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Wyckoff v. Mogollon Health Alliance - 8/23/2013

Arizona Court of Appeals Division Two Holds That a Cause Of Action for Exposure to Toxic Mold Begins to Accrue When the Claimant Experiences Physical Signs and Symptoms of Illness, Knows That She Has Been Exposed to Mold, and Knows That Mold May Present a Health Hazard.

Susan Wyckoff worked at a hospital owned by Mogollon Health Alliance.  Over some time, Wyckoff noticed water leaking into her office, detected odors, and suffered symptoms she ascribed to her work environment.  She moved offices, but noticed mold throughout the building.  She conducted an air quality test of her office and gave the results to her employer to show that the working environment was unsafe.  She left her employment at the hospital on February 1, 2008.

On February 1, 2010, she filed suit against Mogollon alleging premises liability and negligence. Mogollon did not answer timely, and the court entered default judgment against it.  The court later granted Mogollon’s motion to set aside the default judgment.  Mogollon then moved for summary judgment, arguing that Wyckoff’s claim was barred by the statute of limitations.  The court granted the motion.

Wyckoff appealed the court’s setting aside the default judgment and summary judgment.  The Court of Appeals affirmed.  First, the court rejected Mogollon’s argument that it lacked jurisdiction to consider the trial court’s setting aside the default judgment.  Even though the setting aside of a default judgment is not an appealable order, because the court had jurisdiction over appeal of the summary judgment and because an appealable order allows the court to consider all orders from which appeals could not be taken, jurisdiction was proper.

The court then dismissed Wyckoff’s argument that setting aside the default judgment was error because the judgment was void, not voidable.  Wyckoff had not raised this argument below.

The court then concluded that Wyckoff’s claims were barred by the two-year statute of limitations governing personal-injury cases.  The court noted that the discovery rule followed in Arizona applies in the specific context of toxic mold exposure.  It relied on mold cases from other jurisdictions and held that, in such a case, the “cause of action begins to accrue when the claimant experiences physical signs and symptoms of illness, knows that she has been exposed to mold, and knows that mold may present a health hazard.”  Because all of these events had occurred before Wyckoff left employment at the hospital on February 1, 2008, her complaint filed on February 1, 2010, was outside the two-year statute of limitations.

Judge Eckerstrom authored the opinion; Judges Kelly and Espinosa concurred.

Posted by: Kathy Brody

Posted On: 9/3/2013