In re Estate of Winn

• Decision Date: 23 January 2007
• Docket Number: No. CV-06-0076-PR.,CV-06-0076-PR.
• Citation: In re Estate of Winn, 150 P.3d 236, 214 Ariz. 149 (Ariz. 2007)
• Parties: In the Matter of the ESTATE OF Mary WINN, Deceased. The Estate of Mary Winn, Deceased, by and through George Winn on behalf of themselves and survivors of Mary Winn, Plaintiff/Appellant, v. Plaza Healthcare, Inc., an Arizona corporation d/b/a Plaza Healthcare; Plaza Healthcare Scottsdale Campus, an Arizona corporation d/b/a Plaza Healthcare, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 236

150 P.3d 236

214 Ariz. 149

In the Matter of the ESTATE OF Mary WINN, Deceased The Estate of Mary Winn, Deceased, by and through George Winn on behalf of themselves and survivors of Mary Winn, Plaintiff/Appellant, v. Plaza Healthcare, Inc., an Arizona corporation d/b/a Plaza Healthcare; Plaza Healthcare Scottsdale Campus, an Arizona corporation d/b/a Plaza Healthcare, Defendants/Appellees.

No. CV-06-0076-PR.

Supreme Court of Arizona, En Banc.

January 23, 2007.

Charles M. Brewer, Ltd. by David L. Abney, Phoenix, Attorneys for The Estate of Mary Winn.

Jones, Skelton & Hochuli, P.L.C. by David S. Cohen, Eileen Dennis GilBride, Phoenix, Attorneys for Plaza Healthcare, Inc. and Plaza Healthcare Scottsdale Campus.

Wilkes & McHugh, P.A. by Melanie L. Bossie, James M. Morgan, Terry Schneier, Phoenix, Attorneys for Amici Curiae Estate of Mildred Fazio, Estate of August Rustad Estate of Genoveva Moreno, Estate of Ruth Wall, Estate of Neil Hicks, and Estate of Lambert Pfeifer.

OPINION

BERCH, Vice Chief Justice.

¶ 1 This case requires us to determine whether Arizona Revised Statutes ("A.R.S.") section 14-3108(4) (2005) precludes a late-appointed personal representative from pursuing an elder abuse claim on behalf of a decedent's estate. We hold that it does not.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Mary Winn died on February 6, 1999, after residing for less than a month in a nursing facility operated by Plaza Healthcare. More than four and one-half years later, but still within the applicable limitations period, Mary's husband, George Winn, brought an Adult Protective Services Act ("APSA") claim against Plaza on behalf of himself, Mary's estate, and Mary's survivors, alleging that Plaza or its agents abused or neglected Mary while she resided at Plaza's Scottsdale campus. He also brought medical malpractice and wrongful death claims, which are not at issue.

¶ 3 On May 7, 2004, more than five years after Mary's death, George was appointed personal representative of her estate. He then moved to substitute himself, in his capacity as the estate's personal representative, as the plaintiff in the case against Plaza. Plaza moved for summary judgment, asserting that A.R.S. § 14-3108(4) precludes a personal representative appointed more than two years after the death of the decedent from prosecuting claims on behalf of the estate. The superior court granted the motion and the court of appeals affirmed. In re Estate of Winn, 212 Ariz. 117, 122, ¶ 24, 128 P.3d 234, 239 (App.2006).

¶ 4 We granted review to determine the effect of late appointment on a personal representative's ability to pursue an APSA claim on behalf of a decedent's estate. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

DISCUSSION

¶ 5 The provision of the Adult Protective Services Act at issue, A.R.S. § 46-455 (Supp.2006),¹ was passed in 1988 and amended in 1989 to protect incapacitated and vulnerable adults. See 1988 Ariz. Sess. Laws, ch. 85, § 2; 1989 Ariz. Sess. Laws, ch. 118, §§ 1, 3. The amended statute creates a remedial cause of action against those who abuse, neglect, or exploit the elderly. A.R.S. § 46-455(B), (O). We construe such remedial statutes broadly to effectuate the legislature's purpose in enacting them. See Special Fund Div. v. Indus. Comm'n, 191 Ariz. 149, 152, ¶ 9, 953 P.2d 541, 544 (1998). The legislature underscored its desire to protect the elderly by providing that APSA claims "shall not be limited or affected by the death of the incapacitated or vulnerable adult," A.R.S. § 46-455(P), or "by any other civil remedy . . . or any other provision of law," id. § 46-455(O).

¶ 6 The provision of the Arizona probate code at issue, on the other hand, arguably limits the power of a late-appointed personal representative to pursue an APSA claim on behalf of a deceased victim's estate. Arizona Revised Statutes § 14-3108(4) provides that a personal representative who is appointed to represent an estate more than two years after the decedent's death "has no right to possess estate assets as provided in § 14-3709 beyond that necessary to confirm title thereto in the rightful successors to the estate."² Plaza contends that A.R.S. § 14-3108(4) precludes George Winn from pursuing his late wife's APSA claim on behalf of her estate because, as a late-appointed personal representative, he may not "possess" the claim, an estate asset, "beyond that necessary to confirm title thereto in the rightful successors to the estate." Both the superior court and the court of appeals agreed and disposed of the case on this basis. See Winn, 212 Ariz. at 120, ¶ 16, 128 P.3d at 237.

¶ 7 Resolving this dispute requires us to construe § 46-455 of APSA in light of § 14-3108(4) of Arizona's probate code. We must determine whether the APSA provision permits a late-appointed personal representative to prosecute an elder abuse claim on behalf of the estate of the deceased victim, or whether § 14-3108(4) precludes doing so. We review such questions of statutory construction de novo. 4501 Northpoint LP v. Maricopa County, 212 Ariz. 98, 100, ¶ 9, 128 P.3d 215, 217 (2006).

¶ 8 Our primary task in interpreting statutes is to give effect to the intent of the legislature. Mail Boxes, etc., U.S.A. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). To ascertain intent, we examine the words of the statutes at issue, "the polic[ies] behind the statute[s] and the evil[s] [that they were] designed to remedy." Calvert v. Farmers Ins. Co. of Ariz., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985).

¶ 9 The language of APSA § 46-455 is clear in creating a remedial cause of action that may not be limited by the death of the vulnerable adult "or any other provision of law." See A.R.S. § 46-455(O)—(P). The legislature has stated its intent to increase the remedies available to elder abuse victims by providing that APSA claims proceed unimpeded by either the death of the elder abuse victim or limitations imposed by other laws. See In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 156-57, 945 P.2d 1283, 1287-88 (1997); see also Estate of McGill v. Albrecht, 203 Ariz. 525, 528, ¶ 6, 57 P.3d 384, 387 (2002) (regarding increased remedies). The policy underlying § 46-455 is also apparent: to protect some of society's most vulnerable persons from abuse, neglect, and exploitation. See McGill, 203 Ariz. at 528, ¶ 6, 57 P.3d at 387; Denton, 190 Ariz. at 156-57, 945 P.2d at 1287-88. Finally, the evils sought to be remedied—elder abuse, neglect, and exploitation—are also unmistakable. See McGill, 203 Ariz. at 527-28, ¶ 1, 57 P.3d at 386-87; Denton, 190 Ariz. at 156-57, 945 P.2d at 1287-88.

¶ 10 Plaza counters that the language of A.R.S. § 14-3108(4) of the probate code is equally clear in providing that a personal representative appointed more than two years after the death of a decedent may not pursue an APSA claim, an estate asset, on behalf of the decedent's estate because the representative may not "possess" the claim. Such possession, Plaza asserts, is necessary to bring the claim. Moreover, Plaza maintains, the policy of the probate code—to ensure the efficient administration of estates— militates against allowing claims to be brought more than two years after the death of the vulnerable adult. See A.R.S. § 14-1102(B)(3) (2005).

¶ 11 We must thus determine whether these provisions are inconsistent and, if so, which controls. We note preliminarily that we must resolve only whether § 14-3108(4) bans an APSA suit brought pursuant to § 46-455(B), not whether, as Plaza broadly posits, it would bar the bringing of any lawsuit. We leave the latter question to a later day.

¶ 12 This court previously interpreted conflicting APSA and probate code provisions in Denton, 190 Ariz. 152, 945 P.2d 1283. The issue in Denton was whether an estate may recover damages for pain and suffering pursuant to § 46-455 after the death of an elder abuse victim. Id. at 154, 945 P.2d at 1285. Section 46-455 allows recovery of damages for pain and suffering and also provides that an APSA cause of action is not limited by any other provision of law or by the death of the elder abuse victim. A.R.S. § 46-455(H)(4), (O)-(P);³ Denton, 190 Ariz. at 155-56, 945 P.2d at 1286-87. Probate code § 14-3110, on the other hand, provides that damages for pain and suffering do not "survive the death of the person entitled thereto" and thus may not be asserted by the personal representative. Denton, 190 Ariz. at 156, 945 P.2d at 1287 (discussing 1974 predecessor to § 14-3110). In concluding that APSA pain and suffering damages may be recovered after the death of an elder abuse victim, we relied on the plain wording of § 46-455(O) and (P). Id. We found "no reason for the legislature to include these two subsections . . . other than to exclude the elder abuse statute from the survival statute's limitations." Id. The language of § 46-455, we concluded, demonstrated the legislature's intent to remove limitations on APSA remedies, such as damages for pain and suffering, that might be imposed by other provisions of law, including the probate code. Id. at 156-57, 945 P.2d at 1287-88.

¶ 13 We also emphasized the protective policy underlying § 46-455:

The legislature's intent and the policy behind [§ 46-455] are clear. Arizona has a substantial population of elderly people, and the legislature was concerned about elder abuse. . . .

Furthermore, most vulnerable or incapacitated adults are near the end of their lives. Under defendants' theory, the tort-feasor would have a great incentive to delay litigation until the victim dies. If we were to subscribe to defendants' theory, the policy of [§ 46-455] would not be furthered.

Id.

¶ 14 Section 46-455's protective policy resounds here as well. Recognizing that many APSA claims will not be filed until after the death of the elder abuse victim, and thus will be pursued by a personal representative, ...