                                                                                         FILED
                                                                                 cOiii k OF APPEALS
                                                                                      DIVISION 1I

                                                                                2014 SEP - 3   AM 3: 22

                                                                                 STATE OF WASHINGTON

                                                                                 BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II


EARL VERNON, individually and as Personal                                       No. 44328 -7 -II
Representative of the ESTATE OF HENRY
DAVID VERNON,


                                       Appellant,


           v.



AACRES ALLVEST, LLC, a Limited                                             PUBLISHED OPINION

Liability Corp., AACRES LANDING, INC.,
AACRES WA, LLC, a Limited Liability
 Corp., and AALAN HOLDINGS, INC.,

                                       Respondents.


           JOHANSON, C.J. —         Earl Vernon, on behalf of his brother Henry David Vernon' s estate,

appeals the superior court' s order granting summary judgment in favor of Aacres Allvest, LLC,

Aacres     Landing,    Inc., Aacres WA, LLC,        and   Aalan Holdings, Inc. ( Aacres). Earls argues that ( 1)


                              in                his                  damages   claim under   the   wrongful   death
the   superior court erred         dismissing         noneconomic
                                                                                                                      r



statute ( RCW 4.20. 020) because the court should have recognized a common law wrongful death

cause of action, (     2) the superior court erred in dismissing his economic damages claim under the

general     survival   statute (   RCW 4. 20. 046), ( 3) the superior court' s dismissal of Earl' s claims




1 We refer to Henry David Vernon as David and his brother Earl Vernon by his first name for
clarity.
No. 44328 -7 -II



violated David' s constitutional right to access the court, and ( 4) David should be considered a

minor for the purposes of the wrongful death statute.


        We hold that ( 1) the superior court properly dismissed Earl' s noneconomic damages claim

under the wrongful death statute because he lacks standing as a statutory beneficiary and we cannot

recognize a wrongful death common law cause of action which conflicts with the existing statutory

framework, ( 2)     the superior court erred in dismissing Earl' s economic damages claim because

these damages are available under the general survival statute notwithstanding the absence of


qualifying     statutory   beneficiaries, (     3)    Earl'   s       claim        that   the   wrongful   death   statute   is

unconstitutional fails because the statute does not create a cause of action for deceased persons,

and ( 4) Earl failed to preserve the claim that David should be considered a minor for the purposes

of the wrongful death statute. Accordingly, we affirm in part and reverse in part.

                                                        FACTS


         David     was   born severely disabled.         Because of his disabilities, David was completely

dependent on others for his health and personal care needs. In 2009, David lived in a home under

the   care   and   supervision   of   Aacres.   In late July, western Washington experienced a record -

breaking heat wave. On the morning of July 29, Aacres staff member Francis Muraya found David

lying unresponsive on his bedroom floor. Emergency personnel transported David to the hospital
where    he   was pronounced      dead.    The       cause    of      David'   s    death   was "   exogenous hyperthermia"


 consistent with high core body temperature. Clerk' s Papers at 188.




                                                                  2
No. 44328 -7 -II



         Earl, David' s legal       guardian,    filed   suit against   Aacres   under   the "   Abuse of Vulnerable


Adults Act" ( AVAA).2          Earl alleged that Aacres should be responsible for David' s death because

Aacres negligently allowed him to sleep in an upstairs bedroom with closed windows and doors

during a record heat wave knowing that David' s medication made it difficult for him to control his

body    temperature.       Aacres moved for summary judgment, asserting that Earl' s claims must be

dismissed because he lacked standing to bring suit under both the wrongful death statute and the

general survival statute.



          In   response    to Aacres'    motion for summary judgment, Earl argued that damages for

David' s pain and suffering and for funeral expenses should be available under the wrongful death

statute and the general survival statute.3 In the alternative, Earl argued that the superior court

should recognize a common law wrongful death cause of action which would allow him to recover

both    economic     and    noneconomic      damages.        But the superior court agreed with Aacres and


summarily dismissed each of Earl' s claims because it found that he lacked standing as a beneficiary
under the statutory framework that governs wrongful death actions in Washington. The superior

court did not specifically address the claim for funeral expenses. Earl appeals on behalf of David

and his estate.




2 Ch. 74.34 RCW.

 3
     Earl filed   suit   alleging   violations   of   AVAA.       A provision of the AVAA, RCW 74. 34. 210,
 unequivocally grants a decedent' s estate the right to recover economic damages even absent
 qualifying statutory beneficiaries. Therefore, the AVAA controls and could resolve this issue. But
 both on appeal and in the superior court, Earl relies entirely on the general survival statute to
 support his contention that David' s estate is entitled to recover funeral expenses as economic
 damages. Therefore, in response to Earl' s specific arguments, we analyze his claim in terms of
 the general survival statute as raised and briefed.

                                                              3
No. 44328 -7 -II



                                                 ANALYSIS


                                           I. STANDARD OF REVIEW


         We review summary judgment orders de novo, performing the same inquiry as the superior

court.   Hisle   v.   Todd Pac. Shipyards   Corp.,   151 Wn.2d 853, 860, 93 P. 3d 108 ( 2004).   Summary

judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions


on file, together with the affidavits, if any, show that there is no genuine issue of material fact and

that the moving       party is entitled to judgment as a matter of law.   CR 56( c); Vallandigham v. Clover


ParkSch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P. 3d 805 ( 2005).


         When reviewing a summary judgment, we consider all facts and reasonable inferences

from them in the light       most   favorable to the nonmoving party.      Vallandigham, 154 Wn.2d at 26;


Magula    v.   Benton Franklin Title Co., 131 Wn.2d 171, 182, 930 P. 2d 307 ( 1997).         Moreover, we


consider solely the issues and evidence the parties called to the trial court' s attention on the motion

for summary judgment. RAP 9. 12. But we will consider an issue raised for the first time on appeal

if the claimed error is a manifest error affecting a constitutional right. RAP 2. 5( a)( 3).

                                         II. NONECONOMIC DAMAGES


         Earl argues that despite his apparent lack of standing under the wrongful death statute, the

superior court nonetheless erred in dismissing his noneconomic damages claims on summary

judgment because we should recognize a common law cause of action to allow the estate to




                                                         4
No. 44328 -7 -II



recover for David' s wrongful. death.4 We hold that the comprehensive wrongful death statutes

preclude recognition of a wrongful death common law cause of action.

                                           A. RULES OF LAW


        Washington' s wrongful death statutes create a right of action to recover damages when a


person' s death is caused by the wrongful act, neglect, or default of another. RCW 4.20. 010. But

the statutory framework also places limitations on who may bring such an action. RCW 4.20.020.
RCW 4. 20. 020 provides in part,


        Every such action shall be for the benefit of the wife, husband, state registered
        domestic partner, child or children, including stepchildren, of the 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 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 within the United States at the time of his
        or her death


Accordingly, the legislature has created a two -tier system of beneficiaries for purposes of a
wrongful death action. Spouses and children of the decedent are the " first tier" beneficiaries while

the decedent' s parents and siblings constitute " second tier" beneficiaries. Philippides v. Bernard,

 151 Wn.2d 376, 385, 88 P. 3d 939 ( 2004).       Second tier beneficiaries are entitled to recover for the

decedent' s wrongful death only if there are no first tier beneficiaries and if the second tier

                    demonstrate that he   or she was   dependent   upon   the deceased for   support.   RCW
beneficiary   can




4. 20. 020; Philippides, 151 Wn.2d at 386.




 4 Earl brought this action under the AVAA, yet our focus here remains on the wrongful death
 statutes because RCW 74. 34.210 provides in part,
         Upon petition, after the death of the vulnerable adult, the right to initiate or maintain
         the action shall be transferred to the executor or administrator of the deceased, for
         recovery of all damages for the benefit of the deceased person' s beneficiaries set
         forth in chapter 4. 20 RCW.

                                                       5
No. 44328 -7 -II



                                     B. APPLICATION OF WRONGFUL DEATH LAW


            Here, Earl admits that he was not dependent on David. Earl further admits that David was

not survived by anyone who could satisfy the criteria to recover under the wrongful death statute

as   a    designated     beneficiary.      Therefore, the superior court did not err in granting summary

judgment in Aacres' favor because Earl lacked standing                     under    the   wrongful   death   statute.   RCW


4. 20. 020.


            Nevertheless,       Earl argues that Washington courts have labored under a historical

misconception that wrongful death claims never existed at common law. Earl argues that several

other jurisdictions have held that their wrongful death statutes do not necessarily preclude a

common           law   wrongful   death    claim.   He supports his position with language from Ueland v.

Reynolds Metals Co., in              which our   Supreme Court        said, "   When justice requires, this court does


not      hesitate to   expand   the    common    law   and recognize a cause of action."             103 Wn.2d 131, 136,


691 P. 2d 190 ( 1984).


            But Earl ignores the fact that our Supreme Court has rejected an identical argument

regarding        a   different but    rather similar statute.     In Philippides, the court was asked to interpret


RCW 4.24.010, which governs actions for injury or death of children and which also contains a

 requirement that parents who bring an action on behalf of an adult child show that they are

 dependent on that child for support. 151 Wn.2d at 387. The Philippides court was asked to adopt

 a common law loss of consortium cause of action on behalf of parents of adult children injured or

 killed                         defendant.     151 Wn.2d     at     388.   The Supreme Court considered the same
            by   a negligent



 language from Ueland that Earl cites here and noted that while it does not hesitate to expand the

 common law, the case before it was governed entirely by statute whereas the Ueland court was


                                                                6
No. 44328 -7 -II



asked to expand allowable damages within an existing common law framework. Philippides, 151

Wn.2d at 390. The Supreme Court concluded that adopting a common law cause of action would

create a direct conflict with the existing statutory scheme. Philippides, 151 Wn.2d at 390.

        The Philippides court stated further,


        The "courts of this state have long and repeatedly held, causes of action for
        wrongful death are strictly a matter of legislative grace and are not recognized in
        the   common        law."   Tait   v.   Wahl, 97 Wn.      App. [ 765, 771, 987 P. 2d 127 ( 1999),
        review        denied,   140     Wn.2d     1015 ( 2000)].        The   legislature    has   created a
        comprehensive set of statutes governing who may recover for wrongful death and
        survival, and there is no room for this court to act in that area. Windust v. Dep' t of
        Labor & Indus., 52 Wn.2d 33, 36, 323 P. 2d 241 ( 1958). " It is neither the function
        nor     the   prerogative     of courts   to modify legislative       enactments."     Anderson v.
        Seattle, 78 Wn.2d 201, 202, 471 P. 2d 87 ( 1970).


151 Wn.2d at 390. Accordingly, we hold that we cannot recognize a common law wrongful death

cause of action because doing so would conflict with the existing statutory framework and it is not

the function of courts to modify legislative enactments.

                                                III. ECONOMIC DAMAGES


         Earl next contends that David' s estate should be able to recover economic damages under

the   general    survival    statute,   RCW 4. 20. 046( 1),       despite the lack of beneficiaries under RCW


4. 20. 020.   Aacres responds that the general survival statute only allows recovery on behalf of the

same beneficiaries enumerated in the wrongful death statute. We agree with Earl and hold that the

superior court erred in failing to award funeral expenses to Earl because, contrary to Aacres'

assertion, David' s estate may recover economic damages under the general survival statute.

         The general survival statute preserves all causes of action that a decedent could have

brought had he or she survived. Otani ex rel. Shigaki v. Broudy, 151 Wn.2d 750, 755 -56, 92 P. 3d

 192 ( 2004).    The purpose of awarding damages under the survival statute is to remedy the common


                                                              7
No. 44328 -7 -II



law anomaly that allowed tort victims to sue if they survived, but barred their claims if they died.

Otani, 151 Wn.2d         at   755. The general survival statute provides in part,


         All causes of action by a person or persons against another person or persons shall
         survive to the personal representatives of the former and against the personal
         representatives of the latter, whether such actions arise on contract or otherwise,
         and whether or not such actions would have survived at the common law or prior
         to the date      of enactment       of   this   section:    PROVIDED, HOWEVER, That the
        personal representative shall only be entitled to recover damages for pain and
        suffering, anxiety, emotional distress, or humiliation personal to and suffered by a
        deceased on behalf of those beneficiaries enumerated in RCW 4.20.020, and such
         damages are recoverable regardless of whether or not the death was occasioned by
         the injury that is the basis for the action.

RCW 4. 20. 046( 1) (     emphasis added).         By its language, the general survival statute adopts the " two -

tier" system of beneficiaries featured in the wrongful death statute for noneconomic damages.

         But the statute' s plain language does not preclude David' s estate from recovering purely

economic damages despite the fact that Earl is not a statutory beneficiary. Accordingly, we agree

that the superior court erred when it dismissed Earl' s claim for economic damages.

         In Wilson v. Grant, Division Three of this court concluded that nothing in the general

survival statute' s history demonstrated that the legislature intended to limit the traditional recovery

of economic damages only to those who qualified as statutory beneficiaries under RCW 4.20.020.

 162 Wn.   App.    731, 741 -42, 258 P. 3d 689 ( 2011);            see also Cavazos v. Franklin, 73 Wn. App. 116,

 121,   867 P. 2d 674 ( 1994) (          holding that under the general survival statute, the decedent' s

 administrator     is   entitled   to   maintain an action      for the   following   damages:   disability with its

 attendant permanent loss of earning power, burial and funeral expenses, medical and hospital

 expenses, and general damages to the decedent' s estate).

         The Wilson court also scrutinized a 1993 amendment to the general survival statute, which


 amendment added the language giving rise to statutory beneficiaries' right to recover noneconomic

                                                               8
No. 44328 -7 -II



damages (     such    as pain and     suffering).      162 Wn.        App.     at   741.    The court concluded that the


amendment was intended to address only concerns that noneconomic damages were available to

statutory beneficiaries         under   the "   special     survival      statute" (   RCW 4.20. 060), while the same


damages      were    simultaneously     unavailable under           the   general survival statute.      Wilson, 162 Wn.


App.   at   741.    The legislature voiced its concern that an earlier version of the statute had created a

loophole that functioned to reward those who delayed settlements because a person who survived

a tortious act, but later died, was precluded from recovery. See H.B. REP. ON S. B. 5077, at 2, 53rd

Leg., Reg.    Sess. ( Wash. 1993).      In the Wilson court' s view, the amended language was not intended


to apply to the entire paragraph of the statute to preclude recovery of historically available
economic      damages     even when      there are     no   qualifying beneficiaries.          162 Wn.   App.   at   742. The


Wilson court then cited several cases where economic damages have been awarded absent statutory

beneficiaries       or showings of    dependency. 162 Wn. App. at 742 -43.

            Aacres contends that Division One of this court reached the opposite conclusion in

Cummings       v.   Guardianship     Services of Seattle, 128 Wn.                 App.   742, 110 P. 3d 796 ( 2005),   review




denied, 157 Wn.2d 1006 ( 2006).             But that case is distinguishable because the court in Cummings

interpreted a former provision of the AVAA that it deemed controlling instead of the general

 survival statute.       128 Wn.    App.   at   752.    There, the court held that no economic damages were

recoverable because an AVAA provision restricted the right to seek all damages except damages

 for the benefit     of the   statutory beneficiaries "'      set   forth in   chapter     4. 20 RCW "' and Cummings had


 no qualifying       beneficiaries. Cummings, 128 Wn.                App.    at   752 ( emphasis   omitted) (   quoting RCW

 74. 34. 210).      Furthermore, the legislature later          amended           the dispositive provision     in Cummings
No. 44328 -7 -II



with language unequivocally permitting recovery of economic damages in the absence of statutory
                 5
beneficiaries.       LAWS   OF   2007,   ch.   312, § 11; RCW 74. 34. 210.


                            Aacres                   dicta from Philippides in      support of   its   argument.   The
        Additionally,                relies     on




Philippides court made the broad statement that " Washington' s four interrelated statutory causes

of action for wrongful death and survival each require that parents be ` dependent for support' on

a deceased adult child in order to recover. See RCW 4. 24. 010 ( child injury / eath); RCW 4. 20. 020
                                                                              d

 wrongful     death); RCW 4. 20. 046 (           general   survival   statute);   RCW 4. 20. 060. ( special   survival




statute)."   151 Wn.2d at 386. This is true, but only to the extent a party is seeking to recover for

noneconomic damages. The Wilson court also considered this statement and concluded that it was

not meant to preclude an award of economic damages.

         Accordingly, although the general survival statute allows only those who qualify as

beneficiaries to pursue claims for certain enumerated damages, it does not exclude all other

damages      historically   available.     Therefore, we follow Wilson and hold that economic damages,

including funeral costs are available to David' s estate under the general survival statute.

                                               IV. ACCESS TO THE COURT


         Earl contends that prohibiting David' s recovery of noneconomic damages violates David' s
 constitutional right of access to the courts under both Title II of the Americans with Disabilities




 5 RCW 74. 34.210 now provides in part,
         Upon petition, after the death of the vulnerable adult, the right to initiate or maintain
         the action shall be transferred to the executor or administrator of the deceased, for
         recovery of all damages for the benefit of the deceased person' s beneficiaries set
         forth in chapter 4. 20 RCW or ifthere are no beneficiaries, then for the recovery of
         all economic losses sustained by the deceased person' s estate.
  Emphasis   added.) Neither party argues that amended RCW 74. 34.210 applies.



                                                              10
No. 44328 -7 -II



Act (ADA), 42 U. S. C. §§             12131- 12165, and article I, section 10 of the Washington Constitution.


As   a   threshold       matter,   Earl did   not present       this to the   superior court.       But a party may raise a

manifest         error    affecting   a   constitutional    right   for the first time       on   appeal.        RAP 2. 5( a)( 3). 6


Assuming without deciding that the alleged error is a manifest error of constitutional magnitude,

we reach but reject the merits of this claim. In doing so, we adopt Division Three' s reasoning in

Triplett    v.   Department ofSocial &          Health Services, 166 Wn. App. 423, 429, 268 P. 3d 1027, review

denied, 174 Wn.2d 1003 ( 2012),                  and hold that Earl' s claim fails because the wrongful death

statutes cannot be considered unconstitutional by denying access to the courts to someone who is

no longer living.

           The United States Supreme Court has held that Title II of the ADA is constitutionally valid

and that access to the courts is a fundamental right. Tennessee v. Lane, 541 U.S. 509, 533 -34, 124

S. Ct. 1978, 158 L. Ed. 2d 820 ( 2004). Title II                    of   the ADA     provides, "[   N] o qualified individual


with a disability shall, by reason of such disability, be excluded from participation in or be denied
the benefits         of   the   services,   programs,      or   activities   of a public     entity."      42 U. S. C. §     12132.



Additionally, our Supreme Court has held that access to the civil justice system is founded upon
 our     constitution       which mandates       that "[   j] ustice in all cases shall be administered openly, and




 6 This exception is construed narrowly by requiring the asserted error to be ( 1) manifest and ( 2)
  truly    of constitutional magnitude."              State v. McFarland, 127 Wn.2d 322, 333, 899 P. 2d 1251
  1995).       Error is manifest if it results in a concrete detriment to the claimant' s constitutional rights,
 and     the   claimed error rests upon a plausible argument                  that   is   supported   by   the    record.   State v.

 WWJ                 138 Wn.2d 595, 603, 980 P. 2d 1257 ( 1999).                     Because Earl argues that the statute
           Corp.,
 under which the entirety of his case was dismissed is unconstitutional as applied to David, Earl
 can show "` practical and            identifiable   consequences '       of the asserted error. WWJ Corp., 138 Wn.2d
 at 603 ( quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P. 2d 251 ( 1992)).
                                                                    11
No. 44328 -7 -II



without     unnecessary       delay."    WASH. CONST.            art.   I, §   10; Lowy v. PeaceHealth, 174 Wn.2d 769,

776, 280 P. 3d 1078 ( 2012).


           Here, Earl argues that, absent beneficiaries, recovery under the wrongful death statute
                                                                          7
would      be limited to David'         s"    net accumulations."              Accordingly, in Earl' s view, the fact that

David' s disability precluded him from garnering such " accumulations" effectively denies David

his constitutional right of access to the court. Division Three of this court previously considered

and   rejected      this    argument.        In Triplett, Division Three held that this " access to the courts"


argument lacked merit because Washington' s wrongful death statutes do not purport to provide a

cause of action or access           to the    courts   to   a   deceased       person.       166 Wn.   App.   at   429. The Triplett


court was persuaded by the argument that because a person who is dead cannot pursue any action,

it is "'   absurd to suggest that the wrongful death statute unlawfully restricts their access to the

courts.'       166 Wn. App. at 429.

            Such a holding is consistent with the principle that Washington' s wrongful death statutes

create causes of action only for specific surviving beneficiaries of the deceased and which only

begin      at the   death   of   the decedent.     Otani, 151 Wn.2d              at   755.    Accordingly, as the Triplett court

concluded, RCW 4. 20. 020 does not violate David' s constitutional rights to access the courts post-




 7"
      Net    accumulations"         are the decedent' s earnings over a normal life span calculated by
 determining the decedent' s probable gross earnings subtracting personal and family support
 expenditures        and    then reducing the figure to            present value.            Federated Servs. Ins. Co. v. Pers.
 Representative of Estate of Norberg, 101 Wn.                      App.        119, 126, 4 P. 3d 844 ( 2000), review denied,
 142 Wn.2d 1025 ( 2001).

                                                                    12
No. 44328 -7 -II



mortem.      Therefore, we follow Triplett to hold that David was not denied access to the courts in

violation of his constitutional rights. 8

                                                 V. EQUIVALENCY TO MINOR


          Finally, Earl asserts that David should be considered a minor under Washington law
                                                         9
because     of    his   cognitive       disabilities.          Aacres argues that consideration of this argument is

improper because Earl             raises     it for the first time        on appeal.    We     agree with    Aacres.   RAP 9. 12


provides,    in    pertinent part, "       On review of an order granting or denying a motion for summary

judgment the appellate court will consider only evidence and issues called to the attention of the

trial   court."    The   purpose of       RAP 9. 12 "` is to effectuate the rule that the appellate court engages


in the   same     inquiry   as   the trial   court. "'       Mithoug v. Apollo Radio ofSpokane, 128 Wn.2d 460, 462,

909 P. 2d 291 ( 1996) (          quoting Wash. Fed'n ofState Empls. Council 28 AFL -CIO v. Office ofFin.


8
    Earl filed Schroeder           v.    Weighall, 179 Wn. 2d 566, 316 P. 3d 482 ( 2014), as supplementary

authority. In Schroeder, our Supreme Court held that a statute that eliminated tolling of the statute
of limitations for minors in medical malpractice cases was unconstitutional under the privileges
and     immunities      clause of       the Washington Constitution.            179 Wn.2d         at   577. The court found that

there was no rational explanation for the legislature' s failure to eliminate tolling only for this group
of plaintiffs. Schroeder, 179 Wn.2d at 577.
           To the extent that Earl wishes to make a similar argument, he cannot show, as he must, that
there is no reasonable ground to distinguish between the tiers of beneficiaries. The legislature has
 ostensibly determined that the degree to which a spouse or child typically depends on a decedent
 is sufficiently different from that which a parent or sibling does. A child would frequently be able
to   establish     dependence        on a parent,            but the inverse is      likely   rare.    The same can be said in

 comparing spouses with siblings. The Philippides court rejected a similar argument based on the
 privileges       and   immunities       clause.   151 Wn.2d         at   392 -93.    There, the court concluded that there
 was no violation of the privileges and immunities clause because legitimate differences between
 classes provided a reasonable basis to treat them differently. Philippides, 151 Wn.2d at 393.

 9 It is not clear from Earl' s briefing how he would be entitled to recover in the event that David
 was considered a minor.       Recovery is arguably broader under RCW 4.24. 010, the statute that
 govern actions for injury or death of children, but that statute allows either a mother, a father, or
 both parents to bring an action. It does not entitle a sibling to do so.
                                                                     13
No. 44328 -7 -II



Mgmt., 121 Wn.2d 152, 157, 849 P. 2d 1201 ( 1993)).         Accordingly, because Earl did not bring this

issue to the superior court' s attention, we will not now consider it on appeal.'°

                                              CONCLUSION


        We reverse the superior court' s grant of summary judgment in favor of Aacres on the issue

of economic damages and remand for a determination of David' s funeral expenses. We decline to

recognize a common law wrongful death cause of action that would conflict with the existing


statutory framework and, therefore, we affirm the superior court' s order granting summary

judgment   on   the   noneconomic   damages   claim.   We hold further that the wrongful death statute


does not unconstitutionally deny David access to the courts."




 We concur:




 HUNT J.




 10 We note that even were we to consider Earl' s argument, it would likely fail because Earl points
to no authority in support ofhis argument that a developmentally disabled and legally incapacitated
adult is a minor for the purpose of the wrongful death or survival statutes. Furthermore, when the
legislature intends to include mentally incompetent or disabled persons in the same category as
minors, it has done so explicitly. Bennett v. Seattle Mental Health, 166 Wn. App. 477, 487, 269
P. 3d 1079,   review   denied, 174 Wn.2d 1009 ( 2012).      To treat developmentally disabled adults the
 same as minor children would greatly expand the statutory beneficiaries entitled to bring a
 wrongful death action and such a significant change must come from the legislature. Bennett, 166
 Wn. App. at 487; Triplett, 166 Wn. App. at 432 -33.

 11 We do not reach the issue of whether David should be considered a minor because this issue
 was not properly preserved for review.
                                                       14
