Washington State Trial Law & Litigation Lawyer & Attorney : Robert M. Boggs : Seattle, Spokane, Tacoma, Yakima, Vancouver

When you think of a wrongful death case try not to think of it as a tort case.  Wrongful death did not exist in the common law and in fact it did not even exist in statutory form until a little over 100 years ago or so.  We are all creatures of habit and because of that we often carry  the legal concepts in tort law over into our thoughts about wrongful death.  This is a mistake.  You must always, no matter how many wrongful death cases you have handled, read the statute. It is full of surprises.

An example of this problem can be found in the recent Washington State Supreme Court case of Atchison v. Great W. Malting Co. Docket No. 80034-1 decided August 30, 2007.  In this case Mr. Atchison died intestate in June of 2000.  At the time his most immediate next of kin was his daughter, age 15 at the time.  She turned 18 on March 19, 2003.  On November 9, 2005 she was appointed personal representative of her father's estate.  On February 10, 2005, as the personal representative, she filed a wrongful death action against her father's employer Great Western Malting claiming that the company negligently caused his death.

Great Western moved to dismiss claiming that the statute of limitations had run. They argued that the three year statute of limitations started running the day he died meaning the statute of limitations ran out in June 2003.  His daughter argued that since she was only 15 at the time of his death her minority status tolled the statute from running until she reached age 18 in March of 2003 and therefor she was still within the statute of limitations.

The Court held that pursuant to RCW 4.20.010 only a personal representative could bring an action for wrongful death.  Further the daughter could not be a personal representative until she reached age 18.  In addition, the tolling statute RCW 4.16.190 becomes operative only when the "person entitled to bring an action" is disabled as in "is a minor."  So the statute started running on the date he died and was not tolled by the daughter;s minority because, not only was she not the personal representative, but she could not even become the personal representative until she turned 18. So in this case she only had a small window of opportunity between the time she turned 18 in March 2003 and the date the statute ran out in June of 2003 to be appointed the personal representative and file suit.  By February of 2005 it was too late by a long shot.

The daughter tried to argue that "the personal representative" should be considered to be the daughter who was to become the personal representative in the future.  That is the statute should have been tolled until she was able to become the personal representative. The Court, I think, rightfully pointed out that that would lead to all sorts of means to manipulate the statute.  For example, let's say that a case comes to an attorney three years after the person dies and his estate has not be probated yet.  The attorney could just find someone who is presently under 18, wait until they turn 18, and then appoint the person as the personal representative and start the statute of limitations running all over again.

Lesson learned - read the statutes carefully.  In this case it would be easy to assume that if the plaintiff was under 18 at the time of the person's death that the statute would toll until the plaintiff turned 18.

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Washington wrongful death statutes contain some wrinkles that your clients may find to be quite unfair. You should be prepared to explain them and even more importantly you should know these wrinkles so that you don’t find out later that you’ve promised something that you cannot deliver.

In Washington, in a wrongful death action for the death of a minor child, the parents of the child are entitled to damages for the loss of the love and affection of the child and for the destruction of the parent child relationship. In many cases, especially those involving very young children, jurors can be quite generous in their verdicts for this item of damage. It is not unusual to see verdicts in excess of one million dollars. In addition the estate can recover for lost income (see below).  Be prepared to explain to the parents of an 18 year old child that they are not entitled to these damages. The statute that creates damages for loss of love and affection and destruction of the parent child relationship applies only to the loss of a “minor” child. See RCW 4.24.010. The only exception would be if the parents were dependant on the child for support which is usually very unlikely. So you will have to tell the parents of an 18 year old high school senior that the only thing that the estate of the child can recover is the loss of future income minus future consumption all reduced to present value which is usually in the $250,000 to $750,000 range depending on the child’s expected income earning capacity.

Another wrinkle in the law that seems unfair is as follows. If a person is injured and lives for a time after the injury but then dies as a result of the injury, the estate may recover the pain and suffering that the person experienced before he or she died if the person is survived by a spouse, child or stepchildren. If the person is not survived by a spouse, child or stepchild the estate may still maintain the action if there are siblings or a parent who is dependant upon the person for support which is an unlikely scenario in most cases. See RCW4.20.046 and 4.20.020.  The people you will have to explain this to could be the parents of a minor child who lived for several weeks after having been severely burned. There can be no recovery for the child’s pain and suffering. Or, imagine an elderly person who is widowed and had no children. Unless there is a parent (very unlikely) or a sibling dependant upon them for support (also unlikely) there can be no cause of action for the pain and suffering between the time of injury and the time of death. In fact if the person is quite old it is unlikely that there will even be much in terms of lost income. It is quite a pity that our state does not put much value on an elderly person with no children.  

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