WPI 31.01.01 Measure of Damages—Survival Action—Statutory Beneficiaries

Use this instruction for survival actions (brought under RCW 4.20.046 or RCW 4.20.060) that involve statutory beneficiaries. For such actions, use this instruction in conjunction with the applicable instruction from this chapter on wrongful death damages. See WPI 31.02.01– 31.03.02.

For survival actions not involving statutory beneficiaries, use WPI 31.01.02 (Measure of Damages—Survival Action—No Statutory Beneficiaries) instead of this instruction.

Use bracketed material as applicable. If some of the bracketed phrases are deleted, practitioners may need to capitalize the first word that follows the deleted phrase.

Do not use the bracketed paragraph on noneconomic damages in cases involving instantaneous death. For further discussion of this issue, see the Comment below.

RCW 4.20.046 and RCW 4.20.060.

Along with the wrongful death statutes, the general and special survival statutes, RCW 4.20.046 and RCW 4.20.060, were amended effective July 28, 2019. The amendments are remedial and retroactive and apply “to all claims that are not time-barred, as well as any claims pending in any court on July 28, 2019.” Laws 2019, Chapter 159, § 6. Under the amended RCW 4.20.020, parents and siblings of the decedent are no longer required to demonstrate financial dependence on the decedent in order to potentially recover economic and non-economic damages. They also may recover if they do not reside in the United States. These changes to the beneficiary structure are incorporated into the amended RCW 4.20.046 and RCW 4.20.060. See Note on Use to WPI 31.03.02 (Measure of Damages—Wrongful Death—Action for Benefit of Parent, Brother, or Sister); see generally DeWolf & Allen, 16 Washington Practice, Tort Law and Practice §§ 7:2, 7:4 (5th ed.).

Survival statutes. The general survival statute, RCW 4.20.046, provides in relevant part that “[a]ll causes of action by a person … against another person … shall survive to the personal representatives of the former and against the personal representatives of the latter …” A 1993 amendment to the statute allows damages for “pain and suffering, anxiety, emotional distress, or humiliation,” but only on behalf of the beneficiaries listed in RCW 4.20.020, and specifies that these damages may be recovered regardless of whether the death was caused by the injury forming the basis for the action. See RCW 4.20.046.

The special survival statute, RCW 4.20.060, provides in relevant part that “[n]o action for a personal injury to any person occasioning death shall abate … by reason of such death” if the decedent is survived by a statutory beneficiary (spouse, child, state registered domestic partner, dependent parent, or dependent sibling).

These survival statutes differ in several respects. The special survival statute applies only to personal injuries “occasioning death,” RCW 4.20.060, while the general survival statute applies whether or not the death was caused by the personal injury that forms the basis for the action. RCW 4.20.046.

Compensation awarded under the general survival statute, RCW 4.20.046, becomes an asset of the estate. When there are wrongful death beneficiaries, compensation for pre-death personal injuries, including medical and hospital expenses and pre-death pain, suffering, anxiety, emotional distress, humiliation, and fear are awarded to the statutory beneficiaries, in accordance with the intestate succession statute, RCW 11.04.015. See Wilson v. Grant, 162 Wn.App. 731, 258 P.3d 689 (2011); Parrish v. Jones, 44 Wn.App. 449, 722 P.2d 878 (1986).

Significance of statutory beneficiaries. For actions involving statutory beneficiaries, this pattern instruction sets out the applicable elements of damages, including both economic and noneconomic damages. By comparison, when there are no statutory beneficiaries, noneconomic damages are not available. RCW 4.20.046 (as amended in 2019, see above); RCW 4.20.060 (as amended in 2019, see above). For this reason, a separate pattern instruction has been drafted for survival actions not involving statutory beneficiaries. Compare this instruction with WPI 31.01.02 (Measure of Damages—Survival Action—No Statutory Beneficiaries).

Loss of enjoyment of life. In Otani v. Broudy, 151 Wn.2d 750, 760–62, 92 P.3d 192 (2004), the Supreme Court held that post-death damages for loss of enjoyment of life are not recoverable by a decedent's estate under Washington's survival statutes.

Instantaneous death. In cases involving instantaneous death, the plaintiff may not recover any damages for pain and suffering. Pain and suffering damages are available only if “measurable time” elapses between injury and death. Chapple v. Ganger, 851 F.Supp. 1481, 1486 (E.D.Wash. 1994) (citing Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wn.2d 831, 837, 699 P.2d 1230 (1985)); Tait v. Wahl, 97 Wn.App. 765, 770–71, 987 P.2d 127 (1999).

Avoiding double recoveries. The causes of action for wrongful death and survival may overlap in a particular case. The same recovery may be allowed under more than one statute. Care must be taken to avoid allowing a double recovery. See, e.g., Hinzman v. Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972), disapproved of on other grounds, Wooldridge v. Woolett, 96 Wn.2d 659, 666–67, 638 P.2d 566 (1981) (regarding duplication of damages between the general survival statute and the “child injury or death” statute); Criscuola v. Andrews, 82 Wn.2d 68, 69–70, 507 P.2d 149 (1973) (regarding duplication of damages between the general survival statute and the wrongful death statute).

The court in Criscuola stated: “The problem of prospective double compensation where actions are brought under both survival and wrongful death actions is avoided if recovery under the survival action is limited to the prospective net accumulations of the deceased.” Criscuola, 82 Wn.2d at 70. The WPI Committee has addressed this issue from Criscuola by limiting the element of lost income to net accumulations.