Pamela L. Myers v. State of Washington, Department of Social & Health Services

This appeal follows the summary dismissal of an action for



wrongful termination of a contract for an in-home caregiver by the Department of Social



and Health Services (DSHS). DSHS terminated the contract after an investigator



concluded that the caregiver was guilty of neglect. Later appeals tribunals reversed the



finding of neglect. But the contract also authorized DSHS to terminate the contract for



"convenience." We conclude that DSHS had authority to terminate the contract



regardless of the validity of the investigator's finding of neglect. And we affirm the



summary dismissal of the suit.



No. 27268-1-III Myers v. State



FACTS



Pamela Myers contracted with the DSHS, Division of Developmental Disabilities,



to provide in-home care for her sister, a vulnerable adult, who we will refer to throughout



these proceedings as LL. DSHS paid Ms. Myers for 112 hours of care per month,



beginning in 2002. Ms. Myers provided, and appears to continue to provide, additional



hours of informal, unpaid care.



LL twisted her ankle and fell as she got up from a chair in Ms. Myers's basement.



Ms. Myers's son and his friend were in the basement with LL at the time. The son asked



LL whether she was injured. LL responded that she was fine. Ms. Myers also asked LL



whether she needed to see a doctor. LL responded that she did not need to see a doctor



and did not complain further. Ms. Myers examined LL's foot and saw that the foot was



red. She applied ice and helped LL elevate the foot. Ms. Myers observed that LL was



able to walk around the house normally except for a slight limp.



The same week that LL injured her ankle, she attended church with a friend. Her



friend did not notice LL limping more than normal after her fall. LL attended classes and



volunteered with Center Point, an organization that provided services to disabled adults.



Two Center Point staff members saw that LL's foot appeared to be swollen and bruised.



They also reported that LL told each of them that her foot was painful, and they noticed



she limped more than normal.



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LL rides the Spokane paratransit van. She told a fellow passenger that she had



injured her foot at Ms. Myers's home and that Ms. Myers had dismissed the injury and



threatened to scold her if she complained about it. The passenger did not see LL's foot.



LL also complained that she was forced to move to a new residence with Ms. Myers. The



fellow passenger reported all of this to DSHS.



DSHS investigated. Sheila Mountjoy is an investigator for the Adult Protective



Services branch of DSHS. She talked to Rhonda Kelsch, LL's case resource manager.



Ms. Kelsch said that LL tends to exaggerate when she does not get her way and that she



has issues with power and control. The next day, Ms. Mountjoy interviewed LL at



Center Point. LL told Ms. Mountjoy that Ms. Myers disregarded her complaints about



her foot and yelled at her. Ms. Mountjoy looked at LL's foot and noticed some bruising.



LL felt pain when Ms. Mountjoy touched the bruise on the lower part of LL's foot. Ms.



Mountjoy also interviewed Center Point staff member Heidi Bell. She confirmed what



LL had told Ms. Mountjoy and added that she (Ms. Bell) was concerned about the



relationship between LL and Ms. Myers. Ms. Mountjoy telephoned Ms. Myers and



discussed the matter. Ms. Myers denied yelling at LL and explained that she did not



believe LL's injury was serious enough to warrant a doctor's visit. Ms. Myers agreed,



however, to bring LL to a doctor that day.



A doctor at an urgent care center treated LL's foot and placed her foot in a walking



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brace or a "boot." LL also saw an orthopedic specialist a couple of days later. The



specialist noted that LL's foot was swollen but, after examining the foot and x-rays of the



foot, he concluded that the injury was not serious, required no aggressive treatment, and



would heal on its own.



Ms. Mountjoy talked to LL's mother, Joyce Haye, and Ms. Haye's husband,



Robert Haye. They reiterated what Ms. Kelsch had told Ms. Mountjoy -- that LL acts out



when she does not get her way. They further explained that LL was unhappy about



moving from one residence to another with Ms. Myers, and they reported that Ms. Myers



cares well for LL and never yells at her.



Ms. Mountjoy spoke with the orthopedic specialist about LL's injury and



treatment. And Ms. Mountjoy interviewed Ms. Myers over the telephone. Ms. Myers



reported that LL continued to state that her foot was fine, that LL was able to walk up and



down the stairs in Ms. Myers's home, and that Ms. Myers checked LL's foot daily. Ms.



Myers also reported that she had taken LL to see two doctors, a general practitioner at the



urgent care clinic and the orthopedic specialist. Ms. Myers had learned that the injury to



LL's foot was not serious and required little treatment.



Ms. Mountjoy concluded her investigation and reported her findings to the



Division of Developmental Disabilities. DSHS notified Ms. Myers the same day that



Adult Protective Services found she had neglected a vulnerable adult, and DSHS



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terminated its contract with Ms. Myers based on the finding of neglect.



Ms. Myers appealed. An administrative law judge reversed the finding of neglect.



And the DSHS Board of Appeals twice rejected DSHS's attempt to reinstate the finding



of neglect.



Ms. Myers sued DSHS for breach of contract and tortious interference with a



business relationship. The trial court dismissed both claims on summary judgment. Ms.



Myers appeals only the dismissal of her breach of contract claim.



ANALYSIS



We review a trial court's summary judgment de novo and so view the evidence in



the light most favorable to the nonmoving party. Seven Gables Corp. v. MGM/UA Entm't



Co., 106 Wn.2d 1, 3, 721 P.2d 1 (1986). And we interpret contract provisions that do not



require reference to extrinsic evidence de novo; they present questions of law. State v.



R.J. Reynolds Tobacco Co., ___ Wn. App. ___, 211 P.3d 448, 452 (2009).



Ms. Myers had to show: (1) a contract that imposed a duty, (2) breach of that duty,



and (3) an economic loss as a result of the breach. Nw. Indep. Forest Mfrs. v. Dep't of



Labor & Indus., 78 Wn. App. 707, 712, 899 P.2d 6 (1995). We interpret a contract



according to the intent of the contracting parties, and to do so we focus "on the objective



manifestations of agreement." R.J. Reynolds Tobacco, 211 P.3d at 451-52. We give the



language of the contract its ordinary, usual, and popular meaning. Hearst Commc'ns,



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No. 27268-1-III Myers v. State



Inc. v. Seattle Times Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). At issue here is



whether DSHS breached a duty to Ms. Myers, a duty required by the contract.



Section 27(c) of this contract allows DSHS to terminate for default upon a finding



of neglect "which [is] substantiated by the Adult Protection Services." Clerk's Papers



(CP) at 89. DSHS may also end the contract for convenience: "If it is later determined



that the Contractor was not in default, the termination shall be considered a termination



for convenience." CP at 89.



Ms. Myers argues that material issues of fact remain on whether DSHS failed to



act in good faith or failed to "substantiate" its finding of neglect before terminating the



contract. Ms. Myers also argues that DSHS failed to exercise the discretion afforded to it



by the contract in good faith because it terminated the contract before she completed the



appeals process. See Frank Coluccio Constr. Co. v. King County, 136 Wn. App. 751,



766, 150 P.3d 1147 (2007).



We will read an implied covenant of good faith and fair dealing into a contract



"when the contract gives one party discretionary authority to determine a contract term."



Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn. App. 732, 738, 935 P.2d



628 (1997). But covenants of good faith and fair dealing do not trump express terms or



unambiguous rights in a contract. Id. at 739-40. An Adult Protective Services



investigator concluded that Ms. Myers had neglected LL. Under section 27(c), this is



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sufficient cause for DSHS to terminate the contract.



The contract here does not explain what standard Adult Protective Services must



meet to determine that a finding of neglect is "substantiated." Other states have,



however, defined "substantiated" as "more likely than not" and "by a preponderance of



the evidence." N.J. Admin. Code § 10:129-1.3 (New Jersey child abuse statute



determining that abuse or neglect is "substantiated" when "the available information, as



evaluated by the child protective investigator, indicates by a preponderance of the



evidence that a child is an abused or neglected child as defined in [another statute]");



Humphries v. County of Los Angeles, 554 F.3d 1170, 1177 (9th Cir. 2008) (determining



that, under California's Child Abuse and Neglect Reporting Act, "substantiated" means



"more likely than not that child abuse or neglect occurred").



But even if we were to apply the preponderance of the evidence standard here and



conclude that an issue of fact remained, the termination for convenience provision at the



end of section 27 would control. The plain language of that provision authorizes



termination even when a finding of neglect is later determined to be unfounded: "If it is



later determined that the Contractor was not in default, the termination shall be



considered a termination for convenience." CP at 89; R.J. Reynolds Tobacco, 211 P.3d at



452.



The contract grants DSHS broad authority to terminate the contract, regardless of



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the outcome of the administrative process. The Washington Administrative Code



supports inclusion of DSHS authority to terminate for default or for convenience in these



contracts, as long as those contract terms do not conflict with the other home care rules.



WAC 388-71-0556 (providing that DSHS may terminate a care provider's contract for



default or convenience as long as the contract's terms allow it and the terms are



consistent with the relevant regulations).



Ms. Myers makes a persuasive case that she, essentially, did nothing wrong here.



Indeed, the administrative hearing process vindicated her. She, however, ignores the



termination for convenience provision of her contract and offers no statute or



administrative rule with which it might conflict. She raises questions of fact. But they



are not material questions of fact. Hearst Commc'ns, 154 Wn.2d at 501; CR 56(c).



DSHS had authority under this contract to terminate the contract on a finding of neglect



by Adult Protective Services and, failing that, it could do so for convenience. The trial



court properly dismissed her suit on summary judgment.



* * *



See: http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=272681MAJ

And we, therefore, affirm.