Estate Of Carl Murray, Wendy Murray, V City Of Vancouver

Filed
Washington State
Court of Appeals
Division Two
September 26, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WENDY ANN MURRAY as PERSONAL No. 49899-5-II
REPRESENTATIVE OF THE ESTATE OF
CARL MURRAY, a deceased career
professional firefighter for and on behalf of the
Estate and RCW 4.20.020 beneficiaries,
Appellant,
v.
CITY OF VANCOUVER, a municipal UNPUBLISHED OPINION
subdivision of the State of Washington,
Respondent.
SUTTON, J. — Wendy Murray, as the personal representative of Carl Murray’s estate
(Estate), appeals the superior court’s order dismissing the Estate’s tort claims against the City of
Vancouver.1 The Estate claimed that Carl’s death was the result of radon exposure during his
career as a firefighter for the City. The superior court granted partial summary judgment in favor
of the City and (1) dismissed the Estate’s survival claims as barred by the statute of limitations;
(2) dismissed the Estate’s strict liability and loss of consortium claims as barred by the Law
Enforcement Officers and Fire Fighter’s Retirement System Act (LEOFF), chapter 41.26 RCW;
(3) dismissed the Estate’s outrage claim; and (4) limited damages on the Estate’s wrongful death
1
For clarity, we refer to the Estate as the plaintiff/appellant in this action, and we refer to Wendy
and Carl individually by their first names. We intend no disrespect.
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No. 49899-5-II
claim to amounts exceeding the amount received or receivable under LEOFF.2 We affirm, in part,
the superior court’s order granting partial summary judgment and dismissing the survival, strict
liability, and outrage claims. However, we hold the trial court erred in dismissing the loss of
consortium claim, and we decline to review the court’s ruling limiting damages on the wrongful
death claim.
FACTS
Carl was a fire fighter with the City for over 20 years. Carl was diagnosed with lung cancer
on December 22, 2010. On July 30, 2013, Carl died from metastatic lung cancer.
On February 2, 2016, the Estate filed a complaint for damages against the City alleging
that Carl’s cancer was caused by exposure to radon while working in the City’s fire stations. The
complaint alleged a wrongful death action under RCW 4.20.010 and survival actions under RCW
4.20.046. The complaint also alleged strict liability and outrage. And the complaint alleged
damages for loss of consortium.
The City filed a motion for partial summary judgment seeking dismissal of the survival
claims for strict liability, loss of consortium, outrage, and for limitations on the damages sought
for the wrongful death claim. The City argued that the Estate’s survival claims were barred by the
statute of limitations. The City also argued that the Estate’s strict liability and loss of consortium
claims were abolished by LEOFF. And the City argued that the Estate’s outrage claim should be
2
The Estate also argues that the City “rush[ed] to summary judgment, before the discovery was
completed, before the discovery was reviewed by Plaintiff’s counsel and before the discovery
could be provided to experts . . . .” Br. of Appellant at 27. Because the Estate did not seek to
continue the hearing under CR 56(f), we do not address the Estate’s arguments regarding discovery
related to the partial summary judgment motion.
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No. 49899-5-II
dismissed as a matter of law. Finally, the City argued that LEOFF required that any damages that
may be awarded based on Murray’s wrongful death claim must be limited to “excess damages over
the amount received or receivable” under LEOFF. Clerk’s Papers (CP) at 68.
In support of its partial summary judgment motion, the City submitted several emails Carl
wrote or received while working for the City as a fire fighter. One email Carl received in January
2009 was an announcement about “Radon Action Month” including facts linking radon to causing
cancer. CP at 27. On January 5, 2011, after Carl was diagnosed with cancer, he received an email
from Vancouver Fire Department (VFD) Division Chief Roxy Barnes:
I have been doing some research and believe it would be very helpful to you
[C]arl to identify how many shifts you worked at station 1 or 2 since radon is one
major cause of several types of lung cancer.
CP at 36. On January 8, Barnes sent Carl another email that read,
Big hug to you Carl. I am there with you whenever you need t[he] help of
a nurse. I do need to know types of cancer so I can connect it to your radon exposure
for presumption. Do you remember when I had everyone fill out the paperwork for
radon exposure? Do you remember filling it out? I plan on writing a supportive
paper to nail your presumption connection for the city. Joe went through that
process so we can help you there. Big hug to you[.]
CP at 38. Carl responded to Barnes’s email and stated that he remembered filling out the
paperwork. The City also provided a copy of a Hazards Material Exposure Report that Carl filled
out in 2001, which documented Carl’s exposure to radon in fire stations 82 and 86.
In response to the City’s partial summary judgment motion, the Estate filed hundreds of
pages of documents related to the history of radon testing and mitigation in the City’s fire stations.
On behalf of the Estate, Wendy provided a declaration in which she stated that Carl believed his
cancer was caused by chemical exposure responding to fires and neither she nor Carl knew that
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No. 49899-5-II
radon exposure may have caused his cancer. Wendy also stated that she did not know the extent
of the radon exposure until she received the October 2013 response to her public records request
seeking the City’s records related to radon testing at the City’s fire stations.
The superior court granted the City’s motion for partial summary judgment. In its order
granting partial summary judgment, the superior court dismissed the Estate’s survival, strict
liability, loss of consortium, and outrage claims with prejudice. The superior court also ruled that
the “[City’s] Motion for Partial Summary Judgment limits Plaintiff’s damages to the total damages
reduced by amounts paid by [the City] under LEOFF, reduced further by the present value of the
amounts payable by LEOFF.” CP at 82-83.
The Estate filed a notice for discretionary review of the superior court’s partial summary
judgment order with this court. A commissioner of this court denied the Estate’s motion for
discretionary review. Then, the Estate stipulated to an order dismissing its wrongful death claim
subject to reinstatement if we reverse the superior court’s partial summary judgment order. The
Estate appeals both the stipulated order and the superior court’s partial summary judgment order.
ANALYSIS
I. STANDARDS OF REVIEW
We review a superior court’s summary judgment order de novo, performing the same
inquiry as the superior court and viewing all facts and reasonable inferences in the light most
favorable to the nonmoving party. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash. 2d 157, 164,
273 P.3d 965 (2012). Summary judgment is appropriate where there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
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No. 49899-5-II
The moving party bears the initial burden of showing that there are no genuine issues of
material fact. Pacific Northwest Shooting Park Ass’n v. City of Sequim, 158 Wash. 2d 342, 350, 144
P.3d 276 (2006). To establish a genuine issue of material fact, the nonmoving party may not rely
on speculation or argumentative assertions that unresolved factual issues remain; instead, it must
set forth specific facts that sufficiently rebut the moving party’s contentions. Michael v.
Mosquera-Lacy, 165 Wash. 2d 595, 601-02, 200 P.3d 695 (2009).
We review questions of statutory interpretation de novo. Lake v. Woodcreek Homeowners
Ass’n, 169 Wash. 2d 516, 526, 243 P.3d 1283 (2010). When interpreting a statute, we first look to
the statute’s plain meaning. Lake, 169 Wash. 2d at 526. We discern the statute’s plain meaning by
looking at the ordinary meaning of the language at issue, the context of the statute, and the statutory
scheme as a whole. Lake, 169 Wash. 2d at 526. “If the statute is unambiguous after a review of the
plain meaning, the court’s inquiry is at an end.” Lake, 169 Wash. 2d at 526.
II. SURVIVAL CLAIMS
The Estate argues that the statute of limitations does not bar its survival claims, contending
that the “statute of limitations does not run in Washington until the Plaintiff knows of the cause of
his occupational disease.”3 Br. of App. at 32. Based on this unsupported statement of the law, the
Estate argues that the statute of limitations did not begin running because there “was never
3
The Estate also addresses the wrongful death claim in the section of its brief addressing the statute
of limitations. However, the superior court did not grant summary judgment on the wrongful death
claim. Rather, the Estate stipulated to dismissal of the wrongful death claim to obtain appellate
review of the superior court’s order granting partial summary judgment. Because the wrongful
death claim was not decided as part of the superior court’s partial summary judgment order and
the Estate stipulated to its dismissal, we do not address whether the statute of limitations bars the
Estate’s wrongful death claim.
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No. 49899-5-II
adequate notice of the ongoing lethal radon exposures, failed mitigation, and the strongest
relationship between radon and lung cancer to start the statute of limitations.” Br. of Appellant at
33. However, under the well-established discovery rule, the statute of limitations on the survival
claims started when Carl, who would have been the plaintiff for purposes of the survival claims,
should have known that the radon exposure caused his cancer. The City established that this date
was in January 2011. Therefore, the superior court properly granted the City’s motion for partial
summary judgment on the survival claims.
Survival actions are created by RCW 4.20.046 and 4.20.060. “Unlike Washington’s
wrongful death statutes, the survival statutes do not create new causes of action for statutorily
named beneficiaries but instead preserve causes of action for injuries suffered prior to death.” Est.
of Otani v. Broudy, 151 Wash. 2d 750, 755, 92 P.3d 192 (2004). Under RCW 4.16.080(2), the
relevant statute of limitation for survival actions is three years. The discovery rule applies to
survival and wrongful death actions:
The [discovery] rule delays accrual of the cause of action only until the claimant
knew or reasonably should have known of the facts necessary to establish the cause
of action. It does not delay accrual until the claimant knows that she has a legal
cause of action, and the claimant must exercise reasonable diligence in pursuing a
legal claim.
Allen v. State, 60 Wash. App. 273, 275, 803 P.2d 54 (1991) (emphasis added).
Here, the City presented undisputed evidence that Carl received and responded to emails
that specifically identified a link between his exposure to radon at the fire stations and his lung
cancer when he was first diagnosed in December 2010. The City presented two emails from
January 2011 in which VFD Division Chief Barnes referred to proving a connection between
Carl’s exposure to radon in the City’s fire stations and his lung cancer.
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No. 49899-5-II
The record does not contain evidence that Carl exercised due diligence at that time. Had
he done so, he could have obtained all the information regarding radon testing and mitigation
efforts that Wendy later received when the City responded to her public records request.
Therefore, Carl reasonably should have known of the facts necessary to establish all of the essential
elements of his claims against the City in January 2011. Based on this date, the three year statute
of limitations for personal injury claims would have expired in January 2014. The Estate did not
file the current cause of action until February 2016, more than two years after the statute of
limitations had expired. Accordingly, the superior court properly granted partial summary
judgment on the survival claims based on the statute of limitations.
III. STRICT LIABILITY AND LOSS OF CONSORTIUM CLAIMS
The City argued that partial summary judgment was proper as to the Estate’s strict liability
and loss of consortium claims because the legislature abolished these causes of action under
LEOFF. The superior court agreed and granted the City’s motion for partial summary judgment
on these grounds. The superior court properly dismissed the Estate’s strict liability claim.
Although the superior court improperly treated the loss of consortium claim separately rather than
as an element of damages, for the reasons explained below we affirm the superior court’s partial
summary judgment order and dismissal of the strict liability claim but we hold that the trial court
erred in dismissing as a separate clam the loss of consortium claim.
LEOFF explicitly abolishes “all civil actions and civil causes of actions by such law
enforcement officers and firefighters against their governmental employers” except as otherwise
provided by LEOFF. RCW 41.26.270. Additionally, RCW 41.26.281 states,
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No. 49899-5-II
If injury or death results to a member from the intentional or negligent act
or omission of a member’s governmental employer, the member, the widow,
widower, child, or dependent of the member shall have the privilege to benefit
under this chapter and also have cause of action against the governmental employer
as otherwise provided by law, for any excess of damages over the amount received
or receivable under this chapter.
The City argues that the claims for strict liability and loss of consortium are separate causes of
action that have been abolished by RCW 41.26.270.
A. STRICT LIABILITY
The plain language of RCW 41.26.281 specifically limits the City’s liability for intentional
or negligent acts. The Estate pleaded a strict liability claim based on the assertion that the City
engaged in abnormally dangerous activities. Washington courts have adopted the theory of strict
liability for abnormally dangerous activities as set forth in the Restatement (Second) of Torts.
Hurley v. Port Blakely Tree Farms L.P., 182 Wash. App. 753, 761, 332 P.3d 469 (2014). “‘One who
carries on an abnormally dangerous activity is subject to liability for harm to the person, land or
chattels of another resulting from the activity, although he has exercised the utmost care to prevent
harm.’” Hurley, 182 Wash. App. at 761 (quoting RESTATEMENT (SECOND) OF TORTS § 519(1) (AM.
LAW INST. 1977)). Therefore, strict liability allows for liability regardless of the defendant’s intent
or negligence in carrying out the abnormally dangerous activity.
Because a claim for strict liability permits liability for acts that are neither intentional nor
negligent, a claim for strict liability is outside the scope of RCW 41.26.281. Therefore, the
legislature has abolished claims for strict liability by firefighters against their government under
RCW 41.26.270. Thus, the superior court did not err by granting the City’s motion for partial
summary judgment on the Estate’s strict liability claim.
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No. 49899-5-II
B. LOSS OF CONSORTIUM
The City also argues that RCW 41.26.270 abolished Murray’s loss of consortium claim.
The superior court erroneously treated loss of consortium as a separate cause of action, rather than
as an element of damages for the Estate’s wrongful death claim. Although, as explained below,
we decline to review the stipulated order dismissing the wrongful death claim, we address this
discrete issue for purposes of judicial economy.
“Loss of consortium is not, in and of itself, a cause of action but rather an element of
damages.” Long v. Dugan, 57 Wash. App. 309, 313, 788 P.2d 1 (1990). The wrongful death statute,
RCW 4.20.020, governs “post[-]death loss of consortium as well as other aspects of post[-]death
damages” for the benefit of the surviving spouse. Hatch v. Tacoma Police Dept., 107 Wash. App.
586, 588-89, 27 P.3d 1223 (2001). Here, loss of consortium was not a separate claim, but rather
an element of damages for the Estate’s wrongful death claim. Therefore, the superior court erred
by ruling that the Estate’s claim for damages resulting from loss of consortium should be dismissed
as a separate cause of action under RCW 41.26.270. For that reason, we reverse the superior
court’s partial summary judgment order to the extent of that ruling.
IV. OUTRAGE
The Estate also argues that the superior court erred by dismissing the outrage claim against
the City. We disagree.
To establish the tort of outrage, or intentional infliction of emotional distress, a plaintiff
must show (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional
distress, and (3) severe emotional distress as a result. Reid v. Pierce County, 136 Wash. 2d 195, 202,
961 P.2d 333 (1998). To prove extreme and outrageous conduct, it is not enough to show that the
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No. 49899-5-II
defendant acted with tortious or criminal intent, intended to inflict emotional distress, or even acted
with malice. Grimsby v. Samson, 85 Wash. 2d 52, 59, 530 P.2d 291 (1975). The conduct must be
“‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’”
Grimsby, 85 Wash. 2d at 59 (emphasis omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 46
CMT. D (1965)). The question of whether certain conduct is sufficiently outrageous is ordinarily
for the jury, but the court must initially determine if reasonable minds could differ on whether the
conduct was sufficiently extreme to result in liability. Dicomes v. State, 113 Wash. 2d 612, 630, 782
P.2d 1002 (1989).
The City argues that summary judgment was appropriate because the Estate failed to
establish that the City engaged in extreme and outrageous conduct. Here, the Estate submitted
hundreds of pages of documents in response to the City’s partial summary judgment motion
showing that the City regularly engaged in radon testing and engaged in mitigation efforts to
reduce high levels of radon. Whether, and to what extent, the City was successful and, more
importantly, whether the City’s conduct was negligent is not at issue here. Instead, we need only
decide whether reasonable minds could differ on whether the City’s conduct is atrocious and
utterly intolerable in a civilized community. The City’s conduct was not extreme and outrageous
because the City conducted regular radon testing and attempted mitigation when high levels of
radon were identified at the City’s fire stations.
Similarly, the City’s alleged failure to warn firefighters of the elevated levels of radon is
not sufficiently outrageous to support an outrage claim. Here, although the City may not have
actively disclosed the elevated levels of radon, it was performing regular radon testing and making
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No. 49899-5-II
mitigation efforts. The City did not affirmatively mislead firefighters or try to conceal the radon.
For example, the City did not alter test results or refuse to disclose information regarding the radon
testing. Therefore, reasonable minds would not differ in concluding that the City’s failure to warn
fire fighters of the elevated levels of radon was beyond all possible bounds of decency or utterly
intolerable in a civilized community.
Because the Estate has failed to establish a genuine issue of material fact as to whether the
City’s conduct was extreme and outrageous, the superior court’s order granting partial summary
judgment and dismissal of the Estate’s outrage claim was proper.
V. DAMAGES—WRONGFUL DEATH CLAIM
Finally, the Estate argues that the superior court erred by granting the City’s motion for
partial summary judgment limiting damages for the Estate’s wrongful death claim under LEOFF.
However, the superior court’s ruling limiting damages is not properly before this court because
the final judgment prejudiced by the ruling is not appealable. Accordingly, we do not address the
Estate’s argument regarding the limitation of damages under LEOFF.
RAP 2.2(a) provides, in relevant part, that a party may only appeal from either a final
judgment or an order determining the action. A “final judgment” is the “final judgment entered in
any action or proceeding, regardless of whether the judgment reserves for future determination an
award of attorney fees or costs.” RAP 2.2(a)(1). And an order determining the action is defined
as any “written decision affecting a substantial right in a civil case that in effect determines the
action and prevents a final judgment or discontinues the action.” RAP 2.2(a)(3). The order or
orders being appealed should be designated in the notice of appeal. RAP 2.4(a).
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No. 49899-5-II
The Estate designated both the order granting the City’s motion for partial summary
judgment and the stipulated order dismissing the wrongful death claim in its notice of appeal.
However, neither order provides an avenue for our review of the superior court’s ruling limiting
damages on the wrongful death claim.
The order granting partial summary judgment is not a final judgment or an order
determining the action in regard to the damages ruling because the damages ruling related to the
wrongful death claim, which survived partial summary judgment. Therefore, the superior court’s
ruling limiting damages on the wrongful death claim would be reviewed under the final judgment
or order determining the action on the wrongful death claim.
However, in this case, the order determining the action on the wrongful death claim—the
stipulated order dismissing the wrongful death claim—is not reviewable because the Estate
stipulated to its entry and effect. Fite v. Lee, 11 Wash. App. 21, 25-26, 521 P.2d 964 (1974) (“The
order of dismissal thereafter entered was in the nature of a judgment by consent, which, in the
absence of fraud or mistake or want of jurisdiction, will not be reviewed on appeal.”). Moreover,
the Estate stipulated to an order dismissing its wrongful death claim subject to reinstatement if we
reverse the superior court’s partial summary judgment order, and we decline to do so here.
Because we will not review the stipulated order dismissing the wrongful death claim, there is no
final judgment or order determining the action that pertains to the superior court’s ruling limiting
damages on the wrongful death claim. Accordingly, we do not review the superior court’s ruling
limiting damages on the wrongful death claim.
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CONCLUSION
We affirm the superior court’s order granting partial summary judgment and dismissing
the survival, strict liability, and outrage claims. However, we hold that the trial court erred in
dismissing the loss of consortium claim.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
WORSWICK, P.J.
BJORGEN, J.
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