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Shameful Idiosyncrasies in Washington’s Wrongful Death Laws

Washington’s wrongful death statutes contain some unique and shameful idiosyncrasies you may find quite unfair. Any attorney you seek to retain should be fully prepared to explain these thoroughly. If he or she cannot explain these idiosyncrasies, or worse, yet makes promises that show ignorance of these idiosyncrasies, hire another attorney.

For example, in a wrongful death action for a minor child, as discussed above, the parents of the child are entitled to damages for the loss of the love and affection of the child and for the destruction of the parent child relationship. In many cases, especially those involving very young children, jurors can (and should) be quite generous in their verdicts compensating for the loss of the love and affection of the child and for the destruction of the parent child relationship. It is not unusual to see verdicts of excess of one million dollars or more.

Sadly, however, the parents of an 18 year old child, even if he or she was still in high school at the time of the wrongful death, are not entitled to these damages under Washington law. The statute that creates damages for loss of love and affection and destruction of the parent child relationship applies only to the loss of a “minor" child. The only exception would be if the parents were “substantially financially dependant" on the child for support which in most cases is unlikely. The only recovery for the estate of the child are funeral expenses and loss of future income minus future consumption all reduced to present value which is usually in the $250,000 to $750,000 range depending on the child’s expected income earning capacity.

Another unfair and shameful idiosyncrasy in Washington law occurs where your loved one is injured and lives for a time then dies as a result of the injury. On behalf of the beneficiaries, the estate may recover the pain and suffering which was experienced before he or she died as long as the person is survived by a spouse, child or stepchildren. If the person is not survived by a spouse, child or stepchild, the estate may still maintain the lawsuit if there is a sibling or a parent who is dependant upon the loved one for support which, again, is an unlikely scenario.

So, for example, as grieving parents of a minor child who lived for several weeks after having been hit in a crosswalk and severely injured by a drunk driver, there can be no recovery for the child’s pain and suffering. Or, imagine an elderly person who is widowed with no children. Unless there is a parent (very unlikely) or a sibling dependant upon them for support (also unlikely) there can be no cause of action for the pain and suffering between the time of injury and the time of death. This means that the estate of the victim who is quite old with little lost income gets very little, if anything at all, under Washington’s statutory wrongful death scheme.

Shamefully, Washington State does not put much value on the life of an elderly person with no children. Another, perhaps more frequent shameful scenario is when a young adult, e.g., a 22-year-old just out of college, is wrongfully killed without a spouse, child or dependent family member and the estate gets only lost income.

Finally, despite the complexity and broad scope of Washington's five statutes, they still give a negligent party a free ride to escape all liability if the victim dies and only has beneficiaries who live outside the United States. Such differential treatment should not be acceptable in this day and age. The legislature should correct this deficiency or the courts should strike down these statutes as unconstitutional.

Again, if the lawyer you seek to hire doesn’t know all of this well enough to explain it to you or discuss it with you, keep interviewing attorneys until you find a lawyer who can easily communicate these matters to you. You need a seasoned lawyer who knows what can and should be done for you and your family in handling a wrongful death case.

Damages Awarded In Wrongful Death Cases

The Wrongful Death and Survival statutes described above will distinguish between the types of damages awardable to the various parties to a wrongful death action. Therefore, the following money damages may or may not be specifically awarded in any particular case:

Medical Expenses - All costs incurred for health care should be repaid to the estate including ambulance bills, hospital bills and charges for surgical and medical procedures. Your insurance company may seek reimbursement (subrogation) for these expenses once a settlement or verdict is rendered against the defendant depending upon the insurance policy language. Medicare and Medicaid must be reimbursed as a matter of law.

Funeral Expenses – The estate is entitled to reimbursement of all costs associated with the loved one’s funeral and burial or cremation.

Economic Damages - This includes the money, goods and services the deceased would have contributed but for the wrongful death. The deceased person's estate is entitled to a sum of money to compensate for the lost earnings and lost capacity to earn income in the future. This is true even if the deceased is a minor who would have been able to earn a living. Expert vocational and economic experts should be hired for this analysis by your attorney.

General Damages for Pain and Suffering - The real loss sustained from the wrongful death of a loved one includes not only the financial losses, but also the loss of love, advice, comfort, care, companionship and society. In Survival Actions, the statutory beneficiaries are entitled to the decedent’s loss of enjoyment of life, pain, suffering, anxiety, emotional distress, humiliation and fear experienced prior to death. Pain and suffering are not available in those cases where death is instantaneous. There must be some “measurable time" between the negligent event and death. In cases for the wrongful death of a child, Washington allows damages for the loss of love and destruction of the parent-child relationship including the grief, mental anguish and suffering resulting from the death of his or her child. The claimant may be entitled to be compensated in dollars for the pain and suffering that the deceased person suffered before death.

At the end of the jury instructions for these general damages the following language appears:

“The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence of this case, and by these instructions."

An experienced attorney can build the story for the jury to understand and take to heart the fact that as citizens we have the right to defend ourselves against these harmful acts.

A jury is the most powerful group a person can belong to in our community and you can test this yourself by answering the question, why don’t most other countries have them? We are fortunate to live in a country with a jury system

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