381 P.3d 32
Wash.2016Background
- Ray Sundberg had decades of asbestos exposure, sued in 1999 for personal injuries, and obtained a 2001 jury award against one defendant; he died of asbestos-related disease in 2010.
- His daughter Judy Deggs, as personal representative, filed a wrongful death suit within three years of his death naming mostly defendants not in the 1999 suit; some defendants moved to dismiss as time-barred because the decedent’s personal-injury claims had become time-barred before his death.
- Trial court granted dismissal; the Court of Appeals affirmed (with a dissent) relying on Washington precedent that a wrongful death claim requires a subsisting cause of action in the decedent at death.
- The Supreme Court granted review to decide whether to abandon the Calhoun/Grant rule that a deceased must have a subsisting cause of action at death (i.e., that an underlying statute-of-limitations bar before death precludes a later wrongful death claim).
- The Court acknowledged some precedent (Calhoun) was flawed and that discovery/accrual rules have evolved (White), but concluded petitioner failed to show the precedent is sufficiently harmful or undermined to overrule; it affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a wrongful death claim may be barred if the decedent’s personal-injury claim was time-barred before death | Deggs: wrongful death is a distinct statutory claim that accrues at death; filing was within three years of death so timely | Defendants: Washington precedents require a subsisting cause of action in the decedent at death (Calhoun/Grant); lapse of SOL before death bars wrongful death | Court: Affirmed Calhoun/Grant; because Sundberg’s underlying claims had lapsed during life, Deggs’s wrongful death claim was properly dismissed |
| Whether the Court should overrule Calhoun/Grant given modern accrual/discovery rules | Deggs: precedents were incorrect and should be overruled as harmful and inconsistent with accrual doctrine | State/defense: stare decisis and legislative acquiescence counsel retention; not sufficiently harmful or undermined | Court: Declined to overrule—petitioner did not show clear harm or that underpinnings disappeared |
| When a wrongful death cause of action accrues for SOL purposes | Deggs: accrual cannot occur before death; statute runs from death (and discovery rule applies to personal representative) | Defendants (and precedent): wrongful death accrues at death but subject to exception that a subsisting cause of action must exist in decedent at death | Court: Reaffirmed that wrongful death accrues at death but reiterated the Calhoun/Grant exception requiring subsisting cause of action at death |
| Applicability of discovery rule to toll SOL for wrongful death claims | Deggs: discovery rule supports tolling until personal representative discovers cause of death | Defendants: discovery rule does not rescue claims where underlying cause was already time-barred in decedent’s life | Held: Discovery rule applies generally (per White) but does not compel overruling Calhoun/Grant in this case; not outcome-determinative here |
Key Cases Cited
- White v. Johns-Manville Corp., 103 Wn.2d 344 (1985) (holds wrongful-death statute of limitations accrues when personal representative discovered or should have discovered cause of action; applies discovery rule)
- Calhoun v. Wash. Veneer Co., 170 Wash. 152 (1932) (early holding that wrongful-death action is barred if underlying personal-injury statute of limitations lapsed before death)
- Grant v. Fisher Flouring Mills Co., 181 Wash. 576 (1935) (interprets and applies Calhoun, recognizing wrongful-death accrual at death but imposing requirement of a subsisting cause of action in decedent at death)
- Johnson v. Ottomeier, 45 Wn.2d 419 (1954) (recognizes categories of limitations on wrongful-death claims and allows exceptions where in-person disabilities or equity require it)
- Brodie v. Wash. Water Power Co., 92 Wash. 574 (1916) (holds a decedent’s release of personal-injury claims bars beneficiaries’ wrongful-death claim)
- Dodson v. Cont'l Can Co., 159 Wash. 589 (1930) (supports accrual of wrongful-death action at time of death)