Rivas v. Overlake Hospital Medical Center

Fairhurst, J.

¶15 (dissenting) — The relevant tolling statute, RCW 4.16.190, unambiguously instructs the court to determine disability according to the standard set forth in chapter 11.88 RCW, the guardianship act. The guardianship act bases a determination of disability or incapacity “upon a demonstration of management insufficiencies over time.” RCW 11.88.010(l)(c). Because the majority removes this foundational element from the statute, I respectfully dissent. In my view, Susan Rivas must demonstrate management insufficiencies “over time” in order to avail herself of the tolling statute. Rivas’ short-lived disability fails to evidence a “demonstration of management insufficiencies over time,” and, therefore, I would affirm the Court of Appeals.

¶16 Exemptions to the statutes of limitations are “ 'strictly construed, and cannot be enlarged from considerations of apparent hardship or inconvenience.’ ” Rushlight *272v. McLain, 28 Wn.2d 189, 199, 182 P.2d 62 (1947) (quoting 34 Am. Jub. § 189, at 153). When interpreting any statute, our chief concern is to carry out the legislature’s intent. In re Det. of Martin, 163 Wn.2d 501, 506, 182 P.3d 951 (2008). We start our inquiry with the statute’s plain language. Id. at 508. We cannot rewrite an unambiguous statute, regardless of whether we think the legislature intended something else but failed to adequately express itself. Id. at 509. We should also avoid statutory interpretations that would render a portion of the statute superfluous or meaningless. Ford Motor Co. v. City of Seattle, 160 Wn.2d 32, 41, 156 P.3d 185 (2007).

¶17 The majority’s interpretation of the tolling statute and the guardianship act renders subsection (c) of the substantive standard entirely superfluous. To reach its conclusion, the majority relies on our construction of the tolling statute and former guardianship statutes in Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 770 P.2d 182 (1989). I agree with the majority that Young counsels the court to borrow the substantive standard of incapacity contained in the guardianship act to determine whether tolling applies. Id. at 222.

¶18 Since Young, however, the legislature completely revised the substantive standard for determining incapacity. In Young, the court examined the following definition:

“An ‘incompetent’ is any person who is either:
“(a) Under the age of majority, as defined in RCW 11.92.010, or
“(b) Incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his property or caring for himself or both.
“. . . [T]he term ‘disabled person’ means an individual who is in need of protection and assistance by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, but cannot be found to be fully incompetent.”

*273Id. at 221 (alterations in original) (quoting former RCW 11.88.010(1), (2) (1977)). Under this former statute, the substantive standard for determining incapacity focused on the specific condition underlying the individual’s incapacity. Id.

fl9 The current standard for determining incapacity focuses on the practical effect of being incapacitated — being unable to care for oneself or one’s estate. RCW 11.88-.010(l)(a), (b). The legislature also added subsection (c) to the standard, requiring that the determination be based “upon a demonstration of management insufficiencies over time.” RCW 11.88.010(l)(c). The Young court, however, could not consider the import of the “over time” language because it did not exist in the former version of the statute. Id. I disagree with the majority’s conclusion that we should not consider the “over time” language as part of the substantive standard for incapacitation based on Young. Id. Rather, if our holding in Young compels us to base a determination of disability for tolling purposes on the substantive standard contained in RCW 11.88.010(1), then we must also include subsection (c), which requires a “demonstration of management insufficiencies over time.” RCW 11.88.010(l)(c).

¶20 The majority, however, mischaracterizes the “over time” language as procedural, not substantive, merely referring to the length of time it takes to appoint a guardian. Majority at 270. Read in context, however, the “over time” language does relate to the substantive condition of the allegedly incapacitated person. Subsection (c) refers to the permanence of the allegedly incapacitated person’s condition. RCW 11.88.010(l)(c) provides, “A determination of incapacity is . . . based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.” In other words, a finding or determination of incapacity must include a demonstration of management insufficiencies over time. Because subsection (c) refers to the allegedly *274incapacitated person’s condition and the guardianship act bases a determination of incapacity upon subsection (c), its “over time” language constitutes an essential element of the substantive standard to determine disability for the purposes of tolling. RCW 11.88.010(l)(c).

¶21 When one measures Rivas’ temporary condition against the full standard for determining incapacity, Rivas’ tolling argument fails as a matter of law. Rivas’ transient incapacitation in the hospital fails to demonstrate management insufficiencies over time. I would affirm the Court of Appeals and hold Rivas was not incapacitated as determined by the guardianship act and, therefore, the statute of limitations did not toll.

Alexander, C.J., and J.M. Johnson, J., concur with Fairhurst, J.

Reconsideration denied October 20, 2008.