[No. 58831-1-I. Division One. November 13, 2007.]
[1] Trial Taking Case From Jury Sufficiency of Evidence Judgment as a Matter of Law Review Standard of Review. Appellate review of a trial court's denial of a defense motion for judgment as a matter of law is limited to determining whether, viewing the facts and inferences therefrom in favor of the plaintiff, there is substantial evidence in the record to support the plaintiff's claim. Substantial evidence is evidence sufficient to convince a fair-minded person of the truth of the matter. [2] Death Wrongful Death Statutory Beneficiaries Tiers Differences. RCW 4.20.020 establishes two tiers of beneficiaries of wrongful death actions: the first tier comprises the spouse and children of the deceased; the second tier includes parents and siblings of the deceased. A second tier beneficiary is entitled to recover only if there are no first tier beneficiaries and only if the second tier beneficiary was dependent on the deceased for support. [3] Death Wrongful Death Adult Child Dependent Parent "Support" What Constitutes. For purposes of RCW 4.20.020, under which a parent may bring an action for the wrongful death of an adult child if the parent was dependent on the child for support, "support" means substantial financial dependence. The parent need not have been wholly dependent on the child; partial but significant dependence will suffice. There must be a necessitous want on the part of the parent and a financial recognition of that necessity on the part of the child. Dependence is determined based on the current conditions, not anticipated future conditions. Emotional support, or providing the types of emotional services that one expects from a family member, is outside the scope of the statute. [4] Death Wrongful Death Adult Child Dependent Parent "Support" Question of Law or Fact. For purposes of determining whether parents have standing to bring an action for the wrongful death of an adult child under RCW 4.20.020, whether the parents were dependent on the child for support is a question that may go to the jury if substantial evidence in the record would support a finding of dependence. [5] Death Wrongful Death Adult Child Dependent Parent "Support" Monetary Contribution to Household Expenses In General. For purposes of determining whether parents were sufficiently dependent on their adult child to have standing to bring an action for the child's wrongful death under RCW 4.20.020, evidence that the child contributed several hundred dollars per month to help the parents with household expenses and that the parents could not cover their monthly expenses without the child's monetary assistance is sufficient to support a finding that the parents were dependent on the child for support. [6] Death Wrongful Death Adult Child Dependent Parent "Support" Monetary Contribution to Household Expenses Disability Payments Based on Dependency on Parent. For purposes of determining whether parents were sufficiently dependent on their adult child to have standing to bring an action for the child's wrongful death under RCW 4.20.020, the fact that the child's income was in the form of disability payments based on the child's dependency on one or both of the parents will not necessarily defeat a finding that the parents were financially dependent on the child. [7] Death Wrongful Death Adult Child Dependent Parent "Support" Monetary Contribution to Household Expenses Maintenance of Two Households. For purposes of determining whether parents were sufficiently dependent on their adult child to have standing to bring an action for the child's wrongful death under RCW 4.20.020, the fact that the parents were maintaining two households while one parent sought employment away from home will not necessarily defeat a finding that the parents were financially dependent on the child. [8] Estoppel Courts Judicial Estoppel What Constitutes Factors. The doctrine of judicial estoppel is designed to prevent a party from benefiting by taking inconsistent positions in different litigation proceedings. A court's discretion in applying judicial estoppel is guided by the following nonexclusive factors: (1) whether the inconsistent position first asserted was successfully maintained, (2) whether a judgment was rendered, (3) whether the positions are clearly inconsistent, (4) whether the parties and questions are the same, (5) whether the party claiming estoppel has been misled and has changed its position, and (6) whether it appears unjust to the party claiming estoppel to permit the other party to change its position. [9] Death Wrongful Death Adult Child Dependent Parent "Dependent" Child Judicial Estoppel Applicability. Judicial estoppel does not necessarily apply to bar parents from maintaining an action for the wrongful death of their adult child under RCW 4.20.020 based on the parents' having previously claimed the child as a dependent under other statutes having different definitions of "dependent." [10] Trial Instructions Sufficiency Test. Jury instructions are insufficient if they (1) do not adequately state the law, (2) mislead the jury, or (3) do not allow each party to argue its theory of the case. [11] Trial Instructions Proposed Instructions Evidentiary Support. A jury instruction must be supported by substantial evidence. [12] Trial Instructions Proposed Instructions Review Standard of Review. A trial court's ruling on a request for a jury instruction is reviewed for an abuse of discretion. [13] Trial Instructions Review Error of Law Standard of Review. An alleged error of law in a jury instruction is reviewed de novo. [14] Trial Instructions Review Harmless Error Effect on Outcome In General. An erroneous jury instruction requires reversal only if it is prejudicial to a party. A jury instruction that is merely misleading requires reversal only if it more likely than not affected the outcome of the trial. [15] Trial Instructions Review Error of Law Prejudice Presumption. A clear misstatement of the law in a jury instruction is presumed to be prejudicial unless it affirmatively appears to have been harmless. [16] Statutes Construction Question of Law or Fact Review Standard of Review.The construction of a statute is an issue of law that is reviewed de novo. [17] Statutes Construction Legislative Intent In General. A court's primary goal in construing a statute is to ascertain the legislature's intent. [18] Statutes Construction Unambiguous Language Legislative Intent. The legislative intent of clear statutory language is revealed by the plain meaning of that language. [19] Statutes Construction Legislative Intent Legislative History Ambiguous Statute. A court may resort to outside sources, such as legislative history, in discerning the legislative intent of an ambiguous statute. [20] Statutes Construction Ambiguity What Constitutes In General. A statute is ambiguous if it is subject to more than one reasonable interpretation. [21] Death Wrongful Death Nature Statutory Action. An action for wrongful death is strictly statutory. [22] Death Wrongful Death Statutory Provisions Construction Liberal Construction When Applied. The wrongful death statute (RCW 4.20.010) is liberally construed only after the proper beneficiaries of a wrongful death action under RCW 4.20.020 are determined. [23] Statutes Construction Legislative Intent Prior Acts and Constructions. The legislature is presumed to be aware of judicial interpretations of its statutes. [24] Statutes Construction Amendment Judicial Amendment. A court may not alter unambiguous statutory language. [25] Death Wrongful Death Adult Child Dependent Parent "Support" Financial Dependence Scope Services Having Economic Value. For purposes of RCW 4.20.020, under which a parent may bring an action for the wrongful death of an adult child if the parent was financially dependent on the child for support, "financial" means "monetary." "Financial" support does not include services having economic value. A jury instruction erroneously stating that "financial" support includes services having economic value constitutes prejudicial error if the evidence shows that the value of services provided by the deceased child to the parent greatly exceeded the amount of the deceased's purely monetary contribution to the parent. Nature of Action: The parents of an unmarried, childless adult child who died following minor surgery sought damages from the child's attending physician and his medical practice for wrongful death (as individuals) and for negligence (as representatives of the child's estate). Superior Court: The Superior Court for King County, No. 04-2-14455-8, Palmer Robinson, J., on August 11, 2006, entered a judgment on a verdict in favor of the parents for $1,150,000 in damages and in favor of the child's estate for $200,000 in damages against the medical practice. The attending physician was found not negligent. Court of Appeals: Holding that, for purposes of the wrongful death claim, sufficient evidence existed to support a determination that the parents were substantially financially dependent on the child, and that judicial estoppel does not preclude the parents from claiming substantial financial dependence, but that the trial court committed prejudicial error by instructing the jury that financial support includes services having economic value in addition to purely monetary support, the court reverses the judgment in part and remands the case for a new trial on the wrongful death claim. Steven F. Fitzer- and Melanie T. Stella- (of Burgess Fitzer, PS), for appellants. Simeon Osborn- (of Osborn Machler), for respondents. Ά1 COX, J. At issue is whether services by an adult child to a parent are properly considered in determining whether that parent is "dependent . . . for support" for purposes of that parent qualifying as a beneficiary under the wrongful death statute. Because the provision of services in this case is not financial dependence under the statute and case law, we reverse. Ά2 Eighteen-year-old Kristen Armantrout died from a pulmonary embolism that occurred two weeks after minor ankle surgery. At the time of her death, she was a single adult with no children. Ά3 Her parents, Josie and Warren Todd Armantrout, as personal representatives of Kristen's estate, sued Cascade Orthopaedics and her attending physician. They also sought to recover under the wrongful death statute on their own behalf as beneficiaries under the provisions of RCW 4.20.020. Ά4 At trial, Cascade objected to the wrongful death claim as well as to the testimony relating to the Armantrouts' dependence on Kristen. Cascade also moved for what the trial court characterized as a motion for judgment as a matter of law on that claim, which the trial court denied. Cascade excepted to the jury instructions concerning the Armantrouts' wrongful death claim and substantial financial dependence as well as to the special verdict form. Ά5 The jury found Cascade negligent and awarded the Armantrouts $1,150,000.00 in damages. The jury also awarded Kristen's estate $200,000, which is not at issue in this appeal. The attending doctor was found not negligent and therefore does not appeal the verdict. Ά6 Cascade appeals. DEPENDENT FOR SUPPORT Ά7 Cascade argues that the Armantrouts have no standing as beneficiaries under RCW 4.20.020 to bring a wrongful death action. We agree. The services Kristen provided her parents cannot be considered in assessing whether they were "dependent . . . for support" on her. Civil Rule 50 Ά13 There is substantial evidence in the record that the Armantrouts depended on Kristen for approximately $588 per month. Josie and Todd both testified that Kristen gave them her disability benefits check each month to help with family expenses. They also testified that at least one reason Kristen relinquished her check each month was to help cover her own living expenses. Despite this fact, Josie and Todd testified that they relied on this money each month to pay family bills, and they would have had to borrow money if Kristen had not given it to them. Thus, substantial evidence supports that the Armantrouts financially depended on Kristen's monetary contribution to the family. Ά14 Cascade also argues that the Armantrouts did not truly need this money for support because they created their own hardships by attempting to maintain two different households at the same time. We disagree. Ά15 Financial dependence need not be complete dependence, and it is based on the current, not the anticipated future, situation. Ά16 Cascade argues that as a matter of law, a check Kristen received for being dependent upon her mother cannot form the basis for her mother's dependence on Kristen. But Cascade does not identify any legal authority for its argument, and we have found none. The jury was allowed to consider the source and amount of the money and was properly permitted to determine whether it contributed to the Armantrouts being financially dependent on their daughter. Ά17 Thus, a jury could reasonably find that the Armantrouts were dependent on Kristen for support within the meaning of the statute and case law based solely on the payments of approximately $588 per month. But whether a jury actually would is not presently before us and should more properly be addressed after remand for the reasons we explain later in this opinion. Ά18 In any event, there was substantial evidence in the record that the Armantrouts were financially dependent on Kristen. The trial court properly denied Cascade's CR 50 motion. Judicial Estoppel Ά19 Similarly, Cascade argues that the doctrine of judicial estoppel should prevent consideration of the monthly check as financial support, given that the Armantrouts claimed Kristen as a dependent for purposes of Social Security, tax, and insurance benefits. We disagree because Cascade fails to make out a case for applying judicial estoppel. "(1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; (6) it must appear unjust to one party to permit the other to change." Ά21 Here, there was neither a prior judgment nor any prior litigation from which the Armantrouts benefited from claiming Kristen as a dependent. Cascade was never a party to any prior proceeding involving the Armantrouts. And Cascade cannot show how it was misled into changing its position in response to the Armantrouts' position. Ά22 Further, the positions that the Armantrouts take are not "clearly inconsistent." Cascade has not shown how the definitions of the word "dependent" in the federal tax code, the federal Social Security Act, 42 U.S.C. §§ 401-1397jj, the Armantrouts' insurance policy, or Washington's wrongful death statute are identical. These definitions exist in different statutes and in different contexts, requiring different proof. Ά23 For example, the relevant provision of the Social Security Act allowed Kristen to receive a benefit check as a dependent until she was 19 years old if she still attended school full time. Ά24 "Dependent" in the tax code means a child who, among other things, "has not provided over one-half of [his or her] own support" during that year. Ά25 We conclude that the reliance by the Armantrouts on these varying definitions is not "clearly inconsistent" with the position that they take in this case. Jury Instructions Ά26 Cascade assigns error to the jury instruction defining financial dependence. It implicitly argues that the jury instruction erroneously allowed the jury to consider services in addition to financial support. The support may include money, services, or other material benefits, but may not include everyday services a child would routinely provide her parents. The trial court here gave this instruction based upon its interpretation of Washington's wrongful death statute, RCW 4.20.020. Ά32 The primary issue in this case is whether "[financial] support" under the wrongful death statute includes the rendering of services that have an economic value as well as the payment of money. We conclude that services that have an economic value do not fall within the meaning of financial support. Ά33 Since the early 1900s, Washington courts have uniformly interpreted "dependent . . . for support" to mean financial dependence. 1 . . . : the pecuniary affairs or resources of a state, company, or individual . . . 2 : the obtaining of funds or capital . . . 3 : the system that includes the circulation of money, the granting of credit, the making of investments, and the provision of banking facilities. . . . It is apparent from the words used in these definitions (e.g., "money," "pecuniary," and "funds or capital") that "financial" means "monetary." Ά34 The Armantrouts cite no Washington case to the contrary. In discussing the requisite financial support, Washington cases have never suggested that financial support could include the types of services the Armantrouts received from their daughter. Ά35 For example, in Bortle v. Northern Pacific Railway, the supreme court held that the parents were not financially dependent for support upon their 25-year-old son, who did not live at home but intermittently contributed small gifts of money to his parents, for a total of about $100 per year. Ά36 Moreover, the more recent Washington cases cited by the parties do not support the Armantrouts' position. Masunaga v. Gapasin merely reaffirmed that financial support, not emotional support, is required under the statute. Ά37 Although the court in that case briefly discussed the provision of services and concluded that the parents were not dependent on those services, it did not state that such dependence would have constituted financial support. Ά38 Financial independence was also conceded in Schumacher v. Williams. Ά39 More recently, in Philippides v. Bernard, the supreme court clarified that certain amendments to the statute did not change the requirement that parents must be financially dependent on the deceased in order to maintain a wrongful death cause of action. While we may agree 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, the legislature has defined who can sue for the wrongful death and injury of a child and we cannot alter the legislative directive. This sentence suggests that the longstanding test of "financial" dependence or support is limited to the providing of income or money, not services with an economic value. While such a rule may not still be justified in present-day society, that is the rule the legislature has left in place, as our courts have consistently held. We also note that the legislature has had the opportunity to modify this standard but has chosen to leave in place the existing statute and its interpretive decisions. Ά40 The trial court appears to have relied on out-of-state cases to support its conclusion that financial dependence may include services. For example, in Chavez v. Carpenter, the California State Court of Appeal held that a factual issue existed as to whether the parents were financially dependent on the decedent when the decedent provided to his parents $100 a week, groceries, grocery money, a $9,000 down payment on a car, and completed tasks such as yard work and automobile maintenance. Ά41 Contrary to Cascade's argument, the statute in Chavez is quite similar to Washington's. Likewise, it has similarly been interpreted by the California courts to mean financially dependent for support. Ά42 We are not persuaded by the reasoning in Chavez because it does not explain why a jury should be allowed to consider services in addition to financial contributions. It also is unclear to what extent the court relied on services for its holding. The court merely concluded that the reasonable inference from all of the evidence taken together is that the parents relied on the decedent's "aidat least to some extentfor life's necessities." Ά43 More importantly, we reject the reasoning of Chavez because it directly conflicts with Washington's long history of requiring "financial" dependence. Ά44 The Armantrouts argue that the services their daughter provided had an economic value. But neither the statute nor the Washington cases construing it include services that have an economic value within the scope of substantial financial support. Rather, the cases have consistently focused on the financial nature of the support provided by the adult child to the parent. Despite policy considerations to the contrary, we cannot alter the legislature's determination of beneficiaries under the statute. Ά45 Here, the jury instruction Ά46 Although the parties did not address the issue, we must also determine whether this error was prejudicial. We conclude that the instruction is presumed prejudicial because it misstated the law. Ά47 Even were we not to presume prejudice, the instruction caused actual prejudice. As discussed previously in this opinion, substantial evidence supports the determination that the daughter gave financial support to her parents by way of approximately $588 each month. There is also evidence in the record that her mother depended on her services for support. Josie, the mother, testified that Kristen helped prepare the house for sale, which included doing housework, packing, and yard work. Kristen also acted as Josie's personal assistant, helping her with things a blind person cannot do alone. For example, Kristen ran errands, paid the bills, drove Josie to appointments and other places, helped Josie take notes in class and do other school-related reading, and medically assisted her. Josie would have had to pay someone else to do these activities if Kristen had not, and Josie could not afford to do so. In fact, the expert economist testified that the services Kristen provided for Josie had a value of approximately $36,553 per year. Ά48 Comparing the amount of the purely monetary contribution with the value of services, it is apparent that the erroneous jury instruction and supporting testimony likely affected the jury's verdict that the Armantrouts were substantially dependent on Kristen. Kristen gave her parents about $588 per month, which would total about $7,056 per year. In contrast, the value of her services was $36,553 per year. Based on a comparison of these two values, the inclusion of the clause "services, or other material benefits" in the instruction makes a decidedly more persuasive case for dependence than if that clause had been excluded. We conclude that the erroneous instruction prejudiced the outcome of the trial. Ά49 We reverse the judgment and remand for a new trial. APPELWICK, C.J., and GROSSE, J., concur.