Attorney(s) appearing for the Case
Katherine M. Steele , BULLIVANT HOUSER BAILEY PC, 1700 7th Ave. Ste. 1810, Seattle, WA, 98101-1820, Malika Johnson , Williams Kastner & Gibbs PLLC, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, Christine Elisabeth Dinsdale , Soha & Lang PS, 1325 4th Ave. Ste. 2000, Seattle, WA, 98101-2570, Mark Bradley Tuvim , Gordon & Rees LLP, 701 5th Ave. Ste. 2100, Seattle, WA, 98104-7084, Kevin James Craig , Gordon & Rees LLP, 701 5th Ave. Ste. 2100, Seattle, WA, 98104-7084, Benjamin J. Lantz , Keller Rohrback LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, Beth Marie Strosky , Keller Rohrback L.L.P., 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, Maria Liesl Ruckwardt , Ruckwardt Law, 818 Sw 3rd Ave. # 382, Portland, OR, 97204-2405, Jason Harris Daywitt , Rizzo Mattingly Bosworth PC, 1300 Sw 6th Ave. Ste. 330, Portland, OR, 97201-3530, Shaun Mary Jd Morgan , Rizzo, Mattingly, Bosworth, 1300 Sw 6th Ave. Ste. 330, Portland, OR, 97201-3530, Counsel for Petitioners.
Meredith Boyden Good , Brayton Purcell LLP, 806 Sw Broadway Ste. 1100, Portland, OR, 97205-3333, Lloyd F. Leroy , Brayton Purcell LLP, 222 Rush Landing Road, Novato, CA, 94948-6169, Counsel for Respondents.
Ronald Clayton Gardner , Gardner Trabolsi & Associates PLLC, 2200 6th Ave. Ste. 600, Seattle, WA, 98121-1849, J. Scott Wood , Foley & Mansfield PLLP, 999 3rd Ave. Ste. 3760, Seattle, WA, 98104-4009, Daniel Ruttenberg , Foley & Mansfield PLLP, 999 3rd Ave. Ste. 3760, Seattle, WA, 98104-4009, Jan Elizabeth Brucker , Jan Brucker, Attorney, 800 Fifth Ave. Ste. 3850, Seattle, WA, 98104-3101, Counsel for Other Parties.
This court recently held in Deggs v. Asbestos Corp. Ltd.1 that there is no viable cause of action for wrongful death once an individual allows the statute of limitations to expire on his underlying personal injury claim during his lifetime. After Henry Barabin died, his wife filed a wrongful death action against defendants that Barabin had not sued for personal injuries during his lifetime. We conclude Deggs controls. Because Henry Barabin allowed the statute of limitations to expire on his underlying personal injury claim during his lifetime, his personal representative has no viable cause of action for wrongful death against these new defendants. Accordingly, we reverse.
The material facts are undisputed. In 2006, Henry Barabin and his wife, Geraldine, successfully sued two defendants for injuries related to Henry's asbestos exposure in the workplace.2 But the judgment was ultimately vacated and remanded to federal district court, where that case remains pending. In 2014, two years after Henry passed away, Geraldine, as personal representative for his estate, filed a wrongful death claim in King County Superior Court against several new defendants.
Before this court issued its opinion in Deggs, the superior court denied the new defendants' motions for summary judgment, ruling that the expiration of the statute of limitations on Henry's underlying personal injury action did not bar Geraldine's wrongful death claim.
This court granted discretionary review.
This appeal presents the question whether the expiration of the statute of limitations on an individual's personal injury action during his lifetime can preclude a wrongful death action based upon the underlying personal injury action.
Under substantially the same facts and same legal arguments, this court recently held that there is no viable cause of action for wrongful death once an individual allows the statute of limitations to expire on his underlying personal injury claim during his lifetime: "Wrongful death claims derive from the wrongful act and do not accrue absent a valid subsisting cause of action in the decedent at the time of his death."3
We conclude Deggs controls here. Henry passed away over five years after he and Geraldine filed his original personal injury complaint. Neither Henry nor Geraldine filed any claims against the new defendants related to his injuries within the three-year statute of limitations for the personal injury claims. As a result, there was "no subsisting cause of action in the deceased" at the time of Henry's death. We note that the trial court did not have the benefit of the Deggs decision at the time it denied the motions for summary judgment. Accordingly, his personal representative has no viable cause of action under the wrongful death statute against the new defendants.
SPEARMAN, C.J. and BECKER, J., concurs.