Scott Schoonover, V. State of Washington, Dshs

HOUGHTON, J. -- Scott Schoonover executed a durable power of attorney,
authorizing Don Phelps, his attorney, to file a tort claim against the
Department of Social and Health Services (State) on his behalf. Phelps
prepared, verified, signed, and filed the claim against the State on
Schoonover's behalf. The trial court granted the State's motion to dismiss
for lack of subject matter jurisdiction, finding that Schoonover failed to
personally verify his complaint as required by RCW 4.92.100. Schoonover
appeals the trial court's decision arguing that it was based on an
incorrect reading of the statute, equitable estoppel, and equal protection
grounds. We affirm.

FACTS

The State placed Schoonover, who is mildly retarded and diagnosed with
Fetal Alcohol Syndrome (FAS), in foster care from the ages of seven to
sixteen years old. During that time, Schoonover suffered repeated
instances of mental, physical, and sexual abuse. According to Schoonover,
despite knowledge of his FAS diagnosis and repeated reports of abuse, the
State neither provided him with treatment nor separated him from his
abusers.

On April 2, 1999, Schoonover executed a durable power of attorney,
designating Don Phelps, an attorney, as his attorney in fact. Among other
things, the power of attorney authorized Phelps to sign and execute written
instruments 'as fully as {Schoonover} could do if personally present.'
Clerk's Papers (CP) at 43.

On September 1, Phelps prepared, signed, and filed a tort claim
against the State with the Office of Risk Management. The Torts Division
of the Attorney General's Office provided Phelps with the tort claim form
and the accompanying instructions he used to prepare Schoonover's claim.
Although the Division of Risk Management had updated these forms in May
1995, the Attorney General's Office provided Phelps with copies of an
outdated December 1990 form.
Phelps and his investigator reviewed thousands of documents to prepare
Schoonover's claim, but Schoonover did not personally verify the
information in the claim form.

On November 4, Schoonover filed a lawsuit against the State, based on
the allegations contained in the September 2 tort claim. The State pleaded
the affirmative defense of insufficient compliance with RCW 4.92.100 and
RCW 4.92.110 and the court's lack of subject matter jurisdiction. The
trial court granted the State's motion to dismiss for lack of subject mater
jurisdiction. Schoonover appeals.

ANALYSIS

Standard of Review
Whether a court has subject matter jurisdiction to hear and decide a case
is a question of law that we review de novo. Bour v. Johnson, 80 Wn. App.
643, 647, 910 P.2d 548 (1996). Dismissal of an action for lack of subject
matter jurisdiction is required if the tort claim submitted under chapter
4.92 RCW does not strictly comply with the statutory procedure. Levy v.
State, 91 Wn. App. 934, 942, 957 P.2d 1272 (1998).
Claim Verification

Schoonover first contends that RCW 4.92.100 does not require that he
personally verify his tort claim against the State. He argues that the
power of attorney suffices to confer on his counsel the authority to verify
the claim on his behalf.

RCW 4.92.1001 provides:
All claims against the state for damages arising out of tortious
conduct shall be presented to and filed with the risk management division.

All such claims shall be verified and shall accurately describe the conduct
and circumstances which brought about the injury or damage, describe the
injury or damage, state the time and place the injury or damage occurred,
state the names of all persons involved, if known, and shall contain the
amount of damages claimed, together with a statement of the actual
residence of the claimant at the time of presenting and filing the claim
and for a period of six months immediately prior to the time the claim
arose. If the claimant is incapacitated from verifying, presenting, and
filing the claim or if the claimant is a minor, or is a nonresident of the
state, the claim may be verified, presented, and filed on behalf of the
claimant by any relative, attorney, or agent representing the claimant.

With respect to the content of such claims this section shall be
liberally construed so that substantial compliance will be deemed
satisfactory.

We recently addressed the RCW 4.92.100's claimant verification
requirement in Shannon v. State, 110 Wn. App. 366, 40 P.3d 1200 (2002).
Similar to the situation here, in Shannon the plaintiffs' attorney, rather
than the plaintiffs, signed and verified the tort claim against the
Department of Corrections. We rejected the plaintiffs' argument that RCW
4.92.100 was ambiguous. We held that under this statute, the claimant must
personally verify the claim unless the claimant is a minor, a nonresident,
or incapacitated. Shannon, 110 Wn. App. at 370.

The difference between the facts in Shannon and those here is that
Schoonover's attorney signed and verified the claim through a power of
attorney. But this is a distinction without significance. 'A power of
attorney is a written instrument by which one person, as principal,
appoints another as agent and confers on the agent authority to act in the
place and stead of the principal for the purposes set forth in the
instrument.' Bryant v. Bryant, 125 Wn.2d 113, 118, 882 P.2d 169 (1994).
As such, a person appointed to act on behalf of a principal by a power of
attorney is no more than the principal's agent. Therefore, the power of
attorney does not confer on Phelps any more authority than that of
Schoonover's agent.

As noted, we construe RCW 4.92.100 as allowing a claimant's attorney or
agent to verify and sign the claim only if the claimant is a minor, a
nonresident, or incapacitated. Furthermore, in contrast to the contents of
the claim, which we liberally construe for substantial compliance, we
strictly construe the statutory filing requirements. Shannon, 110 Wn. App.
at 369; Levy, 91 Wn. App. at 942. Accordingly, whether Phelps verified and
signed Schoonover's claim in his capacity as his attorney or his agent is
ultimately immaterial, as neither status carries more
authority than the other. Thus, unless Schoonover can demonstrate that he
falls into one or more of the three statutory exceptions, Phelps'
verification is deficient.
In the alternative, Schoonover contends that he presented sufficient
evidence of his incapacitation so that his attorney's verification was
effective. But he failed to raise this issue below. He offered no
evidence, either by affidavits or offers of proof, to show his
incapacitation. Schoonover's only reference to his alleged incapacitation
is his request for an 'opportunity to present such evidence at a future
hearing' in his response to the State's motion for dismissal.2 CP at 39.
This is insufficient to warrant reversing the trial court's ruling.
Because Schoonover failed to present sufficient evidence of his
incapacitation, he does not meet the incapacitation exception.
Consequently, his attorney's verification was deficient, and the trial
court did not err in granting the State's motion to dismiss.
Equitable Estoppel

Schoonover next contends that the State is equitably estopped from
raising the claim filing deficiency defense where the State provided the
outdated claim form and instructions that his attorney used to prepare and
file his claim. He argues that the State cannot deny the validity of his
claim when he detrimentally relied on the State's representation.

Equitable estoppel may apply in a situation where one party makes an
admission, statement, or act, which another party justifiably relies on to
its detriment. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1,
19, 43 P.3d 4 (2002). The party relying on an equitable estoppel argument
must prove '(1) an admission, act or statement inconsistent with a later
claim; (2) another party's reasonable reliance on the admission, act or
statement; and (3) injury to the other party which would result if the
first party is allowed to contradict or repudiate the earlier admission,
act or statement.' Campbell, 146 Wn.2d at 20.

The party asserting equitable estoppel must prove the elements by
clear, cogent, and convincing evidence. Lybbert v. Grant County, 141 Wn.2d
29, 35, 1 P.3d 1124 (2000). But equitable estoppel does not apply where
both parties can determine the law and have knowledge of the underlying
facts. Lybbert, 141 Wn.2d at 35. See also Laymon v. Dep't of Natural
Resources, 99 Wn. App. 518, 526, 994 P.2d 232 (2000) (equitable estoppel
does not apply where the representations allegedly relied on are matters of
law, rather than fact) (citing Dep't of Ecology v. Theodoratus, 135 Wn.2d
582, 599-600, 957 P.2d 1241 (1998)). Finally, equitable estoppel against
the government is disfavored and requires a showing that it is necessary to
prevent a manifest injustice and that its application will not impair the
exercise of government functions. Campbell, 146 Wn.2d at 20.

Schoonover fails to establish any material inconsistency between the
outdated claim form and the State's later argument. On the outdated claim
form, just above the certification and line reserved for the 'Signature of
Claimant,' it states, 'Claimant or legal representative must sign this
claim form.' CP at 54. Immediately below the signature line, it states,
If the claimant is incapacitated from verifying, presenting, and filing
the claim or if the claimant is a minor, or is a nonresident of the state,
the claim may be verified, presented, and filed on behalf of the claimant
by any relative, attorney, or agent representing the claimant.' CP at 54.
Similarly, the current claim form states just above the certification and
signature line, 'Claimant must sign this form. If the claimant is
incapacitated from verifying, presenting, and filing the claim, or if the
claimant is a minor, or is a nonresident of the state, the claim may be
verified, presented, and filed on behalf of the Claimant by any relative,
attorney, or agent representing the claimant.' CP at 57. This language is
identical to the statutory language in RCW 4.92.100.

A review of the two claim forms discloses no material difference
between them. Both ask for the same information. The only difference is
that the current claim form states 'Claimant must sign this form' rather
than 'Claimant or legal representative must sign this claim form.' CP at
54, 57. But as noted, both claim forms follow these statements with the
statutory language that specifies the three exceptions where a third person
can sign and verify the claim form for the claimant. As a whole, the
difference between the two claim forms is insignificant. There is no
material inconsistency between the outdated claim form and the State's
position.

Even assuming Schoonover's attorney relied on the outdated claim form
in preparing and filing his claim, his estoppel argument fails. As noted,
equitable estoppel does not apply where the representation is a legal
matter. Laymon, 99 Wn. App. at 526. The interpretation of a statute, in
this case RCW 4.92.100, is purely legal. As such, equitable estoppel does
not apply.
Equal Protection

Schoonover next contends that the personal verification requirement in
RCW 4.92.100 violates his right to equal protection under the law. He
argues that because personal verification is not a requirement in other
civil proceedings, RCW 4.92.100's personal verification requirement creates
a special class of tort claimants against the State and does not further
any legitimate State goals.

The Fourteenth Amendment to the United States Constitution provides in
pertinent part, 'No state shall make or enforce any law which shall . . .
deny to any person within its jurisdiction the equal protection of the
laws.' Similarly, article I, section 12 of the Washington State
Constitution provides, 'No law shall be passed granting to any citizen,
class of citizens, or corporation other than municipal, privileges or
immunities which upon the same terms shall not equally belong to all
citizens, or corporations.' Our courts have held that these two provisions
offer the same level of protection. Seeley v. State, 132 Wn.2d 776, 788,
940 P.2d 604 (1997).

We presume statutes are constitutional. State v. Hennings, 129 Wn.2d
512, 524, 919 P.2d 580 (1996). 'A party challenging the constitutionality
of a statute has the heavy burden of proving its unconstitutionality beyond
a reasonable doubt.' State v. Blank, 131 Wn.2d 230, 235, 930 P.2d 1213
(1997). To show a violation of the equal protection clause, a party must
establish that the challenged statute treats unequally two similarly
situated classes of people. Fell v. Spokane Transit Auth., 128 Wn.2d 618,
635, 911 P.2d 1319 (1996). Absent a suspect classification or infringement
of a fundamental interest, a classification that is rationally related to a
legitimate state interest does not violate the right to equal protection.
Gossett v. Farmers Ins. Co., 133 Wn.2d 954, 979, 948 P.2d 1264 (1997).
We review claim filing statutes under the minimal scrutiny standard of
review. Daggs v. City of Seattle, 110 Wn.2d 49, 56, 750 P.2d 626 (1988).
Thus, the rational basis test applies. Under the rational basis test, the
statute must be rationally related to achieve a legitimate state interest
and will be upheld unless the classification rests on grounds that are
wholly irrelevant to achieving the state interest. DeYoung v. Providence
Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d 919 (1998). A classification does
not violate equal protection if there is any conceivable set of facts that
could provide a rational basis for the classification. Gossett, 133 Wn.2d
at 979.

Here, RCW 4.92.100 purports to create a class of tort claimants
against the State. This statute requires that tort claimants against the
State personally verify their tort claim, unless they are incapacitated, a
minor, or a nonresident.3 The purpose of personal verification is to
ensure
'the truthfulness of the pleadings and to discourage claims without merit.'
Levy, 91 Wn. App. at 943 (citing Griffith v. City of Bellevue, 130 Wn.2d
189, 194, 922 P.2d 83 (1996)). As the State notes, because of the many
functions and roles the State performs, the potential for tort claims
against the State is greater than any single private entity.
The personal verification requirement is a reasonable and effective
procedure to ensure that valuable public funds are not wasted on meritless
claims. Moreover, this procedural requirement does not create such a
substantial burden or impediment to governmental tort victims. See Pirtle
v. Spokane Pub. Sch. Dist. No. 81, 83 Wn. App. 304, 309, 921 P.2d 1084
(1996) (the statutory 60-day waiting period requirement between the filing
of a tort claim against a local governmental agency and the commencement of
a lawsuit does not violate equal protection), review denied, 131 Wn.2d 1014
(1997). Therefore, the personal verification requirement in RCW 4.92.100
does not violate the right to equal protection because it seeks to achieve
the legitimate State interest of saving valuable public funds.

Schoonover also argues that the personal verification requirement is
arbitrary because under RCW 4.96.020, similarly situated claimants against
local governmental entities do not have to verify their tort claims,
whereas claimants against the State do. He claims that a comparison of the
two statutes creates different classes of tort plaintiffs and raises equal
protection issues.

The purpose of statutory interpretation is to determine and give
effect to legislative intent, which is primarily determined from the
statutory language. In re Custody of Smith, 137 Wn.2d 1, 8, 969 P.2d 21
(1998). We will 'assume{} that the legislature means exactly what it says'
and not construe unambiguous language. Stillwell, 137 Wn.2d at 9 (citing
State v. McCraw, 127 Wn.2d 281, 288, 898 P.2d 838 (1995)). Further, we
cannot read into a statute what we believe the legislature has omitted, be
it an intentional or inadvertent omission. Stillwell, 137 Wn.2d at 12
(citing Automobile Drivers & Demonstrators Union Local 882 v. Dep't of
Retirement Sys., 92 Wn.2d 415, 421, 598 P.2d 379 (1979)). And '{e}very
provision must be viewed in relation to other provisions and harmonized if
at all possible.' Arbitration of Mooberry v. Magnum Mfg., Inc., 108 Wn.
App. 654, 657, 32 P.3d 302 (2001) (citing Omega Nat'l Ins. Co. v.
Marquardt, 115 Wn.2d 416, 425, 799 P.2d 235 (1990)). Statutes relating to
the same subject 'are to be read together as constituting a unified whole,
to the end that a harmonious total statutory scheme evolves which maintains
the integrity of the respective statutes.' Magnum Mfg., 108 Wn. App. at
657 (citing State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974)).

RCW 4.96.020 provides in its pertinent part,

(3) All claims for damages arising out of tortious conduct must
locate and describe the conduct and circumstances which brought about the
injury or damage, describe the injury or damage, state the time and place
the injury or damage occurred, state the names of all persons involved, if
known, and shall contain the amount of damages claimed, together with a
statement of the actual residence of the claimant at the time of presenting
and filing the claim and for a period of six months immediately prior to
the time the claim arose. If the claimant is incapacitated from verifying,
presenting, and filing the claim in the time prescribed or if the claimant
is a minor, or is a nonresident of the state absent therefrom during the
time within which the claim is required to be filed, the claim may be
verified, presented, and filed on behalf of the claimant by any relative,
attorney, or agent representing the claimant.

Here, although RCW 4.96.020 does not expressly require verification of
a tort claim against a local governmental agency, it does contain language
from which we can infer such a requirement. The language describing the
requirements for tort claims is identical in RCW 4.96.020 and RCW 4.92.100.
Both statutes require verification by the claimant of the claim unless the
claimant meets one of the three statutory exceptions. Reviewing the
statutory scheme as a whole to the end of maintaining the integrity of the
respective statutes, we conclude that
RCW 4.96.020 has the same verification requirements as RCW 4.92.100 and
Schoonover does not present an adequate equal protection challenge.

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