Vernon v. Aacres Allvest, LLC

• Citation: 333 P.3d 534
• Decision Date: 03 September 2014
• Docket Number: No. 44328–7–II.,44328–7–II.
• Court: Court of Appeals of Washington
• Parties: Earl VERNON, individually and as Personal Representative of the Estate of Henry David Vernon, Appellant, v. AACRES ALLVEST, LLC, a Limited Liability Corp., Aacres Landing, Inc., Aacres WA, LLC, a Limited Liability Corp., and Aalan Holdings, Inc., Respondents.

333 P.3d 534

Earl VERNON, individually and as Personal Representative of the Estate of Henry David Vernon, Appellant,

v.AACRES ALLVEST, LLC, a Limited Liability Corp., Aacres Landing, Inc., Aacres WA, LLC, a Limited Liability Corp., and Aalan Holdings, Inc., Respondents.

No. 44328–7–II.

Court of Appeals of Washington, Division 2.

Sept. 3, 2014.

Darrell L. Cochran, Kevin Michael Hastings, Pfau Cochran Vertetis Amala PLLC, Tacoma, WA, for Appellant.

Charles Philip Edwar Leitch, Andrew Morgan Weinberg, Patterson Buchanan Fobes & Leitch, Seattle, WA, for Respondent.

JOHANSON, C.J.

¶ 1 Earl Vernon, on behalf of his brother Henry David Vernon's estate, appeals the superior court's order granting summary judgment in favor of Aacres Allvest, LLC, Aacres Landing, Inc., Aacres WA, LLC, and Aalan Holdings, Inc. (Aacres). Earl ¹ argues that (1) the superior court erred in dismissing his noneconomic damages claim under the wrongful death statute ( RCW 4.20.020) because the court should have recognized a common law wrongful death cause of action, (2) the superior court erred in dismissing his economic damages claim under the general survival statute ( RCW 4.20.046), (3) the superior court's dismissal of Earl's claims violated David's constitutional right to access the court, and (4) David should be considered a minor for the purposes of the wrongful death statute.

¶ 2 We hold that (1) the superior court properly dismissed Earl's noneconomic damages claim under the wrongful death statute because he lacks standing as a statutory beneficiary and we cannot recognize a wrongful death common law cause of action which conflicts with the existing statutory framework, (2) the superior court erred in dismissing Earl's economic damages claim because these damages are available under the general survival statute notwithstanding the absence of qualifying statutory beneficiaries, (3) Earl's claim that the wrongful death statute is unconstitutional fails because the statute does not create a cause of action for deceased persons, and (4) Earl failed to preserve the claim that David should be considered a minor for the purposes of the wrongful death statute. Accordingly, we affirm in part and reverse in part.

FACTS

¶ 3 David was born severely disabled. Because of his disabilities, David was completely dependent on others for his health and personal care needs. In 2009, David lived in a home under the care and supervision of Aacres. In late July, western Washington experienced a record-breaking heat wave. On the morning of July 29, Aacres staff member Francis Muraya found David lying unresponsive on his bedroom floor. Emergency personnel transported David to the hospital where he was pronounced dead. The cause of David's death was “exogenous hyperthermia” consistent with high core body temperature. Clerk's Papers at 188.

¶ 4 Earl, David's legal guardian, filed suit against Aacres under the “Abuse of Vulnerable Adults Act” (AVAA).² Earl alleged that Aacres should be responsible for David's death because Aacres negligently allowed him to sleep in an upstairs bedroom with closed windows and doors during a record heat wave knowing that David's medication made it difficult for him to control his body temperature. Aacres moved for summary judgment, asserting that Earl's claims must be dismissed because he lacked standing to bring suit under both the wrongful death statute and the general survival statute.

¶ 5 In response to Aacres' motion for summary judgment, Earl argued that damages for David's pain and suffering and for funeral expenses should be available under the wrongful death statute and the general survival statute. ³ In the alternative, Earl argued that the superior court should recognize a common law wrongful death cause of action which would allow him to recover both economic and noneconomic damages. But the superior court agreed with Aacres and summarily dismissed each of Earl's claims because it found that he lacked standing as a beneficiary under the statutory framework that governs wrongful death actions in Washington. The superior court did not specifically address the claim for funeral expenses. Earl appeals on behalf of David and his estate.

ANALYSIS

I. Standard of Review

¶ 6 We review summary judgment orders de novo, performing the same inquiry as the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005).

¶ 7 When reviewing a summary judgment, we consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Vallandigham, 154 Wash.2d at 26, 109 P.3d 805; Magula v. Benton Franklin Title Co., 131 Wash.2d 171, 182, 930 P.2d 307 (1997). Moreover, we consider solely the issues and evidence the parties called to the trial court's attention on the motion for summary judgment. RAP 9.12. But we will consider an issue raised for the first time on appeal if the claimed error is a manifest error affecting a constitutional right. RAP 2.5(a)(3).

II. Noneconomic Damages

¶ 8 Earl argues that despite his apparent lack of standing under the wrongful death statute, the superior court nonetheless erred in dismissing his noneconomic damages claims on summary judgment because we should recognize a common law cause of action to allow the estate to recover for David's wrongful death.⁴ We hold that the comprehensive wrongful death statutes preclude recognition of a wrongful death common law cause of action.

A. Rules of Law

¶ 9 Washington's wrongful death statutes create a right of action to recover damages when a person's death is caused by the wrongful act, neglect, or default of another. RCW 4.20.010. But the statutory framework also places limitations on who may bring such an action. RCW 4.20.020. RCW 4.20.020 provides in part,

Every such action shall be for the benefit of the wife, husband, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife, husband, state registered domestic partner, 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 or her death

Accordingly, the legislature has created a two-tier system of beneficiaries for purposes of a wrongful death action. Spouses and children of the decedent are the “first tier” beneficiaries while the decedent's parents and siblings constitute “second tier” beneficiaries. Philippides v. Bernard, 151 Wash.2d 376, 385, 88 P.3d 939 (2004). Second tier beneficiaries are entitled to recover for the decedent's wrongful death only if there are no first tier beneficiaries and if the second tier beneficiary can demonstrate that he or she was dependent upon the deceased for support. RCW 4.20.020; Philippides, 151 Wash.2d at 386, 88 P.3d 939.

B. Application of Wrongful Death Law

¶ 10 Here, Earl admits that he was not dependent on David. Earl further admits that David was not survived by anyone who could satisfy the criteria to recover under the wrongful death statute as a designated beneficiary. Therefore, the superior court did not err in granting summary judgment in Aacres' favor because Earl lacked standing under the wrongful death statute. RCW 4.20.020.

¶ 11 Nevertheless, Earl argues that Washington courts have labored under a historical misconception that wrongful death claims never existed at common law. Earl argues that several other jurisdictions have held that their wrongful death statutes do not necessarily preclude a common law wrongful death claim. He supports his position with language from Ueland v. Reynolds Metals Co., in which our Supreme Court said, “When justice requires, this court does not hesitate to expand the common law and recognize a cause of action.” 103 Wash.2d 131, 136, 691 P.2d 190 (1984).

¶ 12 But Earl ignores the fact that our Supreme Court has rejected an identical argument regarding a different but rather similar statute. In Philippides, the court was asked to interpret RCW 4.24.010, which governs actions for injury or death of children and which also contains a requirement that parents who bring an action on behalf of an adult child show that they are dependent on that child for support. 151 Wash.2d at 387, 88 P.3d 939. The Philippides court was asked to adopt a common law loss of consortium cause of action on behalf of parents of adult children injured or killed by a negligent defendant. 151 Wash.2d at 388, 88 P.3d 939. The Supreme Court considered the same language from Ueland that Earl cites here and noted that while it does not hesitate to expand the common law, the case before it was governed entirely by statute whereas the Ueland court was asked to expand allowable damages within an existing common law framework. Philippides, 151 Wash.2d at 390, 88 P.3d 939. The Supreme Court concluded that adopting a common law cause of action would create a direct conflict with the existing statutory scheme. Philippides, 151 Wash.2d at 390, 88 P.3d 939.

¶ 13 The Philippides court stated further,

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.” Tait v. Wahl, 97 Wash.App. [765, 771, 987 P.2d 127 (1999), review denied,140 Wash.2d 1015, 5 P.3d 9 (2000)]. The legislature has created a comprehensive set of statutes governing who may recover for wrongful death and survival, and there is no room for this court to act in that...