TORT & INSURANCE LAW UPDATE 

No. 124 Provided as a service to the firm’s clients and friends. October 2023

by Andrew J. Petersen 

Over 15 years ago the Arizona Supreme Court decided Deer Valley Unified School v. Houser, 214 Ariz. 293 (2007). Even with this clear direction, we continue to see plaintiffs and their attorneys fail to comply with the notice of claim statute when making claims against public entities. A.R.S. § 12-821.01. Here is an updated list of published opinions including one from this week. There are dozens of unpublished memorandum decisions and federal district court decisions which are not included. Many cases are efforts to save untimely or invalid notices by arguing tolling, discovery rule, waiver or estoppel. I include after each published opinion the number of times the case has been cited by other courts (according to my research database). Note: the citations may include other reasons and not just the notice of claim issue.  

• City of Mesa v. Ryan, 1 CA-SA 23-0154 (Div. 1, Oct. 31, 2023) (notice of claim for “$1,000,000 or applicable policy limits” does not meet the sum certain requirement; untimely amended notice does not cure defect). 
• Laurence v. Salt River Project Agric. Improvement & Power Dist., 528 P.3d 139 (2023) (dismissal of public employee with prejudice for failure to comply with notice of claim statute does not bar claim against employer who was timely served; overruling DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342 (1945)). citing cases: 2 
• UMB Bank v. Parkview Sch., 523 P.3d 1261 (App. 2023) (notice of claim statute applies when monetary damages are sought but not necessarily claims for declaratory or injunctive relief; if a claim for declaratory or injunctive relief is a predicate to a damages claim, the statute still applies; complaint for appointment of a receivership is an equitable and not damage remedy). citing cases: 0 
• France v. Ariz. Counties Ins. Pool, 519 P.3d 1029 ( App. 2022) (discussing notice of claim and accrual of insurance bad faith claim against county insurance risk pool; parties conceded the risk pool is a public entity). citing cases: 3  
• James v. City of Peoria, 253 Ariz. 301, 513 P.3d 277 (2022) (notice of claim statute does not require claimant keep offer open for any specific length of time; a notice that sets a deadline prior to the sixty-day period is not invalid but attempt to shorten the deadline is a legal nullity). citing cases: 4
• Banner Univ. Med. Ctr. Tucson Campus v. Gordon, 252 Ariz. 264, 502 P.3d 30 (dismissal of individual physicians for failure to comply with notice of claim requirement; judgment was not a final judgment and did not preclude claim against Banner). citing cases: 12 
• Standard Constr. Co. v. State, 249 Ariz. 559, 473 P.3d 344 (App. 2020) (contractor’s breach of contract claim against public entity was tolled until nonbinding mediation completed). citing cases: 8 
• Humphrey v. State, 249 Ariz. 57, 466 P.3d 368 (App. 2020) (wrongful death claim; notice of claim was legally deficient because it did not state a specific amount but instead claimed “a fair value for these damages is in the range of five to ten million dollars for each of their deaths). citing cases: 11 
• Pinal Cnty. v. Fuller, 245 Ariz. 337, 429 P.3d 570 (App. 2018) (discussing county’s notice-of claim statute under A.R.S. § 11-622(A) requiring avowal requirement; no waiver for evaluating and responding to claim). citing cases: 7 
• Donovan v. Yavapai Cnty. Coll. Dist., 244 Ariz. 608, 423 P.3d 403 (App. 2018) (single sum against multiple public entities satisfied notice of claim requirement). citing cases: 6 
• Swenson v. Cnty. of Pinal, 243 Ariz. 122, 402 P.3d 1007 (App. 2017) (county has not waived notice-of-claim requirement and statute of limitations by obtaining liability insurance and contractual indemnification). citing cases: 16 
• Cruz v. City of Tucson, 243 Ariz. 69, 401 P.3d 1018 (App. 2017) (discussing continuing wrong doctrine; accrual under the statute is when a reasonable person would have been on notice to investigate). citing cases: 31 
• Yahweh v. City of Phx., 243 Ariz. 21, 400 P.3d 445 (App. 2017) (simply stating how much a claimant will demand is not a sum certain to settle). citing cases: 14 
• Villasenor v. Evans, 241 Ariz. 300, 386 P.3d 1273 (App. 2016) (elected officials are employees under the notice of claim statute). citing cases: 8 
• Viniegra v. Town of Parker Mun. Prop. Corp., 241 Ariz. 22, 383 P.3d 665 (App. 2016) (statute of limitations not tolled by the notice of claim process). citing cases: 8 
• Watkins v. Arpaio, 239 Ariz. 168 (App. 2016) (rejecting “continuing wrong” doctrine in claims for intentional infliction of emotional distress and false light). citing cases: 37 
• Ponce v. Parker Fire Dist., 234 Ariz. 380 (App. 2014) (finding waiver of notice of claim defense by failing to seek prompt judicial resolution). citing cases: 15 
• Rogers v. Bd. of Regents of the Univ. of Ariz., 233 Ariz. 262, 311 P.3d 1075 (App. 2013) (a cause of action accrues “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage,” applies to both filing of notice and filing of action, and extends to claims for declaratory relief). citing cases: 36
• Drew v. Prescott Unified School Dist., 233 Ariz. 522, 314 P.3d 1277 (App. 2013) (in the absence of a written denial by a public entity, the settlement offer in a notice of claim must remain open for 60 days; when offer explicitly expired after 15 days the offer did not comply with the statute and was invalid). citing cases: 9 overruled by James v. City of Peoria, 513 P.3d 277 (2022) 
• Flood Control Dist. of Maricopa County v. Paloma Inv. Ltd. Partnership, 230 Ariz. 29, 279 P.3d 1191 (App. 2012) (citing Graber v. City of Peoria, 156 Ariz. 533, 753 P.2d 1209 (App. 1988) (when a harm is continuing from a single nuisance a timely filed claim does not have to be amended for each successive event causing damage; even though notices of claim may have been premature and the causes of action had not yet accrued, the notices were not invalid). citing cases: 32 
• Lee v. State, 225 Ariz. 576, 242 P.3d 175 (App. 2010) (issue of fact to be determined by a jury as to whether notice of claim was mailed to Attorney General’s office). citing cases: 17 
• Arpaio v. Maricopa Cnty. Bd. Of Supervisors, 225 Ariz. 358 (App. 2010) (notice of claim statute applied to claims for injunctive relief to the extent plaintiff seeks recovery of funds from the state that in turn would have to be paid by the county) citing cases: 31 
• Simon v. Maricopa Medical Center, 225 Ariz. 55, 234 P.3d 623 (App. 2009) (delivery of notice of claim to police officers via certified mail did not comply with statute on service). citing cases: 73 
• Thompson v. Pima County, 226 Ariz. 42, 243 P.3d 1024 (App. 2010) (rejecting argument that until plaintiffs’ accident reconstruction expert submitted a report; they did not have sufficient facts to file a valid notice of claim; court distinguishes accrual from “facts sufficient” when a plaintiff has a “minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury”). citing cases: 59 

• County of La Paz v. Yakima Compost Co. Inc., 224 Ariz. 590, 233 P.3d 1169 (App. 2010) (county did not raise defense on failure to comply with notice of claim statute in its Answer and did not raise the defense in a Motion to Dismiss on the pleadings, but actively litigated alleged claim for an extended period by engaging in pretrial discovery, filing motions, etc. and therefore, the defense is waived). citing cases: 73 
• Backus v. State, 220 Ariz. 101, 203 P.3d 499 (2009) (a notice of claim is adequate if it includes a factual foundation that is adequate for the public entity to evaluate the claim; courts should not scrutinize the claimant’s facts to determine the “sufficiency”). citing cases: 73 
• City of Phoenix v. Fields, 219 Ariz. 568, 201 P.3d 529 (2009) (when a public entity fails to preserve notice of claim defense in answer or in a motion to dismiss, it may waive that defense). citing cases: 56 
• Havasupai Tribe v. Arizona Bd. Of Regents, 220 Ariz. 214, 204 P.3d 1063 (App. 2008) (Indian tribe and individual members class action alleging misuse of blood samples were not required to make separate settlement demands against each of the various individual wrongdoers). citing cases: 27
• Vasquez v. State, 220 Ariz. 304, 206 P.3d 753 (App. 2008) (notice of claim requirements were sufficiently met in a wrongful death claim arising from a police pursuit where notice stated that claimant was the decedent’s mother and her 15 year old son died while being pursued; because a notice of claim is outside the pleadings, the motion should be treated as one for summary judgment and not a motion to dismiss). citing cases: 37 
• Yollin v. City of Glendale, 219 Ariz. 24, 191 P.3d 1040 (App. 2008) (notice of claim statute met offer to settle requirements when it stated that claimant would release city for sum certain, but was also willing to negotiate). citing cases: 53 
• Jones v. Cochise County, 218 Ariz. 372, 187 P.3d 97 (App. 2008) (pedestrian’s notice of claim was valid when it included a lump sum amount for pain and suffering, lost wages, and future expenses; county waived any purported deficiency in the notice by actively participating in litigation for over a year). citing cases: 96 
• Haab v. Maricopa County, 219 Ariz. 9, 191 P.3d 1025 (App. 2008) (arrestee was required to amend his notice of claim or file a new notice of claim to preserve claims arising after the incident occurred that was the basis of the original notice of claim). citing cases: 14 
• Lee v. State, 218 Ariz. 235, 182 P.3d 1169 (2008) (against the State, service may be accomplished through registered mail; issue of fact as to whether the State received a notice of claim through regular mail). citing cases: 37 
• State v. Mabery Ranch, Co., LLC, 216 Ariz. 233, 165 P.3d 211 (App. 2007) (notice of claim statute does not apply to claim for injunctive relief). citing cases: 59 
• Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 159 P.3d 578 (App. 2007) (notice of claim is a public record and may be released pursuant to a public records request). citing cases: 20 
• Harris v. Cochise Health Systems, 215 Ariz. 344, 160 P.3d 223 (2007) (when a person asserts claims against a public entity and public employee, the person must give notice of the claim to both the employee individually and to employer). citing cases: 131  
• Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 144 P.3d 1254 (2006) (a failure to comply with the statute is not excused by actual notice or substantial compliance). citing cases: 126 
• Deer Valley United School District #97 v. Houser, 214 Ariz. 293, 152 P.3d 490 (2007) (the purpose of the notice of claim statute is to allow the public entity to investigate and assess liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting; plaintiff’s notice of claim did not provide “specific amount” for which the claim could be settled and did not comply with the statute). citing cases: 171