United States: Washington Supreme Court Affirms Dismissal Of Asbestos Related Wrongful Death Case On The Basis Of The Statute Of Limitations Over A Vigorous Dissent

In Deggs v. Asbestos Corp. Ltd., Supreme Court Cause No. 91969-1, 2016 Wash. LEXIS 1132 (Oct. 6, 2016), Judy Deggs' wrongful death claims arose out of an asbestos-related injury to her father Ray Sundberg. Sundberg served in the United States Navy during the Second World War and worked for decades thereafter in dockyards and lumber yards. Throughout his long work life, he was exposed to asbestos. He was eventually diagnosed with lymphoma, pleural disease, and asbestosis relating to asbestos exposure. Sundberg filed a personal injury lawsuit in 1999 against nearly 40 defendants who had some part in exposing him to asbestos. Most settled; one went to trial where Sundberg prevailed.

Nine years later, Sundberg died of asbestos-related disease. He was survived by his wife and Deggs. Deggs brought a wrongful death action as the personal representative of her father's estate. She primarily named defendants who had not been named in her father's prior lawsuit, though both suits named Asbestos Corporation Limited ("ACL"). ACL and another defendant moved to dismiss the suit as time barred because it was filed more than three years after Sundberg learned he had asbestos-related diseases. The statute of limitations on personal injury suits in Washington is three years. RCW 4.16.080(2). According to ACL, Sundberg did not have a cause of action against it for his injuries at the time of his death due to the passage of time. The trial court agreed and granted the motion.

The Court of Appeals, Division I affirmed over a vigorous dissent. Deggs v. Asbestos Corp. Ltd., 188 Wn. App. 495, 500, 354 P.3d 1, review granted, 184 Wn.2d 1018, 361 P.3d 746 (2015). The majority concluded that Deggs could not bring a wrongful death suit after Sundberg died where Sundberg could not have brought a second personal injury suit based on his asbestos exposure before he died because he already had a judgment against ACL and the statute of limitations had expired against the other defendant. Id. at 511. The dissent criticized the majority for relying on old precedent it believed had been undermined by subsequent case law. The dissent noted that the practical effect of the majority's opinion is that a wrongful death claim can expire before the decedent dies. Id. at 511–12.

The Supreme Court of Washington granted Deggs' petition for review and affirmed over an even more vigorous and scathing dissent. Numerous amicus curiae, including Washington Defense Trial Lawyers, weighed in on the debate. The Court spent considerable time tracing the development of Washington's wrongful death statute and its common law history before deciding whether Deggs, as her father's personal representative, could maintain a suit where her father could not have. The Court did not question whether Deggs' lawsuit was timely filed, but ultimately held that any claim was time barred because the statute of limitations ran on Sundberg's personal injury claims before he died. Despite suggesting Johnson v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954), Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 44 P.2d 193 (1935), and Calhoun v. Wash. Veneer Co., 170 Wash. 152, 160, 15 P.2d 943 (1932) (all of which held the lapsing of the statute of limitations on the underlying personal injury claim bars a personal representative from bringing a wrongful death claim) may have been incorrect at the time they were announced, the Court declined to overturn them where Deggs did not show they were harmful. Slip. Op. at 15 (noting the Court will not overturn precedent unless there has been a "clear showing that an established rule is incorrect and harmful."). The Court affirmed the dismissal of Deggs' lawsuit, reaffirming that a wrongful death action accrues at the time of death so long as there is a "subsisting cause of action in the deceased" at the time of death, subject to exceptions not present in this case.

Justice Steven González authored the majority opinion in which Justices Susan Owens, Mary Fairhurst, Sheryl Gordon McCloud, and Mary Yu concurred. Justice Debra Stephens authored the dissenting opinion in which Chief Justice Barbara Madsen and Justices Charles Johnson and Charles Wiggins concurred. The opinion may be access from the Court's website or at http://www.courts.wa.gov/opinions/pdf/919691.pdf.

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