Atchison v. Great Western Malting Co.

• Decision Date: 30 August 2007
• Docket Number: No. 80034-1.,80034-1.
• Citation: 166 P.3d 662,161 Wn.2d 372
• Parties: Kaela D. ATCHISON, personal representative of the estate of William Arthur Atchison, Appellant, v. GREAT WESTERN MALTING COMPANY, a Washington licensed corporation, Respondent.
• Court: Washington Supreme Court

166 P.3d 662

161 Wn.2d 372

Kaela D. ATCHISON, personal representative of the estate of William Arthur Atchison, Appellant, v. GREAT WESTERN MALTING COMPANY, a Washington licensed corporation, Respondent.

No. 80034-1.

Supreme Court of Washington, En Banc.

Argued June 26, 2007.

Decided August 30, 2007.

Lawrence Stanford Merrifield Jr., Boyd Gaffney Sowards McCray & Treosti, P., Vancouver, WA, for Appellant/Cross-Respondent.

James H. Gidley, Perkins Coie LLP, Portland, OR, for Respondent/Cross-Appellant.

BRIDGE, J.

¶ 1 William Atchison died in June 2000 as a result of lymphoma. His most immediate next of kin was his only child, Kaela, who was then 15 years old. In 2003 Kaela turned 18, and in 2005 Kaela became personal representative of William's estate. In 2006, more than three years after her father's death, she filed a wrongful death action against Great Western Malting Co., claiming the company negligently caused her father's disease. Great Western moved to dismiss under Civil Rule (CR) 12(b)(6), in part arguing that Kaela's claim was barred by the statute of limitations. The trial court granted the motion to dismiss on the ground that the complaint was filed after the three-year statute of limitations had expired. Kaela now argues that her minority should have tolled the statute of limitations.

¶ 2 We hold that the statute of limitations did not toll during Kaela's minority. She filed this wrongful death claim after the statute of limitations expired, and the trial court was correct to dismiss the claim. Because we affirm the trial court's dismissal based on the statute of limitations, we need not address Great Western's cross appeal.

I Facts and Procedural History

¶ 3 For 21 years, between 1978 and 1999, William Atchison was employed by Great Western as an elevator utility worker. He claimed that during his employment he received daily occupational exposure to pesticides when he applied them and when he cleaned up contaminated dust without protective equipment. In October 1999, Atchison was diagnosed with lymphoma. On June 29, 2000, about eight months after his diagnosis, Atchison died. He did not leave a will, and he was not married. Upon his death, Atchison's 15-year-old daughter, Kaela, was his most immediate next of kin.

¶ 4 Kaela turned 18 years old on March 19, 2003. Absent tolling of the statute of limitations, the three-year time limit for filing a wrongful death action expired on June 29, 2003. On November 9, 2005, Kaela was appointed the personal representative of Atchison's estate. On February 10, 2006, Kaela filed an action for wrongful death against Great Western in Clark County Superior Court.

¶ 5 In response, Great Western filed a motion to dismiss pursuant to CR 12(b)(6) for failure to state a claim upon which relief could be granted. Among other things, Great Western argued that Kaela's claim was barred by the statute of limitations. Because by statute she could not become personal representative and commence a wrongful death action until her 18th birthday in March 2003, Kaela responded that the statute of limitations tolled during her minority.

¶ 6 The parties argued the motion before the superior court on May 12, 2006. The trial court granted the motion to dismiss because it found that the claim was barred by the statute of limitations. Specifically, the trial court found that the claim accrued on the date of Atchison's death, June 29, 2000, and the statute of limitations therefore expired in 2003. The trial judge was concerned that otherwise the statute of limitations could be manipulated:

[A] clever strategy by a clever attorney would be to pick somebody—if the statute [of limitations has] already run, pick somebody to be PR [personal representative] who was a minor at the time the statute ran, and I can't imagine that the law envisions that, that there's essentially an open-ended statute of limitations if one just picks and chooses who the PR's [going] to be.

Report of Proceedings (RP) at 19.

¶ 7 Kaela filed a motion for reconsideration, which the court denied. Kaela then filed a notice of appeal.¹ This court and the Court of Appeals jointly determined that the appeal should be transferred to this court. Ruling Transferring Appeal at 1.

II Analysis

¶ 8 A trial court should grant a motion to dismiss pursuant to CR 12(b)(6) only "if it appears beyond a reasonable doubt that no facts exist that would justify recovery." Cutler v. Phillips Petroleum, Co., 124 Wash.2d 749, 755, 881 P.2d 216 (1994). We review CR 12(b)(6) rulings de novo. Id. ¶ 9 In Washington, wrongful death actions are strictly creatures of statute. Huntington v. Samaritan Hosp., 101 Wash.2d 466, 470, 680 P.2d 58 (1984). RCW 4.20.010 provides:

When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death....

(Emphasis added.) Washington courts have consistently read this statute to mean that only a personal representative may bring an action for wrongful death. E.g., Beal v. City of Seattle, 134 Wash.2d 769, 776, 954 P.2d 237 (1998).

¶ 10 Where a person has died intestate, state statute also determines who is eligible to be appointed personal representative. RCW 11.28.120 prioritizes the order in which intestate heirs can be appointed: the surviving spouse (or the person of the spouse's choice), the decedent's child or children, the decedent's father or mother, the decedent's siblings, the decedent's grandchildren, and the decedent's nephews or nieces. RCW 11.28.120(1), (2). Beneficiaries of the decedent's assets and the decedent's principal creditors are eligible to be appointed personal representative if none of the above family members is available. RCW 11.28.120(4), (6).² The statute provides that if no person entitled to be appointed personal representative presents a petition within 40 days, or if there appears to be no eligible next of kin, or if all eligible candidates waive their right, "then the court may appoint any suitable person to administer such estate." RCW 11.28.120(7). But regardless of their relationship to the deceased, minors are disqualified from becoming personal representative. RCW 11.36.010.

¶ 11 State statute more strictly limits the possible beneficiaries of a wrongful death claim:

Every such action shall be for the benefit of the wife, husband, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife or husband or such child or children, such action may be maintained for the benefit of the parents, sisters or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death.

RCW 4.20.020. The statute of limitations for a wrongful death action in Washington is three years. See RCW 4.16.080(2); Beal, 134 Wash.2d at 776, 954 P.2d 237.

¶ 12 In Dodson v. Continental Can Co., 159 Wash. 589, 294 P. 265 (1930), this court had to determine whether a wrongful death action accrues, thereby starting the time for filing, on the date of death or on the date that the personal representative is appointed. Id. at 592-93, 294 P. 265. The Dodson court acknowledged that only a personal representative can bring a wrongful death action under Washington's statute, and therefore a wrongful death action is impossible until a personal representative is appointed. Id. at 593, 294 P. 265. Even so, the Dodson court held that the wrongful death action accrued, and the time for filing began, at the time of death. Id. at 596-98, 294 P. 265.

¶ 13 The Dodson court relied in part on the persuasive reasoning of a then-recent United States Supreme Court case, in which the Court evaluated the identical question under the Federal Employers' Liability Act, 45 U.S.C. § 51. Id. at 594, 294 P. 265 (discussing Reading Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835 (1926)). The Koons Court explained that while the executor or administrator is the only person under the federal act that can begin the action, the action is for the benefit of well-defined beneficiaries.

"At the time of death there are identified persons for whose benefit the liability exists and who can start the machinery of the law in motion to enforce it, by applying for the appointment of an administrator.... Thus, at the death of decedent, there are real parties in interest who may procure the action to be brought... ." Dodson, 159 Wash. at 595-96, 294 P. 265 (alteration in original) (quoting Koons, 271 U.S. at 62-63, 46 S.Ct. 405). The Koons Court also explained that practical considerations dictated that the period for bringing an action should begin at the "`definitely ascertained'" time of death, rather than the "`uncertain time of the appointment of an administrator.'" Dodson, 159 Wash. at 596, 294 P. 265 (quoting Koons, 271 U.S. at 64, 46 S.Ct. 405). Otherwise, nothing would prevent indefinite postponement of the action by way of postponement of the appointment of an administrator, something that an employer vulnerable to suit could do nothing about. Id. Because the beneficiaries were capable of setting the law in motion, the Koons Court concluded that death is the point at which the action accrues. Id. at 597, 294 P. 265. The Washington statute was almost identical to the federal one, and thus the Dodson court adopted the Koons Court's reasoning. Id. We have not retreated from the Dodson court's holding, and the rule is well-settled: wrongful death actions accrue at the time of death.³

¶ 14 While wrongful death actions clearly accrue at the time of death, commencing the time for filing, the statute of limitations can be tolled by personal disability or minority:

Unless otherwise provided in this section, if a person entitled to bring an action mentioned in this chapter . . . be at the time the cause of action accrued either under the age of eighteen years, or incompetent...