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Under the Washington comparative fault statute, a plaintiff ’s damages are reduced by their percentage of fault. See RCW 4.22.005. As such, a plaintiff’s damages are reduced by any contributory fault or negligence chargeable to the plaintiff according to the percentage determined by the trier of fact. Id. In determining whether a person was contributorily negligent, the inquiry is whether that person failed to use ordinary care or acted in some way that a reasonably careful person would not have under the existing facts or circumstances. Huston v. First Church of God, 46 Wn. App. 740, 732 P.2d 173 (1987).
Additionally, a plaintiff ’s assumption of the risk reduces damages under the concept of comparative fault but does not preclude recovery. South v. A. B. Chance Co., 96 Wn.2d 439, 440, 635 P.2d 728 (1981); see also, RCW 4.22.005 and 4.22.015.
The contributory fault of one spouse shall not be imputed to the other spouse or the minor child of the spouse to diminish recovery in an action by the other spouse or the minor child of the spouse, or his or her legal representative, to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse. RCW 4.22.020.
Statutes of Limitation
The statute of limitations for personal injury is three years. RCW 4.16.080.
An insurer shall not continue to negotiate for settlement with an unrepresented claimant until the insurer has given the claimant written notice that the time limit for the statute of limitations may be expiring. WAC 284-30-380(5). Such notice must be given within 30 days to first party claimants, and 60 days to third party claimants. Id.
Wrongful Death Actions
In Washington, all causes of actions for wrongful death and personal injuries shall survive to the personal representative (“PR”) of the deceased. RCW 4.20.046(1); RCW 4.20.060. The PR is entitled to recover economic damages on behalf of the decedent’s estate. RCW 4.20.046(2). The PR is only entitled to recover noneconomic damages (i.e., pain and suffering, anxiety, emotional distress, or humiliation) suffered by the deceased on behalf of the beneficiaries identified in RCW 4.20.020. Id. Noneconomic damages are recoverable whether or not the death was occasioned by the injury that is the basis of the action.
Under RCW 4.20.020, all actions shall be for the benefit of the spouse, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused. If there is no spouse, state registered domestic partner, or such child or children, such action may be maintained for the benefit of the parents or siblings of the deceased. Further, recent legislation abolished the requirement that beneficiaries be residents of the United States or financial dependent on the decedent at the time of the decedent’s death.
Under RCW 4.20.060, the special survival statute, actions for personal injuries the decedent may have had while the same may not have resulted in their death, survives to the beneficiaries identified in RCW 4.20.020, supra. Similar to the general survival statute under RCW 4.20.046, the special survival statute allows for recovery of economic and noneconomic damages.
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