       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                                                 C£»       (
KARIN HILL, as Personal                               No. 73960-3-1
Representative for the Estate of HEINZ
GERHARD SCHNEIDER, Deceased,                          DIVISION ONE
                                                                             CO

                     Appellant,                                             Xs«        C



              v.                                                            v?         r~

                                                                            ^          2
BARTELLS ASBESTOS SETTLEMENT                          UNPUBLISHED
TRUST; BOUTEN CONSTRUCTION
COMPANY; COLONIAL SUGAR                               FILED: November 23 2015
REFINING COMPANY; GRINNELL LLC
(fka GRINNELL CORPORATION, aka
GRINNELL FIRE); MAX J. KUNEY
COMPANY; NEUPS, INC.; and FIRST
DOE through ONE HUNDREDTH DOE;

                     Respondents.


       Cox, J. - A wrongful death claim does not accrue unless the decedent had

"a valid subsisting cause of action" at the time of death.1 Here, the personal

representative of the estate of Heinz Schneider2 brought a wrongful death claim,

alleging that he had died from asbestos related diseases. It is undisputed that

the statute of limitations for bringing a personal injury action based on

Schneider's exposure to asbestos had expired before his death. Thus,

Schneider lacked "a valid subsisting cause of action" and his estate's personal

representative may not bring a wrongful death claim. We affirm.


       1 Degqs v. Asbestos Corp. Ltd., 188 Wn. App. 495, 497, 354 P.3d 1
(2015).

       2 We grant the motion to substitute Karin Hill as personal representative of
the estate.
No. 73960-3-1/2



        The material facts are undisputed. Over his lifetime, Schneider was

exposed to numerous sources of asbestos. By 2003, doctors had diagnosed him

with several asbestos related diseases. These diseases caused his death in

2011.


        The personal representative of his estate brought a wrongful death claim

against various manufacturers and distributors of products containing asbestos.

This included Bouten Construction Company, Grinnell LLC, and Max J. Kuney

Company (collectively "defendants").

        On summary judgment, defendants argued that the personal

representative could not bring a wrongful death claim because Schneider had

failed to bring a personal injury claim within three years of discovering his

asbestos related diseases. In response, the personal representative argued that

a wrongful death claim is independent of a personal injury claim. Thus,

according to the personal representative, the statute of limitations for the

wrongful death claim began to run when Schneider died.

        The trial court granted summary judgment in favor of defendants.

        The personal representative appeals.

                               WRONGFUL DEATH


        The personal representative argues that she may bring a wrongful death

claim even though the statute of limitations for a personal injury claim had

expired during Schneider's lifetime. We disagree.

        Wrongful death is a statutory tort.3 RCW 4.20.010 provides:


        3 RCW 4.20.010.
No. 73960-3-1/3



       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.


       The general three-year statute of limitations applies to wrongful death

claims.4 This statute is silent on whether a personal representative may bring a

wrongful death claim when the decedent lacked a valid claim at the time of death.

       But in Deggs v. Asbestos Corp. Ltd., this court recently held that a

decedent must have "a valid subsisting cause of action" at the time of death for a

wrongful death claim to accrue.5 In that case, Roy Sundberg had "successfully

sued several defendants for injuries related to asbestos exposure."6 After his

death, his personal representative "filed a wrongful death action against one of

the same defendants from [the previous] lawsuit and several new defendants."7

       This court determined that Sundberg could not have brought another

personal injury claim during his lifetime.8 To the extent that res judicata did not

bar his claims, the statute of limitations barred them.9




       4 RCW 4.16.080(2); Atchison v. Great Western Malting Co.. 161 Wn.2d
372, 377, 166 P.3d 662 (2007).

       5 188 Wn. App. 495, 497, 354 P.3d 1 (2015).

       6ld,



       8 Id, at 500.

       9 Id.
No. 73960-3-1/4



      Analyzing Washington case law, this court determined 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."10 We relied on three supreme

court cases—Calhoun v. Washington Veneer Co.,11 Grant v. Fisher Flouring Mills

Co.,12 and Johnson v. Ottomeier,13— to reach this conclusion.14

       In Calhoun, the decedent was exposed to harmful fumes.15 In November

1928, he was diagnosed with bisulphide poisoning as a result of this exposure.16

Calhoun brought an action in September 1931 but died while his lawsuit was

pending.17 Calhoun's personal representative amended the complaint to add a

wrongful death claim.18

       Calhoun himself would have been able to recover under only the factory

act, Rem. Comp. Stat. § 7659.19 Based on the facts as pleaded, injuries from




       °]a\

       1 170 Wash. 152, 15 P.2d 943 (1932).

       2181 Wash. 576, 44 P.2d 193 (1935).

       3 45 Wn.2d 419, 275 P.2d 723 (1954).

       4 Deggs, 188 Wn. App. at 501-07.

        5170 Wash, at 153.

        6 Id,

        7 ]d at 153-54.

        8 Id, at 154.

        9 Id. at 158.
No. 73960-3-1/5



violating this statute accrued in May 1928.20 Thus, the statute of limitations on

his factory act claim expired in May 1931.21 Because Calhoun did not file his

complaint until September 1931, his claims under the factory act were barred.22

       Additionally, because both the original and the amended complaint were

filed after the expiration of the statute of limitations on Calhoun's underlying

factory act claims, his personal representative's wrongful death claim was

barred.23

       Calhoun's rationale is not entirely clear. But the supreme court later

clarified Calhoun's holding in Grant.

       Grant also involved a claim under the factory act.24 But in that case, Grant

brought his claim within the statute of limitations.25 Grant subsequently died

while his action was pending.26 His personal representative later amended the

complaint to add a wrongful death claim.27




       20 Id, at 159.

       21 Id,

       22 Id,

       23 Id at 160.

       24 181 Wash, at 576-77.

       25 Id,

       26 Id, at 577

       27 Id. at 576-77.
No. 73960-3-1/6



       The supreme court explained that:

       this court has held that the [wrongful death] action accrues at the
       time of death, and that the statute of limitations then begins to run.
       The 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. Under this limitation, it has been held that
       the action for wrongful death is extinguished by an effective release
       executed by the deceased in his lifetime; by a judgment in his favor
       rendered during his lifetime; by the failure of the deceased to bring
       an action for injuries within the period of limitation.[28]

       The court determined that Calhoun belonged to the last category of cases

in this excerpt. Specifically, he was a deceased who failed to bring an action for

injuries within the statute of limitations. Accordingly, that failure extinguished a

later cause of action for wrongful death. The court noted, "Obviously, at the time

of [Calhoun's] death there was no valid action subsisting in his favor, because

the statute of limitations had run against it."29

       The Grant court went on to distinguish Calhoun from the case before it.30

Because Grant brought his action for personal injuries within the statute of

limitations, he had a valid subsisting cause of action against his employer.31

Thus, because the estate's personal representative brought the wrongful death

action within three years from Grant's death, the action was timely.32



       28 Id, at 580-81 (citations omitted).

       29 Id, at 582.

       30 id,

       31 id,

       32 Id.
No. 73960-3-1/7



       Reading these two cases, it is clear that a wrongful death claim accrues at

the time of death and the statute of limitations begins to run at that time. But if

the decedent lacked a valid subsisting cause of action at the time of death, the

wrongful death claim fails to accrue.

       The supreme court reaffirmed this interpretation in Johnson. In that case,

a husband murdered his wife and then committed suicide.33 The wife's estate

brought a wrongful death claim against the husband's estate.34 The trial court

determined that the wife's estate could not sue the husband's estate because of

spousal immunity.35

       The supreme court reversed, ruling that the spousal disability to sue did

not transfer to the estate.36 In doing so, the court distinguished the case from

Calhoun.37 The court noted that Calhoun belonged to a category of cases:

       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.
       Among such cases are . . . [Calhoun], as interpreted in [Grant],
       where the statute of limitations had run prior to decedent's death.[38]




       33 Johnson, 45 Wn.2d at 420.

       34 id,

       35 id,

       36 id, at 424.

       37 id, at 422-23.

       38 Id.



                                          7
No. 73960-3-1/8



The supreme court determined that this equitable principle did not apply to bar

the wife's estate's wrongful death claim.39

       These cases and Deggs demonstrate that the personal representative of

Schneider's estate cannot bring a wrongful death claim. As in Calhoun and

Deggs, Schneider's action or inaction during his lifetime extinguished his

personal injury claims. Thus, his personal representative's wrongful death claim

is barred. Accordingly, the trial court properly granted summary judgment in

favor of defendants.

       The personal representative argues that Calhoun's holding was limited to

the interaction between the factory act, workers' compensation, and wrongful

death claims. But while Calhoun is somewhat unclear, Grant and Johnson clarify

its holding. As discussed earlier, these cases demonstrate that if the decedent

lacks a valid claim for the injury at the time of death, a wrongful death case fails

to accrue.


       The personal representative argues that Calhoun is no longer good law.

Calhoun cited Shaw v. Rogers & Rogers,40 a case which determined when an

injury for failure to insure accrued. The supreme court later overturned Shaw.41
Thus, the estate argues that Calhoun has also been overturned. Not so.

       Calhoun, as interpreted in Grant and Johnson, is not about when a

wrongful death claim accrues. Rather, it stands for the proposition that if there is

       39 id, at 424.

       40 117 Wash. 161, 200 P. 1090(1921).

       41 Gaziia v. Nicholas Jems Co., 86 Wn.2d. 215, 219, 543 P.2d 338 (1975).



                                          8
No. 73960-3-1/9



no valid subsisting cause of action at the time of death, a wrongful death claim

fails to accrue. Thus, cases about the time of accrual are not material to

Calhoun's holding.

      The personal representative also argues that White v. Johns-Manville

Corporation42 casts doubt on Calhoun.43 In that case, the parties stipulated that

"the decedent never knew that he was suffering from any adverse effects of

exposure to asbestos-containing materials" before his death.44 Accordingly, the

supreme court noted:

      [W]e 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 of the
      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.1451

       But, as this court explained in Deggs, the "issue in White was whether the

wrongful death cause of action accrued at the time of death or if it accrued

later—at the time the decedent's wife discovered or should have discovered the

cause of death."46 Thus, whether the decedent had a valid subsisting cause of




      42 103 Wn.2d 344, 693 P.2d 687 (1985).

      43 Reply Brief of Appellant at 9-10.

       44 White, 103Wn.2dat345.

       45 [d, at 347.

       46 Deggs, 188 Wn. App. at 508.
No. 73960-3-1/10



action at the time of death was never at issue. Accordingly, the statement in

White on which the estate relies is not persuasive.

       Finally, the personal representative also presents policy reasons why the

decedent's failure to act should not bar a wrongful death claim. But we are

bound by the supreme court's precedent. And the legislature, to our knowledge,

has never taken action to change the results of the supreme court cases that we

have discussed. Thus, the policy arguments on which the estate relies are

unpersuasive.

      We affirm the trial court's grant of summary judgment to defendants.



                                                          6u?\j,
WE CONCUR:




   /&***//*




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