107 Wash. App. 586 | Wash. Ct. App. | 2001
Patricia Hatch (Hatch) claimed loss of consortium against the City of Tacoma. The City moved for dismissal under CR 12(b)(6), contending that no set of facts would warrant recovery. The trial court granted the motion, and Hatch appealed. We reverse in part and affirm in part.
On March 4, 1999, Hatch’s husband, Gerald, allegedly was injured by the alleged negligence of City employees. He died on a date the record does not show.
On March 1, 2000, Hatch sued the City, claiming “her loss of society, companionship, consortium, support and income.”
On April 13, 2000, the City moved to dismiss “pursuant to CR 12(b)(6).”
Loss of consortium is the loss of the “ ‘society, affec
Applying this concept here, we address two questions. (1) Does Hatch have a claim for “loss of society, companionship, consortium, support and income” that occurred after her husband’s death? (2) Does Hatch have a claim for “loss of society, companionship, consortium, support and income” that occurred before her husband’s death? The first question deals with postdeath damages, while the second deals with predeath damages.
I
As just stated, the first question is whether Hatch has a claim for postdeath loss of consortium. At common law, no one could sue for postdeath damages.
When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death[.][7 ]
Every such action shall be for the benefit of the wife,*589 husband... of the person whose death shall have been so caused.[8 ]
These statutes govern postdeath loss of consortium as well as other aspects of postdeath damages. Accordingly, only the decedent’s personal representative can bring an action for postdeath loss of consortium.
While consortium is an element of damages in the wrongful death action, it is not an independent cause of action. The spouse may not pursue the claim independently but must recover any damages through the derivative cause of action under RCW 4.20.010; wrongful death is the cause of action and only the personal representative may bring it.[10 ]
In this case, Hatch is not her husband’s personal representative. As a result, the trial court properly dismissed her complaint insofar as it alleged postdeath loss of consortium.
II
The second question is whether Hatch has a claim for predeath loss of consortium. This question is controlled by case law, which holds that the deprived spouse “may sue for loss of consortium damages by either joining in a lawsuit with the spouse who sustained primary injuries or by bringing an independent suit.”
In Rinke v. Johns-Manville Corp.,
We note, however, that such a claim would be limited to damages incurred during [the impaired spouse’s] lifetime. Any claim for loss of consortium damages occurring because of [the impaired spouse’s] death would have to be brought by the personal representative of his estate, through a wrongful death suit.[14 ]
Based on the foregoing, we conclude that Hatch’s complaint states a claim for loss of consortium limited to the damages she suffered before her husband’s death. We have not considered whether Hatch can prove her claim; whether she must join her husband’s personal representative as an indispensable party; whether she must join her claim or consolidate her suit with any claim or suit brought by his personal representative; whether she might be
We reverse the trial court’s dismissal of Hatch’s complaint to the extent she seeks damages for loss of consortium suffered before her husband’s death. We affirm the trial court’s dismissal in all other respects.
Armstrong, C.J., and Houghton, J., concur.
Clerk’s Papers (CP) at 2. Hatch also claimed “Gerald Hatch’s loss of income and medical expenses caused by [the City’s] wrongful actions!.]” Id. at 1. Hatch does not appeal the trial court’s dismissal of that claim.
Id. at 4.
Ueland v. Reynolds Metals Co., 103 Wn.2d 131, 132 n.1, 691 P.2d 190 (1984) (quoting Black’s Law Dictionary 280 (5th ed. 1979)).
Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 773, 733 P.2d 530 (1987); see also Restatement (Second) of Torts § 693 cmt. a, at 495 (1977).
Warner v. McCaughan, 77 Wn.2d 178, 181, 460 P.2d 272 (1969); Tait v. Wahl, 97 Wn. App. 765, 771-72, 987 P.2d 127 (1999), review denied, 140 Wn.2d 1015 (2000); Roe v. Ludtke Trucking, Inc., 46 Wn. App. 816, 819-20, 732 P.2d 1021 (1987).
Huntington v. Samaritan Hosp., 101 Wn.2d 466, 469, 680 P.2d 58 (1984); Ginochio v. Hesston Corp., 46 Wn. App. 843, 848, 733 P.2d 551 (1987).
RCW 4.20.010.
RCW 4.20.020.
See Bowers v. Fibreboard Corp., 66 Wn. App. 454, 460, 832 P.2d 523, review denied, 120 Wn.2d 1017 (1992); Rinke v. Johns-Manville Corp., 47 Wn. App. 222, 224 n.1, 734 P.2d 533 (1987); Ginochio, 46 Wn. App. at 846; Roe, 46 Wn. App. at 818; Restatement (Second) of Torts § 693 cmt. f (1977).
Ginochio, 46 Wn. App. at 848 (emphasis added).
Lund v. Caple, 100 Wn.2d 739, 744, 675 P.2d 226 (1984); see also Green v. Am. Pharm. Co., 136 Wn.2d 87, 101, 960 P.2d 912 (1998); Flanigan v. Dep’t of Labor & Indus., 123 Wn.2d 418, 425, 869 P.2d 14 (1994); Reichelt, 107 Wn.2d at 776; Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 870, 991 P.2d 1182 (2000); Christie v. Maxwell, 40 Wn. App. 40, 44, 696 P.2d 1256, review denied, 104 Wn.2d 1002 (1985). Interestingly, most other jurisdictions require joinder when possible. See, e.g., Schreiner v. Fruit, 519 P.2d 462, 466 (Alaska 1974); Hopson v. St. Mary’s Hosp., 176 Conn. 485, 408 A.2d 260, 264 (1979); Jones v. Elliott, 551 A.2d 62, 65 (Del. 1988); Brown v. Metzger, 104 Ill. 2d 30, 470 N.E.2d 302, 304 (1984); Madison
Rinke v. Johns-Manville Corp., 47 Wn. App. 222, 734 P.2d 533 (1987).
Rinke, 47 Wn. App. at 224 n.1.
Rinke, 47 Wn. App. at 224 n.1 (citations omitted).
We were told at oral argument that the personal representative, who is not Hatch, has filed suit. We were also told that the City on remand will move to consolidate this case with that one. As the text indicates, we do not consider these matters.