IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TERI COLLIER,
No. 85177-2-I
Appellant,
v. DIVISION ONE
WASHINGTON STATE DEPARTMENT UNPUBLISHED OPINION
OF HEALTH/NURSING COMMISSION,
and WASHINGTON HEALTH
PROFESSIONAL SERVICES,
Respondents.
COBURN, J. — Teri Collier appeals the summary judgment dismissal of her
claims of negligent misrepresentation, intentional misrepresentation, and
intentional infliction of emotional distress against the Washington State
Department of Health (Department), the Nursing Care Quality Assurance
Commission (Commission) 1 and Washington Health Professional Services
(WHPS). These claims are based on the same issue and facts from an
administrative hearing which resulted in temporary suspension of Collier’s license
to practice as a registered nurse in Washington. Because Collier had every
opportunity and incentive to vigorously litigate these issues at her administrative
1
Collier’s complaint identified two of the defendants as “Washington State
Department of Health/Nursing Commission.” The Washington Department of Health and
the Nursing Care Quality Assurance Commission are the correct names of these parties.
The Commission is a governor-appointed statewide commission, whose purpose is to
regulate the competency and quality of health care providers under its jurisdiction. RCW
18.79.010, .070.
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hearing and subsequent judicial review, we affirm the summary judgment
dismissal on the basis of collateral estoppel.
FACTS
Collier, a licensed registered nurse since 2000, was employed at a
hospital in Lakewood, Washington in 2015. In October 2015, coworkers
observed Collier exhibit “abnormal behavior and signs of impairment.” She
admitted taking some medication, but refused to take a “for cause” drug test and
was removed from the work schedule. A review of Collier’s medication
administration records and hospital medication logs revealed drugs that were
unaccounted for.
The Commission opened a complaint against Collier and initiated remedial
proceedings. Under the Uniform Disciplinary Act, this took the form of a
Stipulation to Informal Disposition (STID), a statutory informal settlement that
resolves allegations of unprofessional conduct short of administrative
proceedings. Ch. 18.130 RCW. RCW 18.130.172 provides that “the disciplinary
. . . authority may furnish a statement of allegations to the licensee along with a
detailed summary of the evidence relied upon to establish the allegations and a
proposed stipulation for informal resolution of the allegations.”
Collier entered into a STID with the Commission. She and her counsel
signed the STID under a statement that Collier read, understood and agreed to
the STID. Under the agreement, Collier agreed to “contact and actively
participate in the intake process with the Washington Health Professional
Services (WHPS) monitoring program.” Under the STID,
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[i]f Respondent is required to enroll and participate in the WHPS
monitoring program, it will be at her expense, until the program
determines that participation in the program is no longer necessary.
The length of participation in the WHPS monitoring program will be
at the sole discretion of the program. Initial monitoring contracts
may have a duration of one (1) to five (5) years and will require
biological fluid or tissue screenings as deemed necessary by the
WHPS monitoring program. Failure to comply with requirements of
the WHPS monitoring program, terminating the program without
permission, or being expelled from the program shall constitute a
violation of this Stipulation by Respondent and will subject
Respondent to further discipline.
The final agreement did not include language from a previous draft that Collier
had objected to. Her counsel, after receiving the initial draft STID, successfully
requested the STID remove language that would have required Collier to be on
two years of probation even if an evaluation determined that she did not have a
substance abuse issue.
From a list of approved providers, Collier selected Dr. Scott Wykes to
complete a substance abuse evaluation. Wykes ultimately diagnosed Collier with
a mild sedative use disorder and submitted his evaluation to the Commission. A
member of WHPS’ monitoring program reviewed the evaluation and determined
that Collier should participate in the WHPS monitoring program for three years
and forwarded a contract for Collier to sign. After Collier refused to sign the
contract, WHPS closed her file and the Commission opened a complaint against
Collier alleging that she failed to sign a WHPS contract. In August 2017, the
Commission issued a Statement of Charges against Collier for noncompliance.
The Department of Health Nursing Program alleged that Collier committed
unprofessional conduct as defined by RCW 18.130.180(9) for failing to comply
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with an STID. Collier denied the majority of allegations in the Statement of
Charges and requested an administrative hearing.
PROCEDURAL HISTORY
In January 2018, the hearing was held before a three-member panel of the
Commission. Collier was represented by her counsel while the Department was
represented by an Assistant Attorney General. The parties presented testimony
and exhibits. The Department presented testimony of a case manager from
WHPS. Collier testified on her own behalf and presented the testimony of Dr.
Wykes.
At the hearing, Collier submitted the initial proposed STID, the signed
STID, and the e-mail string between her counsel and the attorney for the
Commission reflecting her counsel’s request to eliminate the language from the
proposed STID that would have required two years’ probation even if Collier was
found to not have a substance use problem. Collier maintained that she did
comply with the STID by obtaining an evaluation because the Commission made
a fundamental grammatical mistake in paragraph 2.2. That part of the STID
reads:
The Commission has determined that requiring Respondent to
obtain a substance abuse evaluation through the WHPS monitoring
program and, if recommended by the WHPS monitoring program,
to enroll in the program and abide by its treatment requirements
and practice restrictions will adequately protect the public’s health,
safety and welfare.
Relevant in this appeal is Collier’s argument at the hearing that the Commission’s
“use of a comma” tied the two concepts of “requirement to have a substance
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abuse evaluation” and WHPS’ “independent ability to require [Collier] to engage
in a monitoring program” together rather then creating “two separate
components.”
In its amended findings, the Commission disagreed and concluded “the
placement of the comma does not prevent [Collier] from understanding that she
was required to obtain an evaluation and was required to enroll in the program if
the WHPS monitoring program so determined.” The Commission noted that
“Dr. Wykes admitted [that] he does not decide if the WHPS monitoring program
requires monitoring.” The Commission found that “Paragraphs 2.2 and 3.1 of the
[STID] clearly state that the WHPS monitoring program, and not the evaluator,
determines whether [Collier] is required to participate in the monitoring program.”
The Commission suspended Collier’s license to practice as a registered nurse in
Washington until she signs the WHPS contract and complies with their
monitoring program.
In March 2018, Collier petitioned the Snohomish County Superior Court
for judicial review. In February 2022, the superior court denied the petition for
review, finding that the “Commission did not err when it concluded that the
language of the executed Stipulation to Informal Disposition clearly stated that
the Washington Health Professional Services program, not the evaluator,
determines whether Ms. Collier is required to participate in the monitoring
program.”
A commissioner of this court denied review because Collier filed a late
notice of appeal in March 2022. While Collier had been seeking judicial review of
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the administrative decision by the Commission, Collier also filed a civil lawsuit in
October 2018 against the Department, Commission and WHPS for negligent
misrepresentation, intentional misrepresentation, and negligent infliction of
emotional distress. Collier claims that she “relied on the negotiated terms of the
[STID and] followed through completely and complied with all terms of the [STID]
as drafted and agreed.” She alleges that in her reliance she was misled by the
Commission which was “aware that despite the negotiated and agreed upon
[STID] the WHPS program would impose its own contract and require
substantially the same provisions removed with the agreement of the
Commission [to the amended] STID.” Collier based all her claims around the
language in the STID.
Respondents filed a joint motion for summary judgment in February 2023.
They assert that prior rulings applied to all the issues under the theory of
collateral estoppel, that Collier has not sufficiently pled the elements of her
claims, and that quasi-judicial immunity and statutory immunity precludes the
lawsuit against the Commission and WHPS. Snohomish County Superior Court
granted respondents’ motion for summary judgment and dismissed the matter
with prejudice. The court did not identify on which basis the court based its
ruling.
Collier appeals.
DISCUSSION
We review a trial court’s grant of summary judgment de novo. Ranger Ins.
Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary
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judgment is an appropriate remedy “only when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law.”
Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014); see also CR
56(c). A genuine issue of material fact exists where reasonable minds could
differ on the facts controlling the outcome of the litigation. Wilson v. Steinbach,
98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
The doctrine of collateral estoppel “is well-known to Washington law as a
means of preventing the endless relitigation of issues already actually litigated by
the parties and decided by a competent tribunal. Collateral estoppel promotes
judicial economy and prevents inconvenience, and even harassment, of parties.”
Reninger v. Dep’t of Corrections, 134 Wn.2d 437, 449, 951 P.2d 782 (1998).
Collateral estoppel, where applicable, is employed to “prevent[] a second
litigation of issues between the parties, even though a different claim or cause of
action is asserted.” Seattle-First Nat’l Bank v. Kawachi, 91 Wn.2d 223, 225-26,
588 P.2d 725 (1978) (emphasis added).
Respondents argue, and Collier concedes, that “the central issue in all of
Collier’s present claims” is whether the STID was unequivocal that the WHPS
had authority to decide that Collier was required to enroll in a monitoring program
following the report from Dr. Wykes. This question was resolved with finality at
the administrative proceedings and subsequent appeal for judicial review.
Because “[d]ecisions of administrative tribunals may have preclusive effect,” we
analyze the elements of collateral estoppel of the relevant agency findings to
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determine whether Collier’s claims hinge on an issue that has not already been
litigated with finality. Reninger, 134 Wn.2d at 449.
Before collateral estoppel may be applied to an agency finding, we first
consider three factors under Washington law: “(1) whether the agency acted
within its competence, (2) the differences between procedures in the
administrative proceeding and court procedures, and (3) public policy
considerations.” Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299,
308, 96 P.3d 957 (2004) (citing State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d
961 (1980)).
Collier maintains that “the actions of the [Commission] were not within its
competence when it unilaterally acted to force Collier to comply with the very
terms that she and her [c]ounsel had negotiated out of the original STID.” She
also summarily asserts that Christensen is inapposite, but presents no supporting
argument. The alleged unilateral action was WHPS dictating to Collier its
determination of the length of her participation in the monitoring program, which
flows from the STID that provides that WHPS has “the sole discretion” to
determine the length of participation. The record establishes that the agency’s
actions conform to the statutory powers that the legislature assigned the
Commission under the Uniform Disciplinary Act, chapter 18.130 RCW. RCW
18.130.172 provides the basis for the Commission’s presentation of a “proposed
stipulation of informal resolution of the allegations.” RCW 18.130.180 expressly
outlines what conduct may constitute unprofessional conduct for a license holder.
RCW 18.130.160 outlines the sanctions that may be imposed by such a
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stipulation. Nothing in the record suggests that the Commission did not act
within its competence.
The record also establishes that the administrative hearing was a
sufficient forum to litigate the issue and Collier presents no argument otherwise.
She also does not put forth any public policy considerations which would weigh
against application of collateral estoppel. We see no reason to not consider the
application of collateral estoppel on the administrative agency decision.
We turn now to the universal elements of collateral estoppel. The party
which asserts collateral estoppel must prove:
(1) the issue decided in the prior adjudication is identical with the
one presented in the second action; (2) the prior adjudication must
have ended in a final judgment on the merits; (3) the party against
whom the plea is asserted was a party or in privity with the party to
the prior adjudication; and (4) application of the doctrine does not
work an injustice.
Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d
312 (1998).
The first three elements are plainly met here. Collier disputes the fourth
because of the “disparity of relief” between the administrative hearing remedies
and those available in this civil tort action. The Supreme Court has recognized
that “disparity of relief may be so great that a party would be unlikely to have
vigorously litigated the crucial issues in the first forum and so it would be unfair to
preclude relitigation of the issues in a second forum.” Christensen, 152 Wn.2d at
309. Further,
[d]isparity of relief between what one can recover in the first action
compared to what one can recover in the second action is not the
gravamen of the decision whether to apply collateral estoppel to the
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findings of an administrative board. Rather, courts look to disparity
of relief to determine whether sufficient incentive existed for the
concerned party to litigate vigorously in the administrative hearing.
Courts have reasoned that, if the amount a party can recover in an
administrative proceeding is insignificant, the party is not likely to
have litigated the crucial issues vigorously.
Reninger, 134 Wn.2d at 453.
A significant disparity between the available remedies arises, Collier
argues, because the “prior action was purely administrative and addressed the
suspension of her nursing license . . . [t]his tort action while admittedly based
upon substantially the same facts addresses completely different issues, the
administrative reinstatement of her license and the serious financial impact
results from wrongful conduct she has experienced.” Collier argues that her
incentives between the administrative and civil claims differ to the same degree
as in Sprague v. Spokane Valley Fire Dep’t, 189 Wn.2d 858, 409 P.3d 160
(2018), and in Weaver v. City of Everett, 194 Wn.2d 464, 475-76, 450 P.3d 177
(2019).
In Sprague, a firefighter who had lost an employment appeal before a
county administrative commission court, then brought a civil action against the
fire department. 189 Wn.2d at 903. It is true that the Sprague plaintiff was
seeking additional previously-unavailable damages for lost wages and benefits.
However, they also sought additional kinds of relief unavailable in the
administrative action: damages for a civil rights violation and a declaratory
judgment invalidating fire department policy. Id. at 903. These arose from a
constitutional (free speech) issue that the administrative agency was prevented
from addressing by nature of its statutorily-limited jurisdiction. Id. at 901-02. The
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mere availability of lost wages and benefits (arising as a function of additional
time between the administrative decision and the civil claim) was not a decisive
factor in Sprague but incident to other overriding factors such as public policy
and questions of constitutional importance. Id. at 900 (“[M]ost particularly, [this
civil case] differs because Sprague’s underlying claim is a constitutional one for
which we grant the Commission no deference.”).
In Weaver, a firefighter filed an administrative claim for temporary
disability for five weeks of lost wages incurred while he received treatment for
melanoma. 194 Wn.2d at 475-76. Weaver’s treating oncologist was not called to
testify and the administrative law judge concluded that the City had rebutted the
statutory presumption of occupational disease and affirmed the Department’s
denial of Weaver’s claim. Id. at 469-70. Later, after new symptoms arose and a
scan revealed that Weaver had developed a metastatic2 cancer tumor in his
brain, Weaver’s treating oncologist estimated that Weaver had a 20-30 percent
chance of surviving two more years and opined that the metastatic melanoma
would likely cause his death. Id. at 470-71. Unable to continue working, Weaver
then filed a permanent disability benefits claim. Id. at 471. “The total amount of
pension benefits that Weaver sought was estimated at greater than $2 million:
more than $5,000 per month, which his wife would continue to receive for the rest
of her life to support their three minor children.” Id. His claim for temporary
disability thus “differed by an order of magnitude” with the incentives behind his
2
Metastasis is a process by which cancer spreads from one part of the body to
the other.
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subsequent civil action claim for “continuing pension” permanent total disability.
Id. at 475-76. The Weaver court concluded “that application of collateral
estoppel would work an injustice because Weaver did not have sufficient
motivation to fully and vigorously litigate the issue of whether his melanoma was
an occupational disease at the temporary disability claim stage.” Id. at 477.
Sprague and Weaver are distinguishable from the instant case.
Respondent correctly identifies that, unlike Sprague, the issues litigated in this
tort action do not present any new “unique constitutional questions that impact
public policy.” Instead, this action centers solely on the same issue of contract
interpretation finalized in the previous administrative action. Unlike the litigant in
Weaver, Collier had the same incentive in both matters: a finding that she did
comply with the STID and should not have had her nursing license suspended.
Also, disparity in the types of relief available does not necessarily mean
the application of estoppel works an injustice. Shoemaker v. City of Bremerton,
109 Wn.2d 504, 513, 745 P.2d 858 (1987). A civil service commission rejected
Shoemaker’s claim that he, a police captain, was demoted in bad faith and not
for cause. Id. at 506. Shoemaker later filed a civil rights action in federal district
court pursuant to 42 U.S.C. § 1983. Id. at 507. The federal district court
“granted summary judgment against Shoemaker on the ground, in part, that the
determination by the Commission that his demotion was not retaliatory was
binding on the federal court under the doctrine of collateral estoppel.” Id.
Shoemaker appealed to the Ninth Circuit Court of Appeals, which certified to the
Washington Supreme Court the question of whether Washington law affords
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preclusive effect in such circumstances. Id. at 505. Our Supreme Court
answered in the affirmative, Id. at 513, reasoning that ‘[w]hile the Commission
could not have adjudicated the section 1983 claim, 28 U.S.C. § 1343, it may
have decided an issue of fact that is common to both Shoemaker's petition for
reinstatement before the Commission and to his section 1983 claim.” Id. at 512.
The Supreme Court also noted that the “fact that the issue determined is also a
central element in the federal civil rights claim does not mean that giving
preclusive effect to that determination is an improper application of claim
preclusion or that the Commission has acted beyond its competence.” Id. at 512-
13. The court noted that “Shoemaker also made claims for emotional distress in
the civil rights suit which could not have been awarded by the Commission, but
this disparity, given the uncertainty of such recovery, is not as great as the
disparity of relief” found in other cases. Id. at 513 (citing as an example Mack v.
S. Bay Beer Distribs., Inc., 798 F.2d 1279 (9th Cir. 1986), abrogated on other
grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S. Ct.
2166, 115 L. Ed.2d 96 (1991)).
Collier presents no meaningful argument to support her assertion that a
disparity of relief exists, much less that it would support a conclusion that
collateral estoppel works an injustice here. She only generally alleges that the
“wrongful conduct” caused a “financial impact” upon her. That wrongful conduct
centers around the same underlying issue based on the same facts that she
raised in her administrative hearing involving the same parties. Collateral
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estoppel precludes her tort action. The trial court did not err in granting
respondents’ summary judgment motion to dismiss with prejudice. 3
Affirmed.
WE CONCUR:
3
Because we affirm the dismissal on the basis of collateral estoppel, we need
not reach respondents’ other issues raised in their summary judgment motion.
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