Deggs v. Asbestos Corp.

• Decision Date: 22 June 2015
• Docket Number: Nos. 71297–7–I,71550–0–I.,s. 71297–7–I
• Citation: 188 Wash.App. 495,354 P.3d 1
• Parties: Judy R. DEGGS, as personal representative for the estate of Roy Gordon Sundberg, Appellant, v. ASBESTOS CORPORATION LIMITED; AstenJohnson, Inc.; CBS Corporation (FKA Viacom Inc., FKA Westinghouse Electric Corporation); Ingersoll–Rand Company, Respondents, Bartells Asbestos Settlement Trust; Gasket Company; General Refractories Company; John Crane, Inc.; Metropolitan Life Insurance Company, and First Doe through One Hundredth Doe, Defendants.
• Court: Washington Court of Appeals

188 Wash.App. 495

354 P.3d 1

Judy R. DEGGS, as personal representative for the estate of Roy Gordon Sundberg, Appellant

v. ASBESTOS CORPORATION LIMITED; AstenJohnson, Inc.; CBS Corporation (FKA Viacom Inc., FKA Westinghouse Electric Corporation); Ingersoll–Rand Company, RespondentsBartells Asbestos Settlement Trust; Gasket Company; General Refractories Company; John Crane, Inc.; Metropolitan Life Insurance Company, and First Doe through One Hundredth Doe, Defendants.

Nos. 71297–7–I

71550–0–I.

Court of Appeals of Washington, Division 1.

June 22, 2015.

Meredith Boyden Good, Brayton Purcell LLP, Portland, OR, Philip Albert Talmadge, Talmadge/Fitzpatrick, Seattle, WA, for Appellant.

Mark Bradley Tuvim, Kevin James Craig, Gordon & Rees LLP, Seattle, WA, J. Scott Wood, Daniel Ruttenberg, Foley & Mansfield PLLP, Seattle, WA, Jan Elizabeth Brucker, Jan Brucker, Attorney, Seattle, WA, Christopher S. Marks, Eliot M. Harris, Rachel Tallon Reynolds, Sedgwick LLP, Seattle, WA, Bonnie Lynn Black, Attorney at Law, Tacoma, WA, for Respondents.

Richard George Gawlowski, Wilson Smith Cochran Dickerson, Seattle, WA, for Defendants.

Opinion

APPELWICK, J.

¶ 1 Deggs, as personal representative for her father's estate, appeals the dismissal on summary judgment of her wrongful death action. In 1999 her father successfully sued several defendants for injuries related to asbestos exposure. In 2012, two years after her father passed away, Deggs filed a wrongful death action against one of the same defendants from the 1999 lawsuit and several new defendants. Wrongful death claims derive from the wrongful act and do not accrue absent a valid subsisting cause of action in the decedent at the time of death. Deggs's father had no valid subsisting cause of action at the time of his death. We affirm.

FACTS

¶ 2 Roy Sundberg was exposed to asbestos while working for various employers from 1942 to 1989. Sundberg was diagnosed with colon cancer

and lymphoma on July 24, 1998, pleural disease on August 31, 1999, and asbestosis on February 21, 2000.

¶ 3 On September 20, 1999, Sundberg filed a lawsuit against about 40 defendants, including Asbestos Corporation Limited (ACL). Sundberg sought relief in the form of general damages, medical and related expenses, pain and suffering, loss of earnings, loss of wages and future earning potential, emotional distress, and cost of the lawsuit. On April 18, 2001, Sundberg's wife, Betty Sundberg, asserted a claim for loss of consortium in the amended complaint.

¶ 4 The 1999 lawsuit was tried to verdict in 2001. The jury awarded $451,900 in economic damages, $700,000 in noneconomic damages, and $360,000 in loss of consortium damages.

¶ 5 In December 2010, Sundberg died of lymphoma

. On July 3, 2012, the personal representative of Sundberg's estate, his daughter, Judy Deggs, filed a second asbestos-related lawsuit against ACL and several new defendants, including respondents Ingersoll–Rand Company, AstenJohnson Inc., and CBS Corporation. The complaint asserted both a survival action and a wrongful death action. The 2012 lawsuit alleged liability against the defendants based on much of the same asbestos exposure as the 1999 lawsuit. The complaint sought the same relief as the 1999 lawsuit but included funeral expenses.

¶ 6 On March 12, 2013, respondent AstenJohnson moved for summary judgment. AstenJohnson argued that summary judgment was proper, because both the survival action and the wrongful death action were barred by the expiration of the statute of limitations on Sundberg's underlying claims. The trial court granted AstenJohnson's motion for summary judgment. The court noted that the statute of limitations had run on any of Sundberg's remaining personal injury claims. It thus reasoned that Deggs's claims were barred, because there was no remaining cause of action that Sundberg could have brought against AstenJohnson before he died.

¶ 7 In reaching its conclusion, the trial court weighed the competing interests of compensating the qualifying survivors and the important policy reasons behind finality and statutes of limitation. It ultimately reasoned that Sundberg consciously let the statute of limitations run out when he did not sue AstenJohnson in his 1999 personal injury lawsuit. It opined that, because there was no cause of action that Sundberg could have brought against AstenJohnson at the time of his death, there was no cause of action that his personal representative could bring because of Sundberg's death. The trial court then granted summary judgment through a separate order for the remaining defendants—ACL, Ingersoll–Rand Company, and CBS Corporation—because Deggs's claims against them were similarly barred.

¶ 8 Deggs appeals the summary judgment dismissals of her wrongful death claim, but not the survival claim, as to all respondents.

DISCUSSION

¶ 9 This court reviews summary judgment orders de novo. Hadley v. Maxwell, 144 Wash.2d 306, 310–11, 27 P.3d 600 (2001). Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) ; Peterson v. Groves, 111 Wash.App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, the court draws reasonable inferences in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995). An appellate court may affirm a trial court's disposition of a summary judgment motion on any basis supported by the record. Davies v. Holy Family Hosp., 144 Wash.App. 483, 491, 183 P.3d 283 (2008).

¶ 10 The statute of limitations for a personal injury action in Washington is three years. RCW 4.16.080(2). Sundberg passed away over 11 years after he filed his original personal injury complaint without bringing any additional lawsuits related to his injuries. Deggs asserts that Sundberg's actions and inaction during his lifetime—the 1999 lawsuit against ACL and his failure to pursue a personal injury action against the remaining respondents within the statute of limitations period—cannot affect the viability of her wrongful death action. She contends this is so, because the wrongful death action did not accrue until Sundberg passed away.

¶ 11 RCW 4.20.010 is the wrongful death statute:

When 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.

¶ 12 The issue here is whether the expiration of the statute of limitations for an individual's personal injury claims or a judgment or settlement on those same claims during his lifetime can preempt the accrual of his personal representative's wrongful death claim. The wrongful death statute is silent on this issue.

¶ 13 Deggs does not dispute that Sundberg won a favorable judgment against ACL in 1999. Nor does she dispute that the statute of limitations for Sundberg's personal injury claims as to the respondents expired prior to Sundberg's death. Because Sundberg pursued his personal injury claims against ACL to judgment, he would have been unable to sue ACL again based on the same cause of action during his lifetime. See Loveridge v. Fred Meyer, Inc., 125 Wash.2d 759, 763, 887 P.2d 898 (1995) (stating that res judicata prevents litigants from relitigating claims and issues that were litigated, or might have been litigated, in a prior action). To the extent there were any remaining causes of action Sundberg could have brought against ACL, like any potential personal injury claims against AstenJohnson, Ingersoll–Rand, and CBS, they would have been barred by the three year statute of limitations. See RCW 4.16.080(2).

¶ 14 Deggs claims that a cause of action for wrongful death accrued at the time Sundberg died, and that it is wholly unaffected by the resolution of Sundberg's underlying personal injury claims. However, Deggs's position is inconsistent with case law. In Washington, a decedent's inaction as to his claims during his lifetime can preempt the accrual of a personal representative's wrongful death cause of action. See, e.g., Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 581, 44 P.2d 193 (1935) ; Calhoun v. Wash. Veneer Co., 170 Wash. 152, 160, 15 P.2d 943 (1932). The trial court relied on Grant in dismissing Deggs's claims on summary judgment. The respondents on appeal rely heavily on Calhoun and Johnson v. Ottomeier, 45 Wash.2d 419, 275 P.2d 723 (1954).¹

¶ 15 In Calhoun, the decedent husband, worked for a manufacturing plant and was exposed to harmful fumes from April 1926 to November 1928. 170 Wash. at 153, 15 P.2d 943. In November 1928 he was diagnosed with bisulphide poisoning. Id. Calhoun originally brought an action in September 1931 claiming that his poisoning was a result of his employer's negligence. Id. at 153–54, 15 P.2d 943. Calhoun died on October 17, 1931, while his lawsuit was pending. Id. at 154, 15 P.2d 943. Calhoun's wife, Cora, as executrix of the estate filed an amended complaint in December and added a claim for wrongful death. Id. The trial court dismissed Cora's complaint. Id. at 155, 15 P.2d 943. On appeal, the court considered whether the statute of limitations barred Cora's wrongful death claim. Id.

¶ 16 A common law cause of action against the employer was precluded by the workmen's compensation act, Rem. Comp. Stat., § 7673. 170 Wash. at 158–59, 15 P.2d 943. The court noted that under the laws at the time, Calhoun himself would have been able to recover under only the factory act, Rem. Comp. Stat. § 7659, which provided a cause of action with a three year statute of limitations. 170 Wash. at 159, 15 P.2d 943. The court then determined that, based on Calhoun's injuries and facts as pleaded in the amended complaint, any injuries received from violation of the statute culminated and accrued about the middle of May 1928. Id. Thus, the statute of limitations on his factory act claim expired in May 1931. Id. 159–60, 15 P.2d 943. Because Calhoun did not...