                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        May 10, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 MICHAEL J. COLLINS,                                                 No. 47565-1-II

                               Appellant,

        v.

 STATE OF WASHINGTON & OFFICE OF                            UNPUBLISHED OPINION
 THE GOVERNOR; OFFICE OF THE
 ATTORNEY GENERAL; DEPARTMENT OF
 LABOR & INDUSTRIES IN ITS/THEIR
 OFFICIAL CAPACITY,

                               Respondents.

       LEE, J. — Michael J. Collins appeals the trial court’s CR 12(b)(6) dismissal of two

complaints he filed against the State of Washington, the governor, the attorney general, and the

Department of Labor & Industries for the denial of benefits involving a 1993 industrial injury. He

claims the trial court erred by dismissing his constitutional tort and intentional infliction of

emotional distress/tort of outrage claims. We disagree and affirm.

                                              FACTS

       In January 1993, Collins filed an application for benefits with the Department due to an

on-the-job injury while employed with AROK Construction. The Department approved the
NO. 47565-1-II


application and awarded Collins temporary benefits. In April 1995, the Department closed the

claim.

         In February 2006, Collins requested to reopen his claim, alleging an aggravation of his

condition. The Department reopened the claim, approved medical benefits, but denied time loss

compensation and a partial disability award. Collins protested, and the Department affirmed.

Collins appealed to the Board of Industrial Insurance Appeals (BIIA).

         In his appeal, Collins alleged he never received the April 1995 order closing his claim. The

BIIA determined that he had made a sufficient prima facie showing that he had not received the

1995 order and remanded the matter to complete adjudication of Collins’ claim. The Department

reassessed and ordered an independent medical evaluation (IME). Following the IME, the

Department issued a new closing order, denying time loss and disability benefits and ending the

payment of medical benefits.

         Collins unsuccessfully sought relief in both state and federal appellate courts. See Collins

v. Dep’t of Labor & Indus., No. 10-CV-05247-RBL, U.S. Dist. (W.D. Wash. 2010); Collins v.

Dep’t of Labor & Indus., 163 Wn.2d 1020 (2008); Collins v. Dep’t of Labor & Indus., 167 Wn.2d

1019 (2010). He also unsuccessfully requested to reopen his claim with the Department in 2010.

         In November 2014, Collins filed a complaint against the State of Washington, the governor,

the attorney general, and the Department (collectively “the defendants”), alleging, among other

torts, intentional infliction of emotional distress/tort of outrage and a constitutional tort cause of

action for damages resulting from a violation of his due process rights. He amended his complaint

twice, adding additional facts to support his claims.




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NO. 47565-1-II


       Following the January 2015 filing of the second amended complaint, the defendants moved

for dismissal under CR 12(b)(6) for failure to state a claim upon which relief can be granted. In

February 2015, the superior court granted the defendants’ motion. However, the superior court

ruled that “Plaintiff may file an amended complaint to attempt to state a legally sufficient claim on

or before March 27, 2015, provided that the amended complaint may not assert claims arising from

the Washington Constitution, RCW 43.10.030 [attorney general’s powers and duties], or RCW

43.06.010 [governor’s powers and duties], such claims having been dismissed with prejudice by

this order.” Clerk’s Papers (CP) at 277.

       Collins timely filed a third amended complaint in March 2015. In his third amended

complaint, Collins alleged the same operative facts as those alleged in prior complaints and again

claimed intentional infliction of emotional distress/tort of outrage. The defendants requested

dismissal under CR 12(b)(6). The superior court granted the motion and dismissed Collins’s

claims in April 2015. Collins unsuccessfully moved for reconsideration. Collins appeals.

                                            ANALYSIS

       As an initial matter, Collins assigns error to the February 2015 dismissal order and the

April 2015 dismissal order. His notice of appeal, however, only refers to the superior court’s order

denying reconsideration of the April 2015 order. Generally, this court only reviews those orders

designated in the notice of appeal. See RAP 5.3(a)(3) (notice of appeal must designate decision

for review). However, since the January 2015 and the March 2015 complaints were incrementally

dismissed with the superior court contemplating the filing of a third amended complaint, we reach

the issues involving both complaints.




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NO. 47565-1-II


A.     LEGAL PRINCIPLES

       Collins contends the superior court erred by dismissing his tort claims under CR 12(b)(6).

We review de novo an order granting a motion to dismiss under CR 12(b)(6). FutureSelect

Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014);

Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007).

       Dismissal under CR 12(b)(6) is appropriate in those cases where the plaintiff cannot prove

any set of facts consistent with the complaint that would entitled the plaintiff to relief. Bravo v.

Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995).                “‘[A]ny hypothetical situation

conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to

support the plaintiff's claim.’” Id. at 750 (alteration in original) (quoting Halvorson v. Dahl, 89

Wn.2d 673, 674, 574 P.2d 1190 (1978)). All facts alleged in the plaintiff’s complaint are presumed

true. Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998), cert. denied,

525 U.S. 1171 (1999). However, the complaint’s legal conclusions are not required to be accepted

on appeal. Haberman v. Washington Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d

1032, 750 P.2d 254 (1987). “If a plaintiff's claim remains legally insufficient even under his or

her proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is appropriate.” Gorman v.

Garlock, Inc., 155 Wn.2d 198, 215, 118 P.3d 311 (2005).

       Washington’s Industrial Insurance Act (IIA), Title 51 RCW, provides the exclusive remedy

for workers who are injured during the course of their employment. Wash. Ins. Guar. Ass’n v.

Dep’t of Labor & Indus., 122 Wn.2d 527, 530, 859 P.2d 592 (1993); RCW 51.04.010. Thus, the

IIA precludes any “tort claims if those claims arise out of an ‘injury’ . . . that is compensable under




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NO. 47565-1-II


the [IIA].” Rothwell v. Nine Mile Falls Sch. Dist., 173 Wn. App. 812, 819, 295 P.3d 328 (2013)

(quoting Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1051 (9th Cir. 1995)).

       Tort claims may arise when the employer acts with deliberate intention. RCW 51.04.020.

Our Supreme Court considered the meaning of “deliberate intention” in Birklid v. Boeing Co., 127

Wn.2d 853, 865, 904 P.2d 278 (1995), and held “the phrase ‘deliberate intention’ in RCW

51.24.020 means the employer had actual knowledge that an injury was certain to occur and

willfully disregarded that knowledge.” Here, however, rather than arguing his employer acted

with deliberate intention, Collins uniquely applies the deliberate intention test to several state

agencies for the wrongful denial of his claims. His arguments fail because a constitutional tort

action is not recognized in Washington and the tort of outrage is not supported by the record.1

B.     CONSTITUTIONAL TORT

       Collins first argues the superior court overlooked facts and law pertaining to his

constitutional tort claim. He claims he should be compensated for the harm caused by the State’s,

the governor’s, the attorney general’s, and the Department’s alleged intentional violation of his

due process rights.

       A constitutional tort is generally a legal action against government agents to pursue

damages for violations of constitutional rights. Bivens v. Six Unknown Named Agents of Fed.




1
  Collins also discusses at length allegations of judicial misconduct, including failing to review his
pleadings, improper transferring of matters between judges, denial of discovery, and partiality
towards the defendants. He fails to provide citation to the record (other than his own pleadings),
meaningful argument, or citation to legal authority to support his arguments as required under RAP
10.3(a)(5)-(6) to warrant review. See also Cowiche Canyon v. Bosley, 118 Wn.2d 801, 809, 828
P.2d 549 (1992); DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).
Therefore, we do not consider these claims.


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NO. 47565-1-II


Bureau of Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005, 29 L. Ed. 2d 619 (1971).

Washington courts have consistently refused to recognize a constitutional tort for damages. See

Reid v. Pierce County, 136 Wn.2d 195, 213-14, 961 P.2d 333 (1998) (a constitutional cause of

action not recognized because plaintiffs did not present a reasoned or principled basis for one nor

establish that it would be more appropriate than common law causes of action); Blinka v. Wash.

State Bar Ass’n, 109 Wn. App. 575, 591, 36 P.3d 1094 (2001) (Washington courts will not

recognize a cause of action based on constitutional violations without legislative guidance), review

denied, 146 Wn.2d 1021 (2002). Thus, because there is no recognized cause of action in tort for

constitutional violations, we affirm the dismissal of Collins’s constitutional tort claim in this case.

C.     INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS/TORT OF OUTRAGE

       Collins next argues he is entitled to relief based on the tort of outrage, also known as

intentional infliction of emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 194, 66 P.3d 630

(2003). He contends that the Department abused a custodial relationship by intentionally not

addressing his claims; the Department, attorney general, and governor failed to impede the 2014

IME; and the attorney general failed to observe a special duty owed to him, which conduct was

outrageous and intentional and caused him emotional distress.

       To prevail on a claim of intentional infliction of emotional distress, a plaintiff must show

(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and

(3) the plaintiff actually suffers severe emotional distress. Kloepfel, 149 Wn.2d at 195. Each

element must be established. Id. Collins fails to show the first element.

       Extreme and outrageous conduct must be conduct that is “‘so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as



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NO. 47565-1-II


atrocious, and utterly intolerable in a civilized community.’” Grange Ins. Ass’n v. Roberts, 179

Wn. App. 739, 753-54, 320 P.3d 77 (2013) (footnote omitted) (quoting Reid, 136 Wn.2d at 202),

review denied 180 Wn.2d 1026 (2014). The conduct must be more than insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. Kirby v. City of Tacoma, 124 Wn. App. 454,

474, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005).

       Here, Collins requested to reopen his claim, alleging aggravation of condition. The

Department reopened the claim and approved medical benefits. Unsatisfied, Collins appealed to

the BIIA. There, he made a sufficient prima facie showing that he had not received notice that his

prior action was closed. On remand, the Department reassessed and ordered an IME. Based on

the IME results, the Department denied time loss and disability benefits, terminated medical

benefits, and closed the claim.

       Nowhere in the record is there evidence of outrageous conduct in handling these complaints

by the Department, governor, or attorney general that rise to the level of being “atrocious, and

utterly intolerable in a civilized community.’” Grange Ins. Ass’n, 179 Wn. App. at 753-54. While

the repeated denials of relief may be an “insult” or “annoyance” to Collins, they were not enough

to rise to the level of outrageous conduct to support the tort of intentional infliction of emotional

distress. Kirby, 124 Wn. App. at 474. Accordingly, Collins fails to allege any conduct sufficiently

outrageous to support an intentional infliction of emotional distress claim nor does his complaint

raise any legally sufficient hypothetical situation supporting a claim of intentional infliction of

emotional distress.




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NO. 47565-1-II


        Based on the above, the trial court did not err in dismissing Collins second amended

complaint and third amended complaint under CR 12(b)(6). Therefore, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                                       Lee, J.
 We concur:



                    Worswick, J.




                    Bjorgen, C.J.




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