Bybee v. Abdulla

2008 UT 35
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Lisa Bybee, 	No. 20060424
Plaintiff and Appellee,
v.
Alan Abdulla, M.D., and John 	F I L E D
Does 1-5,
Defendants and Appellants. 	June 3, 2008
---
Second District, Ogden Dep’t
The Honorable Pamela G. Heffernan
No. 050903397
Attorneys: 	James R. Hasenyager, Peter W. Summerill, Ogden, for
plaintiff
Brian P. Miller, Kenneth L. Reich, Salt Lake City,
for defendants
Elliott J. Williams, Kurt M. Frankenburg, Stephen T.
Hester, Mark A. Brinton, Salt Lake City, for amicus
Utah Medical Ass’n; Roger H. Hoole, Todd Wahlquist,
Salt Lake City, for amicus Utah Trial Lawyers Ass’n
---
NEHRING, Justice:
INTRODUCTION
¶1 	Lisa Bybee filed a wrongful death action against Dr.
Alan Abdulla, alleging that his negligent care caused her
husband, Mark Bybee, to commit suicide. 	Because Mr. Bybee had
entered into an arbitration agreement, Dr. Abdulla filed a motion
to enforce the agreement and to compel Mrs. Bybee to arbitrate
her wrongful death claim. 	The district court denied the motion,
and Dr. Abdulla appealed. 	We affirm.
BACKGROUND
¶2 	Lisa Bybee’s husband, Mark Bybee, was a patient of Dr.
Alan Abdulla. 	Following what Mrs. Bybee described as “a major
depression,” Mr. Bybee committed suicide. 	Mrs. Bybee brought a

No. 20060424 	2
wrongful death action against Dr. Abdulla and five other
defendants, alleging that their medical malpractice caused Mr.
Bybee’s death. 	In her complaint, she alleged that Dr. Abdulla,
who previously treated Mr. Bybee for allergies and had no
expertise in diagnosing or treating depression, prescribed Mr.
Bybee antidepressant medicine and later renewed the prescription,
increasing the dose. 	Mrs. Bybee alleged that Dr. Abdulla’s
failure to reevaluate Mr. Bybee’s depression and his response to
the medicine before increasing the dose or continuing to
prescribe the medicine fell below the standard of care of a
reasonable physician. 	She alleged that Dr. Abdulla’s substandard
care was the cause of her husband’s suicide. 	Mrs. Bybee and the
heirs of Mr. Bybee sought damages for the loss of love, care,
society, consortium, financial support, and inheritance of Mr.
Bybee, and Mrs. Bybee and the estate of Mr. Bybee sought damages
for the medical and funeral expenses of Mr. Bybee.
¶3 	Dr. Abdulla moved to stay the district court action and
to compel arbitration. 	The request to compel arbitration was
based on an arbitration agreement signed by Mr. Bybee, which
read:
Article 1: Agreement to Arbitrate: We
hereby agree to submit to binding arbitration
all disputes and claims for damages of any
kind for injuries and losses arising from the
medical care rendered or which should have
been rendered after the date of this
Agreement. 	All claims for monetary damages
against the physician, and the physician’s
partners, associates, association,
corporation or partnership, and the
employees, agents and estates of any of them
(hereinafter collectively referred to as
“Physician”), must be arbitrated including,
without limitation claims for personal
injury, loss of consortium, wrongful death,
emotional distress or punitive damages. 	We
agree that the Physician may pursue a legal
action to collect any fee from the patient
and doing so shall not waive the Physician’s
right to compel arbitration of any
malpractice claim. 	However, following the
assertion of any malpractice claim against
the Physician, any fee dispute, whether or
not the subject of any existing legal action,
shall also be resolved by arbitration.

1 The Legislature renumbered Title 78 during the 2008
general legislative session. 	The language of the statute in
Title 78 did not change; therefore, we cite to the newly numbered
statute.
2 The Utah Medical Malpractice Act was amended in 2004, at
which time subsection (1)(b)(vii)(C) was added to section 78B-3-
421.
3 	No. 20060424
We expressly intend that this Agreement
shall bind all persons whose claims for
injuries and losses arise out of medical care
rendered or which should have been rendered
by Physician after the date of this
Agreement, including any spouse or heirs of
the patient and any children, whether born or
unborn at the time of the occurrence giving
rise to any claim (hereinafter collectively
referred to as “Patient”).
¶4 	Dr. Abdulla argued that an arbitration agreement could
bind heirs because Utah Code section 78B-3-421(1)(b)(vii)(C)
(Supp. 2008) 1 permits an arbitration agreement to apply to third
parties whose claims arise solely out of the injury sustained by
the patient who signed the agreement. 	Although Mr. Bybee’s claim
arose before the statute expressly allowed third parties to be
bound by arbitration agreements, 2 Dr. Abdulla argued that the
change was merely procedural and should be applied retroactively.
He also argued that Mrs. Bybee should be required to arbitrate
because Mr. Bybee signed the agreement as her agent or,
alternatively, because she was a third-party beneficiary of the
contract.
¶5 	Mrs. Bybee urged the district court not to compel
arbitration, arguing that she should not be bound to a contract
she did not sign and that the version of section 78B-3-421 in
effect when the claim arose did not expressly allow arbitration
agreements to bind third parties. 	Additionally, Mrs. Bybee
argued that even if the current version of section 78B-3-421
applied, it could not modify Mrs. Bybee’s constitutional right to
pursue her wrongful death suit in court because a wrongful death
claim is not based solely on an injury sustained by the patient
but is, instead, a cause of action based on injury to the heirs
of the decedent.
¶6 	The district court denied Dr. Abdulla’s motion to
compel, holding that the changes to section 78B-3-421 were not
procedural and should not be applied retroactively. 	The district

No. 20060424 	4
court held that since Mrs. Bybee did not sign the arbitration
agreement, she was not bound by it and that she could not be
bound under an agency or third-party beneficiary theory. 	Utah
law has designated as appealable orders denying arbitration
although they are not final orders. 	Id. § 78B-11-129. 	We have
jurisdiction over this appeal pursuant to this provision and from
Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶7 	Whether a contract requires a party to arbitrate is a
question of law, which we review for correctness. 	See Docutel
Olivetti Corp. v. Dick Brady Sys., Inc., 731 P.2d 475, 478 (Utah
1986).
ANALYSIS
¶8 	Most contracts bind only those who bargain for them,
see Aquagen Int’l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah
1998) (citing Restatement (Second) of Contracts § 17(1) (1981)),
and “the burden of proof for showing the parties’ mutual assent
as to all material terms and conditions is on the party claiming
that there is a contract,” Cal Wadsworth Constr. v. City of St.
George, 898 P.2d 1372, 1376 (Utah 1995). 	Arbitration agreements
are not exempt from this rule. 	Arbitration is an alternative to
judicial resolution of disputes in which participation is
voluntary. 	Thus, absent the presence of some intervening
circumstance, a party cannot be compelled to surrender his right
to seek a remedy or defend himself in court. 	Even our strong
public policy favoring arbitration, Cent. Fla. Invs., Inc. v.
Parkwest Assocs., 2002 UT 3, ¶ 16, 40 P.3d 599, is insufficient,
standing alone, to justify forcing an unwilling party to submit
to arbitration.
¶9 	Nevertheless, the law recognizes circumstances in which
a party who never expressly consented to arbitrate a dispute may
surrender his right to go to court. 	See, e.g., Am. Express
Travel Related Servs. Co. v. Am. Fine Art & Frame Co., 2004 U.S.
Dist. LEXIS 9217 (D. Tex. May 20, 2004); Matthau v. Superior
Court, 60 Cal. Rptr. 3d 93 (Ct. App. 2007); Ellsworth v. Am.
Arbitration Ass’n, 2006 UT 77, 148 P.3d 983.
¶10 	Dr. Abdulla proposes four reasons that merit our
consideration for why we should require Mrs. Bybee to comply with
the terms of a contract she did not sign. 	First, he argues that
Mr. Bybee was the “master of his own claim” and that he therefore
had unfettered authority to do anything he chose with his claim,
including requiring his widow to arbitrate her own separate

5 	No. 20060424
wrongful death claim. 	Dr. Abdulla’s second line of reasoning is
closely related to the first. 	Noting that we have allowed
certain defenses that could have been asserted against the
decedent in his personal injury action to be raised against heirs
in a wrongful death action, Dr. Abdulla would have us add the
defense of the arbitration agreement to that list. 	Third, he
points to the 2004 amendments to the Utah Medical Malpractice Act
that permit enforcement of arbitration against nonsignatories and
contends that these statutory provisions should be applied
retroactively to Mr. Bybee’s arbitration agreement. 	Finally, Dr.
Abdulla claims that the arbitration agreement binds Mrs. Bybee
because she was its intended third-party beneficiary. 	We will
speak to each of these arguments, starting with the first.
I. 	A PERSONAL INJURY PLAINTIFF IS THE “MASTER OF HIS OWN CLAIM”
BUT SUBJECT TO CONSTRAINTS ON HIS POWER TO EXERCISE HIS MASTERY
¶11 	Dr. Abdulla’s oft-repeated credo in this appeal is that
Mr. Bybee was the “master of his own claim.” 	According to Dr.
Abdulla, Mr. Bybee’s mastery over his claim was boundless and,
since it endured after his death, timeless. 	The “master of his
own claim” image is one that Dr. Abdulla borrowed from our case,
Jensen v. IHC Hospitals, Inc., and which we, in turn, extracted
from Prosser and Keeton on the Law of Torts. 	944 P.2d 327, 332
(Utah 1997).
¶12 	In Jensen, we used the concept of claim mastery as a
rhetorical fillip to bolster our holding that the statute of
limitations for the wrongful death of a decedent whose death
allegedly resulted from medical malpractice was the limitation
period found in the Utah Health Care Malpractice Act, which is
now codified at Utah Code section 78B-3-404, and not the statute
of limitations for wrongful death actions. 	944 P.2d at 332. 	Dr.
Abdulla reasons that if a decedent could, through his inaction,
exercise mastery over his claim to cut off a wrongful death cause
of action, he must certainly be capable of making the conscious
decision to require that his heirs arbitrate their wrongful death
claim.
¶13 	Dr. Abdulla’s reasoning places demands on the mastery
of claim rhetoric that it cannot deliver, and we reject it.
There are two reasons for this. 	First, our use of the “master of
his own claim” language in Jensen was limited in its scope and,
upon a closer examination of the context in which it was used in
Prosser and Keeton’s treatise, we appear to have applied the
phrase to make a point with which Prosser and Keeton directly
disagreed. 	Second, as a constitutionally recognized cause of

3 We have never expressly held that the settlement or entry
of judgment in a personal injury action bars a wrongful death
claim. 	By contrast, Utah’s survival statute, section 78B-3-107,
makes clear that it does not apply to claims that have been
settled or adjudicated.
No. 20060424 	6
action, wrongful death is not wholly subservient to the mastery
of the decedent.
¶14 	In Jensen, we listed several justifications for
measuring the time available to bring a wrongful death action by
the statute of limitations that applied to the underlying wrong
done to the decedent. 	Our dominant rationale was a logical one.
It began by observing that a majority of states hold that a
decedent who has settled his personal injury case or seen his
claim terminated by a judgment extinguishes an heir’s wrongful
death cause of action. 3 	Jensen, 944 P.2d at 332. 	We then
reasoned that the running of a statute of limitations has the
same functional effect on a personal injury claim as a settlement
or a judgment. 	Id. 	Therefore, we concluded that the statute of
limitations applicable to the underlying personal injury action
should govern the fate of the wrongful death claim. 	Id.
Finally, we tied our reasoning to the public policy underlying
statutes of limitations, defending our ruling as consistent with
the laudable policy of discouraging the prosecution of stale
claims. 	Id.
¶15 	We turned to Prosser and Keeton’s “master of his own
claim” phrase to lend authoritative support to our major premise
that a wrongful death claim cannot coexist with a suit brought on
the underlying personal injury. 	Tellingly, Prosser and Keeton do
not make much of their master of the claim imagery. 	It served
only to provide a colorful description of the consequences to an
heir’s wrongful death cause of action of a decedent’s decision to
sue for personal injury. 	W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 127, at 955 (5th ed. 1984). 	Indeed,
they note that it was a concern for the possibility of double
recovery, not some inherent authority vested in the master of the
claim, that led courts to bar a wrongful death action after a
personal injury judgment or settlement. 	Id. 	Still more
noteworthy, Prosser and Keeton reject our assumption that because
a majority of states bar wrongful death claims initiated after a
judgment or settlement of the underlying personal injury action,
that wrongful death actions should also be cut off when the
statute of limitations on the underlying tort has run. 	Id. at
957-58. 	Noting that choice of statutes of limitations does not
involve the danger of double recovery, Prosser and Keeton tally a
“considerable majority” of courts to have taken the opposite

4 See Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah
1985); Jones v. Carvell, 641 P.2d 105 (Utah 1982).
7 	No. 20060424
position of that which we adopted in Jensen. 	Id. 	Those courts
held that wrongful death actions are governed by the wrongful
death statute of limitations and not the limitations period of
the underlying claim. 	Id. 	If the master of the claim credo were
indeed the principle guiding the interaction between wrongful
death claims and their related personal injury actions, no case
or commentator we are aware of has suggested as much.
¶16 	Because the use of the master of claim concept in
Jensen was limited to supporting the premise that a wrongful
death action cannot be brought if the decedent settled, won, or
lost his claim before dying and because the concept is not used
in analyzing other questions concerning wrongful death claims, we
will not extend the concept beyond its supporting role.
¶17 	Our rejection of the master of the claim rhetoric as
justification for permitting an injured person to control the
rights of a wrongful death claim also has a constitutional
dimension. 	We could not cede sweeping authority to an injured
person under the master of the claim rubric without compromising
the right guaranteed by article XVI, section 5 of the Utah
Constitution. 	This provision confers special status on the cause
of action for wrongful death, stating, “The right of action to
recover damages for injuries resulting in death, shall never be
abrogated, and the amount recoverable shall not be subject to any
statutory limitation, except in cases where compensation for
injuries resulting in death is provided for by law.” 	Utah Const.
art. XVI, § 5.
¶18 	We have recounted the statutory and constitutional
history of Utah’s wrongful death cause of action before 4 and
return to it here only to underscore that wrongful death occupies
a position of privilege among torts. 	Although, from before the
Norman Conquest, the accidental killing of a human being imposed
on the wrongdoer a duty to pay compensation, English common law
changed course in 1808. 	Keeton et al., supra ¶ 15, § 127, at
945. 	In that year, a British court concluded that death was not
an “injury” and that a widower could not recover for the loss of
his wife’s services. 	Id. 	Dissatisfaction with a rule that made
it more attractive to a tortfeasor to kill a victim than to
injure him led to the enactment of the Lord Campbell’s Act in
1846. 	Id. 	The wrongful death cause of action entered Utah
territorial law in 1874 and was incorporated into the Utah
Constitution when Utah entered the Union. 	Jones v. Carvell, 641
P.2d 105, 107 (Utah 1982). 	By 1970, every state had enacted some

No. 20060424 	8
form of protection for wrongful death claims. 	Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 390 (1970). 	In 1895, however,
when the drafters of the Utah Constitution were at work, the
status of the wrongful death cause of action among the forty-four
states remained equivocal. 	Jones, 641 P.2d at 107. 	Despite the
absence of discussion or debate about article XVI, section 5 in
the Journal of Constitutional Proceedings, we have attributed the
incorporation of the wrongful death cause of action into our
constitution to the perceived importance of the right and to a
desire to remove any uncertainty in our state about its
viability. 	Id. 	Also, constitutional protection of the right
serves to set it apart from the unsettled status of the right to
recover for wrongful death elsewhere. 	Id.
¶19 	We have previously acknowledged that the wrongful death
action’s constitutional status entitles it to special protection
against attempts to pare back its scope. 	In Berry v. Beech
Aircraft Corp., we interpreted article I, section 11 of the Utah
Constitution, known commonly as the open courts clause, to
restrict the Legislature’s prerogative to abrogate causes of
action or their remedies. 	717 P.2d 670, 680 (Utah 1985). 	We
held that the Legislature could alter or abolish most causes of
action so long as it provided a “reasonable alternative remedy”
or if the legislative action was shown to be a reasonable way to
eliminate “a clear social or economic evil.” 	Id. 	We observed
that owing to its constitutional status, the right protected by
article XVI, section 5 entitles it to “a particularized
application of the open courts provision,” one not susceptible to
legislative encroachment even under circumstances that would
satisfy the conditions under which Berry would permit the
elimination or limitation of other causes of action or their
remedies. 	Id. at 683. 	Berry’s treatment of article XVI, section
5 is both consistent with and made inevitable by our pre-Berry
pronouncement that the provision “was directed at preventing the
Legislature from abolishing a right of action for wrongful death,
whether in a wholesale or piecemeal fashion.” 	Malan v. Lewis,
693 P.2d 661, 667 (Utah 1984) (citing Oliveras v. Caribou-Four
Corners, Inc., 598 P.2d 1320 (Utah 1979); Garfield Smelting v.
Indus. Comm’n, 178 P. 57 (Utah 1918)).
¶20 	Dr. Abdulla argues that his arbitration agreement with
Mr. Bybee merely imposes a “reasonable procedure” on Mrs. Bybee
and not a piecemeal abrogation of Mrs. Bybee’s constitutionally
protected claim. 	We disagree. 	We harbor serious doubts that a
statute purporting to empower a person to bind an heir to
arbitrate a wrongful death claim could coexist with article XVI,
section 5. 	We need not confront that issue here, however,
because as our discussion to follow will explain, the Legislature

9 	No. 20060424
has yet to enact such a statute. 	We turn to article XVI, section
5 of the Utah Constitution in this setting not to pass judgment
on a statute, but rather to invoke its authority to invalidate
the contract through which Mr. Bybee sought to compel Mrs. Bybee
to arbitrate her wrongful death claim.
II. 	NOT EVERY DEFENSE THAT COULD HAVE BEEN RAISED AGAINST A
DECEDENT MAY BE RAISED AGAINST THE HEIRS, AND MR. BYBEE’S
ARBITRATION AGREEMENT IS ONE OF THEM
¶21 	We need not renounce our holding in Jensen to distance
ourselves from Dr. Abdulla’s contention that by inserting the
“master of his own claim” language into our decision we must
therefore accept his conclusion that an arbitration agreement can
be asserted as a defense against Mrs. Bybee in her wrongful death
action. 	This is because in Jensen we granted injured persons a
more modest array of powers to bind their heirs should their
death give rise to a wrongful death action. 	A wrongful death
plaintiff is not exposed to all of the defendant’s defenses, but
rather is “subject to at least some of the defenses that would
have been available against the decedent had she lived to
maintain her own action.” 	Jensen v. IHC Hosps., Inc., 944 P.2d
327, 332 (Utah 1997). 	The addition of the statute of limitations
defense recognized in Jensen brought to two--the other was
comparative negligence, Kelson v. Salt Lake County, 784 P.2d
1152, 1155 (Utah 1989)--the number of defenses that a potential
tortfeasor may transfer from a decedent to an heir. 	We have
never intended to suggest, however, that because a decedent is
the master of his claim he may by contract expose his unwilling
heirs to any imaginable defense.
¶22 	The master of his claim notion owes much of its appeal
to the assumption that since the wrongful death cause of action
cannot be maintained in the absence of a viable underlying
personal injury claim, its every dimension is under the control
of the injured person whose death gives rise to the wrongful
death claim. 	Thus, the decedent is the master of his claim
because his heirs “stand in the shoes” that shod the decedent
while he was alive.
¶23 	Courts that compel nonsignatory heirs to abide by
arbitration agreements often do so because under their law a
wrongful death cause of action is wholly derivative of and
dependent on the underlying personal injury claim. 	This was the
case in Ballard v. Southwest Detroit Hospital, 327 N.W.2d 370,
371-72 (Mich. Ct. App. 1982), cited by Dr. Abdulla. 	The Ballard
court said this about Michigan’s wrongful death statute:
“Although the Michigan wrongful death act provides for additional

No. 20060424 	10
damages benefitting the decedent’s next of kin for loss of
society and companionship, it does not create a separate cause of
action independent of the underlying rights of the decedent.”
Id. 	This assessment echoed the Michigan Supreme Court’s
pronouncement that “[t]he act clearly provides not that death
creates a cause of action, but that death does not extinguish an
otherwise valid cause of action.” 	Hardy v. Maxheimer, 416 N.W.2d
299, 307 n.17 (Mich. 1987). 	Unlike Utah, Michigan has not chosen
to grant its wrongful death cause of action a place in its state
constitution. 	Unlike Michigan, Utah has uniformly held that a
wrongful death cause of action, while derivative in the sense
that it will not lie without a viable underlying personal injury
claim, is a separate claim that comes into existence upon the
death of the injured person. 	Meads v. Dibblee, 350 P.2d 853, 855
(Utah 1960); Halling v. Indus. Comm’n, 263 P. 78, 81 (Utah 1927).
The independent nature of the wrongful death cause of action in
Utah means that in our state the heirs in a wrongful death action
stand in, at most, one shoe of the decedent. 	The example of
Michigan’s approach to wrongful death leaves us wary of relying
on cases from states whose wrongful death statutes deviate from
ours or which have not elevated their wrongful death causes of
action to constitutional status. 	To be skeptical of joining with
the courts of sister states that have adopted wrongful death
causes of action marked by excessive vulnerability to defenses
created by the decedent is to honor the drafters of the Utah
Constitution, whose restiveness about the questionable commitment
shown by other states to a robust wrongful death cause of action
motivated them to place article XVI, section 5 in our state’s
charter.
¶24 	While we have pointed out that our cases do not mandate
that wrongful death plaintiffs fend off every defense that a
tortfeasor could have asserted against the decedent and how
wrongful death’s constitutional status shields heirs from
defenses that might otherwise have impeded their claim, we have
not explained how to distinguish defenses that may be raised
against wrongful death plaintiffs from those that may not. 	A
case cited by Dr. Abdulla to support his cause aids us in this
task. 	Dr. Abdulla directs us to Hirpa v. IHC Hospitals, Inc.,
948 P.2d 785 (Utah 1997), for the proposition that,
notwithstanding Berry, we have displayed a willingness to enforce
statutes that affect the rights of wrongful death litigants. 	In
Hirpa, we permitted an emergency room physician to use Utah’s
Good Samaritan Act as a defense against a wrongful death claim.
Id. at 794. 	This did not amount to an unconstitutional assault
on the wrongful death cause of action because, as Berry noted,
“‘the Legislature may enact reasonable procedures for the
enforcement of wrongful death actions and may provide for

11 	No. 20060424
reasonable defenses that are not inconsistent with the
fundamental nature of the wrongful death action itself.’” 	Id.
(quoting Berry v. Beech Aircraft Corp., 717 P.2d 670, 685 (Utah
1985)). 	Although we did not conduct a searching inquiry into why
a defense based in the Good Samaritan Act was compatible with a
wrongful death action, it is clear that the defenses created by
the Act share with comparative negligence, Kelson, 784 P.2d at
1155, and statutes of limitations, Jensen, 944 P.2d at 332, a key
common characteristic. 	Both defenses go to the viability of the
underlying personal injury action. 	By contrast, an agreement to
bind heirs to arbitrate disputes does not implicate the viability
of the underlying claim. 	Horwich v. Superior Court, 980 P.2d
927, 935 (Cal. 1999).
¶25 	While we are wary of announcing a categorical rule to
distinguish between defenses that a decedent may successfully
confer by contract on a defendant to assert against heirs in a
wrongful death action, those least likely to be found enforceable
are contract provisions that purport to affect the rights of
heirs but do not affect the existence of the decedent’s personal
injury claim during his lifetime. 	The arbitration agreement
between Dr. Abdulla and Mr. Bybee falls squarely within this
category and is therefore unenforceable against the heirs.
III. 	NEITHER STATUTES NOR EXPRESSIONS OF PUBLIC POLICY FAVORING
ARBITRATION PLAY A ROLE IN DETERMINING WHETHER MRS. BYBEE CAN BE
COMPELLED TO ARBITRATE
¶26 	For a dispute to be subject to arbitration, an
agreement to arbitrate must exist that binds the party whose
submission to arbitration is sought, Ellsworth v. Am. Arbitration
Ass’n, 2006 UT 77, ¶ 14, 148 P.3d 983, and the dispute to be
arbitrated must fall within the scope of the agreement, Buckner
v. Kennard, 2004 UT 78, ¶ 18, 99 P.3d 842.
¶27 	Both Dr. Abdulla and amicus Utah Medical Association
cite many sources for the proposition that the law promotes
arbitration and that the law resolves ambiguities in favor of
arbitration. 	We have no quarrel with these presumptions but
conclude that “[w]hile there is a presumption in favor of
arbitration, that presumption applies only when arbitration is a
bargained-for remedy of the parties” as evidenced by “direct and
specific evidence” of a contract to arbitrate. 	Ellsworth, 2006
UT 77, ¶ 14 (citation and internal quotation marks omitted).
Absent a statute governing arbitration agreements, the fact that
a contract contains an arbitration provision does not influence
the threshold issue of who is bound by the contract terms.

5 The language of the Act appears to make the application of
arbitration agreements to nonsignatory claimants by incorporating
language stating in its relevant portions that “the agreement
shall require that . . . the agreement only apply to: . . . the
claim of a person who is not a party to the contract if the sole
basis for the claim is an injury sustained by a person described
in Subsection (1)(b)(vii)(B).” 	These provisions reasonably could
be read to mandate that arbitration agreements include the terms
that they “only apply to.”
No. 20060424 	12
¶28 	Dr. Abdulla and the UMA share the view that the
Legislature’s enactment of the Utah Uniform Arbitration Act--
codified at Title 78B, Chapter 11 of the Utah Code--and the Utah
Health Care Malpractice Act--codified at Title 78B, Chapter 3,
Part 4 of the Utah Code--either “anticipate” that nonsignatories
be bound by arbitration agreements or, in the case of the UMA,
assert that they expressly mandate enforcement against
nonsignatories.
¶29 	We may dispatch Dr. Abdulla’s reliance on the Utah
Arbitration Act in short order. 	Dr. Abdulla correctly observes
that the Arbitration Act expressly authorizes arbitration
agreements to govern future disputes. 	Utah Code Ann. § 78B-11-
107 (Supp. 2008). 	There is nothing in the Arbitration Act,
however, that can be construed to extend its endorsement to
future controversies involving strangers to the agreement. 	Who
can be bound by an arbitration agreement is a question that
cannot be answered by a provision in a statute explaining what
may be arbitrated.
¶30 	We next turn to the Utah Medical Malpractice Act. 	At
the time Mr. Bybee signed the arbitration agreement, the
Malpractice Act included an arbitration provision that was silent
on whether a patient could bind an heir who had not signed an
agreement to arbitrate a claim against a health care provider.
In 2004, the Legislature amended the Act to mandate that
arbitration agreements require arbitration of “the claim of a
person who is not a party to the contract if the sole basis for
the claim is an injury sustained by [a person who signed the
agreement in a personal or representative capacity].” 	Id. § 78B-
3-421(1)(b)(vii)(C). 5
¶31 	Dr. Abdulla asserts that his arbitration agreement with
Mr. Bybee, although signed in 2003, should be governed by the
2004 amendment because it was intended to be a clarification of
earlier law and not a substantive change to it. 	We conclude that
the 2004 amendment does not include within its reach wrongful
death claims. 	Moreover, to the extent that Dr. Abdulla’s

13 	No. 20060424
characterization of the 2004 amendment as a “clarification” of
prior law is correct, the point the amendment clarified was that
arbitration agreements subject to the Act cannot bind all
nonsignatories.
¶32 	Arbitration agreements subject to the 2004 amendment
can bind a nonsignatory only if the “sole basis for the claim is
an injury sustained by [the patient].” 	Id. 	As discussed above
in Part II, in Utah, a wrongful death cause of action has two
anchors: 	the injury sustained by the decedent and the separate
and independent interests of the heir in whom the claim vests.
Both qualify as a “basis” for a wrongful death claim. 	The
constitutional pedigree conferred on a wrongful death cause of
action, making it in part an action based on injury to the heirs,
amounts to enough to remove it from consideration as “solely”
arising from the injury sustained by the person who signed the
agreement.
¶33 	Buttressing this view is the contrast between the two
provisions of Utah law that extend to an heir the right to
recover damages following the death of another: 	the survival
statute, codified in section 78B-3-107; and the wrongful death
provisions, found at section 78B-3-102 and section 78B-3-106.
With its enactment of the survival statute, the Legislature
codified the principle that the death of an injured person does
not exonerate a tortfeasor from liability for damages even if the
death was unrelated to the wrongful act of the tortfeasor. 	In
such a case, heirs may recover on behalf of the decedent certain
special damages, but may not recover for the pain and suffering
of the decedent and similar components of recovery falling within
the category of general damages. 	The survival statute confers
standing on heirs but limits what they can recover. 	The
amendments to the statute were designed to address the problem
that arose when a person was injured by a tortfeasor, incurred
substantial costs for treatment of the injury, and later died
from a different cause. 	Prior to the amendment, the decedent’s
action against the tortfeasor died with him, yet his estate was
still obligated to pay his medical bills. 	The amendment was
designed to address this injustice but only to the extent of
allowing the heirs to seek compensation from the tortfeasor for
special damages. 	Scott Daniels, A Primer on Damages Under the
Utah Wrongful Death and Survival Statutes, 1974 Utah L. Rev. 519,
533-34 (1974) (citing Utah H.R. Jour., 37th Sess. 27 (1967)).
The restrictions imposed by the statute on the range of damages
available under the survival statute are consistent with an
intention to limit the recovery of a decedent’s heirs to those
damages sustained by the decedent during his lifetime that did
not require the testimony of the decedent to ascertain. 	Id. at

No. 20060424 	14
534-35. 	Unlike the cause of action for wrongful death, however,
the survival statute does not confer on heirs a right to recover
any damages based on injury sustained by them due to the death of
the decedent.
¶34 	Although we are not called upon to decide whether
section 78B-3-421 would bind nonsignatory heirs to arbitrate
survivor claims, by so clearly describing an heir’s claim as one
with its “sole basis” in the injury of the decedent, the text of
section 78B-3-421 distinguishes the claims to which it applies
from the wrongful death cause of action and describes the claims
in terms similar to those which could be brought under the
survivor statute. 	Claims that could be brought under the
survivor statute, unlike those available under the wrongful death
cause of action, are based only on special damages that would
have been available to the decedent. 	In contrast, in a wrongful
death action the expansive scope of damages available extends
well beyond what is permitted by the survivor statute and honors
the separate and exceptional value our society places on familial
relationships. 	If, then, Dr. Abdulla’s arbitration agreement is
to bind Mrs. Bybee, it cannot be because the 2004 amendment to
section 78B-3-421 of the Medical Malpractice Act mandates it.
IV. 	MRS. BYBEE WAS NOT AN INTENDED BENEFICIARY OF THE
ARBITRATION AGREEMENT
¶35 	We have defined third-party beneficiaries to a contract
as those “recognized as having enforceable rights created in them
by a contract to which they are not parties and for which they
give no consideration.” 	Rio Algom Corp. v. Jimco, Ltd., 618 P.2d
497, 506 (Utah 1980) (internal quotation marks omitted).
Third-party beneficiary litigation is typically prosecuted by one
who is asserting her status as a third-party beneficiary to claim
the benefit of some right for which she did not expressly
bargain. 	This case is atypical. 	Mrs. Bybee would be an
unwilling third-party beneficiary. 	She does not desire to
arbitrate her wrongful death cause of action and does not
perceive the arbitration agreement’s attempt to strip her of her
right to prosecute her claim in court as a “benefit.” 	The
district court did not apprehend Dr. Abdulla’s attempt to
restrict Mrs. Bybee’s choice of forum as a benefit, nor do we.
¶36 	The benefits conferred by contracts are presumed to
flow exclusively to the parties who sign the contracts. 	Tracy
Collins Bank & Trust v. Dickamore, 652 P.2d 1314, 1315-16 (Utah
1982) (citing Restatement (Second) of Contracts § 302 (1981)). 	A
third party may claim a contract benefit only if the parties to
the contract clearly express an intention “to confer a separate

6 Counsel for amicus Utah Medical Association insisted that
in the realm of medical malpractice, plaintiffs have found
arbitration to be an attractive alternative to litigation,
implying that plaintiffs have nothing to fear by choosing to
forego the civil justice system. 	Scholarly evidence suggests
otherwise. 	Although arbitration is often touted as a quicker,
less expensive alternative to litigation that benefits both
plaintiffs and defendants, recent research indicates that the
benefits of arbitration are not as equally distributed as
assumed. 	See, e.g., Theodore Eisenberg et al., Arbitration’s
Summer Soldiers: An Empirical Study of Arbitration Clauses in
Consumer and Nonconsumer Contracts, ___ U. Mich. J. of L.
(forthcoming 2008) available at http://ssrn.com/abstract=1076968
(presenting data demonstrating that in the corporate context,
“firms generally shun arbitration except against consumers and
employees” and companies “consistently chose arbitration as the
method for resolving disputes with consumers, but seldom opted
for arbitration in material contracts negotiated with other
parties”). 	Additionally, other commentators have pointed out
that in some instances, because they are selected by the parties,
arbitrators may tend to avoid penalizing an organization in order
to earn their repeated business. 	See James R. Holbrook,
Mandatory Binding Arbitration of Medical Malpractice Claims in
Utah, 16 Utah Bar J. 8 (2003). 	Furthermore, because a plaintiff
must pay a portion of the arbitrators’ fees, arbitration may be
more costly for plaintiffs. 	Id.
15 	No. 20060424
and distinct benefit” on the third party. 	Rio Algom, 618 P.2d at
506. 	The arbitration agreement signed by Mr. Bybee states that
he and Dr. Abdulla “expressly intend that this Arbitration
Agreement shall bind all persons whose claims for injuries and
losses arise out of medical care rendered or which should have
been rendered by [Dr. Abdulla] after the date of this Agreement,
including any spouse or heirs.” 	While the intention to bind Mrs.
Bybee is clear, it is less apparent that the obligation to
arbitrate was a “separate and distinct benefit” bestowed by her
husband and Dr. Abdulla on her. 6
¶37 	Dr. Abdulla contends, however, that it is irrelevant
that Mrs. Bybee found her purported obligation to arbitrate to be
of no benefit to her. 	He insists that the arbitration agreement
was but one element of the greater physician-patient contractual
relationship from which Mrs. Bybee’s wrongful death claim flowed.
Dr. Abdulla does not explain, however, what separate and distinct
benefits the broader physician-patient relationship was intended
to bestow on Mrs. Bybee. 	To be sure, Mrs. Bybee desired that her
husband’s health be restored as a result of his treatment by Dr.
Abdulla. 	She also almost certainly would have considered herself

No. 20060424 	16
to be a beneficiary of her husband’s good health. 	The benefits
Mrs. Bybee would have derived from her husband’s return to health
would, however, have been incidental to the physician-patient
relationship. 	The only intended beneficiary of the contract for
medical services between Dr. Abdulla and Mr. Bybee was the
patient, Mr. Bybee. 	As what was, at most, an incidental
beneficiary of her husband’s medical treatment, Mrs. Bybee
acquired no rights based on Mr. Bybee’s physician-patient
relationship with Dr. Abdulla. 	See, e.g., Mel Trimble Real
Estate v. Fitzgerald, 626 P.2d 453, 454-55 (Utah 1981) (holding
that “one incidentally benefitted by the performance of a promise
to a third person may not maintain an action against the
promisor”).
¶38 	Courts typically invoke the doctrine of estoppel to
compel a third-party beneficiary of a contract to arbitrate a
claim he seeks to pursue that arises from the contract containing
the arbitration clause. 	S. Ill. Beverage, Inc. v. Hansen
Beverage Co., No. 07-cv-391-DRH, 2007 U.S. Dist. LEXIS 76229
(S.D. Ill. Oct. 15, 2007). 	It would be inequitable to do
otherwise because the nonsignatory is attempting to benefit from
the provisions of the contract that requires arbitration. 	By
invoking estoppel, a court may prohibit a party from repudiating
an arbitration clause it perceives to be disadvantageous while
exploiting favorable contract terms. 	Hughes Masonry Co. v.
Greater Clark County Sch. Bldg. Corp., 659 F.2d 836 (7th Cir.
1981); Amoco Transp. Co. v. Bugsier Reederei & Bergungs, A.G. (In
re Oil Spill by the “Amoco Cadiz”), 659 F.2d 789 (7th Cir. 1981).
In keeping with the requirement that an intended third-party
beneficiary directly benefit from the contract, the presence of
an arbitration clause in a contract that does not directly
benefit a litigant cannot estop him from proceeding in court.
Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 779-80
(2d Cir. 1995).
¶39 	Only the patient is the direct beneficiary of a
contract between a physician and the patient. 	That Dr. Abdulla
would, therefore, be unable to sustain a claim that Mrs. Bybee
should be estopped from avoiding arbitrating her wrongful death
claim reinforces our conclusion that she was not an intended
third-party beneficiary.
CONCLUSION
¶40 	We hold that the district court’s denial of Dr.
Abdulla’s motion to compel arbitration was correct because a
decedent does not have the power to contract away the wrongful
death action of his heirs and because in a wrongful death action

17 	No. 20060424
by heirs, arbitration does not fall into the category of defenses
that can be raised because they were available against the
decedent. 	Furthermore, neither section 78B-3-421 nor public
policy favoring arbitration mandate that Mrs. Bybee be bound to
arbitrate. 	Finally, Mrs. Bybee cannot be required to arbitrate
because she is not a third-party beneficiary. 	We therefore
affirm the order of the district court denying Dr. Abdulla’s
motion to compel arbitration.
---
¶41 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.