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New Arizona Case - Notice of Claim
Posted by: Ted Schmidt
November 07, 2008

Backus v. State of Arizona, ____AZ. Adv. Rep. __ (1CA-CV07-0640/1CA-CVO7-0671) (Ct. App. Div. 1, July 17, 2008) (Justice Winthrop).

These are two consolidated cases. In the Backus case the plaintiff's decedent suffered a sustained infection and died while incarcerated by the Arizona Department of Corrections. Subsequently, the decedent's survivor and daughter filed a notice of claim pursuant to Arizona Revised Statutes §12-821.01 setting forth a factual summary and asserting that ADOC was negligent in its provision of medical care to the father.

On the issue of damages, she set forth her father's date of birth, age, life expectancy, and asked for $21,500.00 per year for that life expectancy. At a 23.6 year expectancy she explained she was claiming $507,400.00. However, later in the letter she made a demand to settle for $500,000.00.

The State did not respond within the required sixty days, but did ultimately respond asking the plaintiff forego suing beyond the statute of limitations so they could further investigate the claim. It did not ask for any additional information concerning the issue of liability other than to request a signed release authorizing the State to examine her father's medical records. Further, the State did not request any specific or additional factual information on the issue of damages. The only thing the State asked for was proof that the claimant had "standing" to bring the claim under Arizona Revised Statutes §12-612, the wrongful death statute. The record on appeal showed no response from the claimant or her attorney. Subsequently, a lawsuit was filed and a motion to dismiss pursued by the State on the basis that the notice of claim did not comply with Arizona Revised Statutes §12-821.01(A) because there allegedly were no stated "facts to support the specific amount for which she was willing to settle her claim." The trial court granted the motion.

In the Johnson case, The plaintiff's decedent likewise died while incarcerated by ADOC. Following her death, the decedent's mother filed a notice of claim on her own behalf as well as six biological children of the decedent. The notice of claim stated that the decedent had become ill while incarcerated and asked to be seen by medical staff. It further stated there was substantial delay in providing medical care, that the decedent's condition deteriorated dramatically, she became seriously ill, was taken to the hospital where, due to lack of oxygen, she suffered brain damage going into a vegetative state.

The notice of claim further stated that the cause of the death was "bilaterial pulmonary edema and congestion with bronchopneumonia." Finally, the notice of claim stated that the plaintiff had the authority of the statutory beneficiaries to resolve the matter for two million dollars.

The lawsuit followed when the State did not respond to the notice of claim. The answer to the complaint denied liability, but did not raise any specific defect in the notice of claim. Nonetheless, after the Deer Valley Unified School District No. 97 v. Houser, 224 Ariz. 293, 152 P.3d 490 (2007) was published, the State moved to dismiss the lawsuit on the basis that there were insufficient facts to support the specific amount demanded in the notice of claim letter. The trial court granted the State's motion.

A Court of Appeals in analyzing the statute first noted that the statute specifically required "sufficient" facts for the government to "understand the basis upon which liability is claimed", but does not use the word "sufficient" when it requires a "specific amount for which the claim can be settled and the facts supporting that amount." The court noted that the government was basically asking the court to "graft the word "sufficient" from the second sentence of A.R.S. §12-821.01(A)" concerning liability onto the "the third sentence of the statute regarding facts supporting the proposed settlement amount". The court then held "We further observe that, where the legislature has specifically used a term in certain places within a statute and excluded it in another place, courts will not read that term into the section from which it was excluded." Arizona Board of Regents ex rel. Univ. of Ariz. v. State of Ariz. Pub. Safety Ret. Fund Manager, 160 Ariz. 150, 157, 771 P.2d 880, 887(App. 1989).

In the alternative, the State advocated for a "judicially created standard against which these claim letters can be measured." In response, the Court found that even if it were to attempt to articulate such a standard, it could not identify appropriate parameters because "each claim is different". Accordingly, a "one size fits all" approach to compliance with the statute may be problematic." The Court then went on to point out that general damages in particular are not as quantifiable as special damages. In fact, general damages "cannot be objectively measured with certainty." General damages are subjective and personal to the individual.

Finally, the court pointed out that if the government needs additional information to evaluate a demand, it can certainly ask for it, just as it asked for more information on Backus' standing to bring the claim. In this regard the Court pointed out that there was a "fiction inherent" in the government's argument that it was somehow unsophisticated in gathering information and evaluating claims. To the contrary, the court pointed out it is usually the claimant that lacks the sophistication necessary and who is at a distinct disadvantage in attempting to comply with the statute.

In conclusion, the Court found that the notice of claim statute is not in violation of Article 4, Part 2, §18 of the Arizona Constitution.

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