FOR PUBLICATION



ATTORNEY FOR APPELLANT :    ATTORNEY FOR APPELLEE:

H. KENNARD BENNETT    DOUGLAS B. BATES
Severns & Bennett, P.C.     Stites & Harbison, PLLC         
Indianapolis, Indiana    Jeffersonville, Indiana

ATTORNEYS FOR AMICI CURIAE
AARP and NATIONAL CITIZENS’
COALITION FOR NURSING HOME
REFORM:

GEORGE CLYDE GRAY
DANIEL L. ROBINSON
Gray Robinson Ryan & Fox
Indianapolis, Indiana

DOROTHY SIEMON
Pro Hac Vice
AARP Foundation Litigation
Washington, D.C.

MICHAEL SCHUSTER
Pro Hac Vice
AARP
Washington, D.C.

ERIC CARLSON
Pro Hac Vice
National Senior Citizens Law Center
Los Angeles, California    

CHERYL SANFORD, as Personal        )
Representative of the Estate of         )
DORTHA BAGLEY,                          ) 
                                        )
    Appellant-Plaintiff,                )
                                        )
        vs.                             )    No. 49A02-0310-CV-885  
                                        )
CASTLETON HEALTH CARE CENTER, LLC,      )
d/b/a Castleton Health Care Center,     )
                                        )
    Appellee-Defendant.                 )

Patient [i.e., Bagley] individually or by and through Patient’s Legal Representative (hereinafter referred to as Patient) has considered appropriate care settings and is desirous of receiving care at this Center; and

    Patient has reviewed this ADMISSION AND FINANCIAL CONTRACT, has had opportunity to ask questions of Center personnel about the contract and understands that admission to this Center constitutes agreement to be bound by said ADMISSION AND FINANCIAL CONTRACT . . .

1.    Initial Grievance Procedure: The parties agree to follow the Grievance procedure described in the patient Rights Booklet for any claims or disputes arising out of or in connection with the care rendered to patient by Center and/or its employees. Patient should know that Center is prepared to mediate any concerns at any time upon patient request . . .

2.    MEDIATION: In the event there is a dispute and/or disputes arising out of or relating to (i) this contract or the breach thereof or any tort claim; or (ii) whether or not there has been a violation of any right or rights granted under state law, and the parties are unable to resolve such dispute through negotiation, then the parties agree in good faith to attempt to settle the dispute by mediation administered by Alternate Dispute Resolution Service of the American Health Lawyers Association before resorting to arbitration. . . .

3. ARBITRATION: Any disputes not settled by mediation within 60 days after a mediator is appointed shall be resolved by binding arbitration administered by the Alternate Dispute Resolution Service of the American Health Lawyers Association and judgment may be entered in any court having jurisdiction thereof. . . .

Appellant’s App. at 16, 24-25 (emphasis and capitalization in original). A signature line, bearing Sanford’s signature, appears immediately following the arbitration provision.
    In a deposition, which was filed with the court on September 22, 2003, Andrea Philpot (“Philpot”), who worked at Castleton Center in 2001 as the Director of Admissions and Marketing, testified regarding the standard admission procedures at Castleton Center. In particular, Philpot testified that, in general, if a patient asked about arbitration, she would inform him or her that “in the event of a dispute by the arbitration, . . . there would be no trial by jury.” Appellant’s App. at 31. However, Philpot did not specifically recall meeting with Sanford during Bagley’s admission.
In addition, in a deposition, which was also filed with the trial court on September 22, 2003, Sanford testified that, although she felt “rushed” by the unfortunate circumstances of admitting her mother to Castleton Center—i.e., during the admission process, Bagley was yelling and behaving very aggressively and, at times, Sanford had to attend to her children—no one at Castleton Center urged her to hurry or told her not to read the Contract. Id. at 8. Indeed, Sanford acknowledged that, while she did not read the entire Contract including the arbitration provision containing her signature, she was not precluded from doing so.
Sanford further testified that she worked with Philpot during the admission process and found her to be “friendly.” Id. at 6. Sanford acknowledged that Philpot told her that Castleton Center would have a meeting with Bagley’s family and would “go over all of this stuff [i.e., the Contract] again at that time.” Id. As to her educational background, Sanford testified that she graduated from high school and finished a two-year business curriculum at Porter College, but did not receive a degree. Moreover, Sanford had worked as a business manager for a photography studio.
On September 3, 2003, the Estate filed an amended complaint and jury demand, alleging that, on October 2, 2001, Bagley fell twice at Castleton Center and was transported to Community Hospital with a fractured hip and a urinary tract infection. The amended complaint also alleged that, after undergoing surgery on her hip, Bagley died on October 7, 2001, i.e., twenty-one days after being admitted to Castleton Center. In response, Castleton Center filed a motion to compel arbitration. Pursuant to the Chronological Case Summary, the trial court conducted a hearing on Castleton Center’s motion to compel wherein it heard evidence; however, no transcript of that hearing is available on appeal. On October 7, 2003, the trial court entered its order compelling the Estate to submit the survival and wrongful death claims to mediation and, if necessary, arbitration. It is from this order that the Estate now appeals.

(Emphasis added). The Estate urges us to conclude that an arbitration clause in an admission to nursing home contract constitutes “other consideration” and is, thus, in violation of the Federal Arbitration Act.
    Resolution of this contention requires us to apply tools of statutory construction. Because the general phrase “other consideration” follows a specific enumeration of items including gift, money, or donation, we apply the principle of ejusdem generis, which maintains that “where words of specific and limited signification in a statute are followed by general words of more comprehensive import, the general words shall be construed as embracing only such persons, places, and things as are of like kind or class to those designated by the specific words, unless a contrary intention is clearly shown by the statute.” Cunningham v. Bakker Produce, Inc., 712 N.E.2d 1002, 1006 (Ind. Ct. App. 1999), trans. denied. Put another way, ejusdem generis is a “cannon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed.” Black’s Law Dictionary 535 (7th ed. 1999).
    Here, the Estate argues that the phrase “other consideration” is broad enough to encompass the arbitration clause, because such clause was an inducement to contract. See footnote In essence, the Estate maintains that Bagley’s agreement to arbitrate any claims arising out of the Contract and, thereby, relinquish her right to a jury trial was tantamount to a gift, money, or donation made on behalf of Bagley to Castleton Center, such that when Castleton Center accepted the arbitration agreement, it was in violation of 42 U.S.C. 1396r(c)(5)(A)( iii). We disagree.
    Employing the doctrine of ejusdem generis, we hold that the general phrase “other consideration,” when followed by a specific enumeration of the terms gift, money, or donation, does not encompass an arbitration agreement. In fact, we note that requiring a nursing-home admittee to sign an arbitration agreement is not akin to charging an additional fee or other consideration as a prerequisite of admittance. Rather, an arbitration agreement merely establishes a forum for future disputes; both parties are bound to it and both parties receive whatever benefits and detriments accompany the arbitral forum. Accordingly, the arbitration clause of the Contract is not in violation of the Federal Arbitration Act. See footnote

This trial rule recognizes a “very strong presumption of enforceability of contracts that represent the freely bargained agreement of the parties.” Ransburg v. Richards, 770 N.E.2d 393, 395 (Ind. Ct. App. 2002) (quotations omitted), trans denied.
    In the present case, Sanford, acting as Bagley’s legal representative, executed the Contract, which contained the arbitration clause. In so doing, Sanford waived Bagley’s right to a trial by jury and, instead, agreed to submit any future controversies to arbitration. Moreover, the evidence reveals that Sanford, who received her high school diploma and completed the curricula for a two-year business degree, was granted the opportunity to read the Contract. Indeed, a signature line bearing Sanford’s signature immediately follows the arbitration clause. It is unfortunate that Sanford felt rushed by circumstances beyond Castleton Center’s control, i.e., Bagley’s behavior and distractions by her children. However, such circumstances did not render Sanford’s waiver of Bagley’s constitutional right to trial by jury unknowing and involuntary.

. . . provide proper assessment of [Bagley’s] mental, physical, and psychological needs, and [failing] to define and/or implement a plan of care to meet those needs;

. . . prevent the fall that occurred on the morning of October 2, 2001;

. . . properly assess [Bagley] after the fall on the morning of October 2, 2001;

. . . prevent the second fall that occurred on the afternoon of October 2, 2001;

. . . prevent incontinence;

. . . prevent urinal tract infection; [and]

. . . notify [Bagley’s] family of changes in [Bagley’s] condition.

Appellee’s App. at 15-16.
Indiana Code Section 34-9-3-1, commonly referred to as Indiana’s Survival Statute, provides as follows:
(a)     If an individual who is entitled or liable in a cause of action dies, the cause of action survives and may be brought by or against the representative of the deceased party except actions for:

which survive only to the extent provided in this chapter.

(b)     An action under this chapter may be brought, or the court, on motion, may allow the action to be continued by or against the legal representatives or successors in interest of the deceased. The action is considered a continued action and accrues to the representatives or successors at the time the action would have accrued to the deceased if the deceased had survived.

Ind. Code § 34-9-3-1 (emphasis added). In addition, Indiana Code Section 34-9-3-4, which applies when a person “receives personal injuries caused by the wrongful act or omission of another” and subsequently dies from causes other than those personal injuries, provides that:
The personal representative of the decedent who was injured may maintain an action against the wrongdoer to recover all damages resulting before the date of death from those injuries that the decedent would have been entitled to recover had the decedent lived. The damages inure to the exclusive benefit of the decedent’s estate.

Pursuant to these statutes, the only claims that survive a decedent’s death are those that the decedent would have been entitled to bring, or liable to defend against, during his or her lifetime.
    In the present case, all of the claims asserted by the Estate in Count I of the amended complaint relate to Castleton Center’s negligent treatment and supervision of Bagley. These claims arise out of or relate to the Contract “or the breach thereof or any tort claim.” Appellant’s App. at 24-25. As such, these claims are governed by the arbitration clause of the Contract and, consequently, Bagley, if alive, would not have been entitled to bring this cause of action against Castleton Center. Because the allegations asserted in Count I of the amended complaint would not have been justiciable, absent review of an arbitral award, during Bagley’s lifetime, they clearly did not become justiciable upon her death. Accordingly, the trial court did not err by compelling the Estate to arbitrate the claims alleged in Count I of the amended complaint.
    Further, Count II of the amended complaint, which encompasses the wrongful death action, alleges that Castleton Center failed to prevent Bagley’s falls and to timely diagnose her urinary tract infection and that, as a result, Bagley required “surgical intervention that she did not survive.” Appellee’s App. at 16. Indiana Code Section 34-23-1-1 governs wrongful death actions and provides, in pertinent part, that:
When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission.

Thus, pursuant to Indiana Code Section 34-23-1-1, a personal representative may maintain a cause of action against an alleged wrongdoer only if the decedent, if alive, might have maintained such a cause of action.
Here, because the claims asserted in Count II of the amended complaint arose out of or related to the Contract or any tort claim, they are governed by the arbitration clause of the Contract. As such, regardless of whether these claims were asserted by Bagley, while alive, or the Estate, upon her death, they are not justiciable in a court of law, except as a review of an arbitral award. Accordingly, the trial court did not err when it compelled the Estate to arbitrate the wrongful death claims alleged in Count II of the amended complaint.
    For the foregoing reasons, we affirm the trial court’s order compelling the Estate to arbitrate its survival and wrongful death claims.
    Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.