Prior Recovery From Party Bars Wrongful Death Claim; Estate’s Claims Against New Parties Can Proceed Court of Appeals of Washington, Division 1 May 29, 2018

WASHINGTON — The plaintiff Barbara Brandes brought a personal injury action against Brand Insulations Inc. (Brand) and other entities after she was diagnosed with mesothelioma. During the pendency of the litigation, Mrs. Brandes passed away, and her action against Brand and others was converted into a survivorship action. During trial, the estate confirmed that it was not seeking to add any new claims or evidence, stating it was not pursuing any potential wrongful death claims at that time. The jury returned a verdict against some defendants, including Brand, and judgment was entered.

The plaintiff’s decedent’s estate subsequently filed the present wrongful death action against Brand, who was involved in the original litigation, and CBS Corporation (CBS) and Parsons Government Services (Parsons), who were not. The trial court dismissed the wrongful death against all defendants, concluding the claims were extinguished by the prior judgment in the survivorship action.

The plaintiffs appealed the decision, arguing that “a wrongful death action is a new and distinct cause of action solely for the benefit of the decedent’s heirs, thus it is unaffected by the prior judgment on the estate’s survivorship action based on Barbara’s personal injury claim.”

The appeals court determined that for Brand, “the inequitable post injury category of extrinsic limitations on the availability of the wrongful death action includes prior litigation, prior settlements, and the lapsing of the statute of limitations.” Because the estate recovered from prior litigation against Brand, the appeals court affirmed the trial court’s dismissal of the wrongful death action.

Conversely, the appeals court reversed the trial court’s dismissal of the wrongful death action against Parsons and CBS, concluding that since they were not parties to the estate’s prior litigation, the claims against them could go forward.

Read full case decision here.


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