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Thompson v. Pima County - 11/16/2010

Arizona Court of Appeals Division Two Holds That “Accrual” under the Notice of Claims Statute Differs From the “Facts Sufficient” to Support the Claim.


On October 3, 2006, Taylor Thompson drove off the edge of a road maintained by Pima County.  When she tried to correct course and reenter the road, her car veered hard to the left and flipped over, injuring Thompson.  A deputy sheriff who issued a traffic citation on the day of the accident told Taylor that potholes in the road might have contributed to the accident.

The next day, Thompson’s father and the family attorney investigated and photographed the accident scene.  They notice two large potholes, one of which seemed to have been recently scraped by a vehicle.  Pima County had been aware of the potholes before the accident and repaired them the day after the accident.

The Thompsons hired an accident reconstruction expert, who concluded that the roadway conditions had caused the accident in a report dated February 7, 2007.  Pursuant to A.R.S. § 12-821.01, the Thompsons delivered a notice of claim to Pima County on July 30, 2007.

Pima County moved for summary judgment arguing that the notice of claim had been delivered untimely.  The statute requires that a notice be delivered within 180 days “after the cause of action accrues,” defined as the point in time “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage.”  Pima County argued that the action accrued in October 2006, when the Thompsons first became aware that the potholes might have caused the accident.

The Thompsons argued that the cause of action could not accrue until the claiming party had developed “facts sufficient to permit the public entity . . . to understand the basis upon which liability is claimed” as required by the statute.  Noting that any notice of claim that does not contain “facts sufficient” would be rejected by the courts, the Thompsons urged the court to interpret “accrual” and “facts sufficient” as synonymous and to create a court rule that tolls the time limit for filing the notice of claim as long as an investigation begins within 180 days of the injury.

In a unanimous opinion, the court rejected the Thompsons’ argument and held that “accrual” and “facts sufficient” are two distinct concepts.  Noting that courts are bound by the intent of the legislature, the court reasoned that the 180-day gap between the “accrual” of an injury and the deadline for delivering a notice containing “facts sufficient” demonstrates that the legislature intended the terms to mean two different things.  While acknowledging that the “investigation” rule proposed by the Thompsons would be better for all claimants, the plain language of A.R.S. § 12-821.01 sets forth a different procedure: claimants have 180 days from the time they realize their injuries may have been caused by a public entity to investigate the incident and develop the facts sufficient to support their notice of claim.

While acknowledging that accrual of an injury is usually a question of fact for the jury, the record contained ample evidence of accrual prior to February 2007, including depositions by the Thompsons that they suspected within days of the accident that the potholes may have been to blame.  The court also noted in a footnote that the expert report was completed only four months after the accident, giving the Thompsons ample opportunity to file a timely notice of claim based on the October 2006 accrual date.  Because there was no genuine issue of material fact, the court upheld the entry of summary judgment against the Thompsons.

Judge Vásquez wrote the opinion; Judges Eckerstrom and Kelly concurred.

Posted by:  Shane Ham

Posted On: 12/1/2010