Opinion
No. 30826-6-II
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-2-07162-2. Judgment or order under review. Date filed: 08/08/2003. Judge signing: Hon. Bryan E. Chushcoff.
Counsel for Appellant(s), Richard Lawrence Martens, Martens Ragen PS, 705 5th Ave S Ste 150, Seattle, WA 98104.
James J. Ragen, Martens Ragen PS, 705 5th Ave S Ste 150, Seattle, WA 98104-4425.
Gail Grant Stewart, Martens Ragen PS, 705 5th Ave S Ste 150, Seattle, WA 98104-4425.
Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Marshall L. Ferguson, Floyd Pflueger PS, 2505 3rd Ave Ste 300, Seattle, WA 98121-1445.
Kim Carter Pflueger, Floyd Pflueger, 2505 3rd Ave Ste 300, Seattle, WA 98121-1445.
The Estate of Thomas C. Cupp sued Safeco Life Insurance Company and its agent, Harold Roberts, for negligence, malpractice, and the unauthorized practice of law. The trial court granted summary judgment to Safeco and Roberts. We affirm, even though we take the facts in the light most favorable to the Estate.
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994); Stenger v. Stanwood Sch. Dist., 95 Wn. App. 802, 812, 977 P.2d 660 (1999).
Thomas C. Cupp died on October 13, 2000. He had been married and divorced twice: first to Tracy Tennis and then to Katia Hanna. He and Tracy had a daughter, Amanda. He and Katia had a daughter, Karina. While he and Katia were married, her other children, Nolan, Shawn, and Stephanie Hanna, were his stepchildren.
In 1991, while married to Katia, Cupp bought a $400,000 life insurance policy. The policy was issued by Safeco Life through its agent, Harold Roberts. The policy listed Katia as primary beneficiary and Amanda, Nolan, Shawn, and Stephanie as contingent beneficiaries. Cupp and Katia later had Karina.
In April 1999, Cupp and Katia divorced. Cupp received the Safeco policy as his separate property, although he also was ordered to maintain $200,000 of life insurance for Katia and Karina.
On May 10, 1999, Cupp and Roberts met in Roberts' office. Cupp said that he wanted to make Amanda and Karina the policy's beneficiaries. Roberts recommended that Cupp create a trust since Amanda and Karina were still minors. Cupp decided instead to name his sister, Barbara Gietzen, as beneficiary, because he believed she would use the proceeds for the benefit of Amanda and Karina. Roberts prepared a change form that Cupp signed in Roberts' office. Roberts advised that Katia should sign the change form also; thus, when Cupp left, he took the form with him so he could have Katia sign it.
On October 13, 2000, Cupp died. He had never returned the change form. Three days later, Gietzen informed Roberts of Cupp's death. Roberts reported Cupp's death to Safeco Life and requested a `call back to advise whom [sic] the beneficiary is.' Roberts did not mention the change form to either Gietzen or Safeco.
V Clerk's Papers (CP) at 989.
On or about November 1, 2000, Gietzen found the change form among Cupp's papers. It had been signed by Katia as well as by Cupp. Gietzen submitted it to Safeco, which did not dispute it.
Safeco's insurance policy did not require that the form be delivered before death.
On November 6, 2000, Gietzen told Roberts that she had found the change form among Cupp's papers. Roberts initially denied that Cupp had signed the form in Roberts' office. Later, however, Roberts admitted that Cupp had.
In January 2001, Safeco Life filed an interpleader action. Noting that it had received claims from or on behalf of Amanda, Karina, Nolan, Shawn, and Stephanie, it asked the court to decide who was entitled to the policy proceeds. In November 2001, the interpleader action was settled, and Safeco paid the full amount of the policy ($400,000).
In April 2002, the Estate sued Safeco Life, Roberts personally, and Roberts Associates. It alleged professional malpractice, practicing law without a license, breach of contract and warranty, negligence, bad faith, negligent misrepresentation, Consumer Protection Act violation, overreaching, breach of fiduciary duties, and entitlement to injunctive relief.
The Estate also sued Safeco Corporation and Safeco National Life Insurance Corporation. Those entities were dismissed by summary judgments that have not been appealed, and thus are not pertinent here.
In 2003, the parties filed various motions and cross-motions for summary judgment. In one of those, the Estate contended that `the deceased suffered anxiety, emotional distress and humiliation as a result of the roadblocks, obstacles and negligence of the defendants who failed to ascertain the law, train properly, advise properly and handle his attempted beneficiary change in the manner they were required by law to do.' To support this contention, the Estate attached the following interrogatory answer that Gietzen had signed:
VIII CP at 1451.
Tom Cupp called his sister, Mrs. Gietzen, on the evening of May 10, 1999 at her home in Seattle. Tom indicated that he had met with his insurance agent, Mr. Roberts, that day to change the beneficiary under his life insurance policy. . . .
Tom said that he had a problem with the beneficiary change. The agent, Mr. Roberts, had instructed him that he needed to obtain Katia's signature on the beneficiary form. He was beside himself as to how he would do that.
VIII CP at 1427.
After various hearings, the trial court ruled that nothing in the record `show[ed] the emotional distress . . . of Mr. Cupp . . . prior to his death,' and that `any event that occurred post his death cannot be the basis of a survival action by the estate.' Accordingly, the trial court granted Safeco Life's motions and dismissed the action.
Report of Proceedings (RP) at 41; see also VII CP at 1398-1400.
VII CP at 1392; see also VII CP at 1399.
On appeal, the Estate does not make a claim under the wrongful death statutes, RCW 4.20.010 and RCW 4.20.020. Nor does it make a claim for breach of contract. Rather, it claims only that it can recover damages in tort under the general survival statute, RCW 4.20.046. Safeco and Roberts respond that the Estate cannot recover under the general survival statute unless Cupp suffered compensable predeath damages, and that the Estate has not shown such damages.
This is not surprising, as neither Safeco nor Roberts caused Cupp's death, and a wrongful death action can be brought only `[w]hen the death of a person is caused by the wrongful act, neglect or default of another.' RCW 4.20.010.
This is not surprising, as Safeco paid the full policy proceeds once it knew whom to pay. See also Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 448, 815 P.2d 1362 (1991) (emotional distress damages not compensable in breach of contract case); Lord v. Northern Automotive Corp., 75 Wn. App. 589, 596, 881 P.2d 256 (1994) (same), overruled on unrelated grounds, Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995).
The special survival statute, RCW 4.20.060, applies only in personal injury actions.
We first address whether the Estate can recover under the general survival statute, RCW 4.20.046(1), without showing predeath damages. That statute provides:
All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: PROVIDED, HOWEVER, That the personal representative shall only be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased on behalf of those beneficiaries enumerated in RCW 4.20.020, and such damages are recoverable regardless of whether or not the death was occasioned by the injury that is the basis for the action.
This statute does not create a new cause of action. Instead, it merely `preserves causes of action for injuries suffered prior to death.' Thus, it permits the recovery of predeath damages, but not the recovery of postdeath damages, and a personal representative can use it only if he or she can prove predeath damages.
Otani ex rel. Shigaki v. Broudy, 151 Wn.2d 750, 755, 92 P.3d 192 (2004); White v. Johns-Manville Corp., 103 Wn.2d 344, 358, 693 P.2d 687 (1985); Cavazos v. Franklin, 73 Wn. App. 116, 119, 867 P.2d 674 (1994).
Otani, 151 Wn.2d at 755; White, 103 Wn.2d at 358; Cavazos, 73 Wn. App. at 119.
Otani, 151 Wn.2d at 762 (distinction between wrongful death statutes and survival statutes is that former `govern postdeath damages,' while latter `govern predeath damages').
See Otani, 151 Wn.2d at 760 (general survival statute does not permit decedent's estate to recover damages for decedent's shortened life span, called `loss of enjoyment of life').
The second question is whether a jury in this case, taking the evidence in the light most favorable to the Estate, could find that Cupp suffered compensable predeath damages. The Estate does not claim that Cupp suffered predeath physical or economic damages there is no evidence of that so we limit our inquiry to whether the evidence taken in light most favorable to the Estate shows that Cupp suffered predeath emotional damages. In Spurrell v. Block, the plaintiffs sought `[t]o recover on a theory of wrongful infliction of emotional distress.' To sustain that theory, the plaintiffs had to prove both emotional distress damages and objective symptomatology. They proved `one sleepless night, tears, loss of appetite, and anxiety,' and the trial court granted a defense summary judgment. This court affirmed, holding that `one sleepless night, tears, loss of appetite, and anxiety' were not `signs of distress above that level which is a fact of life,' and thus were insufficient proof of compensable damages.
40 Wn. App. 854, 701 P.2d 529, review denied, 104 Wn.2d 1014 (1985).
Spurrell, 40 Wn. App. at 863.
The evidence in this case is even weaker than the evidence in Spurrell. It shows only that in a single phone conversation with his sister on the night of May 10, 1999, Cupp was upset (i.e., `beside himself'). Even when taken in the light most favorable to the Estate, it does not show compensable predeath emotional-distress damages; it does not show that Cupp had a predeath claim; and absent a predeath claim, there is nothing that could have `survived' Cupp's death.
The Estate claims that in White v. Johns-Manville Corp., the Washington Supreme Court allowed a personal representative to bring a survival action without showing predeath damages. In White, however, the plaintiff suffered predeath damages indeed, he suffered asbestosis so significant that it caused his death. The difficulty was that he did not discover those damages before his death. White does not hold that a survival action can be brought without predeath damages, and it has no impact here.
Br. of Appellant at 38-41.
The Estate claims that in Dyer v. Missouri State Life Insurance Co., the Washington Supreme Court allowed a personal representative to bring a survival action against a negligent insurer `even when . . . the only damage occurred after death.' Dyer's action, however, was primarily for breach of contract (even though it also `sounded in tort'), and a breach of contract action survived under the common law even without a statute. In contrast, the Estate's action in this case is not based on contract Safeco paid the policy proceeds in full and would not have survived at common law. Dyer does not hold that an action can be based on RCW 4.20.046 without proof of predeath damages, and Dyer has no impact here.
132 Wash. 378, 232 P. 346, aff'd, 135 Wash. 693 (1925).
Br. of Appellant at 41 (emphasis removed; capitalization removed).
See Dyer, 132 Wash. at 388 (`This being an action based upon contract, although sounding in tort, under the statute of this state, as well as at common law, survives.').
Like the trial court, we conclude that a cause of action cannot be sustained under Washington's general survival statute, RCW 46.20.046, in the absence of predeath damages, and that the evidence here does not show such damages. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J., HUNT, J., Concur.