Author: John R. Alexander

Should a person die due to the negligence of another party, the relatives of the deceased may be able to recover compensation for the "wrongful death" of the victim. The Washington legislature enacted five separate statutes controlling the nature of legal actions for negligence-related death and the rights and damages of those actions. Two of the statutes are referred to as the "wrongful death" statutes (RCW 4.20.010 and 4.20.020), and the other three are known as "survival" statutes (RCW 4.20.046, 4.20.060, 4.24.010)

Wrongful Death Statutes
The recoverable damages under the wrongful death statutes are the "pecuniary losses" to the statutory beneficiaries. Pecuniary losses include both the tangible money and income the decedent would have provided to the beneficiaries, and the intangible loss of the support, services, love, affection, care, companionship, society and consortium of the decedent.

The "statutory beneficiaries" of the deceased are defined in RCW 4.20.020 as the decedent's wife, children and stepchildren. If none of these beneficiaries exist, the personal representative is empowered to prosecute an action for the benefit of the deceased's parents, sisters and brothers, if they were dependent upon the deceased for financial support. Natural children born outside the marriage also qualify as statutory beneficiaries. Under present law, an unmarried partner living with the decedent or the estranged spouse who did not intend to resume the marital relationship prior to death, are excluded as statutory beneficiaries.

Pursuant to RCW 4.20.010, the right and power to bring a lawsuit for losses sustained by "statutory beneficiaries" of the deceased is reserved exclusively to the personal representative (the administrator or executor) of the estate of the deceased. This can be a confusing part of the law because the person(s) who suffer(s) injury as a result of negligent death of a loved one may not be the same person empowered to bring a wrongful death lawsuit. For example, the surviving spouse of the deceased is not empowered to bring the lawsuit unless she is also the executrix (the administrative or personal representative) of her husband's estate. By the same token, the surviving children or parents of the deceased must depend upon the personal representative of the estate as the named party to prosecute their claims. Many times when tragedy strikes, there may be no will and therefore no personal representative of the estate. This situation can be remedied by filing legal papers seeking the appointment of a personal representative. (Who may be a surviving family member or a statutory beneficiary).

One of the advantages of having the personal representative of the deceased's estate as the named party in the lawsuit is that any damages recovered do not become the assets of the estate of the decedent. Hence, monies recovered are not available to satisfy the debts of the estate.

Statute of Limitations
A statute of limitations is a law defining the time limit within which a legal action must be commenced before the right to prosecute certain claims is lost forever. Generally, personal injury actions are governed by the three (3) year statute of limitations. There are legal traps in the area of wrongful death laws since they contain limitation periods ranging from one to three years, depending on the legal theories of recovery.

Another complexity of the wrongful death statue of limitations concerns minor children (less than 18 years old) related to the deceased. Generally, the statue of limitations for claimants under 18 years in personal injury actions does not expire until 3 years after they reach the age of majority (18 years). In wrongful death claims, there is no tolling of the statue of limitations for claimants under 18 years old. The clock ticks the same for adult and minor beneficiaries.

Survival Statues
The remaining three statutes are commonly called the "survival" statutes (RCW 4.20.046, 4.20.060, and 4.24.010). "Wrongful death" actions and "survivor" actions pursuant to the "general survival" statute (RCW 4.20.046) are fundamentally different. Wrongful death actions allow for the recovery of damages the statutory beneficiaries suffer as a result of the death of the decedent. On the other hand, general survivorship actions (pursuant to RCW 4.20.046) allow the personal representative to prosecute claims the decedent would have had had he not died. In other words, the personal representative can bring a lawsuit for monies and obligations owed to the decedent, as well as for the suffering the decedent experienced before death. In the context of death claims, the general survival statute (RCW 4.20.046) provides for the additional measure of damages for the "pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by the deceased . . . ."

Like the wrongful death statutes, claims pursuant to the general survivorship statute may only be prosecuted by the personal representative. Unlike the wrongful death statutes, the damages recovered pursuant to the survivorship statutes are the property of the estate of the deceased and are subject to the debts of the estate.

RCW 4.20.060 is commonly called the "special survivor statute". It allows for the recovery of the same pre-death pain and suffering damages as allowed for in the general survivor statute (RCW 4.20.046), but the monies recovered go directly to the statutory beneficiaries and do not become the property of the estate and are not reachable by the estate's creditors. Once again, this legal distinction illustrates the importance of involving legal representation to decide whether to file a wrongful death, general survivor or special survivor type of action. This will depend on many factors including the identity of statutory beneficiaries, protection of surviving family members and balancing the needs between the beneficiaries and the estate.

And finally, pursuant to the second "special survivor" statute, RCW 4.24.010, parents are entitled to bring a direct action (no requirement for a personal representative) for the wrongful death or injury to a minor child, or a child upon whom they are dependent for support. This includes the loss of a viable unborn child. Damages that may be recovered include medical expenses, loss of love and companionship, and injury to or destruction of the parent-child relationship. Each parent is entitled to claim damages for loss of love and companionship and damage to or destruction of the parent-child relationship. Once again, these damages are the property of the beneficiaries, and are not reachable by creditors of the child's estate.

Because of the complexities of the statutes governing wrongful death actions, the issues of timely actions to open estates and initiate litigation to avoid statute of limitation problems, and the expertise required to successfully prosecute death claims, individuals are encouraged to seek the assistance of experienced legal counsel as soon after the negligent death of a loved one as they can reasonably manage.

Very truly yours,
ADLER GIERSCH, P.S.

John R. Alexander
Attorney at Law