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Civil Procedure: Notice of Claim Must Contain Sum Certain Which Will Settle All Claims

Posted by Ted A. Schmidt | Jul 17, 2017 | 0 Comments

Yahweh v. City of Phoenix, __ Ariz. Adv. Rep. __ No. 1 CA-CV 160207 (App. Div. I, July 11, 2017) (J. Beene)

NOTICE OF CLAIM RECITING AMOUNT PLAINTIFF WILL PLEAD IN COMPLAINT DOES NOT SATISFY REQUIREMENT NOTICE ARTICULATE AMOUNT PLAINTIFF WOULD ACCEPT TO SETTLE ALL CLAIMS

Plaintiff, was a detective with the City of Phoenix Police Department [Department].   His relationship with the Department went bad and he was placed on a “Brady List.”  This is a list the Department must maintain consisting of police officers who have been accused of professional misconduct. Prosecutors are required to inform criminal defendants if an officer involved in their arrest is on this list. 

Plaintiff served a Notice of Claim [NOC] on the City pursuant to A.R.S. § 12-821.01(A) seeking damages for defamation and violation of the Family Medical Leave Act. The notice stated he would seek $1.5 million in a lawsuit for loss of projected earnings if the matter was not first settled and that in order to “achieve an agreeable resolution” the city should contact his lawyer.    

The City of Phoenix did not respond to the NOC within 60 days rendering the NOC denied by operation of law. Plaintiff then sued for defamation, false light and violation of due process. The trial court dismissed the lawsuit under rule 12(b)(6) of the Arizona Rules of Civil Procedure based upon plaintiff's failure to state a sum certain he would accept to settle. The Arizona Court of Appeals affirmed.

The court of appeals noted a proper NOC must “contain  a  specific amount  for  which  the  claim  can  be  settled  and the  facts  supporting  that amount.”  A.R.S. § 12-821.01(A). ”This  language  unmistakably  instructs claimants  to  include  a particular  and  certain  amount  of  money  that,  if agreed to by the government entity, will settle the claim.” 

Plaintiff's NOC failed to meet this standard because it did not state a sum certain which would settle all claims. It was nothing more than an invitation to negotiate.  The government is under no obligation to assist claimants with statutory compliance.

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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