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Havasupai Tribe v. Ariz. Board of Regents. - 11/28/2008

Arizona Court of Appeals Division One Holds that Notice of Claim Letter Need Not Include All Facts Known to Claimant About Alleged Wrongdoing and Need Not Contain Separate Settlement Sums for Each Defendant.


One group of Plaintiffs is comprised of members of the Havasupai Tribe and the Tribe itself (together the “Tribe”), which makes its home at the bottom of the Grand Canyon.  Years ago, researchers from ASU asked for and received permission to draw the blood of tribal members to investigate possible genetic causes for the unusually high rate of diabetes among the tribe’s members.  The research eventually ruled out genetic causes for the epidemic.  The blood samples, however, were preserved.  Later, unbeknownst to the Tribe, its members, and the study’s research professor, a graduate student used the blood samples for unrelated, experiments including tests regarding schizophrenia and possible inbreeding.  When the original study’s professor learned of this, he brought it to the attention of Defendant Arizona Board of Regents (“ABOR”).  After the graduate student presented his dissertation based on work done on the blood samples, the professor informed the Havasupai Tribal Council of his suspicions regarding unauthorized use of the sample.

The Tribe served notices of claim and eventually brought suit.  The Superior Court granted the State’s motion for summary judgment holding that even if the notices were timely, they failed to sufficiently set forth “the facts supporting” the amount sought in the claims, as required by Arizona’s notice of claim statute, A.R.S. § 12-821.01.

A second group of Plaintiffs are 29 other members of the Tribe (the “Talousi Plaintiffs”) who served separate notices of claim and filed a separate suit, relating to the same conduct, which was consolidated with the first suit.  The Talousi Plaintiffs, in addition to naming ABOR, named several individual defendants.  Here again, the Superior Court granted summary judgment.  It granted summary judgment for the individual defendants because they were not served with notices of claim.  It granted summary judgment as to ABOR on the same grounds on which judgment was entered against the Tribe.  Plaintiffs in both cases appealed from these consolidated cases, which were also consolidated on appeal.

The Arizona Appeals Court reversed.   First as to whether the Tribe’s notices of claim contained sufficient facts the Court of Appeals looked to two letters that had been served and found that taken together they provided “the facts supporting” the settlement demand.   The Court rejected the argument that the notice of claim must include all facts known by the claimant about the alleged wrong and all facts known to the claimant about the damages allegedly sustained.  The Court further rejected the contention that the notice of claim must include facts “sufficient to support” the demand.  The Court cited several similar fact pattern cases from other jurisdictions in which a general description of the unauthorized testing of blood samples was held to adequately notify the government defendants of the nature of the claims.  The Court further concluded that “dignitary tort” claims of the kind raised here need not be accompanied, in the notice of claim, by specific allegations of physical harm.

The Court then addressed whether the notices of claim were properly and timely served.  As to timeliness of the Tribe’s notices, the Court held that, when viewed in the light most favorable to the Tribe, the evidence shows a question of fact as to when the Tribe realized it had been damaged; thus summary judgment based on untimeliness was improper.  Similarly, the Court held that, because the evidence, favorably viewed, showed that the notices were served on the ASU General Counsel and the Assistant Attorney General involved with the matter, the Superior Court erred in granting summary judgment based on improper service.

The Court then addressed whether the notices of claim for all plaintiffs were defective for failing to state separate settlement sums for each defendant.  The court refused to adopt the defendants’ argument that the same rationale that requires apportioned offers under Rule 68 requires such offers in a notice of claim.

The Court of Appeals thus reversed the grant of summary judgment and remanded the case to the Superior Court.  Judge Johnsen authored the opinion in which Chief Judge Timmer concurred.

Judge Thompson dissented.  He disagreed principally with the majority’s reliance on  Backus v. State of Arizona, 534 Ariz. Adv. Rep. 26, 29, ¶ 28, --- Ariz. ----, ----, --- P.3d ----, ----, 2008 WL 2764601 (App.2008).  He explained his belief that Backus wrongly decided that a notice of claim is sufficient if it contains “any facts” supporting the claim.  He expressed his belief that the notices in this case did not support the settlements demanded and that he would therefore have affirmed.

Posted On: 12/22/2008