SUPREME COURT OF ARIZONA
En Banc
In the Matter of the Estate of )
MARY WINN, )
) Arizona Supreme Court
Deceased. ) No. CV-06-0076-PR
__________________________________)
) Court of Appeals
THE ESTATE OF MARY WINN, ) Division One
Deceased, by and through GEORGE ) No. 1 CA-CV 05-0129
WINN on behalf of themselves and )
survivors of MARY WINN, ) Maricopa County
) Superior Court
Plaintiff/Appellant, ) No. CV2003-017852
)
v. )
)
PLAZA HEALTHCARE, INC., an ) O P I N I O N
Arizona corporation d/b/a PLAZA )
HEALTHCARE; PLAZA HEALTHCARE )
SCOTTSDALE CAMPUS, an Arizona )
corporation d/b/a PLAZA )
HEALTHCARE, )
)
Defendants/Appellees. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Ruth Harris Hilliard, Judge
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
212 Ariz. 117, 128 P.3d 234 (2006)
VACATED
________________________________________________________________
CHARLES M. BREWER, LTD. Phoenix
By David L. Abney
Attorneys for The Estate of Mary Winn
JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By David S. Cohen
Eileen Dennis GilBride
Attorneys for Plaza Healthcare, Inc. and
Plaza Healthcare Scottsdale Campus
WILKES & McHUGH, P.A. Phoenix
By Melanie L. Bossie
James M. Morgan
Terry Schneier
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
________________________________________________________________
B E R C H, 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
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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
1
There have been no relevant substantive changes to the
statute since Mary Winn’s death in 1999. In this opinion,
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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
unless otherwise noted, we refer to the current version of
A.R.S. § 46-455.
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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
2
Section 14-3709, which sets forth the right and duty of the
personal representative to possess or control the decedent’s
property for purposes of administration, is not directly at
issue in this case. See A.R.S. § 14-3709(A) (2005).
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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
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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
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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
3
At that time, current subsection (H)(4) was designated
subsection (F)(4), current subsection (O) was designated
subsection (M), and current subsection (P) was designated
subsection (O). A.R.S. § 46-455(F)(4), (M), (O) (1989).
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adults are near the end of their lives. Under
defendants’ theory, the tortfeasor 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, the legislature intended
through subsections (O) and (P) to remove probate code or other
limitations on the personal representative’s ability to seek a
remedy on behalf of a deceased elder abuse victim’s estate.
This freedom from restrictions furthers the goal of protecting
the elderly from abuse, neglect, and exploitation.
¶15 We thus conclude here, as we did in Denton, that
limitations placed on personal representatives by the probate
code do not restrict APSA claims. We therefore hold that a
late-appointed personal representative may bring an APSA claim
pursuant to § 46-455(B) on behalf of a deceased victim’s estate
provided that the limitations period on the claim has not run.
This result comports with the plain language of § 46-455 and
serves the goal of protecting vulnerable adults.
¶16 This conclusion is supported as well by the rules of
statutory construction. Those rules provide that “when there is
conflict between two statutes, ‘the more recent, specific
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statute governs over the older, more general statute.’” Denton,
190 Ariz. at 157, 945 P.2d at 1288 (quoting Lemons v. Superior
Court, 141 Ariz. 502, 505, 687 P.2d 1257, 1260 (1984)). Section
14-3108(4) of the probate code applies to the administration of
all estates in which probate commences more than two years after
the decedent’s death. Section 46-455, on the other hand,
applies only to a limited group of “incapacitated or vulnerable
adult[s]” who have been abused, neglected, or exploited by their
caregivers. A.R.S. § 46-455(B). In addition to being the more
specific statute, APSA § 46-455 is also more recent than probate
code § 14-3108(4). Section 14-3108, including subsection (4),
was enacted in 1973. 1973 Ariz. Sess. Laws, ch. 75, § 4. The
relevant provisions of APSA were enacted in 1989. 1989 Ariz.
Sess. Laws, ch. 118, § 3. Thus, § 46-455, being the more recent
and specific statute, would prevail over § 14-3108(4). See
Denton, 190 Ariz. at 157, 945 P.2d at 1288.
¶17 Practical and policy considerations also support our
conclusion. Plaza’s suggested reading of § 14-3108(4) has the
effect of truncating the limitations period for APSA claims
brought under the old statute, A.R.S. § 46-455(I) (Supp. 1998),
from seven years to two years if the victim dies and no personal
representative is appointed within two years after death, as was
the case here. Had Mary lived, she could have pursued her APSA
claim because it was filed within the limitations period.
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Because she died, however, and no personal representative was
appointed within two years after her death, Plaza would have us
bar Mary’s APSA suit, even though filed within the limitations
period. This interpretation frustrates the APSA requirement
that a cause of action brought pursuant to the statute “shall
not be limited or affected by the death of the incapacitated or
vulnerable adult.” See A.R.S. § 46-455(P). Allowing § 14-
3108(4) of the probate code to eliminate George’s right to
pursue the suit, when Mary could have maintained it had she been
alive, directly “limits or affects” the right to bring suit
after the death of the elder abuse victim, violating the
language and spirit of APSA § 46-455.
¶18 Plaza argues, however, that despite language in § 46-
455 prohibiting limitations on APSA claims, limitations are in
fact imposed on APSA claims by sources such as the rules of
civil procedure and evidence. Plaza reasons that limitations
imposed by the probate code should similarly be allowed.
Limitations imposed by rules of civil procedure and evidence are
not, however, the kinds of limitations the legislature had in
mind when drafting subsections (O) and (P). The legislature
intended to remove limitations on an elder abuse victim’s
available remedies, including limitations on recovery arising at
or after the victim’s death. See A.R.S. § 46-455(O)-(P);
Denton, 190 Ariz. at 156-57, 945 P.2d at 1287-88. Section 14-
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3108(4), if read to preclude any APSA claim brought by a
personal representative appointed more than two years after the
death of an elder abuse victim, is precisely the type of
limitation on remedies subsections (O) and (P) were designed to
remove.
¶19 Finally, Plaza maintains that the policy of promoting
the efficient administration of estates underlying the probate
code, and § 14-3108 in particular, supports barring a late-
appointed personal representative from bringing an APSA claim on
behalf of a deceased victim’s estate. We conclude, however,
that a full statement of the probate policy supports a contrary
result.
¶20 As Plaza correctly observes, the probate code was
designed to “promote a speedy and efficient system for
liquidating the estate of the decedent and making distribution
to his successors.” A.R.S. § 14-1102(B)(3); see also In re
Estate of Wood, 147 Ariz. 366, 368, 710 P.2d 476, 478 (App.
1985) (finding “finality” “implicit in this stated purpose”).
The scant case law on § 14-3108 in Arizona and analogous Uniform
Probate Code provisions in other states, 4 however, illustrates
that efficient administration and finality are not ends in
4
Arizona’s probate code is modeled after the Uniform Probate
Code. Wood, 147 Ariz. at 368, 710 P.2d at 478; see also A.R.S.
§ 14-1102(5) (2005).
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themselves, but rather are intended to protect the decedent’s
successors and creditors from disruptions to possession of the
decedent’s property. See In re Estate of Taylor, 675 P.2d 944,
946 (Mont. 1984); see also Wood, 147 Ariz. at 368, 710 P.2d at
478 (citing Taylor with approval in analyzing A.R.S. § 14-3108);
In re Estate of Baca, 984 P.2d 782, 786 (N.M. Ct. App. 1999)
(citing Taylor with approval in analyzing a statute analogous to
A.R.S. § 14-3108(4)). Yet Plaza, a putative tortfeasor, seeks
to invoke this policy to protect itself from potential
liability, and, if successful, would deprive Mary Winn’s
successors of a potentially valuable estate asset – the APSA
claim. Such a result would contravene the policy of efficient
administration of estates for the benefit of successors and
creditors that underlies the probate code. Our holding today
avoids this result.
¶21 Because APSA provisions and policy resolve this case,
we need not determine the general limitations on the powers of a
late-appointed personal representative imposed by A.R.S. § 14-
3108(4), including whether a personal representative must
“possess” a claim in order to pursue it on behalf of a
decedent’s estate.
CONCLUSION
¶22 For the foregoing reasons, we conclude that A.R.S.
§ 14-3108(4) does not preclude a late-appointed personal
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representative from bringing an otherwise timely APSA claim
under § 46-455(B) on behalf of a deceased victim’s estate.
Accordingly, the judgment of the court of appeals is vacated,
the superior court’s grant of summary judgment in favor of Plaza
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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