Haakanson v. Wakefield Seafoods, Inc.

• Decision Date: 05 October 1979
• Docket Number: Nos. 3428,3492,s. 3428
• Citation: 600 P.2d 1087
• Parties: Herman HAAKANSON, as Personal Representative of the Estates of Simeon Squartsoff and Annie Squartsoff, Deceased, Appellant, v. WAKEFIELD SEAFOODS, INC., Appellee. WAKEFIELD SEAFOODS, INC., Cross-Appellant, v. Herman HAAKANSON, as Personal Representative of the Estates of SimeonSquartsoff and Annie Squartsoff, Deceased, Cross-Appellee.
• Court: Alaska Supreme Court

Page 1087

600 P.2d 1087

Herman HAAKANSON, as Personal Representative of the Estates

of Simeon Squartsoff and Annie Squartsoff, Deceased, Appellant, v. WAKEFIELD SEAFOODS, INC., Appellee.

WAKEFIELD SEAFOODS, INC., Cross-Appellant, v. Herman HAAKANSON, as Personal Representative of the Estates

of SimeonSquartsoff and Annie Squartsoff,

Deceased, Cross-Appellee.

Nos. 3428, 3492.

Supreme Court of Alaska.

Oct. 5, 1979.

Lester W. Miller, Jr., Michelle V. Minor, Anchorage, for appellant, cross-appellee.

Murphy L. Clark, Anchorage, for appellee, cross-appellant.

Before BOOCHEVER, C. J., and RABINOWITZ and BURKE, JJ.

OPINION

BURKE, Justice.

In this appeal we must decide if Alaska's general tolling statute, AS 09.10.140, ¹ applies to extend the time limit for bringing an action set forth in AS 09.55.580, ² the wrongful death statute.

The events leading to this appeal began on February 14, 1970. On that date Simeon and Annie Squartsoff were killed when their Volkswagen bus veered from the causeway connecting the Port Wakefield cannery to the village of Port Lions and fell into the water. The causeway was constructed and, at the time of the accident, maintained by appellant Wakefield Seafoods, Inc. The Squartsoffs left five surviving children, ranging in age from two to nine years. In August of 1970, the children's maternal grandmother, Annie Boskofsky, and appellant, Herman Haakanson, assumed the care and custody of the children. ³

Apparently neither custodian was aware that a cause of action for wrongful death of the Squartsoffs could be filed on behalf of the children. Sometime in 1975 it came to Haakanson's attention that the children might be able to recover damages for the deaths of their parents. On June 22, 1975, more than five years after the accident, Haakanson successfully sought appointment as special administrator of the Squartsoffs' estates. In the capacity of personal representative, Haakanson filed a survival action on behalf of the estate and a wrongful death action on behalf of the children. The complaint, dated June 14, 1976, alleged that the owner of the causeway, Wakefield Seafoods, Inc., had directly and proximately caused the Squartsoffs' deaths by its negligent construction and maintenance of the causeway.

In its answer Wakefield denied liability and asserted a number of affirmative defenses, including the defense that the applicable statute of limitations had run. On August 13, 1976, Wakefield moved for summary judgment, contending that the actions were barred by the limitation period. The superior court granted the motion in a memorandum order and decision issued March 18, 1977, holding that the statutorily prescribed time limits for bringing the actions had expired. Subsequently, the court denied appellant's motion for reconsideration and Wakefield's motion for an award of attorney's fees. This appeal and a cross-appeal for attorney's fees followed.

The law of Alaska recognizes a cause of action for the benefit of surviving children who were dependent upon a deceased parent for care and support. Where a wrongful act causes the death, the wrongdoer must compensate these survivors for the loss of their provider. The mechanics for enforcing this duty appear in AS 09.55.580, which states in part:

When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury done by the same act or omission. The action shall be commenced within two years after the death . . . .

The personal representative of the decedent's estate has two years from the death of the decedent to bring the action on behalf of the beneficiaries under the statute. Haakanson, however, did not seek appointment as personal representative until over five years after the Squartsoffs' deaths. The court below held that failure to bring the action in that time operated as an absolute bar.

Where a decedent leaves an estate of any appreciable value, the prompt appointment of a personal representative to administer its disposal is a near certainty. Here, however it appears that the only persons standing to gain from the appointment of a personal representative were children whose minority disabled them from petitioning a court for appointment. See generally AS 13.16.065 & 13.16.080.

While the personal representative is the party who brings suit for wrongful death in Alaska, he or she is a nominal party only. In re Pushruk, 562 P.2d 329, 331 (Alaska 1977). The personal representative holds any recovery as trustee for the statutory beneficiaries. Koski v. Alaska Juneau Gold Mining Co., 6 Alaska 334, 336 (1921). When the decedent is survived by a spouse, child, or dependent, the action is brought on their behalf for their direct benefit and damages are measured by their loss. In re Pushruk, 562 P.2d at 331; AS 09.55.580. The primary purpose of the wrongful death statute is to compensate those who suffer a direct loss. In re Pushruk,562 P.2d at 331. Denying recovery to the Squartsoff children would defeat this purpose. ⁴

Statutes of limitation serve, on the other hand, "to encourage promptness in the prosecution of actions and thus avoid the injustice which may result from the prosecution of stale claims. Statutes of limitations attempt to protect against the difficulties caused by lost evidence, faded memories and disappearing witnesses." Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971) (footnote omitted). AS 09.10.010 codifies the general policies of granting repose and assuring fresh evidence at trial by establishing certain time limits for all civil actions. ⁵

The legislature has found, however, that certain circumstances outweigh the policies underlying these statutes of limitation. These circumstances have also been codified in AS 09.10.140 which provides that the disability of minority will toll the running of the statutes of limitation until the conclusion of the disability:

If a person entitled to bring an action mentioned in this chapter is at the time the cause of action accrues either (1) under the age of 19 years, or (2) insane, or (3) imprisoned on a criminal charge, or in execution under sentence of a court for a term less than his natural life, the time of the disability is not a part of the time limited for the commencement of the action. But the period within which the action may be brought is not extended in any case longer than two years after the disability ceases.

This statute expresses the public policy that favors safeguarding the interests of minors. See, e. g., Wilbon v. D. F. Bast Co., 48 Ill.App.3d 98, 8 Ill.Dec. 260, 365 N.E.2d 498 (1977).

We can think of no good reason why this expression of legislative policy should not apply to wrongful death actions. By construing the limitation period in the wrongful death statute in Pari materia with the general limitations provisions, we are able to give effect to the policies underlying limitation of actions. In addition, by affording wrongful death beneficiaries the same procedural opportunities available to other tort claimants, we can give better effect to the compensatory purpose of wrongful death actions. See Helling v. Lew, 28 Cal.App.3d 434, 439, 104 Cal.Rptr. 789, 792 (1972).

We are aware that it is widely held that bringing a wrongful death action within the time limit imposed is a condition precedent to recovery. ⁶ This rule originated in the holding, at one time almost universally accepted, that the common law provided no cause of action for wrongful death. ⁷ The legislatures responded by creating statutory actions for wrongful death. Because the statutes were in derogation of the common law, they were narrowly construed by the courts. ⁸ Where a time limit appeared in a statute, it was considered a limitation upon the right to sue, rather than on the remedy. The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358, 362 (1886). As a limitation on the right rather than the remedy, the time limits were held not to be subject to the disabilities or excuses tolling ordinary statutes of limitations. Id.

Commentators and courts have criticized this construction because it ignores the remedial purpose of the wrongful death statutes:

Death statutes have their roots in dissatisfaction with the archaisms of the law . . .. It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system. "The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed." Its intimation is clear enough in the statutes now before us that their effects shall not be stifled, without the warrant of clear necessity, by the perpetuation of a policy which now has had its day.

Van Beeck v. Sabine, 300 U.S. 342, 350-51, 57 S.Ct. 452, 456, 81 L.Ed. 685, 690 (1937) (footnotes omitted) (Cardozo, J.) Quoting Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, J.). ⁹

Many courts appear to be moving away from the traditional construction of wrongful death statutes. Some have gone so far as to find that the common law has evolved to the extent that it now includes a common law action for wrongful death. ¹⁰ These courts interpret the action as any other tort action and apply the general procedural statutes of limitations and the exceptions for disability.

Although we do not deem it necessary to base our holding on the common law, we are in agreement with the spirit of these decisions. ¹¹ Since its inception, Alaska's civil law has included an action for wrongful death. See § 353, pt. IV (...