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Vernon v. Aacres Allvest, LLC

Court of Appeals of Washington, Division 2

September 3, 2014

Earl Vernon, Individually and as Personal Representative, Appellant ,
v.
Aacres Allvest, LLC, et al., Respondents

Appeal from Pierce County Superior Court. Docket No: 12-2-10662-8. Date filed: 12/14/2012. Judge signing: Honorable Ronald E Culpepper.

Darrell L. Cochran and Kevin M. Hastings (of Pfau Cochran Vertetis Amala PLLC ), for appellant.

Charles P.E. Leitch and Andrew M. Weinberg (of Patterson Buchanan Fobes & Leitch Inc. ), for respondents.

AUTHOR: Jill M Johanson, C.J. We concur: J. Robin Hunt, J., Thomas R Bjorgen, J.

OPINION

Page 535

Johanson, C.J.

[183 Wn.App. 424] ¶ 1 Earl Vernon, on behalf of his brother Henry David Vernon's estate, appeals the superior court's [183 Wn.App. 425] order granting summary judgment in favor of Aacres Allvest LLC, Aacres Landing Inc., Aacres WA LLC, and Aalan Holdings Inc. (Aacres). Earl [1] argues that (1) the superior court erred in dismissing his noneconomic damages claim under the wrongful death statute (RCW 4.20.020) because the court should have recognized a common law wrongful death cause of action, (2) the superior court erred in dismissing his economic damages claim under the general survival statute (RCW 4.20.046), (3) the superior court's dismissal of Earl's claims violated David's constitutional right to access the court, and (4) David should be considered a minor for the purposes of the wrongful death statute.

¶ 2 We hold that (1) the superior court properly dismissed Earl's noneconomic damages claim under the wrongful death statute because he lacks standing as a statutory beneficiary and we cannot recognize a wrongful death common law cause of action that conflicts with the existing statutory framework, (2) the superior court erred in dismissing Earl's economic damages claim because these damages are available under the general survival statute notwithstanding the absence of qualifying statutory beneficiaries, (3) Earl's claim that the wrongful death statute is unconstitutional fails because the statute does not create a cause of action for deceased persons, and (4) Earl failed to preserve the claim that David should be considered a minor for the purposes of the wrongful death statute. Accordingly, we affirm in part and reverse in part.

FACTS

¶ 3 David was born severely disabled. Because of his disabilities, David was completely dependent on others for his health and personal care needs. In 2009, David lived in a home under the care and supervision of Aacres. In late [183 Wn.App. 426] July, western Washington experienced a record-breaking heat wave. On the morning of July 29, Aacres staff member Francis Muraya found David lying unresponsive on his bedroom floor. Emergency personnel transported David to the hospital where he was pronounced dead. The cause of David's death was " exogenous

Page 536

hyperthermia" consistent with high core body temperature. Clerk's Papers at 188.

¶ 4 Earl, David's legal guardian, filed suit against Aacres under the " Abuse of Vulnerable Adults Act" (AVAA).[2] Earl alleged that Aacres should be responsible for David's death because Aacres negligently allowed him to sleep in an upstairs bedroom with closed windows and doors during a record heat wave, knowing that David's medication made it difficult for him to control his body temperature. Aacres moved for summary judgment, asserting that Earl's claims must be dismissed because he lacked standing to bring suit under both the wrongful death statute and the general survival statute.

¶ 5 In response to Aacres' motion for summary judgment, Earl argued that damages for David's pain and suffering and for funeral expenses should be available under the wrongful death statute and the general survival statute.[3] In the alternative, Earl argued that the superior court should recognize a common law wrongful death cause of action, which would allow him to recover both economic and noneconomic damages. But the superior court agreed with Aacres and summarily dismissed each of Earl's claims because it found that he lacked standing as a beneficiary under the statutory framework that governs wrongful [183 Wn.App. 427] ...


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