Brandes v. Brand Insulations, Inc., 74554-9-I
| Decision Date | 29 May 2018 |
| Docket Number | No. 74554-9-I,74554-9-I |
| Court | Washington Court of Appeals |
| Parties | RAMONA C. BRANDES, as Personal Representative of the Estate of BARBARA J. BRANDES, Appellant, v. BRAND INSULATIONS, INC., CBS CORPORATION, a Delaware corporation, f/k/a VIACOM, INC., successor by merger to CBS CORPORATION, a Pennsylvania Corporation, f/k/a WESTINGHOUSE ELECTRIC CORPORATION; PARSONS GOVERNMENT SERCIVES, INC.; and SABERHAGEN HOLDINGS, INC., Respondents. |
UNPUBLISHED OPINION
MANN, A.C.J. — In general, a wrongful death action accrues at the time of death so long as the deceased had a subsisting cause of action at the time of death. This general rule, however, is subject to exceptions. One exception arises where the deceased, after receiving the injuries that later resulted in death, pursues a course of conduct that makes it inequitable for their heirs to later pursue a cause of action for wrongful death. As our Supreme Court recently affirmed, the inequitable "postinjury category of extrinsic limitations on the availability of the wrongful death action includes prior litigation, prior settlements, and the lapsing of the statute of limitations." Deggs v. Asbestos Corp., 186 Wn.2d 716, 726, 381 P.3d 32 (2016).
In this case, after being diagnosed with mesothelioma, Barbara Brandes brought a personal injury action against Brand Insulations Inc. (Brand) and other entities. Barbara's action against Brand was converted to a survivorship action after she died during her trial.1 The jury returned a verdict in favor of the estate. After a judgment was entered, the estate brought the present wrongful death action against Brand, CBS Corporation (CBS), Parsons Government Services (Parsons), and Saberhagen Holdings, Inc.2 The trial court dismissed the wrongful death action against all the defendants after concluding the claims were extinguished by the prior judgment in the survivorship action.
Because the estate recovered from prior litigation against Brand, we are bound by Deggs and affirm the trial court's dismissal of the wrongful death action against Brand. However, because they were not parties to the estate's prior litigation, we reverse the trial court's dismissal of the wrongful death action against Parsons and CBS and remand for further proceedings.
FACTS
Barbara Brandes was diagnosed with mesothelioma on June 16, 2014, at the age of 79. In August 2014, she filed a complaint for personal injuries against multipledefendants, including Brand. Barbara alleged that Brand negligently sold and installed asbestos thermal insulation products at the Atlantic Richfield Cherry Point refinery where her husband worked, causing her to sustain "take home" exposure to asbestos fibers in Brand's product. Barbara's 2014 complaint did not name CBS, Parsons, or Saberhagen.
A trial began on April 6, 2015. By the second day of trial, Barbara had settled with all defendants except Brand for a total of $1,965,710.76. In each settlement, Barbara specifically released the defendant from all claims arising out of her present personal injury claim as well as any future wrongful death claims. Thirteen days into the trial, Barbara died. The next day was to be the final day of trial, including the final presentation of Brand's evidence and closing arguments.
The trial court granted plaintiff's motion to substitute Barbara's daughter, Ramona Brandes, as personal representative of her mother's estate, and authorized continuation of the trial as a survivorship action for Barbara's personal injury claims. The parties agreed to inform the jurors of Barbara's death, and to eliminate any instructions for Barbara's future damages. The estate confirmed that it was not seeking to add any new claims or evidence, confirming it was not pursuing any potential wrongful death claims at that time.
Following a day of deliberation the jury returned a verdict for the plaintiff, and awarded the estate $3,500,000 in non-economic damages. Brand filed a motion for a new trial, or in the alternative, a remittitur. The trial court granted remittitur, reducing the jury's verdict from $3,500,000 to $2,500,000. The trial court then allocated 20 percent of the settlement proceeds to the future wrongful death claims and reduced thejudgment against Brand by 80 percent in consideration of payments received from the settling defendants. After offsetting the balance of the settlement proceeds from the damages award, the estate was awarded a net judgment of $927,431.39 against Brand. The judgment was entered on June 19, 2015.
Both parties appealed. In an unpublished decision, this court affirmed the jury's verdict but reversed the remittitur, and remanded for "the trial court to reinstate the jury's verdict and damages award." See Estate of Brandes v. Brand Insulations, Inc., No. 73748-1-I, slip op. at 23 (Wash Ct. App. Jan. 23, 2017) (unpublished), http:www.courts.wa.gov/opintons/pdf/737481.pdf.
On July 22, 2015, Ramona Brandes, acting as personal representative of Barbara's estate, filed a complaint for wrongful death against Brand, CBS, Parsons, and Saberhagen on behalf of Barbara's eight children. The estate sought economic damages for lost financial support and non-economic damages for the loss of their parental relationship and consortium with their mother.
On November 3, 2015, Brand filed a motion to dismiss under CR 12(b)(6), and defendants Parsons and Saberhagen joined. Brand argued that under this court's holding in Deggs v. Asbestos Corp., 188 Wn. App. 495, 354 P.3d 1 (2015), the wrongful death claims were extinguished by the judgment entered in Barbara's personal injury action against Brand.
The trial court granted the motion to dismiss on December 16, 2015. The estate filed a "corrected order" requesting that the order be amended to explicitly state it applied to all defendants, CBS filed a notice of non-opposition to the proposedcorrected order. On January 6, 2016, the court entered the corrected order stating that the action was dismissed against all defendants.
The estate appealed. We granted a stay of the appeal pending our Supreme Court's decision in Deggs, which was released on October 6, 2016. The appeal was reinstated.
ANALYSIS
Standard of Review
A trial court's ruling to dismiss a claim under CR 12(b)(6) is reviewed de novo. Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). Under CR 12(b)(6), a complaint can be dismissed if it fails to state a claim upon which relief can be granted. "The court presumes all facts alleged in the plaintiff's complaint are true and may consider hypothetical facts supporting the plaintiff's claims." Kinney, 159 Wn.2d at 842. "Dismissal is warranted only if the court concludes, beyond a reasonable doubt, the plaintiff cannot prove 'any set of facts which would justify recovery.'" Kinney, 159 Wn.2d at 842 (quoting Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). CR 12(b)(6) motions should be granted "sparingly and with care," Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793 (1984) (internal quotations omitted).
Limitations on Wrongful Death Actions
The estate argues that under the plain language of the statute, a wrongful death action is a new and distinct cause of action solely for the benefit of a decedent's heirs, thus it is unaffected by the prior judgment on the estate's survivorship action based on Barbara's personal injury claim. While we agree that the language of the wrongfuldeath act creates a separate cause of action on behalf of the statutory beneficiaries, we cannot agree that the judgment in the estate's survival action against Brandes had no effect on the estate's wrongful death claim.3
Washington's special survival statute, RCW 4.20.060, allows the executor or administrator of an estate "to recover for the decedent's damages, including any pain and suffering between the time of the injury and the time of death." Bowers v. Fibreboard Corp., 66 Wn. App. 454, 460, 832 P.2d 523 (1992). "Unlike Washington's wrongful death statutes, the survival statutes do not create new cause of action for statutorily named beneficiaries but instead preserve causes of action for injuries suffered prior to death." Otani ex rel. Shigaki v. Broudy, 151 Wn.2d 750, 755, 92 P.3d 192 (2004).
In contrast to a survival action, Washington's wrongful death statutes, RCW 4.20.010 and RCW 4.20.020, create a cause of action for the statutory beneficiaries of the deceased. Broudy, 151 Wn.2d at 755. The wrongful death statute provides, "[w]hen the death of a person is caused by the wrongful act, neglect, or default of another his or her personal representative may maintain an action for damages against the person causing the death." RCW 4.20.010. The distinguishing characteristic between a wrongful death claim and a survival action is "that the wrongful death statutes govern postdeath damages of the deceased and the survival statutes govern predeath damages." Broudy, 151 Wn.2d at 755. "[T]he action for wrongful death isderivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased." Deggs, 186 Wn.2d at 721 (quoting Johnson v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954). Deggs, 186 Wn.2d at 722.
A wrongful death action accrues "'at the time the decedent's personal representative discovered, or should have discovered, the cause of action'" Deggs, 186 Wn.2d at 721 (quoting White v. Johns-Manville Corp., 103 Wn.2d 344, 352-53, 693 P.2d 687 (1985). Thus, unlike a survival action that accrues when the deceased is first injured, a wrongful death action does not ordinarily accrue until their death. However, since the wrongful death statute was enacted in 1875, our Supreme Court has...
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