Criscuola v. Andrews

507 P.2d 149, 82 Wash. 2d 68, 1973 Wash. LEXIS 661

• Court: Washington Supreme Court
• Decided: March 15, 1973
• Docket: 42478
• Status: Published

Opinions

Utter, J.

An action pursuant to the survival statute was brought against Howard Andrews and his wife in the name of the estate of John L. Criscuola. A judgment on a jury-verdict for $32,000 was entered. The sole issue presented is whether a cause of action survives under our general survival statute when death is instantaneous. We hold that it does and affirm the verdict.

At the time of his death, John Criscuola was 21 years old and single. He died at the scene of the accident, left no surviving wife or children and had no parents, sisters or brothers dependent on him for support. Although there could be a question raised as to whether his death was instantaneous, we assume for purposes of this decision that it was.

Our decision in Hinzman v. Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972) reaffirmed the court’s earlier holding in Warner v. McCaughan, 77 Wn.2d 178, 460 P.2d 272 (1969) that under the general survival statute, all tort causes of action, except claims for pain and suffering, survive the death of the injured party. In those cases we emphasized the distinction between the causes of action under the general survival statute which continue after death as an asset of the estate and those actions under the wrongful death statute which are new causes of action for the benefit of certain named parties and are premised on an alleged wrong to the statutory beneficiaries, not the estate.

In many jurisdictions that have held no cause of action survives under the survival acts when death is instantaneous, this conclusion has been reached in an effort to avoid double recovery where actions are brought under both wrongful death and survival statutes. Recovery under their survival statutes is limited to losses incurred before death and compensation to the named statutory beneficiaries under a wrongful death action is allowed for injuries incurred by them as a result of the death. Ellis v. Brown, 77 So. 2d 845 (Fla. 1955); Allen v. Burdette, 139 Ohio St. 208, 39 N.E.2d 153 (1942); Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922). Although this is one means of providing for allocation of damages and thereby preventing double recovery, it is not the only method of doing so and seems to us an inappropriate procedure.

Although there is no problem of double recovery presented by the facts in this case, we believe it should be commented on for the guidance of our courts in the future. The problem of prospective double compensation where actions are brought under both survival and wrongful death actions is avoided if recovery under the survival action is limited to the prospective net accumulations of the deceased. Payment for support theoretically going to the statutory beneficiaries under the wrongful death action is then included in the decedent’s expenses and the problem of a prospective double recovery is obviated. This is a better way to face the issue rather than to arbitrarily indicate damages under a survival action cease at death.

We believe this conclusion is justified because it allows for concurrent remedies without duplicating damages, by not implying from the existence of a wrongful death act that all prospective losses were to be cut off in a survival action. Moreover, it is consistent with the rule that “all” personal injury causes of action survive, including the loss of prospective earnings, and that the loss of earnings may be prospective when death is caused by the injury. Finally, the injury to creditors and heirs or devisees in the loss of expected future earnings does not abate at decedent’s death because their injury is included in decedent’s cause of action which arose, even if only momentarily, before death. Martin, Measuring Damages in Survival Actions for Tor-tious Death, 47 Wash. L. Rev. 609, 624-25 (1972).

Our current holdings do not require a contrary approach. We addressed ourselves in Hinzman to the question of what rule should be chosen to measure prospective lost wages in a survival action. In that case, we indicated under those circumstances we would choose a rule which measured the probable worth of the decedent’s future net earnings had she lived to her normal life expectancy. Personal expenses were deducted from gross earnings to reach the net amount. Hinzman involved a 7-year-old girl and the multiple problems — whether she would or would not marry, and at what age, and when to start deductions for family expenditures — were deemed too uncertain to allow any other test to be used. Whether we would apply a different rule to an adult who had fixed living expenses already established we do not decide at this time. See 47 Wash. L. Rev. 609, 622 (1972).

We hold that when there is an instantaneous death, a cause of action still exists under the Washington survival statute.

Judgment affirmed.

Finley, Rosellini, Hunter, Hamilton, Stafford, and Wright, JJ., concur.