Washington Supreme Court Affirms That Expiration of the Statute of Limitations on Personal Injury Claims Bar Subsequent Wrongful Death Action

Gavel and old clockOn October 6, 2016, the Washington Supreme Court held that the expiration of a personal injury claim during the injured party’s lifetime similarly bars any wrongful death action based on the same injury.  Deggs v. Asbestos Corp. Ltd., No. 91969-1, ___ Wn.2d ___ (Oct. 6, 2015).  The Court followed stare decisis to affirm the trial court’s order granting summary judgment for all defendants on grounds that the running of the limitations period on a decedent’s personal injury claim prior to death also operated to bar the personal representative from bringing a claim under the state wrongful death statute.  The Court expressly declined to overrule several prior Washington Supreme cases adopting such a rule.

Background Facts

Decedent Roy Sundberg was exposed to asbestos while working for various employers from 1942 to 1989.  After being diagnosed with multiple diseases, Mr. Sundberg and his wife filed an asbestos lawsuit against numerous defendants in 1999.  In 2001, their claims were tried to verdict in which the jury awarded plaintiffs over $1.5 million in damages.  Respondent Judy Deggs, the Sundbergs’ daughter, did not file her own claim even though Washington recognizes claims for loss of parental consortium.

Mr. Sundberg died in 2010.  In 2012, the Sundbergs’ daughter, as the personal representative of the estate, filed a wrongful death against several new defendants and one holdover defendant from the personal injury action.  The 2012 lawsuit asserted liability for the same injuries and asbestos exposure as the 1999 lawsuit.

In 2013, the trial court granted summary judgment for all defendants on grounds that both the wrongful death action and survival action were barred by the expiration of the statute of limitations on the decedent’s underlying claims against the defendants.  In doing so, the trial relied on Washington Supreme Court precedent holding that while wrongful death actions generally accrue at the time of death, Washington has recognized a “well-recognized limitation” that “there must be a subsisting cause of action in the deceased” at the time of death and that “the action for wrongful death is extinguished” in cases when the deceased either previously released the personal injury claims, obtained a judgment, or failed to “bring an action for injuries within the period of limitation.”  Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 580-81, 44 P.2d 193 (1935); Calhoun v. Washington Veneer Co., 170 Wash. 152, 159-60, 15 P.2d 943 (1932); Johnson v. Ottomeier, 45 Wn.2d 419, 422-23, 275 P.2d 723 (1954).  In 2015, the Washington Court of Appeals affirmed in a 2-1 decision.[1]  Deggs v. Asbestos Corp. Ltd., 188 Wn. App. 495, 354 P.3d 1 (2005).  The Washington Supreme Court granted review.

The Court’s Analysis

In a 5-4 decision, the Washington Supreme Court applied stare decisis and refused to overturn the long-standing precedent establishing that the right to a wrongful death action remained predicated on the deceased having a valid cause of action at the time of death.  The Court first examined the lengthy history of cases like Grant and Calhoun in which it had relied on Lord Campbell’s Act to recognize that various acts or omissions by injured parties during their lifetime may limit or extinguish their heirs from maintaining a subsequent wrongful death action.

While acknowledging that the Court in its present composition may have reached different results if the issue on appeal was a question of first impression, the Court held that the requirements for abandoning stare decisis were not met in this case.  Specifically, the Court concluded that there was no “clear showing” that the prior decisions were harmful.  The Court reasoned that it was not faced with a case where the deceased “was prevented from bringing a personal injury claim within the statute of limitations” before death.  “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.”  Thus, the Court concluded that because the deceased and his heirs had the knowledge and opportunity to bring a personal injury claim against the defendants during his lifetime, there was no clear showing that the prior precedent was harmful.

The Court contrasted the lack of harm to the plaintiffs to the “considerable harm on settled expectations if we were to abandon the rule from Lord Campbell’s Act now” because “[m]any entities that reasonably relied upon our precedent to close the book on potential claims based on the passage of the underlying statute of limitations would now find themselves subject to potential liability based on a court opinions they were not parties to.”  It also distinguished the situation in which the cause of death was not known until after the decedent had passed away because those cases would fall under Washington’s discovery rule, which would effectively toll the statute of limitations on any personal injury claims until after death.

The Court further cited the legislative’s acquiescence in the prior decisions by noting that the legislature had subsequently amended the wrongful death statute several times without changing the statute to supersede the Court’s prior holdings on this issue. Finally, the Court noted that the legal underpinnings for the prior decisions had not changed or disappeared altogether.

The dissent focused on the lack of language in the wrongful death statute expressly conditioning the right to bring a wrongful death claim on the existence of a valid personal injury claim, as well as the perceived unfairness of extinguishing a wrongful death cause of action before it could accrue upon the injured party’s death.

Conclusions

In practical terms, the majority of the Court did not want to undo a long-established rule of law requiring the existence of a valid personal injury cause of action at the time of death in order for a wrongful death action to proceed.  The Court recognized that under such circumstances, there is nothing inherently prejudicial about preventing the heirs from taking a second bite at the apple where the deceased had a full and fair opportunity to bring claims for the same injuries and damages during his or her lifetime. It also should be noted the dissent was unable to articulate how trial courts would be able to set off or segregate settlement amounts and damages awarded in a prior personal injury action from damages sought in the wrongful death action based on the same injuries.  Finally, the Deggs holding should equally apply to prevent a subsequent wrongful death action in cases in which the deceased executed a valid release or obtained a judgment against particular defendants during his or her lifetime.

While Deggs will prevent the resurrection of many old personal injury claims, it is anticipated that the plaintiffs’ bar may seek legislation to amend the wrongful death statute and supersede this ruling.  In other words, stay tuned.

[1] Respondent did not appeal the trial court’s dismissal of the estate’s survivorship claims, as Washington’s survival statute on its face merely preserves existing personal injury claims at the time of death, rather than creating a separate, independent action like the wrongful death statute.  RCW 4.20.046(1); RCW 4.20.060.

Hoosier State Eliminates Asbestos Statute of Repose

On March 2, 2016, Indiana’s highest court declared the Indiana Product Liability Act (“IPLA”) statute of repose unconstitutional as applied to asbestos claims. In its 3-2 decision, the Indiana Supreme Court essentially overruled a prior landmark decision in and decided that the statute of repose did not apply to cases “where the plaintiffs have had protracted exposure to inherently dangerous foreign substances.”

hour-glassThe overruled decision, AlliedSignal v. Ott, 785 N.E.2d 1068 (Ind. 2003), had upheld the asbestos statute of repose against an Equal Privileges and Immunities Clause challenge. Ott held that while there was a distinction “between asbestos victims and other victims under the product liability act,” the statute of repose did not harm asbestos plaintiffs because they are either subject to the same statute of repose as non-asbestos plaintiffs or have an exception if the defendant “mined and sold commercial asbestos.”

Last week’s opinion was issued in a triple consolidated appeal: Myers v. Crouse-Hinds Division of Cooper Industries, Inc.; General Electric Company v. Geyman; and Owens-Illinois, Inc. v. Geyman. Each of these cases involved the same constitutional challenges rejected by the court in Ott. Specifically, the court addressed the interrelation of two sections of the IPLA, each specifying different time limits within which claims must be filed. Section 1 of chapter 3 of the IPLA, which governs to product liability claims generally, specifies a two-year discovery statute of limitations and a statute of repose that limits claims to those brought within 10 years of delivery of the product to a consumer. Section 2 of chapter 3 governs personal injury claims arising from asbestos exposure, omits the 10-year repose limitation and “applies only to product liability actions against persons who mined and sold commercial asbestos.” For years, the state of the law has been that Section 2 did not apply to manufacturers of asbestos-containing products because they did not mine the asbestos within their products.

Here, the court decided that it was not bound by Ott because the plaintiffs’ constitutional challenge proposed a different set of disparately treated classes of plaintiffs. “Instead of comparing asbestos victims to non-asbestos victims [as in Ott], they compare two separate types of asbestos victims.” This led to the different result. “Section 2 draws a constitutionally impermissible distinction between asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category.” The court ruled both Sections 1 and 2 unconstitutional as applied to asbestos plaintiffs, meaning that no statute of repose currently exists for asbestos claims in Indiana.

We anticipate that this opinion will alter the landscape of asbestos litigation in the very near future, and expect to see more filings in Indiana.

A copy of the decision is available here.

Supreme Court to Rule on Whether CERCLA’S Statute of Limitations Preemption Clause Also Preempts State Statutes of Repose

Last July, the Fourth U.S. Circuit Court of Appeals ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preemption clause, 42 U.S.C. 9658(a)(1), which preempts state statutes of limitation with that prescribed under CERCLA, also preempts North Carolina’s state statute of repose.  Waldburger v. CTS Corp., 723 F.3d 434 (4th Cir. 2013).

While statutes of limitation limit the amount of time that a plaintiff has to bring a claim after the date the injury occurred, or the date he should have known of the injury and its cause (or other similar triggering event), state statutes of repose bar claims after a certain amount of time following the last act of the defendant giving rise to the claim — even if that is before the plaintiff knew or should have known of any harm.

CERCLA’s preemption clause only expressly mentions statutes of limitations.  However, the Fourth Circuit found that the repose statute still worked as a limitation, and that the congressional intent was to allow CERCLA claims to proceed more liberally, not to bar claims before they might even exist.  The Fourth Circuit divided on the decision, 2-2.

Following the Fourth Circuit’s decision, the U.S. Supreme Court granted review, and will hear oral argument on this matter on April 23, 2014.  CTS Corp. v. Waldburger, No. 13-339.  Interestingly, the United States itself joins CTS and other amici defense and defendant groups in advocating for the narrower reading of section 9658.  In its amicus curiae brief, the United States discusses how its own interest lies in the fact that it has been sued in North Carolina, and it has advocated the same position in those proceedings in its own defense.

Stay tuned for updates on the resolution of this appeal, which could have wide-ranging impacts on the ability to bring CERCLA claims in states where statutes of repose exist.