Survivability of Noneconomic Damages for Tortious Death in Washington

• Publication year: 1997

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 3WINTER 1998

COMMENTS

Survivability of Noneconomic Damages for Tortious Death in Washington

Steve Andrews(fn*)

Introduction

Washington's wrongful death and survival statutes have traditionally been difficult to fully understand. Fortunately, there has been an equally long tradition of writers willing to attempt to "crack the code" of survival and wrongful death actions.(fn1) Tortious death is compensated under the wrongful death and survival statutes. In general, a wrongful death statute provides a cause of action for the decedent's surviving family for losses they sustain as a result of the decedent's death. In contrast, the survival statutes preserve the decedent's own cause of action for personal injury and death, permitting the action to be brought on behalf of the statutory beneficiaries and/or the decedent's estate.(fn2)

The focus of this Comment will be the 1993 amendment to Washington's general survival statute.(fn3) In particular, the goal is to interpret how noneconomic damages for tortious death are to be treated under the new survival statute and to answer the question of what noneconomic damages are available to the victim's survivors. Washington's statutory scheme is complex, with five potentially applicable statutes, including three wrongful death statutes and two survival statutes.(fn4) Because of this complexity, each statute will be examined for available noneconomic damages, the survivability of these damages, the beneficiaries of the action, and possible duplication of damages. In answering these questions, the Comment will also address the issue of survivability of damages for loss of enjoyment of life (LOEL) in addition to compensation for pain, suffering, humiliation, and other personal noneconomic loss.

Part One begins by examining each of Washington's wrongful death statutes to determine damage elements available under each. . This is necessary in order to determine just exactly what damages will survive under the survival statutes. The survival statutes are addressed next.(fn5) A general overview of the survival statutes is followed by an in-depth discussion of the 1993 amendment to the general survival statute. There is presently no case law construing the new statute; all of the cases construe the older version, which has language completely contradictory to the new statute for some damages-specifically pain, suffering, anxiety, emotional distress, humiliation, and other nonecono-mic damages. The purpose and result of the change in the language and its effects on damage recovery, both intended and unintended, will then be explored. This part concludes that the 1993 amended language in the general survival statute was intended to close a loophole in the law and that the effect of the language is simply to parallel the damages already available under the special survival statute.

In Part Two, specific damage elements for survival actions are examined. Workable definitions corresponding to Washington's case treatment for each of the noneconomic damages are proposed. Special care is directed to distinguishing between the noneconomic damages of loss of enjoyment of life (LOEL) and physical disability. This Comment recognizes the treatment of LOEL in Kirk v. Washington State University(fn6) as a fair and workable definition for Washington law. Because LOEL and disability are conceptually distinct, and because each is compensated in the personal injury context, the argument is that each should be recognized as separately compensable under Washington's two survival statutes.

In Part Three, the wrongful death and survival statutes are examined in combination. The focus here is on bringing as many causes of action and elements of damage as possible while avoiding duplication of damages.

I. A Brief Overview of Washington's Wrongful Death and Survival Statutes

A. The Wrongful Death Statutes

Survival actions generally accompany an action for wrongful death.(fn7) Consequently, in order to fully understand Washington's two survival statutes, a brief discussion of the wrongful death statutes is necessary. Washington's two wrongful death statutes are the general wrongful death statute(fn8) and the parents' right of action for the death of a child (child's death).(fn9) This section distinguishes the two wrongful death statutes according to (1) who may bring the action, (2) who is the beneficiary, and (3) what damages are available.

1. General Wrongful Death

Wrongful death actions did not exist at common law.(fn10) They are statutory creations which create a new cause of action for the named beneficiaries,(fn11) in order to compensate the bereaved family members directly. Washington's first wrongful death statute, which was enacted in 1854, provided a cause of action solely for the benefit of widows and children of men killed in duels.(fn12) Fortunately, the last 144 years have seen considerable development in the scope of available remedies and the potential beneficiaries under Washington's wrongful death statutes.(fn13)

Under the wrongful death statutes,(fn14) an action may be brought by the personal representative of the deceased.(fn15) The personal representative is the plaintiff in name only: the right to the benefit of the cause of action vests in the statutory beneficiaries.(fn16) This statutorily created interest is comparable to a property right.(fn17) The new cause of action created by the statute is intended to compensate the beneficiaries for the loss of economic and other benefits the deceased would have provided, and any recovery does not become an asset of the decedent's estate.(fn18)

The primary statutory beneficiaries, the decedent's spouse, children,(fn19) and stepchildren, automatically have standing to bring the action.(fn20) The secondary statutory beneficiaries, composed of the decedent's parents, sisters, and brothers, only have standing if there are no primary beneficiaries, and if they can show financial dependency on the deceased.(fn21) Dependency does not mean total dependency, but some dependency is required.(fn22) The required financial dependency has been described as "a substantial need on one side and a substantial financial recognition of that need on the other side . . [.]"(fn23)

Although the damages to which the statutory beneficiaries are entitled are not listed in the statute, Washington courts have interpreted the statute as allowing compensation for the actual pecuniary loss suffered by the surviving beneficiaries.(fn24) Pecuniary loss includes not only the monetary contributions which would have been made by the decedent, but also includes the loss of decedent's support, services, love, affection, care, companionship, training, society, and consortium.(fn25) Damages are not available for the mental anguish, grief, or sorrow of the survivors.(fn26) Damage awards are apportioned according to the actual loss suffered by each beneficiary.(fn27) Pecuniary damages are discounted to present worth.(fn28)

2. Child's Injury or Death

The Washington child's wrongful death statute provides a cause of action for the parents of an injured or deceased child.(fn29) This action may be brought by either or both of the parents, but in the case of an illegitimate child, only one cause of action is created.(fn30) If the child's parents are separated or divorced, they must join together as party plaintiffs, but damages will be separately awarded.(fn31) Like the general wrongful death statute, damages recovered do not become part of the deceased's estate;(fn32) this cause of action is strictly for the benefit of the parents of the deceased child.(fn33) The parents of a minor child(fn34) need not be financially dependent on the child to have standing.(fn35) On the other hand, parents of an adult child must show some substantial financial dependency to have standing.(fn36) Parents who have standing may bring actions under both the general wrongful death statute and the child's wrongful death statute. However, to the extent there are overlapping damages, parents will be required to elect remedies under the available causes of action to avoid duplicating damages.(fn37)

The three areas of damages available under the child's death statute are (1) compensation for the loss of the child's love and companionship, (2) compensation for injury to the parent-child relationship, and (3) compensation for loss of the child's services and support.(fn38) In addition, parents may recover for the child's past and future medical, hospital, medication expenses,(fn39) as well as funeral expenses.(fn40) However, the statute does not provide the parents with damages for the child's predeath pain and suffering.(fn41)

Recovery for a child's loss of love and companionship compensates the parents for the value of the child's "mutual society and protection."(fn42) In addition, parents may seek compensation for injury to, or destruction of, the parent-child relationship.(fn43) This compensation is intended to alleviate the parental grief, mental anguish, anxiety, and suffering accompanying the loss.(fn44) These two elements of damage are each separately compensable.(fn45)

Parents may also recover for the economic damages sustained by the loss of the child's "services and support."(fn46) Loss of "services and support" damages is based on the anticipated contributions the deceased (or...