Swenson v. County of Pinal, 772 Ariz. Adv. Rep. 26 (App. Div. II, August 22, 2017) (J. Vasquez)

STATE'S OBTAINING LIABILITY INSURANCE & CONTRACTUAL INDEMNITY DOES NOT EXCUSE COMPLIANCE WITH NOTICE OF CLAIM AND STATUTE OF LIMITATION DEADLINES IN TORT CLAIM AGAINST COUNTY

Plaintiffs' decedent died in a one car roll over on a county road in Pinal County. Their wrongful death claim alleging negligence against the county was not brought within the one year statute of limitations and no notice of claim was ever served. Accordingly the suit was dismissed under rule 12(b)(6) of the Arizona Rules of Civil Procedure.

Plaintiffs appealed arguing that the State waived sovereign immunity and thus the right to compliance with the notice of claim statute and statute of limitations because it had purchased liability insurance and obtained contractual indemnity for the alleged negligence at issue in this suit. Plaintiffs motion to amend the complaint to further allege specifics requiring the acquisition of liability insurance and contractual indemnity was also denied.

The Arizona Court of Appeals affirmed holding the timely service of a notice of claim and filing of a lawsuit is a procedural requirement (ARS§§12-821 & 12-821.01) and not an assertion of sovereign immunity. As such, the State's obtaining insurance and contractual indemnity had nothing to do with its right to demand procedural compliance with notice of claim and statute of limitation deadlines. Further, since plaintiffs' motion to amend sought only to allege “facts” related to the purchase of insurance and securing of contractual indemnity along with a request for punitive damages, it was properly denied. These amendments could in no way cure the plaintiffs failure to file a timely notice of claim and file suit within one year.