Masunaga v. Gapasin

• Decision Date: 25 July 1988
• Docket Number: No. 20472-6-I,20472-6-I
• Citation: 757 P.2d 550,52 Wn.App. 61
• Parties: Andrew and June MASUNAGA, husband and wife, Appellants, v. George GAPASIN and D.P. Gapasin, and Takeko Gapasin, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 61

52 Wn.App. 61

757 P.2d 550

Andrew and June MASUNAGA, husband and wife, Appellants, v. George GAPASIN and D.P. Gapasin, and Takeko Gapasin, husband and wife, Respondents.

No. 20472-6-I.

Court of Appeals of Washington Division 1.

July 25, 1988.

Gordon Woodley, Woodley Law Offices, Bellevue, for appellants Andrew and June Masunaga.

Martinus L. Johnson, Betts, Paterson & Mines, Seattle, for respondent George & D.P. and Takeko Gapasin.

Robert Freeman, Seattle, for respondent Dr. Barry Grosskopf.

George Bovington, Seattle, for respondent Highline-West Seattle Mental Health Center.

SWANSON, Judge.

Andrew and June Masunaga of Kapaa, Kauai, Hawaii, husband and wife, appeal the superior court partial summary judgment order dismissing their claims for damages against George Gapasin and D.P. and Takeko Gapasin, husband and wife, for the death of their 32-year-old son, Dennis C. Masunaga, in a pedestrian-automobile accident. They contend that under RCW 4.24.010 they are entitled to damages stemming from the loss of their adult son upon whom they allegedly were dependent for support.

On February 14, 1984, Dennis Masunaga, a pedestrian, died of injuries suffered when he was hit by a car driven by George Gapasin and owned by D.P. and Takeko Gapasin. At the time of his death, the decedent was an accountant who was divorced and had a 10-year-old daughter. The administrator of Masunaga's estate settled the estate's claims against the Gapasins for the $50,000 limit of the Gapasins' insurance policy, and the settlement was approved by the court. In consideration of this settlement, the estate administrator signed a covenant not to sue the Gapasins.

Subsequently the decedent's parents filed a suit against the Gapasins, Highline-West Seattle Mental Health Center, and Dr. Barry Grosskopf and his wife, seeking damages for the loss of their deceased son's "companionship, assistance, services, love, counsel, guidance and support."

The respondents filed a summary judgment motion supported by a memorandum in which they argued that the parents' claims were barred in that (1) a wrongful death action under the general wrongful death statutes, RCW 4.20.010 and .020, may be brought only by the decedent's personal representative, who had already settled the estate's claims with the Gapasins and signed a covenant not to sue, and (2) since the decedent had a daughter, the parents were not statutory beneficiaries under either the wrongful death statute, RCW 4.20.020, or the special survival statute, RCW 4.20.060. In a supplemental memorandum the respondents argued that a parent's recovery for wrongful death under RCW 4.24.010, the "child-death" statute, is limited to a minor child. The appellants responded that they were entitled to recovery under RCW 4.24.010 since they were dependent upon their son for support and, unlike the personal representative of the decedent's estate, they had not settled their claims against the Gapasins. Summary judgment was entered in the respondents' favor, and the appellants' reconsideration motion was denied.

The sole issue in this appeal of the partial summary judgment order ¹ is whether the trial court erred in granting summary judgment dismissing the appellants' action for damages against the respondents under RCW 4.24.010, which states in pertinent part:

The mother or father or both may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either, or both, are dependent for support ...

See Burt v. Ross, 43 Wash.App. 129, 131, 715 P.2d 538 (1986); Bankhead v. Aztec Constr. Co., 48 Wash.App. 102, 110, 737 P.2d 1291 (1987).

In such an action, in addition to damages for medical, hospital, medication expenses, and loss of services and support, damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship ...

RCW 4.24.010; see Eurick v. PEMCO Ins. Co., 108 Wash.2d 338, 341, 738 P.2d 251 (1987).

The respondents argue that the appellants' recovery under RCW 4.24.010 is barred by RCW 4.20.020, which permits parents to benefit from a wrongful death action brought by the deceased's personal representative only if the deceased has no surviving spouse or child. RCW 4.20.010 provides in part:

When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death ...

Roe v. Ludtke Trucking, Inc., 46 Wash.App. 816, 818 n. 1, 732 P.2d 1021 (1987). RCW 4.20.020 states:

Every such action shall be for the benefit of the wife, husband, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife or husband or such child or children, such action may be maintained for the benefit of the parents, sisters or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death.

Roe, at 818 n. 2, 732 P.2d 1021. Here the deceased had a child for whose benefit the decedent's personal representative could have brought an action under RCW 4.20.010 and .020, but the administrator of the decedent's estate settled the estate's claims against the respondents; consequently, the respondents argue, the parents could not be beneficiaries under RCW 4.20.020 and cannot now bring a separate action under RCW 4.24.010.

Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. 400, 30 P. 714 (1892) is dispositive of this issue. In Hedrick the father, as administrator of the deceased minor child's estate, previously had recovered a $2,000 judgment against the defendant for the child's death; subsequently, he brought an action against the defendant for loss of his son's services. Examining sections 8 and 9 of the Code of 1881, the predecessor statutes of RCW 4.20.010 and 4.24.010, respectively, Hedrick upheld the father's right to maintain the second action for loss of the child's services, which right was deemed to be separate and distinct from that of the heirs or personal representatives. Hedrick, at 404, 30 P. 714, states:

Two actions may thus spring from the same wrongful act, because two distinct injuries are thereby inflicted. But the actions are prosecuted in different rights and the damages are given upon different principles. The damages recovered by a parent for loss of services of a child belong to the parent in his own right and are not distributable among the heirs, and do not become a part of the estate of the deceased.

In the instant case the decedent's estate's loss, which could have been redressed under RCW 4.20.010 and .020, is a separate injury from that suffered by the decedent's parents, for which they seek compensation under RCW 4.24.010. Hedrick's rationale supports the maintenance of the appellants' action under RCW 4.24.010 here. Thus the fact that RCW 4.20.020's language designating the beneficiaries of the personal representative's action was absent from the 1881 Code's section 8 is not significant.

If the respondents' position were accepted, where a decedent has no spouse or child, the parents may be the beneficiaries of a wrongful death action under RCW 4.20.020, but where a spouse or child exists, the parents are precluded either from benefitting from such an action under RCW 4.20.020 or from individually bringing an action under RCW 4.24.010. ² The effect, in essence, is to render a nullity that portion of RCW 4.24.010 which authorizes a parent's recovery for a child's death. However, it is presumed that the legislature does not engage in meaningless acts. State v. McCullum, 98 Wash.2d 484, 493, 656 P.2d 1064 (1983); Daviscourt v. Peistrup, 40 Wash.App. 433, 441, 698 P.2d 1093, review denied, 104 Wash.2d 1008 (1985).

The respondents argue that the two statutes can be harmonized if recovery under RCW 4.24.010 is limited to decedents who are minor children. Since the decedent here was an adult, the respondents contend that the parents are precluded from bringing an action under this statute.

Prior to the 1927 amendment of the predecessor statute to RCW 4.24.010, the statute authorized a parent to bring an "action as plaintiff for the injury or death of a child ..." ³ Wilson v. Lund, 74 Wash.2d 945, 952, 447 P.2d 718 (1968). However, in 1927 this portion of the predecessor statute was amended to read "for the injury or death of a minor child, or a child on whom either [parent] is dependent for support ..." (Emphasis added.) Laws of 1927, ch. 191, § 1, p. 241; see Wilson v. Lund, supra at 953. This language remains in the current statute with the addition of "or both" after "either" and the substitution of "are" for "is."

"When the term 'or' is used it is presumed to be used in the disjunctive sense, unless the legislative intent is clearly contrary." Childers v. Childers, 89 Wash.2d 592, 595, 575 P.2d 201 (1978) (quoting 1A C. Sands, Statutes and Statutory Construction § 21.14 n. 1 (4th ed. 1972)). "Or" does not mean "and." Childers v. Childers, supra at 596, 575 P.2d 201. Under RCW 4.24.010 the parents may recover for the injury to or wrongful death of a minor child without a showing of dependency whereas proof of dependency is required where the child is an adult. ⁴ See Warner v. McCaughan, 77 Wash.2d 178, 184-85, 460 P.2d 272 (1969); Comment, Washington Wrongful Death and Survival Actions, 6 Gonz.L.Rev. 314, 321 (1971); Comment, Damages in Washington Wrongful Death Actions, 35 Wash.L.Rev. 441, 447 (1960). Thus the appellants are not precluded from maintaining an action under RCW 4.24.010 because their deceased son was an adult as long as they were dependent upon him for support.

The respondents rely upon Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975), in which the court, in holding that a cause of action exists under RCW 4.24.010 for the wrongful death of a viable unborn fetus, stated:

Parents have a right of action only if their...