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Federated Services Insurance v. Personal Representative of Estate of Norberg6/12/2000
rt are recoverable in a wrongful death action, but not in a survival action. Wagner v. Flightcraft, Inc., 31 Wn. App. 558, 568, 643 P.2d 906 (1982). In a survival action, the only allowable recovery is 'the net accumulations which the estate would have acquired if the decedent had survived to the expected life time.' Wagner, 31 Wn. App. at 568, n.2.
Typically, net accumulations are the decedent's net earnings over a normal life span, calculated by determining the decedent's probable gross earnings, subtracting personal and family support expenditures, and then reducing the figure to present value. Bingaman v. Grays Harbor Comm'ty Hosp., 37 Wn. App. 825, 685 P.2d 1090 (1984), rev'd in part on other grounds, 103 Wn.2d 831, 699 P.2d 1230 (1985). In this case, the arbitration award also included David's prospective $400,000 inheritance in the net amount he would have probably accumulated and passed on to his heirs had his life not been shortened.
The net accumulations method is an appropriate measure only if it carries out the essential function of the Survival of Actions statute. That essential function is not to create a separate claim for survivors, but to preserve causes of action that a person could have maintained had he not died. Woolridge v. Woolett, 96 Wn.2d 659, 662-63, 638 P.2d 566 (1981).
If David had not died, he would have been able to maintain his own personal injury suit against Federated. In that suit, he would have recovered future earnings lost due to his injuries. Therefore, future earnings are appropriately used to calculate an award in a survival action. But in that same personal injury suit, David could not have recovered for loss of prospective inheritance. As a survivor he would still be eligible to receive the inheritance. Because David could not have recovered for loss of inheritance if he were still alive, his estate cannot recover David's loss of inheritance in a survival action.
Further supporting our conclusion is the fact that we have found no case from any jurisdiction approving, as a component of an award in a wrongful death or survival action, a prospective inheritance or gift not yet received by the decedent. We have found no case where net accumulations include sums that are not attributable to the decedent's own efforts, initiative, and skill. The facts of this case show how incorporating an expectancy of future gratuitous acquisitions into net accumulations can lead to an unjust result. As the dissenting arbitrator pointed out, the award of $400,000 for the loss of David's future inheritance from his parents would go to those same parents, who are the heirs and personal representatives of David's estate. 'To award an amount for inheritance lost, which in this case would go to the parents, would compensate for something which has not been lost, would be unjust enrichment to the parents and would be, in effect, an award for wrongful death for which they do not qualify under the statute.'
In summary, Federated has identified an error of law on the face of the arbitration award. In a wrongful death survival action, the decedent's estate may not recover damages for the decedent's loss of a probable future inheritance. By making such an award, the arbitrators exceeded their powers.
The superior court's order vacating the award for lost prospective inheritance is affirmed.
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