Kellogg v. National Railroad Passenger Corporation

• Court: District Court, W.D. Washington
• Decided: March 31, 2021
• Docket: 3:20-cv-05664
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 MARY A KELLOGG, as the Personal CASE NO. C20-5664BHS 8 Representative of the ESTATE OF JAMES HAMRE, ORDER DENYING MOTION TO 9 DISMISS AND NOTIFYING Plaintiff, PARTIES OF INTENT TO 10 v. CERTIFY QUESTIONS 11 NATIONAL RAILROAD PASSENGER CORPORATION, et al., 12 Defendants. 13

14 THIS MATTER is before the Court on Defendant Amtrak’s Motion to Dismiss, 15 Dkt. 6, and Amtrak’s Motion for Judicial Notice, Dkt. 7. 16 The motions and the case involve the effects of the July 2019 revisions to 17 Washington’s “Survival of Actions” statute, RCW Chapter 4.20. Specifically, the 18 Washington Legislature eliminated the long-standing rule that a decedent’s estate’s 19 “second tier” beneficiaries (parents and siblings) did not have standing to assert a 20 wrongful death claim unless they were dependent upon the decedent for financial 21 support. Under the amended statute, if there are no first tier beneficiaries, an adult 22 1 decedent’s parents and siblings may assert a wrongful death claim even if they were not 2 financially dependent on the decedent. The revised statute’s official notes explain that it 3 applies retroactively to “all claims that are not time-barred, as well as any claims pending

4 in any court on July 28, 2019.” Official Note to RCW 4.20.020 (2019), c.150. See also 5 Dkt. 10, at Ex. A, Certificate of Enrollment of Substitute Senate Bill 5163 (“This act is 6 remedial and retroactive and applies to all claims that are not time barred, as well as any 7 claims pending in any court on the effective date of this section.”). 8 James Hamre died as a result of the December 18, 2017 derailment of Amtrak 501

9 near DuPont, Washington. He had no first-tier beneficiaries. Under former RCW 10 4.202.020, he had only one second tier beneficiary, his mother, Carolyn.1 In 2018, his 11 Estate’s Personal Representative settled with Amtrak and executed a broad release. The 12 Washington Legislature revised RCW 4.20.020 a year later, making James’s siblings 13 eligible to assert wrongful death claims notwithstanding their lack of financial

14 dependency on him, and, perhaps, notwithstanding the prior settlement. Two of those 15 siblings, Mary and Michael, now assert state law wrongful death claims under the revised 16 statute, invoking the Court’s diversity jurisdiction. Dkt. 1. 17 Amtrak seeks dismissal, arguing that the settlement and the Personal 18 Representative’s Release bar the new claims—on the new statute’s effective date, the

19 Estate no longer had any claims that were “not time-barred,” and none were “pending in 20 any Court.” See Dkt. 6 at 8. It argues that Washington law permits only a single wrongful 21

22 1 This Order refers to the Hamre family members by their first names for clarity. 1 death action, even where there are multiple claimants. Amtrak argues that the new statute 2 is substantive, not remedial, and cannot be applied retroactively to deprive it of vested 3 rights. Indeed, it argues retroactive application in this context would violate Due Process

4 and the Contracts Clause under both the Washington and United States Constitutions. 5 Mary argues that Amtrak’s motion is not properly brought under Fed. R. Civ. P. 6 12(b)(6) because she has plainly stated a plausible wrongful death claim under the new 7 statute. She argues the Release did not bind James’s siblings because the then-Personal 8 Representative (her brother Thomas) did not have the authority or the intent to waive

9 claims that did not exist when he released them—Mary and Michael simply were not 10 parties to the settlement. She emphasizes that wrongful death claims do not belong to the 11 Estate and do not derive from it. Amtrak and the former Personal Representative agreed 12 to settle only the Estate’s survival action and Carolyn’s wrongful death action, and there 13 was no consideration for any release of the siblings’ claims. Mary argues that it is not

14 unusual or impermissible for a tortfeasor to settle with some but not all claimants and that 15 Amtrak’s constitutional challenge to the new statute is improperly asserted and ultimately 16 ineffective. 17 It is not clear whether the Washington Legislature anticipated that one potential 18 effect of the statute’s amendment would be the assertion of wrongful death claims by

19 newly authorized second tier beneficiaries against tortfeasors that had already settled 20 with, and been released by, the decedent’s estate. Because this ramification of the 21 amendment presents novel questions of state law, the Court will certify them to the 22 1 Washington State Supreme Court, as discussed below. Until that Court resolves the core 2 issue, Amtrak’s Motion to Dismiss is DENIED. 3 I. BACKGROUND

4 James Hamre, an adult, died as the result of the December 18, 2017 derailment of 5 Amtrak 501. James was not married and no children. His Estate thus had no “first tier” 6 beneficiaries under former or current RCW 4.20.020. He was survived by his mother, 7 Carolyn, and siblings Thomas, Mary, and Michael. 8 Former RCW 4.20.020 did not permit wrongful death claims on behalf of second

9 tier beneficiaries unless the second-tier beneficiaries were dependent on the decedent for 10 support (and were residents of the United States): 11 Every such action shall be for the benefit of the wife, husband, state registered domestic partner, child or children, including stepchildren, of the 12 person whose death shall have been so caused. If there be no wife, husband, state registered domestic partner, or such child or children, such action may 13 be maintained for the benefit of the parents, sisters, or brothers, who may be dependent upon the deceased person for support, and who are resident 14 within the United States at the time of his or her death.

15 Former RCW 4.20.020; see also Philippides v. Bernard, 151 Wn.2d 376, 393–94 (2004) 16 (confirming that the parents of adult decedents were not eligible to assert wrongful death 17 claims unless they were financially dependent on the decedent). 18 Carolyn was financially dependent on James at the time of his death and was 19 therefore the sole heir of his Estate—the only person eligible to assert a wrongful death 20 claim under the version of the statute in effect when James died. Dkt. 8-2. Thomas, Mary, 21 and Michael did not depend on James for support and were thus prohibited from asserting 22 1 wrongful death claims under the version of the statute in effect at the time James died 2 (and at the time Thomas settled the Estate’s and Carolyn’s claims and released Amtrak). 3 Carolyn declined to act as the Estate’s Personal Representative, and Thomas was

4 appointed in her stead. Yates Dec., Dkt. 8-1. In April 2018, James’s Estate and its 5 beneficiaries, through Thomas, reached an out-of-court settlement with Amtrak. Dkt. 8-8. 6 The Estate received an undisclosed sum in exchange for a full release of all conceivable 7 claims arising from James’s death, known or unknown.2 On July 18, 2018, Carolyn 8 received 100% of the distributive share of the settlement, and Thomas confirmed that the

9 administration of James’s Estate was complete the same day. Dkt. 8-9. 10 More than a year later, the Legislature revised Chapter 4.20 RCW, including RCW 11 4.20.020. Under the amended statute, if there are no first tier beneficiaries, second tier 12 beneficiaries can maintain a wrongful death action even if they are not dependent on the 13 decedent (and even if they do not reside in the United States):

14 Every action under RCW 4.20.010 shall be for the benefit of the spouse, state registered domestic partner, child or children, including stepchildren, 15 of the person whose death shall have been so caused. If there is no spouse, state registered domestic partner, or such child or children, such action may 16 be maintained for the benefit of the parents or siblings of the deceased.

2 Thomas broadly released “Any and all claims, demands, actions, causes of action of 18 every kind, verdicts, judgments and awards of every kind whatsoever, for any injuries or damages, loss of property or properly damage, any other type of damages, costs, expenses, 19 attorneys’ fees, contribution, indemnity, reimbursement, compensation of any kind, and losses now existing, or which may hereinafter arise, whether known or unknown, sustained or received by the Releasor and Decedent James H. Hamre, as a passenger on Amtrak Train 501 at or near 20 Dupont, Washington on December 18, 2017[.]” Dkt. 8-8 at 2. Mary’s contention that the Release was not broad enough to cover her claims is not 21 persuasive. The issue is whether the statutory amendment created new claims notwithstanding the settlement and release, not whether the Release should have been more specific. 22 1 RCW 4.20.020.

2 In April 2020, Thomas petitioned to re-open James’s Estate to permit Mary and 3 Michael to assert wrongful death claims as beneficiaries under the new statute. The Court 4 Commissioner granted that request. Dkt. 8-14. In May 2020, Thomas resigned as the 5 Estate’s Personal Representative, and Mary was named Personal Representative of the re- 6 opened Estate in his place. Dkts. 8-15, 8-16. 7 In July 2020 Mary sued Amtrak on behalf of herself and Michael, asserting 8 wrongful death claims arising out of James’s death. Dkt. 1. Thomas did not assert a

9 claim, and any claims on his behalf are now presumably time-barred.3 10 II. DISCUSSION 11 The Court will take Judicial Notice of the Referenced Documents. 12 As an initial matter, Amtrak’s Request for Judicial Notice of James’s probate file, 13 the prior settlement, and the legislative history of the 2019 amendments to Chapter 4.20

14 RCW, Dkt. 7, is GRANTED. There can be no doubt about the authenticity of these 15 documents, and despite her objections, Mary relies on several of them in her complaint, 16 Dkt. 1, and her Response, Dkt. 9. These documents are cited above, and are attached as 17 Exhibits to the Yates Declaration, Dkt. 8. The Court also takes Judicial Notice of the 18 Certificate of Enrollment of Substitute Senate Bill 5163, attached to the Nivison

19 Declaration, Dkt. 10, at Ex. A. 20 3 In the Release, Thomas “represent[ed] and warrant[ed] that no other person or entity 21 has, or has had, an interest in the claims[,]” and that he “ha[d] the sole and exclusive authority to execute” the release. Dkt. 8-8, ¶ 11. He did not agree to indemnify Amtrak from the assertion of 22 other claims. 1 The Court will not convert this motion to one for summary judgment or permit 2 additional discovery. The relevant facts are not disputed; they are not disputable. And, in 3 any event, Amtrak’s Motion to Dismiss is denied. The Court is instead Certifying to the

4 Washington Supreme Court a novel question of local law created by the new statute and 5 the unusual, if not unique, context of this case. The issue presented is purely one of law. 6 The Court intends to Certify the Core Question to the Washington Supreme Court. 7 The Court will accept Mary’s assertion that the Release did not apply to claims 8 that did not then exist and that the Legislature consciously chose to retroactively permit 9 the assertion of new wrongful death claims by newly eligible second tier beneficiaries, so 10 long as they were not time-barred. But that is not the end of the inquiry in a case where 11 all claims arising from the death have been fully and fairly settled. 12 Amtrak argues that permitting Mary and Michael to assert wrongful death claims 13 after Thomas released it from all claims arising from James’s death, known or unknown, 14 would obviate the release and unfairly and unconstitutionally deprive Amtrak of its 15 vested rights. Thus, it argues, the new statute reflects a substantive change, not a remedial 16 one, and it cannot be applied retroactively. 17 RCW 4.20.020’s financial dependency and residency4 requirements have long 18 been considered in some quarters to be unfair. Nevertheless, the former statute survived a 19 robust challenge in court. See Philippides, 151 Wn.2d at 382, 393–94 (answering in the 20

21 4 Proponents of the amendment argued that the residency requirement was originally imposed to protect the employers of Chinese railroad laborers who died on the job from 22 wrongful death claims by their overseas families. Dkt. 8-11. 1 affirmative the following Certified Question from this Court: “Must a parent of an adult 2 child have been financially dependent upon that child as a condition precedent to 3 commencing suit for the child’s injury or death pursuant to Washington’s wrongful death

4 and survival statutes?”). 5 The Washington Legislature was apparently not moved to amend these 6 requirements until the aftermath of the 2015 “Ride the Ducks” accident. There, an 7 amphibious boat collided with a bus, killing and injuring many international students and 8 tourists. The victims’ survivors could not assert wrongful death claims because they were

9 not United States residents. The Washington Legislature amended the statute in 2019, in 10 an effort to fill these both of these “holes” in the statute. See Dkts. 8-10, 8-11. 11 The Legislature characterized the statute as “remedial,” but as Amtrak 12 persuasively points out, it is well-settled that “an amendment is curative and remedial if it 13 clarifies or technically corrects an ambiguous statute without changing prior case law

14 constructions of the statute.” Dkt. 6 at 13 (quoting Cameron v. Atlantic Richfield Co., 8 15 Wn. App. 2d 795, 807–08 (2019)); see also Barstad v Stewart Title Guar. Co., 145 16 Wn.2d 528, 537 (2002). A statute may not be retroactively applied if its effect is instead 17 to deprive one of vested rights because doing so would violate due process. See In re 18 F.D. Processing, 119 Wn.2d 452, 463 (1992) (“An amendment is deemed remedial and

19 applied retroactively when it relates to a practice, procedure, or remedies, and does not 20 affect a substantive or vested right.”). 21 Amtrak cites persuasive authority from Missouri and Wisconsin holding in 22 analogous contexts that amended wrongful death statutes could not be applied 1 retroactively to deprive the tortfeasor of vested rights in the form of a prior settlement of 2 all claims arising from the tort. Doing so, these courts held, would unfairly overturn 3 settled expectations and violate Due Process under the state and federal Constitutions.

4 See Kinder v. Peters, 880 S.W.2d 353 (Mo. Ct. App. E.D. 1994); Nieman v. Am. Property 5 & Casualty Co., 613 N.W.2d 160 (2000). 6 Amtrak also argues persuasively that the Washington wrongful death statute 7 permits only a single action arising from a tortious death. Mary counters that this is the 8 only wrongful death action arising from James’s death, but her position ignores the fact

9 that Amtrak settled, promptly, in an effort to avoid litigation—consistent with the 10 laudable and clear public policy goal of encouraging settlements. City of Seattle v. Blume, 11 134 Wn.2d 243, 258 (1997) (“The express public policy of this state is to encourage 12 settlement.”). The law “strongly favors” settlement. Seafirst Ctr. Ltd. P’hip v. Erickson, 13 127 Wn.2d 355, 365 (1995) (citing Seafirst Ctr. Ltd. P’ship v. Kargianis, Austin &

14 Erickson, 73 Wn. App. 471, 476 (1994)). 15 It would be an odd and counter-intuitive result if, as Mary suggests, Amtrak’s 16 position would have been stronger if it had forced Thomas to litigate his claims, lost, and 17 paid the verdict rather than agreeing to promptly settle without litigation. Amtrak 18 accurately points out that it faces the re-litigation of many of its prior settlements if the

19 new class of second tier beneficiaries is free to sue notwithstanding a prior settlement and 20 release. And it is clearly not the only tortfeasor potentially facing newly-minted claims 21 arising from torts that have already been settled and resolved. 22 1 The application of the new statute in this context presents a novel question of 2 Washington law best resolved by the Washington Supreme Court. RCW 2.60.030 is the 3 vehicle through which federal courts may ask the Washington Supreme Court to rule

4 upon unanswered questions of local law: 5 When in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to 6 dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer 7 the question of local law involved and the supreme court shall render its opinion in answer thereto. 8 Certification preserves important judicial interests of efficiency and comity. The 9 certification process saves “time, energy, and resources and helps build a cooperative 10 judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). 11 The Court therefore proposes Certification of the following questions to the 12 Washington Supreme Court: 13 1. Is the revised RCW 4.20.020 remedial such that it applies retroactively to 14 permit second tier beneficiaries who were not eligible to assert wrongful death claims at 15 the time of the decedent’s death, or at the time the Estate’s Personal Representative 16 settled all claims arising out of the death, to assert wrongful death claims notwithstanding 17 the tortfeasor’s settlement with, payment to, and release by, the Personal Representative, 18 so long as such new claims are not time-barred? 19 2. If so, does the application of the revised RCW 4.20.020 to permit such 20 claims in this context affect Amtrak’s vested substantive rights, thus violating the 21 22 1 Washington Constitution’s Due Process (Wash. Const., art. I, § 3) or Contracts (Wash. 2 Const., art. I, § 23) Clauses? 3 The parties are invited to respond to the Court’s proposal, and to consult and

4 submit revised or alternative questions, either together or separately, within ten days of 5 this Order. The Court will then decide whether to Certify Question(s) to the Washington 6 Supreme Court, and Stay this case pending the Answer. Amtrak’s Motion to Dismiss, 7 Dkt. 6, is DENIED. 8 IT IS SO ORDERED.

9 Dated this 31st day of March, 2021. A 10 11 BENJAMIN H. SETTLE 12 United States District Judge

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