Deggs v. Asbestos Corp., 91969–1

Decision Date06 October 2016
Docket NumberNo. 91969–1,91969–1
CourtWashington Supreme Court
Parties Judy R. Deggs, as Personal Representative for the estate of Ray Gordon Sundberg, Petitioner, v. Asbestos Corporation Limited; AstenJohnson, Inc.; CBS Corporation (FKA Viacom Inc., FKA Westinghouse Electric Corporation); Ingersoll–Rand Company, Respondents, and Bartells Asbestos Settlement Trust; Gasket Company; General Refractories Company; John Crane, Inc.; Metropolitan Life Insurance Company, and First Doe through One Hundredth Doe, Defendants.

Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. S.W. Third Floor, Ste. C, Seattle, WA, 98126–2138, Meredith Boyden Good, Brayton Purcell LLP, 806 S.W. Broadway, Ste. 1100, Portland, OR, 97205–3333, for Petitioner.

Richard George Gawlowski, Wilson Smith Cochran Dickerson, 901 5th Ave., Ste. 1700, Seattle, WA, 98164–2050, for Defendants.

Mark Bradley Tuvim, Kevin James Craig, Gordon & Rees LLP, 701 5th Ave., Ste. 2100, Seattle, WA, 98104–7084, J. Scott Wood, Foley & Mansfield PLLP, 999 3rd Ave., Ste. 3760, Seattle, WA, 98104–4009, Daniel Ruttenberg, Ruttenberg Law Office PLLC, Jan Elizabeth Brucker, Brucker Law Office, 801 2nd Ave., Ste. 800, Seattle, WA, 98104–1573, Bonnie Lynn Black, Attorney at Law, 1020 N K St., Apt. D, Tacoma, WA, 98403–1861, for Respondents.

Matthew Phineas Bergman, Colin Mieling, Brian F. Ladenburg, Bergman Draper Ladenburg, PLLC, 821 2nd Ave., Ste. 2100, Seattle, WA, 98104–1516, as Amicus Curiae on behalf of Bergman Draper Ladenburg PLLC.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., 800 Fifth Ave., Ste. 4141, Seattle, WA, 98104–3175, Michael Barr King, Carney Badley Spellman, P.S., 701 5th Ave., Ste. 3600, Seattle, WA, 98104–7010, as Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Bryan Patrick Harnetiaux, Attorney at Law, 517 E. 17th Ave., Spokane, WA, 99203–2210, Valerie Davis Mcomie, Attorney at Law, 4549 N.W. Aspen St., Camas, WA, 98607–8302, Daniel Edward Huntington, Richter–Wimberley PS, 422 W. Riverside Ave., Ste. 1300, Spokane, WA, 99201–0305, as Amicus Curiae on behalf of Washington State Association for Justice Foundation.

González, J.Washington State's wrongful death act is based on the English Lord Campbell's Act of 1846. Lord Campbell's Act gave certain family members a cause of action for a relative's wrongful death, but only if that relative would have had a cause of action for the injury at the time of death had death not occurred. While our state's legislature did not adopt that limitation, almost a century ago, this court did. We have since carved out some exceptions. We are asked today to abandon that limitation completely and to reinstate a daughter's case for the wrongful death of her father even though the father did not have a cause of action against the defendants at the time of his death.

¶2 While we recognize that our cases adopting the limitation from Lord Campbell's Act's may have been incorrect, the petitioner has not shown that they are harmful. Nor has she shown that the legal underpinnings of those decisions have changed or disappeared since those opinions were decided. Accordingly, we affirm.

FACTS

¶3 Ray1 Sundberg served in the United States Navy during the Second World War. Afterward, he worked for decades in dockyards and lumber yards. Throughout his long work life, he was exposed to asbestos. This exposure caused him serious, long term harm. Between 1998 and 2000, he was diagnosed with lymphoma

, pleural disease, and asbestosis relating to asbestos exposure. Clerk's Papers at 24.

¶4 In 1999, Sundberg filed a personal injury suit against nearly 40 defendants who had some part in exposing him to asbestos. Most of the defendants settled (the amounts are not in the record), though one did go to trial. Sundberg prevailed at trial, and in 2001, a jury awarded him $1,511,900 against the last remaining defendant.

¶5 Nine years later, at the age of 84, Sundberg died of asbestos-related disease. He was survived by his wife, Betty Sundberg, and their daughter, Judy Deggs. Deggs, acting as personal representative of her father's estate, brought this wrongful death action, Deggs primarily named defendants who had not been named in her father's 1999 personal injury action, though both suits named Asbestos Corporation Limited. Nothing in the record or briefing explains why her father did not name these new defendants in the earlier case. One of the defendants (later joined by others) moved to dismiss the suit as time barred because it was filed more than three years after Sundberg learned he had asbestos-related diseases.2 In other words, due to the passage of time, Sundberg did not have a cause of action against these defendants for his injuries at the time of his death. The trial judge agreed and granted the motions to dismiss.

¶6 The Court of Appeals affirmed over a vigorous dissent. Deggs v. Asbestos Corp. Ltd., 188 Wash.App. 495, 500, 354 P.3d 1

(citing 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) ), review granted , 184 Wash.2d 1018, 361 P.3d 746 (2015). It concluded that since Sundberg could not have brought a second suit based on his asbestos exposures before he died, Deggs could not bring a wrongful death suit after he died. Id.

¶7 The dissent concluded that the analytical underpinnings of Grant

and Calhoun had been undermined by subsequent case law. Id. at 514–15, 354 P.3d 1 (citing Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nicholas–Kiewit Constr. Co., 176 Wash.2d 502, 511, 296 P.3d 821 (2013) ). Since, it concluded, [o]f course, a wrongful death action cannot accrue before death,” the statute of limitations could not start to run until that time either. Id. at 515, 354 P.3d 1 (Dwyer, J., dissenting). Essentially, Deggs argues that wrongful death is a distinct statutory claim and that her injuries are not the same injuries her father suffered and sued for in 1999. Her injuries are due to the loss of her father, which did not occur until he died.

We granted Deggs' petition for review. Deggs, 184 Wash.2d 1018, 361 P.3d 746

. We have received amicus briefs in support of Deggs from the Washington State Association for Justice Foundation and Bergman Draper Ladenberg PLLC. We have received briefs in support of Asbestos Corporation Limited and the other defendants from the Washington Defense Trial Lawyers.

ANALYSIS

¶9 “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.” RCW 4.20.010

. The wrongful death action is for the benefit of statutory heirs, not the decedent or the decedent's estate. RCW 4.20.020

; Gray v. Goodson , 61 Wash.2d 319, 327, 378 P.2d 413 (1963) (quoting Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31 (1936) ). The wrongful death act expresses our society's judgment that “a person may legally sustain damages when one, with whom a certain relationship existed, is wrongfully killed.” Gray , 61 Wash.2d at 325, 378 P.2d 413. It is not truly a derivative action: [T]he action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Johnson v. Ottomeier, 45 Wash.2d 419, 423, 275 P.2d 723 (1954) (citing Welch v. Davis, 410 Ill. 130, 101 N.E.2d 547 (1951) ); see also

Gray , 61 Wash.2d at 325, 378 P.2d 413 (citing Upchurch v. Hubbard , 29 Wash.2d 559, 188 P.2d 82 (1947) ). Accordingly, a wrongful death action accrues “at the time the decedent's personal representative discovered, or should have discovered, the cause of action.” White v. Johns–Manville Corp., 103 Wash.2d 344, 352–53, 693 P.2d 687 (1985). But see

Atchison v. Great W. Malting Co ., 161 Wash.2d 372, 379, 166 P.3d 662 (2007) (observing that “the rule is well-settled: wrongful death actions accrue at the time of death” (citing Dodson v. Cont'l Can Co., 159 Wash. 589, 294 P. 265 (1930)

)).3 It has a three year statute of limitations. See

Huntington v. Samaritan Hosp., 101 Wash.2d 466, 468, 680 P.2d 58 (1984) (citing RCW 4.16.080 ). Deggs filed this suit within three years of her father's death. Therefore, she contends, her suit was timely.

¶10 But while the wrongful death action exists for the benefit of the deceased's family, it is not completely separate from actions the deceased could have brought during life. These two types of actions are intertwined with each other and have consequences on each other. Both types of actions hold those who injure others liable for the damages they cause, but that liability is subject to the broader law and the law's limitations. As the plaintiffs are asking us to reconsider one of those long-standing limitations, we take this opportunity to trace the development of that limitation in our common law.

¶11 For many centuries, English common law did not have a cause of action for family members to sue for their loved ones' wrongful deaths. FRANCIS B. TIFFANY, DEATH BY WRONGFUL ACT § 1, at 1–3 (2d ed. 1913). In 1846, motivated by the “toll of human life taken by the railways,” the English parliament enacted [a]n act for compensating the families of persons killed by accidents.’ 15 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 220 (1965); TIFFANY , supra, § 4, at 5. This act has become known as Lord Campbell's Act. TIFFANY , supra, § 4, at 5 (citing Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (Eng.)). As described by the leading treatise this court frequently turned to when considering early wrongful death cases, the act originally provided in part:

That whensoever the death of a person shall be caused by wrongful act, neglect, or default, such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the
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