), because such an order “does not put the parties out of court” and into arbitration, but instead “keeps the parties in court to litigate the claims remaining between them.” See Schuele, 412 Md. at 572 , 989 A.2d 210 (citing Addison, 411 Md. at 273 , 983 A.2d 138 ).

Finally, the denial of a motion to compel arbitration cannot satisfy the requirements of the collateral order doctrine, because, the Court said, the question of whether the case should have gone to arbitration in the first instance would be effectively reviewable on appeal from the entry of a final judgment on the merits after the parties had fully litigated the case in court. See Schuele, 412 Md. at 572-77 , 989 A.2d 210 ; Addison, 411 Md. at 284-86 , 983 A.2d 138 . In American Bank Holdings, Inc. v. Kavanagh, 436 Md. 457 , 82 A.3d 867 (2013), the Court resolved the remaining question of whether the denial of a motion to compel arbitration, filed in an existing action, is itself a final judgment under CJP § 12-301. In an action brought by Kavanagh, American Bank attempted to appeal from an order denying a motion that it styled as a petition to compel arbitration.

Id. at 460-61, 82 A.3d 867 . American Bank argued “that an order denying [a] petition to compel arbitration is an appealable final judgment regardless of whether it was filed as an independent action or filed in existing action.” Id. at 471 , 82 A.3d 867 . To address that argument, the Court began by acknowledging its prior dicta to the effect that “an order denying a petition to compel arbitration filed as an independent action ... is appealable.” Id. at 468 , 82 A.3d 867 (citing Hartford Accident & Indem., 346 Md. at 126 n. 5, 695 A.2d 153 ). According to the Court, those statements were not dispositive where “the appealability of an order denying a petition to compel arbitration filed in a case that is extant is at issue,” Kavanagh, 436 Md. at 468 , 82 A.3d 867 .

The Court then analyzed the holdings of Addison and Schuele , taking great care to clarify that those cases involved “[t]he denial of petitions to compel arbitration filed in existing actions[.]” Kavanagh, 436 Md. at 468 , 82 A.3d 867 ; see id. at 470 , 82 A.3d 867 (stating that Schuele concerned “an order denying a ¹²³ motion to compel arbitration filed in an existing action”); id. at 471, 82 A.3d 867 (same). The Court narrowed its focus to “whether a circuit court’s denial of a motion or petition to compel arbitration filed in an existing action is a final judgment[.]” Id. at 471 , 82 A.3d 867 ; see also id. at 474, 82 A.3d 867 (characterizing American’s position as the argument that “the order denying its petition to compel arbitration filed in an existing action is immediately appealable”). Ultimately, the Court concluded that “[t]he denial of American’s petition to compel arbitration filed in an existing action ... [wa]s not immediately appealable as a final judgment, because that denial did not put the parties out of court by terminating the proceedings.” Id. at 475 , 82 A.3d 867 . The Court reiterated that “[a]n order denying a request to compel arbitration, styled as a motion or petition, filed in an existing action” neither “decides and concludes the rights of the parties” nor “denies a party the means of further prosecuting or defending rights.” Id. at 478 , 82 A.3d 867 .

Such an order, the Court held, “cannot be viewed as a final judgment.” Id. In the next clause, however, the Court took care to point out that “[a]n order denying a request to compel arbitration, styled as a motion or petition, filed in an existing action,” is “unlike that situation when a Petition to Compel Arbitration filed on its own is denied, which terminates the action.” Id. at 478-79, 82 A.3d 867 (emphasis added). In so doing, the Court unmistakably signaled that the denial of a petition to compel arbitration may be an appealable final judgment if the petition is brought as a separate action in which the sole claim is the arbitrability of a dispute. 3 Although it appears that no reported Maryland case has squarely decided the question that we face here, our answer is ¹²⁴ essentially a foregone conclusion after Kavanagh . Future-Care did not move to compel arbitration in an existing action; it initiated a separate, freestanding action to compel Ms. Peeler to arbitrate.

The circuit court’s order fully adjudicated the only claim in the separate action, denied all of the relief sought by FutureCare in that action, and completely terminated that case. Consequently, under CJP § 12-801, Future-Care has the right to appeal from the final judgment in the separate action to compel Peeler to arbitrate. See Kavanagh, 436 Md. at 468 , 82 A.3d 867 . Because FutureCare appealed from a final judgment, it was unnecessary to attempt to rely on any of the exceptions for appeals from certain interlocutory orders.

Nevertheless, the order purported to grant a final judgment “pursuant to Maryland Rule 2-602(b).” This invocation of Rule 2-602 was misguided, but inconsequential. Rule 2-602 relates to actions that involve multiple claims or more than two parties. It expressly governs orders not disposing of an entire action. “By its very terms, Rule 2-602 is inapplicable to separate actions even though they are tried together.” Unnamed Att’y v. Att’y Grievance Comm’n, 303 Md. 473, 484 , 494 A.2d 940 (1985) (citing Coppage v. Resolute Ins. Co., 264 Md. 261 , 285 A.2d 626 (1972)).

A different rule governs the consolidation of separate actions: “When actions involve a common question of law or fact or a common subject matter, the court, on motion or on its own initiative, may order a joint hearing or trial or consolidation of any or all of the claims, issues, or actions.” Md. Rule 2-503(a)(1) (emphasis added). “In the trial of a consolidated action, the court may direct that joint or separate verdicts or judgments be entered.” Md. Rule 2-503(b). The Court of Appeals has explained that “when the circuit court enters a judgment disposing of one case, that judgment is appealable despite the pendency of unresolved claims in another case consolidated with it.” Yarema v. Exxon Corp., 305 Md. 219, 236 , 503 A.2d 239 (1986); see Cnty. Comm’rs of Carroll Cnty. v. Carroll Craft Retail, Inc., 384 Md. 23 , 33 n. 5, ¹²⁵ 862 A.2d 404 (2004). “[U]nless the trial court clearly intends that a joint judgment be entered disposing of all cases simultaneously, consolidated cases are not to be treated as a single action for purposes of Rule 2-602; instead, each one of the cases is to be treated as a separate action.” Yarema, 305 Md. at 236 , 503 A.2d 239 . 4 The circuit court used Rule 2-503 to consolidate Future-Care’s freestanding petition to compel arbitration with the separate wrongful death action. The court did so for the limited purpose of a joint hearing on the issue of arbitrability.

The post-hearing order stated that the two actions had been consolidated “solely to resolve the issue of arbitration and not for the merits[.]” As in Yarema, 305 Md. at 222-23 , 503 A.2d 239 , the court had maintained separate dockets for each action. Under these circumstances, neither the prior consolidation of the actions nor the pendency of claims in the separate wrongful death action prevents an appeal from the final judgment in the action to compel arbitration. See Cole v. State Farm Mut. Ins.

Co., 359 Md. 298 , 304 n. 5, 753 A.2d 533 (2000) (citing Yarema, 305 Md. at 236 , 503 A.2d 239 ); Unnamed Att’y, 303 Md. at 484 , 494 A.2d 940 ; Bessette v. Weitz, 148 Md.App. 215, 233 , 811 A.2d 812 (2002); Turner v. Turner, 147 Md.App. 350, 384 , 809 A.2d 18 (2002). FutureCare’s appeal from the final judgment in the MUAA action is properly before us, and we may resolve this case on the merits. Discussion As phrased by FutureCare, this appeal involves the single issue of “[wjhether wrongful death beneficiaries are bound by a valid and enforceable agreement signed by their decedent[.]” ¹²⁶ FutureCare contends that the circuit court erred when it concluded that Ms. Peeler had no contractual obligation to arbitrate her wrongful death claim. Our task is to conduct an independent review of the correctness that conclusion.

See Thompson v. Witherspoon, 197 Md.App. 69, 79-80 , 12 A.3d 685 (2009) (applying de novo standard of review to circuit court’s determination of whether non-signatory to an arbitration agreement could be compelled to arbitrate); see also Holloman v. Circuit City Stores, Inc., 391 Md. 580, 588 , 894 A.2d 547 (2006) (quoting Walther v. Sovereign Bank, 386 Md. 412, 422 , 872 A.2d 735 (2005)). A. The Contractual Nature of Arbitration Agreements Under Maryland’s arbitration statute, “a provision in a written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable!).]” CJP § 3-206(a) (emphasis added). If a party to an arbitration agreement refuses to arbitrate, the other party may petition the court to order arbitration. CJP § 3-207(a). “If the opposing party denies existence of an arbitration agreement, the court shall proceed expeditiously to determine if the agreement exists.” CJP § 3-207(b).

Based on that determination, the court must either grant the petition and order arbitration or deny the petition. CJP § 3-207(c). Contract principles govern a court’s decision about the existence of an arbitration agreement. Walther, 386 Md. at 425 , 872 A.2d 735 .

Although Maryland law “looks with favor upon arbitration as a method of dispute resolution, it does not look with favor upon sending parties to arbitration when there is no agreement to arbitrate.” Town of Chesapeake Beach v. Pessoa Constr. Co., Inc., 330 Md. 744, 757 , 625 A.2d 1014 (1993). As the Court of Appeals has stated: Arbitration is a process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them. A party cannot be required to submit any dispute to arbitration that it has not agreed to submit.

Arbitration is consensual; a creature of contract. ¹²⁷ As such, only those who consent are bound. In the absence of an express arbitration agreement, no party may be compelled to submit to arbitration in contravention of its right to legal process.... An arbitration agreement cannot impose obligations on persons who are not a party to it and do not agree to its terms. Curtis G. Testerman Co. v. Buck, 340 Md. 569, 579 , 667 A.2d 649 (1995) (citations omitted); see id. at 580 , 667 A.2d 649 (“[n]o matter how broadly an agreement is construed, it cannot impose obligations on a person who is not a party to that agreement”) (citations and quotation marks omitted).

FutureCare argues that its agreement with Mrs. Butz should be construed to effectuate the parties’ intent and that any ambiguity should be resolved in favor of arbitrability. Those principles of construction are inapplicable here. “[T]he issue in this case is not whether otherwise enforceable arbitration clauses extend to the particular claims ... but rather whether the arbitration provision[ ] ... can be enforced against [Ms. Peeler] at all.” Thompson v. Witherspoon, 197 Md.App. at 82 , 12 A.3d 685 . 5 As an exception to the general rule that arbitration agreements impose no obligations on third parties, a third party may be required to arbitrate if that third party is acting ¹²⁸ in a representative capacity on behalf of a party to the agreement. For instance, in Maryland, most causes of action at law “survive” a party’s death (CJP § 6 — 401(a)), and the decedent’s personal representative may commence or maintain an action for the benefit of the decedent’s estate. Md. Code (1974, 2011 Repl.

Vol.), § 7-401(y)(l) of the Estates and Trusts Article. In a so-called survival action, “the decedent’s personal representative ‘is essentially bringing an action that the decedent could have brought had he or she not died.’ ” State v. Copes, 175 Md.App. 351, 364 , 927 A.2d 426 (2007) (quoting Lopez v. Maryland State Highway Admin., 327 Md. 486, 490 , 610 A.2d 778 (1992)). In such an action, the personal representative “ ‘serves as the posthumous agent of the [tort] victim[.]’ ” John Crane, Inc. v. Puller, 169 Md.App. 1, 95 , 899 A.2d 879 (2006) (quoting Globe American Cas. Co. v. Chung, 76 Md.App. 524, 527 , 547 A.2d 654 (1988), vacated on other grounds, 322 Md. 713 , 589 A.2d 956 (1991)).

In effect, the personal representative “steps into the shoes of [the] decedent^]” ACandS, Inc. v. Asner, 104 Md.App. 608, 644 , 657 A.2d 379 (1995), rev’d on other grounds, 344 Md. 155 , 686 A.2d 250 (1996). In Dickerson v. Longorio, 414 Md. 419 , 995 A.2d 721 (2010), the Court of Appeals discussed whether a nursing home could compel the personal representative of a deceased resident’s estate to arbitrate a survival action. If the decedent had entered into a valid arbitration agreement, the nursing home unquestionably could have required the personal representative to arbitrate the survival claims. See id. at 426 n. 2, 995 A.2d 721 .

Similarly, both parties to this case agree that FutureCare could compel Mrs. Butz’s personal representative to arbitrate a survival claim brought on her estate’s behalf. But this case does not concern a survival claim. An action under Maryland’s wrongful death statute is separate, distinct, and independent from a survival action, even when those actions arise out of a common tortious act. See Georgia-Pacific Corp. v. Benjamin, 394 Md. 59 , 77 n. 4, 904 A.2d 511 (2006) (explaining that wrongful death actions are ¹²⁹ separate and distinct from survival actions, so that “disposing of one does not automatically act as a bar to the other”); Chung, 76 Md.App. at 526-27 , 547 A.2d 654 (explaining that even where wrongful death and survival actions result from a “common denominator fact that the victim has died,” those “two types of claim are clearly distinct” in their “essential characteristics”). “[A]lthough those actions grow out of the same wrongful conduct, they are distinct: ‘[they] are by different persons, the damages go into different channels, and are recovered upon different grounds[.]’ ” Smith v. Borello, 370 Md. 227, 234 , 804 A.2d 1151 (2002) (quoting Stewart v. United Elec.

Light & Power Co., 104 Md. 332, 339 , 65 A. 49 (1906)). By enacting Maryland’s wrongful death statute, the General Assembly “created a new cause of action for something for which the deceased person never had, and never could have had[:] the right to sue ... [for] the injury resulting from [the deceased person’s] death.” Spangler v. McQuitty, 449 Md. 33, 53 , 141 A.3d 156, 168 , 2016 WL 3685198 , at ⁹ (2016) (quoting Stewart, 104 Md. at 341 , 65 A. 49 (quoting Tucker v. State ex rel. Johnson, 89 Md. 471, 479 , 44 A. 1004 (1899))) (internal quotation marks omitted). In its current form, the wrongful death statute authorizes an action “for the benefit of the wife, husband, parent, and child of the deceased person[.]” CJP § 3-904(a)(l).

Wrongful death damages are awarded to those beneficiaries “proportioned to the injury resulting from the wrongful death.” CJP § 3-904(c)(l). “While certainly based on the death of another person, [a wrongful death action] is not brought in a derivative or representative capacity to recover for a loss or injury suffered by that person but, rather, is brought by a spouse, parent, or child, or a secondary beneficiary who was wholly dependent on the decedent, to recover damages for his or her own loss accruing from the decedent’s death.” Eagan v. Calhoun, 347 Md. 72, 82 , 698 A.2d 1097 (1997). When Ms. Peeler asserted her wrongful death claim against FutureCare, she was not a representative of her mother’s ¹³⁰ estate seeking recovery for her mother’s injuries; she was acting on her own behalf to recover for her own losses. The wrongful death action is, both in form and substance, a controversy between Ms. Peeler and FutureCare; it is not a continuation of any controversy between Mrs. Butz and Fu-tureCare. Furthermore, Mrs. Butz never owned the right to recover damages under CJP § 3-904 for her own wrongful death, and hence she had no power to bind the person who has that right — Peeler—to an agreement to arbitrate.

In short, notwithstanding that the agreement purports to require Peeler to arbitrate her wrongful death claims FutureCare, basic contract principles support the conclusion that she has no such obligation. Lacking any conventional principle through which it could impose that obligation on Ms. Peeler, FutureCare argues that Ms. Peeler should be required to arbitrate on the theory that the wrongful death action is “derivative upon the decedent’s ability to maintain a claim.” As explained below, we reject that argument because a wrongful death action “is not derivative in the sense asserted.” Eagan, 347 Md. at 81-82 , 698 A.2d 1097 . B. The “Wrongful Act” Requirement of the Wrongful Death Statute The wrongful death statute provides that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” CJP § 3-902(a), The term “ ‘[wrongful act’ ” means “an act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” CJP § 3-901(e). As the foundation of its argument that Ms. Peeler’s wrongful death claim is “derivative” of her mother’s personal injury claim, FutureCare relies on the statute’s definition of a “wrongful act.” FutureCare writes, “[A]t no time before the decedent’s death could she have maintained a cause of action ... in court because ... all such claims were subject to the parties’ ¹³¹ binding arbitration agreement.” (Emphasis added.) Future-Care theorizes that, because Mrs. Butz, “by virtue of having signed an arbitration agreement, could not have pursued her own claim for damages in the Circuit Court,” Ms. Peeler should also be precluded from maintaining an action in that court.

(Emphasis added.) The statute, however, does not define a “wrongful act” as an act that would have entitled the victim to maintain an action “in court ” or “in the circuit court ”; it speaks only of an act that “would have entitled the party injured to maintain an action and recover damages.” Under fundamental principles of statutory construction, a court “may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute.” Peters v. Early Healthcare Giver, Inc., 439 Md. 646, 667 , 97 A.3d 621 (2014) (citation and quotation marks omitted). The definition of “wrongful act” was satisfied, therefore, as long as Mrs. Butz would have been entitled “to maintain an action,” which she was; it is immaterial whether she would have been entitled “to maintain an action” in court. FutureCare does not really argue that its alleged negligence falls outside the statute’s definition of a “-wrongful act.” Rather, FutureCare argues that the language defining a wrongful act as one that “would have entitled the party injured to maintain an action and recover damages if death had not ensued” (CJP § 3-901 (e)) implies that wrongful death claimants take their claims subject to the same restrictions that would apply to injury claims by the decedent. The statutory language itself does not express that intention.

The statute does not require that a wrongful death claim be pursued in the same forum and manner as an action that could have been brought by the decedent, and the General Assembly presumably would have said so had it intended to attach those conditions to wrongful death actions. Peters, 439 Md. at 667 , 97 A.3d 621 . The acts alleged in a wrongful death complaint are still “[wjrongful act[s]” within the meaning of CJP § 3-901 (e) even when the decedent has waived her right to assert her own injury claims in a particular forum. ¹³² Seeking support for its interpretation of the “wrongful act” requirement, FutureCare claims to rely on Mummert v. Alizadeh, 435 Md. 207 , 77 A.3d 1049 (2013). Mummert rebuts rather than supports FutureCare’s position.

In Mummert , a patient died after limitations had run on her medical negligence claims. Id. at 210-11 , 77 A.3d 1049 . Her surviving family members, the Mummerts, brought a wrongful death action within the three-year statute of limitations applicable to their claims. Id. at 211 , 77 A.3d 1049 .

The circuit court nonetheless dismissed the action, reasoning that the family members could not pursue their wrongful death claims because the patient herself could not have initiated a timely medical negligence action at the time of her death. Id. The Court of Appeals reversed. Id. at 232 , 77 A.3d 1049 .

The Court recognized that the statutory definition of a “wrongful act” (an act that “would have entitled the party injured to maintain an action and recover damages”) is ambiguous as to whether a wrongful death claimant’s right to sue is contingent upon the decedent’s ability to file a timely personal injury claim at the time of death. Mummert, 435 Md. at 218-19 , 77 A.3d 1049 . Consequently, the Court looked to the General Assembly’s purpose in enacting the wrongful death statute, which was “to compensate the families of the decedents, as opposed to the estates of the decedents[.]” Id. at 219 , 77 A.3d 1049 . In view of that purpose, the Court reaffirmed earlier decisions 6 that held that a wrongful death action is “a new cause of action, separate and independent largely from the decedent’s own negligence or other action or a survival action[.]” Id.

Notwithstanding Maryland’s longstanding emphasis on the independent nature of a wrongful death action, Dr. Alizadeh argued that “a wrongful death action is more derivative of the decedent’s own action.” Mummert, 435 Md. at 220 , 77 A.3d 1049 . Addressing that contention, the Court recognized that, ¹³³ where certain defenses such as contributory negligence or assumption of risk would bar a decedent’s injury claim, the wrongful death statute would also preclude a claim by the decedent’s relatives. Id. at 220-21 , 77 A.3d 1049 . 7 The Court reasoned that “[t]hose defenses are distinguishable from a statute of limitations defense, however, because, where those defenses apply, the decedent did not have a viable claim from the outset.” Id. at 221 , 77 A.3d 1049 . Citing State ex rel.

Melitch v. United Railways & Elec. Co. of Baltimore, 121 Md. 457 , 88 A. 229 (1913), the Court recognized that a “release of a negligence claim by the decedent can bar the surviving relatives from bringing later a wrongful death action.” Mummert, 435 Md. at 221 , 77 A.3d 1049 . Nonetheless, the Court distinguished the running of limitations from a release on the ground that “a decedent who executes a release has acted affirmatively and purposefully to extinguish the underlying claim,” whereas limitations may bar a claim even if the decedent did not intend to allow the statute to run. Id. at 221-22 , 77 A.3d 1049 . 8 The Court proceeded to reject Dr. Alizadeh’s generalizations about the “derivative” nature of a Maryland wrongful death action: It is not wholly incorrect to state that a wrongful death claim is derivative of the decedent’s claim in some sense.

The two actions stem from the same underlying conduct, ¹³⁴ which must have resulted in the decedent having a viable claim when she was injured. That connection, however, does not compel the conclusion that all defenses applicable to the decedent’s claim prior to her death would preclude necessarily maintenance of a wrongful death claim after the decedent’s death. That the Legislature’s purpose was to create a new and independent cause of action when it passed the wrongful death statute suggests that it did not intend for a statute of limitations defense against the decedent’s claim to bar