Wrongful Death Claims

When an injured construction worker dies from his or her injuries, a “wrongful death” claim may be brought against those who negligently caused the worker’s injuries and death. If the injured worker dies from causes unrelated to his or her injuries, a “survival action” may be brought against those who negligently caused the worker’s injury. The wrongful death and survival laws in Washington State are unique and arcane. Many judges and most lawyers – even workers’ compensation and probate lawyers — do not regularly deal with these laws and do understand how these unusual laws work for the benefit of surviving family members. If your loved one was injured while working at a construction site and has since passed away, you owe it to yourself and your family members to seek advice from the competent and experienced wrongful death lawyers at Kraft Davies Olsson PLLC.

In the State of Washington, the Legislature has passed a law that authorizes the personal representative of the deceased worker’s estate – and no one else — to assert, litigate, negotiate, and/or settle a personal injury or wrongful death claim for the financial benefit of the deceased worker’s family members. RCW 4.20.046. This means that a probate/estate action must be filed in the county where the deceased worker resided at the time of his or her death, and that a personal representative must be appointed by the probate court. Only that personal representative can hire a lawyer and bring a personal injury and/or wrongful death claim for the benefit of the deceased worker’s family members. For these reasons, it is important that the family members take an active interest in the probate action and see to it that the right person is appointed to serve as the personal representative.

Survival Action

If the injured worker dies from a cause other than his or her injuries, the personal representative can still bring a personal injury claim against the parties who negligently caused the injuries. Two types of personal injury claims can be made. The first is for the wage loss, medical bills, and other out-of-pocket expenses that the injured worker could have claimed had he or she lived. Any recovery made for these losses will be paid into the estate, to be distributed according to the terms of the deceased worker’s will or the laws of intestacy. The second claim that can be made is for the pain, suffering, anxiety, emotional distress, and humiliation suffered by the injured worker before his or her death. This claim can only be asserted by the personal representative of the estate if the deceased injured worker left behind a surviving spouse, child, and/or stepchild. If any of these family members survive, they are the ones entitled to receive any compensation paid for the injured worker’s pre-death suffering. If none of these family members survive the injured worker, then the injured worker’s parents and siblings will be entitled to the compensation, but only if the parents and/or siblings were dependent upon the injured worker for support and were living in the United States at the time of the injured worker’s death. RCW 4.20.060.

Wrongful Death Action

If the injured worker dies from his or her injuries, then the personal representative of the injured worker’s estate can make a claim against the negligent parties for the loss of love, affection, and support personally experienced by the injured worker’s surviving spouse, child, and/or stepchild, in such amounts as each person can prove. RCW 4.20.010-020. If none of these family members survive the injured worker, then the personal representative of the injured worker’s estate can make a claim against the negligent parties for the loss of love, affection and support personally experienced by the injured worker’s parents and siblings, but only if the parents and/or siblings were dependent upon the injured worker for support and were living in the United States at the time of the injured worker’s death. RCW 4.20.020.

Right to Workers’ Compensation Survivor’s Pension

Many surviving spouses worry that they will lose their entitlement to receive a widow’s/widower’s pension from the Department of Labor and Industries if they decide to bring a wrongful death or survival action against those responsible for injuring their loved one. This is not the law. It does not matter whether you live in Seattle, Tacoma, Olympia, Bellingham, Marysville, Everett, Centralia, Longview, Vancouver, Ellensburg, Wenatchee, Yakima, Richland, Walla Walla, Spokane, or any other location within the state’s borders. The law in the State of Washington is that a surviving spouse’s decision to pursue a wrongful death or survival action is not a legal bar to his or her receipt of death benefits from the Department of Labor and Industries. RCW 51.24.04.

As is true with any legal right, there are strict time limits for bringing claims based on Washington State’s wrongful death and survival statutes. Given the complexity of the law, it is important for you to act promptly so that those time limits do not run and extinguish your rights. If your loved one was injured while working at a construction site and has since passed away, you owe it to yourself and your family members to seek advice by calling Kraft Davies Olsson PLLC at 206.624.8844 for a free consultation.