Date: 09-23-2009

Case Style: Josie Armantrout v. Robert Carlson, M.D.

Case Number: 81195-4

Judge: Madsen

Court: Supreme Court of Washington on appeal from the Superior Court for King County

Plaintiff's Attorney: Simeon Osborn and Susan Machler, Osborn Machler, Seattle, Washington

Defendant's Attorney: Steven Frederick Fitzer and Melanie T Stella, Burgess Fitzer PS, Tacoma, Washington

Timothy R. Gosselin, Gosselin Law Office PLLC, Tacoma, Washington

Description: This case involves a wrongful death suit by the parents of an adult

child against her medical care provider. We are asked to decide if the provision of services

that have an economic value may be considered by the trier of fact when determining whether

a parent was "dependent for support" on an adult child as required by RCW 4.20.020 to

maintain an action for wrongful death. We now hold that the trier of fact may consider a

parent's financial dependence on these services.

FACTS

At the time of her death Kristen Armantrout was 18 and living at home with her

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mother. She died of a pulmonary embolism two weeks after having surgery on her ankle.

Kristen's mother, Josie, has diabetes and is blind. Kristen provided her mother with a variety

of services. Kristen was her mother's driver and reader. She also helped her mother with

medical needs such as glucose readings and insulin injections. The testimony at trial showed

that the services Kristen provided to her mother were valued at around $36,553 per year.

Kristen also contributed her $588 monthly disability benefits check to the household

expenses.

At trial, a jury found that Cascade Orthopaedics (Cascade) was negligent and that their

negligence was the proximate cause of Kristen's death. The jury awarded Kristen's estate

$200,000. The jury also found that the Armantrouts were "substantially financially dependent

on Kristen for support" and awarded them $1.15 million. Br. of Appellant, App., Tab 2

(special verdict form).

The Court of Appeals overturned the jury verdict and held "the jury instruction

misstated the law because . . . conferring services and other benefits does not constitute

financial support." Armantrout v. Carlson, 141 Wn. App. 716, 731, 170 P.3d 1218 (2007)

(footnote omitted).

The jury instruction defining dependency read:

The plaintiff has the burden of proving that Kristen Armantrout's mother and father were substantially financially dependent upon her for support. Substantial financial dependence requires a showing of a need or necessity for support on the part of the parents and an agreement by Kristin

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[sic] to provide such support. In determining whether Josie and Todd Armantrout were substantially financially dependent on Kristen, you should consider the extent of Kristen's financial contributions to her parents and whether or not such support was likely to continue for a period of time. The support may include money, services, or other material benefits, but may not include everyday services a child would routinely provide her parents. You may not consider emotional support Kristin [sic] may have provided her parents. Substantial financial dependence may be partial, but must be based on current financial contributions, not the promise of future contributions or services.

Br. of Appellant, App., Tab 1 (instruction number 14).

Earlier in the trial proceedings, Cascade sought judgment as a matter of law on the

Armantrouts' wrongful death claim, arguing they could not prove substantial financial

dependence on Kristen. The trial court heard argument from both parties and ruled the claim

could proceed to trial because the issue of "substantial financial dependence" is "a question of

fact to be determined by the jury; that a reasonable jury could find from [the] evidence that

Mr. and Mrs. Armantrout were substantially dependent upon their daughter for support." Br.

of Appellant at 13.

On appeal, the Court of Appeals rejected the trial court's definition of "dependence"

as including services. The court vacated the jury verdict in favor of the Armantrouts because,

it reasoned, the instruction "misstated the law" and "caused actual prejudice" to Cascade.

Armantrout, 141 Wn. App. at 731-32.

ANALYSIS

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RCW 4.20.020 establishes two tiers of beneficiaries in a wrongful death suit. The first

tier includes the decedent's "wife, husband, state registered domestic partner, child or

children, including stepchildren." If there are no first tier beneficiaries, the wrongful death

action "may be maintained for the benefit of the parents, sisters, or brothers, who may be

dependent upon the deceased person for support." RCW 4.20.020. As part of the original

code of Washington, the wrongful death statute has always required second tier beneficiaries

to demonstrate their dependence on the decedent. Rem. Rev. Stat. §§ 183, 183-1.

The words "dependent" and "support" are not defined in the statute. In what appears

to be the first case interpreting the meaning of dependency this court wrote:

[W]e would not give [the statute] such a strict construction as to say it means wholly dependent, or that the parent must have no means of support or livelihood other than the deceased, such a construction being too harsh and not in accordance with the humane purpose of the act. Nevertheless, there must be some degree of dependency, some substantial dependency, a necessitous want on the part of the parent, and a recognition of that necessity on the part of the child.

Bortle v. N. Pac. Ry., 60 Wash. 552, 554, 111 P. 788 (1910).

The need for "substantial dependency" expressed in Bortle has been further defined as

"a term having relation to the circumstances of the plaintiff." Mitchell v. Rice, 183 Wash.

402, 407, 48 P.2d 949 (1935) (claimant father was in a difficult financial situation and unable

to sustainably support self); Estes v. Schulte, 146 Wash. 688, 689, 264 P. 990 (1928)

(claimant sister's only income was from funds contributed by decedent). The dependency

must be based on the situation existing at the

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time of decedent's death and not on promises of future contributions. Grant v. Libby, McNeill

& Libby, 145 Wash. 31, 37, 258 P. 842 (1927). The dependency cannot, however, be created

on the basis of emotional support alone. See Philippides v. Bernard, 151 Wn.2d 376, 384-85,

88 P.3d 939 (2004) (interpreting RCW 4.24.010 to hold that the legislature's creation of a

new support requirement for parents of minors that included emotional support did not

abolish the financial support requirements for second tier beneficiaries in RCW 4.20.020).

Under these guidelines, courts have generally allowed claims by beneficiaries who can

demonstrate they had a need for the decedent's regular contributions of support. Estes, 146

Wash. at 689 (though the amounts varied, decedent provided monetary contributions regularly

over a course of years); Mitchell, 183 Wash. at 406-07 (decedent gave various sums of money

at regular intervals to father over the course of the two years preceding his death). Courts

have generally disallowed claims where the claimant cannot "identify evidence suggesting

that they needed or were dependent upon [decedent's] services." Masunaga v. Gapasin, 57

Wn. App. 624, 629, 790 P.2d 171 (1990) (emphasis omitted); see also David C. Cummins,

Comment, Damages in Washington Wrongful Death Actions, 35 Wash. L. Rev. 441, 449-50

(1960) ("Contributions which may be characterized as casual gifts do not achieve the required

status.").

All parties in this case agree that Washington courts have long interpreted "dependent

for support" to require a showing of financial dependence. Resp'ts' Pet. for Review at 14;

Suppl. Br. of Resp't at 2. To be certain, a

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majority of wrongful death suits by second tier beneficiaries involve assessments of the

monetary contributions made by decedents to the parties asserting claims. However, until

now, no Washington court has explicitly held that financial dependence must be assessed on the basis of monetary contributions alone. We are asked to do so in this case.1

When interpreting a statute we look first to the plain language. State v. Armendariz,

160 Wn.2d 106, 110, 156 P.3d 201 (2007). Further, readings well grounded in prior judicial

constructions are given weight. Fed. Commc'ns Comm'n v. Pacifica Found., 438 U.S. 726,

740, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978). The operative phrase in RCW 4.20.020 is:

"who may be dependent upon the deceased person for support." (Emphasis added.) The

statute does not define "dependent" or "support" so we turn to the dictionary. Garrison v.

Wash. State Nursing Bd., 87 Wn.2d 195, 196 550 P.2d 7 (1976). "[D]ependent" is defined as

"unable to exist, sustain oneself, or act suitably or normally without the assistance or direction

of another or others." Webster's Third New International Dictionary 604 (2002). "[S]upport"

is defined as "[s]ustenance or maintenance; esp., articles such as food and clothing that allow

1 Cascade attempts to set the stage for our interpretation of RCW 4.20.020 by arguing for strict construction of the statute. It contends that a strict interpretation of the statute mandates proof of dependency through evidence of monetary contributions fromthe decedent to the beneficiary. However, "[w]hether done liberally or strictly, judicial interpretation is necessary [because dependence on services with a monetary value is] not necessarily excluded under the terms of RCW 4.20.020." Armijo v. Wesselius, 73 Wn.2d 716, 720, 440 P.2d 471 (1968) (holding that RCW 4.20.020 included illegitimate children as statutory beneficiaries because they were not excluded from the terms of the statute and were within the dictionary definition of the word "child"). As in Armijo, the statutory phrase at issue in this case requires judicial interpretation and we need not choose between liberal or strict methodologies in order to resolve its meaning.

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one to live in the degree of comfort to which one is accustomed" and "[o]ne or more

monetary payments to a current or former family member for the purpose of helping the

recipient maintain an acceptable standard of living." Black's Law Dictionary 1577-78 (9th

ed. 2009). Plainly, the statute does not limit "support" to monetary contributions.

Cascade argues, however, that our prior construction of RCW 4.20.020 demonstrates

that "dependent for support" must be read to require second tier beneficiaries to provide

evidence of monetary contributions from the decedent. Specifically, Cascade argues that

"[t]he determination that 'substantial financial dependence' is limited to the provision of

money or income, and not merely services, is a holding well-grounded in Washington law."

Resp. to Pet. for Review at 4.

While it is true that in many reported decisions proof of financial support involved

monetary contributions, other cases support the view that providing services with an

economic value may be considered as part of the dependency analysis under RCW 4.20.020.

Mitchell, 183 Wash. at 407 (substantial dependency should be determined on the basis of "the

circumstances of the plaintiff"); Cook v. Rafferty, 200 Wash. 234, 240, 93 P.2d 376 (1939)

("[h]ad [the decedent] lived, she would have continued to contribute to the support of the

family and continued to care for her parents[.] . . . Mr. and Mrs. Cook suffered a pecuniary

loss by reason of her death."). In Cook, the adult daughter lived with her mother and her

invalid father; she also contributed to the expenses of the household. Id. at 239. Though the

case does not detail the exact services she

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provided by caring for her parents, the court suggested that care for invalid parents

amounted to a "pecuniary loss" when the adult child died. Id. at 240. Similarly, the

Court of Appeals in Masunaga also recognized the possibility that parents could be dependent on an adult child's services for support. 57 Wn. App. at 628-29.2

Cascade, though, focuses on our statement in Philippides that "'the value parents place

on children in our society is no longer associated with the child's ability to provide income to

the parents.'" Resp. to Pet. for Review at 10 (emphasis in original omitted) (quoting

Philippides, 151 Wn.2d at 390). Cascade reads too much into this language. The quoted

language discusses a legislative change to the wrongful death proof requirements for parents

of deceased minor children. Proof of financial dependence by parents of deceased adult

children was discussed in Philippides only as a way to explain the statutory change

distinguishing between the proof required by parents of minor children versus parents of

deceased adult children who may qualify as second tier beneficiaries. 151 Wn.2d at 385

(holding proof of financial dependence was necessary because otherwise, "[a]ll parents who

claim to be dependent on their children's love would be able to recover under RCW 4.24.010

on an equal footing with the spouse and children of the decedent, the first tier beneficiaries

2 Ultimately, the court in Masunaga dismissed the accounting services an adult child provided his parents, in part because it was "'a privilege and an honor' for the provider." 57 Wn. App. at 629. While the court correctly analyzed the extent to which the parents were dependent on their son's services, unfortunately, the court's statement regarding the son's motive indicates a misunderstanding ofthe cultural mores leading some adult children to care for their parents.

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under RCW 4.20.020").

Our holding in Philippides, requiring parents to show something more than emotional

dependence on adult children, should not be read to preclude truly dependent parents from

claiming beneficiary status. Notably, the jury instruction in this case explicitly excluded the

"everyday services a child would routinely provide" and any "emotional support Kristin [sic]

may have provided her parents." Br. of Appellant, App., Tab 1 (instruction number 14). This

was sufficient to properly guide the jury in considering the value of Kristen's services within

the context of the Armantrouts overall financial dependence on her. Kristen Armantrout was

able to support her blind, diabetic mother by providing valuable services in addition to a cash

contribution. The jury decided that provision of these services, valued at $36,533 per year,

combined with Kristen's contribution of her monthly disability check was sufficient to

establish the Armantrouts' substantial dependence on Kristen for support. The instruction and

the jury's subsequent finding of substantial financial dependence accurately employ the

language of RCW 4.20.020 and our holdings in Bortle, Cook, Mitchell, and Philippides.

Reading the statute as Cascade argues, to require proof of a monetary contribution by

the decedent, would lead to absurd results and unfair application of the long-standing

legislatively created right to an action for wrongful death: parents who received monetary

contributions from their adult child to purchase valuable services would qualify as statutory

beneficiaries, but parents who received those exact same services from their adult child would

not. Nothing in the statute indicates the

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legislature intended such a level of incongruity.

Cascade also warns that if we allow the value of services to be included in the

dependency assessment, "parents could qualify as second tier beneficiaries if they could show

only that they were dependent on the services the child provided." Suppl. Br. of Resp't at 6.

That is incorrect. Philippides clearly holds that parents cannot claim dependency on the basis

of emotional support alone. 151 Wn.2d at 388. The facts of this case demonstrate the kind of

services for which an economic value can be determined. The jury here considered the value

of the services combined with Kristen's monthly contribution to determine that, in the context

of their entire financial situation, the Armantrouts were substantially dependent on Kristen for

support and would not otherwise have been able to pay for the services she provided.

Resp'ts' Pet. for Review at 6-7; Pet'rs' Suppl. Br. at 10. By excluding the everyday services

a child would routinely provide, the trial court clearly established the boundaries within which

the jury would be allowed to consider the Armantrouts' financial dependence on valuable

services.

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=811954MAJ

Outcome: We now hold that the trial court correctly stated the law: RCW 4.20.020 allows triers of fact to consider services that have a monetary value when assessing a claimant's dependency on the decedent for support. We reverse the Court of Appeals.

Plaintiff's Experts:

Defendant's Experts:

Comments: