Ryan v. Rogers, No. 1 CA-SA 23-0154; (App. Div. II, October 31, 2023)(J. Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2023/1%20CA-SA%2023-0154%20Mesa%20Williams%20v.%20Hon%20Ryan.pdf
NOTICE OF CLAIM DEMANDING “$1 MILLION OR APPLICABLE POLICY LIMITS WHICHEVER ARE GREATER” DOES NOT SATISFY THE “PARTICULAR AND CERTAIN AMOUNT OF MONEY” REQUIREMENT OF A.R.S. § 12-821.01(A)
Plaintiff Phillip Rogers was struck by a Mesa City police officer, Gustavo Williams, in a squad car while riding his bike. He filed a timely notice of claim pursuant to A.R.S. § 12-821.01(A) outlining liability facts and stating the case could be settled for “$1 million or the applicable policy limits, whichever are greater.” After the 180 notice of claim deadline had run, Rogers attempted to amend his notice of claim taking the “or applicable policy limits” language out of the notice.
In response to Rogers' subsequent lawsuit the City moved to dismiss on the basis the notice of claim was deficient. Specifically, the City argued that the demand did not satisfy the “particular and certain amount” requirement, i.e., the City has several insurance policies so it could not determine precisely what amount would settle the case. The trial court denied the motion. The City then brought this special action. The Arizona Court of Appeals accepted jurisdiction and granted relief reversing the trial court's denial of the motion to dismiss.
“Arizona Revised Statute Section 12-821.01(A) is clear as written and should be taken to mean what it says. It requires that a claim 'contain a specific amount for which the claim can be settled.'” Here the plaintiff offered an option which would require addressing the legal question of which insurance coverages and limits held by the City applied here.
If a notice of claim referred to a clear point of reference, such
as the limits in a single policy understood to be applicable, such a reference
might satisfy A.R.S. § 12-821.01(A) But the matter before us is not like
that. Here, as Rogers explains, at oral argument in the superior court,
Mesa stated “[t]he amount [demanded] in this case could be anywhere
between one million and 54 million with several different amounts in
between.” The possibility of several different “applicable” policy limits
iillustrates that Mesa did not control the answer to the question, that
it was not a math problem, and that determining the “applicable” limit
might require an action for declaratory judgment, as is commonly the
case. Mesa's limit was neither stated in Rogers' notice, nor determinable
by simple computation. Rogers' notice thus did not comply with the
claim statute. Thus, Mesa's and Williams' motion to dismiss should have
Finally, Rogers' attempt to cure the problem with the sum certain in the first notice of claim with an amendment after the 180-day deadline fails. A “late compliant notice of claim does not cure the defect in a timely but deficient notice of claim.” No facts were presented to support the argument that the “discovery rule” should extend accrual date for computing the 180-day deadline.