=== PDF PAGE 1 ===
                                                                      2026 IL 132066


                                                                          IN THE
                                                           SUPREME COURT
                                                                                OF
                                                  THE STATE OF ILLINOIS





                                                                  (Docket No. 132066)

      GLORIA SHERIDAN GELLER, as Independent Administrator of the Estate of Mark Geller,
                     Deceased, Appellant,                         v. UBER TECHNOLOGIES, INC., et al                       ., Appellees.


                                                       Opinion filed September 24, 2026.



                                                                            JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

                                            Chief Justice Neville                                                                               and             Justices       Holder White, Cunningham, Rochford,
               O’Brien, and Tailor concurred in the judgment and opinion.



                                                                          OPINION

¶ 1                                                                                                                                                             Plaintiff, Gloria Sheridan Geller (Sheridan), as the independent administrator
               of the estate of her deceased husband, Mark Geller, filed in the circuit court of Cook
               County a complaint against defendants, Uber Technologies, Inc.;             Rasier, LLC,
               Uber’s wholly owned subsidiary (collectively,               Uber);                                    and Ejaz Rathore (a deceased
               Uber driver), alleging wrongful death claims, survival claims, and negligence

=== PDF PAGE 2 ===
                     claims based on res ipsa loquitur           . See 740 ILCS 180/0.01        et seq.                 (West 2022)
                     (Wrongful Death Act); 755 ILCS 5/27-                                     6 (West 2022) (Survival Act); Johnson v.
                     Armstrong, 2022 IL 127942, ¶ 23 (              res ipsa loquitur). Uber filed a motion to dismiss
                     or compel arbitration, relying on terms-of-use agreements, both of which included
                     an arbitration section, executed by Mark and Sheridan individually. The circuit
                     court granted Uber’s motion to compel arbitration of the estate’s survival claims
                     based on Mark’s agreement but denied Uber’s motion to compel arbitration of the
                     estate’s wrongful death claims based on Sheridan’s agreement. Uber appealed.

¶ 2                                                                                                                                              The Appellate Court, First District, reversed the circuit court’s judgment,
                     finding that Uber and Sheridan’s arbitration agreement delegated the question of
                     arbitrability—i.e.                                                , whether the estate’s wrongful death claims fall within the scope
                     of Sheridan’s arbitration agreement—to an arbitrator. 2025 IL App (1st) 241458-
                     U,      ¶¶ 1, 24. The appellate court remanded for further such proceedings. Id.                                               The
                     estate filed a petition for leave to appeal, which this court allowed. Ill. S. Ct. R. 315
                     (eff. Dec. 7, 2023).

¶ 3                                                                                                                                                                                              This case asks whether Sheridan’s individual arbitration agreement—governing
                     claims arising from her personal use of Uber’s services—obligates the estate to
                     arbitrate the arbitrability of wrongful death claims, on her behalf as a statutory
                     beneficiary under the Wrongful Death Act (740 ILCS 180/0.01            et seq.                        (West
                     2022)), where the wrongful death claims arise from Mark’s personal use of Uber’s
                     services and resulting subsequent death. For the following reasons, we answer in
                     the negative, reverse the judgment of the appellate court, and affirm the circuit
                     court’s order denying the motion to dismiss or compel arbitration of the estate’s
                     wrongful death claims.


¶ 4                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      BACKGROUND

¶ 5                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Circuit Court

¶ 6                                                                                                                                                     On April 19, 2022, Mark requested transportation through Uber’s rideshare
                     application. During the trip, his driver, Rathore, lost control of the vehicle on the
                     expressway, resulting in a crash that fatally injured both Rathore and Mark. On
                     February 21, 2023, the estate filed a nine-count, third-                    amended complaint against
                     Uber and Rathore. The estate alleged that Rathore was negligent and that Uber was




                                                                                                            - 2 -

=== PDF PAGE 3 ===
              vicariously liable, and it asserted negligence via res ipsa loquitur            , survival claims
              (755 ILCS 5/27-                                    6 (West 2022)), and wrongful death claims on behalf of Mark’s
              statutory next      of    kin under the Wrongful Death Act (740 ILCS 180/0.01      et seq.
              (West 2022)).

¶ 7                                                                                                                                            Thereafter, Uber filed a motion to dismiss or,       in the alternative, to stay
              proceedings and compel arbitration. See 735 ILCS 5/2-            619(a)(9) (West 2022)
              (involuntary dismissal based upon certain defects or defenses); 9 U.S.C. §§ 2, 3, 4
              (2018) (sections 2, 3, and 4 of the Federal Arbitration Act (FAA)); 710 ILCS 5/2(d)
              (West 2022) (section 2(d) of Illinois’s implementation of the Uniform  Arbitration
              Act). Uber asserted that, pursuant to its rideshare application, passengers download
              the rider version of Uber’s application, drivers download the driver version,1        and
              together, the applications allow users to access the platform that connects
              individuals in need of a ride with individuals willing to provide transportation
              services.

¶ 8                                                                                                                                                   Uber asserted that,     as a condition of using the rider application, customers
              create an account and accept Uber’s terms-of-use agreement. Uber asserted that,
              when it updates its terms-of-use agreement, customers must accept the updated
              terms before they may utilize the rider application. As such, Uber asserted that
              Mark, as a rider, had agreed in the parties’ Internet-based terms-of-use agreement
              to arbitrate the claims asserted in the action and attached Mark and Uber’s
              agreement. In its motion, Uber asserted that Sheridan also agreed to arbitrate in a
              user agreement she executed when she created a user account, in the same manner
              Mark did.

¶ 9                                                                                                                                                              Uber later submitted the following language found in section 2 of Sheridan’s
              “U.S. Terms of Use” agreement, timestamped May 11, 2016:

                                                                                 “2. Arbitration Agreement






                    1  Rasier, LLC, Uber’s wholly owned subsidiary, sublicenses the driver version to
              independent drivers.




                                                                            - 3 -

=== PDF PAGE 4 ===
                                              By agreeing to the Terms, you agree that you are required to resolve any
claim that you may have against Uber on an individual basis in arbitration as
set forth in this Arbitration Agreement. ***

                                                             (a) Agreement to Binding Arbitration Between You and Uber.

                                                   Except as expressly provided below in Section 2(b) [which excludes from
arbitration,     inter     alia, claims brought in small claims court, claims of sexual
assault or sexual harassment, or injunctive or other equitable relief to prevent
copyright infringement], you and Uber agree that any dispute, claim or
controversy in any way arising out of or relating to (i) these Terms and prior
versions of these Terms, or the existence, breach, termination, enforcement,
interpretation, scope, waiver, or validity thereof, (ii) your access to or use of the
Services at any time, (iii) incidents or accidents resulting in personal injury that
you allege occurred in connection with your use of the Services, whether the
dispute, claim or controversy occurred or accrued before or after the date you
agreed to the Terms, or (iv) your relationship with Uber, will be settled by
binding arbitration between you and Uber, and not in a court of law. This
Agreement survives after your relationship with Uber ends.

                                                             ***

                                           This Arbitration Agreement shall be binding upon, and shall include any
claims brought by or against any third-                               parties *** where their underlying claims
are in relation to your use of the Services. ***

                                                             (b) Exceptions to Arbitration

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         * * *

                                                             (c) Rules and Governing Law

                     The arbitration will be administered by the American Arbitration
Association (‘AAA’) ***.

                                                                        The parties agree that the arbitrator (‘Arbitrator’), and not any federal, state,
or local court or agency, shall have exclusive authority to resolve any disputes
relating to the interpretation, applicability, enforceability or formation of this
Arbitration Agreement, including any claim that all or any part of this



                                                                  - 4 -

=== PDF PAGE 5 ===
                  Arbitration Agreement is void or voidable. The Arbitrator shall also be
                  responsible for determining all threshold arbitrability issues, including issues
                  relating to whether the Terms are applicable, unconscionable or illusory and
                  any defense to arbitration, including waiver, delay, laches, or estoppel. If there
                  is a dispute about whether this Arbitration Agreement can be enforced or
                  applies to a dispute, you and Uber agree that the arbitrator will decide that issue.

                                                         Notwithstanding any choice of law or other provision in the Terms, the
                  parties agree and acknowledge that this Arbitration Agreement evidences a
                  transaction involving interstate commerce and that the [FAA], 9 U.S.C. § 1
                  et seq.             (‘FAA’), will govern its interpretation and enforcement and proceedings
                  pursuant thereto. It is the intent of the parties to be bound by the provisions of
                  the FAA for all purposes, including, but not limited to, interpretation,
                  implementation, enforcement, and administration of this Arbitration
                  Agreement, and that the FAA and AAA Rules shall preempt all state laws to
                  the fullest extent permitted by law.

                                                                            Any dispute, claim, or controversy arising out of or relating to incidents or
                  accidents resulting in personal injury *** that you allege occurred in connection
                  with your use of the Services *** shall be governed by *** the laws of the state
                  in which the incident or accident occurred.”

¶ 10                                                                                                                                        The circuit court granted, in part, Uber’s motion by compelling arbitration of
             the estate’s survival claims based on Mark’s execution of Uber’s terms-of-use
             agreement, not herein set forth, which included arbitration provisions. See Carter
             v. SSC Odin Operating Co., 2012 IL 113204, ¶                                    57 (Carter II) (arbitration agreement
             signed by decedent binds an estate to arbitrate a survival claim but not a wrongful
             death claim). The circuit court denied Uber’s request to compel arbitration of the
             estate’s wrongful death claims and thereby stayed the wrongful death claims
             pending resolution of the arbitration of the survival claims. See        id.                                            (arbitration
             agreement signed by decedent does not bind estate to arbitrate wrongful death claim
             that is derivative of decedent’s death and not part of the estate’s assets that the
             decedent can limit via arbitration agreement during his lifetime). The circuit court
             found Sheridan’s arbitration agreement “largely irrelevant to the claims [the estate]
             is asserting on the wrongful death[ ] because *** [her] arbitration agreement talks
             about her usage; not her husband’s usage” and therefore the estate’s wrongful death




                                                                  - 5 -

=== PDF PAGE 6 ===
                 claims were not subject to arbitration. The estate orally moved to voluntarily
                 dismiss the survival actions, and the circuit court entered its corresponding order
                 allowing the dismissal.

¶ 11                                                                                                                                             Uber filed an interlocutory appeal from the circuit court’s denial of its motion
                 to compel arbitration of the estate’s wrongful death claims. See Ill. S. Ct. R.
                 307(a)(1) (eff. Nov. 1, 2017); Salsitz v. Kreiss, 198 Ill. 2d 1, 11 (2001) (order
                 granting or denying motion to compel arbitration “is injunctive in nature and
                 subject to interlocutory appeal under paragraph (a)(1) of [Rule 307]”).


¶ 12                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             Appellate Court

¶ 13                                                                                                                          The appellate court reversed the circuit court’s denial of Uber’s motion to
                 compel arbitration of the estate’s wrongful death claims. 2025 IL App (1st) 241458-
                 U, ¶ 1. The appellate court identified in the arbitration agreement a delegation
                 clause, delegating to the arbitrator in subsection 2(c) the “authority to resolve any
                 disputes relating to the interpretation, applicability, enforceability or formation” of
                 the arbitration agreement. See                    id.     ¶ 20. The appellate court noted, however, that
                 although the agreement’s language also provided that the arbitrator “ ‘determine[e]
                 *** whether the [t]erms are *** unconscionable,’ ” the court was required to
                 determine the unconscionability question. Id.                                                                         The appellate court explained that         , if
                 it found the arbitration agreement unconscionable, it could not enforce the
                 delegation clause, delegating arbitrability to an arbitrator, within the
                 unconscionable arbitration agreement. Id.

¶ 14                                                                                                                                          The appellate court held that “a delegation clause cannot delegate the general
                 validity of an arbitration agreement to the arbitrator.” Id.                         The appellate court
                 explained that,   “when a party challenges the validity of an arbitration agreement,
                 the ‘court must               consider the challenge before ordering compliance’ with the
                 arbitration agreement even if a delegation clause purports to reserve that issue for
                 the arbitrator. (Emphasis in original.)” Id.       (quoting Coinbase, Inc. v. Suski, 602 U.S.
                 143, 151 (2024)). The appellate court thereby proceeded to evaluate whether the
                 arbitration provisions in Sheridan’s terms-of-use agreement were unconscionable.
                 Id.






                                                                                         - 6 -

=== PDF PAGE 7 ===
¶ 15                                                                                                                                                    On review, the appellate court concluded that Sheridan’s arbitration agreement
                 was neither procedurally unconscionable                                       (id.                                       ¶ 24)                  nor substantively
                 unconscionable     (id.     ¶ 29)                         . In rejecting the estate’s contention that the agreement
                 was unconscionable, the appellate court concluded that the delegation clause in
                 Uber and Sheridan’s arbitration agreement delegates the arbitrability dispute to the
                 arbitrator, not the court, for resolution.          Id.          ¶¶ 18            -20. Thus, the appellate court
                 concluded that the circuit court lacked authority to find that the estate’s wrongful
                 death claims were not subject to arbitration pursuant to Sheridan’s arbitration
                 agreement with Uber. Id. ¶ 36. The appellate court remanded the cause for further
                 proceedings consistent with its order                                   . Id.                         ¶ 44.

¶ 16                                                                                                                                                         On July 1, 2025, the estate filed its petition for leave to appeal to this court, and
                 this court allowed its petition. Ill. S. Ct. R. 315 (eff. Dec. 7, 2023). The Illinois Trial
                 Lawyers Association and the American Association for Justice filed an amicus
                 curiae  brief in support of the estate’s position on appeal, as did the Women’s Bar
                 Association of Illinois, the      Illinois Coalition Against Sexual Assault, and the
                 Victim Rights Law Center. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).             The Chamber
                 of Commerce of the United              States of A                        merica       and the Illinois Chamber of
                 Commerce filed an amicus           curiae brief in support of Uber’s position on appeal.


¶ 17                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 ANALYSIS

¶ 18                                                                                                                                  On appeal, the estate argues that the appellate court erred in holding that its
                 wrongful death claims belonged to Sheridan in her capacity as a statutory wrongful
                 death beneficiary, in compelling arbitration of the arbitrability of the wrongful
                 death claims based on Sheridan’s agreement with Uber, and in finding that Uber’s
                 terms of use were not unconscionable. Uber counters that the appellate court
                 properly concluded that Sheridan’s arbitration agreement with Uber mandates that
                 an arbitrator must decide if   the estate’s wrongful death claims are arbitrable and
                 that,    although the circuit court should have refrained from deciding the issue of
                 unconscionability, it properly concluded that the arbitration agreement was not
                 unconscionable. For the following reasons, we hold that the appellate court erred
                 by not addressing, as a threshold matter, whether Sheridan contracted with Uber to
                 arbitrate the issue of the arbitrability of Mark’s estate’s wrongful death dispute.
                 Further, because we find that they did not so contract, there is no reason to address




                                                                                          - 7 -

=== PDF PAGE 8 ===
                    the issue of unconscionability.


¶ 19                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         Standard of Review

¶ 20                                                                                                                                             Section 2-619(a)(9) of the Code of Civil Procedure allows for a dismissal of a
                    claim or other appropriate relief, such as a stay of the proceedings, where the claim
                    is barred by an affirmative matter—such as the exclusive remedy of arbitration—
                    that avoids    the legal effect of or defeats a claim. 735 ILCS 5/2-619(a)(9) (West
                    2022). Here, this court reviews de novo                                    the circuit court’s denial of Uber’s motion
                    to compel the arbitration of the arbitrability of the estate’s wrongful         death claims
                    and the underlying dispute. See Clanton v. Oakbrook Healthcare Centre, Ltd., 2023
                    IL 129067, ¶ 31.


¶ 21                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Illinois Wrongful Death Act Principles

¶ 22                                                                                                                      “At common law, no cause of action existed to recover damages for the
                    wrongful death of another, and a cause of action abated at the death of the injured
                    party.” Carter II         , 2012 IL 113204, ¶ 32. “Thus, ‘ “it was cheaper for the defendant
                    to kill the plaintiff than to injure him.” ’ ” Id. (quoting Williams v. Manchester, 228
                    Ill. 2d 404, 418 (2008),  quoting Prosser and               Keeton on  the Law of  Torts § 127, at
                    945 (W. Page Keeton et al.                                                             eds., 5th ed. 1984)). “In 1853, however, the legislature
                    adopted the Injuries Act (1853 Ill. Laws 97), now known as the Wrongful Death
                    Act, creating a new cause of action for pecuniary losses suffered by the deceased’s
                    spouse and next of kin by reason of the death of the injured person.” Id.

¶ 23                                                                                                                                                    Section 1 of the Wrongful Death Act provides:

                            “Whenever the death of a person shall be caused by wrongful act, neglect or
                            default, and the act, neglect or default is such as would, if death had not ensued,
                            have entitled the party injured to maintain an action and recover damages in
                            respect thereof, then and in every such case the person who or company or
                            corporation which would have been liable if death had not ensued, shall be
                            liable to an action for damages ***.” 740 ILCS 180/1 (West 2022).

¶ 24                                                                                                                                                            “Although section 2 provides that every wrongful-death action shall be brought
                    by and in the names of the ‘personal representatives’ of the deceased, the action is




                                                                                                         - 8 -

=== PDF PAGE 9 ===
              filed for the ‘exclusive benefit of the surviving spouse and next of kin of such
              deceased person.’ 740 ILCS 180/2 (West 2006).” Carter II, 2012 IL 113204, ¶ 33.
              “Thus, the personal representative in a wrongful-death claim is ‘merely a nominal
              party to this action, effectively filing suit as a statutory trustee on behalf of the
              surviving spouse and next of kin, who are the true parties in interest.’                ”         Id. (quoting
              Glenn v. Johnson, 198 Ill. 2d 575, 583 (2002)); see Pasquale v. Speed Products
              Engineering, 166 Ill. 2d 337, 361 (1995) (statutory requirement that wrongful                                                 death
              action be brought by and in the name of the personal representative serves to avoid
              a multiplicity of suits by the next of kin and ensures that the interests of the
              beneficiaries are protected). “The identity of the personal representative who filed
              the complaint is irrelevant since the representative is merely a nominal party acting
              on behalf of the true beneficial plaintiffs  ***.”                                                                                  Glenn, 198 Ill. 2d at 583-84.

¶ 25                                                                                                                                        In this case, the parties submit that Sheridan, as independent administrator of
              the estate and Mark’s spouse, is both the personal representative of the estate and
              the statutory beneficiary under the Wrongful Death Act. Thus, Sheridan appears in
              this litigation in distinct legal capacities: first, as an individual Uber user who
              accepted contractual terms governing her own transportation activities; second, as
              a statutory beneficiary under the Wrongful Death Act; and third, as independent
              administrator and personal representative of the estate. As personal representative
              of the estate, Sheridan is the nominal party asserting wrongful death claims brought
              for her benefit (and any other next of kin) as statutory beneficiaries of the wrongful
              death claims.

¶ 26                                                                                                                                           “A wrongful-death action is perhaps best understood when contrasted with an
              action under our so-called ‘Survival Act,’ now section 27-                                                                                6 of the Probate Act of
              1975. 755 ILCS 5/27-                           6 (West 2006).”                               Carter II, 2012 IL 113204, ¶ 34. “The
              Survival Act allows an action *** to survive the death of the injured person.” Id.
              “Whereas the Wrongful Death Act created a new cause of action that does not
              accrue until death, the Survival Act simply allows a representative of the decedent
              to maintain those statutory or common law actions that had already accrued to the
              decedent prior to death.” Id. As explained previously by this court:

                   “ ‘A survival action allows for recovery of damages for injury sustained by the
                   deceased up to the time of death; a wrongful death action covers the time after
                   death and addresses the injury suffered by the next of kin due to the loss of the




                                                                        - 9 -

=== PDF PAGE 10 ===
                    deceased rather than the injuries personally suffered by the deceased prior to
                    death.’ ” Id. (quoting Wyness v. Armstrong World Industry, Inc., 131 Ill. 2d 403,
                    410 (1989)).

¶ 27                                                                                                                                               This court has held that, pursuant to the plain language of the Wrongful Death
              Act, examined in light of the statute as a whole, the money recovered under the
              Wrongful Death Act should not be treated as part of the estate of the deceased. Id.
              ¶ 40. Instead, the right to receive wrongful             death benefits is an asset of the next of
              kin and,                                                    should they die, the estate of the next of kin; “it is not an asset of the estate
              of the decedent who is the subject of the wrongful-death action.” Id.                 ¶ 41 (citing
              National Bank of Bloomington v. Podgorski, 57 Ill. App. 3d 265, 267 (1978)).
              Accordingly, a wrongful  death action filed by a surviving spouse or next of kin is
              not an asset of the deceased’s estate that can be limited via the deceased’s
              arbitration agreement with defendant. See id. ¶ 46.

¶ 28                                                                                                                                          Here, the circuit court applied these principles when it concluded that Mark’s
              execution of Uber’s terms-of-use agreement, involving claims arising from his own
              use of Uber’s services and including arbitration and delegation-of-                                       arbitrability
              provisions, relegated the estate’s survival claims to arbitration. See               id. ¶ 57. In this
              appeal, however, Mark’s execution of Uber’s arbitration provisions becomes
              irrelevant for purposes of the estate’s wrongful death                          claims. See    id.                               As a result,
              Uber seeks to use the arbitration and delegation-of-                       arbitrability provisions in
              Sheridan’s own terms-of-use agreement with Uber, to require Sheridan to arbitrate
              claims she has brought against Uber in her capacity as personal representative of
              Mark’s estate or as the wrongful death statutory beneficiary. However, Sheridan’s
              terms-of-use agreement with Uber involves claims arising from her own “access to
              or use of” Uber’s services in her individual capacity,     and the estate’s wrongful
              death claims in this case arise from injuries Mark subsequently sustained from his
              access to and use of Uber’s services.

¶ 29                                                                                                                            Accordingly, to determine whether the circuit court properly denied Uber’s
              motion to compel arbitration in this case, we address two questions: (1) whether
              Sheridan clearly and unmistakably agreed to delegate arbitrability of the estate’s
              wrongful death claims to an arbitrator and (2) whether, absent delegation, the
              wrongful death claims fall within the scope of Sheridan’s agreement to arbitrate the






                                                                         - 10 -

=== PDF PAGE 11 ===
                   underlying dispute. We answer both questions in the negative.


¶ 30                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Delegation of Arbitrability

¶ 31                                                                                                                                                                                                                                                                                   Contract Formation and Delegation Clause Requirements

¶ 32                                                                                                            This court’s first task is to determine whether Sheridan clearly and
                   unmistakably consented to delegate to an arbitrator the authority to decide
                   arbitrability of wrongful death claims arising from Mark’s use of Uber’s services.
                   The Wrongful Death Act’s provision allowing a jury to determine damages for
                   wrongful death claims (740 ILCS 180/2 (West 2022)) is consistent with the right to
                   access a court to adjudicate a civil dispute. The guarantee to the right to trial by jury
                   in civil actions in federal courts has been said to “ ‘occup[y] so firm a place in our
                   history and jurisprudence that any seeming curtailment of the right to a jury trial
                   should be scrutinized with the utmost care.’ ”             Beacon Theatres, Inc. v. Westover,
                   359 U.S. 500, 501 (1959) (quoting Dimick v. Schiedt                                                   , 293 U.S. 474, 486 (1935)).
                   Likewise, the Illinois C            onstitution guarantees civil litigants in Illinois courts the
                   constitutional right to a jury trial, as that right was recognized before the adoption
                   of the Illinois Constitution in 1970. See                                                                                                                                                             Ill. Const. 1970, art. I,                                                                                                                        § 13; People ex rel.
                   Daley v. Joyce, 126 Ill. 2d 209, 215 (1988). “[A] party who has not agreed to
                   arbitrate will normally have a right to a court’s decision about the merits of its
                   dispute.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995).

¶ 33                                                                                                                                               Even so, “it is axiomatic that a party may waive the right to a trial by jury in a
                   civil case by entering into a contract to arbitrate.” Carter v. SSC Odin Operating
                   Co., 237 Ill. 2d 30, 49 (2010)                                    (Carter I). Where a party has agreed to arbitrate, he
                   has relinquished much of the practical value of the right to a court’s decision
                   because a court will set aside an arbitrator’s decision only in very unusual
                   circumstances. First Options, 514 U.S. at 942. “Hence, who—court or arbitrator                                                                                             —
                   has the primary authority to decide whether a party has agreed to arbitrate can make
                   a critical difference to a party resisting arbitration.” Id.

¶ 34                                                                                                                                                         “[A]rbitrators derive their authority to resolve disputes only because the parties
                   have agreed in advance to submit such grievances to arbitration.” AT&T
                   Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648-                                                                                                             49
                   (1986). “[P]arties can form multiple levels of agreements concerning arbitration.”




                                                                                                   - 11 -

=== PDF PAGE 12 ===
               Coinbase, 602 U.S. at 148. At a basic level, parties can agree to send the merits of
               a dispute, i.e.                     , the parties’ underlying grievance, to an arbitrator. Id.                     Parties to an
               arbitration agreement may also agree to allow an arbitrator to decide “gateway”
               questions of “arbitrability,” such as whether their agreement covers a particular
               controversy. Rent                                                -A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010).

¶ 35                                                                                                                                               “An agreement to arbitrate a gateway issue is simply an additional, antecedent
               agreement the party seeking arbitration asks the *** court to enforce   ***.”                                                                         Id.    at
               70. The agreement to arbitrate a gateway issue is considered a “delegation
               provision” because it reflects the parties’ decision to delegate arbitrability, i.e.                                            ,
               whether the dispute is arbitrable, to the arbitrator instead of having a court decide.
               Id. at 68-69 (“The delegation provision is an agreement to arbitrate threshold issues
               concerning the arbitration agreement.”); New Prime Inc. v. Oliveira       , 586 U.S. 105,
               112 (2019) (“A delegation clause is merely a specialized type of arbitration
               agreement ***.”).

¶ 36                                                                                                                              Because delegation is an exception to the general rule that arbitrability is a
               question for the courts, the party seeking delegation must show the parties’ intent
               to delegate arbitrability by “clea[r]        and unmistakabl[e]                  evidence.”                  (Internal
               quotation marks omitted.) Coinbase           , 602 U.S. at 149 (courts may find that parties
               agreed to arbitrate arbitrability only upon clear and unmistakable evidence). The
               more rigorous standard of clear and unmistakable evidence that applies when the
               inquiry is whether the parties have agreed to arbitrate arbitrability is a type of
               reverse presumption—one in favor of a judicial, rather than an arbitral                                                                                                , forum. First
               Options, 514 U.S. at 944-45. It is a reverse presumption because it is counter to the
               presumption applied in favor of arbitration when the question is whether a
               particular dispute falls within the scope of a concededly binding arbitration
               agreement. Id.

¶ 37                                                                                                                                             The United States Supreme Court has found that, for purposes of applying the
               interpretive rule, the phrase “question of arbitrability,” traditionally a question for
               the courts, is “applicable *** where reference of the gateway dispute to the court
               avoids the risk of forcing parties to arbitrate a matter that they may well not have
               agreed to arbitrate.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84
               (2002). In contrast, procedural questions arising from the dispute and bearing on its
               final disposition are presumptively not for the judge but for an arbitrator to decide.




                                                                            - 12 -

=== PDF PAGE 13 ===
              Id.     at     85    (holding National Association of Securities Dealers time limit rule is a
              matter for the arbitrator, not the judge); John Wiley & Sons, Inc. v. Livingston, 376
              U.S. 543, 557 (1964) (holding that an arbitrator should decide whether the first two
              steps of a grievance procedure were completed, where these steps are prerequisites
              to arbitration); Moses H. Cone Memorial Hospital v. Mercury Construction Corp.,
              460 U.S. 1, 24-                                                                             25 (1983) (holding that arbitrator should decide allegations of
              waiver, delay, or a like defense to arbitrability).

¶ 38                                                                                                                                                            Like any other contract, arbitration, including the arbitration of arbitrability, “is
              strictly a matter of consent,” not coercion. (Internal quotation marks omitted.)
              Coinbase, 602 U.S. at 148; see Volt Information Sciences, Inc. v. Board of Trustees
              of Leland Stanford Junior University, 489 U.S. 468, 479 (1989). Where a party
              contests the formation of the parties’ delegation of arbitrability agreement, the court
              must first resolve the formation disagreement. Granite Rock Co. v. International
              Brotherhood of Teamsters                                                                                                                                   , 561 U.S. 287, 296 (2010) (it is “well settled that where
              the dispute at issue concerns contract formation, the dispute is generally for courts
              to decide”); id.                                            at 296-300                                                                                                       (collecting cases); Prima Paint Corp. v. Flood & Conklin
              Mfg. Co., 388 U.S. 395, 404 (1967) (issues relating to formation of arbitration
              agreement are to be decided by the court, not by an arbitrator). In other words, to
              compel arbitration based on a delegation clause, a court must first determine that
              the parties agreed pursuant to the delegation clause to arbitrate arbitrability of the
              dispute.    Coinbase, 602 U.S. at 149; Henry Schein, Inc. v. Archer & White Sales,
              Inc., 586 U.S. 63, 69 (2019); Granite Rock           , 561 U.S. at 300. “Just as the arbitrability
              of the merits of a dispute depends upon whether the parties agreed to arbitrate that
              dispute *** the question [of] ‘who has the primary power to decide arbitrability’
              turns upon what the parties agreed about that            matter.” (Emphasis in original.) First
              Options, 514 U.S. at 943.

¶ 39                                                                                                                                     Accordingly, “the question of who decides arbitrability is itself a question of
              contract.” Henry Schein, 586 U.S. at 65. “When deciding whether the parties agreed
              to arbitrate a certain matter (including arbitrability), courts generally **** should
              apply ordinary state-law principles that govern the formation of contracts.”    First
              Options, 514 U.S. at 944. Under Illinois law, an enforceable agreement includes an
              offer, acceptance, consideration, and mutual assent. Melena v. Anheuser                             -Busch,
              Inc., 219 Ill. 2d 135, 151 (2006); Academy Chicago Publishers v. Cheever           , 144 Ill.
              2d 24, 30 (1991). To establish mutual assent, otherwise known as a meeting of the




                                                                          - 13 -

=== PDF PAGE 14 ===
              minds, the terms must be so definite that “the promises and performances to be
              rendered by each party are reasonably certain.” Academy Chicago Publishers                            , 144
              Ill. 2d at 29.                                             As a matter of contract, arbitration, including any agreement to
              delegate questions of arbitrability, depends upon the parties’ mutual assent. First
              Options, 514 U.S. at 943-45.

¶ 40                                                                                                                                      A party simply cannot be required to arbitrate arbitrability absent a clear and
              unmistakable agreement to do so. Id.                                                 The Supreme Court has explained:

                    “[G]iven the principle that a party can be forced to arbitrate only those issues it
                    specifically has agreed to submit to arbitration, one can understand why courts
                    might hesitate to interpret silence or ambiguity on the ‘who should decide
                    arbitrability’ point as giving the arbitrators that power, for doing so might too
                    often force unwilling parties to arbitrate a matter they reasonably would have
                    thought a judge, not an arbitrator, would decide.” Id. at 945.

¶ 41                                                                                                                                                    Applying these principles, before this court may send the threshold question of
              arbitrability to the arbitrator under the delegation clause, it must be satisfied that
              the parties agreed by “clear and unmistakable evidence” to do so. Id.       at 944; Henry
              Schein, 586 U.S. at 69; see Rent                   -A-Center, 561 U.S. at 71 (if party challenges
              precise agreement to arbitrate at issue, court must consider challenge before
              ordering compliance with that agreement). This court is tasked with resolving
              whether the parties agreed to delegate arbitrability to an arbitrator in the first place
              because,                    if they did not form such an agreement, then there is no basis to compel
              arbitration of arbitrability, i.e.            , to delegate the question of arbitrability to an
              arbitrator. See First Options, 514 U.S. at 944.

¶ 42                                                                                                                                          Here, the parties dispute whether they consented to delegate to arbitration the
              arbitrability of the estate’s wrongful death claims, which are unrelated to Sheridan’s
              use of Uber’s services. Sheridan’s terms-of-use agreement included a delegation
              clause in section 2(c), granting the arbitrator authority to resolve disputes “relating
              to the interpretation, applicability, enforceability or formation” of the arbitration
              agreement, including threshold issues such as unconscionability, enforceability,
              and applicability. Sheridan’s arbitration agreement with Uber also incorporated
              American Arbitration Association (AAA)        rules, which generally empower
              arbitrators to decide questions of arbitrability. See Am. Arb. A                                                           ss’n Consumer Arb.
              Rules & Mediation Procs.            R-           7(a),      (b) (eff. May 1, 2025);            see                                                      also            Allscripts



                                                                           - 14 -

=== PDF PAGE 15 ===
             Healthcare, LLC v. Etransmedia Technology, Inc., 188 F. Supp. 3d 696, 701 (N.D.
             Ill. 2016) (holding that an agreement incorporating AAA rules supports arbitration
             of arbitrability and citing cases          ).

¶ 43                                                                                                                  Nevertheless, although incorporating AAA rules along with a delegation
             provision may constitute sufficient evidence of consent to delegate arbitrability in
             some contexts, Sheridan and Uber’s arbitration agreement here is limited to
             “claim[s] *** arising out of or relating to *** your access to or use of the
             [s]ervices,” personal injury “in connection with your use of the [s]ervices,” and
             third party claims “in relation to your use of the [s]ervices.” This language limits
             delegation of arbitrability to disputes arising out of Sheridan’s own use and
             relationship with Uber.

¶ 44                                                                                                                           Uber would have us ignore that the delegation of arbitrability provision in
             Sheridan’s terms-of-use agreement repeatedly references the “[a]rbitration
             [a]greement” and its terms and is found within the arbitration section’s repetitive
             phrasing that the disputes in the agreement, thereby subject to arbitration, including
             the arbitration of arbitrability, arise in connection with Sheridan’s use of Uber’s
             services individually. See generally Buenz v. Frontline Transportation                                                            Co., 227 Ill.
             2d 302, 316 (2008) (contract language must be read in context). Yet, because of
             this language, we cannot conclude that clear and unmistakable evidence supports
             the determination that Sheridan, as statutory beneficiary or personal representative
             of the estate, agreed to arbitrate the arbitrability of wrongful death claims arising
             from a third person’s use and contractual relationship with Uber. See generally
             Olson v. FCA US, LLC, 176 F.4th 612, 619 (9th Cir. 2026) (finding no clear and
             unmistakable evidence that plaintiffs agreed to arbitrate arbitrability with third
             party who had no connection to the underlying arbitration agreement).

¶ 45                                                                                                                               The estate’s wrongful death claims arise from Mark’s death, which resulted
             from his own use of Uber’s services. See First Options       , 514 U.S. at 942; see
             generally  In re Donald A.G., 221 Ill. 2d 234, 246 (2006) (courts are not bound to
             reach absurd results). Accordingly, we agree with the circuit court and find no clear
             and unmistakable agreement to delegate arbitrability of this dispute to an arbitrator
             rather than the court. See Metropolitan Life Insurance Co. v. Bucsek,                                              919 F.3d 184,
             191 (2d Cir. 2019) (“[W]hat the arbitration agreement says about whether a
             category of dispute is arbitrable can have an important bearing on whether it was




                                                                    - 15 -

=== PDF PAGE 16 ===
                the intention of the agreement to confer authority over arbitrability on arbitrators.”).


¶ 46                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      FAA Constraints

¶ 47                                                                                                                    Moreover, as the estate observes, the FAA, incorporated by reference in
                Sheridan’s arbitration agreement with Uber, reinforces our conclusion. See New
                Prime, 586 U.S. at 112 (even though a contract may delegate question of
                arbitrability to an arbitrator, a court must nevertheless decide for itself first that the
                court has authority under the FAA to order it). We proceed from the premise that,
                as expressly stated in section 2(c) of the arbitration portion of Sheridan’s terms-of-
                use agreement with Uber, the FAA will govern the interpretation, enforcement, and
                proceedings. Section two of the FAA provides that “[a] written provision in *** a
                contract evidencing a transaction involving commerce to settle by arbitration a
                controversy thereafter arising out of such contract or transaction” shall be valid
                and enforceable. (Emphasis added.) 9 U.S.C. §2; see Carter II                                                                                                , 2012 IL 113204,
                ¶ 17. This statutory limitation reinforces that Sheridan’s agreement presupposes
                disputes tied to her contractual relationship with Uber. Because the estate’s
                wrongful death claims arise exclusively from Mark’s distinct use of Uber’s
                services, section 2’s FAA threshold requirement is unmet. The FAA itself confirms
                the lack of foundation to compel arbitration of arbitrability for claims unrelated to
                Sheridan’s own contractual use.

¶ 48                                                                                                                        In sum, Sheridan consented to Uber’s arbitration provisions, including the
                delegation language, but those provisions, like the FAA, presuppose that the
                disputes subject to arbitration, including the arbitration of arbitrability, arise from
                her own contractual relationship with Uber. The arbitration terms repeatedly frame
                arbitrable matters as those arising from her own access to Uber’s services. Nothing
                in the FAA or in the terms-of-use agreement suggests that an agreement formed by
                one user may delegate to an arbitrator arbitrability of a dispute arising solely from
                another person’s separate contract and use of Uber’s services. See Moritz v.
                Universal City Studios          LLC, 268 Cal. Rptr. 3d 467, 474 (Ct. App. 2020) (no
                authority, including the FAA, permits sending unrelated disputes to arbitration
                simply because the same parties agreed to arbitrate a different matter).

¶ 49                                                                                                                                                            Even though the FAA directs courts to place arbitration agreements—including
                agreements that an arbitrator rather than a court resolve arbitrability—on equal



                                                                                   - 16 -

=== PDF PAGE 17 ===
                   footing with other contracts, the FAA does not require parties to arbitrate, even
                   arbitrability, when they have not agreed to do so. Volt Information Sciences                     , 489
                   U.S. at 478; see Carter II           , 2012 IL 113204, ¶ 55. “The FAA reflects the
                   fundamental principle that arbitration is a matter of contract.” Rent             -A-Center, 561
                   U.S. at 67 (court, not arbitrator, determined whether the delegation provision was
                   valid under section 2 of the FAA). The FAA requires the court to enforce arbitration
                   agreements according to their terms, but only according to the parties’ actual
                   agreement, not beyond it. Volt Information Sciences                      , 489 U.S. at 478. Nothing in
                   the FAA authorizes requiring arbitration of the arbitrability of an unrelated claim
                   outside the contract that the parties never agreed to arbitrate. See New Prime                                             , 586
                   U.S. at 112-                                                                                 13 (despite delegation clause, court determined arbitrability  —whether
                   to compel arbitration of a “contract of employment” exempted by section 1 of the
                   FAA—and found court lacked authority under the FAA’s exemption language to
                   order arbitration); see also Moritz           , 268 Cal. Rptr. 3d at 473; Matthew-           Ajayi v.
                   Airbnb, Inc., No. ADC           -23-3035, 2024 WL 1769186, at *2 (D. Md. Apr. 24, 2024).


¶ 50                                                                                                                                                                                                                                                                                                                                                                                                                        Supreme Court Framework (Henry Schein,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          New Prime, Coinbase                       )

¶ 51                                                                                                                    Uber and amici                                                                                argue that,       if this court concludes that a claim must be
                   sufficiently “related to” an arbitration agreement before enforcing a delegation
                   clause,                   we would simply be applying the “wholly groundless” exception that the
                   United States Supreme Court in Henry Schein                                 expressly rejected. See Henry Schein                                                 ,
                   586 U.S. at 69. We disagree.

¶ 52                                                                                                                                     Prior to Henry Schein           , even where parties agreed to delegate the arbitrability
                   question to an arbitrator, some federal courts “short-circuit[ed] the process and
                   decide[d] the arbitrability question themselves if the argument that the arbitration
                   agreement applie[d] to the particular dispute [wa]s ‘wholly groundless.’”         Id.                                       at 65.
                   The district court and court of appeals in Henry Schein                                                resolved the threshold
                   question of arbitrability and denied Schein’s motion to compel arbitration, finding
                   that Schein’s argument for arbitration was wholly groundless because the complaint
                   sought injunctive relief, at least in part, and the arbitration agreement barred
                   arbitration of disputes when plaintiff sought injunctive relief. Id.                           at 67. The Court
                   in Henry Schein                                    rejected this approach and held that, where the parties’ agreement




                                                                                                - 17 -

=== PDF PAGE 18 ===
             delegates threshold arbitrability questions to the arbitrator by clear and
             unmistakable evidence, courts may not refuse to enforce the delegation of
             arbitrability clause on the ground that the assertion of arbitrability is “wholly
             groundless.” Id. The Court stated:

                   “We have held that a court may not ‘rule on the potential merits of the
                   underlying’ claim that is assigned by contract to an arbitrator, ‘even if it appears
                   to the court to be frivolous.’ AT&T Technologies  [, 475 U.S. at 649-50]. A court
                   has ‘ “no business weighing the merits of the grievance” ’    because the
                   ‘ “agreement is to submit all grievances to arbitration, not merely those which
                   the court will deem meritorious.” ’        Id.,       at 650 (quoting Steelworkers v.
                   American Mfg. Co., 363 U. S. 564, 568 (1960)).”                                  Id. at 68           -69.

¶ 53                                                                                                                                             The federal appellate decisions that applied the “wholly groundless” approach
             rejected by Henry Schein    either found clear and unmistakable evidence that the
             parties consented to arbitrate the questions of arbitrability of the dispute, treated
             consent to the delegation clause as undisputed, or declined to resolve the delegation
             question at all, concluding in the alternative that the assertion of arbitrability was
             wholly groundless. See id.                            (discussing the Fifth Circuit’s decision in Archer &
             White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488, 495 (5th Cir. 2017), where
             the court declined to decide whether the agreement clearly and unmistakably
             delegated arbitrability because it found, in the alternative, that the assertion of
             arbitrability was wholly groundless); see also Simply Wireless, Inc. v. T                                  -Mobile US,
             Inc., 877 F.3d 522 (4th Cir. 2017); Douglas v. Regions Bank           , 757 F.3d 460, 464
             (5th Cir. 2014); Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir.
             2011);  Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366 (Fed. Cir. 2006). However,
             we find here that Sheridan’s arbitration agreement, limited to claims arising from
             her use of the services, provides no clear and unmistakable evidence that the parties
             consented to arbitrate the arbitrability of the wrongful death claims arising from
             Mark’s death.

¶ 54                                                                                                                                    Notably, the Court in Henry Schein                                           reemphasized that “parties may delegate
             threshold arbitrability questions to the arbitrator, so long as the parties’ agreement
             does so by ‘clear and unmistakable’ evidence.” Henry Schein, 586 U.S. at 69
             (quoting First Options                                                            , 514 U.S. at 944). “When the parties’ contract delegates the
             arbitrability question to an arbitrator, the courts must respect the parties’ decision




                                                                      - 18 -

=== PDF PAGE 19 ===
               as embodied in the contract.” (Emphasis added.) Id.                   at 65. The Court in Henry
               Schein presupposed that the parties entered into an arbitration agreement delegating
               the arbitrability issue to an arbitrator. See  id. at 69 (citing 9 U.S.C. § 2). The Court
               emphasized the remaining premise that, “before referring a dispute to an arbitrator,
               the court determines whether a valid arbitration agreement exists.” Id.

¶ 55                                                                                                                             Indeed, the Court in Henry Schein                                               “express[ed] no view about whether the
               contract at issue in th[e] case in fact delegated the arbitrability question to an
               arbitrator” because the c          ourt of appeals did not decide that issue. Id.     at 71-72.
               Noting that courts “should not assume that the parties agreed to arbitrate
               arbitrability unless there is ‘     clear and unmistakable’ evidence that they do so,” the
               Court directed the court of appeals to address the issue on remand. Id.                                                                      at 72 (quoting
               First Options, 514 U.S. at 944). Henry Schein thus presupposed a valid delegation
               agreement; it did not license courts to skip the antecedent inquiry whether these
               parties clearly and unmistakably agreed to arbitrate this arbitrability dispute  .

¶ 56                                                                                                                                                               Moreover, the Court’s contemporaneous and subsequent reiteration after Henry
               Schein—that arbitration of arbitrability remains a matter of consent and contract
               formation for the court to determine initially —supports our conclusion here. See
               Coinbase, 602 U.S. at 145; New Prime            , 586 U.S. at 112. As noted, contemporary
               with  Henry Schein, the Court in New Prime                                      held that, even though a contract may
               delegate some questions of arbitrability to an arbitrator, the Court should
               nevertheless decide for itself first whether the FAA allows the delegation of
               arbitration.      New Prime, 586 U.S. at 112. The Court in New Prime                                                      considered
               whether the FAA’s exclusion for “ ‘contracts of employment’ ” of certain
               transportation workers applied before ordering arbitration of arbitrability. Id.                                                     The
               Court explained that it may enforce a delegation clause pursuant to the FAA only
               if the clause appears in a “ ‘                                         written provision in *** a contract evidencing a
               transaction involving commerce’ ” consistent with section 2 of the FAA and only
               if the contract in which the clause appears does not trigger section 1’s “contracts of
               employment” exception. Id.                                                                                  (quoting 9 U.S.C. §2).                                                                         The Court concluded that,
               because the arbitration agreement, including the delegation provision, fell within
               the FAA’s exception found in section 1, the court lacked authority under the FAA
               to order arbitration—including arbitration of arbitrability. Id.                                                                                                                        at 121. The Court
               noted that the FAA acted on the delegation clause, merely a specialized type of
               arbitration agreement, as it does any other agreement. Id. at 112.




                                                                            - 19 -

=== PDF PAGE 20 ===
¶ 57                                                                                                                           Subsequent to the decisions in Henry Schein                                                    and     New Prime, the Court in
                Coinbase addressed whether two parties who had executed two contracts, the first
                containing an arbitration provision with a delegation clause and the second
                containing a forum selection clause, must submit the arbitrability question to an
                arbitrator.      Coinbase, 602 U.S. at 145. Coinbase insisted that the first contract’s
                delegation clause established the terms by which all subsequent disputes were to be
                resolved, so the arbitrability of a dispute between the parties was a matter for the
                arbitrator to decide. Id. The Court held that, “before either the delegation provision
                or the forum selection clause c[ould] be enforced, a court needs to decide what the
                parties have agreed to—i.e.                                                , which contract controls.” Id.

¶ 58                                                                                                                                                    In Coinbase, the Court reiterated that arbitration agreements are strictly a matter
                of consent and that the parties resolve through arbitration only those disputes they
                have agreed to submit to an arbitrator. Id.                                                at 148. The Court stated that,
                “[c]onsequently, the first question in any arbitration dispute must be: What have
                these parties agreed to?” Id.

¶ 59                                                                                                                           The Court reiterated that courts may not assume parties agreed to arbitrate
                arbitrability unless there is clear and unmistakable evidence that they did so. Id.                                                 at
                149. Citing Henry Schein                                             , the Court noted that,    before referring the arbitrability
                dispute to an arbitrator, a court must determine whether the parties agreed to
                arbitrate arbitrability. Id.                                        (“ ‘the court determines whether a valid arbitration
                agreement exists’ ” (quoting Henry Schein                                                                                                , 586 U.S. at 69)).                                                            The Court held that it
                was tasked with determining which contract governed,                    for “[t]o hold otherwise
                would be to impermissibly ‘ “elevate [a delegation provision] over other forms of
                contract.” ’ ”                             Id.     at 152 (quoting Rent                                                                  -A-Center, 561 U.S. at 71,       quoting                                                                         Prima
                Paint, 388 U.S. at 404 n.12).

¶ 60                                                                                                                           In sum, the United States Supreme Court’s recent arbitration jurisprudence
                establishes a coherent sequence governing the enforcement of delegation clauses.
                In   Henry Schein, the Court held that,   once parties have clearly and unmistakably
                agreed to delegate questions of arbitrability, a court may not refuse to honor that
                delegation based on its own assessment that the argument for arbitration is weak or
                “wholly groundless.” That principle, however, presupposes that the parties
                consented to the delegation of arbitrability regarding the dispute. In New Prime                                        , the
                Court emphasized that courts retain their traditional responsibility to determine, as




                                                                                    - 20 -

=== PDF PAGE 21 ===
                a threshold matter, whether the FAA authorizes enforcement of a delegation clause
                at all, including whether statutory exclusions or formation defects prevent
                arbitration. In Coinbase, the Court reaffirmed that a delegation provision cannot be
                applied until a court first determines what contract the parties agreed to and whether
                that contract actually contains —and governs                                                —          the asserted delegation. Read
                together, these decisions make clear that delegation is not automatic; rather, it is
                enforceable only when the parties have clearly and unmistakably consented to
                arbitrate arbitrability of the dispute at issue, and the court must resolve that
                foundational question before referring any matter to an arbitrator.


¶ 61                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Application to Sheridan’s Agreement

¶ 62                                                                                                                                Accordingly, Uber’s reliance upon Henry Schein    is misplaced. Our decision
                does not rest upon the conclusion that Uber’s assertion of arbitrability is “wholly
                groundless,” nor do we undertake the merits determination forbidden by Henry
                Schein. Rather, we resolve the antecedent question expressly preserved by that
                decision—whether an agreement exists, through clear and unmistakable evidence,
                requiring Sheridan to delegate to an arbitrator the arbitrability of wrongful death
                claims arising from a third person’s contractual agreement, to which Sheridan was
                not a party. Henry Schein                                                  did not eliminate the court’s foundational responsibility
                to determine whether clear and convincing evidence supports the conclusion that
                the parties consented to arbitrate the arbitrability of the dispute in the first place.
                First Options, 514 U.S. at 942; AT&T Technologies            , 475 U.S. at 648-                                                                                          49. Only then
                does     Henry Schein’s bar on the “wholly groundless” exception come into play.
                Henry Schein, 586 U.S. at 71-                                                          72. And even where a contract contains a delegation
                clause, a court must consider FAA limits on the delegation agreement. See New
                Prime, 586 U.S. at 112-13.

¶ 63                                                                                                                                                         Although Sheridan agreed to arbitrate the arbitrability of disputes arising out of
                her use of Uber’s services, Uber has failed to establish that Sheridan, as statutory
                beneficiary or as the estate’s personal representative, agreed by clear and
                unmistakable evidence to delegate the arbitrability of wrongful       death claims
                predicated upon Mark’s use of Uber’s services. Accordingly, Henry Schein    does
                not compel referral of the threshold question of arbitrability to the arbitrator. See
                Moritz, 268 Cal. Rptr. 3d at 475-76 (holding that Henry Schein                                        “expressly




                                                                                 - 21 -

=== PDF PAGE 22 ===
               understood that the [FAA] requires enforcement of arbitration clauses with respect
               to disputes thereafter arising out of such contract” and rejecting the argument that
               “an arbitration provision creates a perpetual obligation to arbitrate any conceivable
               claim that [plaintiff] might ever have against them” (internal quotation marks
               omitted));  Slaughter v. National R.R. Passenger Corp., 460 F. Supp. 3d 1, 7-                                                       8, 11
               (D.D.C. 2020) (holding that Henry Schein                    reaffirmed that court must determine
               whether parties agreed to arbitrate particular dispute and that delegation clause did
               not require arbitration of arbitrability where plaintiff’s claims arose from a different
               course of dealing).


¶ 64                                                                                                                                                                                                                                                                                                                                                                                                        Appellate Caselaw ConstruingHenry Schein

¶ 65                                                                                                                       Uber contends that post-Henry Schein, the arbitrator must decide whether
               Sheridan’s agreement covers the wrongful death claims here, even if those claims
               are unrelated to Sheridan’s own use, because Sheridan signed the terms-of-use
               agreement that included a delegation clause. Uber and the appellate court’s opinion
               consolidate the question of whether the parties consented to arbitrate the
               arbitrability of claims arising from a third party’s use of Uber’s services with the
               question of whether the claims fall within the scope of Sheridan’s agreement. The
               appellate court held that “[t]he question here is who decides whether Sheridan’s
               claims for wrongful death fall within the scope of her arbitration agreement with
               Uber.” (Emphases omitted.) 2025 IL App (1st) 241458-U, ¶ 38.

¶ 66                                                                                                                                    However, while the question of whether a claim falls within the scope of an
               arbitration agreement may ordinarily be for the arbitrator if delegation is clear and
               unmistakable, the court must first determine whether the parties clearly and
               unmistakably consented to delegate that question. Here, the appellate court skipped
               over the initial question: whether Sheridan, as a statutory beneficiary or personal
               representative of Mark’s estate, clearly and unmistakably agreed to arbitrate the
               arbitrability of wrongful death claims arising from Mark’s death because of his use
               of Uber’s services. A delegation provision is itself an arbitration agreement; it
               cannot be enforced unless the parties consented to arbitrate arbitrability for this
               dispute. See New Prime            , 586 U.S. at 112-                                                                                          13 (even despite delegation clause, courts
               must confirm the existence of a valid agreement covering the dispute before
               enforcing delegation); Rent               -A-Center, 561 U.S. at 71 (if party challenges precise




                                                                              - 22 -

=== PDF PAGE 23 ===
             agreement to arbitrate at issue, court must consider challenge before ordering
             compliance with the agreement).

¶ 67                                                                                                                  The agreement submitted defines the contracting relationship entirely by
             reference to Sheridan’s own individual access to and use of Uber’s services. The
             present dispute arises solely from Mark’s use of Uber’s services. The absence of a
             clear and unmistakable agreement to delegate the arbitrability of wrongful                         death
             claims resulting from a third  party’s use of Uber’s services prevents this court from
             compelling an arbitrator to determine arbitrability in this case. We recognize,
             however, that the line between whether a claim falls within the scope of a
             delegation-of-arbitrability agreement and whether the parties clearly and
             unmistakably agreed, consistent with the FAA, to delegate the arbitrability of the
             claim in the first place is a fine one and that we are met with cases not wholly
             consistent, even in the wrongful death context. See Airbnb, Inc. v. Rice           , 518 P.3d
             88, 92 (Nev. 2022) (even though wrongful death and personal injury claims
             appeared unrelated to the booking contract, Henry Schein                                  foreclosed a “wholly
             unrelated” exception, so the arbitrator must determine arbitrability). But see Tao v.
             Murphy, 812 F. Supp. 3d 1117, 1125 (D. Nev. 2025) (recognizing tension between
             Henry Schein and FAA section 2’s “arising out of” language, federal district court
             applied the absurd-                results canon, held that plaintiff and Airbnb did not form an
             arbitration agreement over wholly unrelated dispute arising from another person’s
             conduct unrelated to his own account, and held that delegation agreement did not
             require parties to delegate arbitrability over wholly unrelated dispute to an
             arbitrator).

¶ 68                                                                                                                               Within Illinois, the appellate court’s decision in this case contrasts with the
             decision of the Appellate Court, First District, in Peterson v. Devita              , 2023 IL App
             (1st) 230356, ¶                                                                                                                                                            2, where the court held that, even though the arbitration agreement
             at issue included a delegation provision, the arbitration did not relate to allegations
             in the complaint and,                                           therefore, did not bind the guest to arbitrate arbitrability. In
             Peterson, a guest at a rental property filed a complaint against Airbnb, Inc.
             (Airbnb), an online community marketplace, for injuries he sustained when he fell
             from an elevated porch at a property that                                     a third party had booked through Airbnb.
             Id. Years prior, the plaintiff-guest had accepted an arbitration agreement contained
             in Airbnb’s terms of service but had never utilized the Airbnb site. Id.      ¶ 4. The
             agreement provided that claims and disputes “ ‘arising out of or relating to’ ” use




                                                                      - 23 -

=== PDF PAGE 24 ===
              of Airbnb’s platform be arbitrated and that an arbitrator must decide the threshold
              issue of arbitrability. Id.             ¶ 2.

¶ 69                                                                                                                                                    In Peterson, the appellate court held that the threshold question of arbitrability
              presents a legal issue for the court to decide, despite the arbitration agreement’s
              clause stating otherwise. Id.  ¶ 4. The appellate court further held that            ,  because the
              plaintiff-guest had “nothing to do with booking the property on Airbnb, his injuries
              did not arise from his use of the Airbnb platform, so the arbitration provision d[id]
              not apply to him.” Id.                     The appellate court held that “[t]he arbitration provision
              should apply only when the claims arise from a plaintiff’s use of the Airbnb
              platform and not on the fortuity of a plaintiff having created an account.” Id. ¶ 35.
              The appellate court concluded that “Peterson was not a party or participant in
              booking the property where the accident occurred and cannot be required to
              arbitrate under the facts.” Id.                                  ¶ 37. Because the court found no binding arbitration
              agreement, it did not address Airbnb’s arguments regarding whether Peterson’s
              claims fell within the agreement’s scope. Id.      As in Peterson                       , where a guest injured
              at an Airbnb property could not be compelled to arbitrate based on an agreement
              governing a third party’s use or contractual agreement with the defendant, Sheridan
              did not agree to arbitrate the arbitrability of wrongful death claims arising from a
              third person’s use              of, access to, and contractual relationship with Uber. Our
              reasoning is consistent with Peterson                                   .

¶ 70                                                                                                                    The delegation of arbitrability provision here is textually tethered to the
              arbitration provisions of the terms-of-use agreement containing both, and it applies
              only where the dispute has a real source in the contract. See Moritz       ,268 Cal. Rptr.
              3d at 476. The dispute in this case involves an unrelated, wrongful death of a third
              party and thereby “lacks what [Henry]                                       Schein                   presupposes—         a controversy
              thereafter arising out of [a]                                    contract            [to arbitrate].”     (Internal quotation marks
              omitted.) See Perez v. Discover Bank, 74 F.4th 1003, 1011 (9th Cir. 2023) (it would
              be absurd to find that plaintiff and Discover Bank formed an agreement to arbitrate
              discrimination  claims via a Citibank loan               agreement signed several years earlier).
              In the absence of clear and unmistakable evidence that Sheridan agreed to delegate
              the arbitrability of the estate’s wrongful death claims, the circuit court properly
              denied Uber’s motion to compel arbitration of the arbitrability issue. The court—
              rather than an arbitrator—must decide arbitrability here.





                                                                        - 24 -

=== PDF PAGE 25 ===
¶ 71                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Arbitration of the Underlying Dispute

¶ 72                                                                                                                                           Having found that the circuit court properly concluded that the parties did not
                agree to arbitrate the arbitrability of the estate’s wrongful death claims, this court
                must decide whether these claims are subject to arbitration. We conclude that they
                are not.

¶ 73                                                                                                                                      Sheridan did not consent to arbitration provisions in any way referencing her
                status as a wrongful       death beneficiary or the estate’s personal representative
                regarding claims arising from Mark’s use of Uber’s services and subsequent death,
                and she is a nonsignatory to Mark’s terms-of-use agreement involving arbitration
                based on his use of Uber’s services   and subsequent death.                           See  Carter II, 2012 IL
                113204, ¶ 31 (nonsignatories to an arbitration agreement are not bound to it).
                Likewise, Sheridan’s individual agreement contains no language signaling her
                agreement to arbitrate claims arising from a third party’s use of Uber’s services and
                subsequent death. See            id.                                                ¶¶ 30-33                                                       (holding that the plaintiff, who signed as
                decedent’s agent, was bound to arbitrate only to the extent she acted in the
                decedent’s stead and not when pursuing a wrongful death claim in a different legal
                capacity).

¶ 74                                                                                                                                                               Arbitration is a matter of consent, and Uber has failed to establish that the estate
                or the statutory beneficiary consented to arbitrate this pending wrongful death
                dispute. See Revitch v. DIRECTV, LLC          , 977 F.3d 713, 717-18, 721 (9th Cir. 2020)
                (parties did not have mutual intent to form an agreement to arbitrate any and all
                disputes that might ever arise between plaintiff and yet-unknown affiliates, no
                matter how unrelated to the service referenced in the agreement). We refuse to force
                the estate to arbitrate a matter it reasonably would have thought a judge, not an
                arbitrator, would decide. See                        First Options, 514 U.S. at 945. Therefore, we
                conclude that the circuit court also properly denied Uber’s motion to compel
                arbitration of the merits of the estate’s wrongful death dispute. Having determined
                that the appellate court erred on this basis, we do not reach the estate’s procedural
                or substantive unconscionability arguments.









                                                                                     - 25 -

=== PDF PAGE 26 ===
¶ 75                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             CONCLUSION

¶ 76                                                                                                                                               For the foregoing reasons, we reverse the appellate court’s judgment. Because
                       Sheridan’s agreement applies only to disputes arising from her own use of Uber’s
                       services and because the estate’s wrongful death claims arise solely from Mark’s
                       use and accrued only upon his death, no clear and unmistakable evidence exists to
                       conclude that the parties agreed to delegate arbitrability of these claims to an
                       arbitrator. Thus, the circuit court properly addressed arbitrability and properly
                       found that, based on the language of Sheridan’s terms-of-use agreement, Sheridan
                       did not consent to submit the merits of the dispute to the arbitrator. Accordingly,
                       the circuit court correctly denied Uber’s motion to compel arbitration of the estate’s
                       wrongful death claims. On remand, proceedings on the estate’s wrongful death
                       counts may resume in the circuit court, and the survival counts remain dismissed
                       per the estate’s voluntary dismissal.


¶ 77                                                                                                                                                    Appellate court judgment reversed.

¶ 78                                                                                                                                                    Circuit court judgment affirmed.

¶ 79                                                                                                                                                    Cause remanded.

























                                                                                                                       - 26 -