Ginochio v. Hesston Corp.
| Decision Date | 19 February 1987 |
| Docket Number | No. 7477-3-III,7477-3-III |
| Citation | 733 P.2d 551,46 Wn.App. 843 |
| Parties | , Prod.Liab.Rep. (CCH) P 11,323 Doris GINOCHIO, personal representative of the Estate of Lloyd R. Ginochio, Respondent, v. HESSTON CORPORATION, a Kansas corporation, Appellant. |
| Court | Washington Court of Appeals |
Michael L. O'Donnell, Raekes, Rettig, Osborne, Forgette & O'Donnell, Kennewick, for appellant.
Harrison K. Dano, Dano Law Firm, Moses Lake, for respondent.
On July 4, 1983, Lloyd Ginochio was killed while operating a Hesston Model 6550 windrower. Doris Ginochio, Lloyd Ginochio's widow, as personal representative of his estate, brought suit against the defendant, Hesston Corporation, alleging negligence, strict liability, and breach of warranty.
The jury returned a verdict awarding the estate $303,636, and Doris Ginochio $200,000, as statutory beneficiary in the wrongful death action. The jury found decedent was 60 percent negligent; the trial court entered judgment on the verdict reducing the award to the estate in the survival action by 60 percent, but did not reduce the award to Doris Ginochio as statutory beneficiary in the wrongful death action. Hesston Corporation had argued to the trial court, and argues on appeal, that decedent's contributory fault should be imputed to the statutory beneficiary of the wrongful death action, or, in the alternative, Hesston should be entitled to contribution from Mr. Ginochio's estate for that portion of his negligence that was a proximate cause of harm or injury to him.
The determinative issue is whether the court should have imputed the decedent's contributory fault to reduce the award to Doris Ginochio in the wrongful death action. It should have. We reverse.
Included as section 10 of the tort and product liability reform act of 1981, codified at RCW 4.22.020, was the following amendment:
The contributory fault of one spouse shall not be imputed to the other spouse or the minor child of the spouse to diminish recovery in an action by the other spouse or the minor child of the spouse, or his or her legal representative, to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse. In an action brought for wrongful death, the contributory fault of the decedent shall be imputed to the claimant in that action.
(Italics ours.) The amendment was included to conform the 1973 comparative negligence act to the product liability act's expansion of comparative negligence law to cover comparative fault situations. Washington State Senate Select Comm. on Tort & Prod. Liab. Reform, Final Report 1981, at 48. It also was designed to clear up ambiguities in the original comparative negligence act. The 1973 act provided one spouse's negligence could not be imputed to "bar" recovery in an action by the other spouse. Because contributory negligence no longer barred recovery, this language was inaccurate. Thus, "bar" was changed to "diminish". The amendment also specifically allowed fault to be imputed in a wrongful death action. The Final Report 1981 notes at page 49:
This is appropriate since wrongful death actions are in a sense derivative actions and the contributory fault of the decedent spouse should be taken into account in determining the amount of the surviving spouse's recovery.
Mrs. Ginochio asks this court to read "wrongful death" in the second sentence of RCW 4.22.020 to apply only to the survival action. She argues that the first sentence's reference to "damages caused by fault resulting in death ..." refers to the RCW 4.20.010 "wrongful death" action. However, such a reading distorts the language of the statute, and the distinction between "wrongful death" and "survival" actions.
The general survival action, codified as RCW 4.20.046, continues a decedent's cause of action for damages decedent could have claimed. Warner v. McCaughan, 77 Wash.2d 178, 179, 460 P.2d 272 (1969); Parrish v. Jones, 44 Wash.App. 449, 455, 722 P.2d 878 (1986). The special survival statute, RCW 4.20.060, applies where death is by personal injury; it allows damages for pain and suffering, whereas the "general" statute does not. Walton v. Absher Constr. Co., 101 Wash.2d 238, 240, 676 P.2d 1002 (1984). Under either statute, the cause of action belongs to the decedent and thus is subject to the same defenses that could have been urged against the decedent had he lived and brought the action, including decedent's own "fault". W. Keeton, D Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 126, at 947 (5th ed. 1984); V. Schwartz, Comparative Negligence § 13.1 (2d ed. 1986).
On the other hand, the wrongful death statute, RCW 4.20.010, creates a cause of action which belongs to someone other than the decedent. Warner v. McCaughan, supra. The measure of damages is the actual pecuniary loss suffered by the surviving beneficiaries from the death of their relative, including loss of services, love, affection, care, companionship, and consortium. Myers v. Harter, 76 Wash.2d 772, 783, 459 P.2d 25 (1969); Upchurch v. Hubbard, 29 Wash.2d 559, 563-64, 188 P.2d 82 (1947); Pearson v. Picht, 184 Wash. 607, 613, 52 P.2d 314 (1935); Jensen v. Culbert, 134 Wash. 599, 605, 236 P. 101 (1925).
Even though creating a "new" cause of action, the wrongful death action is essentially derivative, as noted by the senate report. Prior law under the contributory negligence rule held that because the right of recovery of the statutory beneficiary is derivative, if the deceased would have been barred, then the relatives are barred. Ryan v. Poole, 182 Wash. 532, 47 P.2d 981 (1935); Ostheller v. Spokane & I.E.R.R., 107 Wash. 678, 686, 182 P. 630 (1919); see also Restatement (Second) of Torts § 494 (1965). With the advent of comparative negligence principles, the "bar" rule of contributory negligence gave way to the "diminishment" principle. However, there appears no reason to reinterpret the wrongful death statute as nonderivative. See V. Schwartz, at § 13.2. In fact, the statute creating a wrongful death action in the parents of a minor child, RCW 4.24.010, has been interpreted to allow imputation of the comparative negligence of the minor child, under former RCW 4.22.010. Griffin v. Gehret, 17 Wash.App. 546, 564 P.2d 332 (1977).
In interpreting the contributory fault statute, we must construe each part of the statute in connection with every other part so as to produce a harmonious whole. Griffin v. Gehret, supra; 2A C. Sands, Statutory Construction § 46.05 (4th ed. 1984). To conclude the first sentence of RCW 4.22.020 refers to nonimputation of contributory fault in a "wrongful death" action, as argued by Mrs. Ginochio, would make the reference in the second sentence to "wrongful death" conflicting. The intent of the Legislature was to reduce the award under a wrongful death claim by...
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