    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 JUDY R. DEGGS, as personal
 representative for the estate of ROY                  No. 71297-7-1
 GORDON SUNDBERG,                                      (consolidated with
                                                       No. 71550-0-1)
                     Appellant,
                                                       DIVISION ONE
              v.

                                                       PUBLISHED OPINION
ASBESTOS CORPORATION LIMITED;
ASTENJOHNSON, INC.; CBS
CORPORATION (FKA VIACOM INC., FKA
 WESTINGHOUSE ELECTRIC
 CORPORATION); INGERSOLL-RAND
 COMPANY,

                     Respondents,

 BARTELLS ASBESTOS SETTLEMENT
 TRUST; GASKET COMPANY; GENERAL
 REFRACTORIES COMPANY; JOHN
 CRANE, INC.; METROPOLITAN LIFE
 INSURANCE COMPANY, and FIRST
 DOE through ONE HUNDREDTH DOE,

                     Defendants.                       FILED: June 22, 2015


      Appelwick, J. — Deggs, as personal representative for her father's estate, appeals

the dismissal on summary judgment of her wrongful death action. In 1999 her father

successfully sued several defendants for injuries related to asbestos exposure. In 2012,

two years after her father passed away, Deggs filed a wrongful death action against one
No. 71297-7-1/2




of the same defendants from the 1999 lawsuit and several new defendants. 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 death.       Deggs's father had no valid

subsisting cause of action at the time of his death. We affirm.

                                         FACTS


      Roy Sundberg was exposed to asbestos while working for various employers from

1942 to 1989. Sundberg was diagnosed with colon cancer and lymphoma on July 24,

1998, pleural disease on August 31, 1999, and asbestosis on February 21, 2000.

      On September 20, 1999, Sundberg filed a lawsuit against about 40 defendants,

including Asbestos Corporation Limited (ACL). Sundberg sought relief in the form of

general damages, medical and related expenses, pain and suffering, loss of earnings,

loss of wages and future earning potential, emotional distress, and cost of the lawsuit.

On April 18, 2001, Sundberg's wife, Betty Sundberg, asserted a claim for loss of

consortium in the amended complaint.

      The 1999 lawsuit was tried to verdict in 2001. The jury awarded $451,900 in

economic damages, $700,000 in noneconomic damages, and $360,000 in loss of

consortium damages.

       In December 2010, Sundberg died of lymphoma. On July 3, 2012, the personal

representative of Sundberg's estate, his daughter, Judy Deggs, filed a second asbestos-

related lawsuit against ACL and several new defendants, including respondents Ingersoll-

Rand Company, AstenJohnson Inc., and CBS Corporation. The complaint asserted both

a survival action and a wrongful death action. The 2012 lawsuit alleged liability against
No. 71297-7-1/3




the defendants based on much of the same asbestos exposure as the 1999 lawsuit. The

complaint sought the same relief as the 1999 lawsuit but included funeral expenses.

       On March 12, 2013, respondent AstenJohnson moved for summary judgment.

AstenJohnson argued that summary judgment was proper, because both the survival

action and the wrongful death action were barred by the expiration of the statute of

limitations on Sundberg's underlying claims. The trial court granted AstenJohnson's

motion for summary judgment. The court noted that the statute of limitations had run on

any of Sundberg's remaining personal injury claims. Itthus reasoned that Deggs's claims

were barred, because there was no remaining cause of action that Sundberg could have

brought against AstenJohnson before he died.

       In reaching its conclusion, the trial court weighed the competing interests of

compensating the qualifying survivors and the important policy reasons behind finality

and statutes of limitation. It ultimately reasoned that Sundberg consciously let the statute

of limitations run out when he did not sue AstenJohnson in his 1999 personal injury

lawsuit. It opined that, because there was no cause of action that Sundberg could have

brought against AstenJohnson at the time of his death, there was no cause of action that

his personal representative could bring because of Sundberg's death. The trial court then

granted summary judgment through a separate order for the remaining defendants—ACL,

Ingersoll-Rand Company, and CBS Corporation—because Deggs's claims against them

were similarly barred.

       Deggs appeals the summary judgment dismissals of her wrongful death claim, but

not the survival claim, as to all respondents.
No. 71297-7-1/4




                                      DISCUSSION

      This court reviews summary judgment orders de novo. Hadlev v. Maxwell. 144

Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate only where

there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c); Peterson v. Groves. 111 Wn. App. 306, 310, 44 P.3d 894

(2002). When considering the evidence, the court draws reasonable inferences in the

light most favorable to the nonmoving party. Schaafv. Hiqhfield, 127 Wn.2d 17, 21, 896

P.2d 665 (1995). An appellate court may affirm a trial court's disposition of a summary

judgment motion on any basis supported by the record. Davies v. Holy Family Hosp.,

144 Wn. App. 483, 491, 183 P.3d 283 (2008).

      The statute of limitations for a personal injury action in Washington is three years.

RCW 4.16.080(2).     Sundberg passed away over 11 years after he filed his original

personal injury complaint without bringing any additional lawsuits related to his injuries.

Deggs asserts that Sundberg's actions and inaction during his lifetime—the 1999 lawsuit

against ACL and his failure to pursue a personal injury action against the remaining

respondents within the statute of limitations period—cannot affect the viability of her

wrongful death action. She contends this is so, because the wrongful death action did

not accrue until Sundberg passed away.

      RCW 4.20.010 is the wrongful death statute:

      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 issue here is whether the expiration of the statute of limitations for an

individual's personal injury claims or a judgment or settlement on those same claims
No. 71297-7-1/5




during his lifetime can preempt the accrual of his personal representative's wrongful death

claim. The wrongful death statute is silent on this issue.

       Deggs does not dispute that Sundberg won a favorable judgment against ACL in

1999. Nor does she dispute that the statute of limitations for Sundberg's personal injury

claims as to the respondents expired prior to Sundberg's death. Because Sundberg

pursued his personal injury claims against ACL to judgment, he would have been unable

to sue ACL again based on the same cause of action during his lifetime. See Loveridqe

v. Fred Meyer. Inc.. 125 Wn.2d 759, 763, 887 P.2d 898 (1995) (stating that res judicata

prevents litigants from relitigating claims and issues that were litigated, or might have

been litigated, in a prior action). To the extent there were any remaining causes of action

Sundberg could have brought against ACL, like any potential personal injury claims

against AstenJohnson, Ingersoll-Rand, and CBS, they would have been barred by the

three year statute of limitations. See RCW 4.16.080(2).

       Deggs claims that a cause of action for wrongful death accrued at the time

Sundberg died, and that it is wholly unaffected by the resolution of Sundberg's underlying

personal injury claims.   However, Deggs's position is inconsistent with case law.       In

Washington, 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. See, e.g.. Grant

v. Fisher Flouring Mills Co.. 181 Wash. 576, 581, 44 P.2d 193 (1935); Calhoun v. Wash-

Veneer Co.. 170 Wash. 152, 160, 15 P.2d 943 (1932). The trial court relied on Grant in
No. 71297-7-1/6




dismissing Deggs's claims on summary judgment.          The respondents on appeal rely

heavily on Calhoun and Johnson v. Ottomeier. 45 Wn.2d 419, 275 P.2d 723 (1954).1

       In Calhoun, the decedent husband, worked for a manufacturing plant and was

exposed to harmful fumes from April 1926 to November 1928. 170 Wash, at 153. In

November 1928 he was diagnosed with bisulphide poisoning.            Id. Calhoun originally

brought an action in September 1931 claiming that his poisoning was a result of his

employer's negligence.    Id. at 153-54. Calhoun died on October 17, 1931, while his

lawsuit was pending. Id. at 154. Calhoun's wife, Cora, as executrix of the estate filed an

amended complaint in December and added a claim for wrongful death, jd. The trial

court dismissed Cora's complaint. Id. at 155. On appeal, the court considered whether

the statute of limitations barred Cora's wrongful death claim. Id.

      A common law cause of action against the employer was precluded by the

workmen's compensation act, Rem. Comp. Stat., § 7673. 170 Wash, at 158-59. The

court noted that under the laws at the time, Calhoun himself would have been able to

recover under only the factory act, Rem. Comp. Stat. § 7659, which provided a cause of

action with a three year statute of limitations.    170 Wash, at 159. The court then

determined that, based on Calhoun's injuries and facts as pleaded in the amended

complaint, any injuries received from violation of the statute culminated and accrued


       1 Calhoun and Grant examine the interaction between the statute of limitations on
a decedent's claim and a personal representative's wrongful death claim based on an
older version of the wrongful death statute. 170 Wash, at 159-60; 181 Wash, at 578, 580.
Similarly, Johnson examines an older version of the wrongful death statute. 45 Wn.2d at
421. At the time these cases were decided, the wrongful death statute was very similar
to RCW 4.20.010. Compare Rem. Comp. Stat. § 183, at 248, and Rem. Rev. Stat. § 183,
with RCW 4.20.010. Except for the addition of gender neutral language and a comma in
2011, RCW 4.20.010 is identical. See Laws of 2011, ch. 336, § 89.
No. 71297-7-1/7




about the middle of May 1928. Id. Thus, the statute of limitations on his factory act claim

expired in May 1931. Id. 159-60. Because Calhoun did not file his complaint against his

employer until September 1931, his claims under the factory act were barred by the three

year statute of limitations. Id. at 159.

       The court acknowledged that the cause of action for wrongful death had not

accrued at the time the original complaint was filed.2 jd. at 160. But, importantly, the

court stated that Cora would have been entitled to amend the complaint to bring a claim

for damages for wrongful death under Rem. Comp. Stat. § 183-1 if the action had

commenced within the statute of limitations period set by Calhoun's factory act claim. 170

Wash, at 160. Because both the original and the amended complaint were filed well after

the expiration of the statute of limitations on Calhoun's underlying factory act claims,

Cora's wrongful death claim was barred, jd.

       Calhoun undermines Deggs's argument that a personal representative's claims for

wrongful death cannot be affected by the expiration of the statute of limitations on the

decedent's underlying personal injury claims. This concept was reinforced and clarified

in Grant. See. 181 Wash, at 581.

       In Grant, a wife added a wrongful death claim to her husband's complaint while

her husband's claim was pending, but after he died. Id at 576-77. Grant started working

as a miller in a flour mill in June 1926. id. at 576. He continued working at the mill until

July 26, 1930, when he stopped working because of illness, jd. at 577. On August 19,

      2 There is language in Calhoun susceptible of being construed to mean that a
wrongful death cause of action accrues at the time of injury to the deceased rather than
at the time of death. 170 Wash, at 160. But, the Grant court later clarified that the facts
of Calhoun combined with other precedent dictate that Calhoun should not be read that
way. 181 Wash, at 581-82.
No. 71297-7-1/8



1932, he sued his employer alleging that his illness was caused from exposure to nitric

acid and chlorine gas fumes while on the job. jd. As in Calhoun. Grant based his action

on the factory act. jd, at 579. Grant died on August 17, 1933, while his action was

pending. Id at 577. Grant's wife, Dorothy, was substituted as plaintiff in Grant's lawsuit.

Id Subsequently, Dorothy filed an amended complaint for both a survival action and a

wrongful death action under Rem. Rev. Stat. § 183. Id

       After making the determination that Grant brought his action for personal injuries

within the time prescribed by the three year statute of limitations, the court discussed the

interaction between the accrual of a wrongful death action and Grant's claims:

              The action for wrongful death, under Rem. Rev. Stat. § 183 [P. C. §
       8259], is a distinct and separate action from the survival action, under id §
       194 [P. C. § 8275]. In accord with the great weight of authority, this court
       has held that the 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.

Id at 580-81 (emphasis added) (alterations in original) (some citations omitted). The

Grant court then placed Calhoun in the category of cases in which a failure of the

deceased to bring an action within the statute of limitations period extinguishes a cause

of action for wrongful death. ]d at 581. In summarizing the decision in Calhoun, the
No. 71297-7-1/9




Grant court said, "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."3 Id at 582.

       In allowing Dorothy to maintain a wrongful death action, the Grant court

distinguished the result in Calhoun. Id It reasoned that because Grant brought his action

for personal injuries within the time prescribed by the statute of limitations, even though

he died more than three years after his cause of action accrued, he left a valid subsisting

cause of action against his employer. ]d It concluded that under the circumstances—

Grant did not release his claims against his employer during his lifetime and Dorothy

brought her wrongful death action from within three years from Grant's death—there was

no question that Dorothy's wrongful death action could be maintained. Id In so doing,

the Grant court explicitly stated that a decedent's inaction or action during his lifetime

could preempt future wrongful death claims. See id at 581.

       Deggs attempts to distinguish Grant and its reliance on Calhoun, by focusing on

the fact that it is "in the context of a workmen's compensation claim" and a long-since

repealed statute. The Calhoun court properly noted that a common law cause of action

against the employer was precluded by the workmen's compensation act, Rem. Comp.

Stat., § 7673. Calhoun. 170 Wash, at 158-59. But, that determination was not dispositive

of Grant, because the factory act provided a basis for Grant's underlying substantive tort

       3 The Grant court said that Calhoun fell squarely within a U.S. Supreme Court's
decision, Flvnn v. New York. N.H. & H.R. Co. 283 U.S. 53, 51 S. Ct. 357, 75 L. Ed. 837
(1931). 181 Wash, at 582. In Flvnn. the decedent husband suffered an injury at work on
December 4, 1923, and it caused his death on September 1, 1928. jd at 55. The court
opined that because the statute of limitations for Flynn's claim was two years, that it was
obviously barred. ]d at 56. The employer argued that the widow's claims were distinct.
Id But, the court ultimately concluded that although her cause of action was not strictly
representative of Flynn's claims, it was derivative and dependent upon the continuance
of a right in the injured employee at the time of his death. ]d
No. 71297-7-1/10



claim. 181 Wash, at 579. And, like in Calhoun, the substantive provisions of the factory

act itself did not preclude a wrongful death claim and had no bearing on the Grant court's

decision, jd at 580. The statute of limitations applicable to Grant's factory act claim was

dispositive. ]d at 579-80.

       Johnson v. Ottomeier. a more recent Washington Supreme Court decision,

involves a limitation on a wrongful death claim in the context of a disability to bringing suit,

rather than a limitation based on the decedent's actions or inaction during his lifetime. 45

Wn.2d at 421.      Deggs argues that case stands for the proposition that a personal

representative's wrongful death claim can accrue and persist even without a viable

underlying claim in the decedent at the time of death.

       In Johnson, a husband, murdered his wife, Anna, and then committed suicide. 45

Wn.2d at 420. The issue was whether the wife's personal representative could bring a

wrongful death action against the husband's estate for the benefit of their remaining

children. ]d But, at the time, the law prevented a wife from suing her husband for a tort

committed against her. Jd at 424. The Johnson court held that Anna's inability to sue

was a disability personal to her. ]d It concluded that once she died, the disability was

lifted and the underlying cause of action for wrongful death was no longer barred, jd

       The Johnson court explicitly distinguished itself from Calhoun and Grant. See id

at 422-23. The court cited to those cases and said that there are situations 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, jd

Then, it framed the question before it as a different question, about whether a personal

disability in the decedent could be a defense to wrongful death. Id. at 423.


                                                  10
No. 71297-7-1/11




       Contrary to Deggs's assertion, Johnson does not stand for the broad proposition

that a wrongful death cause of action can persist notwithstanding the lack of a viable

underlying claim in the decedent at the time of death. In Johnson, it was not that Anna's

claims against her husband were extinguished prior to death by judgment, settlement,

waiver, statute of limitations, or other bar. Id Instead, a disability personal to her would

have prevented her from bringing suit on the claims during her lifetime. Jd That disability

was removed at the moment of Anna's death and did not transfer to her personal

representative. Jd at 424. Thus, she left a viable subsisting cause of action and the

cause of action for wrongful death became available to her personal representative. See

id Here, unlike in Johnson. Deggs's claims were not affected by a personal disability.

Rather, they were completely extinguished by the expiration of the statute of limitations

on the underlying tortious conduct or by Sundberg's previous lawsuit. They had no

chance of revival upon Sundberg's death.

       Deggs argues that notwithstanding the rule established in Grant and Calhoun and

reiterated in Johnson, a decedent's actions or inaction during his lifetime should have no

impact on a wrongful death claim. She contends this is so, because unlike a survival

action, a wrongful death cause of action is a new and distinct action solely for the benefit

of a decedent's heirs. Deggs claims that because Washington courts have repeatedly

held that the wrongful death statute creates a new cause of action, the cause of action

could not be derivative of the decedent's ability to sue, but is instead derivative of the

injury to the claimant—here, death.        Consequently, she contends that case law

interpreting a wrongful death action as derivative is inapposite.




                                                11
No. 71297-7-1/12




       Deggs is correct that a wrongful death action and a survival action are distinct

causes of action. See Estate of Otani v. Broudv. 151 Wn.2d 750, 755, 762, 92 P.3d 192

(2004). The survival statutes4 do not create new causes of action for statutorily named

beneficiaries, but instead preserve the decedent's causes of action for injuries suffered

prior to death. Jd. at 755, 762. By contrast, the wrongful death statute governs postdeath

damages and allows the personal representative of the decedent to sue on behalf of

statutory beneficiaries for their own losses, not the decedent's losses. Id. at 755. But,

the different nature of the causes of action does not mean that a wrongful death cause of

action cannot be derivative in any sense of the word. In Johnson the court highlighted

that a wrongful death action is "derivative":

              Not having as its basis a survival statute, the action for wrongful
       death is derivative only in the sense that it derives from the wrongful act
       causing the death, rather than from the person of the deceased.

45 Wn.2d at 423-24. This is consistent with the results in Calhoun (no wrongful death

claim available when the decedent had no subsisting claim at death) and Grant (a

wrongful death claim properly brought where there was a valid subsisting claim in the

decedent at death). 170 Wash, at 160; 181 Wash, at 582. The fact that the survival

action and wrongful death action are distinct actions does not disconnect wrongful death

actions from the underlying wrongful act against the decedent. It is that wrongful act from

which the wrongful death claims spring. It is that wrongful act for which there must be a




       4 There are two survival states in Washington—RCW 4.20.046, the general
survival statute, and RCW 4.20.060, the special survival statute. Otani, 151 Wn.2d at
755-56. RCW 4.20.046 preserves all causes of action that a decedent could have brought
if he or she survived. Jd Alternatively, the special survival statute, RCW 4.20.060, is
limited to personal injury causes of action that result in death. Jd at 756.


                                                12
No. 71297-7-1/13




valid subsisting claim in the decedent at death in order for the statutory beneficiaries'

wrongful death claims to accrue.

       Next, Deggs argues that the case law in Washington is outdated. She advocates

we abandon the holdings in Calhoun and Grant.        Deggs alternatively argues that the

question before us is currently an open question in Washington and urges us to consider

and adopt the law in other states.

       Deggs references a recent federal remand order which describes Calhoun. Grant.

and Johnson as outdated5 and which relies on White v. Johns-Mansville Corp..103 Wn.2d

344, 347, 693 P.2d 687 (1985) to conclude that the issue before us is an "open question"

in Washington State. See Barabin v. AstenJohnson. Inc.. 2014 WL 2938457, at *3 (WD.

Wash.) (court order). Specifically, the White court stated:

       [W]e note we 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.

103 Wn.2d at 347. 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




       5 In Barabin v. AstenJohnson. Inc.. 2014 WL 2938457 (W.D. Wash.) (court order),
the court granted a motion to remand in the Western District of Washington. It evaluated
the issue under the standard for fraudulent joinder—a standard more favorable to Deggs's
position in this case. Jd at *2. Consequently, the defendant asbestos companies in
Barabin had to carry their heavy burden of proving under Washington law that a decedent
wife's wrongful death complaint obviously failed to state a claim. Jd at *1. The remand
order concluded that a Washington court addressing the issue before us could find that a
wrongful death claim is not barred merely because the statute of limitations on the
decedent's underlying claim expires prior to the decedent's death. Jd at *3-*4. But, this
is the very proposition our case law has rejected.

                                                13
No. 71297-7-1/14




discovered or should have discovered the cause of death. Jd. at 345. The court ultimately

rejected the assertion that, as a matter of law, the date of the decedent's death marks the

time at which a wrongful death action accrues. Jd at 352. Instead, it held a wrongful

death action accrues at the time the decedent's personal representative discovered, or

should have discovered, the cause of action. Jd at 352-53.

       But, whether the wrongful death cause of action accrues at death or upon

discovery of causation is not at issue in this case. Here, under Calhoun and Grant, the

accrual of the wrongful death action was preempted either by the earlier judgment against

ACL or the expiration of the statute of limitations on Sundberg's underlying claims against

the rest of the respondents.

       Deggs also points out that other states have reached the opposite conclusion from

our Supreme Court in Calhoun and Grant. She cites to Castorena v. Gen. Elec. 149

Idaho 609, 620, 238 P.3d 209 (2010) (holding that the fact the statute of limitations had

run against decedent's personal injury claim did not bar a wrongful death suit), Mummert

v. Alizadeh. 435 Md. 207, 210, 77 A.3d 1049 (2013) (concluding that a statute of

limitations defense against a decedent's claim does not bar a subsequent wrongful death

action), and Riggs v. Georgia-Pacific LLC. 2015 WL 404617, at *3, *5 (Utah 2015) (finding

that a wrongful death action for asbestos-related death is a separate, nonderivative claim

and it is not barred by prior personal injury actions for the same asbestos-related injuries).

       Deggs's reliance on authority from other states is unsurprising, because her

argument is not new. In fact, courts have been sharply divided on this issue for many

years. See 3 Stuart M. Speiser &James E. Rooks, Jr., Recovery for Wrongful Death

§ 15:14, at 55 (4th ed. 2005). There have been very few appellate court decisions since


                                                 14
No. 71297-7-1/15



the middle of the Twentieth Century. Jd And, those decisions treat cases dealing with

this issue differently depending upon whether the decedent settled his case or brought it

to judgment or if he allowed the statute of limitations to expire during his lifetime. See

Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts §

127, at 957 (5th ed. 1984)

      Some courts have held that no right of action remains for wrongful death

beneficiaries if the decedent compromises his claim with the wrongdoer or executes a

release for valuable consideration.   Recovery for Wrongful Death § 15:14, at 55.

Other courts have held that a release by a decedent during his life will not bar a later

action for wrongful death.   Jd. at 56-57.   The minority of courts have reasoned that

because the cause of action for wrongful death does not arise until a decedent's death, it

should be unaffected by acts of the injured person during his lifetime. Jd The logic of

this minority position was highlighted in an early South Dakota case, Rowe v. Richards.

35S.D. 201, 151 N.W. 1001, 1006(1915). The Rowe court opined:

             We must confess our inability to grasp the logic of any course of so
      called reasoning through which the conclusion is drawn that the husband,
      simply because he may live to suffer from a physical injury and thus become
      vested with a cause of action for the violation of his own personal right, has
      an implied power to release a cause of action—one which has not then
      accrued; one which may never accrue; one which from its very nature
      cannot accrue until his death; and one which, if it ever does accrue, will
      accrue in favor of his wife and be based solely upon a violation of a right
      vested solely in his wife.

Jd,

      As a practical consideration, however, a settlement made with the decedent during

his lifetime will take into account not only his diminished earning capacity while he does

live, but also a decrease in his life expectancy and his earnings he would have made if


                                               15
No. 71297-7-1/16



he had lived.    Recovery for Wrongful Death § 15:14, at 59. In other words, the

settlement effectuated by a decedent during his lifetime may have been an estimate and

determination of all the damages expected to follow from the initial wrong. Jd. The same

is true of judgments. Depending on the precise allocation of the settlement or judgment,

allowing a subsequent wrongful death claim may pose a risk of double recovery.

       But, this danger of double recovery is not at issue in situations in which the

decedent allowed the statute of limitations on his underlying claim to expire during his

lifetime. Prosser and Keeton on Torts § 127, at 957. In fact, in these situations, many

courts have held that the statute runs against the wrongful death action only from the date

of death, even though at that time the decedent's own action would have been barred

while he was living. Jd.

       Although the case law in Washington is indeed old, the Washington Supreme

Court previously chose between these possible outcomes when it decided Calhoun and

Grant in the 1930s.6 It chose finality of settlements and judgments and preclusion of stale

claims and potential double recovery. The legislature has not seen fit to correct this

interpretation of the wrongful death statute. We see no reason to advocate for a change

in Washington law.

       Applying Grant, Deggs's claims against respondents fail as a matter of law.

Sundberg had no valid cause of action against respondents at the time of his death,

       6 While Calhoun. Grant, and the majority of Deggs's claims involve preemption
because of the expiration of the statute of limitations on the decedent's underlying claims
instead of an earlier judgment or settlement, it is clear that, in Washington, this distinction
is immaterial. See Grant. 181 Wash, at 581 (concluding that a cause of 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, or by the failure of the deceased to
bring an action for injuries within the period of limitation).


                                                  16
No. 71297-7-1/17




because there was either a judgment rendered in his favor or because he failed to bring

an action for injuries within the statute of limitations period during his lifetime. Case law

in Washington does not support Deggs's argument that would revive a wrongful death

action when an individual dies no matter what was or was not already litigated during his

lifetime. Moreover, Deggs's position is at odds with considerations of finality of judgments

and preservation of evidence that are particularly relevant in this context.

       The trial court did not err in granting respondents' motions for summary judgment.

We affirm.




WE CONCUR:




       f^)f




                                                 17
                Deggs v. Asbestos Corp.. No. 71297-7-1 (consolidated
                                      with No. 71550-0-1)



        Dwyer, J. (dissenting). Relying on Calhoun v. Washington Veneer Co..

170 Wash. 152, 15 P.2d 943 (1932), and Grant v. Fisher Flouring Mills Co.. 181

Wash. 576, 44 P.2d 193 (1935), the majority concludes that "the accrual of the

wrongful death action was preempted either by the earlier judgment against ACL
or the expiration of the statute of limitations on Sundberg's underlying claims

against the rest ofthe respondents." Majority at 14. Because I believe that these
cases have since been overtaken by more recent Supreme Court decisions, and

because the majority's reliance upon Calhoun and Grant both perpetuates the
fiction that a wrongful death claim may expire before the decedent does and
preserves the "topsy-turvy land" where such illogic exists,1 Idissent.
                                                   I


        "In Washington, wrongful death actions are strictly creatures of statute."
Atchison v. Great W. Malting Co.. 161 Wn.2d 372, 376, 166 P.3d 662 (2007).

Unlike Washington's survival statutes, which simply preserve existing causes of
action a person could have maintained had death not occurred, the wrongful

         1Except in topsy-turvy land, you can't die before you are conceived, or be
         divorced before everyou marry, or harvest a crop never planted, or burn down a
         house never built, or miss a train running on a non-existent railroad. For
         substantially similar reasons, it has always heretofore been accepted, as a sort of
         legal "axiom," that a statute of limitations does not begin to run against a cause of
         action before that cause of action exists, i.e., before a judicial remedy is available
         to the plaintiff. For a limitations statute, by its inherent nature, bars a cause of
         action solely because suit was not brought toassertit during a period when the
         suit, if begun in that period, could have been successfully maintained; the
         plaintiff, in such a case, loses for the sole reason that he delayed—beyond the
         time fixed by the statute—commencing his suit which, but for the delay, he would
         have won.                                                                      .   v,,   x   .
 Dincher v. Marlin Firearms Co.. 198 F.2d 821, 823 (2d Cir. 1952) (Frank, J., dissenting) (footnotes
 omitted).
No. 71297-7-1/2 (consol. with No. 71550-0-1) (Dissent)


death statute creates a new and original cause of action following the decedent's

death. Warner v. McCaughan. 77 Wn.2d 178, 179, 460 P.2d 272 (1969); see

also Woodall v. Avalon Care Ctr.-Fed. Way. LLC. 155 Wn. App. 919, 930-31, 231

P.3d 1252 (2010); Wills v. Kirkpatrick. 56 Wn. App. 757, 759, 785 P.2d 834

(1990). The right to the benefit of this new and original action, however, does not

belong to the decedent's estate. Macieiczak v. Bartell. 187 Wash. 113, 125, 60
P.2d 31 (1936). Instead, the right is given to certain ofthe decedent's relatives,
as a means of compensating them for injuries to their own pecuniary interests,

suffered as a consequence of the wrongful death. Gray v. Goodson. 61 Wn.2d
319, 326-27, 378 P.2d 413(1963); Johnson v. Ottomeier, 45 Wn.2d 419, 423,
275 P.2d 723 (1954).

       Although the right belongs to the decedent's relatives, only a personal
representative of the decedent may exercise the right on their behalf, which is to
say that only the decedent's personal representative has standing to bring a
wrongful death action. Atchison, 161 Wn.2d at 378; Huntington v. Samaritan
Hosp.. 101 Wn.2d 466, 469, 680 P.2d 58 (1984); Wood v. Dunlop. 83 Wn.2d
719, 724, 521 P.2d 1177 (1974); Gray, 61 Wn.2d at 326-27; Macieiczak, 187
Wash, at 125; Dodson v. Cont'l Can Co.. 159 Wash. 589, 593, 294 P. 265
(1930). Yet, even a personal representative lacks standing to bring a wrongful
death action prior to the death of the decedent. This is so because a wrongful
 death cause of action cannot accrue before the decedent has died. Atchison,
 161 Wn.2d at 379; Dodson. 159 Wash, at 593; cf White v. Johns-Manville Corp..
 103 Wn.2d 344, 352-53, 693 P.2d 687 (1985) (holding that "awrongful death
No. 71297-7-1/3 (consol. with No. 71550-0-1) (Dissent)


action 'accrues' at the time the decedent's personal representative discovered, or

should have discovered, the cause of action").2 Once a wrongful death action

does accrue, the decedent's personal representative must commence the action

within the three-year limitation period set forth in RCW 4.16.080(2). Atchison.

161 Wn.2dat377.

        Thus, as a general rule, a wrongful death action may be prosecuted after
the action accrues but must be commenced before the applicable limitation

period expires. However, in 1935, our Supreme Court noted the existence of a
"limitation" on this rule: "namely, at the time of death there must be a subsisting
cause of action in the deceased." Grant, 181 Wash, at 581. Where the

deceased, whether by action (prevailing on a personal injury claim, for instance)
or inaction (failing to bring a personal injury claim within the statutory limitation
period) during his or her lifetime, "pursued a course of conduct which makes it
inequitable to recognize a cause of action for wrongful death," the "limitation" was
said to apply. Johnson. 45 Wn.2d at 422-23 (citing Grant, 181 Wash. 576, and
Calhoun. 170Wash. 152). As announced, the source of this "limitation" was
"[t]he wrongful death statute itself and generally recognized equitable principles."
Johnson. 45 Wn.2d at 423.

        Whereas the Supreme Court located the source ofthe "limitation" in the
wrongful death statute and in equitable principles, the majority opinion herein
 concedes that "[t]he wrongful death statute is silent" on the question of "whether



         2Nor, ofcourse, can there be a personal representative ofa decedent's estate prior to
 the decedent actually bothering to die.
No. 71297-7-1/4 (consol. with No. 71550-0-1) (Dissent)


the expiration of the statute of limitations for an individual's personal injury claims

or a judgment or settlement on those same claims during his lifetime can

preempt the accrual of his personal representative's wrongful death claim."

Majority at 4-5. This concession highlights the uncertainty of the legitimacy of the

"limitation" set forth in Calhoun and Grant, and begs this question: is there

evidence elsewhere in the revised code of the legislature's intent to bar wrongful

death actions, under certain circumstances, before they accrue?

       Admittedly, there is evidence ofthe legislature's intent to subject wrongful
death actions to a statute of limitation. Atchison. 161 Wn.2d at 377. See

generally Wills. 56 Wn. App. at 759-60 (explaining that, although the wrongful

death statute does not contain an express statute of limitation, the three-year

limitation period contained in RCW 4.16.080(2) "has been applied to wrongful
death claims because such claims qualify as 'any other injury to the person or

rights ofanother not hereinafter enumerated'" (footnote omitted) (quoting
Dodson. 159 Wash, at 591-92)). However, as our Supreme Court has explained

in a series of recent decisions, statutes of limitation do not begin to run until a

party has the right to apply to a court for relief—that is, once a claim accrues.
Wash. State Maior League Baseball Stadium Pub. Facilities Dist. v. Huber. Hunt

&Nichols-KiewitConstr.Co.. 176 Wn.2d 502, 511, 296 P.3d 821 (2013)

(hereinafter MLB); Cambridge Townhomes. LLC v. Pac. Star Roofing. Inc.. 166

Wn.2d 475, 484-85, 209 P.3d 863 (2009); 1000 Virginia Ltd. P'ship v. Vertecs

 Corp.. 158 Wn.2d 566, 575, 146 P.3d 423 (2006).
No. 71297-7-1/5 (consol. with No. 71550-0-1) (Dissent)


       Of course, a wrongful death action cannot accrue before death. As a

result, a personal representative lacks standing to bring such an action prior to

the death of the decedent. It follows, then, that the time period preceding the

death of the decedent should not be counted against the decedent's personal

representative in considering observance of the three-year statutory limitation

period. See Seamans v. Walgren. 82 Wn.2d 771, 775, 514 P.2d 166 (1973)

("When a person is prevented from exercising his legal remedy by some positive
rule of law, the time during which he is prevented from bringing suit is not to be

counted against him in determining whether the statute of limitations has barred
his right even though the statute makes no specific exception in his favor in such
cases.") In view of this, it may be reasoned that, in the event that the "limitation"
set forth in Calhoun and Grant was, in fact, founded on a statute of limitation,

Calhoun and Grant are inconsistent with more recent Supreme Court decisions,

which have made clear that statutes of limitation cannot be applied so as to bar

claims that have not yet accrued.3
        These more recent decisions have, in the course of clarifying the manner

in which statutes of limitation function, explained that, although statutes of


        3These recent Supreme Court decisions are in accord with the view taken by the
Restatement:
                A cause of action for death is complete when death occurs. Under most
        wrongful death statutes, the cause ofaction is a new and independent one,
        accruing to the representative orto surviving relatives ofthe decedent only upon
        his death; and since the cause of action does not come into existence until the
        death, it is not barred by prior lapse of time, even though the decedent's own
        cause of action for the injuries resulting in death would be barred. In some
        jurisdictions, however, the wrongful death acts take the form of statutes providing
        for the survival of the decedent's own cause of action, in which case the statute
        of limitations necessarily runs from the time of his original injury.
 Restatement (Second) of Torts § 899(c) at 442 (1979).
No. 71297-7-1/6 (consol. with No. 71550-0-1) (Dissent)


limitation cannot terminate the right to file a claim prior to its accrual, statutes of

repose can. MLB. 176Wn.2d at 511; accord Cambridge Townhomes. 166

Wn.2d at 484; 1000 Virginia. 158 Wn.2d at 575. "'A statute of repose terminates

a right of action after a specified time, even if the injury has not yet occurred.'"

1000 Virginia. 158 Wn.2d at 574-75 (quoting Rice v. DowChem. Co.. 124 Wn.2d

205, 211-12, 875 P.2d 1213 (1994)). In other words, a statute of repose

"provides a time period in which the cause of action must accrue." Donovan v.

Pruitt. 36 Wn. App. 324, 327, 674 P.2d 204 (1983). Thus, when a cause of
action is made subjectto both a statute of repose and a statute of limitation, such
an action will be barred if it either does not accrue within the repose period or,

after it accrues within the repose period, is not commenced within the limitation

period. 1000 Virginia. 158 Wn.2d at 575.

        It is apparent from these recent Supreme Court decisions that the
"limitation" discussed in Calhoun and Grant was in the nature of a statute of

repose, rather than a statute of limitation. The time period within which a
wrongful death action must accrue, by virtue of this "limitation," is either the
lifetime of the injured person orthe statutory limitation period imposed upon the
tort claims ofthe injured person. If the action does not accrue within either
period, then it may not be maintained. See Johnson. 45 Wn.2d 419; Grant, 181
Wash. 576; Calhoun, 170 Wash. 152.

        Although the legislature could, in all likelihood, have made wrongful death
actions subject to a statutory period of repose, there is no indication in the
wrongful death statute that it has ever chosen to do so. Cf Wills. 56 Wn. App. at
No. 71297-7-1/7 (consol. with No. 71550-0-1) (Dissent)


763 ("While the Legislature may have the power to enact such a limitation period

barring wrongful death claims even before they accrue, it is obvious to us that the

Legislature did not do so here.") Furthermore, unlike the statute of limitation-

codified in chapter 4.16 RCW—that has been applied to wrongful death actions,4
there is no sweeping statute of repose that could be fairly construed to

encompass wrongful death actions.

        In the event that the decisions in Calhoun and Grant were actually based

on a statute of limitation analysis, those decisions have not withstood the
Supreme Court's more recent decisions clarifying the manner in which statutes of
limitation function. On the other hand, in the event that Calhoun and Grant were

actually premised upon a statute of repose analysis, they were based on a
misperception and are unsupported by an appropriate legislative enactment. I
would decide the dispute before this court on the basis of our Supreme Court's
most recent pronouncements.

        In fairness, the Calhoun-Grant "limitation" was also purportedly founded
upon "generally recognized equitable principles." Johnson, 45 Wn.2d at 423.
 Notably, though, these equitable principles were not elucidated in Calhoun,
Grant, Johnson, or in any other decision. While the equitable defense of laches
 is comparable to a statute of limitation, equity has no counterpart to a statute of
 repose. Moreover, as with statutes of limitation, the equitable defense of laches
 presupposes the existence of an accrued cause of action. See Newport Yacht


         4RCW 4.16.080 ("The following actions shall be commenced within three years ... (2)^
 An action ... for any other injury to the person or rights of another not hereinafter enumerated.").

                                                  -7-
No. 71297-7-1/8 (consol. with No. 71550-0-1) (Dissent)


Basin Ass'n of Condo. Owners of Supreme Nw.. Inc.. 168 Wn. App. 56, 77, 277

P.3d 18 (2012) ("To constitute laches there must not only be a delay in the

assertion of a claim but also some change of condition must have occurred which

would make it inequitable to enforce it.'" (quoting Waldrip v. Olvmpia Oyster Co..

40 Wn.2d 469, 477, 244 P.2d 273 (1952))). It follows, therefore, that, in the

absence of a statute of repose, neither a statute of limitation nor the equitable

principle of laches may be applied to bar a wrongful death action before it has

accrued.

                                                 II


        In a recent instructive decision, the Utah Supreme Court considered

whether a wrongful death cause of action was foreclosed by virtue of the
decedent prevailing in a related personal injury action during her lifetime. Riggs
v. Ga.-Pac. LLC. 2015 UT 17, H8, 345 P.3d 1219. The Riggs court was asked to

interpret Utah's wrongful death statute, which is nearly identical to Washington's
wrongful death statute.5 The statute's language, the court opined,
"unambiguously, and without caveat, grants a person's heirs the right to 'maintain
an action for damages' if they allege that the decedent's death was caused by
'the wrongful act or neglect of another.'" Riggs, 2015 UT 17, U11 (quoting Utah
Code § 78B-3-106(1)). "When faced with such 'clear and unequivocal'
language," the court continued, "there is no further need for analysis." Riggs,


        5Compare Utah Code § 78B-3-106(1) ("[W]hen the death ofa person iscaused by the
wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his
heirs, may maintain an action for damages against the person causing the death           "), with
RCW 4.20.010 ("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.").


                                                 -8-
No. 71297-7-1/9 (consol. with No. 71550-0-1) (Dissent)


2015 UT 17, H 11 (footnote omitted) (quoting Brinkerhoffv. Forsyth. 779 P.2d

685, 686 (Utah 1989)). Thus, the court concluded, "We find nothing in the statute

to suggest that the cause of action is tied to the decedent's underlying personal

injury claim." Riggs. 2015 UT 17. H 11.

      The lead opinion dismisses this decision, as well as others, by explaining

that, in Calhoun and Grant, our Supreme Court "chose finality of settlements and

judgments and preclusion of stale claims and potential double recovery."
Majority at 16. Although the majority describes this as an "interpretation of the
wrongful death statute," it seems better characterized as a choice between policy
preferences. This is significant because, while the majority is correct in noting
that the legislature "has not seen fit" to overrule Calhoun and Grant, our Supreme
Court has directed that "[t]he formulation ofa new policy with regard to [a
wrongful death] cause of action is the responsibility of the Legislature, not a task
for this court." Huntington. 101 Wn.2d at 470. The point here is that the Riggs

decision, and others like it, should not be disregarded on the ground that our
Supreme Court has already expressed a policy preference. Riggs should,
instead, be considered as persuasive authority because the decision required
interpretation of a statutory provision, the language of which is nearly identical to
RCW 4.20.010.

       Nevertheless, because the majority raises the specter of double recovery,

 Iwish to note that Ido not think it necessary to resort to the unforgiving approach
No. 71297-7-1/10 (consol. with No. 71550-0-1) (Dissent)


of barring a claim in order to address this issue.6 Notably, in Grant itself, the

court allowed both a survival action and a wrongful death action to go forward

simultaneously, notwithstanding the apparent risk of double recovery.

Presumably, the court was satisfied that this risk could be adequately addressed

by the trial court, whether by carefully instructing the jury or otherwise. I see no

impediment to this being similarly accomplished in successive actions.

                                                 Ill


       In the end, it is the inconsistency between, on the one hand, Calhoun and

Grant, and, on the other, decisions such as 1000 Virginia and MLB, which, in my

view, requires departure from the ancient set of cases. Calhoun and Grant fail to

honor the distinction between statutes of limitation and statutes of repose and, as

a result, are inconsistent with more recent Supreme Court pronouncements.

While I would decide this matter on the basis of these more recent decisions, I

readily admit that only our Supreme Court can definitively declare whether
Calhoun and Grant have, indeed, been overtaken.

        Iwould hold that the plaintiff has a cause of action. Accordingly, Iwould

reverse.



                                         ^\




         6As a practical matter, I believe that the cure for double recovery, as identified by the
majority, may be more harmful than the disease—a belief that finds support in Division Two's
Wills decision. In Wills, the courtcondemned "the situation where [a wrongful death] claim could
be barred even before death triggers accrual ofthe right to bring the action" as being "illogical and
unjust." 56 Wn. App. at 769; se»e also Fast v. Kennewick Pub. Hosp. Dist. No. 31509-6-111, slip
op. at 10 (Wash. Ct. App. June 2, 2015)(examining Wills).

                                                 -10-
