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ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD G. HARMS, as personal

representative of the Estate of KURT

STANLEY HARMS,

Plaintiff,

v.

LOCKHEED MARTIN CORPORATION,

Defendant.

 CASE NO. C06-572JLR

ORDER DENYING

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

This matter comes before the court on Defendant Lockheed Martin Corporation’s

(“Lockheed”) motion for summary judgment (Dkt. # 40). The court DENIES the motion.

I. BACKGROUND

The relevant facts are not in dispute. In March 2005, Kurt Harms died as the

result of injuries sustained in a car crash on an Australian highway. Am. Compl. ¶¶ 3.8-

3.15 (Dkt. # 3). He was the passenger in a car driven by Gary Boughton, a Lockheed

employee who was acting within the scope and course of his employment. Id. ¶ 3.15;

Answer ¶ 10 (Dkt. # 10). Plaintiff contends that Mr. Harms’ death was the result of Mr.

Boughton’s negligence. Resp. at 2 (Dkt. # 45).

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1

Effective July 22, 2007, RCW §§ 4.20.020 and 4.20.060 were revised to insert references

to state registered domestic partners. See 2007 Wash. Legis. Serv. Ch. 156 (S.S.B. 5336)

(West). The pre-July 2007 versions apply here.

ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 2

Mr. Harms was unmarried and had no children. Id. He was survived by his father,

his brother, and his sister, none of whom was dependent on Mr. Harms for financial

support. Id. His father, Richard Harms, brought this action for tortious death as personal

representative for Kurt Harms’ estate (“estate”). Am. Compl. ¶¶ 4.1-4.2. 

The estate concedes that it has no cognizable claims under Washington’s wrongful

death statutes, RCW §§ 4.20.010 (wrongful death), 4.20.020 (beneficiaries of wrongful

death), and 4.24.010 (child death/injury), or the special survival statute, RCW § 4.20.060

(death by personal injury), because Mr. Harms left no statutory beneficiaries enumerated

in RCW § 4.20.020.1

 Resp. at 3-4. The estate contends, however, that it may still seek

economic damages under the general survival statute, RCW § 4.20.046. Id.

II. ANALYSIS

Lockheed moves for summary judgment based on a purely legal question. First,

Lockheed argues that the general survival statute, RCW § 4.20.046, disallows suits by a

decedent who dies from the injuries that form the basis of the complaint. Mot. at 5-6. 

Second, Lockheed contends that the general survival statute prohibits recovery by the

estate when there are no statutory beneficiaries. Id. at 8-10. In effect, Lockheed argues

that Washington law prohibits an estate from recovering against a tortfeasor unless the

decedent had statutory beneficiaries and died from other causes.

The court disagrees. Lockheed misreads the relevant statutes and misconstrues

well-settled case law.

A. Standard of Review

Summary judgment is appropriate if the evidence, when viewed in the light most

favorable to the non-moving party, demonstrates there is no genuine issue of material

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2

Warner remains the seminal case in any discussion of the general survival statute, though

its discussion of the proper measure of damages was clarified in Wooldridge v. Woolett, 638 P.2d

566, 568-570 (Wash. 1981).

ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 3

fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v.

County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). For purely legal questions,

summary judgment is appropriate without deference to the non-moving party.

B. Scope of Survival Actions

Lockheed’s interpretation of the law would mean that a tortfeasor could

negligently kill a person who lacked statutory beneficiaries without being liable to

anyone. That tortured logic conflates wrongful death and survival actions, on one hand,

and confuses the scope of the general and special survival actions, on the other.

The right to bring tortious death claims is purely statutory. See Warner v.

McCaughan, 460 P.2d 272, 274 (Wash. 1969)2

; Tait v. Wahl, 987 P.2d 127, 130 (Wash.

Ct. App. 1999). In Washington, these claims may be brought pursuant to the wrongful

death statutes, RCW §§ 4.20.010, 4.20.020, 4.24.010, and the survival statutes, RCW §§

4.20.046 and 4.20.060. See Otani v. Broudy, 92 P.3d 192, 194 (Wash. 2004); Masunaga

v. Gapasin, 790 P.2d 171, 172 (Wash. Ct. App. 1990). The primary differences between

wrongful death and survival actions are in (1) the causes of action, and (2) the

beneficiaries. See Otani, 92 P.3d at 198; Michael M. Martin, Measuring Damages in

Survival Actions for Tortious Death, 47 Wash. L. Rev. 609, 610 (1972). 

The wrongful death statutes create new causes of action for statutory beneficiaries

of the deceased to recover their own damages. RCW §§ 4.20.010, 4.20.020; see Otani,

92 P.3d at 195. In contrast, the survival statutes do not create new causes of action but

instead preserve causes of action for a decedent’s personal representative that the

decedent could have maintained had he or she not died. RCW § 4.20.046, 4.20.060; see

Otani, 92 P.3d at 194-95, 198. The beneficiaries of these preserved claims are either the

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In relevant part, the special survival statute provides:

No action for a personal injury to any person occasioning death shall abate, nor

shall such right of action determine, by reason of such death, if such person has a

surviving spouse or child living, including stepchildren, or leaving no surviving

spouse or such children, if there is dependent upon the deceased for support and

resident within the United States at the time of decedent's death, parents, sisters, or

brothers; but such action may be prosecuted, or commenced and prosecuted, by the

executor or administrator of the deceased, in favor of such surviving spouse, or in

favor of the surviving spouse and such children, or if no surviving spouse, in favor

of such child or children, or if no surviving spouse or such child or children, then in

favor of the decedent's parents, sisters, or brothers who may be dependent upon such

person for support, and resident in the United States at the time of decedent's death.

RCW § 4.20.060 (emphases added).

4

In relevant part, the general survival 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.

RCW § 4.20.046(1) (emphases added).

ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 4

decedent’s (a) estate (the creditors and the heirs or devisees), or, under certain

circumstances, (b) statutory beneficiaries. RCW § 4.20.046; RCW §§ 4.20.060; see

Otani, 92 P.3d at 198; Warner, 460 P.2d at 276; Tait, 987 P.2d at 131 (“[U]nlike the

wrongful death and special survival statutes, the decedent’s personal representative can

recover damages under [the general survival statute] on behalf of the decedent’s estate.”);

Martin, supra, at 612.

Lockheed makes an unwarranted attempt to impose the requirements of the special

survival statute3

 onto the general survival statute.4 But the special and general survival

statutes differ as to which survival claims are preserved and who will collect the

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ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 5

decedent’s damages. Unsurprisingly, the special survival statute is narrow and preserves

the decedent’s claims for death by the complained of injuries on behalf of statutory

beneficiaries. The general survival statute is broad and preserves all claims on behalf of

the estate (as to economic damages) and on behalf of statutory beneficiaries (as to certain

non-economic damages).

In Warner v. McCaughlin, the Washington Supreme Court recognized the broad

scope of the general survival statute. It found that the special survival statute did not

restrict the applicability of the general survival statute because the “legislature was intent

on preserving causes of action, rather than pleas of abatement.” Warner, 460 P.2d at 276

(quoting Engen v. Arnold, 379 P.2d 990, 993 (Wash. 1963)). It held, therefore, that the

estate could recover damages under the general survival statute for a decedent who left

behind no statutory beneficiaries and died as the result of the complained of injuries. See

id. at 276-77 (holding that wrongful death action did not apply because there were no

statutory beneficiaries). The court noted that, in enacting the general survival statute, the

legislature meant for all causes of action to survive so that it would not be more profitable

for the defendant “to kill the plaintiff than to scratch him,” thereby leaving “the bereaved

family of the victim . . . without a remedy.” Id. at 275 (quoting Dean Prosser, Prosser on

Torts, § 121, at 924 (3d ed. 1964)); see Otani, 92 P.3d at 198 (“Although Washington’s

wrongful death and survival statutes benefit different parties, they provide recoverable

damages for the death or injury of another, depending on the circumstances. Thus it is

not cheaper for a defendant to kill, instead of injure, another person in Washington.”).

“It is well settled law that the estate of a person who dies after birth can maintain a

survival cause of action under [the general survival statute].” Cavazos v. Franklin, 867

P.2d 674, 676 (Wash. Ct. App. 1994) (holding that the estate of a viable, unborn child

could recover under general survival statute); see Criscuola v. Andrews, 507 P.2d 149,

150 (Wash. 1973) (holding that the estate of person who died instantaneously and left no

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ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 6

statutory beneficiaries could recover under general survival statute when death is

instantaneous and decedent left no statutory beneficiaries); Balmer v. Dilley, 502 P.2d

456, 458 (Wash. 1972) (holding that estate of boy who died in car crash could recover

damages under general survival statute); see, e.g., Federated Servs. Ins. Co. v. Personal

Representative of Estate of Norberg, 4 P.3d 844 (Wash. Ct. App. 2000) (reviewing the

proper measure of damages permissible under general survival statute to estate for

decedent who died in head-on collision and left no statutory beneficiaries). The estate’s

right to recover damages under the general survival statute is limited to the lost net

accumulations of the decedent. See Wooldridge, 638 P.2d at 570; Norberg, 4 P.3d at

848; Tait, 987 P.2d at 131-32.

Thus, Lockheed’s arguments must fail unless it can show that the legislature has

restricted damages available to decedents’ estates under the general survival statute or the

courts have overturned well-settled case law.

C. Injuries Causing Death

Lockheed argues that because the special survival statute applies only to actions

brought by a personal representative on behalf of statutorily designated beneficiaries for

injuries that cause the decedent’s death, the general survival statute contains a similar

limitation, i.e., it applies only to “actions brought by a personal representative on behalf

of the estate for injuries suffered by a decedent that did not cause the decedent’s death.” 

Mot. at 5 (quoting Higbee v. Shorewood Osteopathic Hosp., 711 P.2d 306, 309 (Wash.

1985)). Lockheed contends that the estate cannot recover here because Kurt Harms died

from the injuries sustained in a car crash and those injuries serve as the basis of the

complaint. The court rejects this evisceration of the general survival statute.

The general survival statute was enacted to rectify the anomaly of it being “more

profitable for the defendant to kill the plaintiff than to scratch him.” See Warner, 400

P.2d at 275 (citation omitted). Only in a looking-glass world would a statute that

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ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 7

specifies that “[a]ll causes of action . . . shall survive,” RCW § 4.20.046(1) (emphasis

added), actually exclude actions for injuries that led to death. The Higbee court never

carved out such a categorical exclusion. See Higbee, 711 P.2d at 309 (noting that “[t]he

general survival statute . . . applies to” actions for injuries not leading to death, but that

“[t]he special survival statute . . . applies only to” actions for injuries leading to death)

(emphases added).

The Higbee court relied upon Walton v. Absher Constr. Co., 676 P.2d 1002, 1004

(Wash. 1984), for its description of the general survival statute’s scope. In Walton, the

Washington Supreme Court explicitly approved the Warner court’s reconciliation of the

general and survival statutes. Id. (noting that the court was presented with the “flip side

of the issue before the Warner court,” i.e., whether the general survival statute implicitly

restricted recovery of non-economic damages under the special survival statute). The

Warner court permitted the estate of a woman who left no statutory beneficiaries to

recover under the general survival statute for damages arising out of her death. See

Warner, 460 P.2d at 276.

Read in proper context, the Higbee court stated no more than that unlike the

special survival statute, the general survival statute applies to actions for injuries not

leading to death. Cf. RCW § 4.20.046(1) (noting that statutory beneficiaries may also

recover certain non-economic damages “whether or not the death was occasioned by the

injury that is the basis for the action”). The same holds true for Lockheed’s citation to

Otani ex rel. Shigaki v. Broudy. See Otani, 92 P.3d at 195-96 (noting that estate could

recover for lost net accumulations and not restricting such damages only to injuries that

caused death). The court rejects Lockheed’s suggestion that the general survival statute

applies only where the decedent’s injuries did not cause the decedent’s death. “Were we

to read [the general survival statute] so restrictively, the estate of a decedent with no

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ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 8

surviving statutory beneficiaries could not recover injuries which caused the decedent’s

death . . . .” Vail v. Toftness, 753 P.2d 553, 555 n.1 (Wash. Ct. App. 1988).

D. Recovery by the Estate

Lockheed argues that the general survival statute requires that Kurt Harms be

survived by statutory beneficiaries in order for the estate to recover on his behalf. Reply

at 2-7. Its theory is based on its misreading of the statute’s language and case law dicta.

Lockheed argues that the following language from the general survival statute

supports its position: “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 . . . .” RCW § 4.20.046(1). But this language, added in a

1993 amendment to the statute, was an expansion, not a contraction, of damages available

under the general survival statute.

Prior to 1993, recovery for non-economic damages such as pain and suffering was

available to statutory beneficiaries under the special survival statute but was not available

to anyone under the general survival statute. Compare 1961 Wash. Laws Ch. 137, § 1

with RCW § 4.20.046 and RCW § 4.20.060. Thus, statutory beneficiaries could not

recover for non-economic damages if the decedent died, for example, of old age during

the pendency of their personal injury case. This loophole rewarded insurance managers

who delayed settlements with elderly victims: they would pay less if the injured party

died. See House Bill Report, SB 5077, at 1-2, reported by House Committee on Judiciary

(1993). The legislative history shows that the 1993 amendment was meant to close this

loophole by permitting statutory beneficiaries to recover those non-economic damages

under the general survival statute. See id. That is, because the general survival statute

encompassed all survival actions, whether the person died or not, the legislature found it

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5

The child injury/death statute is at RCW 4.24.010. The wrongful death statute is RCW

4.20.010 and the beneficiaries for a wrongful death action are set forth in RCW 4.20.020.

6

Lockheed cites Masunaga v. Gapasin in support of its argument, but the case undermines

its position. First, Masunaga addressed the child injury/death statute, RCW 4.24.010, which is

not applicable here. Masunaga, 790 P.2d at 172. Second, the estate’s claims were not before the

court because they had been settled beforehand. Id.

ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 9

an expeditious way to afford a certain class of beneficiaries the same kind of damages

afforded under the special survival statute.

The legislature never indicated the intent to curtail recovery of purely economic

damages by the estate. Both pre- and post-1993, the estate is not entitled to recover noneconomic damages (pain and suffering, etc.) on behalf of the decedent. Compare 1961

Wash. Laws Ch. 137, § 1 with RCW § 4.20.046. The legislature expanded the general

survival statute’s scope and left the estate’s right to recovery alone. See House Bill

Report, SB 5077, at 1-2.

Lockheed relies upon generalized dicta to reach the contrary position. For

example, in Philippides v. Bernard, 88 P.3d 939, 944 (Wash. 2004), the court stated:

“Washington’s four interrelated statutory causes of action for wrongful death and survival

each require that parents be ‘dependent for support’ on a deceased adult child in order to

recover. See RCW 4.20.010 (child injury/death) [sic]5

; RCW 4.20.020 (wrongful death);

RCW 4.20.046 (general survival statute); RCW 4.20.060 (special survival statute).” See,

e.g., Schumacher v. Williams, 28 P.3d 792, 797 (Wash. Ct. App. 2001) (examining child

injury/death statute but noting that “the beneficiaries under both the survival of action

provisions and the wrongful death statute have not included siblings or parents who are

not dependent on the decedent for support”).6

 There is no further discussion of the

general survival statute. In only one of the cases cited by Lockheed did a court hold that

the personal representative could not maintain an action under the general survival statute

because the decedent lacked statutory beneficiaries. See Rentz v. Spokane County, 438

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The court did not find particularly informative Lockheed’s discussion of a proposed bill

to amend RCW § 4.20.046 in light of Philippedes and Otani. Reply at 5, Ex. A. Lockheed

would have been better served by discussing the legislative history of the statute actually in effect.

ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT– 10

F. Supp. 2d 1252 (E.D. Wash. 2006). In that decision, the court referred to the broad

summation sentence in Philippides and held summary judgment to be proper. Id. at 1259.

The Philippides court never suggested that its single-sentence summation about

tortious death overturned the well-settled understanding that an estate may recover under

the general survival statute for economic damages due a decedent who leaves no statutory

beneficiaries. See, e.g., Norberg, 4 P.3d at 846; Wooldridge, 638 P.2d at 567; Walton,

676 P.2d at 1004; Criscuola, 507 P.2d at 150; Balmer, 502 P.2d at 458; Warner, 460

P.2d at 276; Tait, 987 P.2d at 131; Cavazos, 867 P.2d at 677; Wagner v. Flightcraft, Inc.,

643 P.2d 906, 912 (Wash. Ct. App. 1982). Cf. Otani, 92 P.3d at 195 (“[S]pecifically,

recovery under the general survival statute is for the benefit of, and passes through, the

decedent’s estate, whereas recovery under the special survival statute is for the benefit of,

and is distributed directly to, the statutory beneficiaries.”). The court, therefore, rejects

both Lockheed’s argument and the conclusion in Rentz.

7

III. CONCLUSION

 For the reasons stated, the court DENIES Lockheed’s motion for summary

judgment (Dkt. # 40).

Dated this 27th day of September, 2007.

A JAMES L. ROBART

United States District Judge

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