Written by attorney Lawrence Michael Kahn

Understanding Wrongful Death Claims in Washington

It seems to happen in an unexpected instant whether there was some time to prepare or not. Your loss of a loved one under any circumstance is a heartbreaking and shockingly low time only made worse by the knowledge that it didn’t have to be that way: that the loss was caused by the negligence of another through a vehicle crash, workplace injury, medical malpractice or otherwise. By definition, your loved one has suffered a wrongful death.

What can you do? You know you need to take action to right a wrong or, at minimum, to obtain some accountability for this grievous loss. You feel strongly that your lost loved one would champion your cause for you if things were the other way around. But where do you start? How can you grieve yet make sure that the evidence of wrongdoing is adequately preserved so you can do what you can to make sure this never happens again to anyone else, especially in your family? Where do you begin in hiring a lawyer, other than the Yellow Pages, the Internet and other referral services that can be wholly unreliable vapid advertising?

Because wrongful death lawsuits are particularly complicated, you should seek a lawyer that is acutely familiar with all aspects of a case like yours. The cases are usually expensive and time consuming to litigate because insurance companies and their attorneys fight tooth and nail to give you the least money possible or none at all. These cases require extensive investigation and the assistance of experts. The lawyer must have experience and the financial resources to pay for the detailed investigation, research and experts needed to win your case.

What is a Wrongful Death Lawsuit?

A wrongful death lawsuit says that the victim died as a result of negligence (or other type of unjust action) by the person, business, or governmental entity being sued, and that the victim’s immediate family is entitled to monetary damages as a result of this improper conduct.

Over the years all of the states, including Washington, have passed wrongful death laws to provide compensation for those who were damaged from the wrongful death of their loved one. These laws and monetary damages are designed to be an incentive for the wrongdoers and society to go about life carefully and safely in order to prevent these deaths from happening again.

A wrongful death claim may arise out of a number of circumstances, including medical malpractice, automobile, boat, bicycle, motorcycle, train or airplane accident, swimming, product defect, occupational exposure to hazardous conditions or substances and criminal behavior. Obviously, this is not an all inclusive list. When someone is killed due to another’s negligence, it is a wrongful death generally entitled to a recovery of damages.

“Pecuniary," or financial injury is the primary type of damages sought in a wrongful death action. Washington courts have interpreted these financial injuries as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. When determining pecuniary loss, the jury considers the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the beneficiaries of the estate.

Wrongful death claims are cases which have as their legal source, the state’s statutes created by the legislature and interpreted by the courts. The “Wrongful Death" and “Survival" statutes, as they are known, define the permitted actions and permitted beneficiaries in any claim on behalf of the deceased, also called the “decedent" in legalese. The action is brought by a “personal representative" of the decedent’s estate, but this is merely for the sake of procedural convenience and for the sake of the beneficiaries.

The named “Personal Representative" could be a beneficiary of the estate but conflicts of interest may arise so an “uninterested" third party or a professional personal representative is in most cases preferable. “Uninterested" here doesn’t mean they are bored or don’t care: it means they have no personal stake in the outcome of the case because they are not beneficiaries. It is the duty of every personal representative to settle the estate as rapidly and as quickly as possible, collecting and paying all debts of the estate. Technically, along with the family, the personal representative hires the lawyer to pursue the wrongful death lawsuit on behalf of the estate.

Individuals may, under certain circumstances, be both beneficiaries of the estate and bring an action personally on his or her behalf in addition to or instead of the estate for the same facts causing the death of their loved one. For example, if the beneficiary witnessed or was “in the zone of danger" of the tragic event, he or she may bring a cause of action for negligent infliction of emotional distress in the same wrongful death lawsuit. Another example where an individual claim may be made is where a parent sues for the tragic death of a minor child. The parent’s loss is not part of the estate controlled by the PR.

The statute of limitations for a wrongful death action is three years. The wrongful death statute is not “tolled" or delayed by the fact the beneficiaries may be minors because the action is always brought by the personal representative not the minor. Generally in ordinary injury cases not involving death, underage minors can but are not required to wait until he or she is 18-years-old to sue no matter what the length of time set by the legislature for the statute of limitations.

Washington's statutory scheme is complex, with five potentially applicable statutes, including three wrongful death statutes and two survival statutes. The statutes are RCW §§ 4.20.010, 4.20.020, 4.24.010 (wrongful death statutes) and 4.20.046, 4.20.060 (survival statutes).

  1. RCW 4.20.010: This general wrongful death statute creates a cause of action, brought by the personal representative, to compensate a decedent’s surviving family members for “pecuniary," (monetary) losses they sustain as a result of the decedent’s death.

  2. RCW 4.20.020: This statute designates two tiers of beneficiaries to the statutory wrongful death action. The first tier of beneficiaries includes the spouse and children of the decedent. The second tier of beneficiaries, which includes the parents and siblings of the deceased. The second tier may recover only if there are no first tier beneficiaries and only if the designated beneficiaries were dependent for support on the deceased.

  3. RCW 4.20.060: This special Survival Statute allows for the deceased’s action for personal injury to survive. The decedent’s own action for personal injuries causing death may be brought by the personal representative of the decedent’s estate on behalf of the beneficiaries listed above. If there are no statutory beneficiaries as defined in RCW 4.20.020, no claim can be brought under the Special Survival Statute.

  4. RCW 4.20.046: This “General Survival Statute" allows the personal representative of the decedent’s estate to assert all causes of action that a decedent could have brought if he or she had survived. For example, the PR may recover net economic accumulations the estate would have acquired if the decedent had survived to the expected life term. This figure is computed by determining the total amount of future earnings, less the personal expenses he or she would have incurred during his or her lifetime, and reducing the net amount to its present cash value. Note that the PR may not recover noneconomic damages for the decedent’s pain and suffering, anxiety, emotional distress, loss of enjoyment of life, or loss of consortium.

  5. RCW 4.24.010: This is the action for injury or death of child. The statute gives parents who have regularly contributed to the support of their minor child a direct cause of action for the injury or death of the child. (It also gives a cause of action to parents who are dependent for support from their child, whether or not they are a minor.) “Support" generally means providing for child’s needs for housing, food, clothing, education, and health care). Support also includes but is not limited to significant emotional, psychological or financial support. If the parents of the child are not married, damages may be awarded to each parent separately, as the trier of fact finds just and equitable. If only one parent brings an action under this section and the other parent is not named as a plaintiff, notice of the suit, together with a copy of the complaint must be served upon the other parent. The notice must state that the other parent must join as a party to the suit within 20 days or the right to recover damages under this section shall be barred. Failure of the other parent to timely appear will bar such parent’s claim to recover any part of an award made to the parent filing the lawsuit.

Parents may recover the following damages: medical, hospital, medication expenses, loss of services and support, loss of love and companionship of the child, and injury to or destruction of the parent-child relationship. Loss of love and the destruction of the parent-child relationship includes grief, mental anguish, and suffering by the parents as a result of child’s death. Loss of companionship includes loss of mutual society and protection of child to parents. In computing damages under this statute, the trier of fact (judge or jury) considers the age of child, health, life expectancy, character, and habits, as well as the parent’s station in life.

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