Masunaga v. Gapasin

• Decision Date: 23 April 1990
• Docket Number: No. 25120-1-I,25120-1-I
• Citation: 57 Wn.App. 624,790 P.2d 171
• Parties: June and Andrew MASUNAGA, Appellants, v. George GAPASIN, D.P. Gapasin, and Takeko Gapasin, and the marital community composed thereof, Respondents.
• Court: Washington Court of Appeals

Page 624

57 Wn.App. 624

790 P.2d 171

June and Andrew MASUNAGA, Appellants, v. George GAPASIN, D.P. Gapasin, and Takeko Gapasin, and the marital community composed thereof, Respondents.

No. 25120-1-I.

Court of Appeals of Washington Division 1.

April 23, 1990.

Gordon Woodley and Woodley Law Offices, Bellevue, for appellants.

Martinus L. Johnson, Betts, Patterson & Mines, P.S., Seattle, for respondents.

SWANSON, Judge.

June and Andrew Masunaga appeal from the summary judgment dismissing their claims for damages against respondents George Gapasin and Gapasin's parents (referred to collectively as Gapasin). The Masunagas contend that the trial court erred in concluding that they were required to demonstrate financial dependence on their deceased adult son in order to recover under RCW 4.24.010.

The material facts are undisputed and were summarized in an earlier appeal of this action. See Masunaga v. Gapasin, 52 Wash.App. 61, 757 P.2d 550 (1988) (Masunaga I ). Dennis Masunaga, the appellants' 32-year-old son, died after being hit by a car driven by respondent George Gapasin. Masunaga, an accountant, was divorced and had a 10-year-old daughter. The administrator of Masunaga's estate eventually settled all of the estate's claims against Gapasin. The Masunagas then filed the instant action against Gapasin, claiming damages for their deceased son's "companionship, assistance, services, love, counsel, guidance and support." Masunaga I, at 62, 757 P.2d 550. The action was dismissed on summary judgment.

On appeal, we reversed, holding that the Masunagas were entitled to maintain their cause of action pursuant to RCW 4.24.010, the "child-death" statute, if they could demonstrate that they were dependent on their son for support. Because the dependence issue had not been fully explored below, the case was remanded without prejudice to Gapasin to renew the summary judgment motion. Masunaga I, at 70, 757 P.2d 550. On remand, the trial court granted Gapasin's renewed summary judgment motion, concluding that there were no material factual issues as to whether the Masunagas were dependent for support on their adult son. This appeal ensued.

In reviewing an order of summary judgment, we undertake the same inquiry as the trial court and determine whether the materials submitted demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985). This court must consider the materials submitted and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

The Masunagas maintain that they are entitled to maintain a cause of action under RCW 4.24.010 even though they were not financially dependent on their deceased adult son. RCW 4.24.010 provides 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 ...

(Italics ours.) An analogous provision in the general wrongful death statute, RCW 4.20.020, provides that parents and siblings may benefit from a wrongful death action brought by the deceased's personal representative if the parents or siblings are "dependent upon the deceased person for support" and if the deceased left no spouse or children. ¹ If the deceased left no surviving spouse or children, and if the parents were dependent on the child for support, then parents may sue under either RCW 4.20.020 or RCW 4.24.010, and there is an election of remedies. Masunaga I, 52 Wash.App. at 65 n. 2, 757 P.2d 550.

The "dependent for support" language was added to the predecessor of RCW 4.24.010 in 1927. See Laws of 1927, ch. 191, § 1, p. 241. Cases interpreting this requirement and the similar requirement in RCW 4.20.020 have long held that dependence means financial dependence and that establishment of financial dependence is a condition precedent to maintenance of the cause of action. See, e.g., Warner v. McCaughan, 77 Wash.2d 178, 184-85, 460 P.2d 272 (1969); Kanton v. Kelly, 65 Wash. 614, 620, 118 P. 890, 121 P. 833 (1911). While a parent need not be wholly dependent in order to recover, dependence must be substantial. Joski v. Short, 1 Wash.2d 454, 461, 96 P.2d 483 (1939). Dependence within the meaning of the wrongful death statutes has been described as "a substantial need on one side and a substantial financial recognition of that need on the other side ..." (Italics ours.) Bortle v. Northern Pac. Ry. Co., 60 Wash. 552, 556, 111 P. 788 (1910); see also Cook v. Rafferty, 200 Wash. 234, 93 P.2d 376 (1939).

Relying on general dictionary definitions, the Masunagas ask this court to interpret "support" to mean the providing of "emotional support and services." As one court has observed in a similar context, however, to construe the dependence requirement to encompass "emotional dependence" would render the provision virtually meaningless: "Almost all parents depend on their children for emotional satisfaction and are injured by the death of their child." Perry v. Medina, 192 Cal.App.3d 603, 237 Cal.Rptr. 532, 535 (1987). Moreover, the Masunagas have not, in any event, presented any evidence suggesting that they were dependent on their adult child's emotional support.

The Masunagas maintain that their son was raised in "the Japanese tradition whereby it would be he who would care for us and provide for us throughout our lives" and that their son "did accounting for us ... and prepared our annual income tax returns." The provision of such services is described as "a privilege and an honor" for the provider; nowhere do the appellants identify evidence suggesting that they needed or were dependent upon such services. In addition, the dependence necessary to support an action must be based on a current condition, not on a promise of future services or anticipated future dependence. Grant v. Libby, McNeill & Libby, 145 Wash. 31, 37, 258 P. 842 (1927).

In 1967, the Legislature amended RCW 4.24.010, adding the following provision:

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 in such amount as, under all the circumstances of the case, may be just.

The Masunagas argue that the 1967 changes reflect the Legislature's intent to expand the class of beneficiaries to include parents who are not financially dependent on an adult child. The 1967 changes, however, do not affect the class of persons entitled to bring suit; the changes merely expand the kinds of damages that may be awarded. RCW 4.24.010 was amended once more in 1973; the "dependent for support" requirement remains as originally enacted in 1927.

The Legislature is presumed to be familiar with judicial decisions construing RCW 4.24.010 to require financial dependence as a condition precedent to maintenance of an action by parents for the wrongful death of an adult child. See Glass v. Stahl Specialty Co., 97 Wash.2d 880, 887, 652 P.2d 948 (1982). The Legislature's failure to change the dependence requirement, despite subsequent amendments to RCW 4.24.010, indicates approval of this construction. See Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 789, 719 P.2d 531 (1986). Moreover, this court may not amend an unambiguous statute merely because we believe that the Legislature intended something else but failed to express it adequately. Vita Food Products, Inc. v. Washington, 91 Wash.2d 132, 134, 587 P.2d 535 (1978).

The Masunagas next assert that the general wrongful death statute, RCW 4.20.020, has been construed to permit non-dependent parents to recover noneconomic damages for the wrongful death of a child and that a similar construction should apply to RCW 4.24.010. This argument rests on a misreading of Gray v. Goodson, 61 Wash.2d 319, 378 P.2d 413 (1963). The sole issue decided in Gray was that once a right of action under the general wrongful death statute has accrued, the subsequent death of a beneficiary does not abate the action. Gray, at 330, 378 P.2d 413.

RCW 4.20.020 provides in pertinent part:

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 ...

RCW 4.20.020 therefore establishes two tiers of beneficiaries on whose behalf a wrongful death action may be maintained. The first tier of beneficiaries includes the spouse and children of the deceased; these beneficiaries need not establish dependence on the deceased. The second tier of beneficiaries, which includes the parents and siblings of the deceased, may recover only if there are no first tier beneficiaries and only if the designated beneficiaries were dependent for support on the deceased. See Reamer v. Griffiths, 158 Wash. 665, 673, 291 P. 714 (1930).

In passing, the court in Gray observed that an "action may be maintained even where the beneficiary was not dependent upon the injured deceased for support ..." Gray, 61 Wash.2d at 329, 378 P.2d 413. This passage can only be read to refer to first tier beneficiaries, since the claims at issue involved the wife of the deceased. Gray provides no support for the proposition that second tier beneficiaries are entitled to recover under RCW 4.20.020 without demonstrating financial dependence. See Comment, Damages in WashingtonT Wrongful Death Actions, 35 Wash.L.Rev. 441, 449 (1960). ²

Wrongful death actions in Washington are strictly...