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Cavazos v. Franklin2/22/1994
are entitled to sue on their own behalf for the death of their child. The Moen court, at pages 599-600, recognized that "an unborn viable child traditionally has legal existence, personality and rights . . .". The Rankin court, at pages 291-92, recognized that it was harsh, untrue, and unjustified to deny the separate legal existence of a viable fetus.
Moreover, our conclusion that a viable unborn child's causes of action survive to his or her personal representatives is consistent with the growing majority rule, adopted by 32 jurisdictions to date, that a viable unborn child is a "person" under state wrongful death statutes.
Ms. Franklin raises the objection that a personal representative is barred from maintaining both a wrongful death action and a survival action. This is not true. Both causes of action are distinct, and spring from the same wrongful act which inflicts injury on both the child and its parents. Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. 400, 404, 30 P. 714 (1892); Masunaga v. Gapasin, 52 Wash. App. 61, 64, 757 P.2d 550 (1988). See Warner, at 179. If the parents meet the statutory criteria, they have an election of remedies and may sue under either the wrongful death statute (RCW 4.20.010) or the parental claim for death of a child statute (RCW 4.24.010). Machek v. Seattle, 118 Wash. 42, 45, 48, 203 P. 25 (1921); Masunaga v. Gapasin, 57 Wash. App. 624, 627-28, 790 P.2d 171, review denied, 115 Wash. 2d 1012 (1990). However, in addition to either of the remedies just mentioned, the administrator can maintain an entirely independent survival action. Machek, at 48.
Ms. Franklin also raises the objection that allowing both a wrongful death action and a survival action would grant an unfair double recovery to the plaintiffs. As noted above, the same wrongful act causes two distinct classes of injury : injury to the child in its own right and injury to the parents.
Moreover, the damages allowable under each cause of action are distinct. Under RCW 4.20.046, the decedent's administrator is entitled to maintain an action for the following damages: disability with its attendant permanent loss of earning power; burial and funeral expenses; medical and hospital expenses; and general damages to the decedent's estate. Warner v. McCaughan, supra at 180, 184. However,
the statute expressly prohibits recovery for the decedent's pain and suffering. Warner, at 182. On the other hand, parents suing in their own right are entitled to recover damages for pain and suffering under RCW 4.24.010. Thus, the damages are not duplicative.
We conclude that a viable unborn child's cause of action survives to the personal representative of his or her estate.
We affirm.
Disposition
Holding that the baby's cause of action for personal injuries survived to his personal representative, the court affirms the denial.
Judges Footnotes
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