6508-S.E2 AMH PEDE ADAM 153
2ESSB 6508 - H AMD 1599
By Representative Pedersen
ADOPTED 3/10/2010
Strike everything after the enacting clause and insert the following:
"Sec. 1. RCW 4.20.010 and 1917 c 123 s 1 are each amended to read as follows:
(1) When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony.
(2) The liability of a governmental entity in an action under this section that is based on a parent’s significant involvement in an adult child’s life is limited to situations where the governmental entity's acts or omissions are negligent and are a proximate cause of the death of the claimant, and where the governmental entity is not otherwise immune or where the governmental entity's liability is not otherwise limited by statute or case law.
(3) For the purposes of this section, "governmental entity" means the state, local agencies, political subdivisions, and any officers, employees, or agents of the state, local agencies, or political subdivisions.
Sec. 2. RCW 4.20.020 and 2007 c 156 s 29 are each amended to read as follows:
(1) Every ((such)) action under RCW
4.20.010 shall be for the benefit of the ((wife, husband)) spouse,
state registered domestic partner, ((child)) or children, including
stepchildren, of the person whose death shall have been so caused. If there ((be))
is no ((wife, husband)) spouse, state registered domestic
partner, or ((such)) child ((or children, such)), the
action may be maintained for the benefit of:
(a) The parents((, sisters, or brothers, who may be dependent
upon the deceased person for support, and who are resident within the United
States at the time of his death)) of a deceased adult child if the
parents are financially dependent upon the adult child for support or if the
parents have had significant involvement in the adult child's life; or
(b) Sisters or brothers who are financially dependent upon the decedent
for support if there is no spouse, state registered domestic partner, child, or
parent.
In every such action the jury may ((give such)) award
economic and noneconomic damages as((,)) under all circumstances of
the case((,)) may to them seem just. In an action under RCW 4.20.010
that is based on a parent's significant involvement in an adult child's life,
economic damages include any student loan balance that the parent may be
obligated to repay as a result of acting as a cosigner or guarantor on the
decedent's student loans, except for student loan balances that, under the
terms of the loan, are eligible for a complete discharge upon the death of the
borrower.
(2) For the purposes of this section:
(a) "Financially dependent for support" means substantial
dependence based on the receipt of services that have an economic or monetary
value, or substantial dependence based on actual monetary payments or
contributions; and
(b) "Significant involvement" means demonstrated support of an
emotional, psychological, or financial nature within the relationship, at or
reasonably near the time of death, or at or reasonably near the time of the
incident causing death. When determining if the parents have had significant
involvement in the adult child's life, the court shall consider, but not be
limited to, objective evidence of personal, verbal, written, or electronic
contact with the adult child, and in-person interaction with the adult child
during holidays, birthdays, and other events.
Sec. 3. RCW 4.20.046 and 2008 c 6 s 409 are each amended to read as follows:
(1) All causes of action by a person or persons against
another person or persons shall survive to the personal representatives of the
former and against the personal representatives of the latter, whether ((such))
the actions arise on contract or otherwise, and whether or not ((such))
the actions would have survived at the common law or prior to the date
of enactment of this section((: PROVIDED, HOWEVER, That)).
(2) In addition to recovering economic losses for the estate, the
personal representative ((shall only be)) is entitled to recover on
behalf of those beneficiaries identified under RCW 4.20.060 any noneconomic
damages for pain and suffering, anxiety, emotional distress, or humiliation personal
to and suffered by ((a)) the deceased ((on behalf of those
beneficiaries enumerated in RCW 4.20.020, and)) in such amounts
as determined by a jury to be just under all the circumstances of the case. Damages
under this section are recoverable regardless of whether or not the
death was occasioned by the injury that is the basis for the action.
(3) The liability of property of spouses or domestic partners held by them as community property and subject to execution in satisfaction of a claim enforceable against such property so held shall not be affected by the death of either or both spouses or either or both domestic partners; and a cause of action shall remain an asset as though both claiming spouses or both claiming domestic partners continued to live despite the death of either or both claiming spouses or both claiming domestic partners.
(((2))) (4) Where death or an injury to
person or property, resulting from a wrongful act, neglect or default, occurs
simultaneously with or after the death of a person who would have been liable
therefor if his or her death had not occurred simultaneously with such death or
injury or had not intervened between the wrongful act, neglect or default and
the resulting death or injury, an action to recover damages for such death or
injury may be maintained against the personal representative of such person.
Sec. 4. RCW 4.20.060 and 2007 c 156 s 30 are each amended to read as follows:
(1) No action for a personal injury to any person
occasioning death shall abate, nor shall ((such)) the right of
action ((determine)) terminate, by reason of ((such)) the
death((,)) if ((such)) the person has a surviving ((spouse,
state registered domestic partner, or child living, including stepchildren, or
leaving no surviving spouse, state registered domestic partner, or such
children, if there is dependent upon the deceased for support and resident
within the United States at the time of decedent's death, parents, sisters, or
brothers; but such action may be prosecuted, or commenced and prosecuted, by
the executor or administrator)) beneficiary in whose favor the action
may be brought under subsection (2) of this section.
(2) An action under this section shall be brought by the personal
representative of the deceased((,)) in favor of ((such)) the
surviving spouse or state registered domestic partner((, or in favor of the
surviving spouse or state registered domestic partner)) and ((such))
children((, or if)). If there is no surviving spouse ((or)),
state registered domestic partner, ((in favor of such child)) or
children, ((or if no surviving spouse, state registered domestic partner, or
such child or children, then)) the action shall be brought in favor
of the decedent's:
(a) Parents((, sisters, or brothers who may be dependent upon
such person for support, and resident in the United States at the time of
decedent's death)) if the parents are financially dependent upon the
decedent for support or if the parents have had significant involvement in the
decedent's life; or
(b) Sisters or brothers who are financially dependent upon the decedent
for support if there is no spouse, state registered domestic partner, child, or
parent.
(3) In addition to recovering economic losses, the persons identified in
subsection (2) of this section are entitled to recover any noneconomic damages
personal to and suffered by the decedent including, but not limited to, damages
for the decedent's pain and suffering, anxiety, emotional distress, or
humiliation, in such amounts as determined by a jury to be just under all the
circumstances of the case.
(4) For the purposes of this section:
(a) "Financially dependent for support" means substantial
dependence based on the receipt of services that have an economic or monetary
value, or substantial dependence based on actual monetary payments or
contributions; and
(b) "Significant involvement" means demonstrated support of an
emotional, psychological, or financial nature within the relationship, at or
reasonably near the time of death, or at or reasonably near the time of the
incident causing death. When determining if the parents have had
significant involvement in the child's life, the court shall consider, but not
be limited to, objective evidence of personal, verbal, written, or electronic
contact with the child, and in-person interaction with the child during
holidays, birthdays, and other events.
Sec. 5. RCW 4.24.010 and 1998 c 237 s 2 are each amended to read as follows:
(1) A ((mother or father, or both,)) parent
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)) or
a parent who is financially dependent on a minor child for support or
who has had significant involvement in the minor child's life, may maintain
or join ((as a party)) an action as plaintiff for the injury or death of
the child.
(2) Each parent, separately from the other parent, is
entitled to recover for his or her own loss regardless of marital status, even
though this section creates only one cause of action((, but if the
parents of the child are not married, are separated, or not married to each
other damages may be awarded to each plaintiff separately, as the trier of fact
finds just and equitable)).
(3) If one parent brings an action under this section and the other parent is not named as a plaintiff, notice of the institution of the suit, together with a copy of the complaint, shall be served upon the other parent: PROVIDED, That notice shall be required only if parentage has been duly established.
Such notice shall be in compliance with the statutory requirements for a summons. Such notice shall state that the other parent must join as a party to the suit within twenty days or the right to recover damages under this section shall be barred. Failure of the other parent to timely appear shall bar such parent's action to recover any part of an award made to the party instituting the suit.
(4) In ((such)) an action under this
section, in addition to damages for medical, hospital, medication expenses,
and loss of services and support, damages may be recovered for the loss of love
and companionship of the child and for injury to or destruction of the
parent-child relationship in such amount as, under all the circumstances of the
case, may be just.
(5) For the purposes of this section:
(a) "Financially dependent for support" means substantial
dependence based on the receipt of services that have an economic or monetary
value, or substantial dependence based on actual monetary payments or
contributions; and
(b) "Significant involvement" means demonstrated support of an
emotional, psychological, or financial nature within the relationship, at or
reasonably near the time of death, or at or reasonably near the time of the
incident causing death. When determining if the parents have had significant
involvement in the child's life, the court shall consider, but not be limited
to, objective evidence of personal, verbal, written, or electronic contact with
the child, and in-person interaction with the child during holidays, birthdays,
and other events.
NEW SECTION. Sec. 6. This act applies to all causes of action that are based on deaths occurring on or after the effective date of this act.
NEW SECTION. Sec. 7. (1) On December 1, 2011, and every December 1st thereafter, the risk management division within the office of financial management shall report to the house of representatives ways and means committee, the house of representatives judiciary committee, the senate ways and means committee, and the senate government operations and elections committee, or successor committees, on the incidents covered by this act that involve state agencies.
(2) On December 1, 2011, and every December 1st thereafter, each local government risk pool or local government risk management division, or the equivalent in local governments, shall report to the legislative body of the local government on the incidents covered by this act that involve the local government.
(3) This section expires December 2, 2016.
NEW SECTION. Sec. 8. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."
Correct the title.
EFFECT: The striking amendment, as compared to the underlying bill, makes the following changes:
· Removes the provisions that eliminate the joint and several liability of the state and its political subdivisions in actions based on a parent's significant involvement in a child's life.
· Provides that the liability of a governmental entity in a wrongful death action that is based on a parent's significant involvement in a child's life is limited to situations where the entity's acts or omissions are negligent and a proximate cause of the death of the claimant, and where the entity is not otherwise immune or where the entity's liability is not otherwise limited by statute or case law.
· Requires the court, when determining whether a parent had significant involvement in a child's life, to consider objective evidence of personal, verbal, written, or electronic contact with the child and in-person interaction with the child during holidays, birthdays, and other events.
· Provides that in a wrongful death action based on a parent's significant involvement in a child's life, the parent may recover for the decedent's student loan balances for which the parent is obligated as a cosignor or guarantor, except loan balances that are eligible for a complete discharge upon the death of the borrower.
· Provides that the act applies to actions that are based on deaths occurring on or after the effective date of the act.
· Makes other clarifying and technical amendments.
As compared to the version of the bill as previously passed the House (H-5513.E), the striking amendment:
· Removes the provisions creating the Local Government Liability Reimbursement Account (Account) to reimburse liability and defense costs incurred by local governments as a result of the act, and removes the temporary surcharges on traffic infractions and superior court civil filing fees that funded this Account.
· Adds a section stating that the liability of a governmental entity in a wrongful death action that is based on a parent's significant involvement in a child's life is limited to situations where the entity's acts or omissions are negligent and a proximate cause of the death of the claimant, and where the entity is not otherwise immune or where the entity's liability is not otherwise limited by statute or case law.
--- END ---