Wood v. Dunlop

• Decision Date: 09 May 1974
• Docket Number: No. 42858,42858
• Citation: 521 P.2d 1177,83 Wn.2d 719
• Parties: Leonard L. WOOD, Administrator of the Estate of Jo Ann Wood, Deceased, Petitioner, v. John S. DUNLOP et al., Respondents.
• Court: Washington Supreme Court

Page 719

83 Wn.2d 719

521 P.2d 1177

Leonard L. WOOD, Administrator of the Estate of Jo Ann Wood Deceased, Petitioner, v. John S. DUNLOP et al., Respondents.

No. 42858.

Supreme Court of Washington, En Banc.

May 9, 1974.

Critchlow, Williams, Ryals & Schuster, David E. Williams, Richland, for petitioner.

MacGillivray, Jones, Clarke, Schiffner & Johnson, Willard W. Jones, Spokane, for respondents.

STAFFORD, Associate Justice.

A jury returned a verdict for defendants. The central issue is whether, in the absence of a guardian and a court approved settlement, a release and settlement authorized by the personal representative of a deceased's estate constitutes a bar to a subsequent action for wrongful death brought on behalf of the deceased's minor child.

On February 8, 1968, defendant, Dr. Dunlop, performed minor surgery on Jo Ann Wood at defendant, Tri-State Memorial Hospital. Instead of using a proper anesthetic, digitalis was accidentally introduced into Mrs. Wood's spinal column causing her death. Mrs. Wood is survived by her husband, Leonard, and her 2-year-old son, the subjects of the instant action.

Three or four weeks after Mrs. Wood's death, the defendant doctor told Mr. Wood the reason for his wife's death. Mr. Wood was informed that an insurance adjuster would contact him. A few days later, Mr. Rector, representing the insurers of both the doctor and the hospital, visited with Mr. Wood and his brother at the latter's home. After acquiring information necessary for evaluation of the potential wrongful death claim Mr. Rector told Mr. Wood he would do his best to settle the matter as soon as possible. Anxious to leave the Clarkston area, Mr. Wood contacted Mr. Rector about the status of the claim several times during the following week.

On March 26, Mr. Wood and his brother, at their own instance, travelled to Spokane to see Mr. Rector. At that time Mr. Wood was informed that the insurance companies would settle the matter for $18,000. After a brief discussion with his brother, Mr. Wood decided to accept the offer. ¹

Mr. Wood testified that Mr. Rector told him that before the settlement could be concluded, it would be necessary for him to be appointed 'legal guardian and realtor (sic) of the estate' and that he would need a lawyer for that purpose. Since Mr. Wood did not know a lawyer in Clarkston, Mr. Rector suggested one. Mr. Wood talked to the lawyer by telephone and told him 'I just had been offered $18,000.00 and I was told I had to be appointed legal guardian of my son.'

Subsequently, Mr. Wood was appointed administrator of his deceased wife's estate. No wrongful death action was commenced by him in that capacity, however. Rather, Mr. Rector gave him two drafts--one from Aetna Life and Casualty Company for $7,200, and the other from St. Paul Fire and Marine Insurance Company for $10,800. Each was payable to 'Leonard L. Wood, individually and as administrator of the estate of Jo Ann Wood.' In exchange for the drafts, Mr. Wood executed a release reciting a consideration of $18,000. It was signed by him, individually, but the endorsements on the two drafts were by Mr. Wood, individually and as administrator of the estate of Jo Ann Wood.

Mr. Wood was not appointed guardian of his minor son although Mr. Rector knew the child was a beneficiary of the wrongful death claim and had originally suggested such an appointment would be necessary. All of the funds were paid to Mr. Wood and no allocation was made for the child. As it turned out, within two days of receiving the money, Mr. Wood paid off his past due rent, paid the rent of his brother's family, purchased a large amount of clothing and toys for his son and for his brother's children, bought some clothing for himself as well as for his brother, gave some money to his sister-in-law to buy 'whatever she needed' and told his brother 'if he wanted anything to go ahead and get it', purchased quite a large quantity of groceries for his brother's family, had his brother's automobile put in good running shape and equipped with new tires, purchased a used TV set, and purchased a 2-year-old Chrysler Imperial for $4,200. Thereafter, he left for California and Nevada to visit relatives.

On May 6, 1970, Mr. Wood, acting as administrator of the decedent's estate, brought this action against defendants for wrongful death. ² Defendants denied liability and alleged, as an affirmative defense, that the claim had been settled and released by Mr. Wood, individually and as administrator of his deceased wife's estate. A jury trial was held to determine the validity of the release. A defense verdict was affirmed by the Court of Appeals, Wood v. Dunlop, 8 Wash.App. 957, 510 P.2d 260 (1973). We granted a petition for review on the narrow issue of whether, in the absence of a guardian and a court approved settlement, a release and settlement authorized by the personal representative of a deceased's estate constitutes a bar to a subsequent action for wrongful death brought on behalf of the deceased's minor child by the personal representative.

Mr. Wood, as administrator, argues that SPR 98.16W, RCW 11.48.130 and 11.76.080 are determinative of the issue and require reversal of the defense verdict. We do not agree. Neither RCW 11.48.130 nor 11.76.080 are applicable to the settlement of wrongful death claims. They are concerned either with claims against an Estate or claims owing an Estate. A wrongful death action is neither. The benefit of a wrongful death claim does not flow to the estate of the deceased. Gray v. Goodson, 61 Wash.2d 319, 378 P.2d 413 (1963). SPR 98.16W is equally inapplicable. First, it is operative only in cases 'where the court is Requested to approve a settlement involving the claim of a . . . minor.' (Italics ours.) No request was made for court approval in the instant case. Second, the rule is limited to settlements 'involving the Claim of a . . . minor' (italics ours). In this case the minor possessed no Claim or cause of action Personal to himself. Actions for wrongful death are strictly statutory and must be instituted by the Personal representative of the deceased, RCW 4.20.010, for the Benefit of the wife, husband or Child of the deceased. RCW 4.20.020. In short it is the personal representative, not the child, who possesses the claim (as a statutory agent or trustee), who is the 'nominal' party to the action, and who must maintain it on Behalf of the minor. Gray v. Goodson, Supra.

On the other hand, the defendants argue that Hansen v. Stimsom Mill Co., 195 Wash. 621, 81 P.2d 855 (1938) is determinative of the power of personal representatives to settle wrongful death claims. In Stimsom Mill the personal representative of Mr. Lundberg, the deceased, instituted a wrongful death action against the mill on behalf of the widow and minor child. The court entered a stipulated judgment by way of settlement. The settlement was made by the personal representative without a previous order, without the appointment of a guardian ad litem for the minor child, and without segregation of the amount that should be received by the respective beneficiaries. We dismissed a subsequent action against the mill, brought on behalf of the minor by a guardian, holding that a wrongful death action may be maintained only by the personal representative of the deceased. We there observed that the personal representative is the only party to the action and as such possessed the power to compromise claims without the consent of the beneficiaries and without court approval.

However, Stimsom Mill must be read in the light of our more recent pronouncement in Gray v. Goodson, Supra. As we pointed out in Goodson, the wrongful death statute creates in the beneficiary a new and original cause of action upon the wrongful death of one to whom he has the necessary statutory relationship. This right, however, can be exercised only in the specific manner authorized by statute, I.e., by the personal representative of the deceased. See also Upchurch v. Hubbard, 29 Wash.2d 559, 188 P.2d 82 (1947). In Goodson we stressed that it would be incorrect to say that a cause of action for...