On October 6, 2016, the Washington Supreme Court issued an important 5-4 decision holding that a wrongful death action is extinguished if the statute of limitations has run on the decedent’s own cause of action by the time of his death. Deggs v. Asbestos Corp., et al., Wash. Sup. Ct. No. 91969-1 (October 6, 2016). The majority rejected plaintiff’s claim that—regardless whether the statute had run on decedent’s own claims prior to death—the heirs’ cause of action for wrongful death cannot arise until after the decedent’s death.
The decedent in Deggs had filed a lawsuit in 1999 against nearly 40 defendants claiming asbestos-related injury. He settled with some defendants, and won a judgment at trial of $1,511,900 against the last remaining defendant. He died nine years later, and within three years of death, the personal representative of his estate filed a wrongful death action based on the alleged asbestos-related injury, naming one defendant who was named in decedent’s prior action, and a host of new defendants who were not. The trial court granted a motion to dismiss on the grounds that decedent’s cause of action for asbestos-related injuries had lapsed by the time of his death, precluding the heirs from bringing a wrongful death action. The Washington Court of Appeals upheld the dismissal.
Justice Stephens wrote a vigorous dissent to the majority opinion by the Washington Supreme Court, joined by three other justices. The dissent maintained that the wrongful death action is a “free-standing cause of action for family members that cannot arise before the death of their loved one.” It further complained that despite acknowledging its decision was based on incorrect precedent, the majority “sees no harm in perpetuating its topsy-turvy illogic.”
This decision should prevent the practice by some plaintiffs’ firms of recycling old claims by filing new wrongful death actions against the same or different defendants years after the decedent filed his own lawsuit or allowed his cause of action to lapse.
Soha and Lang attorneys are available to assist insurer clients in understanding and addressing the impact of this decision both during the claims handling process and after an allegation of bad faith claims handling has been made.
Disclaimer: The opinions expressed in in this blog are those of the author and do not necessarily reflect those of Soha and Lang, P.S. or its clients.