McCloud v. State of Arizona – 11/9/2007

November 13, 2007

Arizona Court of Appeals Division Two Reaffirms Narrow Breadth of Equitable Tolling Based on Lawyer’s Illness But Holds Complaint Was Sufficient to Survive Dismissal Where it Raised Issue as to Whether Tort was Committed Within the Scope of DPS Officer’s Employment.

Plaintiff McCloud was rear-ended by Defendant Kimbro, an Arizona DPS officer. At the time of the accident, Kimbro was on his lunch break driving his patrol car to a restaurant. As a result of several personal and family illnesses, McCloud’s counsel failed to file the Complaint within the one-year statute of limitations applicable to claims against state employees for torts within the scope of their employment. See A.R.S. § 12-821. The Complaint was, however, filed within the two-year limitations period generally applicable to tort claims against private individuals.

On the State’s Motion to Dismiss on limitations grounds, Plaintiff argued equitable tolling (on account of her attorney’s illnesses). On Kimbro’s motion to dismiss claims against him individually, Plaintiff contended that the accident was not within the scope of Kimbro’s employment, because it occurred on his lunch break, and thus a two-year limitations period was applicable. The Superior Court granted both motions, and McCloud appealed.

The Arizona Appeals Court affirmed in part and reversed in part. As to equitable tolling, the Court first canvassed conflicting persuasive authorities as to the appropriate standard of review, before applying the rationale of the Second Circuit in Belot v. Burge, 490 F.3d 201, 205-06 (2d Cir. 2007). In Belot, the court explained that where the trial court “has understood the governing law correctly, and has based its decision on findings of fact which were supported by the evidence…,” the proper standard for appellate review is abuse of discretion. The Court of Appeals held that because the Superior Court had properly held that equitable tolling was available for extraordinary cases of attorney illness, but simply declined to find this case sufficiently extraordinary to merit tolling, the decision should be reviewed for abuse of discretion. Applying that standard, the Court of Appeals affirmed.

The Arizona Appeals court reversed and remanded, however, the question of whether Kimbro’s tort occurred within the scope of his employment. The Court first held that A.R.S. § 12-821 can only be reasonably interpreted to apply to acts within the scope of state employment. The Court then explained that whether a tort falls within the scope of employment is generally a question of fact. The Court concluded that because the facts in the complaint did not compel the conclusion that Kimbro’s accident occurred within the scope of his employment, the trial court had erred in dismissing the complaint.

The Court of Appeals affirmed the dismissal of claims against the State. The Court reversed and remanded, however, the dismissal of claims against Kimbro individually.

Judge Brammer authored the decision in which judges Howard and Pelander joined.