WA Case Update: Beyond the Grave: Wrongful Death Actions and the Statute of Limitations

From the Desk of Kyle Riley: Can the survivor of a deceased relative file a wrongful death action when the underlying cause of action would have been barred by the statute of limitations if the deceased had brought the claim?

Claims Pointer: Washington common law recognizes a wrongful death action, but it is limited to those suits that the deceased person could have brought if he were still alive. When action by the deceased would be time-barred, a surviving relative’s wrongful death claim based on the same underlying facts is also barred.

Deggs v. Asbestos Corporation Limited, No. 71297-7-I, 2015 WL 3833831, Court of Appeals of Washington, Div. 1.

In 1999, Roy Sundberg sued dozens of defendants for their role in exposing him to asbestos for more than 40 years that led to his contracting colon cancer and lymphoma. A jury awarded Sundberg $1.5 million in damages. In 2010, Sundberg died of lymphoma. In 2012 (more than ten years after Sundberg discovered his injuries), Sundbergs’ daughter, Judy Deggs, filed an asbestos-related suit against many of the same defendants, including Asbestos Corporation Limited and some defendants that were not parties to the original suit.

One of the parties, AstenJohnson, filed a motion for summary judgment arguing that Deggs’ wrongful death and survival actions were barred by the statute of limitations which had run on the underlying claims. Deggs admitted that the statute of limitations had run for any claims her father could have brought. The trial court granted the motion and dismissed those claims against all of the defendants. Deggs appealed the court’s ruling as to the wrongful death claim.

Deggs argued on appeal that the wrongful death claim was within the statute of limitations (3 years for wrongful death) because it did not start to run until Sundberg died. The Washington Court of Appeals disagreed, stating that the wrongful death claims were improper because the claims underlying the wrongful death claim were...

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