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Carrasco v. State3/8/2001
AFFIRMED
The trial court awar ded summary judgment in favor of appellees State of Arizona and Child Protective Services (CPS) in a wrongful death action brought by appellant Theresa Carrasco, personal repr esentative of decedent Sky Andres Carrasco. Theresa argues the trial court erred in finding that because Sky's mother, a statutory beneficiary under A.R. S. § 12-612(A), survived him, Theresa was not authorized to recover on behalf of Sky's estate. Because we agree with the trial court that the estate is not an authorized beneficiary, we affirm.
BACKGROUND
In reviewing the grant of summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered. Link v. Pima County, 193 Ar iz. 336, 12, 972 P.2d 669, (App. 1998). And we independently determine whether there are any genuine issues of material fact and whether the court properly applied the law. Toy v. Katz, 192 Ar iz. 73, 85, 961 P. 2d 1021, 1033 (App. 1997).
On June 1, 1997, three-month-old Sky Carrasco was pronounced dead of unknown causes. His mother, Nancy, was charged with intentional child abuse under circumstances likely to produce death or serious physical injury and first-degr ee murder. Nancy pled guilty to the lesser charge of criminally negligent child abuse under circumstances likely to produce death or serious physical injury based on her failure to obtain prompt medical care for Sky. Theresa Carrasco, Sky's grandmother, was appointed personal representative of Sky's estate. She sued CPS on behalf of the estate and individually for Sky's wrongful death, alleging CPS had received a number of complaints from persons concerned about Sky's safety, but had taken no action to remove Sky from Nancy's home. Theresa did not seek any damages on behalf of Nancy.
CPS moved for summary judgment relying on Bowslaugh v. Bowslaugh, 126 Ar iz. 517, 617 P. 2d 25 (1979), for the proposition that the estate could not recover other damages because Nancy, a named statutory wrongful death beneficiary, had survived Sky. Theresa responded by claiming that Nancy was not a surviving beneficiary because her criminal responsibility for Sky's death severed her parental rights, and the slayer statute, A. R.S. § 14- 2803, required that the court treat Nancy as though she had predeceased Sky for purposes of the wrongful death action. Theresa also claimed that changes in legal doctrines had eroded the authoritative weight of Bowslaugh.
The trial court concluded that Nancy remained a surviving parent and an eligible wrongful death beneficiary. And, the tr ial court, assuming that the slayer statute applied, concluded Theresa had failed to come forward with sufficient facts indicating that Nancy had feloniously and intentionally killed Sky, which the slayer statute requir es for disqualification. The trial court, therefore, granted summary judgment in favor of CPS and this appeal followed.
DISCUSSION
Section 12-612(A) designates the only proper beneficiaries of a wrongful death action:
An action for wrongful death shall be brought by and in the name of the surviving husband or wife or personal repr esentative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate. (Emphasis added.)
Our supreme court has interpreted the phrase " if none of these survive" to mean that "' he estate . . . is a beneficiary only if none of those named beneficiaries survive . '" Bowslaugh, 126 Ariz. at 518, 617 P. 2d at 26, quoting Solomon v. Harman, 107 Ar
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