Schmidt, Sethi & Akmajian Blog

Torts: Governmental Liability & Notice of Claim

Posted by Ted A. Schmidt | Nov 20, 2023 | 0 Comments

Ryan v. Rogers, No. 1 CA-SA 23-0154; (App. Div. II, October 31, 2023)(J. Jacobs)


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

been granted.

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.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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