Cummings v. GSS
| Decision Date | 18 April 2005 |
| Docket Number | No. 53386-0-I.,53386-0-I. |
| Citation | 128 Wn. App. 742,110 P.3d 796,128 Wash. App. 742 |
| Court | Washington Court of Appeals |
| Parties | Nancy CUMMINGS, as Personal Representative for the Estate of Pauline Rae Smith, Deceased, Appellant, v. GUARDIANSHIP SERVICES OF SEATTLE, a Washington corporation; Tom O'Brien and Jane Doe O'Brien, husband and wife, and the marital community comprised thereof; Edward D. Gardner and Jane Doe Gardner, husband and wife and the marital community comprised thereof; Marion J. Cloutier and John Doe Cloutier, wife and husband, and the Marital community comprised thereof; Cynthia L. Hanning and John Doe Hanning, wife and husband, and the marital Community comprised thereof; Joyce M. Sambataro and John Doe Sambataro, wife and husband, and the marital community comprised thereof; Gwendolyn T. Saucedo and John Doe Saucedo, wife and husband, and the marital community comprised thereof; Richard D. Watkins and Jane Doe Watkins, husband and wife, and the marital community comprised thereof, Suzanne C. Howle and Jane Doe Howle, wife and husband, and the marital community comprised thereof; and Thompson & Howle, a partnership, Respondents. |
Douglas A. Schafer, Schafer Law Firm, Tacoma, WA, for Appellant.
Clarence Jones, Law Offices of Matthew Williams, Tacoma, WA, for Respondents.
PUBLISHED IN PART
¶ 1 Pauline Rae Smith was the subject of a guardianship and had live-in caretakers. She died after falling from the window of her third floor condominium. The questions raised here include whether a claim for economic damages under the abuse of vulnerable adults act1 survives where there are no statutory heirs; whether actions lie for breach of fiduciary duty, and if so, against whom and for what remedies; whether a guardian acts under color of state law for purposes of the federal Civil Rights Act;2 and whether a claim under the Consumer Protection Act3 survives to the benefit of the estate.
¶ 2 Nancy Cummings, in her capacity as personal representative of Pauline Smith's estate,4 brought this action against Smith's co-guardians (Guardianship Services of Seattle and Richard Watkins); the guardians' attorney (Susan Howle); and Smith's two live-in caregivers (Gwen Saucedo and Joyce Sambataro). Cummings claims included breach of fiduciary duty, violation of the Consumer Protection Act, violation of the abuse of vulnerable adults act, and violation of Smith's constitutional rights under the federal Civil Rights Act. The trial court dismissed all claims on summary judgment, except for claims against Guardianship Services of Seattle and Sambataro for economic damages to the estate.5 After settlement discussions stalled, the court ordered enforcement of a settlement on those claims.
¶ 3 The Estate appeals the orders granting summary judgment, the order enforcing the settlement agreement, and also seeks remand on grounds that no record was made of argument at the summary judgment hearings.
¶ 4 In June 1999, Pauline Rae Smith was 93 years old and suffered from Alzheimer's disease. She had been a widow for 20 years and had no children or surviving siblings or parents. Under a guardianship established in King County. Guardianship Services of Seattle (GSS) and her long-time attorney, Richard Watkins, acted as co-guardians of her person; GSS acted as sole guardian of her estate. Smith was cared for by two live-in caregivers employed by GSS, Gwen Saucedo and Joyce Sambataro. Saucedo worked four days per week; Sambataro worked three.
¶ 5 Smith was prone to waking at night and to wandering. Her caregivers had moved her into the living room where they could sleep at the foot of her bed, which was near a tall window. On the night of her death, the window was left slightly ajar for ventilation. At 4:30 in the morning on June 7, 1999, Sambataro discovered Smith on the ground below the window. Smith died of her injuries later that day.
¶ 6 In accordance with the terms of her will, Watkins was appointed personal representative of Smith's estate. The following month, in August 1999, GSS and Watkins submitted their final report as guardians. In response to family concerns about possible negligence in the circumstances surrounding Smith's death, the court appointed a guardian ad litem (GAL) to review the report and make recommendations. The GAL recommended that the court approve the financial accounting, but leave the guardianship open and not exonerate the bond. Because potential claims against him gave Watkins a conflict of interest, the GAL recommended that a new personal representative be appointed and be authorized to investigate a potential suit for damages.
¶ 7 At a hearing in December 1999, the court appointed a successor personal representative, approved Watkins' final report as personal representative, approved his actions and fees, discharged him, and appointed a successor. The court also approved the guardians' report, except as to the circumstances of Smith's death. The court discharged the guardians, terminated the guardianship, and authorized final expenses and payment of fees to GSS and the guardians' attorney, Susan Howle. The court expressly preserved any actions against the guardians arising out of Smith's death. ¶ 8 Nancy Cummings was later appointed as successor personal representative of the estate, and on July 3, 2003, she filed an amended complaint asserting five causes of action: (1) breach of fiduciary duty, against GSS, Watkins, Saucedo and Sambataro; (2) neglect of a vulnerable adult, against GSS, Saucedo and Sambataro; (3) violation of the Consumer Protection Act (CPA), against GSS; (4) violation of a lawyer's duty to a ward, against Howle, and (5) deprivation of federal civil rights of a ward against Watkins, GSS, Saucedo and Sambataro.
¶ 9 These claims were dismissed on motions for summary judgment, except for claims against GSS and Sambataro for economic damages under RCW 4.20.046.6 The court did not directly address the breach of fiduciary duty claims against GSS and Sambataro because of its belief that those claims had been withdrawn.
¶ 10 In July 2003, the remaining parties engaged in settlement discussions agreed as to the amount of actual damages, and agreed to leave open the Estate's right to appeal the summary judgment. The Estate's attorney signed a draft agreement and sent it to Cummings for signature, but Sambataro's attorney circulated a further draft with significant amendments, which Cummings' attorney did not sign. GSS and Sambataro sought an order enforcing the settlement, which the court granted in October 2003.
¶ 11 The Estate appeals.
¶ 12 We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.7 All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party.8 We review questions of law de novo.9
Abuse of Vulnerable Adult s Act
¶ 13 The abuse of vulnerable adults act, chapter 74.34 RCW, was enacted in 1995 to provide protection and legal remedies to vulnerable adults living in the community but dependent on others for their care. The version of the statute in effect at the time of Smith's death was not materially different from the current statute, which states:
In addition to the other remedies available under the law, a vulnerable adult who has been subjected to abandonment, abuse, financial exploitation, or neglect ... in the case of a person residing at home who receives care from a home health, hospice, or home care agency, shall have a cause of action for damages on account of his or her injuries, pain and suffering, and loss of property sustained thereby. This action shall be available where the defendant is or was a corporation, trust ... employee, agent ... of a ... home care agency licensed or required to be licensed under chapter 70.127 RCW.[10]
Thus the statute applies where the defendant is an organization (or an individual employed by an organization) required to be licensed as an in-home service agency under RCW 70.127.020.11 The threshold inquiry is whether the activities of the service provider are those that require a license under chapter 70.127 RCW.
¶ 14 Licensing Requirement. The trial court ruled the abuse of vulnerable adults act does not apply to GSS because GSS is not required to be licensed as an in-home service agency. The court observed that the statutes regulating guardianship, chapters 11.88 RCW and 11.92 RCW, do not require guardians to be licensed when providing residential care.
¶ 15 We disagree with this analysis. The guardianship statutes impose a duty on a court appointed guardian to "care for and maintain" the ward in the setting least restrictive to the incapacitated person.12 This will often involve arranging for the ward to receive home care services. But the guardianship statutes do not purport to override the licensing requirements for in-home service providers.
¶ 16 Chapter 70.127 RCW was enacted in 1988 to protect the ill, disabled and elderly who need assistance with personal care.13 The legislature was concerned about the virtual invisibility of home care providers, and the attendant risks to their vulnerable clients.14 The legislature addressed this problem by establishing minimum standards for care,15 and by requiring that home care agencies serving these vulnerable populations be licensed to ensure compliance with these standards.
¶ 17 The legislature thought carefully about exemptions from licensing requirements, and identified 17 such exemptions. Court appointed guardians are not exempt.16 In many circumstances, guardians will not be subject to the licensing requirements because they do not themselves provide home care. Rather, they arrange for the ward to receive care from home service agencies. GSS, however, is both a professional guardianship entity and a provider of home care services. Cummings contends GSS is required...
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