Articles

Wrongful Death Claims

Shirley Good raised Merrily, her niece, as if she were her own child. Merrily called Shirley mom, and thought of her that way.

When Merrily grew up, she had her own children, Leah and Chad. As the family grew up, Shirley was always treated as Merrily’s mom, and the grandmother of Leah and Chad.

Tragically, as Shirley crossed the street at an intersection crosswalk, she was struck and killed by a truck, which ran a red light. Merrily was named Personal Representative of Shirley’s estate. She filed a lawsuit on behalf of the estate, herself, Leah and Chad, and Shirley’s brother, Johnny. Shirley was told by a lawyer (in his first year out of law school) that Merrily, Leah, Chad, Johnny and Shirley’s estate in probate court could all recover damages in court for Shirley’s death, including pain and suffering, medical and funeral expenses, loss of income, and loss of enjoyment of life. These claims could be brought under Washington statutes, which allow recovery of damages for wrongful death, and which also provide for the survival of lawsuits after one’s own death.

Much to the surprise of the lawyer and even a bigger surprise for Merrily, Leah, Chad and Johnny, a Superior Court Judge granted a motion filed by the defendant to dismiss all claims which had been brought under the wrongful death statute, all claims seeking damages for pain, suffering, anxiety, emotional distress, impairment of the enjoyment of life, and all claims based on a loss of income other than the one which was filed on behalf of Shirley’s estate.

Washington’s Wrongful Death Statute provides that when someone dies due to a wrongful act of another person, the Personal Representative of his estate may sue the responsible person for damages. The damages allowed under this statute include the economic loss of services (cooking, household chores, and so forth), love, affection, care, companionship, and consortium. However, only a limited number of relatives of the deceased are allowed to sue: (1) is spouse and children, and (2) if there are no spouse and children, then parents and siblings who were actually dependant on the deceased for their support.

Merrily and Johnny had to admit at the court hearing that Merrily was not the natural child of Shirley, that Leah and Chad were not her natural grandchildren, and that Johnny was not financial dependant on Shirley. Merrily pointed out, however, that she and her children were actually totally financially dependant on Shirley at the time of Shirley’s death. They lived in her house, and Merrily had been unemployed for several years.

Under the Special Survival Statute in Washington State, the Personal Representative of an estate may recover the decedent’s damages suffered between the time of injury and the time of death, including pain and suffering. Damages we covered under this statute do not go through the decedent’s estate, but are distributed directly to the statutory beneficiaries in accordance to the Court’s award. However, the Special Survival Statute is also limited to the same beneficiaries listed for the Wrongful Death Statute.

A third statute, however, provides a ray of light in this unfortunate situation. Washington also has a General Survival Statute, which allows the decedent’s Personal Representative to recover damages for any lawsuit that the decedent could have filed if she had not died. The Court held, however, that Shirley’s estate could recover for post-injury disability, loss of earning power, burial and funeral expenses, medical and hospital expenses and general damages to the estate.

The Court ruled that only economic damages could be recovered. In most cases, therefore, recovery will essentially be limited to lost wages; no recovery would be allowed for pain, suffering and emotional distress.

In a case similar to the one described above, division one of the Court of Appeals recently discussed the statutes mentioned above, and came to the same conclusion. This would leave Merrily and her children with no recovery, unless Shirley had a valid Will naming them as heirs. In that case, they would receive their share from the estate for Shirley's lost earnings. In the recent case above, the Plantiff’s were essentially left out of any recovery because they were not legal heirs to the decedent’s estate, and because they did not satisfy the statutory definition of any of the beneficiaries mention above, even though they were totally financially dependant on the decedent. One of the Judges, writing a concurring opinion, commented on this sad state of affairs: "In today’s world, the extended family is frequently called upon to respond to the needs of its members." And sometimes, legal family ties do not exist – some "grandmothers" are not related at all to those they care for and support. But the loss of her support is no less devastating to those financially dependant upon her….one who is financially dependant upon another should not loose both life support and legal remedy in one tortious moment.