When a person is killed due to someone else’s negligence, their loved ones may be able to pursue Washington wrongful death and survivorship claims. Survivorship claims and wrongful death claims are similar, but not identical. A Washington appeals court recently considered whether a judgment in a survivorship claim precluded a wrongful death action.
The deceased sued several defendants after she was diagnosed with mesothelioma. She settled with all but one of the defendants during trial, releasing all claims arising out of her personal injury claim and any future wrongful death claim. The remaining claim was converted to a survivorship claim after she died during trial. The jury returned a verdict in favor of the estate, but the court reduced it on a motion from the defendant. The court also allocated 20% of the settlement proceeds to future wrongful death claims. The court also reduced the judgment by 80% to offset the proceeds from the settling defendants. Both parties appealed and the appeals court affirmed the verdict, but reversed the reduction.
The estate filed a wrongful death action against several defendants. The trial court dismissed, finding the claims had been extinguished by the judgment in the survivorship case. The estate appealed, arguing a wrongful death claim is a new and distinct cause of action.
The appeals court noted that the survival statute lets an executor recover the deceased’s damages, including pain and suffering that happened between the time of the injury and death. Survival statutes do not create a new cause of action, but preserve causes of action for injuries that occurred before death.
Wrongful death statutes, however, create a cause of action for those identified in the statute. The appeals court noted the difference between the causes of action is that wrongful death applies to post-death damages and survival actions apply to pre-death damages.
The appeals court considered the claims against the defendant who was already in the previous case and the claims against the defendants who were not named in that case separately. The appeals court found that the claims against the defendant in the survivorship case were foreclosed. The Washington Supreme Court has indicated that prior litigation is an equitable limitation on wrongful death claims. The deceased had successfully pursued prior litigation against this defendant, so the trial court’s dismissal was appropriate.
The claims against the defendants who had not been parties in the survival case were not precluded by any of the equitable limitations on wrongful death claims. The deceased had not settled, released, or litigated her claims against those defendants.
The appeals court rejected the defendants’ claims that the action should have been barred due to res judicata. Res judicata applies where the subsequent action is identical to the previous one in parties, causes of action, subject matter, and the quality of persons for or against whom the claim is made. Although the parties do not have to be identical, there must at least be privity between a party in the previous and current case. Here, there is no evidence of privity.
The defendants also argued the risk of double recovery and inconsistent results should preclude the wrongful death claims. The appeals court again noted that the parties were not in privity.
This case shows that judgment or settlement of a survivorship claim only precludes a wrongful death action where the defendant was a party or in privity with a party in the survivorship case. If you have lost a loved one due to someone else’s negligence, an experienced Washington personal injury attorney can help you recover for your loss. Call Blair and Kim, PLLC, at (206) 622-6562.
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