Washington's Attorney General Is Wrong to Oppose New Wrongful Death Bill

Mr. Davis comments on the Seattle PI article,"Disturbing truth on wrongful death bill,"  written by guest columnist and Washington State's Attorney General Rob McKenna.  The article appeared in the Seattle PI on March 4, 2008.  You can find a link to the original article on our Wrongful Death practice area page.

Surprisingly, Mr. McKenna opposes the new wrongful death bill which would give adult parents the legal right to sue and recover damages for the wrongful death of an adult child (age 26 and younger).  Mr. McKenna's primary argument is that the new bill will cost the state of Washington more money because there will be more cases filed against the state in cases where an adult person who is unmarried and child-less (between the ages of 18 and 26) is wrongfully killed due to the negligence of another individual or corporation or state agency.  Mr. McKenna makes certain erroneous assumptions to support his argument against this new bill. I'll explain:

There are serious problems with McKenna's assumptions. First, wrongful deaths caused by governmental negligence make up a very small portion of all cases. Most wrongful death cases involve private parties (e.g., auto accidents, medical negligence, construction accidents, etc.). Therefore, McKenna's argument that this bill will cause the state to pay out much more money is just plain wrong.  Sure, there may be a few cases more against the state, but not so many cases that will cause the state to pay out annually millions and millions of more dollars.

McKenna makes another wrong assumption. He states that the change in law will take money from a surviving spouse and the surviving children. Not true. Under the current law there are 2 tiers of beneficiaries who are authorized to bring a wrongful death claim. The first tier is the surviving spouse and children. The second tier is surviving siblings or parents who are financially dependent on the deceased. If there are 1st tier beneficiaries, then a 2nd tier beneficiary cannot pursue a claim. In that situation, the wrongful death action belongs to the 1st tier beneficiaries.

The 2nd tier beneficiaries can only pursue a claim for wrongful death if there no 1st tier beneficiaries. But even then, the 2nd tier beneficiary must show that he or she was financially dependent on the decedent at time of death- a fact that almost never occurs. The courts have also ruled that the financial dependence must be "substantial."  Simply put, most adult siblings are not substantially dependent on each other for financial assistance.  And most parents are not financially dependent on their children.  As the law stands now, most wrongful deaths of single adults with no children are never prosecuted or filed in court.  There simply is no recovery allowed to surviving relatives in that type of case.  The new law attempts to correct that blatant injustice.

Another fact that McKenna neglects to discuss is that 47 other states have already enacted a similar wrongful death law.  This means Washington's current wrongful death statute is arcane and outdated.  The current law was actually enacted in the late 1800's. The law is actually one of a minority of states (3 to be exact) that have not amended their wrongful death law to address current societal norms, as well as recognize changes in the family unit.  It is hard to believe that McKenna advocates that Washington remain one of just 3 states to keep a law that was enacted more than 100 years ago.  

Another problem I have with McKenna's position is that he is supposed to be the state's top legal representative.  He is supposed to protect the rights of all citizens in this great state.  I find it difficult to swallow that McKenna would place the interests of our state's tax coffers ahead of those families who must experience the devastating loss of a loved one due to the wrongful conduct of another, including those deaths caused by state employees.  McKenna is simply putting the interests of state government ahead of the rights of citizens in our state who have suffered one of the worst losses anyone can experience: the death of a family member or child.

As it stands now, if an unmarried and child-less person is wrongfully killed due to a corporation's negligence, no claim can be pursued by the parents (unless the parents can show financial dependence). The changes to the wrongful death law will correct this injustice. It will remove the required showing of "financial dependence" and replace it with "significant involvement" with the deceased. Again, if the deceased is married or has children, then no one else can recover - just like the current law.

Here's a perfect example of the injustice of the current law. A mother and father recently contacted me about the death of their 19 year old son who was killed in a traffic accident caused by another driver. That driver's insurance company refused to pay out any reasonable compensation (other than the cost of the funeral) to resolve the claim. The insurance adjustor noted, correctly I might add, that Washington does not permit parents to recover for the death of an adult child. As a result, the insurance company was allowed to save $500,000 - the limit of the insurance policy. Now, how injust is that? The parents of course are devastated at the loss of their child. Then they experience a punch in the gut after learning their son's death isn't even worth a paltry $500K - paltry considering the magnitude of the loss.

McKenna's position in opposition to the wrongful death bill is just plain wrong.  Mr. McKenna, will you please do your job and focus on the rights of all citizens and not just focus on how much money the government will lose if it is forced to live up to its responsibility of wrongfully killing a human being?  The citizens of Washington state deserve nothing less.