Denial of Recovery to Nonresident Beneficiaries Under Washington's Wrongful Death and Survival Statutes: Is it Really Cheaper to Kill a Man Than to Maim Him?

• Jurisdiction: Washington,United States
• Citation: Vol. 29 No. 03
• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 3SPRING 2006

COMMENTS

Denial of Recovery to Nonresident Beneficiaries Under Washington's Wrongful Death and Survival Statutes: Is it Really Cheaper to Kill a Man than to Maim Him?

Jonathan James(fn*)

One who is financially dependent upon another should not lose both life support and legal remedy in one tortious moment.(fn1)

I. Introduction

For more than sixty years, Dean William Prosser has noted in his treatise on tort law that "it's cheaper to kill a man than to maim him."(fn2) This old adage has been repeated many times over the years in both law review articles and court decisions involving wrongful death actions.(fn3) The story behind this maxim begins almost 200 years ago, when an English court decided that a civil action could not be brought for the wrongful death of another.(fn4) In other words, while a person tortiously injured by another could bring a civil action against the tortfeasor, if that person was killed, his loved ones would have no recourse and the defendant would escape all civil liability, making it cheaper for the tortfeasor to kill the person than merely to injure him. Supreme Court Justice Harlan noted that such a rule has been described as "barbarous."(fn5) Other courts have referred to it as "monstrous" and an "ancient obscenity."(fn6) Unfortunately, Dean Prosser's maxim is still true in the early years of the twenty-first century in Washington.(fn7) Currently, five separate Washington statutes deal with tortious death.(fn8) These statutes encompass causes of action for the decedent's surviving family and also preserve the decedent's own cause of action for personal injury and death. The latter situation is covered by the two survival statutes.(fn9)

Because wrongful death law in Washington is purely statutory,(fn10) the legislature is at liberty to determine who can and who cannot recover for the wrongful death of a loved one. Such legislative control in this area has been upheld by the Washington courts.(fn11)

In the earliest days, only a widow or her children were allowed to recover. Over the years, however, the legislature has recognized and added other beneficiaries to the wrongful death and survival statutes, including dependent parents and siblings.(fn12) These changes are consistent with the purpose of such statutes, which is to compensate members of the decedent's family who have been denied the support or assistance that they expected to receive from the decedent had he or she remained living.(fn13)

Legislative designations of who qualifies as a "beneficiary" for the purpose of wrongful death and survival statutes are typically based on the category of family member. For instance, statutes in other states have allowed recovery by dependent siblings, step-children, or illegitimate children.(fn14) In Washington, however, the legislature has taken a more restrictive view and determined that only a specific subset of dependent parents and siblings should be allowed to recover.(fn15) Thus, recovery under the Washington wrongful death and survival statutes is only available to qualifying dependent parents and siblings who reside within the United States at the time of the death of their loved one.(fn16) The only exception is the child-death statute, which allows dependent parents to bring a wrongful death claim irrespective of residency.(fn17)

Several hypothetical situations illustrate the issue. If a person residing in Washington is simply injured by a tortfeasor, the victim would not be statutorily prohibited from bringing a civil action for personal injury, irrespective of whether that person is a United States citizen. If, however, the person is killed by the tortfeasor, and the victim's dependent parents happened to live just across the border in Vancouver, they would only be able to recover under the child-death statute, again, irrespective of their citizenship. If those same parents happened to reside in Florida, they would be entitled to recovery under all of the Washington wrongful death and survival statutes, even if they were foreign citizens. Finally, dependent siblings who do not reside within the United States are precluded from recovery under all the statutes.

Inherent in wrongful death statutes is the idea that not all relatives of the decedent should be compensated for their loss.(fn18) However, deciding that some dependent parents and siblings should be excluded from recovery solely based upon their foreign residency while allowing recovery for other dependent parents and siblings, who reside within the United States, is discriminatory on its face. Even though the wrongful death statutes make legitimate distinctions between beneficiaries based upon dependency or the category of relationship to the decedent (e.g. siblings, grandparents, nephews, etc.), "what difference can it make where they may reside? It is the fact of their relation to the life destroyed that is the circumstance to be considered .. ."(fn19)

Although courts have expressed repugnance for discrimination against nonresidents as far back as the early 1900s and recognized that it was out of date even in their time, it is the refusal of Washington courts to question the constitutionality of such legislative enactments which has allowed this injustice to continue unabated for almost 100 years. It is time that the courts in Washington finally realize that such discriminatory legislation must succumb to the protections provided by both the United States and Washington Constitutions and find these statutes unconstitutional. To do otherwise would allow a tortfeasor an "undeserved and morbid windfall"(fn20) should his tortious act result in death instead of injury.

Part II of this Comment will briefly discuss the historical roots of wrongful death and survival statutes from their origin in England, the resulting lack of a common law cause of action, and the current Washington statutes. Part II concludes with a discussion of treatment of nonresident beneficiaries under various wrongful death and survival statutes. Part III applies the rational basis constitutional review adopted by the Washington State Supreme Court. In Part IV, this Comment concludes that, under the rational basis test and pertinent Washington case law, the Washington statutes are unconstitutional.

II. The History of wrongful death and survival statutes

A. The Origins of Wrongful Death and Survival Statutes

Today, all fifty states have statutes that allow for wrongful death or survival actions.(fn21) In most cases, however, this statutory cause of action is not accompanied by a recognized common law cause of action.(fn22) The lack of a common law recovery for wrongful death has a long history, and has its origins in the 1808 English case of Baker v. Bolton?(fn23) In that case, Lord Ellenborough instructed the jury that "in civil court, the death of a human being could not be complained of as an injury."(fn24) Almost forty years later, this common law rule was effectively overturned by the British Parliament with the passage in 1846 of Lord Campbell's Act, the preamble of which created a civil cause of action for deaths which would otherwise be felonies under criminal law.(fn25)

In general, Lord Campbell's Act created a class of statutorily defined beneficiaries who could recover for losses caused by the wrongful death of a relative.(fn26) The creation of a new statutory cause of action for wrongful death under Lord Campbell's Act became the basic model for the various state statutes which were subsequently adopted in the United States,(fn27) including in the State of Washington.(fn28)

Although a statutory recovery for wrongful death has reached all corners of our country, the old rule of Baker, which rejected the notion of recovery for wrongful death under the common law, continues to persist.(fn29) In essence, various state courts in the United States, including Washington, adhere to a general common law rule, which holds that in the absence of a statute, no recovery for wrongful death is allowed.(fn30)

B. Washington State Wrongful Death and Survival Statutes

The complexity of the Washington wrongful death and survival statutes has long attracted the attention of both lawyers and scholars in the state.(fn31) Part of the complexity stems from the fact that wrongful death cases are entirely statutory in nature, since Washington has followed the general practice of adopting the example of Lord Campbell's Act.(fn32) In addition, Washington courts have repeatedly rejected the idea of a common law claim for wrongful death and have affirmed that such actions are purely within the province of the legislature.(fn33)

In Washington, five separate statutes govern wrongful death and survival actions.(fn34) The wrongful death statutes, codified at title 4, chapter 20, sections 010 and 020 of the Revised Code of Washington, create a cause of action for the statutorily defined classes of beneficiaries of the decedent, whose death was caused by the wrongful or negligent act of another.(fn35) Similarly, title 4, chapter 24, section 010, the so-called "child-death statute,"(fn36) gives parents a cause of action for the death of a minor child or a child upon whom the parents are financially dependent for support.(fn37) In contrast, the two survival statutes, title 4, chapter 20, sections 046 and 060 of the Revised Code...