Estate of Morgan v. Estate of Morgan, No. 50133-0-I (Wash. App. 3/15/2004)
| Decision Date | 15 March 2004 |
| Docket Number | No. 50133-0-I,50133-0-I |
| Parties | ESTATE OF KAREN K. MORGAN, by and through the personal representatives ROBERT and HELEN MAKI, Appellants, v. ESTATE OF CASEY B. MORGAN, by and through the personal representatives JAY MORGAN, JAY MORGAN, individually, and SUE MORGAN, individually, and the marital community composed thereof; and RICK BATHUM and JANE DOE BATHUM, and the marital community composed thereof, Respondents, v. ESTATE OF KAREN K. MORGAN, by and through the personal representatives ROBERT and HELEN MAKI; ROBERT MAKI and HELEN MAKI, individually, and the marital community composed thereof, Appellants. In the Matter of the Estate of: CASEY B. MORGAN, deceased, Respondent. In the Matter of the Estate of: KAREN MORGAN, deceased, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of King County. Docket No. 00-2-19370-0. Judgment or order under review. Date filed: 03/11/2002. Judge signing: Hon. James a Doerty.
Counsel for Appellant(s), John Joseph Iv Kannin, Attorney at Law, 1325 4th Ave Ste 535, Seattle, WA 98101.
Randolph O III Petgrave, Attorney at Law, 419 Occidental Ave S Ste 608, Seattle, WA 98104-3810.
Philip Albert Talmadge, Talmadge & Stockmeyer, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), Frank Arthur Cornelius Jr, Lee Smart Cook Martin & Patterson, One Convention Place, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Sam Breazeale Franklin, Lee Smart Cook Martin & Patterson, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Francis X Olding, Betts Patterson & Mines PS, 701 Pike St Ste 1400, Seattle, WA 98101-3927.
A wrongful death claim by a murder victim's estate against the brother of the killer requires the plaintiff to show either that a `special relationship' existed between the brother and the decedent such that the brother was entrusted with the well-being of the decedent, or assumed a `special relationship' of control over the killer which gave rise to a duty to protect the decedent from that third person. Here, the facts show that Casey Morgan assumed a special relationship of control over his brother, Tom Morgan, such that a triable issue existed whether Casey should have protected others from Tom's actions. Reversed and remanded.
Casey and Karen Morgan, husband and wife, died at the hands of Casey's brother, Tom Morgan. Tom experienced severe emotional and mental problems for 25 years. Tom had a fascination with, and collected, guns. He had several unsuccessful suicide attempts. Tom had arguments with Casey and once went after him with a gun. After one outburst, Casey was asked by police officers to take possession of Tom's firearms. Casey did so, but kept the guns unlocked in the bedroom he shared with Karen. In the fall of 1999, after trying to commit suicide by shooting himself in the head, Tom was institutionalized. Tom was released into Casey's care and came to live with Karen and Casey at Casey's invitation.
Although Casey knew Tom was barred from access to guns, he allowed Tom to keep and use an ammunition loading press in his room and kept the guns unsecured. Karen was not comfortable having Tom's guns in the house and expressed to a friend that she was afraid that Tom would hurt her. On December 7, 1999, Tom shot and killed both Karen and Casey with a shotgun. The evidence showed that Tom initially shot Karen twice in the torso and Casey three times in the torso. Tom called 911, told the operator he had shot his brother and sister-in-law, and informed the operator he was mentally ill and highly medicated. During the call Tom stated, The 911 transcript reveals faint sounds in the background and then the sound of a final gun shot. Tom informed the operator he had to shoot his brother `once more in the head' because he was still breathing. He then continued to talk to the operator for nearly an hour, indicating several times that he desired medical assistance for his brother and sister-in-law in case they might still be alive.
Tom was killed by Seattle police officers in a shootout. The police officers found a suicide note which indicated that Tom intended to kill both Casey and Karen, burn their house, and then kill himself. Dr. Paul D. Gosink of the King County Medical Examiner's Office viewed the scene of the crime, performed autopsies on Karen and Casey, and issued death certificates that stated the deaths were simultaneous. No one sought review of the information in the certificates.
Casey and Karen Morgan died intestate. Jay and Sue Morgan (the Morgans) are Casey's brother and former sister-in-law and were appointed the personal representatives of Casey's estate in December 1999. Robert and Helen Maki (the Makis) are Karen's parents and were appointed the personal representatives of Karen's estate in January 2000.
On December 8 and 9, 1999, prior to being appointed Casey's personal representatives, the Morgans and their attorney, Rick Bathum, entered Casey and Karen Morgan's residence to secure it. They removed documents, records, and other personal property. Bathum located the Makis' telephone number and informed them of the murders and told them he would remove Karen's jewelry and scrapbooks from the home to protect them. Bathum also returned to the home in an attempt to locate a will or an attorney's name that represented either Karen or Casey. All items removed from the home were copied and disclosed to the Makis' counsel. For a period of time, Jay Morgan received rental income from Karen and Casey's real property and proceeds from the sale of community property, and paid the taxes on Karen and Casey's home.
Prior to being appointed as personal representatives, the Makis contacted Karen's employer, then U.S. West, about the status of her life insurance and employee stock ownership program (ESOP) benefits. Karen had named Casey as the primary beneficiary, and the Makis as secondary beneficiaries if Casey was not living. The Morgans also contacted U.S. West asserting that Casey had survived Karen. U.S. West determined that the Makis were the proper beneficiaries of Karen's ESOP benefits and made a payment of $204,674.86 to them. The Makis paid $49,748 in federal taxes on the benefits.
After commencement of the probate actions, the Morgans again asserted that Casey survived Karen. When disagreement about the timing of the deaths continued, the Makis began an action for Karen's estate in July 2000. The Makis argued that (1) Casey's estate was liable to Karen's estate because Casey recklessly endangered Karen's life by bringing Tom Morgan into their house and failing to keep firearms from him; (2) the Morgans and their attorney wrongfully took possession of property belonging to Karen's estate; and (3) the Morgans and their attorney engaged in civil conspiracy to deprive Karen's estate of property.
The Morgans asserted the Makis' claims were frivolous and counterclaimed for attorney fees and costs. The Morgans' attorney, Bathum, moved to dismiss the conversion and civil conspiracy claims against him individually under CR 12(b)(6) and CR 56. The court granted the motion and dismissed the Makis' claims with prejudice. Bathum then moved for attorney fees. The Makis objected, arguing that the claims were not frivolous. However, the court ruled that the Makis' claims of conversion and conspiracy were frivolous and granted Bathum $11,335 in attorney fees and costs pursuant to RCW 4.84.185. The court also found that the Makis' attorney failed to conduct a reasonable inquiry of the conversion and conspiracy claims, that this failure violated CR 11, and awarded Bathum $3,000 in sanctions.
The probate actions and civil actions were consolidated in September 2001. Thereafter, the Morgans filed a third party complaint against the Makis for conversion, based on benefits paid by U.S. West to the Makis.1 The Makis denied these claims.
The Morgans moved for summary judgment on the conversion and civil conspiracy claims against them, asserting they acted as personal representatives of Casey's estate. The trial court determined that the Morgans' actions were reasonable and consistent with their duties as personal representatives of Casey's estate, and that the Makis had failed to show any evidence of a conspiracy. The Morgans asked for attorney fees and sanctions. The court found the Morgans were forced to defend the Makis' frivolous lawsuit and awarded $14,155 in attorney fees to the Morgans under RCW 4.84.185. The court also sanctioned the Makis' attorney under CR 11 in the amount of $5,000, ruling that the attorney had not conducted a reasonable inquiry into the Makis' claims.
The Morgans also moved for summary judgment on the Makis' wrongful death claim and asked the court to determine that Karen predeceased Casey. Initially, the trial court denied this motion. On reconsideration, the court granted summary judgment to the Morgans as to the Makis' wrongful death action under RCW 4.20.046. The court then bifurcated the sequence of death issue.
The Morgans' motion on the sequence of deaths was accompanied by the 911 tape transcript and several declarations. The Makis provided the death certificates and a declaration from Dr. Gosnik, the medical examiner who issued the death certificates. Dr. Gosnik declared that it was not possible to prove that Karen predeceased Casey because her injuries were not instantly fatal, and noted that when he examined the bodies at the scene Casey's core body temperature was 63.2 degrees and Karen's core body temperature an hour later was 96.8 degrees.
The Morgans' medical examiner, Dr. Reay, disagreed and concluded that Karen could have lived only a few seconds from her injuries, and that since Casey's first wounds were not fatal he lived longer than Karen. The court conducted a two-day hearing and entered findings of fact that Karen died four to six minutes prior to Casey.
The Morgans renoted...
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