Estate of Mary Winn
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN THE MATTER OF THE ESTATE OF MARY WINN, ) ) ) Deceased. ) __________________________________) THE ESTATE OF MARY WINN, ) Deceased, by and through its ) Personal Representative, GEORGE ) WINN, ) ) Plaintiff/Appellant, ) ) v. ) ) PLAZA HEALTHCARE, INC., an ) Arizona corporation dba Plaza ) Healthcare; PLAZA HEALTHCARE ) SCOTTSDALE CAMPUS, an Arizona ) corporation dba Plaza Healthcare, ) ) Defendants/Appellees. ) __________________________________) DIVISION ONE FILED: 08/10/10 RUTH WILLINGHAM, ACTING CLERK BY: JT No. 1 CA-CV 09-0649 DEPARTMENT C O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CV 2003-017852 The Honorable Eileen S. Willett, Judge The Honorable Ruth H. Hilliard, Judge AFFIRMED Law Offices of David L. Abney By David L. Abney Attorneys for Plaintiff/Appellant Phoenix Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis Gilbride David S. Cohen Attorneys for Defendant/Appellee Phoenix D O W N I E, Judge ¶1 The Estate of Mary Winn ( appellant or the estate ) appeals the superior court s ruling that it may not recover damages for the inherent value of Mary Winn s life in this suit brought pursuant to Arizona s Adult Protective Services Act ( APSA ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Mary Winn died on February 6, 1999, after residing for less than a Healthcare. month in a nursing facility operated by Plaza In September 2003, a lawsuit was filed against the facility and its parent company ( appellees ), alleging, inter alia, abuse of a vulnerable adult pursuant to Arizona Revised Statutes ( A.R.S. ) sections 46-454 and -455 (Supp. 1998). 1 ¶3 The estate filed a Motion for Summary Judgment on the Value of Human Life as Recoverable in Damages. Conceding that Mrs. Winn was ill and elderly . . . long-retired and had no realistic earning capacity or potential, the motion argued that the estate nevertheless could recover damages under APSA for the inherent or intrinsic value of her life. After briefing and oral appellant s argument, the superior court 1 denied motion Unless otherwise noted, all references to APSA are to the version in effect at the time the claim arose. When this action was filed, a seven-year statute of limitations applied to APSA claims. Ariz. Rev. Stat. § 46-455(I). 2 ( July 2007 ruling ). 2 Appellees subsequently moved for partial summary judgment, seeking a determination that the estate could not recover for pre-death pain and suffering because there was no evidence of such damages. In response, the estate conceded there was no evidence one way or the other on [Mrs. Winn s] pre-death pain and suffering. The superior court thus granted appellees motion. ¶4 In August 2008, the estate filed an Arizona Rule of Civil Procedure 60(c) motion, seeking to set aside the July 2007 ruling. The superior court denied the motion and referred the case to compulsory arbitration because the estate conceded its remaining damages were less than $50,000. in favor of appellees. 3 The arbitrator ruled On August 13, 2009, the superior court filed its final judgment, and the estate timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 2101(B) (2003). 4 2 This Court dismissed an appeal from the July 2007 ruling, concluding that we lacked jurisdiction because the denial of summary judgment did not resolve any of the claims alleged in the complaint. 3 Although the record is not entirely clear on this point, we assume that the arbitration award and ensuing judgment (the substance of which was agreed upon by the parties) were based on the estate s failure to prove damages and not a determination that defendants were not liable. 4 The denial of a motion for summary judgment may be reviewed on appeal from a final judgment if the superior court denied the motion on a point of law. Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 11, 36 P.3d 1200, 1203 (App. 2001) 3 DISCUSSION ¶5 The superior court concluded that APSA does not provide[] for damages for the inherent value of a human life in the words actual damages set forth in A.R.S. § 46-455(F)(4). 5 We review this determination de novo. See Burns v. Davis, 196 Ariz. 155, 159, ¶ 4, 993 P.2d 1119, 1123 (App. 1999) (citing Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996)). ¶6 When originally enacted, APSA criminalized abuse of an incapacitated or vulnerable adult. In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 155, 945 P.2d 1283, 1286 (1997). One year later, it was expanded to create a civil cause of action. Id. The legislature thereby distinguished civil actions for elder abuse from other personal injury actions and created a statutory civil cause of action for elder abuse. Id. (citing 1989 Ariz. Sess. Laws, ch. 118, § 1 (1st Reg. Sess.)). ¶7 Section 46-455(B) allows a vulnerable adult whose life or health is being or has been endangered or injured by neglect, abuse or exploitation to file an action in superior (citations omitted) (citing Hauskins v. McGillicuddy, 175 Ariz. 42, 49, 852 P.2d 1226, 1233 (App. 1992)). The motion for summary judgment at issue here raises a pure question of law. 5 This statutory provision is now found at A.R.S. § 46455(H)(4) (Supp. 2009). 4 court against certain persons or enterprises. established, the court may order the If liability is payment of actual and consequential damages, as well as punitive damages, costs of suit and reasonable attorney fees, to those persons injured. A.R.S. § 46-455(F)(4). ¶8 The relevant inquiry is not, as appellant posits, whether a human life such as Mrs. Winn s has inherent value. The issue is whether the loss of life is an actual damage that is compensable under APSA. Like the superior court, we conclude it is not. ¶9 When construing a statute, we first consider its language, which is the best and most reliable index of the statute s meaning. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (citing State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993)). Courts will not read into a statute something that is not within the manifest intent of the legislature as indicated by the statute itself. City of Tempe v. Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4 (App. 1991) (citing Town of Scottsdale v. State ex rel. Pickrell, 98 Ariz. 382, 386, 405 P.2d 871, 873 (1965)). expand, stretch, or extend a statute within its express provisions. Nor will we inflate, to matters not falling Pickrell, 98 Ariz. at 386, 405 P.2d at 873 (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133, 407 P.2d 91, 93 (1965)). 5 ¶10 Actual damages in an APSA case may include pre-death pain and suffering. 1288. See Denton, 190 Ariz. at 157, 945 P.2d at Our supreme court has recognized that pre-death pain and suffering will often be the most significant category of damages in such cases because Persons bringing such cases usually will not have claims for lost earnings or diminution of earning capacity. Their medical and other special damages will usually be covered by Medicare or other insurance. Denton, 190 Ariz. at 154, 945 P.2d at 1285. ¶11 If the legislature had intended to allow damages in an APSA case for the death of an individual, it presumably would have said so. Cf. Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 530-31, ¶ 20, 57 P.3d 384, 389-90 (2002) (finding the legislature surely knows how to require a showing of gross negligence [in an APSA case], having used that term in a great number of statutes. (citing A.R.S. § 33-1551 (C)(2))). Compare, for example, A.R.S. § 12-561(2) (2003), which defines a medical malpractice suit as an action for injury or death against a licensed health care provider, and A.R.S. § 12-611 (2003), providing for liability when death caused by wrongful act, neglect or default. ¶12 of a person is (Emphasis added.) It is for the legislature to make policy decisions about the scope of recoverable damages in a statutory cause of action. Cf. Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519, 617 6 P.2d 25, 27 (1979) (holding that a wrongful death action is purely statutory in origin and we must adhere to the plain language of the statute, leaving any deficiencies or inequities to be corrected by the legislature. (citing Lueck v. Superior Court (S. Pac. Co.), 105 Ariz. 583, 585-86, 469 P.2d 68, 70-71 (1970), superseded by statute on other grounds as stated in Hurt v. Superior Court (Bookbinder), 124 Ariz. 45, 50, 601 P.2d 1329, 1334 (1979))). soundness of We will not question the wisdom, necessity, or policy of legislative enactments. Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 79, 927 P.2d 340, 345 (App. 1996) (citing Shaw v. State, 8 Ariz. App. 74, 79, 927 P.2d 340, 345 (1996)); Vo v. Superior Court (State ex rel. Romley), 172 Ariz. 195, 205, 836 P.2d 408, 418 (App. 1992) (citing Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 286, 255 P.2d 604, 606 (1953)). ¶13 Had Mr. Winn filed a timely wrongful death action, he could have sought additional damages arising from his wife s death that proceedings. are unavailable to the estate in these Specifically, A.R.S. § 12-613 (2003) provides: In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The amount recovered in such action shall not be subject to debts or 7 APSA liabilities of the action is brought decedent s estate. deceased, unless on behalf of the the See also Vasquez v. State, 220 Ariz. 304, 310, ¶ 16, 206 P.3d 753, 759 action (App. include 2008) (allowable loss of damages love, in a wrongful affection, consortium, personal anguish and suffering. ). death companionship, The breadth of A.R.S. § 12-613 demonstrates that the legislature knows how to authorize wide-ranging damages when it chooses to do so. ¶14 At the time this action was filed, A.R.S. § 46-455(M) provided: A civil action authorized by this section is remedial and not punitive and does not limit and is not limited by any other civil remedy or criminal action or any other provision of law. Civil remedies provided under this title are supplemental and not mutually exclusive.[6] We have recognized that APSA increase[d] the remedies available to and for caregivers conflict elderly and between that it people who APSA s and have intent another been harmed outweighs statute. an Mathews by their inherent ex rel. Mathews v. Life Care Ctrs. of Am., Inc., 217 Ariz. 606, 609, ¶ 11, 177 P.3d 867, 870 (App. 2008). ¶15 We are not, however, faced with conflicting laws in this case. 6 The estate s APSA claim is not limited by any other This provision is now found at A.R.S. § 46-455(O) (Supp. 2009). 8 civil remedy or any other provision of law. It is the APSA statute itself that defines the measure of recoverable damages. The fact that no recovery can be made for the loss of Mrs. Winn s life is a result of the failure to file a timely wrongful death claim, not any limitation arising from non-APSA statutes or civil remedies. Further, consistent with A.R.S. § 46-455(M), the estate s APSA claim is supplemental to other causes of action, including a timely-filed wrongful death claim. See, e.g., Barragan v. Superior Court (Acosta), 12 Ariz. App. 402, 405, 470 P.2d 722, 725 (1970) (claims under the survival statute and claims under the wrongful death statute are separate and distinct, despite originating from the same wrongful act. The former permits recovery for the wrong to the injured person and is confined to his personal loss while the latter is for the wrong to the beneficiaries, confined to their loss because of the death. ¶16 or The latter begins where the former ends . . . . ). Finally, the fact that an APSA claim is not limited affected adult, by A.R.S. the § death of 46-455(N), the incapacitated does not support or vulnerable the estate s interpretation. Under APSA, a claim may be brought on behalf of the adult--meaning vulnerable representative, is entitled that to herself could have maintained. assert Mr. Winn, claims as that personal Mrs. Winn See In re Estate of Wyttenbach, 219 Ariz. 120, 126, ¶ 27, 193 P.3d 814, 820 (App. 2008) ( A 9 personal representative is permitted to bring a claim under the APSA on behalf of the incapacitated or vulnerable adult. ). Mrs. Winn obviously could not personally sue for the loss of her own life. Her estate stands in no better position vis-à -vis such a claim. 7 Cf. James v. Phoenix Gen. Hosp., Inc., 154 Ariz. 594, 602-03, 744 P.2d 695, 703-04 (1987) ( Our law . . . giving the heirs or personal representatives of a deceased person a right of action for his death . . . could not, under any possible view, exist during or in the lifetime of the person wrongfully injured, for the very fact of his death . . . itself and alone creates or establishes the foundation for the exercise of the right to sue. (quoting Mark v. Reissinger, 35 Cal. App. 44, 47, 169 P. 243, 246 (1917))). Because the estate has not been deprived of any claim that Mrs. Winn herself could have maintained, the instant cause of action has not been limited or affected by her death. CONCLUSION ¶17 We should be recognize broadly that APSA construed to is a remedial effectuate the statute that legislature s purposes in enacting it. See Estate of Braden ex rel. Gabaldon, 585 (June Ariz. Adv. Rep. 23 29, 7 2010). But the duty to A wrongful death suit, on the other hand, is an original and distinct claim for damages sustained by the statutory beneficiaries and is not derivative or a continuation of a claim originating with the decedent. Barragan, 12 Ariz. App. at 404, 470 P.2d at 724. 10 liberally construe . . . a statutory scheme requires judges to interpret the law to insure that what the law gives is not withheld ; it does handedness-largess being construed. WL 2653264 (Ariz. not to permit alter, judges amend or to act expand with the free- provision Martin-Costa v. Kiger, 1 CA-SA 10-0099, 2010 App. July 6, 2010) (quoting Nicholson v. Indus. Comm n, 76 Ariz. 105, 109, 259 P.2d 547, 549 (1953)). For the foregoing reasons, we affirm the judgment superior court. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 11 of the
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