Michael Collins v. State Of Washington ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
May 10, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL J. COLLINS, No. 47565-1-II
Appellant,
v.
STATE OF WASHINGTON & OFFICE OF UNPUBLISHED OPINION
THE GOVERNOR; OFFICE OF THE
ATTORNEY GENERAL; DEPARTMENT OF
LABOR & INDUSTRIES IN ITS/THEIR
OFFICIAL CAPACITY,
Respondents.
LEE, J. — Michael J. Collins appeals the trial court’s CR 12(b)(6) dismissal of two
complaints he filed against the State of Washington, the governor, the attorney general, and the
Department of Labor & Industries for the denial of benefits involving a 1993 industrial injury. He
claims the trial court erred by dismissing his constitutional tort and intentional infliction of
emotional distress/tort of outrage claims. We disagree and affirm.
FACTS
In January 1993, Collins filed an application for benefits with the Department due to an
on-the-job injury while employed with AROK Construction. The Department approved the
NO. 47565-1-II
application and awarded Collins temporary benefits. In April 1995, the Department closed the
claim.
In February 2006, Collins requested to reopen his claim, alleging an aggravation of his
condition. The Department reopened the claim, approved medical benefits, but denied time loss
compensation and a partial disability award. Collins protested, and the Department affirmed.
Collins appealed to the Board of Industrial Insurance Appeals (BIIA).
In his appeal, Collins alleged he never received the April 1995 order closing his claim. The
BIIA determined that he had made a sufficient prima facie showing that he had not received the
1995 order and remanded the matter to complete adjudication of Collins’ claim. The Department
reassessed and ordered an independent medical evaluation (IME). Following the IME, the
Department issued a new closing order, denying time loss and disability benefits and ending the
payment of medical benefits.
Collins unsuccessfully sought relief in both state and federal appellate courts. See Collins
v. Dep’t of Labor & Indus., No. 10-CV-05247-RBL, U.S. Dist. (W.D. Wash. 2010); Collins v.
Dep’t of Labor & Indus., 163 Wash. 2d 1020 (2008); Collins v. Dep’t of Labor & Indus., 167 Wash. 2d
1019 (2010). He also unsuccessfully requested to reopen his claim with the Department in 2010.
In November 2014, Collins filed a complaint against the State of Washington, the governor,
the attorney general, and the Department (collectively “the defendants”), alleging, among other
torts, intentional infliction of emotional distress/tort of outrage and a constitutional tort cause of
action for damages resulting from a violation of his due process rights. He amended his complaint
twice, adding additional facts to support his claims.
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Following the January 2015 filing of the second amended complaint, the defendants moved
for dismissal under CR 12(b)(6) for failure to state a claim upon which relief can be granted. In
February 2015, the superior court granted the defendants’ motion. However, the superior court
ruled that “Plaintiff may file an amended complaint to attempt to state a legally sufficient claim on
or before March 27, 2015, provided that the amended complaint may not assert claims arising from
the Washington Constitution, RCW 43.10.030 [attorney general’s powers and duties], or RCW
43.06.010 [governor’s powers and duties], such claims having been dismissed with prejudice by
this order.” Clerk’s Papers (CP) at 277.
Collins timely filed a third amended complaint in March 2015. In his third amended
complaint, Collins alleged the same operative facts as those alleged in prior complaints and again
claimed intentional infliction of emotional distress/tort of outrage. The defendants requested
dismissal under CR 12(b)(6). The superior court granted the motion and dismissed Collins’s
claims in April 2015. Collins unsuccessfully moved for reconsideration. Collins appeals.
ANALYSIS
As an initial matter, Collins assigns error to the February 2015 dismissal order and the
April 2015 dismissal order. His notice of appeal, however, only refers to the superior court’s order
denying reconsideration of the April 2015 order. Generally, this court only reviews those orders
designated in the notice of appeal. See RAP 5.3(a)(3) (notice of appeal must designate decision
for review). However, since the January 2015 and the March 2015 complaints were incrementally
dismissed with the superior court contemplating the filing of a third amended complaint, we reach
the issues involving both complaints.
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A. LEGAL PRINCIPLES
Collins contends the superior court erred by dismissing his tort claims under CR 12(b)(6).
We review de novo an order granting a motion to dismiss under CR 12(b)(6). FutureSelect
Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wash. 2d 954, 962, 331 P.3d 29 (2014);
Kinney v. Cook, 159 Wash. 2d 837, 842, 154 P.3d 206 (2007).
Dismissal under CR 12(b)(6) is appropriate in those cases where the plaintiff cannot prove
any set of facts consistent with the complaint that would entitled the plaintiff to relief. Bravo v.
Dolsen Cos., 125 Wash. 2d 745, 750, 888 P.2d 147 (1995). “‘[A]ny hypothetical situation
conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to
support the plaintiff's claim.’” Id. at 750 (alteration in original) (quoting Halvorson v. Dahl, 89
Wash. 2d 673, 674, 574 P.2d 1190 (1978)). All facts alleged in the plaintiff’s complaint are presumed
true. Tenore v. AT & T Wireless Servs., 136 Wash. 2d 322, 330, 962 P.2d 104 (1998), cert. denied,
525 U.S. 1171 (1999). However, the complaint’s legal conclusions are not required to be accepted
on appeal. Haberman v. Washington Pub. Power Supply Sys., 109 Wash. 2d 107, 120, 744 P.2d
1032, 750 P.2d 254 (1987). “If a plaintiff's claim remains legally insufficient even under his or
her proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is appropriate.” Gorman v.
Garlock, Inc., 155 Wash. 2d 198, 215, 118 P.3d 311 (2005).
Washington’s Industrial Insurance Act (IIA), Title 51 RCW, provides the exclusive remedy
for workers who are injured during the course of their employment. Wash. Ins. Guar. Ass’n v.
Dep’t of Labor & Indus., 122 Wash. 2d 527, 530, 859 P.2d 592 (1993); RCW 51.04.010. Thus, the
IIA precludes any “tort claims if those claims arise out of an ‘injury’ . . . that is compensable under
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the [IIA].” Rothwell v. Nine Mile Falls Sch. Dist., 173 Wash. App. 812, 819, 295 P.3d 328 (2013)
(quoting Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1051 (9th Cir. 1995)).
Tort claims may arise when the employer acts with deliberate intention. RCW 51.04.020.
Our Supreme Court considered the meaning of “deliberate intention” in Birklid v. Boeing Co., 127
Wash. 2d 853, 865, 904 P.2d 278 (1995), and held “the phrase ‘deliberate intention’ in RCW
51.24.020 means the employer had actual knowledge that an injury was certain to occur and
willfully disregarded that knowledge.” Here, however, rather than arguing his employer acted
with deliberate intention, Collins uniquely applies the deliberate intention test to several state
agencies for the wrongful denial of his claims. His arguments fail because a constitutional tort
action is not recognized in Washington and the tort of outrage is not supported by the record.1
B. CONSTITUTIONAL TORT
Collins first argues the superior court overlooked facts and law pertaining to his
constitutional tort claim. He claims he should be compensated for the harm caused by the State’s,
the governor’s, the attorney general’s, and the Department’s alleged intentional violation of his
due process rights.
A constitutional tort is generally a legal action against government agents to pursue
damages for violations of constitutional rights. Bivens v. Six Unknown Named Agents of Fed.
1
Collins also discusses at length allegations of judicial misconduct, including failing to review his
pleadings, improper transferring of matters between judges, denial of discovery, and partiality
towards the defendants. He fails to provide citation to the record (other than his own pleadings),
meaningful argument, or citation to legal authority to support his arguments as required under RAP
10.3(a)(5)-(6) to warrant review. See also Cowiche Canyon v. Bosley, 118 Wash. 2d 801, 809, 828
P.2d 549 (1992); DeHeer v. Seattle Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193 (1962).
Therefore, we do not consider these claims.
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Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005, 29 L. Ed. 2d 619 (1971).
Washington courts have consistently refused to recognize a constitutional tort for damages. See
Reid v. Pierce County, 136 Wash. 2d 195, 213-14, 961 P.2d 333 (1998) (a constitutional cause of
action not recognized because plaintiffs did not present a reasoned or principled basis for one nor
establish that it would be more appropriate than common law causes of action); Blinka v. Wash.
State Bar Ass’n, 109 Wash. App. 575, 591, 36 P.3d 1094 (2001) (Washington courts will not
recognize a cause of action based on constitutional violations without legislative guidance), review
denied, 146 Wash. 2d 1021 (2002). Thus, because there is no recognized cause of action in tort for
constitutional violations, we affirm the dismissal of Collins’s constitutional tort claim in this case.
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS/TORT OF OUTRAGE
Collins next argues he is entitled to relief based on the tort of outrage, also known as
intentional infliction of emotional distress. Kloepfel v. Bokor, 149 Wash. 2d 192, 194, 66 P.3d 630
(2003). He contends that the Department abused a custodial relationship by intentionally not
addressing his claims; the Department, attorney general, and governor failed to impede the 2014
IME; and the attorney general failed to observe a special duty owed to him, which conduct was
outrageous and intentional and caused him emotional distress.
To prevail on a claim of intentional infliction of emotional distress, a plaintiff must show
(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and
(3) the plaintiff actually suffers severe emotional distress. Kloepfel, 149 Wash. 2d at 195. Each
element must be established. Id. Collins fails to show the first element.
Extreme and outrageous conduct must be conduct that is “‘so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
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atrocious, and utterly intolerable in a civilized community.’” Grange Ins. Ass’n v. Roberts, 179
Wash. App. 739, 753-54, 320 P.3d 77 (2013) (footnote omitted) (quoting Reid, 136 Wash. 2d at 202),
review denied 180 Wash. 2d 1026 (2014). The conduct must be more than insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. Kirby v. City of Tacoma, 124 Wash. App. 454,
474, 98 P.3d 827 (2004), review denied, 154 Wash. 2d 1007 (2005).
Here, Collins requested to reopen his claim, alleging aggravation of condition. The
Department reopened the claim and approved medical benefits. Unsatisfied, Collins appealed to
the BIIA. There, he made a sufficient prima facie showing that he had not received notice that his
prior action was closed. On remand, the Department reassessed and ordered an IME. Based on
the IME results, the Department denied time loss and disability benefits, terminated medical
benefits, and closed the claim.
Nowhere in the record is there evidence of outrageous conduct in handling these complaints
by the Department, governor, or attorney general that rise to the level of being “atrocious, and
utterly intolerable in a civilized community.’” Grange Ins. Ass’n, 179 Wash. App. at 753-54. While
the repeated denials of relief may be an “insult” or “annoyance” to Collins, they were not enough
to rise to the level of outrageous conduct to support the tort of intentional infliction of emotional
distress. Kirby, 124 Wash. App. at 474. Accordingly, Collins fails to allege any conduct sufficiently
outrageous to support an intentional infliction of emotional distress claim nor does his complaint
raise any legally sufficient hypothetical situation supporting a claim of intentional infliction of
emotional distress.
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Based on the above, the trial court did not err in dismissing Collins second amended
complaint and third amended complaint under CR 12(b)(6). Therefore, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J.
We concur:
Worswick, J.
Bjorgen, C.J.
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