February 17, 2008 in City

Bill lifts age limit for wrongful-death suits

Richard Roesler Staff writer
 

OLYMPIA – Working into the early morning hours Saturday, the state House of Representatives approved a controversial bill that would allow parents to file wrongful-death lawsuits for the death of a child, no matter how old.

“This morning, right this wrong,” Rep. Timm Ormsby, D-Spokane, urged bleary-eyed lawmakers shortly after 1 a.m.

Under Washington law, parents or siblings can sue for the loss of a child younger than age 18. When the deceased is 18 or older, they generally can’t, unless the child was providing financial support. HB 1873 would allow a lawsuit for children 18 and older, so long as there was “significant involvement” in the child’s life.

Ormsby’s bill, which now goes to the Senate, was prompted by the deaths of two local young men.

“You’re shocked in the devastation of losing your child, and then you find out you have no rights on top of that,” said Bridgett Malmoe, a Spokane hairstylist.

Her son, Devin Malmoe, died in December 2006, shortly after turning 18. He was riding in a tractor-trailer with his stepfather when another rig crossed the centerline and hit them head-on. Both trucks burned to the axles, and Devin, his stepfather and the other driver died.

Critics of the bill – including dozens of House Republicans – argue that Ormsby’s proposal throws out more than a century of law and could cost taxpayers millions of dollars in additional lawsuits.

Since territorial times, the law has been designed to compensate families who lose the financial support of a loved one, said Rep. Jay Rodne, R-North Bend. By allowing lawsuits by people with solely an emotional or psychological tie to an adult victim, he said, lawmakers would dramatically expand the possibility of litigation.

Yes, parents and siblings suffer at the death of a child of any age, Rodne said. But “no amount of money is ever going to bring that loved one back or ease that pain,” he said.

And taxpayers will feel the hit, Rep. Gary Alexander predicts, in cases where the government is the defendant. The state’s tort liability fund has risen from about $1 million a year in the 1960s to well over $157 million today, he said. He estimates that the change will cost the state as much as $30 million more a year in settlements – money that instead could go to schools, medical care or foster children.

Among those opposed to the bill: the state attorney general’s office and groups representing Washington cities and counties. Supporting it: the state trial lawyers association.

Malmoe and another mother, Suzanne Kirkpatrick, say it’s not about the money. Malmoe, in fact, has settled her case.

“It’s about holding people accountable for their mistakes,” she said. “I never get to see my son again.”

Kirkpatrick’s son, Tony Burkhardt, died three years ago after what Kirkpatrick says was the failure of a Spokane-area clinic to realize that he was dying of a diabetic reaction. The Eastern Washington University student was told he had the flu and sent home, where he died.

Halting the possibility of suing for a wrongful death simply because a child turns 18, Ormsby says, ignores the reality that close family relationships tend to continue long after the child reaches the age of majority.

Rodne tried unsuccessfully to tack on several amendments, including one that would have set the age limit at 26. But the point of the bill, said Rep. Pat Lantz, D-Gig Harbor, “is to remove the arbitrariness of an age limit.”

Malmoe and Kirkpatrick have walked the marble halls in Olympia for two years, making their case to lawmakers. Malmoe carries a folder of photos of her son. One shows a chubby toddler, another a boy hugging his grinning sister. There he was, graduating from high school, or playing in Hoopfest, or smiling proudly in his varsity football uniform.

The final photos in the album show a young boy, eating a Popsicle and staring into a sunny sky, and the athletic young man he became, sitting on a rock and grinning into the camera.

“Put yourself in the situation, if you have a child,” she said. “That was my only son.”

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