Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 02, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BETTYJEAN TRIPLETT, and KEVIN 
SMITH as Personal Representatives of            )
the Estate of KATHLEEN GAIL SMITH;              )
BETTYJEAN TRIPLETT, individually;               )  No.  29368-8-III
and KEVIN SMITH, individually,                  )
                                                )
                      Respondents,              )  Division Three
                                                )
              v.                                )
                                                )  PUBLISHED OPINION
WASHINGTON STATE DEPARTMENT                     )
OF SOCIAL & HEALTH SERVICES;                    )
WASHINGTON STATE DEPARTMENT                     )
OF SOCIAL & HEALTH SERVICES                     )
DIVISION OF DEVELOPMENTAL                       )
DISABILITIES; WASHINGTON STATE                  )
DEPARTMENT OF SOCIAL & HEALTH                   )
SERVICES AGING & DISABILITY                     )
SERVICES ADMINISTRATION;                        )
LAKELAND VILLAGE; WASHINGTON                    )
STATE DEPARTMENT OF SOCIAL &                    )
HEALTH SERVICES SECRETARY                       )
ROBIN ARNOLD-WILLIAMS;                          )
WASHINGTON STATE DEPARTMENT                     )
OF SOCIAL & HEALTH SERVICES                     )
DIRECTOR LINDA ROLFE; MICHAEL                   )
NOLAND, an individual,                          )
                                                )
                      Petitioners.              )
                                                ) 

No. 29368-8-III
Triplett v. DSHS 

       Brown, J.  --  The Washington State Department of Social and Health Services 

and the Division of Developmental Disabilities, Aging and Disability Services 

Administration, the Secretary, Robin Arnold-Williams, the Director, Linda Rolfe, 

Lakeland Village, and Michael Noland (collectively DSHS) seek on discretionary review

to overturn the trial court's denial of their dismissal motion brought against BettyJean 

Triplett and Kevin Smith, respondents.  Respondents sued DSHS under RCW 

4.20.020, RCW 4.20.046 and/or RCW 4.24.010, Washington's wrongful death, survival, 

and wrongful death of a child statutes concerning Kathleen Smith's drowning death at 

DSHS's developmentally disabled residential care facility, Lakeland Village.

Respondents lack standing to sue under the statutes because Ms. Smith, though 

mentally disabled, was a 52-year old adult at the time of her death and respondents 

were not dependent on her for support.  Accordingly, we reverse the trial court and 

summarily dismiss this suit.  

                                            FACTS

       Ms. Smith was born in 1953 and was apparently developmentally disabled from 

birth.  She has resided at Lakeland Village since 1967.  Ms. Smith had been diagnosed 

with profound mental retardation and functioned at the mental age of five to six years 

old.  She was diagnosed with a seizure disorder and therefore, Lakeland Village 

implemented a care plan requiring staff "visual supervision (within arms [sic] reach)."  

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No. 29368-8-III
Triplett v. DSHS 

Clerk's Papers (CP) at 64. In March 2006, contrary to the care plan, Mr. Noland, a 

Lakeland Village attendant caring for Ms. Smith, left her unattended while she was 

taking a bath and she drowned.  At the time of her death, Ms. Smith was 52 years old.  

She had never been married and had no children. 

       Ms. Smith's mother, Ms. Triplett, and brother, Mr. Smith, frequently and routinely 

visited her during the decades she resided at Lakeland Village.  It is undisputed that 

neither Ms. Triplett nor Mr. Smith, nor any other person was dependent on Ms. Smith 

for support.  After Ms. Smith's death, Ms. Triplett and Mr. Smith were appointed co-

personal representatives of Ms. Smith's estate.  In May 2009, they sued DSHS, 

individually and on behalf of the estate, seeking damages for economic and non-

economic losses, including Ms. Smith's pre-death pain and suffering under 
Washington's wrongful death and survival statutes.1  

       DSHS unsuccessfully moved to dismiss respondents' claims2 on grounds that 

under Washington law, the wrongful death (RCW 4.20.020), survival (RCW 4.20.046), 

and wrongful death of child (RCW 4.24.010) statutes do not provide parents or siblings 

of an adult standing to sue for damages, other than net economic loss to the estate of 

the deceased, unless the parent or sibling was dependent on the deceased for financial 

support.  In September 2010, pursuant to RAP 2.3(b)(4), the trial court certified this 

       1 The complaint also alleged violations of 42 USC § 1983.  While DSHS sought 
dismissal of those claims, they are not before us.    
       2 Like the trial court, we approach this case as a summary judgment.  

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No. 29368-8-III
Triplett v. DSHS 

appeal to address:  

       Whether RCW 4.20.020 applies to limit and exclude potential 
       beneficiaries of a 52 year old decedent who was mentally disabled from 
       birth with a mental age of 8 at the time of death.  

CP at 136.  This court granted discretionary review.

                                          ANALYSIS

                                A.  RCW 4.20.020 Standing

       The issue is whether the trial court erred in denying DSHS's dismissal motion of 

respondents' wrongful death claims under RCW 4.20.020 based on lack of standing. 

DSHS contends the statute's plain language precludes recovery by nondependent 

parents or siblings of a decedent.  We agree.  

       We review de novo a trial court's order denying summary judgment, engaging in 

the same inquiry as the trial court.  Masunaga v. Gapasin, 52 Wn. App. 61, 68, 757 

P.2d 550 (1988).  When considering a summary judgment motion, the court must 

construe all facts and reasonable inferences in the light most favorable to the 

nonmoving party.  Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).  

Summary judgment is proper if no genuine issues of material fact remain and the 

moving party is entitled to judgment as a matter of law.  CR 56(c).  Here, no material 

facts are in dispute, and the court is presented with a pure question of law concerning 

the applicability of RCW 4.20.020, RCW 4.20.046 and RCW 4.24.010.  

       Statutory interpretation is a question of law reviewed de novo. Beggs v. Dep't of 

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No. 29368-8-III
Triplett v. DSHS 

Soc. & Health Servs., 171 Wn.2d 69, 75, 247 P.3d 421 (2011).  When interpreting a 

statute, a court's fundamental objective is to ascertain and carry out the legislature's 

intent.  State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).  "[I]f the statute's 

meaning is plain on its face, then the court must give effect to that plain meaning as an 

expression of legislative intent."  Dep't of Ecology v. Campbell & Gwinn, LLC, 146 

Wn.2d 1, 9-10, 43 P.3d 4 (2002).  

       Under Washington law, wrongful death actions are strictly governed by statute.  

Atchison v. Great W. Malting Co., 161 Wn.2d 372, 166 P.3d 662 (2007).  When the 

death of a person is caused by the wrongful act, neglect or default of another, the 

decedent's personal representative may maintain an action for damages.  RCW 

4.20.010.  RCW 4.20.020 defines the beneficiaries of such a wrongful death action.  

First, it specifies that the action is for the benefit of the husband, wife, state registered 

domestic partner, or children of the decedent.  RCW 4.20.020.  Then it provides if the 

decedent leaves no surviving husband, wife, state registered domestic partner, or 

children, the "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 (emphasis added).  

       The statute is inescapably plain.  DSHS correctly contends: "Ms. Triplett and Mr. 

Smith may recover only if there are no first tier beneficiaries (husband, wife, state 

registered domestic partner or child) and only if, as the surviving parent and sibling, 

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No. 29368-8-III
Triplett v. DSHS 

they were dependent on Kathleen Smith for financial support." Br. of Petitioner at 7.  

Ms. Smith was not married and had no children.  It is undisputed that respondents were 

not dependent on Ms. Smith for financial support.  Respondents unpersuasively argue 

the legislature could not have intended for RCW 4.20.020 to require parents and 

siblings to show financial dependence upon the decedent where, because of mental 

disability, the decedent was incapable of providing support.  But, as noted, the statute 

as written plainly does not apply to these facts.  Accordingly, respondents do not have 

standing to sue under RCW 4.20.020.   

       Moreover, Ms. Smith's disability, in any event, is inconsequential because she 

did not support her mother and brother.  The legislature has declined to include 

nondependent parents and siblings as beneficiaries under RCW 4.20.020.  

Schumacher v. Williams, 107 Wn. App. 793, 805, 28 P.3d 792 (2001) (Ellington, J., 

concurring), review denied, 145 Wn.2d 1025 (2002); Philippides v. Bernard, 151 Wn.2d 

376, 390, 88 P.3d 939 (2004).

       Given all, we conclude the trial court erred in failing to summarily dismiss 

respondents' cause of action under RCW 4.20.020.    

                                     B.  Access to Courts

       The issue is whether RCW 4.20.020's limitation on beneficiaries 

unconstitutionally restricts a decedent's access to the courts.    

       Respondents cite the United States Constitution, Title II of the Americans with 

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No. 29368-8-III
Triplett v. DSHS 

Disabilities Act, and the Washington State Constitution for the rule that individuals shall 

have access to the courts.  They concede that under the above interpretation of RCW 

4.20.020, where no statutory beneficiaries exist, the decedent's estate can recover only 

the decedent's prospective net accumulations.  

       Respondents argue "the only reasonable conclusion one can draw" is that "[t]he 

phrase 'net accumulations' presumes that the decedent had the ability over a normal 

life span to earn an income."  Br. of Respondents at 14.  Accordingly, they argue 

because Ms. Smith was not capable of working and thus could not have acquired net 

accumulations, she would have no damages and, "[t]herefore, she would effectively be 

denied her Constitutional Right of Access to the Court."  Id.   

       DSHS aptly replies, the statute "does not purport to provide a cause of action or 

access to the courts to the deceased person.  The statute provides [a] remedy to the 

personal representative of the deceased's estate, who may pursue causes of action on 

behalf of the heirs specified in the statute." Reply Br. of Appellant at 9.  "Since a 

person who is dead cannot pursue an action, it is absurd to suggest that the wrongful 

death statute unlawfully restricts their access to the courts."  Id.  Accordingly, we 

conclude respondents' access-to-courts argument has no merit.  To the extent the trial 

court may have relied on access-to-courts arguments, it erred.  

                               C.  RCW 4.20.046 Applicability

       The trial court denied DSHS's summary judgment motion that included claims 

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No. 29368-8-III
Triplett v. DSHS 

under the survival statute, RCW 4.20.046.  While respondents did not brief the survival 

statute issue here, DSHS has partly appealed that denial.  

       The survival statute provides:

       (1)  All causes of action by a person . . . against another person . . . shall 
       survive to the personal representatives of the former and against the 
       personal representatives of the latter, whether such actions arise on 
       contract or otherwise, and whether or not such actions would have 
       survived at the common law . . . : PROVIDED, HOWEVER, That the 
       personal representative shall only be entitled to recover damages for pain 
       and suffering, anxiety, emotional distress, or humiliation personal to and 
       suffered by a deceased on behalf of those beneficiaries enumerated in 
       RCW 4.20.020, and such damages are recoverable regardless of whether 
       or not the death was occasioned by the injury that is the basis for the 
       action.  

RCW 4.20.046 (emphasis added).  As discussed, respondents are not beneficiaries as 

enumerated in RCW 4.20.020.  As DSHS contends, if no statutory beneficiaries exist, 

damages in a survival claim under RCW 4.20.046 are limited to the "prospective net 

accumulations" of the decedent.  Br. of Petitioner at 9 (citing Tait v. Wahl, 97 Wn. App. 

765, 774-75, 987 P.2d 127 (1999); Federated Servs. Ins. Co. v. Pers. Representative of 

Estate of Norberg, 101 Wn. App. 119, 126-28, 4 P.3d 844 (2000)).  It is undisputed that 

Ms. Smith had no prospective net accumulations.  

       Accordingly, summary judgment should have been granted dismissing any 

claims under RCW 4.20.046.  The trial court erred in not dismissing the survival claim.  

                      D.  Extension of RCW 4.20.010 by Equivalency

       The issue is whether the trial court erred in not summarily rejecting respondents'

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No. 29368-8-III
Triplett v. DSHS 

argument that Ms. Smith in her disabled state should be considered equivalent to a 

minor for purposes of RCW 4.24.010, the wrongful death of a child statute.  DSHS 

contends Ms. Triplett lacks standing under RCW 4.24.010, because Ms. Smith at age 

52 was not Ms. Triplett's minor child.  We agree with DSHS and therefore, reject 

respondents' equivalency arguments to extend RCW 4.24.010 to disabled adults.

       RCW 4.24.010 provides:

       A mother, father, or both, who has regularly contributed to the support of 
       his or her minor child, and the mother or father, or both, of a child on 
       whom either, or both, are dependent for support may maintain or join as a 
       party an action as plaintiff for the injury or death of the child. 

       Notably, the parties do not address the "dependent for support" requirement, 

and solely focus on whether Ms. Smith's disabilities equate to minority status.  As 

already discussed, the parties do not dispute that Ms. Triplett was not dependent on 

Ms. Smith for support.  In any event, we turn now to whether the definition of "minor 

child" under the statute includes adults with mental disabilities that render them less 

capable than an ordinary person of their chronological age.  

       DSHS argues the meaning of "minor child" for purposes of RCW 4.24.010 refers 

to a child under the age of 18.  It reasons because "minor" is undefined in the statute, 

its dictionary definition should be used:  

       In the absence of specific statutory definitions, courts give words their 
       common legal or ordinary meaning.  State v. Chester, 133 Wn.2d 15, 22, 
       940 P.2d 1374 (1997).  Non-technical words are given their dictionary 
       definition.  Id.  Webster's Third New International Dictionary defines minor 
       as:  "Mi-nor adj: not having reached majority."  

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No. 29368-8-III
Triplett v. DSHS 

Reply Br. of Appellant at 13-14.  It continues "[u]nder Washington law, unless otherwise 

specifically provided, one reaches majority at 18 years of age." Reply Br. of Appellant 

at 14. Chapter 26.28 RCW titled "Age of majority," provides: "Except as otherwise 

specifically provided by law, all persons shall be deemed and taken to be of full age for 

all purposes at the age of eighteen years." RCW 26.28.010.  And DSHS cites Burt v.

Ross, 43 Wn. App. 129, 715 P.2d 538 (1986), where the court held that RCW 

26.28.010 supplied the definition for "minor child" as used in RCW 4.20.010.  

       In Burt, the parents of a 20-year-old decedent argued their daughter should be 

considered a minor for purposes of the wrongful death statute because her death was 

allegedly caused as a result of being served alcohol while under the legal drinking age 

of 21.  Burt, 43 Wn. App. at 131.  The court rejected the parents' argument, reasoning:

"[T]he linkage of the drinking age statute to the wrongful death statute is too remote to 

create an exception 'specifically provided by law' to the age of majority of 18."  Id. at 

132.  

       Respondents argue "given her profound mental disability placing her at the age 

of five (5) or six (6), [Ms. Smith] would not be able to exercise the rights set forth in 

RCW 26.28.015[,]" so "[s]he was for all purposes, the equivalent of a minor child at the 

time she drowned." Br. of Respondents at 17.  But the statute partly says: 

       Notwithstanding any other provision of law, and except as provided under 
       RCW 26.20.020, all persons shall be deemed and taken to be of full age 
       for the specific purposes hereafter enumerated at the age of eighteen 

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No. 29368-8-III
Triplett v. DSHS 

       years.

RCW 26.25.015 (emphasis added).  Thus, respondents' reliance on that statute is 

misplaced; even if Ms. Smith would not be able to exercise any of the specific rights 

enumerated in RCW 26.28.015, it does not follow that she was the equivalent of a 

minor for "all purposes." Indeed, as discussed, a person is no longer a minor at the 

age of 18 "for all purposes" "except as otherwise specifically provided by law." RCW 

26.28.010 (emphasis added).  

       Even though the parties point out examples where the legislature has provided 

exceptions to the age of majority, or addressed the meaning of dependency and urge 

us to analogize, no statutory or case law treats adults as minors based on their mental 

age.  RCW 67.04.090 deals with baseball contracts and treats graduation from high 

school as the age of majority; RCW 11.114.010 deals with transfers to minors and uses 

25 as the age of majority; and RCW 9A.44.093 defines sexual misconduct with a minor

and includes some individuals up to age 21 as minors; RCW 51.08.030 for industrial 

insurance purposes defines "child" in specific ways depending upon age and 

dependency circumstances.  Childers v. Childers, 89 Wn.2d 592, 575 P.2d 201 (1978)

discusses the term "dependent" concerning the need for continued support in a context 

where the legislature replaced the "minority" reference in chapter 26.09 RCW with a 

reference to dependency.  We find these examples unhelpful as analogies to our 

question, especially considering Ms. Triplett did not regularly contribute to Ms. Smith's 

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No. 29368-8-III
Triplett v. DSHS 

support.  

       Given all, we conclude "minor child" for purposes of RCW 4.24.010, refers to a 

child under the age of 18.  It is not within our power to add words to a statute.  Vita 

Food Prods., Inc. v. State, 91 Wn.2d 132, 134, 587 P.2d 535 (1978).  The legislature, 

not the courts, is the institution to address the public policy decision whether to extend 

minority status to mentally-disabled adults.  While DSHS asks us to address 

constitutional equal protection, because we resolve this issue on statutory grounds we 

decline any constitutional analysis.  Moreover, respondents have made no equal 

protection argument and did not respond to DSHS's equal protection discussion.

                           E.  Request for Common-Law Remedy

       The issue is whether a common-law remedy exists or should exist to allow 

respondents to recover for Ms. Smith's death.  DSHS contends the trial court's 

summary judgment denial effectively created a common-law remedy beyond statutory 

coverage.  Respondents ask us to recognize a common-law cause of action "given the 

Legislature's failure to provide a remedy." Br. of Respondents at 23.  

       But as "the 'courts of this state have long and repeatedly held, causes of action 

for wrongful death are strictly a matter of legislative grace and are not recognized in the 

common law.'"  Philippides, 151 Wn.2d at 390 (quoting Tait, 97 Wn. App. at 771).  As 

discussed above, and despite what may appear to be a harsh result, this policy matter 

is for legislative not judicial decision.  See Schumacher, 107 Wn. App. at 805; 

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No. 29368-8-III
Triplett v. DSHS 

Philippides, 151 Wn.2d at 390.  We, like the Philippides and the Schumacher courts, 

decline to recognize or create a common-law remedy under the facts here.  To the 

extent the trial court's denial of summary judgment recognized one, it was in error.  

       Reversed.  We grant summary judgment to DSHS on the issues addressed here.

                                                    ______________________________
                                                    Brown, J.

WE CONCUR:

________________________                            ______________________________
Sweeney, J.                                         Siddoway, J.

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