Paine Hamblen fights old statute in duck-boat crash suit
Seattle tour operator wants wrongful death action tossedMarch 10th, 2016
A Spokane law firm that filed a wrongful death lawsuit on behalf of the family of a Korean woman killed in last September’s Seattle duck boat crash describes a law that attorneys for the tour company are using to try to dismiss the case as racist and xenophobic.
Tour company attorneys contend a Washington law prohibits non-U.S. residents from filing claims against individuals or companies in this country and are using the law, believed by the Spokane law firm to be the only one of its type in the country, to seek to avoid paying claims stemming from the accident.
Paine Hamblen LLP filed the wrongful death claim in December against Ride the Ducks of Seattle LLC, a subsidiary of Missouri-based Ride the Ducks International LLC., in December. The attorneys for the tour company filed their response in federal court last week in Seattle, says Paine Hamblen attorney William C. Schroeder.
Paine Hamblen represents the estate of Ha Ram Kim, a 20-year-old South Korean student who had a U.S. student visa and was enrolled in a study abroad program at North Seattle College. Kim, who was 20, was one of three daughters to Kim Soon Wan and his wife, Jeong Ju Hee, Schroeder says.
She was killed roughly a week after arriving in Seattle, Schroeder says.
The amphibious vehicle crashed into a motorcoach in which Kim was riding on the Aurora Bridge in Seattle. Kim was one of four students killed in the crash, and more than 60 people reported injuries ranging from minor to serious.
Schroeder says Paine Hamblen received exactly the response it thought it would get from attorneys representing the tour boat companies.
He says he was floored to discover while researching the case a Washington state law he says was established during the early days of Washington statehood.
“Imagine your child going abroad to study, is tragically killed, and you and your loved ones have no legal recourse because you all are not citizens of that country,” Schroeder says. “That’s not right. And ultimately we hope the Legislature will change it.”
Tour company attorneys write in their request for dismissal, “Under Washington law, a parent may bring a claim for wrongful death of an adult child only if the parent shows financial dependence on the decedent and shows U.S. residency at the time of the decedent’s death. The complaint alleges that both parents are residents of Korea, not the U.S., and doesn’t allege financial dependence. Can they bring a wrongful death claim? For the reasons above, plaintiff’s claims for outrage and wrongful death must be dismissed.”
Schroeder says Paine Hamblen has until the end of March to file its response to attorneys for the tour companies. The U.S. District Court’s Western District of Washington in Seattle has jurisdiction over the case.
Attorneys for the tour companies cite RCW 4.20.020. Washington’s wrongful death, beneficiaries of action statute reads, “Every action shall be for the benefit of the wife, husband, state registered domestic partner, child or children including stepchildren, of the person whose death shall have been so caused. If there be no wife, husband, state registered domestic partner, or such child or children, such action may be maintained for the benefit of the parents, sisters, or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his or her death.”
Says Schroeder, “From what we can see, Washington is the only state in the U.S. that eliminates noncitizens from pursuing such relief.”
Originally called the DUKW, the vehicle that crashed was first used as an amphibious landing craft in World War II. The vehicle’s main use was to transport supplies from ship to shore during amphibious operations. Two World War II veterans, Bob Unger and Mel Flath, opened the first U.S. Duck tour company in Wisconsin in 1946.
In Seattle, on Sept. 24, an MCI motorcoach operated by CWA Inc., was traveling south in the center lane on the Aurora Bridge with 50 passengers aboard. At the same time a 1945 duck boat with 36 passengers aboard was traveling north on the same bridge, says the preliminary report from the National Transportation Safety Board.
“As the two vehicles approached each other, the DUKW driver reported hearing a loud ‘bang’ as his vehicle experienced a mechanical failure at the left front axle assembly, causing him to lose control,” the NTSB report says. “The DUKW vehicle crossed the center line into the oncoming traffic in the southbound lanes. The front of the DUKW struck the left side of the motorcoach near the driver’s compartment.”
An axle housing modification described in an October 2013 notice issued by Ride the Ducks International—which refurbishes and modifies duck boat vehicles into passenger-carrying tour vehicles for commercial use—is being reviewed as part of the NTSB’s investigation.
Portland-based attorney Dan Williams approached Schroeder last year about representing Ha Ram Kim’s family. Williams and Schroeder are friends from before they graduated from Gonzaga Prep High School. Williams’ wife, Youn Hee Lee, babysat Ha Ram Kim when she was a child.
Schroeder says representing Ha Ram Kim’s family has given him a clearer perspective about the racist and xenophobic attitudes towards noncitizens that existed in the state’s earliest years.
“Right here,” says Schroeder, producing a law book titled, “Session Laws of the State of Washington” from 1909.
“Section one,” says Schroeder. “If deceased leaves no widow or issue, then his parents, sisters, or minor brothers who may be dependent upon him for support, and who are resident within the United States at the time of his death, may maintain an action for damages against the person whose duty it was, at the time of the injury.”
Anti-Asian sentiment was strong and pervasive in the early years of the formation of the state, Schroeder says. Schroeder says the firm is in the process of strategizing what steps to approach next in its response to the tour company.
“I suspect this is a law that if more people knew about it, would find remarkably offensive. I know I do,” he says.