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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6
Dissent by J.M. Johnson, J.

                                         No. 85679-6

       J.M. JOHNSON, J. (dissenting) -- In the unfortunate event of the death 

of a child, the legislature has created a statutory right to sue for wrongful 

death only for a parent "who has regularly contributed to the support of his or 

her minor child."        RCW 4.24.010.  The plain language and remedial 

provisions of this statute demonstrate that a parent must fulfill an ongoing 

responsibility to support the minor child in order to recover.            The claimant 

here, Amy Kozel, lived clear across the country in Florida for the five years 

preceding the death of her daughter, Ashlie Bunch.  She had no relationship 

with Ashlie during this period, apart from a few brief encounters.  Kozel did 

not even attend Ashlie's memorial service.  As a result, it cannot be said that 

Kozel fulfilled her  responsibility to       "regularly contribute[]     to  [Ashlie's]

support," entitling her to recover in a wrongful death action.

       Furthermore, the statement of intent adopted by the legislature in RCW  

Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

4.24.010  broadly  defines support to include any form of emotional, 

psychological, or financial support.  This legislative intent requires each 

claiming parent to have maintained some significant connection with the child 

during his or her life.  Of course, a parent would not be disqualified for failing 

to maintain this connection due to circumstances outside the parent's control, 

such as child abduction.  The majority also fashions an inequitable remedy 

here in that it subjects McGraw Residential Center to an even greater amount 

of potential liability after settlement of a qualifying parent's claim.  Thus, I 

would affirm the Court of Appeals in rejecting Kozel's motion to intervene as 

a necessary party and respectfully dissent.

                                       Analysis

       "'[C]auses of action for wrongful death are strictly a matter of 

legislative grace and are not recognized in the common law.'"  Philippides v. 

Bernard, 151 Wn.2d 376, 390, 88 P.3d 939 (2004) (quoting Tait v. Wahl, 97 

Wn. App. 765, 771 987 P.2d 127 (1999)).  As a result, the wrongful death 

statute in RCW 4.24.010 should be strictly construed.  See McNeal v. Allen, 

95 Wn.2d 265, 269, 621 P.2d 1285 (1980) (statutes in derogation of the 

common law must be strictly construed).  This dictates that no change in law 

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will be found by a court unless the legislature has expressed a clear intent to 

the contrary.  Id.  Even under a simple reading of legislative intent, RCW 

4.24.010 requires     a parent making a claim to maintain some kind of 

connection with the child until close to the time of death in order to recover 

for a wrongful death to the child.1

       The plain language of RCW 4.24.010 specifies that "[a] mother or 

father . . . who has regularly contributed to the support of his or her minor 

child" may recover "as plaintiff for the injury or death of the child."  Where 

the  legislature has not defined a particular term in a statute, a standard 

dictionary definition controls.  See State v. Watson, 146 Wn.2d 947, 954, 51 

P.3d 66 (2002).  After accepting the dictionary definition of "regular" from 

       1 The majority opinion argues for a "fair" reading of the statute in order to 
effectuate the legislature's intent.  Majority at 8.  The rationale of this approach is that 
strict construction of statutes in derogation of the common law often impedes social 
progress without any justification in principle.  Id. at 7 n.2.  Basic canons of statutory 
interpretation, however, such as the derogation of common law principle, advance 
important goals of judicial decision making.  First, these canons provide simple and
straightforward methods of statutory interpretation that minimize judicial decision-making 
costs, litigation costs, and legal uncertainty.  See Adrian Vermeule, Interpretive Choice, 
75 N.Y.U. L. Rev. 74, 128-29 (2000).  Second, the canons provide content-independent 
methods of deciding a case without injecting one's own personal views regarding optimal 
public policy in a given area.  See Jonathan R. Macey & Geoffrey P. Miller, The Canons of 
Statutory Construction and Judicial Preferences, 45 Vand. L. Rev. 647, 663 (1992).  
Thus, RCW 4.24.010 should be strictly construed as a statute enacted in derogation of the 
common law, but a simple reading of legislative intent without application of the 
derogation of common law principle would produce the same result.
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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

the Court of Appeals, the majority alters its meaning by relying on the present 

perfect tense, "has regularly contributed," to  claim  that the statute allows 

parents to recover even if they did not provide frequent support up to a time 

close to the child's death.  This is directly contrary to legislative language and

intent in the statute.  Majority at 9-10.  The new interpretation of the statute

also ignores part of the dictionary definition of the word "regular," which 

requires the support to be unvarying and constant.         Majority at 9.    Thus, any 

support here that arguably occurred in the distant past cannot be considered 

"regular" because it fails to meet the unvarying and constant requirement.

       Additionally, our proposed reading of RCW 4.24.010 is consistent with 

the remedial provisions specified  by the legislature.          "Statutory provisions 

must be read in their entirety and construed together, not piecemeal."  ITT 

Rayonier, Inc. v. Dalman, 122 Wn.2d 801, 807, 863 P.2d 64 (1993).  Here, 

RCW 4.24.010 provides that damages may be recovered for "medical, 

hospital, medication expenses, and loss of services and support," and also for 

"the loss of love and companionship of the child and for injury to or 

destruction of the parent-child relationship."  RCW 4.24.010.

       If a parent is no longer in contact and has not "regularly contributed" to 

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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

the support of a child, it is difficult to measure any loss of services, support, 

love, companionship, or relationship.  Furthermore, the injury or death would 

not have caused the loss of love, companionship, or relationship because the 

parent had long ago voluntarily decided to stop supporting the child before 

the occurrence of death.  As a result, a parent who provided support in the 

distant past has not "regularly contributed" under RCW 4.24.010 if  the 

frequent support did not continue until a time close to the time of death.

       The legislature's statement of intent further confirms this reading of the 

plain language of the statute.  In its statement of intent, the legislature defined 

support to include any type of emotional, psychological, and financial 

support.  With the broad definition of "support" provided by the legislature in 

its statement of intent, it is not burdensome to require a claiming parent to 

maintain a meaningful connection to the child over the course of the child's 

lifetime.

       Lastly,  the majority claims that requiring ongoing parental support 

would lead to absurd results in situations where the child is kidnapped or the 

parent falls into a coma.  The hypothetical of absurd results, however, does 

not take other conventions of law into account in determining the effect of the 

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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

statute.  See John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 

2387,  2465-76  (2003) (explaining that modern textual interpretation often 

relies on background legal conventions to avoid seeming absurdities).  Under 

RCW 4.24.010, a parent is unlikely to be penalized for failure to fulfill an 

ongoing responsibility due to circumstances outside his or her control.  There 

are well-established defenses in contract law in circumstances of impossibility

and incapacity.  Under RCW 4.24.010, courts would likely recognize that an 

abducted child or incapacitated parent suspends the requirement of 

maintaining some connection to the child until a time close to the time of 

death.

       Here, Steven Bunch claims that Kozel did not provide any financial 

support and had no relationship with Ashlie from the time Ashlie moved to 

live with him in 2003 and her death in 2008.  Kozel lived clear across the 

country in Florida for the five years preceding Ashlie's death.  Bunch asserts 

that  Kozel had only  brief contact with Ashlie on four separate occasions 

during this period.  Bunch claims that Kozel sent Ashlie a Christmas present 

in December 2004, and Kozel had one, five-minute phone conversation with 

Ashlie in December 2007.  Ashlie also called Florida to speak with her sister 

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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

on two occasions, and Kozel refused Ashlie's requests.  As can be seen, these 

anecdotal interactions do not amount to frequent emotional, psychological, or 

financial support.  Apart from these brief encounters, Kozel did not send any 

birthday cards, holiday cards, or presents to Ashlie.  Furthermore, Kozel 

never called Ashlie, even on holidays.

       Bunch also asserts that Kozel had made it clear to him that she did not 

want Ashlie in Florida.  When Bunch called Kozel to update her on Ashlie's 

condition, she reportedly replied, "[W]ell, good luck with that."               Clerk's 

Papers (CP) at 71.  Kozel also chose not to attend the memorial service for 

Ashlie.  In  response,  Kozel only rebutted Bunch's specific claims with 

general statements alleging she kept in touch with Ashlie and "spoke with her 

regularly by phone, at least once a week, until she was admitted to inpatient 

facilities."   CP  at 57.   Considering that Ashlie was admitted to inpatient 

facilities as early as 2003, these general statements from Kozel are not 

sufficient to rebut the more specific statements by Bunch for purposes of a 

CR 19(a) motion.        Thus, I would affirm the Court of Appeals and deny 

Kozel's motion to intervene as a necessary party.

                                      Conclusion

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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

       I would hold that RCW 4.24.010 requires a parent to fulfill an ongoing 

rule and responsibility to support a  minor child in order to recover in a 

wrongful death or personal injury action.  Under RCW 4.24.010, a parent 

must provide frequent support to the child until a time close to the time of 

injury or death.  Of course, a parent would not be penalized for failing to 

provide this support due to circumstances outside the parent's control.  Here, 

Kozel failed to show that she provided frequent support to Ashlie up to a time 

in close proximity to the time of Ashlie's death.  Thus, I would affirm the 

Court of Appeals and deny Kozel's motion to intervene under CR 19(a).

       AUTHOR:

              Justice James M. Johnson

       WE CONCUR:

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Estate of Bunch v. McGraw Residential Ctr., No. 85679-6

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