WA Legal Roundup - Div III: Estate can pursue for economic damages regardless of beneficiaries; pursuing other work gets jobless benefits for partial self employed; Employment Law Sucks; Purses are Cars; Capitol Hill Block Party
In Wilson v. Grant, a dead man's estate tried to sue the doc (Sorry, Linda). The pt, also a doc, was experiencing nausea and vertigo with bad headaches...oh, and speech problems. Pt. had a history of migraines and was given imitrex. Now...the first two, fine, can be part of migraines. The speech problems are more worrisome, as they can denote a loss of blood supply to the brain, increased ICP, a tumor, or a stroke. So, if it is a loss of blood supply, Imitrex, which acts to narrow blood vessels to the brain would have been a bad move without first knowing for sure what was causing the speech problems.
(Stenosis of the Basil Artery (the narrowy bit in the middle of the two bigger bits))
Unfortunately, the Imitrex led to bilateral pontine infarcts (an area of tissue in an organ or part thereof that undergoes necrosis following cessation of blood supply). She went into a vegetative state, not to return).
So the issue in the appellate case was whether her estate could sue, given no statutory beneficiaries. The surviving family member that brought the suit was her dad. Under Washington case law, the estate makes the claim for economic loss due to the death. That means the money the person would have likely made (income) minus the money the person would have likely used (consumption). The stuff that means more, such as loss of love, companionship, affection, advice, and all the reasons that we are human, is only recoverable in Washington by children and spouses. Seems weird, right? The parents of an adult child can't sue for the stuff that means the most. Its a flaw in the law, and the brilliant people at the Washington State Association for Justice are working to fix this.
Anyhow, the court held it was error for the trial court to dismiss the estate claims for economic loss:
These cases interpret this statutory scheme correctly. They distinguish RCW 4.20.046 from RCW 4.20.060 based on who is entitled to the recovery -- the estate or a certain class of statutorily prescribed beneficiaries. Dr. Wilson's family members are not then entitled to recover under RCW 4.20.060 (the special survival statute) but her estate is entitled to recover under RCW 4.20.046 (the general survival statute). The estate does not assert the right to recover noneconomic damages and her survivors do not make a claim for such damages.
The question under the survival statute is could Dr. Wilson have made the claim had she survived. And she certainly could have maintained an action for her economic loss. See Otani, 151 Wn.2d at 758. The important distinguishing feature between these two survival statutes is not whether the death is occasioned by personal injury, but rather who gets to recover -- the estate or the statutory beneficiaries. Id. at 762-63.
And, while the wording of the current statutory scheme informs our analysis, our reading also seems in accord with the purpose of these survival statutes. Washington's general survival statute was enacted to "keep the decedent's claims alive and to allow the personal representative to pursue them." Norberg, 101 Wn. App. at 125. Historically, survival actions under former RCW 4.20.046 (1961) were restricted exclusively to economic type damages. Wooldridge, 96 Wn.2d at 666; Cavazos v. Franklin, 73 Wn. App. 116, 121, 867 P.2d 674 (1994) ("Under RCW 4.20.046, the decedent's administrator is entitled to maintain an action for the following damages: disability with its attendant permanent loss of earning power; burial and funeral expenses; medical and hospital expenses; and general damages to the decedent's estate.").
This opinion is a great primer on Washington's two wrongful death statutes, and if you're new to the state, or bringing a suit, I recommend a full read.
I don't claim to know a lick about employment law, especially wage law and unemployment. So for Turnbow v. Employment Security Dep't of Wash., I'll let the court's opening paragraph state the holding. It's like speaking swahili to me, but I'm sure it will mean a lot to those of you who practice in this area:
A self-employed person is generally not entitled to unemployment benefits. But a self-employed person who remains available for work and whose start-up business remains "contingent" is entitled to unemployment benefits. We conclude that the Employment Security Department hearings examiner applied the wrong legal standard to deny the appellant unemployment benefits here, and we reverse the decision of the superior court that affirmed the decision to deny benefits.
In case all the double negatives through you off, it means she gets her benefits.
In Ullery v. Fullerton is a complex res judicata/collateral estoppel issue and would make for a great bar exam question. Seriously, other than that I just want to shoot this opinion in the face. No offense to the law clerk who wrote it, its just that I don't have the time to dissect a complex opinion.
In other news: Capitol Hill Block Party is THIS WEEKEND!!!!! My likely travels after the jump:
Friday, I probably won't be going to much. I'd like to check out Thurston Moore (6:15-7:15) and The Head and the heart (9:15-10:15). Might go see Ghostland Observatory (10:45-11:59). Oh yeah, I also will of course be going to see BOAT (5-5:30). Saturday, I will likely go check out: He Whose Ox is Gored (2-2:30); Sports (3:45-4:15); Lovers and Seapony (5-6:30); Handsome Furs, Best Coast, and Les Savy Fav (6:30-10), and Akimbo (10-10:45). Might go catch the last bit of TV on the Radio. Sunday: The Posies (3:30-4:20); Battles (4:50-5:40); then nothing until splitting my time with Grand Hallway and Explosions in the Sky (7:30-8:15 and 7:45-9, respectively).