Wrongful Death: A Creature of Statute
When you think of a wrongful death case try not to think of it as a tort case. Wrongful death did not exist in the common law and in fact it did not even exist in statutory form until a little over 100 years ago or so. We are all creatures of habit and because of that we often carry the legal concepts in tort law over into our thoughts about wrongful death. This is a mistake. You must always, no matter how many wrongful death cases you have handled, read the statute. It is full of surprises.
An example of this problem can be found in the recent Washington State Supreme Court case of Atchison v. Great W. Malting Co. Docket No. 80034-1 decided August 30, 2007. In this case Mr. Atchison died intestate in June of 2000. At the time his most immediate next of kin was his daughter, age 15 at the time. She turned 18 on March 19, 2003. On November 9, 2005 she was appointed personal representative of her father's estate. On February 10, 2005, as the personal representative, she filed a wrongful death action against her father's employer Great Western Malting claiming that the company negligently caused his death.
Great Western moved to dismiss claiming that the statute of limitations had run. They argued that the three year statute of limitations started running the day he died meaning the statute of limitations ran out in June 2003. His daughter argued that since she was only 15 at the time of his death her minority status tolled the statute from running until she reached age 18 in March of 2003 and therefor she was still within the statute of limitations.
The Court held that pursuant to RCW 4.20.010 only a personal representative could bring an action for wrongful death. Further the daughter could not be a personal representative until she reached age 18. In addition, the tolling statute RCW 4.16.190 becomes operative only when the "person entitled to bring an action" is disabled as in "is a minor." So the statute started running on the date he died and was not tolled by the daughter;s minority because, not only was she not the personal representative, but she could not even become the personal representative until she turned 18. So in this case she only had a small window of opportunity between the time she turned 18 in March 2003 and the date the statute ran out in June of 2003 to be appointed the personal representative and file suit. By February of 2005 it was too late by a long shot.
The daughter tried to argue that "the personal representative" should be considered to be the daughter who was to become the personal representative in the future. That is the statute should have been tolled until she was able to become the personal representative. The Court, I think, rightfully pointed out that that would lead to all sorts of means to manipulate the statute. For example, let's say that a case comes to an attorney three years after the person dies and his estate has not be probated yet. The attorney could just find someone who is presently under 18, wait until they turn 18, and then appoint the person as the personal representative and start the statute of limitations running all over again.
Lesson learned - read the statutes carefully. In this case it would be easy to assume that if the plaintiff was under 18 at the time of the person's death that the statute would toll until the plaintiff turned 18.
