Arizona Court of Appeals Division One Holds That Trier of Fact Must Decide Any Issue of Material Fact Concerning Compliance With Arizona’s Notice of Claim Statute.

On August 4, 2004, James Lee was injured in a car accident which killed Lee’s wife and the car’s two other passengers.  On August 2, 2005, Plaintiffs filed a complaint against the State alleging negligent design, construction and maintenance of the road and guardrail.  The State demanded a jury trial.  Later, the State filed a motion to dismiss, asserting that the complaint was barred because the State never received a notice of claim.  In response, Plaintiffs submitted a copy of a notice of claim and a declaration that the notice had been timely mailed to the Arizona Attorney General’s Office.  The trial court granted the motion and dismissed the claims.  The Court of Appeals affirmed, but the Arizona Supreme Court reversed and remanded to the trial court, holding that when a claimant presents proof that a notice of claim was properly mailed, it creates a rebuttable presumption that the notice was received and thereby creates an issue of fact to be determined by the factfinder.  The Court explicitly declined to decide whether this factual issue was for the trial judge or a jury. 

After the remand, the trial court held an evidentiary hearing after discovery and briefing.  After the hearing, the trial court determined that it had “broad discretion to resolve issues of fact pertaining to preliminary matters that do not go to the merits of the case,” and ruled that the Stated had rebutted the presumption that the notice of claim was properly mailed, dismissing the claim. Plaintiffs appealed the sole issue of whether a jury, rather than the trial court, should have decided the disputed mail-receipt question.

The Court of Appeals reversed the trial court.  The Court found that the facts in this matter were akin to those in Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990), in which the Arizona Supreme Court ruled that a previous version of Arizona’s notice of claim statute was not jurisdictional, but rather “analogous to a statute of limitations” and therefore related “disputed issues of fact must be resolved by the jury, not the trial court.”  Id. at 433, 788 P.2d at 1184.  The Court was not persuaded by the State’s assertion that the holding in Pritchard had been vitiated by revisions to the statute, especially in light of a recent Supreme Court opinion in which the Supreme Court cited Pritchard and held that “[a]n assertion that the plaintiff has not complied with the notice of claim statue is an affirmative defense to a complaint.”  City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ 27, 201 P.3d 529, 535 (2009).  The Court of Appeals found that as an affirmative defense, a material factual dispute over the receipt of the notice of claim is a question for the jury.  The Court noted that other jurisdictions considering the proper factfinder in the “mailbox rule” context have similarly held that a jury must make the factual determination. 

The Court rejected the argument proffered by the Stated and amicus that the trial judge should treat the issue of whether the State received a notice of claim as an unenumerated Rule 12(b) motion to dismiss.  The State and amicus argued that this would enable the judge to determine at the beginning of litigation whether there is a procedural bar to Plaintiffs’ case before a substantial expenditure of resources.  The Court noted that once the issue is raised, the trial court can immediately set the date for a short one or two day trial to address the limited issue of receipt of the notice of claim.  In this way, the trial court can easily defer any discovery on the merits until the jury resolves the notice of claim issue.  The Court vacated the trial court’s order and remanded for further proceedings. 

Judge Winthrop authored the opinion; Judges Norris and Irvine concurred.