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Vernon v. Aacres All Vest, LLC

The Court of Appeals, Division II issued a published opinion in Vernon v. Aacres All Vest, LLC, Cause No. 44328-7-II, affirming in apart and reversing in part a trial court decision summarily deciding wrongful death and survivorship claims. Henry David Vernon (“David”) was born severely disabled and was completely dependent on others for his health and personal care needs. He lived in a home under the care and supervision of Aacres. In July 2009, western Washington experienced a record-breaking heat wave. David was found one morning in July lying unresponsive on his bedroom floor. Emergency personnel transported him to the hospital, where he was pronounced dead. His cause of death was “exogenous hyperthermia” consistent with a high core body temperature.

David’s brother and legal guardian, Earl, filed suit against Aacres under the Abuse of Vulnerable Adults Act (“AVAA”), alleging Aacres was responsible for David’s death because it negligently allowed him to sleep in an upstairs bedroom with closed windows and doors during a record heat wave knowing David’s medication made it difficult for him to control his body temperature. Aacres moved for summary judgment, arguing Earl’s claim must be dismissed because he lacked standing to bring suit under both the wrongful death and general survivorship statutes. Earl responded, arguing damages for David’s pain and suffering and for funeral expenses should be available under those statutes. Alternatively, Earl argued the trial court should recognize a common law wrongful death cause of action that would allow him to recover both economic and noneconomic damages. The trial court agreed with Aacres and dismissed Earl’s claims for lack of standing as a beneficiary under the wrongful death statute. It did not address Earl’s claim for funeral expenses. Earl appealed, arguing the trial court erred in dismissing his noneconomic damages claim under the wrongful death statute (RCW 4.2.020) because it should have recognized a common law wrongful death cause of action; (2) the court erred in dismissing his economic damages claim under the general survivor statute (RCW 4.20.046), the dismissal violated David’s constitutional right to access the court, and David should be considered a minor for purposes of the wrongful death statute because of his limited mental capacity.

On appeal, Division II initially noted the AVAA unequivocally grants a decedent’s estate the right to recover economic damages even absent qualifying statutory beneficiaries. The AVAA therefore controls and could have resolved the case; however, Earl relied entirely on the general survivorship statute to support his contention that David’s estate was entitled to recover funeral expenses as economic damages. The Court thus analyzed his claim in terms of the general survivor statute as raised and briefed.

The Court rejected Earl’s request that it recognize a common law cause of action to allow the estate to recover for David’s death. Recognizing the two tier system of beneficiaries for a wrongful death action, the Court observed that Earl was not dependent on David and that David was not survived by anyone who could satisfy the criteria to recover under the wrongful death statute as a designated beneficiary; accordingly, Earl lacked standing under the wrongful death statute. The Court then held it could not recognize a common law cause of action because doing so would conflict with the existing statutory framework and it is not the function of the courts to modify legislative enactments.

The Court agreed with Earl that David’s estate should be able to recover economic damages under the general survivor statute despite the lack of beneficiaries under the wrongful death statute. Although the general survivor statute adopts the two tier system of beneficiaries featured in the wrongful death statute for noneconomic damages, it does not preclude the estate from recovering purely economic damages. The Court held that economic damages, including funeral costs, are available to David’s estate under the general survivor statute.

The Court quickly disposed of Earl’s constitutional challenge, holding the wrongful death statute cannot be held unconstitutional by denying access to the courts to someone who is no longer living. The Court considered this argument for the first time on appeal despite the limitations on such review under RAP 2.5(a)(3) because the alleged error was a manifest one affecting a constitutional right.

By contrast, the Court. declined to consider Earl’s argument that David should be considered a minor under Washington law because of his cognitive disabilities because Earl raised this issue for the first time on appeal. The Court noted that even if it were to have considered the argument, it would likely have failed because Earl failed to support it with any authority. More importantly, when the Legislature intends to include mentally incompetent or disabled persons within the same category as minors, it has done so. The Court concluded that to treat David the same as a minor child would greatly expand the statutory beneficiaries entitled to bring a wrongful death action and that such a significant change must therefore come from the Legislature.

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