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# ~~ CHIEFJIJS , SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JUDY R. DEGGS, as Personal Representative for the estate ofRA Y GORDON SUNDBERG, Petitioner, 

### v. ASBESTOS CORPORATION LIMITED; ASTENJOHNSON, INC.; CBS CORPORATION (FKA VIACOM INC., FKA WESTINGHOUSE ELECTRIC CORPORATION); INGERSOLL-RAND COMPANY, Respondents, and ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) BARTELLS ASBESTOS SETTLEMENT ) TRUST; GASKET COMPANY; GENERAL) REFRACTORIES COMPANY; JOHN ) CRANE, INC.; METROPOLITAN LIFE ) INSURANCE COMPANY, and FIRST ) DOEthrough ONE HUNDREDTH DOE, ) Defendants. ) ) No. 91969-1

En Bane

Filed 

### OCT 0 6 

### 2016

GONZALEZ, I.-Washington State's wrongful death act is based on the English Lord Campbell's Act of 1846. Lord Campbell's Act gave certainDeggs v. Asbestos Corp., et. a/., No. 91969-1 family members a cause ofaction for a relative's wrongful death, but only if that relative would have had a cause ofaction for the injury at the time of death had death not occurred. While our state's legislature did not adopt that limitation, almost a century ago, this court did. We have since carved out
some exceptions. We are asked today to abandon that limitation completely and to reinstate a daughter's case for the wrongful death ofher father even though the father did not have a cause ofaction against the defendants at the time ofhis death. While we recognize that our cases adopting the limitation from Lord Campbell'sAct's may have been incorrect, the petitioner has not shown that they are harmful. Nor has she shown that the legal underpinnings ofthose decisions have changed or disappeared since those opinions were decided. Accordingly, we affirm. FACTS Ray! Sundberg served in the United States Navy during the Second World War. Afterward, he worked for decades in dockyards and lumber yards. Throughout his long work life, he was exposed to asbestos. This exposure caused him serious, long term harm. Between 1998 and 2000, he

1The original complaint, and therefore, the original caption, misspelled Sundberg's first name "Roy." This misspelling was corrected in the amended complaint. We order the caption corrected.
2Deggs v. Asbestos Corp., et. a!., No. 91969-1

was diagnosed with lymphoma, pleural disease, and asbestosis relating to asbestos exposure. Clerk's Papers at 24. In 1999, Sundberg filed a personal injury suit against nearly 40 defendants who had some part in exposing him to asbestos. Most ofthe defendants settled (the amounts are not in the record), though one did go to trial. Sundberg prevailed at trial, and in 2001, ajury awarded him $1,511,900 against the last remaining defendant. Nine years later, at the age of84, Sundberg died ofasbestos-related disease. He was survived by his wife, Betty Sundberg, and their daughter, Judy Deggs. Deggs, acting as personal representative ofher father's estate, brought this wrongful death action. Deggs primarily named defendants who had not been named in her father's 1999 personal injury action, though both suits named Asbestos Corporation Limited. Nothing in the record or briefing explains why herfather did not name these new defendants in the earlier case. One ofthe defendants (laterjoinedby others) moved to dismiss the suit as time barred because it was filed more than three years after Sundberg learned he had asbestos-related diseases. 2 In other words, due to

2While the record does not reveal the exact date when the personal injury suit accrued, the parties do not dispute that Sundberg's cause ofaction had accrued by 1999, when he f1led a personal injury suit against Asbestos Corporation Limited and other defendants. The statute oflimitations on personal injury suits is three years from the time the plaintiff knows all the essential elements ofthe cause ofaction. White v. Johns-Manville Corp., 103 Wn.2d 344, 358, 693 P.2d 687 (1985); see also RCW 4.16.080(2). 3Deggs v. Asbestos Corp., et. al., No. 91969-1 the passage oftime, Sundberg did not have a cause ofaction againstthese defendants for his injuries at the time ofhis death. The trialjudge agreed and granted the motionsto dismiss. The Court ofAppeals affirmed over a vigorous dissent. Deggs v. Asbestos Corp. Ltd., 188 Wn. App. 495,500,354 P.3d 1 (citing Grantv. Fisher FlouringMills Co., 181 Wash. 576, 581, 44 P.2d 193 (1935); Calhoun v. Wash. Veneer Co., 170 Wash. 152, 160, 15 P.2d 943 (1932)), review granted, 184 Wn.2d 1018, 361 P.3d 746 (2015). Itconcluded that since Sundberg could not have brought a second suit based onhis asbestos exposures before he died, Deggs could not bring a wrongful death suit after he died. !d. The dissent concluded that the analytical underpinnings ofGrant and Calhoun had been undermined by subsequent case law. !d. at 514-15 (citing Wash. State Major LeagueBaseballStadium Pub. Facilities Dist. v. Huber, Hunt & Nicholas-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821 (2013)). Since, it concluded, "[o]fcourse, a wrongful death action cannot
accrue before death," the statute oflimitations could not start to rununtil that time either. !d. at 515 (Dwyer, J., dissenting). Essentially, Deggs argues that wrongful death is a distinct statutory claim and that her injuries are not

4Deggs v. Asbestos Corp., et. al., No. 91969-1 the same injuries her father suffered and sued for in 1999. Her injuries are due to the loss ofher father, which did not occur until he died. We granted Deggs' petition for review. Deggs, 184 Wn.2d 1018. We have received amicus briefs in support ofDeggs from the Washington State Association for Justice Foundation and Bergman Draper Ladenberg PLLC. We have received briefs in support ofAsbestos Corporation Limited and the other defendants from the Washington Defense Trial Lawyers. ANALYSIS "When the death ofa person is caused by the wrongful act, neglect,
or default ofanother his orherpersonal representative may maintain an action for damages against the person causing the death." RCW 4.20.010, The wrongful death action is for the benefit ofstatutory heirs, notthe decedentorthe decedent's estate. RCW 4.20.020; Gray v. Goodson, 61 Wn.2d 319, 327, 378 P.2d 413 (1963) (quoting Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31 (1936)). The wrongful death act expresses our society'sjudgmentthat "aperson may legally sustain damages when one, with whom a certain relationship existed, is wrongfully killed." Gray, 61 Wn.2d at 325. Itis not truly a derivative action: "[T]he action for wrongful death is derivative only in the sense that it derives from the wrongful ac.t causing the death, rather than from the person ofthe deceased." Johnson v.

5Deggs v. Asbestos Corp., et. al., No. 91969-1 Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954) (citing Welch v. Davis, 410 Ill. 130, 101 N.E.2d 547 (1951)); see also Gray, 61 Wn.2d at 325 (citing Upchurch v. Hubbard, 29 Wn.2d 559, 188 P.2d 82 (1947)). Accordingly, a wrongful death action accrues "atthetime the decedent's personal representative discovered, or should have discovered, the cause ofaction." White v. Johns-Manville Corp., 103 Wn.2d 344, 352-53, 693 P.2d 687 (1985). ButseeAtchison v. Great W. Malting Co., 161 Wn.2d 372, 379, 166 P.3d 662 (2007) (observing that "therule is well-settled: wrongful death actions accrue at the time ofdeath" (citingDodson v. Cont 'l Can Co., 159 Wash. 589, 294 P. 265 (1930))). 3 Ithas a three year statute oflimitations. SeeHuntington v. Samaritan Hosp., 101 Wn.2d 466, 468, 680 P.2d 58 (1984) (citing RCW4.16.080). Deggs filed this suit within three years of herfather's death. Therefore, she contends, her suit was timely. Butwhile the wrongful death action exists for the benefit ofthe deceased's family, it is not completely separate from actions the deceased couldhave brought during life. These two types ofactions are intertwined with each other and have consequences on each other. Both types ofactions hold those who injure others liable for the damages they cause, but that

3Atchison asked whether the statute oflimitations would betolled during an heir's childhood. 161 Wn.2d at 375. Itdid not discuss either the discovery rule or White, 103 Wn.2d344. 6Deggs v. Asbestos Corp., et. a/., No. 91969-1 liability is subject to the broader law and the law's limitations. As the plaintiffs are asking us to reconsider one ofthose long-standing limitations,
we take this opportunity to trace the development ofthat limitation in our
common law. Formany centuries, English common law did not have a cause of action for family members to sue for their loved ones' wrongful deaths. FRANCIS B. TIFFANY, DEATH BY WRONGFUL ACT§ 1, at 1-3 (2d ed. 1913). In 1846, motivated by the "toll ofhuwan life taken by the railways," the English parliament enacted "'[a]n act for compensating the families of persons killed by accidents."' 15 SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 220 (1965); TIFFANY, supra,§ 4, at 5. This act has become known as Lord Campbell's Act. TIFFANY, supra,§ 4, at 5 (citing Fatal Accidents Act 1846, 9 & 10 Viet. c. 93 (Eng.)). As described by the leading treatise this court frequently turned to when considering early wrongful death cases, the act originally provided in part: That whensoever the death ofa person shall be caused by wrongful act, neglect, or default, suchas would, ifdeath had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the personwho would have been liable ifdeath had not ensued shall be liable to an action for damages, notwithstanding the death ofthe person injured.

7Deggs v. Asbestos Corp., et. al., No. 91969-1 

### !d. § 21, at 27. Lord Campbell's Act was the model for our wrongful death statute and wrongful death statutes around the country. Armijo v. Wesselius, 73 Wn.2d 716,718,440 P.2d 471 (1968) (citing Wex S. Malone, The Genesis 

### a,( Wrongful Death, 17 STAN. L. REV. 1043 (1965)). The very first session ofour territorial legislature ofthe state ofWashingtonpassed a version ofit. LAws OF 1854, § 496, at 220. In 1875, the territorial legislature expanded our wrongful death statute to substantially the form 

### it has today: When the death ofa person is caused by the wrongful act or neglect of another, his heirs orpersonal representatives may maintain an action for damages against the person causing the death. LAWS OF 1875, §4, at 4. Based on both the plain language ofthe statute and the larger history ofthe doctrine, we reversed a wrongful death verdict against a defendant homeowner who shot a police officer, believing he was a prowler. Welch v. Creech, 88 Wash. 429, 437, 153 P. 355 (1915). We found the instructions given in that case permittedthejuryto return a plaintiffs verdict even ifit found the defendant acted in self-defense. 

### !d. at 444. But since killing in self-defense is not wrongful, ifthe defendant had acted in self-defense, no recovery under the wrongful death act was available. 

### !d. at 435 (citing 

### N. Pac. Ry. Co. v. Adams, 192 U.S. 440,24 S. Ct. 408, 48 L. Ed. 513 (1904)).

8Deggs v. Asbestos Corp., et. a!., No. 91969-J We remanded for retrial with proper instructions. !d. at 444. We reached similar holdings in cases where the deceased was killed while attempting to bomb a competitor's business and where the deceased was killed during an illegal prize fight. Ryan v. Poole, 182 Wash. 532, 533, 538-39,47 P.2d 981 (1935); Hart v. Geysel, 159 Wash. 632, 634, 294 P. 570 (1930). In all of these cases, no recovery underthe wrongful death act was available because the deceased was not killed by an act the law (at least at the time) categorized as wrongful. In other words, the decedent would not have had a
cause ofaction for the injuries had no death occurred so neither do the surv1vors. Meanwhile, we took a substantial step toward limiting our wrongful death statute in line with the limitations in Lord Campbell's Act inBrodie v. Washington Water Power Co., 92 Wash. 574, 576-77, 159 P. 791 (1916). There, we held "that a release and satisfaction by the person injured ofhis right ofaction for the injury bars the right in the beneficiaries to maintain an action for his death occasioned by the injury." !d. at 576 (citing TIFFANY, supra, 

### § 124, at 269-76). Since Brodie had settled the underlying personal injury case during his life for $2,500 in return for a release ofall claims, the court dismissed the wrongful death suit. !d. at 575-76. AccordN. Pac. Ry. Co., 192 U.S. at 450 (holding negligence waiver bound heirs even iftheir

9Deggs v. Asbestos Corp., et. al., No. 91969-1

cause ofaction had not yet accrued). Thus, in 

### Brodie, the heirs could not pursue a wrongful death action because ofsomething extrinsic to injury that resulted in their family member's death: the deceased's decision to release the defendant and thus the lack ofa subsisting cause ofaction at the time of death. In the 1930s, we come to the cases that are argued most strenuously here, 

### Calhoun, 170 Wash. 152, and 

### Grant, 181 Wash. 576. In those cases,
we went beyond the substantive statutory limitations on the availability of the wrongful death statute recognized in 

### Welch, 88 Wash. 429 (thatthe death
was not the result ofa wrongful act) to a generally procedural, extrinsic limitation: the statute oflimitations on the deceased's underlying cause of action. In 1932, we concluded fairly summaril)' that a wrongful death action
was not available ifthe statute oflimitations on the underlying injury had
run before the decedent died. 

### Calhoun, 170 Wash. at 159-60 (citing

### Horner
v. Pierce County, 111 Wash. 386, 191 P. 396 (1920)). We elaborated and refined our 

### Calhoun reasoning in 

### Grant, 181 Wash. 576. We observed that the wrongful death "action accrues at the time ofdeath, and thatthe statute oflimitations then begins to run." 

### !d. at 580-81 (citing 

### Dodson, 159 Wash, 589). Butwe noted that "[t]he rule
... is subject to a well recognized

10Deggs v. Asbestos Corp., et. a!., No. 91969-1 limitation, namely, at the time ofdeath there must be a subsisting cause of action in thedeceased." Id. at 581 (citing TIFFANY, supra,§ 124). In Grant, the decedent had filed a timely personal injury action for his injuries. Id. at 582. That suit was pending at the time ofhis death. Id. Based on that pending lawsuit, we concluded that Grant did have "avalid subsisting cause ofaction" at the time ofhis death and allowed the wrongful death suit to go forward. Id. We recognized a significant exception to the Calhoun/Grant rule in Johnson, 45 Wn.2d 419.4 Johnson was a wrongful death action filed by the personal representative ofAnna Ottomeier, who was murdered by her husband who then killed himself. Id. at 420. At the time, either in the interests ofmarital tranquility or under the legal fiction that husband and wife were one, Washington common law did not allow spouses to sue each other intort. Id. at 424. Since Anna Ottorneier could not have sued her husband for assaulting her, his personal representative argued, there was no "subsisting cause ofaction in the deceased" as required by Grant after her

4 We respectfully disagree with the dissent that the court is disinterested in making sense ofCalhoun, Grant, and Johnson. Taken together, these cases adopt Lord Campbell's Act limitations onwrongful death suit and recognize, based on legal developments since the time ofLord Campbell's Act, some exceptions. 11Deggs v. Asbestos Corp., et. a/., No. 91969-1 murder. Grant, 181 Wash. at 580-81; Johnson, 45 Wn.2d at 424. 5 While acknowledging Grant and Calhoun, we allowed the wrongful death case to go forward. Johnson, 45 Wn.2d at 420, 423. Examining our own precedents, we found that there were two categories ofwrongful death suits that had been dismissed based on the status or conduct ofthe deceased, and that the reasoning underlying neither categoryjustified dismissing Johnson's suit, especially as there was no marital tranquility left to maintain. Id. at 424,427. In the first category were "cases in which the defense asserted inhered in the tort itself," such as claims thatthe defendant's act was not wrongful, claims ofconsent, and claims ofcontributory negligence. Id. at 422. The court concluded thatno recovery under the wrongful death action was available in such cases because "the tort-feasor breachedno duty owing to the decedent
... [and thus the] death was not wrongful in the contemplation ofthe statute." Id.; see also Ryan, 182 Wash. at 538-39 (not wrongful for defendantto kill a man who was attempting to dynamite a building); Welch, 88 Wash. at 436-37 (self-defense is not wrongful). The Johnson court concluded that the victim's "disabilityto sue is personal to her, and does not

5This court abandoned common law spousal immunity inFreehe v. Freehe, 81 Wn.2d 183, 186, 500 P.2d 771 (1972), overruledon othergrounds by Brown v. Brown, 100 Wn.2d 729,737,675 P.2d 1207 (1984). 12Deggs v. Asbestos Corp., et. al., No. 91969-1 inhere inthe tort itself." 45 Wn.2d at 424 (citingDeposit Guar. Bank & Tr. Co. v. Nelson, 212 Miss. 335, 54 So. 2d476 (1951), overruledbyBurns v. Burns, 518 So. 2d 1205, 1207 (Miss. 1988)); see also Ostheller v. Spokane & I.E.R. Co., 107 Wash. 678, 685, 182 P. 630 (1919). None oftheparties argue that category is present here. "The second category ofcases in which this general rule ofexclusion has been applied involves situations in which, after receiving the injuries which later resulted in death, the decedent pursued a course ofconduct which makes it inequitable to recognize a cause ofaction for wrongful death." Johnson, 45 Wn.2d at 422-23 (citingBrodie, 92 Wash. 574; Calhoun, 170 Wash. 152; Grant, 181 Wash. 576). This postinjury category ofextrinsic limitations on the availability ofthe wrongful death action includes prior litigation, prior settlements, and the lapsing ofthe statute of limitations. 6 Id. The court analogized spousal immunity to this sort of extrinsic limitation on the scope ofthe wrongful death action, concluded that

6Werespectfi.J!ly disagree with the dissent that Calhoun was "nonsensical" orthat Johnson's categorization ofCalhoun was "an exercise inrevisionist history." Dissent at 9, 6. Calhoun simplycontainedunfortunate dicta that was promptly clarified in Grant. Unfortunate dicta is not unknown at this court. TheJohnson court took a thoughtful look at our cases concerning the accrual ofa wrongful death action. 45 Wn.2d at 421-23. As discussed inmore detail in text above, theJohnson court discerned two categories of limitations on wrongful death actions. Itincluded Grant and Calhoun inthe second category: equitable limitations on accrual. !d. at 423 (citing Grant, 181 Wash. 576; Calhoun, 170 Wash 152). Fairlyread, theJohnson court found there was something inequitable in allowing the deceased's personal representative to maintain a suit based on injuries thatthe deceased had alreadybeen compensated for orhad decided not to pursue. 13Deggs v. Asbestos Corp., et. al., No. 91969-1 there was no equitable r!;)ason to attribute spousal immunity to the wife's personal representative, and allowed the wrongful death suitto go forward. !d. at 424-25. More recently, we found that the discovery rule applies in wrongful death suits to toll the statute oflimitations. White, 103 Wn.2d at 345. Thus "[t]he wrongful death statute oflimitation accrues at the time the wrongful death claimant knew or should have known that the death ofthe decedent
was causedby his exposure to asbestos," rather than at the death ofthe decedent. !d. at 356. However, we cautioned: [W]e note we are not faced with, nor do we decide, a case in which the deceased is alleged by the defendant to have knownthe cause of the disease which subsequently caused his death. In that case there is a question as to whether the wrongful death action ofthe deceased's representative "accrued'' at the time ofthe decedent's death, when the decedent first discovered or should have discovered the injury, or when the claimant first discovered or should have discovered the cause ofdeath. !d. at 347. This takes us to the question before us today: whether Deggs as her father's personal representative can maintain a suit when her father could not have. Deggs asks us to overrule Grant, Calhoun, andJohnson to the extent they hold that the lapsing ofthe statute oflimitations onthe underlying personal injury claim bars the personal representative from bringing a

14Deggs v. Asbestos Corp., et. al., No. 91969-1 wrongful death claim. Deggs' Suppl. Br. at 13. Generally, this court will not overturn precedent unless there has been "a clear showing that an established rule is incorrect and harmful." In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). 7 Deggs makes a fairly persuasive argument that our precedents were incorrect at the time they were announced. They grafted onto our wrongful death statute broadly procedural limitations that the EnglishParliament, not our legislature, adopted. Further, the C:alhoun court suggested (though it did not hold) that a wrongful death cause ofaction accrues at the time ofthe underlying injuryto the deceased, not upon their death. See Calhoun, 170 Wash. at 160 (citing Horner, Ill Wash. 386). That was incorrect; a wrongful death action
accrues "atthe time the decedent's personal representative discovered, or should have discovered, the cause ofaction." White, 103 Wn.2d at 352-53. Butwhile Grant and Calhoun may have been incorrect at the time they were announced, Deggs has not shown that they are harmful. Deggs makes a fairly conclusory argument that our precedent is harmful because it "bars the personal representative from pursuing legitimate wrongful death

7Amicus Washington Defense Trial Lawyers suggests that the Stranger Creek analysis does not presentthe appropriate analytical lens to consider whetherto reverse Calhoun and Grantbecause, in amicus's view, those opinions construe a statute, not the common law. Butneither opinion suggests that the wrongful death statute itselfcontains the limitation the opinions embrace. 15Deggs v. Asbestos Corp., et. al., No. 91969-1 claims, benefiting tortfeasors and rewarding their wrongdoing that results in their victims' deaths." Deggs' Suppl. Br. at 14. Given how we have restricted the rule from Lord Campbell's Act in 

### Grant and 

### Johnson, and given thatwe found in White that the discovery rule applies to wrongful death suits, any harm is less clear. We are not presented here with a case where the deceased knew ofa cause ofaction, was prevented from bringing
a personal injury claim within the statute oflimitations, and then passed away, leaving children or other dependents destitute. Itmay be that case would showthe sort ofharm necessary to overrule our case law. Instead, we
are faced with a case where the deceased knew ofthe injury, sued, and either settled with or won against all the named defendants. 8 Further, while the doctrine oflegislative acquiescence does not govern this case as 

### Grant and 

### Calhoun are not statutory interpretation cases, the legislature's lack ofresponse adds weight to the conclusion that they have not been harmful. 

### Cf 1000friends ofWash. v. McFarland, 159 Wn.2d 165, 181, 149 P.3d 616 (2007)(citing

### State v. Coe, 109Wn.2d 832,846,750 P.2d 208 (1988)). The legislature has not indicated any dissatisfaction with this court grafting onLord Campbell's Act's limitation despite having 84
' Amicus Bergman Draper Ladenburg PLLC argues the Calhoun/Grantrule is harmful because ofcases where the cause ofdeath is not known until well after the decedent has passed away and intrusive pathologies have been done. Butthose cases would fall under the discovery rule in White, and Calhoun/Grant should not be an impediment. 16Deggs v. Asbestos Corp., et. al., No. 91969-1 years to do so and despite amending the wrongful death statute itselfonce andthe related wrongful death beneficiary statute four times. See LAWS OF 2011, ch. 336, §§ 89-90 (making statutory language genderneutral); LAWS OF 2007, ch. 156, §§ 29-30 (extending beneficiary rights to domestic partners); LAWS OF 1985, ch. 139 (extending rights to step children); LAWS OF 1973, 1st Ex. Sess., ch. 154, 

### § 2 (extending beneficiaryrights to adult brothers). We conclude Deggs has not shownthat Grant and Calhoun are harmful. 9 Norhas she shown other reasons exist to abandon ourprecedent. We have recently observed that "we can reconsider ourprecedentnot onlywhen it has been shown to be incorrect and harmful but also when the legal underpinnings ofourprecedent have changed or disappeared altogether." WG. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (citing UnitedStates v. Gaudin, 515 U.S. 506,521,115 S. Ct. 2310, 132 L. Ed. 2d444 (1995)). In WG. Clark,
wehad occasion to revisit whetherthe Employee Retirement Income

9 In contrast, 1his court couldinflict considerable harm on settled expectations ifwe were to abandon the mle from Lord Campbell's Act now. "Stare decisis has added force when thelegislature, in the public sphere, and citizens, inthe privaterealm, have acted in relim1ce on a previous decision." Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197,202, 112 S. Ct. 560, 116 L. Ed. 2d 560 (1991). Mm1y entities thatreasonablyrelied on our precedent to close the book onpotential claims based on 1he passage ofthe underlying statute oflimitations would now find themselves subject to potential liabilitybased on a court opinionthey were not parties to. 17Deggs v. Asbestos Corp., et. al., No. 91969-1 Security Act of 1974 (ERISA) (29 U.S.C. §§ 1001-1461) preempted wage claims under two Washington statutes. Id. at 57. Relying on then-good precedent, we had previously found ERISA preemption. Id. (citingPuget SoundElec. Workers Health & Welfare Tr. Fund v. Merit Co., 123 Wn.2d 565, 870 P.2d 960 (1994); Int'lBhd. ofElec. Workers, Local Union No. 46
v. Trig Elec. Constr. Co., 142 Wn.2d 431, 13 P.3d 622 (2000)). Since that time, courts across the country had "come to a consensus that these types of state law claims are notpreempted by ERISA because they have only a tenuous connection to ERISAplans." Id. (citing 

### S. Cal. IBEW-NECA Tr. Funds v. StandardIndus. Elec. Co., 247 F.3d 920,925-27 (9th Cir. 2001)). While "[ r]espect for precedence is strongest 'inthe area ofstatutory construction"' since the legislature is free to amend statutes to address interpretations it disagrees with, we recognizedthat cases we had relied on in Merit and Trig had been overruled,joined the emerging consensus, and overruled our precedent. Hubbardv. UnitedStates, 514 U.S. 695, 711, 115 S. Ct. 1754, 131 L. Ed. 2d 779(1995)(quotingIllinois Brick Co. v. Illinois, 431 U.S. 720,736,97 S. Ct. 2061,52 L.Ed. 2d 707 (1977)); W.G. Clark Constr., 180 Wn.2d at 58, 62 (citing Standard, 247 F.3d at 929). 10

10 We caution that stare decisis is applied less rigorously inthe area ofconstitutional interpretation. This is partially for the pragmatic reason that statutes are easierto amend than constitutions. Ifthe legislature does not approve ofajudicial interpretation ofa 18Deggs v. Asbestos Corp., et. al., No. 91969-1 In dissent at the Court ofAppeals, Judge Dwyer found that that the underpinnings ofCalhoun and Granthadbeen undermined based on the emerging understanding ofthe nature ofstatutes oflimitations. Deggs, 188 Wn. App. at 514-16. Relying on several recent cases, Judge Dwyer contended that "statutes oflimitation do not begin to run until a partyhas the right to apply to a court for relief-that is, once a claim accrues." Id. at 514- 15 (Dwyer, J., dissenting) (citingHuber, 176 Wn.2d at 511; Cambridge Townhomes, LLCv. Pac. StarRoofing, Inc., 166 Wn.2d 475, 484-85, 209 P.3d 863 (2009); 1000 Va. Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423 (2006)). Since Calhoun and Grant essentially ran the statute oflimitations from a date that occurred before the cause accrued, Judge Dwyerreasoned, they were incorrect. 

### Id. Instead, in his view, Calhoun and Grant treated the statute oflimitations as a statute ofrepose without any evidence the legislature intended to do so. Id. at 516 (Dwyer, J.,

statute, the legislature can simply amendthe statute. See Hubbard, 514 U.S. at 711-12 (quotingIllinois Brick Co., 431 U.S. at 736). Amending constitutions is muchmore difficult. Compare WASIL CONST. art. II, §§ 1, 17-22, with WASH. CONST. art. XXIII. But this pragmatism must give way "to the lessons ofexperience and the force ofbetter reasoning" when our opinions interpreting our constitutions are found wantingbecause they fail to give adequateprotection to constitutionallyprotected liberties or duerespect to constitutionallymandatedprocedures. Burnetv. Coronado Oil & Gas Co., 285 U.S. 393,407-08, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting), overruled in partbyHelvering v. Mountain Producers Corp., 303 U.S. 376, 387, 58 S. Ct. 623, 82 L. Ed. 907 (1938). 19Deggs v. Asbestos Corp., et. a/., No. 91969-1 dissenting). Accordingly, in his view, the Calhoun/Grant rule should be abandoned. While there is some force to this argument, Grant did not hold that the statute oflimitations on a wrongful death suit can lapse before the wrongful death cause ofaction accrued. Instead, it held there was an exception to the rule thatthe wrongful death cause ofaction accrues at death: there must be
an existing cause ofaction in the deceased at the time ofdeath, and this principle applied to statutes oflimitation. Grant, 181 Wash. at 580-81 (citing TIFFANY, supra,§ 124). 11 At least one ofthe underpinnings ofCalhoun has been undermined. It is now clear that a wrongful death cause ofaction accrues at the time of death, not the time ofthe underlying injury to the deceased, as the authority cited in Calhoun suggests. Compare Calhoun, 170 Wash. at 160 (citing Horner, 111 Wash. 386), with White, 103 Wn.2d at 352-53. But we cannot say that Calhoun and Grant themselves have been undermined since Grant itselfpoints to the strangeness ofdismissing a tort case based on a statute of limitations that lapsed before the cause ofaction accrued and clarifies that
·-------· 11 The dissent asserts that ithas correctlx understood Grant and that we have not, based on the difference between a claim being barred and a claim being extinguished. Dissent at 11. Werespectfully disagree with the dissent that we have misunderstood Grant. Specifically, Grant says that "this court has held that the [wrongful death] action accrues at the time ofdeath," but that "[t]he rule, however, is subject to a well recognized limitation, namely, at the time ofdeath there must be a subsisting cause ofaction in the deceased." 181 Wash. at 580-81. 20Deggs v. Asbestos Corp., et. al., No. 91969-1 under Washington law, a wrongful death action does accrue at the time of death. Grant, 181 Wash. at 580-81. Further, comis around the countryare currently split on when the statute oflimitations on a wrongful death action
accrues and on whether ajudgment in a personal injury case arising out of the same set offacts bars a subsequent wrongful death action. See M.C. Dransfield, Timefrom Which Statute of Limitations Begins to RunAgainst Cause 

### cif Action for Wrongful Death, 97 A.L.R.2d 1151, §§ 2-3 (1964) (collecting accrual cases); Vitauts M. Gulbis, Annotation, Judgment in Favor of, OrAdverse to, Person Injuredas BarringAction for His Death, 26 A.L.R.4th 1264 (2015) (collecting priorjudgment cases). As courts across the countty are split on critical issues before us, this case is unlike 

### W. G. Clark, where every court interpreted ERISA preemption differently than we had. While reasonable minds might have differed at the time Grant and Calhoun were announced, we find thattheir underpinnings have notbeen sufficiently undermined tojustify abandoning them. We find this case is squarely governed by Calhoun and Grant. Under Calhoun and Grant, the statute oflimitations on Sundberg's underlying claim lapsed during his life and tltus this wrongful death suit was properly dismissed. CONCLUSION

21Deggs v. Asbestos Corp., et. a/., No. 91969-1 A wrongful death "action accrues at the time ofdeath" so long as there is "a subsisting cause ofaction in the deceased" at the time ofdeath, subject to exceptions not present here. 

### Grant, 181 Wash. at 580-81 (citing TIFFANY, 

### supra, § 124). We find insufficient cause to abandonthis wellestablished precedent at this time. We affirm the courts below.

22Deggs v. Asbestos Corp., et. al., No. 91969-1

WE CONCUR:

23Deggs v. Asbestos Corp. Limited, etal.

No. 91969-1

STEPHENS, J. (dissenting)-JudyDeggs, acting as personal representative, brought awrongful death actionunderRCW4.20.010 withinthree years ofthe death ofher father, Ray Sundberg. The majority does not doubt that Deggs's statutory action was timely filed, butitholds that any claim was barredbecause the statute of limitations ran on her father's personal injury claims before he died. I respectfully dissent. The majority's holding is contraryto Washington's wrongful death statute, which was enacted to allow a free-standing cause ofaction for family members that cannot arisebeforethe death oftheirloved one. Themajority's solejustificationfor undermining the statute is reliance onprecedent-more specifically, onthe holding ofa single case we subsequently recognized was wrong and have never extended. The majority agrees this precedent is incorrect, but sees no harm in perpetuating itsDeggs v. Asbestos Corp. Limited, eta!., 91969-1 (Stephens, J., dissenting)

topsy-turvy illogic. I do. I would overrule Calhoun v. Washington Veneer Co., 170 Wash. 152, 15 P.2d 943 (1932), and disapprove ofthe dicta describing it in Grant v. FisherFlouringMills Co., 181 Wash. 576, 581-82,44P.2d 193 (1935) andJohnson
v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954). Adhering to the language and purpose ofRCW4.20.010, I would clarify that the timeliness ofan inter vivos personal injury action bythe decedent has no bearing onthe viability ofa wrongful death actionbrought by the personal representative. The statute authorizes a claim for wrongful death so long as the decedent's death was "wrongful" in the sense that hehadtherightto bring a claimfor injuries during life (regardless ofwhetherhedid so), and so long as no priorjudgment or settlement and release bars the claim. If there are to be additional limitations on a wrongful death claim, the legislature, and notthis court, should imposethem. ANALYSIS Since before statehood, Washington has provided a statutory cause ofaction for wrongful death, inlanguage substantially similarto current RCW4.20.010: When the death ofaperson is causedbythe wrongful act, neglect, or default of another his or her personal representative may maintain an action for damages against the person causing the death; and although the death shall have been causedunder such circumstances as amount, inlaw, to a felony. Though a wrongful death action "derives from the wrongful act causing the death, ratherthanfrom thepersonofthe deceased,"Johnson, 45 Wn.2d at 423, itis entirely
-2-Deggs v. Asbestos Corp. Limited, etal., 91969-1 (Stephens, J., dissenting)

separate and distinctfrom anypersonal injury action that arises from the same set of facts and survivestothedecedent'sestateunderRCW4.20.060. See 6WASHINGTON PRACTICE: WASHINGTON PATTERN JURYINSTRUCTIONS: CIVIL 31.01, at 331-32 (6th ed. 2012) (WPI) (identifYing separatesurvival andwrongful deathclaims,theformer for injuries personal to the decedent and the latter for losses to specified beneficiaries); see also Estate ofYaeko Otani v. Broudy, 151 Wn.2d 750, 755, 92 P.3d 192 (2004) (noting that "wrongful death and survival actions can be distinguished in that the wrongful death statutes govern postdeath damages ofthe deceased and the survival statutes govern predeath damages"). 

### A wrongful death cause of action accrues, and the applicable statute of limitations therefore commences, no sooner than upon the death of the personal representative's decedent-thefirstpoint

### intime atwhich aplaintiffentitledtobring the action maybe appointed. See Dodson v. Cont'l Can Co., 159 Wash. 589, 596, 294 P. 265 (1930). The limitationperiod is further subject to a discovery rule. See White v. Johns-Manville Corp., 103 Wn.2d 344,353,693 P.2d 687 (1985) (holding action "'accrues' at the time the decedent's personal representative discovered, or shouldhave discovered, the causeofaction," andthatwhetherdeathmarks that time "is a question for the trier offact"); accordAtchison v. Great W. Malting Co., 161 Wn.2d 372, 379, 166 P.3d 662 (2007) (refusing to toll statute oflimitations based

-3-Deggs v. Asbestos Corp. Limited, etal., 91969-1 (Stephens, J., dissenting)



### on beneficiary's minority before being appointed personal representative, and recognizing that "[w]hile wrongful death actions clearly accrue at the time ofdeath, thus commencing the time for filing, the statute of limitations can be tolled by personal disability orminority''). 1 

### Liability for wrongful death arises only when death is "wrongful." A long line ofauthority recognizes a limitation on the statutory cause ofaction, "that the

1The majority observes that "courts around the country are currently split on when the statute oflimitations on a wrongful death action accrues and on whether ajudgmentin apersonal injury case arising out ofthe same set offacts bars a subsequentwrongful death action." Majority at 19-20. I fail to see why this matters. Whatever the state ofthe law mightbe inotherjurisdictions, there is no split ofauthorityinWashington onthe question ofaccrual. Our cases from Dodson throughAtchison make clear that the statutory action under RCW 4.20.010 accrues atthe time ofdeath, subject to tolling. As for whether a prior recovery in a personal injury action maybarthe claim, that is not an issue before us, contrary to the majority's suggestions. See majority at 21 (characterizing bar due to priorrecovery as one ofthe "critical issues before us"); see also id. at 16 (purportingto leave openthepossibility ofoverruling Calhoun in a different case, butnothere, "where the deceasedknew ofthe injury, sued, and either settled with or won against all the named defendants"). While the specter of "double recovery" floats about this case, nothing inthe record shows that Sundbergrecoveredjudgmentagainst any ofthe defendants to this action or executed a contractual release in their favor. Nor have the defendants raised arguments based on issue or claimpreclusion in this court. Moreover, whether this wrongful death action is barred under legal, contractual, or equitable principles based on Sundberg's priorrecovery presents anentirely different question from whether it is barred by the rule in Calhoun. Finally, where the possibility of double recovery exists between a claim personal to the decedent and a wrongful death claim, we have addresseditbytailoring damages, notbybarring a timely wrongful death claim. See Criscuola v. Andrews, 82 Wn.2d 68, 70-71, 507 P.2d 149 (1973) (refusing to disallow overlapping survival andwrongful death actions, and instead avoiding double recoveryby limiting lost income in survival action to net accumulations); WPI 31.01 cmt. at 336 (recognizingthat samerecoverymaybeallowedundersurvival andwrongful death statutes and "[c]aremustbe talcen to avoid allowing a double recovery"). -4-Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)


### wrongful act or default must be ofsuch character as would have entitledthe injured person to maintain an action and recover damages, had not death ensued; stated conversely, ifthe deceased never had a cause ofaction, no right ofaction accrues under the wrongful death statute." Upchurch v. Hubbard, 

### 29 Wn.2d 559, 564, 188 P.2d 82 (1947) (citing Ryan v. Poole, 

### 182 Wash. 532, 47 P.2d 981 (1935)). This limitation expresses the requirement that the death be actionable, i.e., that therebe a "subsisting cause ofaction." See, e.g., Ostheller v. Spokane & InlandEmpire R.R. Co., 

### 107 Wash. 678, 688, 182 P. 630 (1919) (no cause ofaction due to decedent's contributory negligence); Hart v. Geysel, 

### 159 Wash. 632, 633, 636-37, 294 P. 570 (1930) (no cause of action where decedent consented to prize fight); Welch v. Creech, 

### 88 Wash. 429, 435, 444, 153 P. 355 (1915) (no cause of action where defendant acted in self-defense). The court in Johnson 

### described this category of
cases imposing a limitation on wrongful death actions as distinct from a second category involving "situations in which, after receiving the injuries which later resulted in death, the decedent pursued a course of conduct which makes it inequitabletorecognize acause ofaction for wrongful death." 45 Wn.2d at 422-23. Into this category fall cases in which the decedent during life pursued a personal injury action and gave the wrongful death defendant "an effective release and satisfaction." Jd. 

### at 423 (citing Brodie v. Wash. Water Power Co., 

### 92 Wash. 574,

-5-Deggs v. Asbestos Corp. Limited, etal., 91969-1 (Stephens, J., dissenting)

159P. 791 (1916)). 

### Notably, thecourt describedthis categoryas based on "equitable principles"ratherthanthewrongful death statuteitself. Id. Johnson

### placed Calhoun 

### in the second category, deriving the "rule" from Calhoun 

### that the majority applies here: no actionfor wrongful death canbebrought ifthe statute oflimitations on any personal injury actionthe decedent couldhave broughtran beforehis death. See id. 

### This characterization of Calhoun 

### was certainly an exercise in revisionist history. The actual holding in Calhoun 

### was that the wrongful death claim was dependent on the personal injuryclaim and was untimely: Appellant did not have a cause ofaction against respondent because ofthe death ofher husband, but because of the negligence of respondent. The negligence was the cause; the death was the result. Under the statute, the claim for damages accrued, if at all, at the time of the injury to Claude Calhoun. 

### 170 Wash. at 160. Almost immediately, this court in Grant 

### recognized the error in Calhoun's 

### reasonmg: Respondent contends that [Calhoun] lays down the rule that the action for wrongful death accrues when the deceased person sustained injury through the negligence of the party charged. There is language in the opinion susceptible ofthat construction, but to so construe the decision brings it in directconflictwiththe caseof Dodson
....Inview ofthefacts inthe Calhoun case, we think that decision can, and should, be so interpreted as to avoid conflictwith the decision intheDodson case.

-6-Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

181 Wash. at 581. Thus, the court in Grant distinguished Calhoun on its facts instead ofoverruling it.2 In so doing, it placed Calhoun, as well as Brodie, in the category ofcases requiring a "subsisting cause ofaction," andmadeno reference to any category ofcases based on "equitable principles." !d. at 580-81. That further revisionofcategories andrecastingoftherulein Calhoun cameinJohnson, perhaps in anattempttomake Grantas well as Calhoun squarewithourprecedent. Johnson, 45 Wn.2d at 422-23. By the time the rule in Calhoun reached the Court of Appeals below, confusion about how to explain it was apparent. Lacking a consistent description, the court took a new tack and characterizedthe rule as resting on "preemption": Here, under Calhoun and Grant, the accrual ofthewrongful death actionwas preemptedeitherbythe earlierjudgmentagainstACL [Asbestos Corporation Limited3] or the expiration of the statute of limitations on Sundberg's underlying claims againstthe rest ofthe respondents.

2 The court in Grant said Calhoun was factually similarto Flynn v. New York, New Haven & Hartford R.R. Co., 283 U.S. 53, 51 S. Ct. 357, 75 L. Ed. 837 (1931), the only difference being that the decedent in that case died without bringing any personal injury action. Grant, 181 Wash. at 582. The court did not considerthatFlynn, which concerned a statute quite different from our wrongful death act, rested on a determination that the wrongful death claim was derivative ofthe personal injury claim-apropositionthis court has rejected. See Johnson, 45 Wn.2d at 423-24. 3 As noted, the record does not show thatjudgment was entered against Asbestos Corporation Limited. Deggs represents that there was nojudgment, nor a release. Deggs' Suppl. Br. at 2 n.l. -7-Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

Deggs 

### v. Asbestos Corp. Ltd., 

### 188 Wn. App. 495, 508, 354 P.3d 1, review granted, 

### 184 Wn.2d 1018, 361 P.3d 746 (2015); see also id. 

### at 500 (describing Calhoun 

### and Grant 

### as holding that "a decedent's inaction as to his claims during his lifetime can preempt the accrual ofapersonal representative's wrongful death cause ofaction"). It 

### is important to trace this path since Calhoun 

### to underscore that we do not know what its rule is actuallypremisedon-whetheraccrual, equity, preemption, or something else. The majority, understandably, does not attempt to settle the confusion ortojustifythe correctness oftherule ascribed to Calhoun. 4 

### The majority admits that Calhoun, Grant, 

### and Johnson 

### erroneously "grafted onto our wrongful death statute broadly procedural limitations that the English Parliament, not our legislature, adopted." Majority at 15.5 

### But, the majority's disinterest in making
sense ofCalhoun, Grant, 

### and Johnson 

### makes it all the more remarkable to insist on adhering to this precedent. It 

### rings hollow to suggest we are dealing with "well4 I believethemajorityadds to the confusionbysimultaneouslyrejecting Calhoun's view that a wrongful death claim may accruebefore death and embracing "an exceptionto the rule that the wrongful death cause ofaction accrues at death" premised on Grant, but contrary to Johnson. Majority at 20. 5 As the court inJohnson noted, former wrongful death statutes contained language traceable to the Fatal Accidents Act 1846, 9 & 10 Viet. c. 93 (Eng.) (Lord Campell's Act) limitingclaims to "caseswherethedecedent 'mighthavemaintainedanactionhadhelived, against the latter [tort-feasor], for an injury causedbythe same act or omission.' Laws of 1873, chapter 58, § 656, p. 169; Code of 1881, chapter 61, § 717, p. 149." 45 Wn.2d at 426 (alteration in original). We described the removal ofthis exclusionary language by the legislature as a "deliberate act." !d. at 

### 427. -8-Deggs v. Asbestos Corp. Limited, etal., 

### 91969-1 (Stephens, J., 

### dissenting)

established precedent," majority at 22, and are being asked to abandon a clear limitation onwrongful death claims adopted almost a centuryago. See

### majorityat 2. When all is said and done, this courthas beenunable to describe the Calhoun "rule" the same way twice. And until today, we have never applied it. The "settled expectations" the majority seeks to protect, majority at 17 n.9, simply do not exist. I wouldput an endto Calhoun's nonsensical rule right now. Our approach to abandoning erroneous precedent is more flexible than the majority allows. "[W]e
can reconsider our precedent not only when 

### it has been shown to be incorrect and harmful but also when the legal underpinnings of our precedent have changed or disappeared altogether." W.G. Clark Constr. Co. v. Pac. Nw. Reg'! Council of Carpenters, 180 Wn.2d 54, 66,322P.3d 1207 (2014). We mayreconsiderprecedent not only when other courts have interpreted a matter differently than we have, see 

### majority at 21, but also when our own understanding ofthe law has changed. See Ralph v. Dep 't of Nat. Res., 182 Wn.2d 242, 343 P.3d 342 (2014). Our understanding of the interplay between inter vivos personal !llJury actions, survival actions, and wrongful death actions has evolved since Calhoun, particularly with respect to questions ofaccrual and application of the statute of limitations. We have since recognized that the discovery rule applies to wrongful death claims and that its application turns on what the personal representative--not
-9-Deggs v. Asbestos Corp. Limited, eta!., 91969-1 

### (Stephens, J., dissenting)

the decedent-knewor shouldhaveknown inorderto bring suit. White, 

### 103 Wn.2d at 353; seeAtchison, 

### 161 Wn.2d at 380 (holding the tolling statute applies only to the person entitledto bringthe wrongful death action, the personal representative). More generally, recent case law has clarified the nature of statutes of limitations as distinguished from statutes ofrepose. "A statute oflimitation bars a plaintifffrom bringing an accrued claim after a specificperiod oftime. A statute of repose terminates therightto file a claim after a specifiedtime eveniftheinjuryhas notyet occurred." Wash. StateMajorLeagueBaseballStadiumPub. FacilitiesDist.
v. Huber, Hunt & Nichols-Kiewit Constr. Co., 

### 176 Wn.2d 502, 511, 296 P.3d 821 (2013) (Wash. StateMLB). 

### "Usually, a cause ofaction accrues when the party has the right to apply to a court for relief." 1000 Va. Ltd. P'ship v. Vertecs Corp., 

### 158 Wn.2d 566, 575, 146P.3d423 (2006). Becauseonlythe personalrepresentativehas the right to bring a wrongful death claim, the claim cannot accrue before death. As Judge Stephen J. Dwyer wryly noted in his dissentbelow, there can be no personal representative "prior to the decedent actually bothering to die." Deggs, 

### 188 Wn. App. at 513 n.8. Because a statute oflimitations cannotbeginto runbefore a claim accrues, "Calhoun 

### and Grant 

### are inconsistent with more recent Supreme Court decisions, which have made clearthat statutes oflimitation cannotbe applied so as to bar claims that have not yet accrued." Id. 

### at 515 (Dwyer, 

### J., dissenting); cf

-10-Deggs v. Asbestos Corp. Limited, eta!., 91969-1 (Stephens, J., dissenting)

RESTATEMENT (SECOND) OF TORTS§ 899 cmt. c (AM. LAW INST. 1979) ("since the
cause ofaction does not come into existenceuntil the death, it is notbarredbyprior lapse of time, even though the decedent's own cause of action for the injuries resulting in death would bebarred"). The majority insists that the interpretation ofthe 

### Calhoun rule in 

### Grant does not run afoul ofourmodem statute oflimitations decisions because Grant did notholdthatthe statute oflimitations on a wrongful death suit can lapsebeforethewrongful death cause ofactionaccrued. Instead, itheldthere was an exception to the rule that the wrongful death cause ofaction accrues at death: there mustbe an existing cause ofaction in the deceased atthe time ofdeath, and this principle appliedto statutes oflimitation. Majority at 19-20. In fact, this was not the holding in 

### Grant. The court never suggested the wrongful death claim accrued at some point other than upon death. 

### See Grant, 181 Wash. at 580. And, it emphatically recognized that the statute of limitations did not begin to run until that time. 

### !d. It disapproved of 

### Calhoun's language to the contrary. 

### !d. at 581. The wrongful death claim in 

### Grant was undoubtedly timely. Instead, what 

### Grant held-erroneously based on its new interpretation of 

### Calhoun-is that a wrongful death claim is entirely 

### extinguished ifthe statute of limitations ran on an accrued personal injury claim before the decedent's passing. 

### !d. at 581-82. Viewed inlight ofthe language ofourmodemcases, this describes a

-11-Deggs v. Asbestos Corp. Limited, et al., 91969-1 (Stephens, J., dissenting)

judiciallyimposed statute ofrepose onwrongful death claims. "A statute ofrepose terminates the rightto file a claimaftera specifiedtime evenifthe injuryhas notyet occurred." Wash. State MLB, 176 Wn.2d at 511. Ifa claim does not accrue within theperiod ofthe statute ofrepose, theprospective plaintifflosestherightto file that claim. See id.; 1000 Va., 158 Wn.2d at 575. By embracing the Calhoun rule as interpreted in Grant, the majority for the first time applies thisjudiciallycreated statute ofrepose to cut offa wrongful death claim before it accrues. 6 This is harmful on multiple levels. First, courts have no authorityto create statutes ofrepose. Onlythe legislature, ableto fully considerthe social costs and benefits ofcutting offmeritorious claims in favor offinality, may do so. Ithasnotimposeda reposeperiodonwrongful deathclaims. Tothecontrary, the legislature earlyonremoved limiting language from the original wrongful death statutes that tied wrongful death claims to whether the decedent might have

6 Even as the majority applies Calhoun today to dismiss Deggs's wrongful death action, it wants to leave open the possibility that it would not apply the same rule to facts the court in Calhoun contemplated. Compare majority at 16 (suggesting rule may be harmful where no personal injury claim is brought and dependents are left destitute), with Calhoun, 170 Wn.2d at 154, 160 (aclmowledgingplaintiff's allegationthathe didnotlmow dangerous character ofexposure bydate claim accrued; dismissing based on accrual). See also Grant, 181 Wash. at 581-82 (suggesting no difference between Calhoun (personal injury claim brought) and Flynn (no personal injury claim brought)). The majority's limiting language appears to be merelypalliative dicta. -12-Deggs v. Asbestos Corp. Limited, etal., 

### 91969-1 (Stephens, J., 

### dissenting)

maintained an actionhadhe lived. SeeJohnson, 

### 45 Wn.2dat426. We should adhere to the statute's plain language. Second, consider the inherent harm in cutting offa remedial cause ofaction for dependents based on nothing more than their loved one's inaction during life. See 

### RCW 4.20.010; Gray v. Goodson, 

### 61 Wn.2d 319, 324, 378 P.2d 413 (1963) (noting "thatthe [wrongful death] statute, beingremedial in nature, is to beliberally construed"). This is the unjust consequence ofextending the "subsisting cause of action" notion beyond the relevant question of whether governing law gives the decedent the right 

### to sue for injuries during his lifetime, to embrace the irrelevant question ofwhetherhe timelydid so. Nothinginthelanguage ofthe wrongful death statute expresses this limitation. The only requirement is that the death be "wrongful." Ryan, 

### 182 Wash. at 535-38 (explaining the subsisting cause ofaction requirement traces to "'wrongful act or neglect'" language in the statute (internal quotation marks omitted) (quoting Ostheller, 

### 107 Wash. at 681)). It

### is tellingthat the majority does not adoptJohnson's 

### description ofCalhoun 

### and Grant 

### as reflecting "equitable principles," Johnson, 

### 45 Wn.2d at 423, because there is nothing equitable in this. I can think ofno other context in which the mere failure to bring suit is regarded as blameworthy conduct comparable to seeking a second recovery after the defendant has been released. See id. 

### (describing Brodie,
-13-Deggs v. Asbestos Corp. Limited, etal., 91969-1 (Stephens, J., dissenting)

92 

### Wash. 574, 

### as equitable bar to claim where decedent gave defendant effective release and satisfaction). Nor am I aware ofany other context in which equity has beenrelied onto shorten, ratherthan extend, a statutorylimitationperiod, much less to extinguish a cause ofactionbefore it can accrue. When we set aside the distracting worry about the possibility of Deggs obtaining a double recovery, see supra 

### note 1, and focus on the rule that is being applied to dismiss this wrongful death claim, it is apparent that the majority's holdingperpetuates a significantinjustice. Barring a wrongful death claimbased on expiration of the statute of limitations on a separate personal injury claim the decedent couldhavebrought during life contradicts RCW 4.20.010 

### and undermines its remedial purpose. Therule derived from Calhoun, 

### whichthe majority applies for the first time in this case, is bothincorrect andharmful, and shouldbeput to rest. CONCLUSION I would overrule Calhoun 

### and disapprove ofthe dicta recasting it in Grant 

### andJohnson. 

### Deggs'swrongful death actionis notbarredbyexpirationofthe statute oflimitationsapplicableto intervivospersonalinjuryclaims. The action wastimely commencedwithin three years ofSundberg's death.7 

### Whetherthe action, or claims

7 The parties agree that the general, three-year limitation period in RCW 4.16.080 applies in this case. Washington's wrongful death act does not contain its own statute of limitations. In a different case pending before this court, we must decide whether the -14-Deggs v. Asbestos Corp. Limited, etal., 91969-1 (Stephens, J., dissenting)


### against certaindefendants, arebarredunderotherprinciples is notbeforeus. Ifthere
are grounds to disallow Deggs's wrongful death action based on Sundberg having already recovered from any ofthese defendants, I trust those arguments can either be addressed on remand or have already been addressed or abandoned. I would
reverse the Court ofAppeals and remand to the trial court for further proceedings.

special statute oflimitations in RCW 4.16.350 applies to wrongful death claims involving health care negligence. See Fast v. Kennewick Pub. Hosp. Dist., 185 Wn.2d 1001, 366 P.3d 1244 (2016) (granting review). -15-Deggs v. Asbestos Corp. Limited, etal., 91969-1 (Stephens, J., dissenting)

-16-