[No. 80034-1. En Banc.]
Argued June 26, 2007. Decided August 30, 2007.
[1] Dismissal and Nonsuit Failure To State Claim Test. An action is subject to dismissal under CR 12(b)(6) for failure to state a claim upon which relief can be granted if it appears beyond a reasonable doubt that no facts exist that would justify recovery. [2] Dismissal and Nonsuit Failure To State Claim Review Standard of Review. A trial court's ruling on a CR 12(b)(6) motion to dismiss an action for failure to state a claim upon which relief can be granted is reviewed by an appellate court de novo. [3] Death Wrongful Death Nature Statutory Action. An action for wrongful death is strictly statutory. [4] Death Wrongful Death Right of Action Personal Representative. Under RCW 4.20.010, only the personal representative of a decedent's estate may bring an action for the decedent's wrongful death. [5] Executors and Administrators Appointment Persons Qualified Minors. Under RCW 11.36.010, a minor cannot be the personal representative of a decedent's estate, regardless of the minor's relationship to the decedent. [6] Limitation of Actions Death Wrongful Death Limitation Period — In General. Wrongful death actions are subject to the three-year limitation period of RCW 4.16.080(2). [7] Limitation of Actions Death Wrongful Death Accrual of Cause Appointment of Personal Representative Effect. A wrongful death action accrues, and the statutory time limitation applicable to the action begins to run, at the time of the decedent's death, regardless of when a personal representative is appointed for the decedent's estate. [8] Limitation of Actions Tolling Statute Statutory Provisions Scope Persons Entitled To Bring Actions. The statutory time limitation tolling provisions of RCW 4.16.190 apply only to persons who are entitled to bring actions. [9] Courts Public Policy Responsibility of Legislature. Public policy decisions are the province of the legislature, not the courts. [10] Action Statutory Right of Action Policy Determination Legislative or Judicial Function. The formulation of a new policy with regard to a statutory cause of action is the responsibility of the legislature and not a task for the courts. [11] Limitation of Actions Purpose In General. The purpose of a statutory time limitation is to provide finality. [12] Limitation of Actions Death Wrongful Death Limitation Period Tolling Minority of Personal Representative. Under the wrongful death provisions of chapter 4.20 RCW, the personal representative qualification provisions of RCW 11.36.010, and the statutory time limitation tolling provisions of RCW 4.16.190, the statutory time limitation applicable to a wrongful death action is not tolled by the personal representative's minority at the time the action accrued. Nature of Action: The personal representative of the estate of a decedent who died in June 2000 as a result of lymphoma sought damages from the decedent's employer for wrongful death, alleging that the employer negligently caused the lymphoma. The personal representative was the decedent's only child and most immediate next of kin. At the time of the decedent's death, the child was only 15 years old. In 2003, the child reached the age of majority, in 2005, the child was appointed personal representative of the decedent's estate, and in 2006, more than three years after the decedent's death, the child filed the wrongful death action. Superior Court: The Superior Court for Clark County, No. 06-2-00732-1, Roger A. Bennett, J., on June 21, 2006, entered a judgment dismissing the action, ruling that the action is statutorily time barred. Supreme Court: Holding that the action is time barred because the three-year statutory limitation period did not toll during the personal representative's minority, the court affirms the judgment. Lawrence S. Merrifield, Jr.- (of Boyd Gaffney Sowards McCray & Treosti, PLLC), for appellant. James H. Gidley- (of Perkins Coie, LLP), for respondent. EN BANC Ά1 BRIDGE, J. William Atchison died in June 2000 as a result of lymphoma. His most immediate next of kin was his only child, Kaela, who was then 15 years old. In 2003 Kaela turned 18, and in 2005 Kaela became personal representative of William's estate. In 2006, more than three years after her father's death, she filed a wrongful death action against Great Western Malting Co., claiming the company negligently caused her father's disease. Great Western moved to dismiss under Civil Rule (CR) 12(b)(6), in part arguing that Kaela's claim was barred by the statute of limitations. The trial court granted the motion to dismiss on the ground that the complaint was filed after the three-year statute of limitations had expired. Kaela now argues that her minority should have tolled the statute of limitations. Ά2 We hold that the statute of limitations did not toll during Kaela's minority. She filed this wrongful death claim after the statute of limitations expired, and the trial court was correct to dismiss the claim. Because we affirm the trial court's dismissal based on the statute of limitations, we need not address Great Western's cross appeal. I Facts and Procedural History Ά3 For 21 years, between 1978 and 1999, William Atchison was employed by Great Western as an elevator utility worker. He claimed that during his employment, he received daily occupational exposure to pesticides when he applied them and when he cleaned up contaminated dust without protective equipment. In October 1999, Atchison was diagnosed with lymphoma. On June 29, 2000, about eight months after his diagnosis, Atchison died. He did not leave a will, and he was not married. Upon his death, Atchison's 15-year-old daughter, Kaela, was his most immediate next of kin. Ά4 Kaela turned 18 years old on March 19, 2003. Absent tolling of the statute of limitations, the three-year time limit for filing a wrongful death action expired on June 29, 2003. On November 9, 2005, Kaela was appointed the personal representative of Atchison's estate. On February 10, 2006, Kaela filed an action for wrongful death against Great Western in Clark County Superior Court. Ά5 In response, Great Western filed a motion to dismiss pursuant to CR 12(b)(6) for failure to state a claim upon which relief could be granted. Among other things, Great Western argued that Kaela's claim was barred by the statute of limitations. Because by statute she could not become personal representative and commence a wrongful death action until her 18th birthday in March 2003, Kaela responded that the statute of limitations tolled during her minority. Ά6 The parties argued the motion before the superior court on May 12, 2006. The trial court granted the motion to dismiss because it found that the claim was barred by the statute of limitations. Specifically, the trial court found that the claim accrued on the date of Atchison's death, June 29, 2000, and the statute of limitations therefore expired in 2003. The trial judge was concerned that otherwise the statute of limitations could be manipulated: [A] clever strategy by a clever attorney would be to pick somebodyif the statute [of limitations has] already run, pick somebody to be PR [personal representative] who was a minor at the time the statute ran, and I can't imagine that the law envisions that, that there's essentially an open-ended statute of limitations if one just picks and chooses who the PR's [going] to be. Report of Proceedings (RP) at 19. Ά7 Kaela filed a motion for reconsideration, which the court denied. Kaela then filed a notice of appeal. II Analysis When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death . . . . (Emphasis added.) Washington courts have consistently read this statute to mean that only a personal representative may bring an action for wrongful death. E.g., Beal v. City of Seattle, 134 Wn.2d 769, 776, 954 P.2d 237 (1998). Every such action shall be for the benefit of the wife, husband, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife or husband or such child or children, such action may be maintained for the benefit of the parents, sisters or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death. RCW 4.20.020. The statute of limitations for a wrongful death action in Washington is three years. See RCW 4.16.080(2); Beal, 134 Wn.2d 776. Ά13 The Dodson court relied in part on the persuasive reasoning of a then-recent United States Supreme Court case, in which the Court evaluated the identical question under the Federal Employers' Liability Act, 45 U.S.C. § 51. Id. at 594 (discussing Reading Co. v. Koons, 271 U.S. 58, 46 S. Ct. 405, 70 L. Ed. 835 (1926)). The Koons Court explained that while the executor or administrator is the only person under the federal act that can begin the action, the action is for the benefit of well-defined beneficiaries. "At the time of death there are identified persons for whose benefit the liability exists and who can start the machinery of the law in motion to enforce it, by applying for the appointment of an administrator. . . . Thus, at the death of decedent, there are real parties in interest who may procure the action to be brought . . . ." Dodson, 159 Wash. at 595-96 (first alteration in original) (quoting Koons, 271 U.S. at 62-63). The Koons Court also explained that practical considerations dictated that the period for bringing an action should begin at the " 'definitely ascertained' " time of death, rather than the " 'uncertain time of the appointment of an administrator.' " Dodson, 159 Wash. at 596 (quoting Koons, 271 U.S. at 64). Otherwise, nothing would prevent indefinite postponement of the action by way of postponement of the appointment of an administrator, something that an employer vulnerable to suit could do nothing about. Id. Because the beneficiaries were capable of setting the law in motion, the Koons Court concluded that death is the point at which the action accrues. Id. at 597. The Washington statute was almost identical to the federal one, and thus the Dodson court adopted the Koons Court's reasoning. Id. We have not retreated from the Dodson court's holding, and the rule is well-settled: wrongful death actions accrue at the time of death. Ά14 While wrongful death actions clearly accrue at the time of death, commencing the time for filing, the statute of limitations can be tolled by personal disability or minority: Unless otherwise provided in this section, if a person entitled to bring an action mentioned in this chapter . . . be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability . . . the time of such disability shall not be a part of the time limited for the commencement of action. RCW 4.16.190 (emphasis added). Kaela argues that the statute of limitations tolled during her minority and that the time for filing began to run only on her 18th birthday. Kaela filed this action less than three years after her 18th birthday. Thus, she argues, her action is not barred. Ά15 In Huntington, this court analyzed when the statute of limitations in a wrongful death case can be tolled. The decedent's ex-wife was appointed personal representative of his estate. 101 Wn.2d at 468. After she filed a final report and a petition for distribution, a different adult, Daniel Huntington, filed a wrongful death action against the hospital on behalf of the decedent's children, claiming the hospital was liable for the decedent's death. Id. Setting aside the fact that Huntington had not yet been properly appointed personal representative, we explained that in general, a wrongful death action must be commenced within three years of the date of death. Id. The court then noted that it had "uniformly held only the personal representative may bring a wrongful death action." Id. at 469 (emphasis added). The tolling statute, RCW 4.16.190, thus becomes operative only if the personal representative, the "person entitled to bring an action", is disabled. Consequently, the statute of limitations is not tolled by the minority of the statutory beneficiaries. Id. The Huntington court explained that its holding was dictated by Washington's clear statutory scheme and any formulation of a new policy was the responsibility of the legislature, not the courts. Id. at 470. Ά16 Despite the Huntington court's holding, Kaela argues that her minority at the time the action accrued should toll the statute of limitations because she was more than simply a beneficiary; eventually she was appointed personal representative. But wrongful death actions are purely statutory. Id. The tolling statute applies only to "a person entitled to bring an action," RCW 4.16.190, and the personal representative is the only person who fits that requirement. At the time the action accrued, Kaela could not have been appointed personal representative, she could not have been "entitled to bring [the] action," and thus we conclude that the tolling statute cannot apply. RCW 4.16.190; RCW 11.36.010; Huntington, 101 Wn.2d at 469. Ά17 Among states whose statutory scheme is similar to ours in that only the personal representative can bring a wrongful death action, the majority has held that a child-heir's minority cannot toll the statute of limitations because the child cannot bring the action. They reason that the wrongful death action is purely a creature of statute, the statutes grant only the personal representative the right to sue, a minor child cannot be a personal representative, he or she is not entitled to bring the action, and therefore the child's minority cannot toll the statute of limitations. Beverage v. Harvey, 602 F.2d 657, 658-59 (4th Cir. 1979); Engle Bros., Inc. v. Superior Court, 23 Ariz. App. 406, 533 P.2d 714, 716 (1975); Gomez v. Leverton, 19 Ariz. App. 604, 509 P.2d 735, 737 (1973); Group Health Ass'n v. Gatlin, 463 A.2d 700, 701-02 (D.C. App 1983); Southerland v. Hammond, 693 N.E.2d 74, 77 (Ind. App. 1998); Van Vactor's Admx. v. Louisville & N.R.R., 112 Ky. 445, 447-48, 66 S.W. 4 (1902); Cugell v. Sani-Wash Laundry Co., 280 Mich. 286, 288-89, 273 N.W. 571 (1937). These courts sometimes explain that had the legislature intended for the child's minority to toll the statute of limitations, then the legislature would have given the child the right of action. E.g., Group Health, 463 A.2d at 700 ("[T]here is no legislatively recognized policy to toll the period to permit heirs to bring the action."). Ά18 In contrast, a minority of courts has allowed tolling of the statute of limitations based on a beneficiary's minority. Hernandez v. N.Y. City Health & Hosps. Corp., 78 N.Y.2d 687, 585 N.E.2d 822, 578 N.Y.S.2d 510 (1991); Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087 (Alaska 1979). These courts have done so primarily based on public policy grounds. Hernandez, 585 N.E.2d at 825-26; Huntington, 101 Wn.2d at 470 (discussing Haakanson, 600 P.2d 1087). But this court rejected such reasoning in Huntington, explaining that it could allow tolling based on a beneficiary's minority "only by rewriting a clear statute." Huntington, 101 Wn.2d at 470. Because wrongful death actions are strictly statutory, "formulation of a new policy with regard to this statutory cause of action is the responsibility of the Legislature, not a task for this court." Id. Ά19 More importantly, the trial court expressed a legitimate concern. Kaela suggests that we read the statutory scheme to allow tolling whenever an appointed personal representative was a minor at the time the action accrued. Br. of Appellant at 5-6. However, as the trial court recognized, such a holding would allow clever litigants to sidestep the statute of limitations by choosing a personal representative who happened to be a minor when the action accrued. RP at 19. Given that the purpose of a statute of limitations is to provide finality, Dodson, 159 Wash. at 596 (quoting Koons, 271 U.S. at 58), we find it unlikely that the legislature intended such a loophole. Ά20 Our statutory scheme grants only the personal representative the right to sue for wrongful death; a minor child cannot be a personal representative, and thus, Kaela could not have been a person entitled to bring the wrongful death action when the action accrued. RCW 4.20.010; RCW 11.36.010; RCW 4.16.190. Thus, the statute of limitations did not toll during her minority. See Huntington, 101 Wn.2d at 469. Ά21 We conclude that the statute of limitations did not toll and that the time for filing expired before Kaela filed her complaint. We affirm the trial court's dismissal on these grounds. We therefore need not address Great Western's alternative arguments. III Conclusion Ά22 Washington's wrongful death statute, our statute governing the appointment of a personal representative, our wrongful death statute of limitations, and our tolling statute all coincide such that we must affirm the trial court's dismissal of this case. While the result is unfortunate for some minors who are beneficiaries of wrongful death actions, this area of the law is governed exclusively by statute. The legislature could amend the statutory scheme to give minor beneficiaries a right of action, thereby making them eligible for tolling. Or the legislature could explicitly allow for tolling of the statute of limitations during the minority of the decedent's heirs. But we cannot ignore the plain language of the current legislative scheme. We affirm the trial court's dismissal of this action. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.