We hold that a prior personal injury suit does not bar a related wrongful death claim brought by the decedent's heirs or personal representative. Bybee v. Abdulla, 2008 UT 35, ¶ 23, 189 P.3d 40; Jensen v. IHC Hosps., Inc., 944 P.2d 327, 332 (Utah 1997).BACKGROUND

¶17 When considering defenses asserted in wrongful death actions, this court often has begun by explaining the historical and unique nature of the action. See, e.g., Riggs v. Ga.-Pac. LLC, 2015 UT 17, ¶ 12, 345 P.3d 1219; Bybee v. Abdulla, 2008 UT 35, ¶ 18, 189 P.3d 40. For context, we briefly do so again here.

The Utah Supreme Court has 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.’ " Bybee v. Abdulla , 2008 UT 35, ¶ 35, 189 P.3d 40, 49 (quoting Rio Algom Corp. v. Jimco, Ltd. , 618 P.2d 497, 506 (Utah 1980) ). To determine whether a party has third-party beneficiary status, courts first look to the written contract, Wagner v. Clifton , 2002 UT 109, ¶ 11, 62 P.3d 440, 442, and they will only find such status if "the parties to the contract clearly express an intention ‘to confer a separate and distinct benefit’ on the third party," Bybee , 2008 UT 35, ¶ 36, 189 P.3d 40 (quoting Rio , 618 P.2d at 506 ).

We further note that state and federal policies favoring arbitration cannot be used to defeat the plain language of the parties' contract, nor can they be used to create ambiguities where there are none. Because the language of this contract is unambiguous, we reverse the district court's decision to compel arbitration and remand this case to the district court for further proceedings consistent with this opinion. Volt, 489 U.S. at 476, 109 S.Ct. 1248;see also Bybee v. Abdulla, 2008 UT 35, ¶ 27, 189 P.3d 40 (stating that we have “no quarrel” with the presumption that ambiguities be resolved in favor of arbitration)..2008 UT 35, ¶ 27, 189 P.3d 40 (emphasis added) (internal quotation marks omitted).

¶ 26 With respect to Blosch's status as a third-party beneficiary of the Loan Agreement, “[a] third party may claim a contract benefit only if the parties to the contract clearly express an intention to confer a separate and distinct benefit on the third party.” Bybee v. Abdulla, 2008 UT 35, ¶ 36, 189 P.3d 40 (citation and internal quotation marks omitted). For the Joint Check Letter to unambiguously show that the parties intended to make Blosch a third-party beneficiary of the Loan Agreement, “[t]he contract must be undertaken for the plaintiff's direct benefit and the contract itself must affirmatively make this intention clear.”

In contrast, prior to the enactment of the survival statute, “the decedent's action against the tortfeasor died with him, yet his estate was still obligated to pay his medical bills.” Bybee v. Abdulla, 2008 UT 35, ¶ 33, 189 P.3d 40. ¶ 46 The present dispute concerns how much the heirs may recover.

However, this language alone does not support a theory that Lowes is a party to the credit agreement. Most arbitration agreements, like most contracts, bind only those who bargain for them, 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" Bybee v. Abdullah, 189 P.3d 40, 49 (Utah 2008) (quoting Cal Wadsworth Const. v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995)). In addition to mutual assent, the formation of a contract also requires consideration, that is, a bargained-for performance or promise.

In these states, "a wrongful death action, while derivative in the sense that it will not he without a viable underlying personal injury claim, is a separate claim that comes into existence upon the death of the injured person." Bybee v. Abdulla, 189 P.3d 40, 46 (Utah 2008). The heirs pursuing a wrongful death claim thus "stand in, at most, one shoe of the decedent."

But "state and federal policies favoring arbitration cannot be used to defeat the plain language of the parties' contract, nor can they be used to create ambiguities where there are none."Bybee v. Abdulla, 2008 UT 35, ¶ 26, 189 P.3d 40 (citations omitted).Peterson & Simpson v. IHC Health Servs, Inc., 2009 UT 54, ¶ 22, 217 P.3d 716.

The trial judge did not rule on the validity of the contract, but looked solely to whether the arbitration agreement was enforceable.Grace appealed, arguing that the trial court erred in relying on the Utah case of Bybee v. Abdulla, 189 P.3d 40 (Utah 2008), to hold that non-signatories to the arbitration agreement were not bound by it for their wrongful death claim because the claim was not wholly derivative of Cleo Boler's claim. The trial court's order was filed April 16, 2013.