Tait v. Wahl

• Decision Date: 01 November 1999
• Docket Number: No. 42327-4-I.
• Citation: Tait v. Wahl, 987 P.2d 127, 97 Wash.App 765 (Wash. App. 1999)
• Parties: Amber TAIT, Personal Representative, of the Estate of Mary Douglas, and individually and on behalf of Kindra Tait, Shea Tait, Tyler Tait, and George Harding Douglas, survivors, Appellant, v. Theodore Andrew WAHL and Jane Doe Wahl, husband and wife; and Theodore E. Wahl and Jane Doe Wahl, husband and wife; and Vicki Wahl; Wahl Trucking and John and Jane Doe entities I-III, Respondents.
• Court: Washington Court of Appeals

987 P.2d 127

97 Wash.App. 765

Amber TAIT, Personal Representative, of the Estate of Mary Douglas, and individually and on behalf of Kindra Tait, Shea Tait, Tyler Tait, and George Harding Douglas, survivors, Appellant, v. Theodore Andrew WAHL and Jane Doe Wahl, husband and wife; and Theodore E. Wahl and Jane Doe Wahl, husband and wife; and Vicki Wahl; Wahl Trucking and John and Jane Doe entities I-III, Respondents.

No. 42327-4-I.

Court of Appeals of Washington, Division 1.

November 1, 1999.

Peter Moote, Peter Moote & Associates, Freeland, for Appellants.

Danielle A. Hess, William R. Hickman, John W. Rankin Jr., Reed McClure, Seattle, for Respondents.

KENNEDY, C.J.

After Mary Douglas was struck and killed by a delivery truck, Amber Tait, the decedent's niece, sued the delivery truck's owner and driver on behalf of herself, her children, the decedent's non-dependent brother, and the decedent's estate, seeking damages for pain and suffering, medical and other out-of-pocket expenses, impairment of income and earning capacity, loss of enjoyment of life, and loss of consortium. Because Tait, her children, and the decedent's non-dependent brother are not beneficiaries under Washington's wrongful death and survival statutes, RCW 4.20.010, -.020, -.046(1), -.060, and the common law does not recognize a cause of action against a person who wrongfully causes the death of another, the trial court properly dismissed, on summary judgment, the claims that Tait brought on behalf of herself, her children, and the decedent's non-dependant brother. In addition, because a decedent's estate cannot recover noneconomic damages for the decedent's pain and suffering, anxiety, emotional distress, loss of enjoyment of life, or loss of consortium under Washington's general survival statute, RCW 4.20.046(1), the trial court also properly dismissed, on summary judgment, these claims brought by Tait on behalf of the decedent's estate. Accordingly, we affirm.

STATEMENT OF FACTS

For purposes of summary judgment, the substantive facts are not in dispute. Mary Douglas raised her niece, Amber Tait, as if she were her own child, and then helped Tait raise her children, Kindra, Shea, and Tyler, with financial and personal support. On March 1, 1991, Theodore Wahl struck and killed Douglas with his delivery truck. On March 1, 1994, Tait, as Douglas's personal representative, sued Wahl and others on behalf of herself, her three children, Douglas's brother, and Douglas's estate, seeking damages for pain and suffering, medical and other out-of-pocket expenses, impairment of income and earning capacity, loss of enjoyment of life, and loss of consortium. The defendants moved for partial summary judgment, and the trial court dismissed all of the claims that Tait brought on behalf of herself, her children, and Douglas's brother, and all of the claims for noneconomic damages that Tait brought on behalf of Douglas's estate:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendants' motion for partial summary judgment is granted dismissing the following claims with prejudice:

1. All claims brought under Washington's wrongful death statute, RCW 4.20.010, including those claims brought on behalf of Amber Tait other than in her capacity as personal representative of the Estate of Mary Douglas and all claims brought on behalf of Kindra Tait, Shea Tait, Tyler Tait, and George Harding Douglas;

2. All claims seeking damages for pain and suffering, anxiety, emotional distress, impairment of ability to enjoy life, and loss of consortium; and

3. All claims based on loss of income or earning capacity of the plaintiffs other than the Estate.

Clerk's Papers at 11. The parties later settled the remaining claims. Tait appeals the trial court's order granting the defendants' motion for partial summary judgment.

DISCUSSION

A. Washington's Wrongful Death Statute

"The wrongful death statute, RCW 4.20.010, provides that when the death of a person is caused by the wrongful act of another, his personal representative may maintain an action for damages against the person causing the death." Long v. Dugan, 57 Wash.App. 309, 311, 788 P.2d 1 (1990). "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." Ginochio v. Hesston Corp., 46 Wash.App. 843, 846, 733 P.2d 551 (1987). The wrongful death statute, however, is expressly limited to two tiers of beneficiaries:

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.

Masunaga v. Gapasin, 57 Wash.App. 624, 630, 790 P.2d 171 (1990).

In this case, it is undisputed that the decedent had no legal spouse or children. In addition, although the decedent had a surviving brother, George Harding Douglas, it is undisputed that he was not financially dependent on the decedent. Therefore, strictly construing the statute, Tait, her children, and George Douglas are not among the beneficiaries on whose behalf the decedent's personal representative can maintain a cause of action under RCW 4.20.010, even though it is also undisputed that Tait and her children were financially dependent upon the decedent.

Tait contends that the list of beneficiaries enumerated in RCW 4.20.020 should be liberally construed to include her "parent-child like" relationship with the decedent and her children's "familial" relationship with the decedent: "If it is the intent of this legislation and/or the common law to provide damages to survivors who have been dependent upon the deceased for economic and emotional support, this case fits all of the necessary criteria." Appellants' Br. at 10. But "[l]iberal construction of wrongful death statutes is appropriate only after the proper beneficiaries have been determined." Masunaga, 57 Wash.App. at 631, 790 P.2d 171. Consequently, "[c]ourts in this state have extended the literal scope of such statutes only to protect beneficiaries `clearly contemplated by the statute.'" Id. (citing Roe v. Ludtke Trucking, Inc., 46 Wash.App. 816, 819, 732 P.2d 1021 (1987)).

For example, this court has held that a cohabitant who "shared a long-term, stable, and marital-like relationship" with the decedent could not recover damages as a beneficiary under Washington's wrongful death statute, because RCW 4.20.020's use of the term "wife" only contemplates a legally "married woman." Roe, 46 Wash.App. at 817,732 P.2d 1021. Similarly, RCW 4.20.020's use of the phrase "child or children, including stepchildren" only contemplates "natural or adopted children of the decedent," Armijo v. Wesselius, 73 Wash.2d 716, 719, 440 P.2d 471 (1968) (interpreting a former version of RCW 4.20.020), and the decedent's stepchildren. Therefore, although it is undisputed for purposes of summary judgment that Tait had a "parent-child like" relationship with the decedent and that her children had "familial" relationships with the decedent, and that Tait and her children were financially dependent upon the decedent, they are not beneficiaries under RCW 4.20.020. Accordingly, they cannot recover damages under Washington's wrongful death statute.¹

B. Washington's Special Survival Statute

Washington's special survival statute, RCW 4.20.060, which is also known as the death by personal injury statute, allows the executor or administrator of a decedent's estate "to recover for the decedent's damages, including any pain and suffering between the time of the injury and the time of death." Bowers v. Fibreboard Corp., 66 Wash.App. 454, 460, 832 P.2d 523 (1992). Although RCW 4.20.060 is a survival statute because it continues "the cause of action of the decedent for the damages which the decedent could have claimed had the death not occurred," damages recovered under RCW 4.20.060 "do not go through the estate, but are distributed directly to the statutory beneficiaries." Parrish v. Jones, 44 Wash.App. 449, 454-55, 722 P.2d 878 (1986); see also 15 Lewis H. Orland & Karl B. Tegland, Wash. Prac., Trial Practice Civil § 597, at 384 (5th ed.1996). Like Washington's wrongful death statute, however, RCW 4.20.060 is expressly limited to the two tiers of beneficiaries listed in RCW 4.20.020. Benoy v. Simons, 66 Wash.App. 56, 61, 831 P.2d 167 (1992). And as discussed above, Tait and her children, and the decedent's non-dependent brother, George Douglas, are not beneficiaries under RCW 4.20.020. Therefore, they cannot recover damages under Washington's special survival statute.

C. Common Law Action for Wrongful Death

Tait next contends that even if she, her children, and George Douglas are not beneficiaries under any of Washington's wrongful death and survival statutes, the common law should recognize a cause of action against a person who wrongfully causes the death of another. But as the courts of this state have long and repeatedly held, causes of action for wrongful death are strictly a matter of legislative grace and are not recognized in the common law:

It is settled beyond controversy that, at common law, no civil action could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several states, analogous to the English statute commonly known as Lord Campbell's act (9 and 10 Vic. c. 93), though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may

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