Deggs v. Asbestos Corp. , 186 Wash. 2d 716 ( 2016 )

González, J.

¶ 1 Washington State’s wrongful death act is based on the English Lord Campbell’s Act of 1846. Lord Campbell’s Act gave certain family members a cause of action for a relative’s wrongful death, but only if that relative would have had a cause of action 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 of her father even though the father did not have a cause of action against the defendants at the time of his death.

¶2 While we recognize that our cases adopting the limitation from Lord Campbell’s Act’s may have been incorrect, the petitioner has not shown that they are harmful. Nor has she shown that the legal underpinnings of those decisions have changed or disappeared since those opinions were decided. Accordingly, we affirm.

Facts

¶3 Ray¹ 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 was diagnosed with lymphoma, pleural disease, and asbestosis relating to asbestos exposure. Clerk’s Papers at 24.

¶4 In 1999, Sundberg filed a personal injury suit against nearly 40 defendants who had some part in exposing him to asbestos. Most of the defendants settled (the amounts are not in the record), though one did go to trial. Sundberg prevailed at trial, and in 2001, a jury awarded him $1,511,900 against the last remaining defendant.

¶5 Nine years later, at the age of 84, Sundberg died of asbestos-related disease. He was survived by his wife, Betty Sundberg, and their daughter, Judy Deggs. Deggs, acting as personal representative of her 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 her father did not name these new defendants in the earlier case. One of the defendants (later joined by 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 the passage of time, Sundberg did not have a cause of action against these defendants for his injuries at the time of his death. The trial judge agreed and granted the motions to dismiss.

¶6 The Court of Appeals affirmed over a vigorous dissent. Deggs v. Asbestos Corp. Ltd., 188 Wn. App. 495, 500, 354 P.3d 1 (citing Grant v. Fisher Flouring Mills 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). It concluded that since Sundberg could not have brought a second suit based on his asbestos exposures before he died, Deggs could not bring a wrongful death suit after he died. Id.

¶7 The dissent concluded that the analytical underpinnings of Grant and Calhoun had been undermined by subsequent case law. Id. at 514-15 (citing Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nicholas-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821 (2013)). Since, it concluded, “[o]f course, a wrongful death action cannot accrue before death,” the statute of limitations could not start to run until that time either. Id. at 515 (Dwyer, J., dissenting). Essentially, Deggs argues that wrongful death is a distinct statutory claim and that her injuries are not the same injuries her father suffered and sued for in 1999. Her injuries are due to the loss of her father, which did not occur until he died.

¶8 We granted Deggs’ petition for review. Deggs, 184 Wn.2d 1018. We have received amicus briefs in support of Deggs from the Washington State Association for Justice Foundation and Bergman Draper Ladenburg PLLC. We have received briefs in support of Asbestos Corporation Limited and the other defendants from the Washington Defense Trial Lawyers.

Analysis

¶9 ‘When the death of a person is caused by the wrongful act, neglect, or default of another his or her personal 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 of statutory heirs, not the decedent or the 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’s judgment that “a person may legally sustain damages when one, with whom a certain relationship existed, is wrongfully killed.” Gray, 61 Wn.2d at 325. It is not truly a derivative action: “[T]he action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Johnson v. 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 “at the time the decedent’s personal representative discovered, or should have discovered, the cause of action.” White v. Johns-Manville Corp., 103 Wn.2d 344, 352-53, 693 P.2d 687 (1985). But see Atchison v. Great W. Malting Co., 161 Wn.2d 372, 379, 166 P.3d 662 (2007) (observing that “the rule is well settled: wrongful death actions accrue at the time of death” (citing Dodson v. Cont'l Can Co., 159 Wash. 589, 294 P. 265 (1930))).³ It has a three year statute of limitations. See Huntington v. Samaritan Hosp., 101 Wn.2d 466, 468, 680 P.2d 58 (1984) (citing RCW 4.16.080). Deggs filed this suit within three years of her father’s death. Therefore, she contends, her suit was timely.

¶10 But while the wrongful death action exists for the benefit of the deceased’s family, it is not completely separate from actions the deceased could have brought during life. These two types of actions are intertwined with each other and have consequences on each other. Both types of actions hold those who injure others liable for the damages they cause, but that liability is subject to the broader law and the law’s limitations. As the plaintiffs are asking us to reconsider one of those long-standing limitations, we take this opportunity to trace the development of that limitation in our common law.

¶11 For many 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 of human 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 Vict. 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

[t]hat whensoever the death of a person shall be caused by wrongful act, neglect, or default, such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

Id. § 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 of Wrongful Death, 17 Stan. L. Rev. 1043 (1965)). The very first session of our territorial legislature of the state of Washington passed a version of it. 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 of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death.

Laws of 1875, § 4, at 4.

¶12 Based on both the plain language of the statute and the larger history of the 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 permitted the jury to return a plaintiff’s verdict even if it found the defendant acted in self-defense. Id. at 444. But since killing in self-defense is not wrongful, if the defendant had acted in self-defense, no recovery under the wrongful death act was available. Id. at 435 (citing N. Pac. Ry. Co. v. Adams, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513 (1904)). We remanded for retrial with proper instructions. Id. 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 under the 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 of action for the injuries had no death occurred and so neither do the survivors.

¶13 Meanwhile, we took a substantial step toward limiting our wrongful death statute in line with the limitations in Lord Campbell’s Act in Brodie 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 of his right of action for the injury bars the right in the beneficiaries to maintain an action for his death occasioned by the injury.” Id. 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 of all claims, the court dismissed the wrongful death suit. Id. at 575-76; accord N. Pac. Ry. Co., 192 U.S. at 450 (holding negligence waiver bound heirs even if their cause of action had not yet accrued). Thus, in Brodie, the heirs could not pursue a wrongful death action because of something extrinsic to injury that resulted in their family member’s death: the deceased’s decision to release the defendant and thus the lack of a subsisting cause of action at the time of death.

¶14 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 (that the death was not the result of a wrongful act), to a generally procedural, extrinsic limitation: the statute of limitations on the deceased’s underlying cause of action. In 1932, we concluded fairly summarily that a wrongful death action was not available if the statute of limitations 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 of death, and that the statute of limitations then begins to two.” Id. at 580-81 (citing Dodson, 159 Wash. 589). But we noted that “[t] he rule ... is subject to a well recognized limitation, namely, at the time of death there must be a subsisting cause of action in the deceased.” Id. at 581 (citing Tiffany, supra, § 124).

¶15 In Grant, the decedent had filed a timely personal injury action for his injuries. Id. at 582. That suit was pending at the time of his death. Id. Based on that pending lawsuit, we concluded that Grant did have “a valid subsisting cause of action” at the time of his death and allowed the wrongful death suit to go forward. Id.

¶16 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 of Anna Ottomeier, who was murdered by her husband who then killed himself. Id. at 420. At the time, either in the interests of marital tranquility or under the legal fiction that husband and wife were one, Washington common law did not allow spouses to sue each other in tort. Id. at 424. Since Anna Ottomeier could not have sued her husband for assaulting her, his personal representative argued, there was no “subsisting cause of action in the deceased” as required by Grant after her 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 of wrongful death suits that had been dismissed based on the status or conduct of the deceased, and that the reasoning underlying neither category justified dismissing Johnson’s suit, especially as there was no marital tranquility left to maintain. Id. at 424, 427.

¶17 In the first category were “cases in which the defense asserted inhered in the tort itself,” such as claims that the defendant’s act was not wrongful, claims of consent, and claims of contributory negligence. Id. at 422. The court concluded that no recovery under the wrongful death action was available in such cases because “the tort-feasor breached no duty owing to the decedent. . . [and thus the] death was not wrongful in the contemplation of the statute.” Id.; see also Ryan, 182 Wash. at 538-39 (not wrongful for defendant to 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 “disability to sue is personal to her, and does not inhere in the tort itself.” 45 Wn.2d at 424 (citing Deposit Guar. Bank & Tr. Co. v. Nelson, 212 Miss. 335, 54 So. 2d 476 (1951), overruled by Burns v. Burns, 518 So. 2d 1205, 1207 (Miss. 1988)); see also Ostheller v. Spokane & Inland Empire R.R. Co., 107 Wash. 678, 685, 182 P. 630 (1919). None of the parties argue that category is present here.

¶18 “The second category of cases in which this general rule of exclusion has been applied involves situations in which, after receiving the injuries which later resulted in death, the decedent pursued a course of conduct which makes it inequitable to recognize a cause of action for wrongful death.” Johnson, 45 Wn.2d at 422-23 (citing Brodie, 92 Wash. 574; Calhoun, 170 Wash. 152; Grant, 181 Wash. 576). This postinjury category of extrinsic limitations on the availability of the wrongful death action includes prior litigation, prior settlements, and the lapsing of the statute of limitations.⁶ Id. The court analogized spousal immunity to this sort of extrinsic limitation on the scope of the wrongful death action, concluded that there was no equitable reason to attribute spousal immunity to the wife’s personal representative, and allowed the wrongful death suit to go forward. Id. at 424-25.

¶19 More recently, we found that the discovery rule applies in wrongful death suits to toll the statute of limitations. White, 103 Wn.2d at 345. Thus “[t]he wrongful death statute of limitation accrues at the time the wrongful death claimant knew or should have known that the death of the decedent was caused by his exposure to asbestos,” rather than at the death of the decedent. Id. 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 known the cause of the disease which subsequently caused his death. In that case there is a question as to whether the wrongful death action of the deceased’s representative “accrued” at the time of the 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 of death.

Id. 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.

¶20 Deggs asks us to overrule Grant, Calhoun, and Johnson to the extent they hold that the lapsing of the statute of limitations on the underlying personal injury claim bars the personal representative from bringing a 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 English Parliament, not our legislature, adopted. Further, the Calhoun court suggested (though it did not hold) that a wrongful death cause of action accrues at the time of the underlying injury to the deceased, not upon his or her death. See Calhoun, 170 Wash. at 160 (citing Horner, 111 Wash. 386). That was incorrect; a wrongful death action accrues “at the time the decedent’s personal representative discovered, or should have discovered, the cause of action.” White, 103 Wn.2d at 352-53.

¶21 But while 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 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 that we 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 of a cause of action, was prevented from bringing a personal injury claim within the statute of limitations, and then passed away, leaving children or other dependents destitute. It may be that case would show the sort of harm necessary to overrule our case law. Instead, we are faced with a case where the deceased knew of the injury, sued, and either settled with or won against all the named defendants.⁸

¶22 Further, while the doctrine of legislative acquiescence does not govern this case as Grant and Calhoun are not statutory interpretation cases, the legislature’s lack of response adds weight to the conclusion that they have not been harmful. Cf. 1000 Friends of Wash. v. McFarland, 159 Wn.2d 165, 181, 149 P.3d 616 (2007) (plurality opinion) (citing State v. Coe, 109 Wn.2d 832, 846, 750 P.2d 208 (1988)). The legislature has not indicated any dissatisfaction with this court grafting on Lord Campbell’s Act’s limitation despite having 84 years to do so and despite amending the wrongful death statute itself once and the related wrongful death beneficiary statute four times. See Laws of 2011, ch. 336, §§ 89-90 (making statutory language gender neutral); Laws of 2007, ch. 156, §§ 29-30 (extending beneficiary rights to domestic partners); Laws of 1985, ch. 139 (extending rights to stepchildren); Laws of 1973, 1st Ex. Sess., ch. 154, § 2 (extending beneficiary rights to adult brothers). We conclude Deggs has not shown that Grant and Calhoun are harmful.⁹

¶23 Nor has she shown other reasons exist to abandon our precedent. We have recently observed that “we 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’l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (citing United States v. Gaudin, 515 U.S. 506, 521, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)). In W.G. Clark, we had occasion to revisit whether the Employee Retirement Income 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. (citing Puget Sound Elec. Workers Health & Welfare Tr. Fund v. Merit Co., 123 Wn.2d 565, 870 P.2d 960 (1994); Int’l Bhd. of Elec. 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 not preempted by ERISA because they have only a tenuous connection to ERISA plans.” Id. (citing S. Cal. IBEW-NECA Tr. Funds v. Standard Indus. Elec. Co., 247 F.3d 920, 925-27 (9th Cir. 2001)). While “[r]espect for precedence is strongest ‘in the area of statutory construction’ ” since the legislature is free to amend statutes to address interpretations it disagrees with, we recognized that cases we had relied on in Merit and Trig had been overruled, joined the emerging consensus, and overruled our precedent. Hubbard v. United States, 514 U.S. 695, 711, 115 S. Ct. 1754, 131 L. Ed. 2d 779 (1995) (partial plurality opinion) (quoting Ill. Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977)); W.G. Clark, 180 Wn.2d at 58, 62 (citing Standard, 247 F.3d at 929).¹⁰

¶24 In dissent at the Court of Appeals, Judge Dwyer found that that the underpinnings of Calhoun and Grant had been undermined based on the emerging understanding of the nature of statutes of limitations. Deggs, 188 Wn. App. at 514-16. Relying on several recent cases, Judge Dwyer contended that “statutes of limitation do not begin to run until a party has the right to apply to a court for relief—that is, once a claim accrues.” Id. at 514-15 (Dwyer, J., dissenting) (citing Huber, 176 Wn.2d at 511; Cambridge Townhomes, LLC v. Pac. Star Roofing, 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 of limitations from a date that occurred before the cause accrued, Judge Dwyer reasoned, they were incorrect. Id. Instead, in his view, Calhoun and Grant treated the statute of limitations as a statute of repose without any evidence the legislature intended to do so. Id. at 516 (Dwyer, J., dissenting). Accordingly, in his view, the Calhoun/Grant rule should be abandoned.

¶25 While there is some force to this argument, Grant did not hold that the statute of limitations on a wrongful death suit can lapse before the wrongful death cause of action accrued. Instead, it held there was an exception to the rule that the wrongful death cause of action accrues at death: there must be an existing cause of action in the deceased at the time of death, and this principle applied to statutes of limitation. Grant, 181 Wash. at 580-81 (citing Tiffany, supra, § 124).¹¹

¶26 At least one of the underpinnings of Calhoun has been undermined. It is now clear that a wrongful death cause of action accrues at the time of death, not the time of the 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 itself points to the strangeness of dismissing a tort case based on a statute of limitations that lapsed before the cause of action accrued and clarifies that under Washington law, a wrongful death action does accrue at the time of death. Grant, 181 Wash. at 580-81. Further, courts around the country are currently split on when the statute of limitations on a wrongful death action accrues and on whether a judgment in a personal injury case arising out of the same set of facts bars a subsequent wrongful death action. See M.C. Dransfield, Annotation, Time from Which Statute of Limitations Begins To Run against Cause of Action for Wrongful Death, 97 A.L.R.2d 1151, §§ 2-3 (1964) (collecting accrual cases); Vitauts M. Gulbis, Annotation, Judgment in Favor of, or Adverse to, Person Injured as Barring Action for His Death, 26 A.L.R.4th 1264 (2015) (collecting prior judgment cases). As courts across the country 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 that their underpinnings have not been sufficiently undermined to justify abandoning them.

¶27 We find this case is squarely governed by Calhoun and Grant. Under Calhoun and Grant, the statute of limitations on Sandberg’s underlying claim lapsed during his life and thus this wrongful death suit was properly dismissed.

Conclusion

¶28 A wrongful death “action accrues at the time of death” so long as there is “a subsisting cause of action in the deceased” at the time of death, subject to exceptions not present here. Grant, 181 Wash. at 580-81 (citing Tiffany, supra, § 124). We find insufficient cause to abandon this well-established precedent at this time. We affirm the courts below.

Owens, Fairhurst, Gordon McCloud, and Yu, JJ., concur.

1 The 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.

2 While the record does not reveal the exact date when the personal injury suit accrued, the parties do not dispute that Sundberg’s cause of action had accrued by 1999, when he filed a personal injury suit against Asbestos Corporation Limited and other defendants. The statute of limitations on personal injury suits is three years from the time the plaintiff knows all the essential elements of the cause of action. White v. Johns-Manville Corp., 103 Wn.2d 344, 358, 693 P.2d 687 (1985); see also RCW 4.16.080(2).

3 Atchison asked whether the statute of limitations would be tolled during an heir’s childhood. 161 Wn.2d at 375. It did not discuss either the discovery rule or White, 103 Wn.2d 344.

4 We respectfully disagree with the dissent that the court is disinterested in making sense of Calhoun, Grant, and Johnson. Taken together, these cases adopt Lord Campbell’s Act limitations on wrongful death suit and recognize, based on legal developments since the time of Lord Campbell’s Act, some exceptions.

5 This court abandoned common law spousal immunity in Freehe v. Freehe, 81 Wn.2d 183, 186, 500 P.2d 771 (1972), overruled on other grounds by Brown v. Brown, 100 Wn.2d 729, 737, 675 P.2d 1207 (1984).

6 We respectfully disagree with the dissent that Calhoun was “nonsensical” or that Johnson's categorization of Calhoun was “an exercise in revisionist history.” Dissent at 739, 736. Calhoun simply contained unfortunate dicta that was promptly clarified in Grant. Unfortunate dicta is not unknown at this court. The Johnson court took a thoughtful look at our cases concerning the accrual of a wrongful death action. 45 Wn.2d at 421-23. As discussed in more detail in text above, the Johnson court discerned two categories of limitations on wrongful death actions. It included Grant and Calhoun in the second category: equitable limitations on accrual. Id. at 423 (citing Grant, 181 Wash. 576; Calhoun, 170 Wash. 152). Fairly read, the Johnson court found there was something inequitable in allowing the deceased’s personal representative to maintain a suit based on injuries that the deceased had already been compensated for or had decided not to pursue.

7 Amicus Washington Defense Trial Lawyers suggests that the Stranger Creek analysis does not present the appropriate analytical lens to consider whether to reverse Calhoun and Grant because, in amicus’ view, those opinions construe a statute, not the common law. But neither opinion suggests that the wrongful death statute itself contains the limitation the opinions embrace.

8 Amicus Bergman Draper Ladenburg PLLC argues the Calhoun/Grant rule is harmful because of cases where the cause of death is not known until well after the decedent has passed away and intrusive pathologies have been done. But those cases would fall under the discovery rule in White, and Calhoun/Grant should not be an impediment.

9 In contrast, this court could inflict considerable harm on settled expectations if we were to abandon the rule from Lord Campbell’s Act now. “Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance 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). Many entities that reasonably relied on our precedent to close the book on potential claims based on the passage of the underlying statute of limitations would now find themselves subject to potential liability based on a court opinion they were not parties to.

10 We caution that stare decisis is applied less rigorously in the area of constitutional interpretation. This is partially for the pragmatic reason that statutes are easier to amend than constitutions. If the legislature does not approve of a judicial interpretation of a statute, the legislature can simply amend the statute. See Hubbard, 514 U.S. at 711-12 (quoting Ill. Brick Co., 431 U.S. at 736). Amending constitutions is much more difficult. Compare Wash. Const. art. II, §§ 1, 17-22, with Wash. Const. art. XXIII. But this pragmatism must give way “to the lessons of experience and the force of better reasoning’’ when our opinions interpreting our constitutions are found wanting because they fail to give adequate protection to constitutionally protected liberties or due respect to constitutionally mandated procedures. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-08, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting), overruled in part by Helvering v. Mountain Producers Corp., 303 U.S. 376, 387, 58 S. Ct. 623, 82 L. Ed. 907 (1938).

11 The dissent asserts that it has correctly understood Grant and that we have not, based on the difference between a claim being barred and a claim being extinguished. Dissent at 740-41. We respectfully 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 of death,’’ but that “[t]he rule, however, is subject to a well recognized limitation, namely, at the time of death there must be a subsisting cause of action in the deceased.’’ 181 Wash. at 580-81.