Chapple v. Ganger, CS-93-107-CI.

• Decision Date: 12 May 1994
• Docket Number: No. CS-93-107-CI.,CS-93-107-CI.
• Citation: 851 F. Supp. 1481
• Parties: Michael J. CHAPPLE, as Personal Representative of the Estate of Peggy Chapple, and as father of Christopher Chapple, a person under the age of 18, as in his own right; Russell Chapple, Greg Chapple and April Chapple, Plaintiffs, v. Jorawar Singh GANGER, and Baljit Singh Gill, Defendants.
• Court: U.S. District Court — District of Washington

851 F. Supp. 1481

Michael J. CHAPPLE, as Personal Representative of the Estate of Peggy Chapple, and as father of Christopher Chapple, a person under the age of 18, as in his own right; Russell Chapple, Greg Chapple and April Chapple, Plaintiffs, v. Jorawar Singh GANGER, and Baljit Singh Gill, Defendants.

No. CS-93-107-CI.

United States District Court, E.D. Washington.

May 12, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Parlette and Malcolm C. McLellan, Davis, Arneil, Dorsey, Kight & Parlette, Donald C. Bell (Guardian Ad Litem), Wenatchee, WA, for plaintiffs.

Gregory J. Arpin and Michael B. Love, Chase, Hayes & Kalamon, Spokane, WA, for defendants.

OPINION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW, FOLLOWING SUMMARY BENCH TRIAL, AND DIRECTING ENTRY OF JUDGMENT FOR PLAINTIFFS

IMBROGNO, United States Magistrate Judge.

On June 7, 1992, due to the negligence of Defendants, Peggy A. Chapple died in a motor vehicle accident in Okanogan County, Washington. Additionally, Ms. Chapple's ten year-old son, Christopher, the only passenger in the car driven by his mother, was injured severely. A wrongful death and survival action ensued in Okanogan County Superior Court, and was removed to federal court under diversity of citizenship jurisdiction, 28 U.S.C. § 1332. Plaintiffs, represented by attorneys Robert L. Parlette and Malcolm McLellan and Guardian ad Litem Donald C. Bell, are domiciliaries of the State of Washington. Attorneys Gregory Arpin and Michael Love represent Defendants, residents of British Columbia, Canada.

On July 29, 1993, pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the undersigned United States magistrate judge. (Ct.Rec. 14.) More recently, the parties stipulated to an abbreviated bench trial. Specifically, Defendants conceded liability and the parties waived their right to trial by jury. It was agreed the undersigned would determine damages based upon a review of deposition testimony submitted by the parties, their experts and witnesses, as well as expert reports, briefing, and argument of counsel. The parties presented the evidence to the court during two days of formal proceedings.

The parties further agreed the undersigned would enter a final, non-appealable judgment for an amount of damages. The judgment is to be satisfied upon payment by Defendants of an agreed sum of money, a sum which has not been revealed to the undersigned. (Ct.Rec. 109, Stipulation for Abbreviated Trial Procedure.) These stipulations were reached after notice to and without opposition from, the court-appointed guardian ad litem.

The court is satisfied the procedure is consistent with the undersigned's constitutional and statutory authority and is consistent with a magistrate judge's judicial capacity, as analyzed in DDI Seamless Cylinder Int'l., Inc. v. General Fire Extinguisher Corp., 14 F.3d 1163, 1166 (7th Cir.1994). As a result, the anticipated two weeks of trial distilled to two days.¹

APPLICABLE LAW

Three legal claims are before the court: (1) A claim for damages by the estate of Peggy Chapple under the survival statutes of the State of Washington; (2) wrongful death claims under the applicable state law by Ms. Chapple's statutory beneficiaries: spouse Michael Chapple; her minor son, Christopher Chapple, as well as adult children Russell Chapple, Greg Chapple, and April Chapple; and (3) a personal injury claim for damages in tort by Christopher Chapple.

SURVIVAL CLAIM

The parties agree that under Washington law, the special survival statute allows the personal representative of a deceased person's estate to recover damages for the estate, if the injury resulted in death. RCW 4.20.060;²Benoy v. Simons, 66 Wash.App. 56, 61, 831 P.2d 167, rev. denied, 120 Wash.2d 1014, 844 P.2d 435 (1992). The purpose of damages under the survival statute is to reimburse the decedent's estate for the monetary losses it sustained as a result of the untimely death. Wooldridge v. Woolett, 28 Wash.App. 869, 871, 626 P.2d 1007, affirmed, 96 Wash.2d 659, 638 P.2d 566 (1981).

The first type of damage is the loss of net earnings that would have been accumulated by the estate. This amount is calculated by establishing the deceased's future net earnings, less all probable deductions for personal and family expenses and any other adjustments required, and reducing that figure to its present value. Wagner v. Flightcraft, Inc., 31 Wash.App. 558, 568, 643 P.2d 906, rev. denied, 97 Wash.2d 1037 (1982).

Here, the evidence discloses Ms. Chapple had worked in restaurants as a food server for most of her adult life. At times, she was the sole support of her family. On the date of her death, she was employed as a food server at the Edelweiss Restaurant in Oroville, Washington. She was earning $4.90 an hour, averaging 38 to 40 hours per week as a permanent employee. Plaintiffs contend Ms. Chapple's hourly wage should be increased to reflect alleged tips of approximately $200 per week and the promise of a promotion to assistant manager at a salary of $1,500 per month. Thus, Plaintiffs calculate the estate's loss of economic benefits as $227,200.

Defendants contend the amount of tips was not reflected in Ms. Chapple's income tax return and, therefore, is speculative. They further argue the position of assistant manager never became a reality. Historically, Ms. Chapple's annual income averaged near $10,000. (Donald A. Reddington, CPA, Dep. at 38.) Furthermore, Defendants note the Edelweiss Restaurant has closed since the accident.

The court concludes the estate's loss of economic benefits should be based on Ms. Chapple's proposed salary of $1,500 per month. Because of the management responsibilities and the lack of evidence that tip income would be available in that position, the court does not include an amount for tips. Accordingly, the assumptions made by Plaintiff's economic expert are modified to reflect an annual income of $18,000, rather than $18,400. The court also is convinced, based on the evidence of Ms. Chapple's personal traits and work habits, that she would have remained employed to the age of 65, rather than choosing to retire at 62. Also accepted is the assumption that despite the closure of the Edelweiss Restaurant, given Ms. Chapple's capabilities and work history, she would have been able to secure a new position with comparable earnings and no significant time loss. Therefore, the total loss of earnings sustained is $291,600.

Having determined that amount, the court must deduct the personal and family expenses that would have been paid by Ms. Chapple from her estate. Relying on the testimony of Defendants' economist, the court finds 32% of Ms. Chapple's income would have been expended and, therefore, should be deducted from the gross earnings. Finally, the court is required to reduce the remainder to its present value; however, based again on the Plaintiff's expert, the total offset method will be used. Having made the necessary calculations, the award for loss of net earnings to the estate is $198,288.³

In addition to loss of net earnings, a survival action also authorizes an award to the estate for those damages recoverable in a garden variety tort action:

(1) Medical and hospital expenses. See Orcutt v. Spokane County, 58 Wash.2d 846, 857-58, 364 P.2d 1002 (1961). None have been claimed on behalf of the estate.

(2) Funeral expenses. See Warner v. McCaughan, 77 Wn.2d 178, 184, 460 P.2d 272 (1969). There is no dispute the funeral and related travel expenses total $6,000.

(3) Property damage. See Covey v. Western Tank Lines, 36 Wn.2d 381, 218 P.2d 322 (1950). There is no dispute the property damage consists of the total destruction of the Chapple vehicle, valued at $3,880.

(4) Pain and suffering. If any measurable time ensued between the injury and death, damages for pain and suffering may be awarded. Bingaman v. Grays Harbor Community Hospital, 103 Wash.2d 831, 837, 699 P.2d 1230 (1985); see also Walton v. Absher Construction, 101 Wash.2d 238, 243, 676 P.2d 1002 (1984). Here, the coroner testified unconsciousness was "instantaneous" and death was "almost instantaneous." (Pl.Ex. 5.) The coroner further noted the "injuries indicate a massive force from the front and left struck the skull, face and upper torso with hyperflection of the thorasic cavity causing all of the rib fractures and disarticulations, as well as the complete traumatic rupture of the aorta." Because loss of consciousness was instantaneous, the court concludes there is no basis on which to award damages for pain and suffering.

(5) Fear. Plaintiffs contend they are entitled to damages for any fear experienced by Ms. Chapple prior to her death. RCW 4.20.060; see also Bingaman, 103 Wash.2d at 837, 699 P.2d 1230, citing Johnson v. Marshall Field & Co., 78 Wash.2d 609, 617-18, 478 P.2d 735 (1970). Defendants respond that any evidence of such fear would be based upon conjecture and speculation since Ms. Chapple's death was almost instantaneous and Christopher Chapple has no memory of the accident, citing Olympia Oyster Co. v. Rayonier, Inc., 229 F.Supp. 855, 861 (W.D.Wash.1964). However, the court is mindful that during his hospital stay, Christopher Chapple, on one occasion when he was not fully cognizant, screamed "Watch out, Mom! Watch out, Mom!" Thus, there is credible evidence that both mother and son were aware of and did appreciate the impending impact at least several seconds before it happened, even though there is no evidence Ms. Chapple had sufficient time to physically react with the vehicle. The court concludes sufficient evidence of fear has been submitted and damages of $25,000 are appropriate.

WRONGFUL DEATH CLAIMS

Michael Chapple, Rusty Chapple, Greg Chapple, April Chapple and Christopher Chapple seek damages under the state wrongful death statute. Under RCW 4.20.010,⁴ the personal representative of the decedent's estate may maintain an action for damages against the...