By Rebecca L. Reed, Attorney
In Atchison v. Great W. Malting Co., Docket No. 80034-1 (2007), at the time of the decedent’s death in 2000, the decedent’s immediate next of kin and child was 15. In 2003, the child turned 18 and in 2005, the child was appointed personal representative of the estate. She then filed a wrongful death action against Great Western Malting Co., claiming negligence caused her father’s death.
The Court examined the question of whether the statute of limitations, which bars claims for wrongful death after three years from the date they accrue, was tolled because the personal representative was a minor when the claim accrued.
I. A personal representative is the only person who may maintain an action for wrongful death of a decedent.
In Washington State, our courts have held that the wrongful death statute codified at RCW 4.20.010 allowing a personal representative to maintain an action for damages based on the wrongful act, neglect or default of another causing the death of the decedent, may be pursued only by the personal representative and no other individual.
II. A wrongful death action of a decedent may only be maintained for the benefit of a spouse or children.
However, while the personal representative is the only person who may bring an action for the wrongful death of a decedent, the suit may only be maintained for the benefit of the wife, husband, child or children, including stepchildren, of the person whose death was caused. RCW 4.20.020. Therefore, the personal representative cannot bring suit for wrongful death for the benefit of any other individual except those named in the statute above.
III. Minors may not serve as personal representatives.
The Court discussed the statutory limitations on persons who may serve as personal representative, noting that statute bars minors from becoming personal representatives. Therefore, in this case, the child could not have served as personal representative when her father died because she was a minor.
IV. Wrongful death actions accrue at the time a decedent dies, not when a personal representative is appointed.
The Court further discussed precedent case law which has held that a wrongful death action accrues at the time of the decedent’s death even though a wrongful death action is not possible until a personal representative is appointed. Therefore, in this case, the child’s wrongful death action accrued in 2000, but she was not appointed until 2005.
Further application of the statute of limitations, which is 3 years, would therefore bar the child’s wrongful death claim because it was filed more than 3 years after the date of the decedent’s death.
V. The tolling of the statute of limitations for wrongful death actions is only applies to the personal representative.
There is a tolling statute (RCW 4.16.190), which may toll the statute of limitations on the basis of minority or disability. However, the court has limited its application to the wrongful death statute to only operate if the personal representative is disabled. Therefore, the statute is not tolled if the beneficiaries are minorities at the time the action accrues.
VI. Tolling statute will not apply to personal representative who is of minority when the wrongful death action accrues.
In this case, the Court reasoned that because the child was a minor when the wrongful death action accrued, she could not have been appointed personal representative. Therefore, because she could not have been appointed personal representative, the tolling statute could not apply, because it only applies to those persons who are entitled to bring the action, i.e. personal representatives. Therefore, the minority of a personal representative cannot toll the statute of limitations.
VII. Reasoning for Decision
The Court recognized that the wrongful death action is a “creature of statute” and thus, it deferred to the legislature and its intent, stating that “the legislature could amend the statutory scheme to give minor beneficiaries a right of action, thereby making them eligible for tolling.” However, the Court refused to ignore the legislature’s scheme.
The Court discussed reasons why the harsh result produced by this case may be beneficial, recognizing that in the event that the tolling statute applied to minors who would/could later become personal representative, “clever litigants” could merely choose a personal representative who was a minor when the action accrued, thereby avoiding the three year statute of limitations. This would undermine the finality intended by the statute of limitations, affording employers, businesses and other individuals some certainty with regard to how long a potential claim could be open as against them.
DISCLAIMER: This Article is not intended as legal advice. It is merely purposed to provide an overview of a particular legal issue. This information should not be relied upon nor serve as a substitute for legal advice. You should seek competent legal counsel for advisement for any of the issues raised herein.
