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Civil Procedure: Notice of Claim Must Be Held Open 60 Days

Drew v. Prescott Unified School Dist., 674 Ariz. Adv. Rep. 33 (App. Div. I, November 26, 2013) (J. Winthrop)

ARS 12-821.01 REQUIRES SETTLEMENT OFFER IN NOTICE OF CLAIM BE HELD OPEN 60 DAYS UNLESS PUBLIC ENTITY RESPONDS EARLIER

Plaintiffs offered speech and hearing therapy in the Prescott School District. They got crosswise with the district's special education director and were taken off the list of preferred providers. On December 15, 2011, plaintiff served a notice of claim [NOC] on defendant outlining damages of $921,600 and offering to settle all claims for $120,200 plus reinstatement. The NOC stated it would remain open unless first withdrawn untilĀ  December 30, 2011. Plaintiff sued the district in March 2012 and defendant moved to dismiss for failure to comply with ARS sec. 12-821.01 (E) in that the NOC was not held open the statutorily required 60 days. The trial court granted the motion and the Arizona Court of Appeals affirmed.

Plaintiffs argued that statute only requires plaintiff to wait 60 days to file suit and the defendant's failure to ask for more time here or raise the defense of not being allowed the full 60 days until months later in response to a lawsuit constituted a waiver of the defense. The court of appeals disagreed holding that the clear an unambiguous language of the statute requires the NOC give the public entity 60 days to evaluate and investigate the claim and determine whether to pay the sum certain to resolve the claim. The statute only permits the public entity to shorten this period by responding to the NOC in less than 60 days. The claimant cannot shorten the time period. Accordingly, plaintiffs NOC with an express deadline of 15 days was in clear violation of the statute and plaintiffs' suit was properly dismissed.

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