Wooldridge v. Woolett

• Decision Date: 31 December 1981
• Docket Number: No. 47840-6,47840-6
• Citation: 638 P.2d 566,96 Wn.2d 659
• Parties: Stanley WOOLDRIDGE, Administrator of the Estate of Clifford S. Wooldridge, deceased, Petitioner, v. Scott Allen WOOLETT, a minor child; Cynthia Ann Sofie, a minor child; Louis E. Sofie and Jane Doe Sofie, husband and wife; and John Judd and Jane Doe Judd, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 659

96 Wn.2d 659

638 P.2d 566

Stanley WOOLDRIDGE, Administrator of the Estate of Clifford

S. Wooldridge, deceased, Petitioner, v. Scott Allen WOOLETT, a minor child; Cynthia Ann Sofie, a

minor child; Louis E. Sofie and Jane Doe Sofie,

husband and wife; and John Judd and Jane

Doe Judd, husband and wife, Respondents.

No. 47840-6.

Supreme Court of Washington, En Banc.

Dec. 31, 1981.

Niichel, Rutz & Johnson, John R. Rutz, David V. Johnson, Port Angeles, for petitioner.

Bassett, Gemson & Morrison, R. L. Gemson, Seattle, Johnson & Williams, Kenneth D. Williams, Port Angeles, for respondents.

Daniel F. Sullivan, Donovan R. Flora, Washington Trial Lawyers Assn., Michael Mines, Ingrid W. Hansen, Washington Ins. Council, Seattle, Robert Whaley, Seafirst Financial Center, Spokane, for amicus curiae.

WILLIAMS, Justice.

This case presents the question whether the value of a person's shortened life expectancy is a separately recoverable item of damages in a survival action brought pursuant to RCW 4.20.046. The trial court refused to instruct the jury that the reasonable value of Clifford S. Wooldridge's shortened life expectancy was a separate element of damages in this survival action. The Court of Appeals, Division Two, affirmed the trial court in all respects. Wooldridge v. Woolett, 28 Wash.App. 869, 626 P.2d 1007 (1981). We likewise affirm.

The facts are as follows:

Clifford S. Wooldridge, Scott Allen Woolett, and Cynthia Ann Sofie attended a party on January 15, 1977, at the home of John Judd in Port Angeles. At approximately 11:30 p. m., Wooldridge wished to leave and accepted a ride from Woolett and Sofie. Woolett was driving his girlfriend Sofie's car, a 1969 Camaro. The vehicle was registered in the name of her father, Louis E. Sofie, who had cosigned for the purchase of the car and carried it on his own insurance policy. As Woolett accelerated, the car hit a curb at the end of the street and overturned, and Wooldridge was killed instantly. At the time of his death he was almost 22 years of age, died intestate, and left no dependents.

Appellant Stanley Wooldridge, administrator for his son's estate, brought a survival action naming as defendants Scott Allen Woolett, Cynthia Ann Sofie, her parents Louis E. and Beverly Sofie, and John Judd. The action against Judd was subsequently dismissed on appellant's motion. Woolett answered, admitted liability, and tendered insurance policy limits of $25,000. The Sofies answered, denying any negligence and asserting contributory negligence on the part of Wooldridge. Prior to trial, Louis E. and Beverly Sofie moved for summary judgment on the issue of their liability under the family car doctrine. The motion was granted, and an order on summary judgment was entered. Appellant also moved for summary judgment on the issue of liability of Scott Allen Woolett and Cynthia Ann Sofie prior to trial. The motion was granted. The jury trial, therefore, was concerned only with the issue of damages to be assessed against respondents Woolett and Sofie.

At trial, appellant presented evidence about Wooldridge, including his job history, which appellant's counsel characterized as admittedly "spotty". Appellant called Professor John Eshelman, Dean of the School of Business at Seattle University, who testified that the probable present net value of Wooldridge's future net earnings, had he lived to his normal life expectancy, would be approximately $67,250. The respondents cross-examined Dr. Eshelman intensely, but presented no other evidence about Wooldridge's earning capacity except the testimony of a restaurant owner for whom he worked as a dishwasher after graduating from high school. The restaurant owner testified that Wooldridge "just didn't come back to work" one day, and failed to give notice.

Appellant excepted to the trial court's refusal to give its proposed instructions Nos. 6B and 6C. Proposed instruction No. 6B reads as follows:

Your verdict should include the following items:

(1) Funeral and burial expenses in the amount of $2,339.51 (2) The reasonable value of the decedent's lost earning capacity; and

(3) The reasonable value of the decedent's shortened life expectancy.

Report of Proceedings, at 202. Proposed instruction No. 6C said that the jury could award compensation for shortened life expectancy as well as for the loss of value of future earning capacity. The trial court actually instructed the jury as follows:

Your verdict should include the following items:

(1) Funeral and burial expenses in the amount of $2,339.51;

(2) The decedent's shortened life expectancy resulting in the loss of his future earning capacity to his estate.

Report of Proceedings, at 214.

The jury returned a verdict in the amount of $2,339.51, representing only the funeral and burial expenses. The trial court denied appellant's motion for a new trial based on the inadequacy of the award and allegedly prejudicial statements made by defense counsel in closing argument. This appeal followed.

I.

Damages for shortened life expectancy as a separate item of recovery.

This action is based on the following language of Washington's survival statute:

(1) All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: Provided, however, That no personal representative shall be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.

(Some italics ours.) RCW 4.20.046. This statute does not create a separate claim for the survivors, but merely preserves the causes of action that a person could have maintained had he not died, other than for pain and suffering, anxiety, emotional distress, or humiliation.

In Harvey v. Cleman, 65 Wash.2d 853, 857-58, 400 P.2d 87 (1965), RCW 4.20.046 was interpreted by this court to preserve all causes of action of the decedent except those specifically enumerated in the proviso to that statute. We again had occasion to interpret the survival statute in Warner v. McCaughan, 77 Wash.2d 178, 182-83, 460 P.2d 272 (1969), and came to a similar conclusion:

It is urged that the proviso of RCW 4.20.046, supra, excludes all items of damage thought to be personal to a decedent, i.e., permanent injuries, shortened life expectancy, and impaired earning capacity, not just those items expressly excluded by the proviso-pain and suffering, anxiety, emotional distress, or humiliation. We do not agree.

(Some italics ours.) From the above quotation, which implies shortened life expectancy is somehow distinguishable from impaired earning capacity, appellant predicates the right to recover damages for shortened life expectancy as a separate item of damages.

In Hinzman v. Palmanteer, 81 Wash.2d 327, 330, 501 P.2d 1228 (1972), we cited Warner for the proposition that

(s)hortened life expectancy caused by the child's death and the resulting loss of value of her future earning capacity to her estate are specifically recognized as items of recovery not excluded by the statute.

(Citation omitted. Italics ours.) Appellant further submits that his proposed instruction No. 6B, which would have permitted the jury to award separate damages for shortened life expectancy and lost earning capacity, was based upon an instruction approved by this court in Hinzman, at 329-30, 501 P.2d 1228, where the jury was instructed that it

shall allow such sum as general damages as in your opinion will fairly and justly compensate her (decedent's) estate for her wrongful death. In this regard you may take into consideration and award compensation for the shortened life expectancy caused by her death, as well as the loss of the value of her future earning capacity caused by her wrongful death.

(Italics ours.) The above language gives the impression that shortened life expectancy and loss of future earning capacity are separate and distinct elements of damage in a survival action. On the next page of the opinion, however, a very different meaning is imparted by the following language:

In this suit, the estate of Lauretta Hinzman claimed damages under the survival statute for general damages consisting of loss of value of her future earning capacity as affected by her shortened life expectancy caused by her death.

(Italics ours.) Hinzman, 81 Wash.2d at 331, 501 P.2d 1228.

Appellant fails to define the term "shortened life expectancy" anywhere in his brief, but we note that the Washington State Trial Lawyers Association amicus brief would generally equate that term with the impairment of an ability to enjoy the pleasures of life which a person otherwise would have enjoyed. Brief of Amicus Washington State Trial Lawyers Association, at 10-16. To demonstrate the shortened life expectancy element of damages, appellant cites Reed v. Jamieson Inv. Co., 168 Wash. 111, 10 P.2d 977, 15 P.2d 1119 (1932), and Parris v. Johnson, 3 Wash.App. 853, 479 P.2d 91 (1970), for the proposition that a qualitative loss of life's pleasures is a separate element of damages apart from pain and suffering. Appellant then extends the argument to conclude that such a recognition of qualitative loss of life's pleasures should give rise to a separate element of damages for a quantitative loss of those same pleasures. We disagree.

The cases cited by appellant are distinguishable for at least two reasons. First, Reed and Parris are personal injury cases where the plaintiffs sought recovery for their permanent injuries which prevented them from continuing to enjoy certain activities for the remainder of their lives. Second, appellant ignores the following language of the Parris opinion:

Although disability exists as a distinct element of...