Opinion
Civil Action No. 1:21-cv-02630-DDD-MEH
2023-06-30
David LEWICKI, an individual and Karie Lewicki, an individual, Plaintiffs, v. A.A.C. ADOPTION & FAMILY NETWORK, INC., a Nonprofit Corporation, Defendant.
Ashlee Nicole Hoffmann, Belzer Law, Boulder, CO, John Paul Prentiss, Stahly Mehrtens, Boulder, CO, Samuel J. Scheurich, Burnham Law Firm PC, Boulder, CO, for Plaintiffs. Chad Knox Gillam, Jared Richard Ellis, Hall & Evans LLC, Denver, CO, for Defendant.
Ashlee Nicole Hoffmann, Belzer Law, Boulder, CO, John Paul Prentiss, Stahly Mehrtens, Boulder, CO, Samuel J. Scheurich, Burnham Law Firm PC, Boulder, CO, for Plaintiffs. Chad Knox Gillam, Jared Richard Ellis, Hall & Evans LLC, Denver, CO, for Defendant.
ORDER ON MOTION TO DISMISS
Daniel D. Domenico, United States District Judge
David and Karie Lewicki hired A.A.C. Adoption and Family Network ("AAC") to help them adopt a child from Korea. Those efforts ultimately failed and the Lewickis sued, bringing claims for breach of contract and common law torts under Colorado law. Doc. 16. AAC moved to dismiss under Fed. R. Civ. Pro. 12(b)(6), arguing that the facts pled in the complaint are insufficient to overcome a liability waiver the Lewickis signed that released AAC "from all liability and all responsibility." Doc. 19. The motion is denied.
LEGAL STANDARD
A court's role in addressing a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). In doing so, the court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (internal quotation marks omitted). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
BACKGROUND
The following facts are taken from the Amended Complaint and construed in the light most favorable to the Lewickis.
In early 2018, the Lewickis decided to pursue an international adoption. After researching options and some discussion with AAC's representatives, they decided to proceed with AAC. Doc. 16 at 3. This entailed putting down a deposit and entering into AAC's "International Adoptions Service Agreement" (the "Agreement"). Id.
The Agreement, among other things, required AAC to "provide accurate and current information about the adoption process." Doc. 19-1 at 4. It further provided that AAC would:
Although a court typically does not look beyond the complaint at the motion to dismiss stage, it may do so to review documents that are referenced in the complaint and whose authenticity is not in dispute, as is the case with the Adoption Agreement and Statement of Risk. Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
• Provide prospective adoptive parents with guidance "in the completion of adoption related paperwork including dossier documents, immigration application, etc." Id. at 1.
• Act as the liaison between the prospective adoptive parents and "the central authority, orphanage, foreign authority or cooperating agency in the foreign country throughout the adoption process." Id. at 2.
• Assist the prospective adoptive parents "in the planning of international travel including arranging in country appointments with foreign and US governmental entities, hotel reservations, and in country travel" though not with booking international flights. Id.
The Agreement also incorporated a "Statement of Risks and Waiver of Liability." That document laid out the obligations of both the prospective parents and AAC, including explaining that "AAC will diligently pursue the successful completion of an adoption." Id.; Doc. 19-2. It also includes lengthy disclaimers describing various risks and uncertainties involved in the international adoption process and expansive waiver language, including that prospective parents "hereby waive any and all claims, which PAPs may have now or have in the future against AAC and its directors, officers, employees and agents." Doc. 19-2 at 5-6.
Over the next few months, the Lewickis undertook the tasks required of prospective parents, including a homestudy, training classes, and paperwork. Doc. 16 at 4. In early 2019, the process had advanced well enough that AAC began referring possible children to the Lewickis for adoption. Id. While at first the agency included boys with health problems in the referrals despite the Lewickis' instructions that they wanted to adopt a healthy girl, eventually in June 2019, they received a referral for E.S., a healthy girl. Id. at 4-5.
The Lewickis accepted the referral of E.S. and began the process of adopting her. That involved, of course, more paperwork, which included forms required by South Korea and the United States, and another homestudy. Id. at 5. The paperwork, including an emigration permit from Korea, was finished in November 2019 and accepted in January 2020. Id. A court date in Korea was set for March 19, 2020, and a planning phone call with the Lewickis' contact at AAC, Christie Lasko, was set for February 21 and then reset for February 26. Id.
Like most everything else during that timeframe, these plans were interrupted. On February 22, the State Department issued a travel advisory for South Korea, which it elevated to "Level 3; avoid nonessential travel." Id. AAC apparently told prospective parents who were already in Korea to return to the U.S. immediately, but did not reach out to the Lewickis. Id. at 5-6. And when they had their call with Ms. Lasko on the 26th, "the Lewickis requested updates regarding possible court closure, COVID cases, etc. and how those things might impact their adoption; however, Defendant was not prepared to answer the Lewickis' questions regarding court closure or COVID cases . . ." Id. at 6. Things got worse for the world, and the Lewickis, from there. Airlines suspended travel to South Korea, court dates were repeatedly changed, travel restrictions of increasing severity were imposed by the Korean government, and by early April the State Department had advised all Americans to return immediately or be prepared to stay abroad indefinitely. Id. at 6-8. Nevertheless, the Lewickis continued, conducting new homestudies, filling out new forms, looking into hiring Korean attorneys to represent them in that country, and pressing forward as much as they could. See id. at 9-12.
As the Lewickis tried to find a way to finalize their adoption of E.S., AAC struggled to satisfactorily respond to their inquiries in the spring and summer of 2020. Other agencies seemed to have better information, at least as to some aspects of the situation. Id. at 8, 10-11. Amidst a certainly confusing and unprecedented situation, Ms. Lasko repeatedly failed to answer the Lewickis' questions about travel restrictions and alternative methods to finalize the adoption, failed to send the Lewickis timely or pertinent information, and even advised the Lewickis to lie to the Korean court. Id. at 7-10, ¶¶ 116-17. Despite Ms. Lasko's admission that she was not keeping up to date on the Lewickis' case (see id. at ¶ 75), AAC did not assign the Lewickis another caseworker.
Throughout the summer of 2020, more court dates were changed, flights were canceled, and delays encountered. As possible dates for the adoption hearing were pushed into September, then October, then November, the Lewickis struggled to make travel plans for those dates, and drafted a letter that AAC was to send to the Korean Ministry of Health and Welfare requesting that they be permitted to use an escort for E.S. rather than travel themselves. Id. at 19-21. AAC eventually told the Lewickis that their request was rejected. After multiple requests, the Lewickis learned in March 2021 that while Ms. Lasko had sent a letter to the Korean ministry, she had not forwarded the letter the Lewickis had drafted. Id. at 23. The Lewickis allege that in fact, "AAC had not been communicating the Lewickis' plans and status to Eastern, the Ministry, or the Korean Court." Id.
In the spring of 2021, AAC emailed the Lewickis "inexplicably stating that they accepted the Lewickis' 'voluntary termination' of the adoption." Id. at 24. The Lewickis said they had not done so and the parties resumed discussing travel plans and a new court date was set for July 2, 2021. The Lewickis informed AAC that they "would participate in the upcoming hearing in July only if the Defendant and the Korean Court accepted their plan to split travel" rather than both parents attending. Id. at 25. They also responded to a letter from the Korean court that they said "was missed while Mr. Lewicki planned for the funeral of his parents." Id. But they apparently did not properly serve or file the document, and "the July 1, 2021, Court hearing was held without participation from the Lewickis despite their express direction that it needed to be continued." Id. at 26. AAC, according to the Lewickis, did not update them on the status of the case. Id. The case was dismissed on July 13, and the Lewickis allege that AAC failed to inform them of a fourteen-day deadline for appealing. Id. at 26-27. At the end of August 2021, AAC's accreditation expired and it could no longer provide services necessary to complete the adoption. Id.
DISCUSSION
This case is a reminder that beyond the suffering the COVID-19 virus caused directly, the disruptions of the pandemic changed the lives of less obvious victims like the Lewickis and, most poignantly, E.S., whose fate one is left to wonder about. Not all harms are compensable in court, however, and the sole legal question before me now is whether the Lewickis must bear the costs associated with this failed adoption or whether their amended complaint states viable claims against AAC.
I. The release
The focus of AAC's motion to dismiss is that the Lewickis waived and released their right to assert any and all claims against AAC, including: (1) willful and wanton breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; and (4) unjust enrichment. The interpretation of a contract is generally a question of law to be determined by the language used. The court's role is to discern and enforce the parties' intent. In this pursuit, courts "should be wary of rewriting contract provisions and should give the words contained in the contract their plan and ordinary meaning, unless contrary intent is evidenced within the contract itself." Arkansas Valley Drilling, Inc. v. Cont'l W. Ins. Co., 703 F. Supp. 2d 1232, 1237 (D. Colo. 2010).
Liability waivers are strictly construed against the drafter. Heil Valley Ranch, Inc. v. Simkin, 784, 784 P.2d 781 (Colo. 1989). As AAC points out, the Lewickis signed a release that includes multiple, lengthy, detailed descriptions of the risks and uncertainties involved in trying to effect an international adoption. Some of the language is excerpted below:
• "PAPs understand that completing an application and/or enrolling in our adoption program does not guarantee the placement of a child with them, nor does it assure a successful outcome." Doc. 19-2 at 1.
• "The nature of international adoption makes it impossible to predict the exact amount of expenses each adoption process will incur." Id.
• "PAPS understand that in some cases a referral may be withdrawn prior to a placement due to any of several reasons which are beyond the control of AAC." Id. at 3.
• "The PAPs acknowledge they may be given a specific date of travel, but that this date may change unexpectedly." Id. at 4.
• A warning that the adoption could be terminated by the biological family of the child, a body within the foreign country, or shifting geopolitical situations. Id. at 3.
It notes that "[i]nternational adoption is unpredictable in many ways" and emphasizes that "[t]here can be no assurances or guarantees that an adoption will proceed in any specific length of time," and that "[a]ny number of situations could arise that could cause a delay in the adoption process." Id. at. 4. It notes that "paperwork requirements . . . are continually undergoing changes" that "may result in delays in the adoption process." Id. The waiver declares that parents "understand that any estimates of time frames are simply that, estimates" and that "[t]hey acknowledge and accept the risks associated with delays in the adoption process." Id.
The agreement also has expansive language releasing AAC from liability. See 19-2. It notes, for example, that given the "risks involved with adoption,"
AAC does not make any guarantees, representations, or warranties concerning any aspect of the adoption process. AAC cannot and does not under any circumstances guarantee in advance that PAPs will be approved by AAC, or by US or foreign government entities. AAC does not make any guarantees, representations, or warranties concerning any aspect of the adoption process. PAPs understand that completing an application, signing this agreement, and/or enrolling in our adoption program does not guarantee the placement of a child with them, nor does it assure a successful outcome.Doc. 19-1 at 7. It states that parents "acknowledge and understand all of the risks of adoption as set forth in this document." Id. The Lewickis acknowledge in the waiver that they "wish to pursue an adoption plan and to seek an adoptive placement knowing and assuming said risks." Doc. 19-2 at 5. They agree to "waive any and all claims, which [they] may have now or have in the future against AAC and its directors, officers, employees and agents." Id. They "agree to hold harmless AAC and its above described directors, officers and employees against any claims known or unknown, now existing or which may exist in the future, which may arise out of the adoption service policy or the receipt of services from, or adoption through AAC." Id. They "release AAC and its directors, employees and agents from all liability and all responsibility regarding the risks assumed by [parents] as explained above, including the risk of an unsuccessful outcome of the adoption proceedings, all legal risks, all medical and social risks, and all risks of informational inaccuracies. Id. Finally, they "release AAC and its directors, officers, employees and agents from any claim or claims arising out of the actions, in action, error or omissions committed by other organizations or entities involved in the Prospective Adoptive Parent's adoption process." Id. at 6.
In particular, AAC points to the sentence that says the Lewickis "waive any and all claims, which [they] may have now or have in the future against AAC and its directors, officers, employees and agents." Read in isolation, that would cover the claims here. But contractual provisions are not to be read in isolation. See Simon v. Shelter Gen. Ins. Co., 842 P.2d 236, 239 (Colo. 1992); Cyprus Amax Mins. Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003). Read in context, the release is not quite a broad as AAC suggests. Instead of releasing AAC from any kind of claim whatsoever, the release is better understood as applying only to claims based on the sorts of risks discussed elsewhere in the document, generally including claims based on the inherent and unpredictable risks of international adoption or the negligence of AAC or its agents.
There are two main reasons to interpret the release this way. First, the text of the document itself. The expansive sentence AAC points to is surrounded by other sentences that focus on the disclosed risks and uncertainties. For example, the same provision states that the release is from liability "regarding the risks assumed by [parents] as explained above, including the risk of an unsuccessful outcome of the adoption proceedings, all legal risks, all medical and social risks, and all risks of informational inaccuracies . . ." Id. at 5 (emphasis added). The document early on states that the parents "wish to pursue an adoption plan and to seek an adoptive placement knowing and assuming said risks." Id. (emphasis added).
Given this context, the sentence in question appears intended to clarify that any kind of claim based on those matters is released; I do not read it as trying to surreptitiously expand the scope of the release to other matters not otherwise disclosed. The detailed disclosures themselves support this view. Multiple paragraphs and pages discuss things such as changing international rules, unreliable timeframes, costs of associated filings and fees, volatile domestic and international politics, legal uncertainties, changes in paperwork requirements, and the like. While expansive, the language of the release is focused on risks beyond the control of AAC; it does not suggest that it covers literally all claims, even those based on AAC's alleged failure to undertake the obligations it assumed under the agreement itself such as failing to provide information to the client, or to forward information from the client to partner agencies or foreign courts.
Second, reading the release as broadly as AAC posits would likely render it unenforceable as it would make AAC's contractual commitment illusory. See Shell Rocky Mountain Prod. LLC v. Ultra Res. Inc., 415 F.3d 1158, 1170-71 (10th Cir. 2005) (upholding a restrictive interpretation of exculpatory clauses). AAC points to a District of Columbia case for the proposition that such a broad waiver of all liability is enforceable in the adoption context. Doc. 19 at 10 (citing Ferenc v. World Child, Inc.). But in fact, that court explicitly said, "Whether the exculpatory effect of the waiver clause would indeed reach 'any and all claims' of any description (such as those of Counts I and III) is unnecessary to decide." 977 F. Supp. 56, 61 (D.C. 1997). Ferenc does not stand for the proposition AAC proposes.
AAC's reply is off the mark too, suggesting that Colorado's disfavoring of exculpatory waivers applies only to attempts to avoid negligence claims, but not to claims based on allegedly intentional, knowing conduct. See Doc. 21 at 2-5. But that is not the rule and is nonsensical. As multiple Colorado cases show, while releases of negligence-based claims are strictly construed, they are at least possible, but attempts to contractually avoid liability for intentional actions, on the other hand, are simply unenforceable. See, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) ("An exculpatory agreement, which attempts to insulate a party from liability from his own negligence, must be closely scrutinized, and in no event will such an agreement provide a shield against a claim for willful and wanton negligence.") (emphasis added); Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186, 1192 (Colo. App. 2008), as modified on denial of reh'g (Dec. 24, 2008) ("We have found no Colorado cases, and [Defendant] has cited only a handful of cases from other jurisdictions, upholding or enforcing exculpatory clauses that permit parties to be completely absolved of their intentional, fraudulent, or reckless acts."); Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260 (Colo. App. 2010) (finding exculpatory clause unenforceable because its broad language did not limit waiver to the activity being engaged in). There is no Colorado law of which this Court is aware that supports Defendant's proposition. The language of the release here does not support the conclusion that Defendant's liability for intentional actions is effectively waived.
So while the release is broad, it is not as broad as AAC argues. It releases claims based on risks inherent in the international adoption process, claims based on the idea that a successful adoption was promised, or claims based on negligence or other factors out of AAC's control. The amended complaint includes extensive allegations about things beyond AAC's control, such as uncertainty about quarantine locations (Doc. 16 ¶ 71), quarantine requirements, failure to obtain a quarantine exemption (id. at ¶ 64), rescheduled court dates, and other families travelling successfully against the advice of the South Korean and American governments. Id. at ¶ 61. And some of the Lewickis' own actions described in the complaint would appear to have at least contributed to the breakdown of their efforts. See, e.g. rescheduling their court date ¶ 39; willing to only fly American Airlines ¶ 41; initially refusing to only send one parent ¶ 111; refusing to travel for the July, 2021 hearing unless the Korean Court accepted their plan to split travel ¶ 170; failing to respond in a timely manner to the May 19, 2021 letter from the Korean Court ¶ 171; AAC cannot be liable for damages caused by such things. To the extent the Lewickis' claims are based on such events (see, e.g., Doc. 16 ¶ 200), they are barred. Yet the complaint includes allegations that are not subject to the release. These include AAC's failure to forward communications to relevant parties from the Lewickis despite assurances they would; failure to communicate court dates; failure to respond to emails or provide timely and essential information on travel plans, COVID procedures, and court events; and Ms. Lasko's apparent abnegation of her role with no appropriate replacement.
It may be that these allegations are not true. And it may be that the factors outside AAC's control, rather than these facts, were the cause of the Lewickis' damages. A jury may ultimately agree with AAC, but those are questions that cannot be resolved against the Lewickis at this early stage.
II. Willful and Wanton
AAC recognizes that under Colorado law, contracts cannot release a defendant from liability for willful or wanton actions. Doc. 19 at 11-12. It argues, though, that the complaint's allegations are insufficient to state any such claim. Id.
The complaint is thin in this regard, but at this stage, the Lewickis present sufficient evidence to suggest that whether AAC's actions can be considered willful and wanton is an appropriate question for the jury. Gravitt v. Sloggett, 132 Colo. 254, 287 P.2d 274 (1955). The Complaint includes allegations of intentional action by AAC, such as "choosing to take actions directly contrary to those it stated it would take and essentially ceasing all advocacy[.]" Doc. 16 at ¶ 198. Intentional actions, if tortious, can be considered willful. See, e.g., Moore v. W. Forge Corp., 192 P.3d 427 (Colo. App. 2007) (treating intentional tort suicide cases as willful tortious conduct); Kandt v. Evans, 645 P.2d 1300 (Colo. 1982) (using "willful" and "intentional" interchangeably).
Whether the allegations of such actions would suffice to meet the elements of each of the four claims asserted is perhaps an open question. But AAC has not sought to distinguish between the claims at this point, so I will not either.)
CONCLUSION
The motion to dismiss seeks only complete dismissal. It may be that some at future stage of the proceedings, such as summary judgment, motions in limine, or jury instructions, we will have to draw the line precisely between what the Lewickis can base their claims on and what they have waived. But for now, the motion for complete dismissal (Doc. 19) is DENIED.