Geraldine Barabin, Pr Of Estate Of Barabin v. Metalclad Insulation

• Court: Court of Appeals of Washington
• Decided: November 9, 2015
• Docket: 72626-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

GERALDINE BARABIN, as Personal No. 72626-9-1 Representative for the Estate of (consolidated with HENRY BARABIN, Deceased, No. 72720-6-1, No. 72721-4-1, No. 72722-2-1, No. 72724-9-1, Respondent, and No. 72725-7-1)

v.

ASTENJOHNSON, INC.; GOULDS PUMPS, INC.; GRINNELL LLC (fka GRINNELL CORPORATION, aka GRINNELL FIRE); HARDER MECHANICAL CONTRATORS, INC.; KEYSTONE CONTRACTING, INC. METALCLAD INSULATION CORPORATION; METROPOLITAN LIFE INSURANCE COMPANY; PARAMOUNT SUPPLY COMPANY; SCAPA DRYER FABRICS, INC.; SEQUOIA VENTURES, INC.; TRECO UNPUBLISHED OPINION CONSTRUCTION SERVICES, INC.; UNITED SUPPLY COMPANY; WRIGHT SCHUCHART HARBOR; and FIRST DOE through ONE HUNDREDTH DOE, FILED: November 9, 2015

Appellants.

Verellen, J. — This court recently held in Deqqs v. Asbestos Corp. Ltd.1 that

there is no viable cause of action for wrongful death once an individual allows the

statute of limitations to expire on his underlying personal injury claim during his lifetime.

After Henry Barabin died, his wife filed a wrongful death action against defendants that

1 188 Wn. App. 495, 354 P.3d 1 (2015) (petition for review pending). No. 72626-9-1/2

Barabin had not sued for personal injuries during his lifetime. We conclude Degqs

controls. Because Henry Barabin allowed the statute of limitations to expire on his

underlying personal injury claim during his lifetime, his personal representative has no

viable cause of action for wrongful death against these new defendants. Accordingly,

we reverse.

FACTS

The material facts are undisputed. In 2006, Henry Barabin and his wife,

Geraldine, successfully sued two defendants for injuries related to Henry's asbestos

exposure in the workplace.2 But the judgment was ultimately vacated and remanded to federal district court, where that case remains pending. In 2014, two years after Henry

passed away, Geraldine, as personal representative for his estate, filed a wrongful death claim in King County Superior Court against several new defendants. Before this court issued its opinion in Deqgs, the superior court denied the new

defendants' motions for summary judgment, ruling that the expiration ofthe statute of limitations on Henry's underlying personal injury action did not bar Geraldine's wrongful death claim.

This court granted discretionary review.

ANALYSIS

This appeal presents the question whether the expiration ofthe statute of limitations on an individual's personal injury action during his lifetime can preclude a

wrongful death action based upon the underlying personal injury action.

2 Barabin v. AstenJohnson, Inc., C07-1454RSL, 2010 WL 1506430, at *1 (W.D. Wash. Apr. 14,2010). No. 72626-9-1/3

Under substantially the same facts and same legal arguments, this court recently

held that there is no viable cause of action for wrongful death once an individual allows

the statute of limitations to expire on his underlying personal injury claim during his

lifetime: "Wrongful death claims derive from the wrongful act and do not accrue absent

a valid subsisting cause of action in the decedent at the time of his death."3

We conclude Deqgs controls here. Henry passed away over five years after he

and Geraldine filed his original personal injury complaint. Neither Henry nor Geraldine

filed any claims against the new defendants related to his injuries within the three-year

statute of limitations for the personal injury claims. As a result, there was "no subsisting

cause of action in the deceased" at the time of Henry's death. We note that the trial

court did not have the benefit of the Deggs decision at the time it denied the motions for

summary judgment. Accordingly, his personal representative has no viable cause of

action under the wrongful death statute against the new defendants.

WE CONCUR:

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3 Deggs, 188 Wn. App. at 497.