1 The Honorable Jack Nevin

2 Hearing Date: November 3, 2017 at 9:00 a.m.

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10 SUPERIOR COURT OF THE STATE OF WASHINGTON
11 FOR PIERCE COUNTY
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14 EARL ROSKIE, Personal Representative of NO. 17-2-10028-1
15 the ESTATE OF MADELINE ROSKIE,
16 DEFENDANT PUGET SOUND ENERGY,
17 Plaintiff, INC.S MOTION TO DISMISS
18 PLAINTIFFS FIRST AMENDED
19 v. COMPLAINT
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21 PUGET SOUND ENERGY, INC., a
22 Washington corporation; and JOHN DOES
23 #1-4, fictitious names for unidentified
24 persons,
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26 Defendants.
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29 I. RELIEF REQUESTED
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31 Defendant Puget Sound Energy, Inc. (PSE) requests this Court to dismiss Plaintiffs
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33 First Amended Complaint (FAC).
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35 II. STATEMENT OF FACTS
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37 Plaintiff alleges that decedent Madeline Roskie died as a result of being electrocuted. See
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39 FAC 3.2-3.3. However, the cause of death on decedent Roskies official State of Washington
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41 Department of Health Certificate of Death (Death Certificate) is not electrocution or
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43 anything remotely similar. It is UNDETERMINED. Wilner Decl., Ex. A. The Death
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45 Certificate indicates that an autopsy was performed and that the findings were available to

DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 1 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292
 1 complete the cause of death determination. Id. Still, the cause of death was not something that
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3 could be determined. Id.
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5 III. ISSUE PRESENTED
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7 Should this wrongful death claim be dismissed when, by operation of RCW 70.58.180,
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9 the cause of the decedents death is deemed something that cannot be determined?
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11 IV. EVIDENCE RELIED UPON
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13 This motion is based on Plaintiffs FAC and decedent Roskies Death Certificate.1
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15 V. ARGUMENT
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17 A. Standard for Motions to Dismiss
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19 A CR 12(b)(6) motion is properly granted when it appears from the face of the complaint
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21 that the plaintiff would not be entitled to relief even if he or she proves all the alleged facts
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23 supporting the claim. Citizens for Rational Shoreline Planning v. Whatcom Cty., 172 Wn.2d
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25 384, 389 (2011). A courts dismissal for failure to state a claim weeds out complaints where,
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27 even if what plaintiff alleges is true, the law does not provide a remedy. McCurry v. Chevy
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29 Chase Bank, FSB, 169 Wn.2d 96, 102 (2010).
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31 B. The Cause of Death Determination in a Washington State Death Certificate Is
32 Deemed, by Statute, to be Legally Conclusive on the Cause of the Decedents Death.
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1. Washingtons Death Certificate Statute: RCW 70.58.180
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35 In Washington, a duly-issued death certificate has special legal significance. A state
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37 statute provides that the cause of death as stated in a Washington State Certificate of Death
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The trial court may take judicial notice of public documents on a motion to dismiss if the authenticity of
41 those documents cannot be reasonably disputed. Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838,
42 844 (2015) (citing Berge v. Gorton, 88 Wn.2d 756, 763 (1977). Here, authenticity of decedent Roskies
43 publicly available Death Certificate cannot be reasonably disputed. Indeed, courts in Washington take
44 judicial notice of death certificates in ruling on pretrial motions. See Estate of Hawkins v. M/V SAHARA,
45 926 F. Supp. 2d 1209, 1216-17 (2013) (applying Washingtons death certificate statute).

DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 2 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292
 1 shall be the legally accepted cause of death. RCW 70.58.180 (emphasis added). The relevant
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3 portion of the statute quoted in full is as follows:
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5 The cause of death, the manner and mode in which death
6 occurred, as noted by the coroner or medical examiner, or if
7 none, the prosecuting attorney or the health officer and
8 incorporated in the death certificate filed with the department
9 shall be the legally accepted manner and mode by which the
10 deceased came to his or her death and shall be the legally
11 accepted cause of death.
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13 Id. (emphasis added).
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15 Four cases have applied this statute in published decisions. This includes one wrongful
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17 death case. All of the cases hold that, in light of RCW 70.58.180, the words used on the death
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19 certificate as to cause of death are conclusive on the issue.
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21 2. The Pertinent Case Law
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23 a. Lloyd v. Valley Forge Life Insurance
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25 Lloyd is a life insurance dispute in which the court ruled that the plaintiff was precluded
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27 by RCW 70.58.180 from contesting that the . . . cause of death was other than . . . as designated
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29 in the death certificate. Lloyd v. Valley Forge Life Ins. Co., C06-5325 FDB, 2007 WL
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31 2138756, at *2 (W.D. Wash. July 23, 2007). As a result, the court dismissed the case as a matter
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33 of law. Id.
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35 On reconsideration, the court reaffirmed its decision to dismiss the case based on legal
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37 effect of the death certificate, holding the certificate is conclusive on the issue in light of the
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39 clear-cut language of the statute, RCW 70.58.180. Lloyd v. Valley Forge Life Ins. Co., No. C06-
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41 5325 FDB, 2007 WL 2410010, at *2 (W.D. Wash. Aug. 20, 2007). The statute is clear in its
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43 language. Id. at *1. [T]he legislation means what it says. Id. Therefore, the only
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45 reasonable interpretation is that the death certificate shall be the legally accepted cause of

DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 3 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292
 1 death. Id. The court held that a partys attempt to contest the findings in a death certificate
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3 does not alter the conclusiveness of the death certificate. Id. (emphasis added).
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5 b. Goetz v. Life Insurance Company of North America
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7 Goetz is another insurance case in which the court applied the language of Washingtons
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9 death certificate statute, RCW 70.58.180, strictly and conclusively. Goetz v. Life Insurance
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11 Company of North America, No. 2:16-CV-0441-SMJ, 2017 WL 4185473, at *8-9 (E.D. Wash
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13 Sept. 21, 2017). In Goetz, the plaintiff sought accidental death benefits following the death of
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15 plaintiffs brother. Id. at *1. The issue in the case was whether the decedent had an epileptic
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17 seizure that precipitated the drowning. Id. If he did, benefits would not be owed. If he did not,
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19 benefits would potentially be owed. Id. The death certificate stated that the cause of death was
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21 drowning caused by presumed epileptic seizure. Id. (emphasis added). Citing Lloyd and
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23 the wrongful death case summarized below, the court in Goetz ruled that the language used on
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25 the death certificate is conclusive as written. Id. at *8. As such, the court held that RCW
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27 70.58.180 prohibits the plaintiff from arguing that the death was caused by anything other than
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29 drowning. Id. And, since the death certificate only said the drowning was due to a
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31 presumed epileptic seizure, the plaintiff was free to try to rebut that presumption without
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33 violating the statute. Id.
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35 c. Estate of Hawkins v. M/V SAHARA
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37 As noted above, Washingtons death certificate statute has been applied in a wrongful
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39 death case specifically to establish the decedents cause of death as a matter of law. In Estate of
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41 Hawkins v. M/V SAHARA, the plaintiff sought summary judgment on the entire element of
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43 causation, i.e., that the defendants conduct was the cause of the decedents death. See 926 F.
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45 Supp. 2d 1209, 1216 (W.D. Wash. 2013). The court declined to go that far because the factual

DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 4 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292
 1 circumstances surrounding what had happened to the decedent immediately before she died were
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3 too intertwined with questions about the defendants overall liability, i.e., did the defendant even
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5 play a role in bringing about the cause of death. Id. However, the court still took judicial notice
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7 of the cause of death itself as stated on the death certificate in light of RCW 70.58.180, and
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9 granted partial summary judgment to this limited extent pursuant to the statute. Id. at 1217
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11 (citing RCW 70.58.180). Again, the language of the death certificate was deemed conclusive on
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13 the issue. Id.
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15 d. Kincaid v. West Coast Life Insurance
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17 The only other relevant published case analyzing RCW 70.58.180 is Kincaid v. West
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19 Coast Life Ins. Co., No. CV-09-547-ST, 2010 WL 5621378 (D. Or. Oct. 14, 2010). The issue in
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21 Kincaid, a life insurance coverage dispute, was whether the Washington death certificate statute
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23 or the Oregon death certificate statute applied. Id. at *9. Although the court ultimately
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25 determined that the Oregon death certificate law applied in the case, it is the courts reasoning
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27 about why the two state laws conflict that remains pertinent here. The court found that the two
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29 state statutes clearly conflict regarding the evidentiary effect of the cause of death on a death
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31 certificate. Id. The court highlighted the shall be the legally accepted cause of death
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33 language of Washingtons death certificate statute (RCW 70.58.180) and noted that, [i]n
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35 contrast to the Washington statute, the Oregon death certificate statute only establishes prima
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37 facie evidence of the facts, that it is not conclusive, and that it therefore may be rebutted by other
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39 evidence. Id.
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DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 5 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292
 1 C. This Court Must Dismiss Plaintiffs Claims Because the Cause of Decedents Death
2 Is Legally Deemed to be UNDETERMINED.
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4 Plaintiffs wrongful death case fails as a matter of law when affording the legal
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6 significance to decedents Death Certificate that is owed under RCW 70.58.180Washingtons
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8 death certificate statute. To avoid dismissal, Plaintiff must be able to prove, at minimum, that
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10 the cause of death is electrocution. But here, by operation of state statute, the cause of death has
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12 legally been deemed UNDETERMINED. As in Lloyd, Goetz, Hawkins, and Kincaid, this
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14 official finding is conclusive on the issue. The language used in decedents Death Certificate
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16 must be applied as written, and cannot be contested after the fact by Plaintiff in this wrongful
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18 death action. And because the cause of death has been conclusively been deemed to be
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20 UNDETERMINED, no liability could attach to Defendant PSE. Plaintiffs claims should be
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22 dismissed accordingly.
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24 VI. CONCLUSION AND PROPOSED ORDER
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26 For the foregoing reasons, the Court should dismiss Plaintiffs First Amended Complaint
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28 under CR 12(b)(6). A proposed order to this effect is submitted herewith.
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30 DATED this 6th day of October, 2017.
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32 GORDON TILDEN THOMAS & CORDELL LLP
33 Attorneys for Defendant Puget Sound Energy, Inc.
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35 By s/Mark Wilner
36 Jeffrey M. Thomas, WSBA #21175
37 Mark Wilner, WSBA #31550
38 1001 Fourth Avenue, Suite 4000
39 Seattle, Washington 98154
40 Telephone: (206) 467-6477
41 Facsimile: (206) 467-6292
42 Email: jthomas@gordontilden.com
43 Email: mwilner@gordontilden.com
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45

DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 6 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292
 1 CERTIFICATE OF E-SERVICE
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3 I, Mark Wilner, certify that I initiated electronic service of the foregoing document on the
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5 parties listed below who have consented to accept electronic service via the Pierce County LINX
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7 Application. Service was initiated on October 6, 2017 on:
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9 Attorney for Plaintiff:
10 Rebecca J. Roe, WSBA #7560
11 Kathy Goater, WSBA #9648
12 Schroeter Goldmark & Bender
13 810 3rd Avenue, Suite 500
14 Seattle, WA 98104-1657
15 roe@sgb-law.com
16 goater@sgb-law.com
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19 DATED this 6th day of October, 2017, at Seattle, Washington.
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23 s/ Mark Wilner
24 Mark Wilner, WSBA #31550
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DEFENDANT PUGET SOUND ENERGY, INC.S GORDON TILDEN THOMAS & CORDELL LLP
MOTION TO DISMISS - 7 1001 Fourth Avenue, Suite 4000
Seattle, WA 98154
Phone (206) 467-6477
Fax (206) 467-6292