Deggs v. Asbestos Corp.

• Court: Washington Supreme Court
• Decided: October 6, 2016
• Docket: 91969-1
• Status: Published

Opinion

~-his opinion was filed for record /FI~E 8:00 ~ Oc!-L, li)L y m CL~RKG OFFICE ~ at on

=· SlJP'REM~ COt.:fl.T, STATE Of V¥ASHING1'0N

IAA. ~ C: rJ. ~~~ ~- OCi" i.l G 2il16 /1 ·/Jn let ,~; SUSAN L. CARLSON CHIEFJIJS , SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JUDY R. DEGGS, as Personal ) Representative for the estate ofRAY ) No. 91969-1 GORDON SUNDBERG, ) ) Petitioner, ) ) v. ) ) ASBESTOS CORPORATION LIMITED; ) ASTENJOHNSON, INC.; CBS ) CORPORATION (FKA VIACOM INC., ) En Bane FKA WESTINGHOUSE ELECTRIC ) CORPORATION); INGERSOLL-RAND ) COMPANY, ) ) Respondents, ) ) and ) ) BARTELLS ASBESTOS SETTLEMENT ) TRUST; GASKET COMPANY; GENERAL) REFRACTORIES COMPANY; JOHN ) Filed OCT 0 6 2016 CRANE, INC.; METROPOLITAN LIFE ) INSURANCE COMPANY, and FIRST ) DOE through ONE HUNDREDTH DOE, ) ) Defendants. )

GONZALEZ, I.-Washington State's wrongful death act is based on the

English Lord Campbell's Act of 1846. Lord Campbell's Act gave certain Deggs v. Asbestos Corp., et. a/., No. 91969-1

family members a cause of action for a relative's wrongful death, but only if

that relative would have had a cause of action for the injury at the time of

death had death not occurred. While our state's legislature did not adopt that

limitation, almost a century ago, this court did. We have since carved out

some exceptions. We are asked today to abandon that limitation completely

and to reinstate a daughter's case for the wrongful death of her father even

though the father did not have a cause of action against the defendants at the

time of his death.

While we recognize that our cases adopting the limitation from Lord

Campbell's Act's may have been incorrect, the petitioner has not shown that

they are harmful. Nor has she shown that the legal underpinnings of those

decisions have changed or disappeared since those opinions were decided.

Accordingly, we affirm.

FACTS

Ray! Sundberg served in the United States Navy during the Second

World War. Afterward, he worked for decades in dockyards and lumber

yards. Throughout his long work life, he was exposed to asbestos. This

exposure caused him serious, long term harm. Between 1998 and 2000, he

1 The original complaint, and therefore, the original caption, misspelled Sundberg's first name "Roy." This misspelling was corrected in the amended complaint. We order the caption corrected.

2 Deggs v. Asbestos Corp., et. a!., No. 91969-1

was diagnosed with lymphoma, pleural disease, and asbestosis relating to

asbestos exposure. Clerk's Papers at 24.

In 1999, Sundberg filed a personal injury suit against nearly 40

defendants who had some part in exposing him to asbestos. Most of the

defendants settled (the amounts are not in the record), though one did go to

trial. Sundberg prevailed at trial, and in 2001, a jury awarded him

$1,511,900 against the last remaining defendant.

Nine years later, at the age of 84, Sundberg died of asbestos-related

disease. He was survived by his wife, Betty Sundberg, and their daughter,

Judy Deggs. Deggs, acting as personal representative of her father's estate,

brought this wrongful death action. Deggs primarily named defendants who

had not been named in her father's 1999 personal injury action, though both

suits named Asbestos Corporation Limited. Nothing in the record or

briefing explains why her father did not name these new defendants in the

earlier case. One of the defendants (later joined by others) moved to dismiss

the suit as time barred because it was filed more than three years after

Sundberg learned he had asbestos-related diseases. 2 In other words, due to

2While the record does not reveal the exact date when the personal injury suit accrued, the parties do not dispute that Sundberg's cause of action had accrued by 1999, when he f1led a personal injury suit against Asbestos Corporation Limited and other defendants. The statute of limitations on personal injury suits is three years from the time the plaintiff knows all the essential elements of the cause of action. White v. Johns-Manville Corp., 103 Wn.2d 344, 358, 693 P.2d 687 (1985); see also RCW 4.16.080(2).

3 Deggs v. Asbestos Corp., et. al., No. 91969-1

the passage of time, Sundberg did not have a cause of action against these

defendants for his injuries at the time of his death. The trial judge agreed

and granted the motions to dismiss.

The Court of Appeals affirmed over a vigorous dissent. Deggs v.

Asbestos Corp. Ltd., 188 Wn. App. 495,500,354 P.3d 1 (citing Grantv.

Fisher Flouring Mills Co., 181 Wash. 576, 581, 44 P.2d 193 (1935);

Calhoun v. Wash. Veneer Co., 170 Wash. 152, 160, 15 P.2d 943 (1932)),

review granted, 184 Wn.2d 1018, 361 P.3d 746 (2015). It concluded that

since Sundberg could not have brought a second suit based on his asbestos

exposures before he died, Deggs could not bring a wrongful death suit after

he died. !d.

The dissent concluded that the analytical underpinnings of Grant and

Calhoun had been undermined by subsequent case law. !d. at 514-15 (citing

Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber,

Hunt & Nicholas-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821

(2013)). Since, it concluded, "[o]f course, a wrongful death action cannot

accrue before death," the statute of limitations could not start to run until

that time either. !d. at 515 (Dwyer, J., dissenting). Essentially, Deggs argues

that wrongful death is a distinct statutory claim and that her injuries are not

4 Deggs v. Asbestos Corp., et. al., No. 91969-1

the same injuries her father suffered and sued for in 1999. Her injuries are

due to the loss of her father, which did not occur until he died.

We granted Deggs' petition for review. Deggs, 184 Wn.2d 1018. We

have received amicus briefs in support ofDeggs from the Washington State

Association for Justice Foundation and Bergman Draper Ladenberg PLLC.

We have received briefs in support of Asbestos Corporation Limited and the

other defendants from the Washington Defense Trial Lawyers.

ANALYSIS

"When the death of a person is caused by the wrongful act, neglect,

or default of another his or her personal representative may maintain an

action for damages against the person causing the death." RCW 4.20.010,

The wrongful death action is for the benefit of statutory heirs, not the

decedent or the decedent's estate. RCW 4.20.020; Gray v. Goodson, 61

Wn.2d 319, 327, 378 P.2d 413 (1963) (quoting Maciejczak v. Bartell, 187

Wash. 113, 60 P .2d 31 (193 6) ). The wrongful death act expresses our

society's judgment that "a person may legally sustain damages when one,

with whom a certain relationship existed, is wrongfully killed." Gray, 61

Wn.2d at 325. It is not truly a derivative action: "[T]he action for wrongful

death is derivative only in the sense that it derives from the wrongful ac.t

causing the death, rather than from the person of the deceased." Johnson v.

5 Deggs v. Asbestos Corp., et. al., No. 91969-1

Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954) (citing Welch v. Davis,

410 Ill. 130, 101 N.E.2d 547 (1951)); see also Gray, 61 Wn.2d at 325 (citing

Upchurch v. Hubbard, 29 Wn.2d 559, 188 P.2d 82 (1947)). Accordingly, a

wrongful death action accrues "at the time the decedent's personal

representative discovered, or should have discovered, the cause of action."

White v. Johns-Manville Corp., 103 Wn.2d 344, 352-53, 693 P.2d 687

(1985). But see Atchison v. Great W. Malting Co., 161 Wn.2d 372, 379, 166

P.3d 662 (2007) (observing that "the rule is well-settled: wrongful death

actions accrue at the time of death" (citing Dodson v. Cont 'l Can Co., 159

Wash. 589, 294 P. 265 (1930))). 3 It has a three year statute oflimitations.

See Huntington v. Samaritan Hosp., 101 Wn.2d 466, 468, 680 P.2d 58

(1984) (citing RCW 4.16.080). Deggs filed this suit within three years of

her father's death. Therefore, she contends, her suit was timely.

But while the wrongful death action exists for the benefit of the

deceased's family, it is not completely separate from actions the deceased

could have brought during life. These two types of actions are intertwined

with each other and have consequences on each other. Both types of actions

hold those who injure others liable for the damages they cause, but that

3 Atchison asked whether the statute oflimitations would be tolled during an heir's childhood. 161 Wn.2d at 375. It did not discuss either the discovery rule or White, 103 Wn.2d344.

6 Deggs v. Asbestos Corp., et. a/., No. 91969-1

liability is subject to the broader law and the law's limitations. As the

plaintiffs are asking us to reconsider one of those long-standing limitations,

we take this opportunity to trace the development of that limitation in our

common law.

For many centuries, English common law did not have a cause of

action for family members to sue for their loved ones' wrongful deaths.

FRANCIS B. TIFFANY, DEATH BY WRONGFUL ACT§ 1, at 1-3 (2d ed. 1913). In

1846, motivated by the "toll of huwan life taken by the railways," the

English parliament enacted "'[a]n act for compensating the families of

persons killed by accidents."' 15 SIR WILLIAM HOLDSWORTH, A HISTORY OF

ENGLISH LAW 220 (1965); TIFFANY, supra,§ 4, at 5. This act has become

known as Lord Campbell's Act. TIFFANY, supra,§ 4, at 5 (citing Fatal

Accidents Act 1846, 9 & 10 Viet. c. 93 (Eng.)). As described by the leading

treatise this court frequently turned to when considering early wrongful

death cases, the act originally provided in part:

That whensoever the death of a person shall be caused by wrongful act, neglect, or default, such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

7 Deggs v. Asbestos Corp., et. al., No. 91969-1

!d. § 21, at 27. Lord Campbell's Act was the model for our wrongful death

statute and wrongful death statutes around the country. Armijo v. Wesselius,

73 Wn.2d 716,718,440 P.2d 471 (1968) (citing Wex S. Malone, The

Genesis a,( Wrongful Death, 17 STAN. L. REV. 1043 (1965)). The very first

session of our territorial legislature of the state of Washington passed a

version of it. LAws OF 1854, § 496, at 220. In 1875, the territorial

legislature expanded our wrongful death statute to substantially the form it

has today:

When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death.

LAWS OF 1875, § 4, at 4.

Based on both the plain language of the statute and the larger history

of the doctrine, we reversed a wrongful death verdict against a defendant

homeowner who shot a police officer, believing he was a prowler. Welch v.

Creech, 88 Wash. 429, 437, 153 P. 355 (1915). We found the instructions

given in that case permitted the jury to return a plaintiffs verdict even if it

found the defendant acted in self-defense. !d. at 444. But since killing in

self-defense is not wrongful, if the defendant had acted in self-defense, no

recovery under the wrongful death act was available. !d. at 435 (citing N.

Pac. Ry. Co. v. Adams, 192 U.S. 440,24 S. Ct. 408, 48 L. Ed. 513 (1904)).

8 Deggs v. Asbestos Corp., et. a!., No. 91969-J

We remanded for retrial with proper instructions. !d. at 444. We reached

similar holdings in cases where the deceased was killed while attempting to

bomb a competitor's business and where the deceased was killed during an

illegal prize fight. Ryan v. Poole, 182 Wash. 532, 533, 538-39,47 P.2d 981

(1935); Hart v. Geysel, 159 Wash. 632, 634, 294 P. 570 (1930). In all of

these cases, no recovery under the wrongful death act was available because

the deceased was not killed by an act the law (at least at the time)

categorized as wrongful. In other words, the decedent would not have had a

cause of action for the injuries had no death occurred so neither do the

surv1vors.

Meanwhile, we took a substantial step toward limiting our wrongful

death statute in line with the limitations in Lord Campbell's Act in Brodie v.

Washington Water Power Co., 92 Wash. 574, 576-77, 159 P. 791 (1916).

There, we held "that a release and satisfaction by the person injured of his

right of action for the injury bars the right in the beneficiaries to maintain an

action for his death occasioned by the injury." !d. at 576 (citing TIFFANY,

supra, § 124, at 269-76). Since Brodie had settled the underlying personal

injury case during his life for $2,500 in return for a release of all claims, the

court dismissed the wrongful death suit. !d. at 575-76. Accord N. Pac. Ry.

Co., 192 U.S. at 450 (holding negligence waiver bound heirs even iftheir

9 Deggs v. Asbestos Corp., et. al., No. 91969-1

cause of action had not yet accrued). Thus, in Brodie, the heirs could not

pursue a wrongful death action because of something extrinsic to injury that

resulted in their family member's death: the deceased's decision to release

the defendant and thus the lack of a subsisting cause of action at the time of

death.

In the 1930s, we come to the cases that are argued most strenuously

here, Calhoun, 170 Wash. 152, and Grant, 181 Wash. 576. In those cases,

we went beyond the substantive statutory limitations on the availability of

the wrongful death statute recognized in Welch, 88 Wash. 429 (that the death

was not the result of a wrongful act) to a generally procedural, extrinsic

limitation: the statute of limitations on the deceased's underlying cause of

action. In 1932, we concluded fairly summaril)' that a wrongful death action

was not available if the statute of limitations on the underlying injury had

run before the decedent died. Calhoun, 170 Wash. at 159-60 (citing Horner

v. Pierce County, 111 Wash. 386, 191 P. 396 (1920)). We elaborated and

refined our Calhoun reasoning in Grant, 181 Wash. 576. We observed that

the wrongful death "action accrues at the time of death, and that the statute

oflimitations then begins to run." !d. at 580-81 (citing Dodson, 159 Wash,

589). But we noted that "[t]he rule ... is subject to a well recognized

10 Deggs v. Asbestos Corp., et. a!., No. 91969-1

limitation, namely, at the time of death there must be a subsisting cause of

action in thedeceased." Id. at 581 (citing TIFFANY, supra,§ 124).

In Grant, the decedent had filed a timely personal injury action for his

injuries. Id. at 582. That suit was pending at the time of his death. Id.

Based on that pending lawsuit, we concluded that Grant did have "a valid

subsisting cause of action" at the time of his death and allowed the wrongful

death suit to go forward. Id.

We recognized a significant exception to the Calhoun/Grant rule in

Johnson, 45 Wn.2d 419. 4 Johnson was a wrongful death action filed by the

personal representative of Anna Ottomeier, who was murdered by her

husband who then killed himself. Id. at 420. At the time, either in the

interests of marital tranquility or under the legal fiction that husband and

wife were one, Washington common law did not allow spouses to sue each

other in tort. Id. at 424. Since Anna Ottorneier could not have sued her

husband for assaulting her, his personal representative argued, there was no

"subsisting cause of action in the deceased" as required by Grant after her

4 We respectfully disagree with the dissent that the court is disinterested in making sense of Calhoun, Grant, and Johnson. Taken together, these cases adopt Lord Campbell's Act limitations on wrongful death suit and recognize, based on legal developments since the time of Lord Campbell's Act, some exceptions.

11 Deggs v. Asbestos Corp., et. a/., No. 91969-1

murder. Grant, 181 Wash. at 580-81; Johnson, 45 Wn.2d at 424. 5 While

acknowledging Grant and Calhoun, we allowed the wrongful death case to

go forward. Johnson, 45 Wn.2d at 420, 423. Examining our own

precedents, we found that there were two categories of wrongful death suits

that had been dismissed based on the status or conduct of the deceased, and

that the reasoning underlying neither category justified dismissing Johnson's

suit, especially as there was no marital tranquility left to maintain. Id. at

424,427.

In the first category were "cases in which the defense asserted inhered

in the tort itself," such as claims that the defendant's act was not wrongful,

claims of consent, and claims of contributory negligence. I d. at 422. The

court concluded that no recovery under the wrongful death action was

available in such cases because "the tort-feasor breached no duty owing to

the decedent ... [and thus the] death was not wrongful in the contemplation

of the statute." I d.; see also Ryan, 182 Wash. at 538-39 (not wrongful for

defendant to kill a man who was attempting to dynamite a building); Welch,

88 Wash. at 436-37 (self-defense is not wrongful). The Johnson court

concluded that the victim's "disability to sue is personal to her, and does not

5 This court abandoned common law spousal immunity in Free he v. Freehe, 81 Wn.2d 183, 186, 500 P.2d 771 (1972), overruled on other grounds by Brown v. Brown, 100 Wn.2d 729,737,675 P.2d 1207 (1984).

12 Deggs v. Asbestos Corp., et. al., No. 91969-1

inhere in the tort itself." 45 Wn.2d at 424 (citing Deposit Guar. Bank & Tr.

Co. v. Nelson, 212 Miss. 335, 54 So. 2d 476 (1951), overruled by Burns v.

Burns, 518 So. 2d 1205, 1207 (Miss. 1988)); see also Ostheller v. Spokane

& I.E.R. Co., 107 Wash. 678, 685, 182 P. 630 (1919). None ofthe parties

argue that category is present here.

"The second category of cases in which this general rule of exclusion

has been applied involves situations in which, after receiving the injuries

which later resulted in death, the decedent pursued a course of conduct

which makes it inequitable to recognize a cause of action for wrongful

death." Johnson, 45 Wn.2d at 422-23 (citing Brodie, 92 Wash. 574;

Calhoun, 170 Wash. 152; Grant, 181 Wash. 576). This postinjury category

of extrinsic limitations on the availability of the wrongful death action

includes prior litigation, prior settlements, and the lapsing of the statute of

limitations. 6 Id. The court analogized spousal immunity to this sort of

extrinsic limitation on the scope of the wrongful death action, concluded that

6 We respectfi.J!ly disagree with the dissent that Calhoun was "nonsensical" or that Johnson's categorization of Calhoun was "an exercise in revisionist history." Dissent at 9, 6. Calhoun simply contained unfortunate dicta that was promptly clarified in Grant. Unfortunate dicta is not unknown at this court. The Johnson court took a thoughtful look at our cases concerning the accrual of a wrongful death action. 45 Wn.2d at 421-23. As discussed in more detail in text above, the Johnson court discerned two categories of limitations on wrongful death actions. It included Grant and Calhoun in the second category: equitable limitations on accrual. !d. at 423 (citing Grant, 181 Wash. 576; Calhoun, 170 Wash 152). Fairly read, the Johnson court found there was something inequitable in allowing the deceased's personal representative to maintain a suit based on injuries that the deceased had already been compensated for or had decided not to pursue.

13 Deggs v. Asbestos Corp., et. al., No. 91969-1

there was no equitable r!;)ason to attribute spousal immunity to the wife's

personal representative, and allowed the wrongful death suit to go forward.

!d. at 424-25.

More recently, we found that the discovery rule applies in wrongful

death suits to toll the statute of limitations. White, 103 Wn.2d at 345. Thus

"[t]he wrongful death statute of limitation accrues at the time the wrongful

death claimant knew or should have known that the death of the decedent

was caused by his exposure to asbestos," rather than at the death of the

decedent. !d. at 356. However, we cautioned:

[W]e note we are not faced with, nor do we decide, a case in which the deceased is alleged by the defendant to have known the cause of the disease which subsequently caused his death. In that case there is a question as to whether the wrongful death action ofthe deceased's representative "accrued'' at the time of the decedent's death, when the decedent first discovered or should have discovered the injury, or when the claimant first discovered or should have discovered the cause of death.

!d. at 347. This takes us to the question before us today: whether Deggs as

her father's personal representative can maintain a suit when her father could

not have.

Deggs asks us to overrule Grant, Calhoun, and Johnson to the extent

they hold that the lapsing of the statute of limitations on the underlying

personal injury claim bars the personal representative from bringing a

14 Deggs v. Asbestos Corp., et. al., No. 91969-1

wrongful death claim. Deggs' Suppl. Br. at 13. Generally, this court will

not overturn precedent unless there has been "a clear showing that an

established rule is incorrect and harmful." In re Rights to Waters of

Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). 7 Deggs makes a

fairly persuasive argument that our precedents were incorrect at the time

they were announced. They grafted onto our wrongful death statute broadly

procedural limitations that the English Parliament, not our legislature,

adopted. Further, the C:alhoun court suggested (though it did not hold) that a

wrongful death cause ofaction accrues at the time of the underlying injury to

the deceased, not upon their death. See Calhoun, 170 Wash. at 160 (citing

Horner, Ill Wash. 386). That was incorrect; a wrongful death action

accrues "at the time the decedent's personal representative discovered, or

should have discovered, the cause of action." White, 103 Wn.2d at 352-53.

But while Grant and Calhoun may have been incorrect at the time

they were announced, Deggs has not shown that they are harmful. Deggs

makes a fairly conclusory argument that our precedent is harmful because it

"bars the personal representative from pursuing legitimate wrongful death

7 Amicus Washington Defense Trial Lawyers suggests that the Stranger Creek analysis does not present the appropriate analytical lens to consider whether to reverse Calhoun and Grant because, in amicus's view, those opinions construe a statute, not the common law. But neither opinion suggests that the wrongful death statute itself contains the limitation the opinions embrace.

15 Deggs v. Asbestos Corp., et. al., No. 91969-1

claims, benefiting tortfeasors and rewarding their wrongdoing that results in

their victims' deaths." Deggs' Suppl. Br. at 14. Given how we have

restricted the rule from Lord Campbell's Act in Grant and Johnson, and

given that we found in White that the discovery rule applies to wrongful

death suits, any harm is less clear. We are not presented here with a case

where the deceased knew of a cause of action, was prevented from bringing

a personal injury claim within the statute of limitations, and then passed

away, leaving children or other dependents destitute. It may be that case

would show the sort of harm necessary to overrule our case law. Instead, we

are faced with a case where the deceased knew of the injury, sued, and either

settled with or won against all the named defendants. 8

Further, while the doctrine of legislative acquiescence does not govern

this case as Grant and Calhoun are not statutory interpretation cases, the

legislature's lack of response adds weight to the conclusion that they have

not been harmful. Cf 1000 friends of Wash. v. McFarland, 159 Wn.2d 165,

181, 149 P.3d 616 (2007)(citing State v. Coe, 109Wn.2d 832,846,750

P.2d 208 (1988)). The legislature has not indicated any dissatisfaction with

this court grafting on Lord Campbell's Act's limitation despite having 84

' Amicus Bergman Draper Ladenburg PLLC argues the Calhoun/Grant rule is harmful because of cases where the cause of death is not known until well after the decedent has passed away and intrusive pathologies have been done. But those cases would fall under the discovery rule in White, and Calhoun/Grant should not be an impediment.

16 Deggs v. Asbestos Corp., et. al., No. 91969-1

years to do so and despite amending the wrongful death statute itself once

and the related wrongful death beneficiary statute four times. See LAWS OF

2011, ch. 336, §§ 89-90 (making statutory language gender neutral); LAWS

OF 2007, ch. 156, §§ 29-30 (extending beneficiary rights to domestic

partners); LAWS OF 1985, ch. 139 (extending rights to step children); LAWS

OF 1973, 1st Ex. Sess., ch. 154, § 2 (extending beneficiary rights to adult

brothers). We conclude Deggs has not shown that Grant and Calhoun are

harmful. 9

Nor has she shown other reasons exist to abandon our precedent. We

have recently observed that "we can reconsider our precedent not only when

it has been shown to be incorrect and harmful but also when the legal

underpinnings of our precedent have changed or disappeared altogether."

WG. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters, 180

Wn.2d 54, 66, 322 P.3d 1207 (2014) (citing United States v. Gaudin, 515

U.S. 506,521,115 S. Ct. 2310, 132 L. Ed. 2d444 (1995)). In WG. Clark,

we had occasion to revisit whether the Employee Retirement Income

9 In contrast, 1his court could inflict considerable harm on settled expectations if we were to abandon the mle from Lord Campbell's Act now. "Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in relim1ce on a previous decision." Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197,202, 112 S. Ct. 560, 116 L. Ed. 2d 560 (1991). Mm1y entities that reasonably relied on our precedent to close the book on potential claims based on 1he passage of the underlying statute of limitations would now find themselves subject to potential liability based on a court opinion they were not parties to.

17 Deggs v. Asbestos Corp., et. al., No. 91969-1

Security Act of 1974 (ERISA) (29 U.S.C. §§ 1001-1461) preempted wage

claims under two Washington statutes. Id. at 57. Relying on then-good

precedent, we had previously found ERISA preemption. I d. (citing Puget

Sound Elec. Workers Health & Welfare Tr. Fund v. Merit Co., 123 Wn.2d

565, 870 P.2d 960 (1994); Int'l Bhd. ofElec. Workers, Local Union No. 46

v. Trig Elec. Constr. Co., 142 Wn.2d 431, 13 P.3d 622 (2000)). Since that

time, courts across the country had "come to a consensus that these types of

state law claims are not preempted by ERISA because they have only a

tenuous connection to ERISA plans." Id. (citing S. Cal. IBEW-NECA Tr.

Funds v. Standard Indus. Elec. Co., 247 F.3d 920,925-27 (9th Cir. 2001)).

While " [r]espect for precedence is strongest 'in the area of statutory

construction"' since the legislature is free to amend statutes to address

interpretations it disagrees with, we recognized that cases we had relied on

in Merit and Trig had been overruled, joined the emerging consensus, and

overruled our precedent. Hubbard v. United States, 514 U.S. 695, 711, 115

S. Ct. 1754, 131 L. Ed. 2d 779(1995)(quoting Illinois Brick Co. v. Illinois,

431 U.S. 720,736,97 S. Ct. 2061,52 L.Ed. 2d 707 (1977)); W.G. Clark

Constr., 180 Wn.2d at 58, 62 (citing Standard, 247 F.3d at 929). 10

10We caution that stare decisis is applied less rigorously in the area of constitutional interpretation. This is partially for the pragmatic reason that statutes are easier to amend than constitutions. If the legislature does not approve of a judicial interpretation of a

18 Deggs v. Asbestos Corp., et. al., No. 91969-1

In dissent at the Court of Appeals, Judge Dwyer found that that the

underpinnings of Calhoun and Grant had been undermined based on the

emerging understanding of the nature of statutes oflimitations. Deggs, 188

Wn. App. at 514-16. Relying on several recent cases, Judge Dwyer

contended that "statutes oflimitation do not begin to run until a party has the

right to apply to a court for relief-that is, once a claim accrues." Id. at 514-

15 (Dwyer, J., dissenting) (citing Huber, 176 Wn.2d at 511; Cambridge

Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wn.2d 475, 484-85, 209

P.3d 863 (2009); 1000 Va. Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566,

575, 146 P.3d 423 (2006)). Since Calhoun and Grant essentially ran the

statute oflimitations from a date that occurred before the cause accrued,

Judge Dwyer reasoned, they were incorrect. I d. Instead, in his view,

Calhoun and Grant treated the statute of limitations as a statute of repose

without any evidence the legislature intended to do so. Id. at 516 (Dwyer, J.,

statute, the legislature can simply amend the statute. See Hubbard, 514 U.S. at 711-12 (quoting Illinois Brick Co., 431 U.S. at 736). Amending constitutions is much more difficult. Compare WASIL CONST. art. II, §§ 1, 17-22, with WASH. CON ST. art. XXIII. But this pragmatism must give way "to the lessons of experience and the force of better reasoning" when our opinions interpreting our constitutions are found wanting because they fail to give adequate protection to constitutionally protected liberties or due respect to constitutionally mandated procedures. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,407-08, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting), overruled in part by Helvering v. Mountain Producers Corp., 303 U.S. 376, 387, 58 S. Ct. 623, 82 L. Ed. 907 (1938).

19 Deggs v. Asbestos Corp., et. a/., No. 91969-1

dissenting). Accordingly, in his view, the Calhoun/Grant rule should be

abandoned.

While there is some force to this argument, Grant did not hold that the

statute of limitations on a wrongful death suit can lapse before the wrongful

death cause of action accrued. Instead, it held there was an exception to the

rule that the wrongful death cause of action accrues at death: there must be

an existing cause of action in the deceased at the time of death, and this

principle applied to statutes of limitation. Grant, 181 Wash. at 580-81

(citing TIFFANY, supra,§ 124). 11

At least one of the underpinnings of Calhoun has been undermined. It

is now clear that a wrongful death cause of action accrues at the time of

death, not the time of the underlying injury to the deceased, as the authority

cited in Calhoun suggests. Compare Calhoun, 170 Wash. at 160 (citing

Horner, 111 Wash. 386), with White, 103 Wn.2d at 352-53. But we cannot

say that Calhoun and Grant themselves have been undermined since Grant

itself points to the strangeness of dismissing a tort case based on a statute of

limitations that lapsed before the cause of action accrued and clarifies that ·-------· 11 The dissent asserts that it has correctlx understood Grant and that we have not, based on the difference between a claim being barred and a claim being extinguished. Dissent at 11. We respectfully disagree with the dissent that we have misunderstood Grant. Specifically, Grant says that "this court has held that the [wrongful death] action accrues at the time of death," but that "[t]he rule, however, is subject to a well recognized limitation, namely, at the time of death there must be a subsisting cause of action in the deceased." 181 Wash. at 580-81.

20 Deggs v. Asbestos Corp., et. al., No. 91969-1

under Washington law, a wrongful death action does accrue at the time of

death. Grant, 181 Wash. at 580-81. Further, comis around the countryare

currently split on when the statute of limitations on a wrongful death action

accrues and on whether a judgment in a personal injury case arising out of

the same set of facts bars a subsequent wrongful death action. See M.C.

Dransfield, Time from Which Statute ofLimitations Begins to Run Against

Cause cif Action for Wrongful Death, 97 A.L.R.2d 1151, §§ 2-3 (1964)

(collecting accrual cases); Vitauts M. Gulbis, Annotation, Judgment in

Favor of, Or Adverse to, Person Injured as Barring Action for His Death, 26

A.L.R.4th 1264 (2015) (collecting prior judgment cases). As courts across

the countty are split on critical issues before us, this case is unlike W. G.

Clark, where every court interpreted ERISA preemption differently than we

had. While reasonable minds might have differed at the time Grant and

Calhoun were announced, we find that their underpinnings have not been

sufficiently undermined to justify abandoning them.

We find this case is squarely governed by Calhoun and Grant. Under

Calhoun and Grant, the statute of limitations on Sundberg's underlying

claim lapsed during his life and tltus this wrongful death suit was properly

dismissed.

CONCLUSION

21 Deggs v. Asbestos Corp., et. a/., No. 91969-1

A wrongful death "action accrues at the time of death" so long as

there is "a subsisting cause of action in the deceased" at the time of death,

subject to exceptions not present here. Grant, 181 Wash. at 580-81 (citing

TIFFANY, supra, § 124). We find insufficient cause to abandon this well-

established precedent at this time. We affirm the courts below.

22 Deggs v. Asbestos Corp., et. al., No. 91969-1

WE CONCUR:

23 Deggs v. Asbestos Corp. Limited, et al.

No. 91969-1

STEPHENS, J. (dissenting)-Judy Deggs, acting as personal representative,

brought a wrongful death action under RCW 4.20.010 within three years of the death

of her father, Ray Sundberg. The majority does not doubt that Deggs's statutory

action was timely filed, but it holds that any claim was barred because the statute of

limitations ran on her father's personal injury claims before he died. I respectfully

dissent. The majority's holding is contrary to Washington's wrongful death statute,

which was enacted to allow a free-standing cause of action for family members that

cannot arise before the death of their loved one. The majority's sole justification for

undermining the statute is reliance on precedent-more specifically, on the holding

of a single case we subsequently recognized was wrong and have never extended.

The majority agrees this precedent is incorrect, but sees no harm in perpetuating its Deggs v. Asbestos Corp. Limited, eta!., 91969-1 (Stephens, J., dissenting)

topsy-turvy illogic. I do. I would overrule Calhoun v. Washington Veneer Co., 170

Wash. 152, 15 P.2d 943 (1932), and disapprove of the dicta describing it in Grant v.

Fisher Flouring Mills Co., 181 Wash. 576, 581-82,44 P.2d 193 (1935) and Johnson

v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954). Adhering to the language

and purpose of RCW 4.20.01 0, I would clarify that the timeliness of an inter vivos

personal injury action by the decedent has no bearing on the viability of a wrongful

death action brought by the personal representative. The statute authorizes a claim

for wrongful death so long as the decedent's death was "wrongful" in the sense that

he had the right to bring a claim for injuries during life (regardless of whether he did

so), and so long as no prior judgment or settlement and release bars the claim. If

there are to be additional limitations on a wrongful death claim, the legislature, and

not this court, should impose them.

Since before statehood, Washington has provided a statutory cause of action

for wrongful death, in language substantially similar to current RCW 4.20.010:

When the death of a person is caused by the wrongful act, neglect, or default of another his or her personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony.

Though a wrongful death action "derives from the wrongful act causing the death,

rather than from the person of the deceased," Johnson, 45 Wn.2d at 423, it is entirely

-2- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

separate and distinct from any personal injury action that arises from the same set of

facts and survives to the decedent's estate under RCW 4.20. 060. See 6 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 31.01, at 331-32 (6th

ed. 2012) (WPI) (identifYing separate survival and wrongful death claims, the former

for injuries personal to the decedent and the latter for losses to specified

beneficiaries); see also Estate ofYaeko Otani v. Broudy, 151 Wn.2d 750, 755, 92

P.3d 192 (2004) (noting that "wrongful death and survival actions can be

distinguished in that the wrongful death statutes govern postdeath damages of the

deceased and the survival statutes govern predeath damages").

A wrongful death cause of action accrues, and the applicable statute of

limitations therefore commences, no sooner than upon the death of the personal

representative's decedent-the first point in time at which a plaintiff entitled to bring

the action may be appointed. See Dodson v. Cont'l Can Co., 159 Wash. 589, 596,

294 P. 265 (1930). The limitation period is further subject to a discovery rule. See

White v. Johns-Manville Corp., 103 Wn.2d 344,353,693 P.2d 687 (1985) (holding

action "'accrues' at the time the decedent's personal representative discovered, or

should have discovered, the cause of action," and that whether death marks that time

"is a question for the trier of fact"); accord Atchison v. Great W. Malting Co., 161

Wn.2d 372, 379, 166 P.3d 662 (2007) (refusing to toll statute oflimitations based

-3- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

on beneficiary's minority before being appointed personal representative, and

recognizing that "[w]hile wrongful death actions clearly accrue at the time of death,

thus commencing the time for filing, the statute of limitations can be tolled by

personal disability or minority''). 1

Liability for wrongful death arises only when death is "wrongful." A long

line of authority recognizes a limitation on the statutory cause of action, "that the

1 The majority observes that "courts around the country are currently split on when the statute oflimitations on a wrongful death action accrues and on whether a judgment in a personal injury case arising out of the same set of facts bars a subsequent wrongful death action." Majority at 19-20. I fail to see why this matters. Whatever the state of the law might be in other jurisdictions, there is no split of authority in Washington on the question of accrual. Our cases from Dodson through Atchison make clear that the statutory action under RCW 4.20.010 accrues at the time of death, subject to tolling. As for whether a prior recovery in a personal injury action may bar the claim, that is not an issue before us, contrary to the majority's suggestions. See majority at 21 (characterizing bar due to prior recovery as one of the "critical issues before us"); see also id. at 16 (purporting to leave open the possibility of overruling Calhoun in a different case, but not here, "where the deceased knew of the injury, sued, and either settled with or won against all the named defendants"). While the specter of "double recovery" floats about this case, nothing in the record shows that Sundberg recovered judgment against any of the defendants to this action or executed a contractual release in their favor. Nor have the defendants raised arguments based on issue or claim preclusion in this court. Moreover, whether this wrongful death action is barred under legal, contractual, or equitable principles based on Sundberg's prior recovery presents an entirely different question from whether it is barred by the rule in Calhoun. Finally, where the possibility of double recovery exists between a claim personal to the decedent and a wrongful death claim, we have addressed it by tailoring damages, not by barring a timely wrongful death claim. See Criscuola v. Andrews, 82 Wn.2d 68, 70-71, 507 P.2d 149 (1973) (refusing to disallow overlapping survival and wrongful death actions, and instead avoiding double recovery by limiting lost income in survival action to net accumulations); WPI 31.01 cmt. at 336 (recognizing that same recovery may be allowed under survival and wrongful death statutes and "[c]are must be talcen to avoid allowing a double recovery").

-4- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

wrongful act or default must be of such character as would have entitled the injured

person to maintain an action and recover damages, had not death ensued; stated

conversely, if the deceased never had a cause of action, no right of action accrues

under the wrongful death statute." Upchurch v. Hubbard, 29 Wn.2d 559, 564, 188

P.2d 82 (1947) (citing Ryan v. Poole, 182 Wash. 532, 47 P.2d 981 (1935)). This

limitation expresses the requirement that the death be actionable, i.e., that there be a

"subsisting cause of action." See, e.g., Ostheller v. Spokane & Inland Empire R.R.

Co., 107 Wash. 678, 688, 182 P. 630 (1919) (no cause of action due to decedent's

contributory negligence); Hart v. Geysel, 159 Wash. 632, 633, 636-37, 294 P. 570

(1930) (no cause of action where decedent consented to prize fight); Welch v.

Creech, 88 Wash. 429, 435, 444, 153 P. 355 (1915) (no cause of action where

defendant acted in self-defense). The court in Johnson described this category of

cases imposing a limitation on wrongful death actions as distinct from a second

category involving "situations in which, after receiving the injuries which later

resulted in death, the decedent pursued a course of conduct which makes it

inequitable to recognize a cause of action for wrongful death." 45 Wn.2d at 422-23.

Into this category fall cases in which the decedent during life pursued a personal

injury action and gave the wrongful death defendant "an effective release and

satisfaction." Jd. at 423 (citing Brodie v. Wash. Water Power Co., 92 Wash. 574,

-5- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

159 P. 791 (1916)). Notably, the court described this category as based on "equitable

principles" rather than the wrongful death statute itself. I d. Johnson placed Calhoun

in the second category, deriving the "rule" from Calhoun that the majority applies

here: no action for wrongful death can be brought if the statute oflimitations on any

personal injury action the decedent could have brought ran before his death. See id.

This characterization of Calhoun was certainly an exercise in revisionist

history. The actual holding in Calhoun was that the wrongful death claim was

dependent on the personal injury claim and was untimely:

Appellant did not have a cause of action against respondent because of the death of her husband, but because of the negligence of respondent. The negligence was the cause; the death was the result. Under the statute, the claim for damages accrued, if at all, at the time of the injury to Claude Calhoun.

170 Wash. at 160.

Almost immediately, this court in Grant recognized the error in Calhoun's

reasonmg:

Respondent contends that [Calhoun] lays down the rule that the action for wrongful death accrues when the deceased person sustained injury through the negligence of the party charged. There is language in the opinion susceptible of that construction, but to so construe the decision brings it in direct conflict with the case of Dodson .... In view of the facts in the Calhoun case, we think that decision can, and should, be so interpreted as to avoid conflict with the decision in the Dodson case.

-6- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

181 Wash. at 581. Thus, the court in Grant distinguished Calhoun on its facts

instead of overruling it. 2 In so doing, it placed Calhoun, as well as Brodie, in the

category of cases requiring a "subsisting cause of action," and made no reference to

any category of cases based on "equitable principles." !d. at 580-81. That further

revision of categories and recasting of the rule in Calhoun came in Johnson, perhaps

in an attempt to make Grant as well as Calhoun square with our precedent. Johnson,

45 Wn.2d at 422-23.

By the time the rule in Calhoun reached the Court of Appeals below,

confusion about how to explain it was apparent. Lacking a consistent description,

the court took a new tack and characterized the rule as resting on "preemption":

Here, under Calhoun and Grant, the accrual of the wrongful death action was preempted either by the earlier judgment against ACL [Asbestos Corporation Limited3] or the expiration of the statute of limitations on Sundberg's underlying claims against the rest of the respondents.

2 The court in Grant said Calhoun was factually similar to Flynn v. New York, New Haven & Hartford R.R. Co., 283 U.S. 53, 51 S. Ct. 357, 75 L. Ed. 837 (1931), the only difference being that the decedent in that case died without bringing any personal injury action. Grant, 181 Wash. at 582. The court did not consider that Flynn, which concerned a statute quite different from our wrongful death act, rested on a determination that the wrongful death claim was derivative of the personal injury claim-a proposition this court has rejected. See Johnson, 45 Wn.2d at 423-24. 3 As noted, the record does not show that judgment was entered against Asbestos Corporation Limited. Deggs represents that there was no judgment, nor a release. Deggs' Suppl. Br. at 2 n.l.

-7- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

Deggs v. Asbestos Corp. Ltd., 188 Wn. App. 495, 508, 354 P.3d 1, review granted,

184 Wn.2d 1018, 361 P.3d 746 (2015); see also id. at 500 (describing Calhoun and

Grant as holding that "a decedent's inaction as to his claims during his lifetime can

preempt the accrual of a personal representative's wrongful death cause of action").

It is important to trace this path since Calhoun to underscore that we do not

know what its rule is actually premised on-whether accrual, equity, preemption, or

something else. The majority, understandably, does not attempt to settle the

confusion or to justify the correctness of the rule ascribed to Calhoun. 4 The majority

admits that Calhoun, Grant, and Johnson erroneously "grafted onto our wrongful

death statute broadly procedural limitations that the English Parliament, not our

legislature, adopted." Majority at 15. 5 But, the majority's disinterest in making

sense of Calhoun, Grant, and Johnson makes it all the more remarkable to insist on

adhering to this precedent. It rings hollow to suggest we are dealing with "well-

4 I believe the majority adds to the confusion by simultaneously rejecting Calhoun's view that a wrongful death claim may accrue before death and embracing "an exception to the rule that the wrongful death cause of action accrues at death" premised on Grant, but contrary to Johnson. Majority at 20. 5 As the court in Johnson noted, former wrongful death statutes contained language traceable to the Fatal Accidents Act 1846, 9 & 10 Viet. c. 93 (Eng.) (Lord Campell's Act) limiting claims to "cases where the decedent 'might have maintained an action had he lived, against the latter [tort-feasor], for an injury caused by the same act or omission.' Laws of 1873, chapter 58, § 656, p. 169; Code of 1881, chapter 61, § 717, p. 149." 45 Wn.2d at 426 (alteration in original). We described the removal of this exclusionary language by the legislature as a "deliberate act." !d. at 427.

-8- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

established precedent," majority at 22, and are being asked to abandon a clear

limitation on wrongful death claims adopted almost a century ago. See majority at 2.

When all is said and done, this court has been unable to describe the Calhoun "rule"

the same way twice. And until today, we have never applied it. The "settled

expectations" the majority seeks to protect, majority at 17 n.9, simply do not exist.

I would put an end to Calhoun's nonsensical rule right now. Our approach to

abandoning erroneous precedent is more flexible than the majority allows. "[W]e

can reconsider our precedent not only when it has been shown to be incorrect and

harmful but also when the legal underpinnings of our precedent have changed or

disappeared altogether." W.G. Clark Constr. Co. v. Pac. Nw. Reg'! Council of

Carpenters, 180 Wn.2d 54, 66,322 P.3d 1207 (2014). We may reconsider precedent

not only when other courts have interpreted a matter differently than we have, see

majority at 21, but also when our own understanding of the law has changed. See

Ralph v. Dep 't ofNat. Res., 182 Wn.2d 242, 343 P.3d 342 (2014).

Our understanding of the interplay between inter vivos personal !llJury

actions, survival actions, and wrongful death actions has evolved since Calhoun,

particularly with respect to questions of accrual and application of the statute of

limitations. We have since recognized that the discovery rule applies to wrongful

death claims and that its application turns on what the personal representative--not

-9- Deggs v. Asbestos Corp. Limited, eta!., 91969-1 (Stephens, J., dissenting)

the decedent-knew or should have known in order to bring suit. White, 103 Wn.2d

at 353; see Atchison, 161 Wn.2d at 380 (holding the tolling statute applies only to

the person entitled to bring the wrongful death action, the personal representative).

More generally, recent case law has clarified the nature of statutes of

limitations as distinguished from statutes of repose. "A statute of limitation bars a

plaintiff from bringing an accrued claim after a specific period of time. A statute of

repose terminates the right to file a claim after a specified time even if the injury has

not yet occurred." Wash. State Major League Baseball Stadium Pub. Facilities Dist.

v. Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821

(2013) (Wash. State MLB). "Usually, a cause of action accrues when the party has

the right to apply to a court for relief." 1000 Va. Ltd. P'ship v. Vertecs Corp., 158

Wn.2d 566, 575, 146 P.3d 423 (2006). Because only the personal representative has

the right to bring a wrongful death claim, the claim cannot accrue before death. As

Judge Stephen J. Dwyer wryly noted in his dissent below, there can be no personal

representative "prior to the decedent actually bothering to die." Deggs, 188 Wn.

App. at 513 n.8. Because a statute oflimitations cannot begin to run before a claim

accrues, "Calhoun and Grant are inconsistent with more recent Supreme Court

decisions, which have made clear that statutes of limitation cannot be applied so as

to bar claims that have not yet accrued." Id. at 515 (Dwyer, J., dissenting); cf

-10- Deggs v. Asbestos Corp. Limited, eta!., 91969-1 (Stephens, J., dissenting)

RESTATEMENT (SECOND) OF TORTS§ 899 cmt. c (AM. LAW INST. 1979) ("since the

cause of action does not come into existence until the death, it is not barred by prior

lapse of time, even though the decedent's own cause of action for the injuries

resulting in death would be barred").

The majority insists that the interpretation of the Calhoun rule in Grant does

not run afoul of our modem statute oflimitations decisions because

Grant did not hold that the statute oflimitations on a wrongful death suit can lapse before the wrongful death cause of action accrued. Instead, it held there was an exception to the rule that the wrongful death cause of action accrues at death: there must be an existing cause of action in the deceased at the time of death, and this principle applied to statutes of limitation.

Majority at 19-20. In fact, this was not the holding in Grant. The court never

suggested the wrongful death claim accrued at some point other than upon death.

See Grant, 181 Wash. at 580. And, it emphatically recognized that the statute of

limitations did not begin to run until that time. !d. It disapproved of Calhoun's

language to the contrary. !d. at 581. The wrongful death claim in Grant was

undoubtedly timely.

Instead, what Grant held-erroneously based on its new interpretation of

Calhoun-is that a wrongful death claim is entirely extinguished if the statute of

limitations ran on an accrued personal injury claim before the decedent's passing.

!d. at 581-82. Viewed in light of the language of our modem cases, this describes a

-11- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

judicially imposed statute of repose on wrongful death claims. "A statute of repose

terminates the right to file a claim after a specified time even if the injury has not yet

occurred." Wash. State MLB, 176 Wn.2d at 511. If a claim does not accrue within

the period ofthe statute of repose, the prospective plaintiffloses the right to file that

claim. See id.; 1000 Va., 158 Wn.2d at 575.

By embracing the Calhoun rule as interpreted in Grant, the majority for the

first time applies this judicially created statute of repose to cut off a wrongful death

claim before it accrues. 6 This is harmful on multiple levels. First, courts have no

authority to create statutes of repose. Only the legislature, able to fully consider the

social costs and benefits of cutting off meritorious claims in favor of finality, may

do so. It has not imposed a repose period on wrongful death claims. To the contrary,

the legislature early on removed limiting language from the original wrongful death

statutes that tied wrongful death claims to whether the decedent might have

6 Even as the majority applies Calhoun today to dismiss Deggs's wrongful death action, it wants to leave open the possibility that it would not apply the same rule to facts the court in Calhoun contemplated. Compare majority at 16 (suggesting rule may be harmful where no personal injury claim is brought and dependents are left destitute), with Calhoun, 170 Wn.2d at 154, 160 (aclmowledgingplaintiff's allegation that he didnotlmow dangerous character of exposure by date claim accrued; dismissing based on accrual). See also Grant, 181 Wash. at 581-82 (suggesting no difference between Calhoun (personal injury claim brought) and Flynn (no personal injury claim brought)). The majority's limiting language appears to be merely palliative dicta.

-12- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

maintained an action had he lived. See Johnson, 45 Wn.2d at 426. We should adhere

to the statute's plain language.

Second, consider the inherent harm in cutting off a remedial cause of action

for dependents based on nothing more than their loved one's inaction during life.

See RCW 4.20.010; Gray v. Goodson, 61 Wn.2d 319, 324, 378 P.2d 413 (1963)

(noting "that the [wrongful death] statute, being remedial in nature, is to be liberally

construed"). This is the unjust consequence of extending the "subsisting cause of

action" notion beyond the relevant question of whether governing law gives the

decedent the right to sue for injuries during his lifetime, to embrace the irrelevant

question of whether he timely did so. Nothing in the language of the wrongful death

statute expresses this limitation. The only requirement is that the death be

"wrongful." Ryan, 182 Wash. at 535-38 (explaining the subsisting cause of action

requirement traces to "'wrongful act or neglect'" language in the statute (internal

quotation marks omitted) (quoting Ostheller, 107 Wash. at 681)).

It is telling that the majority does not adopt Johnson's description of Calhoun

and Grant as reflecting "equitable principles," Johnson, 45 Wn.2d at 423, because

there is nothing equitable in this. I can think of no other context in which the mere

failure to bring suit is regarded as blameworthy conduct comparable to seeking a

second recovery after the defendant has been released. See id. (describing Brodie,

-13- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

92 Wash. 574, as equitable bar to claim where decedent gave defendant effective

release and satisfaction). Nor am I aware of any other context in which equity has

been relied on to shorten, rather than extend, a statutory limitation period, much less

to extinguish a cause of action before it can accrue.

When we set aside the distracting worry about the possibility of Deggs

obtaining a double recovery, see supra note 1, and focus on the rule that is being

applied to dismiss this wrongful death claim, it is apparent that the majority's

holding perpetuates a significant injustice. Barring a wrongful death claim based on

expiration of the statute of limitations on a separate personal injury claim the

decedent could have brought during life contradicts RCW 4.20.010 and undermines

its remedial purpose. The rule derived from Calhoun, which the majority applies for

the first time in this case, is both incorrect and harmful, and should be put to rest.

I would overrule Calhoun and disapprove of the dicta recasting it in Grant

and Johnson. Deggs' s wrongful death action is not barred by expiration of the statute

oflimitations applicable to inter vivos personal injury claims. The action was timely

commenced within three years of Sundberg's death. 7 Whether the action, or claims

7 The parties agree that the general, three-year limitation period in RCW 4.16.080 applies in this case. Washington's wrongful death act does not contain its own statute of limitations. In a different case pending before this court, we must decide whether the

-14- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

against certain defendants, are barred under other principles is not before us. If there

are grounds to disallow Deggs's wrongful death action based on Sundberg having

already recovered from any of these defendants, I trust those arguments can either

be addressed on remand or have already been addressed or abandoned. I would

reverse the Court of Appeals and remand to the trial court for further proceedings.

special statute oflimitations in RCW 4.16.350 applies to wrongful death claims involving health care negligence. See Fast v. Kennewick Pub. Hosp. Dist., 185 Wn.2d 1001, 366 P.3d 1244 (2016) (granting review).

-15- Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

-16-