Arizona Court of Appeals Division One held that tort claims were barred by failure to comply with the notice of claim statute, A.R.S. § 12-821.01.

In May 2008, a driver on Interstate 10 lost control of her vehicle, which crossed the open median and collided with a semitruck traveling in the opposite direction, killing both the driver and her sister-in-law passenger.  A few months later, the surviving spouses exchanged an article regarding another state’s installation of median cables, to protect against similar accidents. One of the surviving spouses then performed additional research on the topic, requested information regarding cross-median collisions from the Arizona Department of Transportation (“ADOT”), authorized an attorney and personal friend of the family to submit a notice of claim to the Attorney General’s Office and ADOT in November 2008, and wrote a letter to a Congresswoman regarding cross-median collisions. The November 2008 notice of claim did reference barriers for cross-traffic on roads maintained by the State but did not include an amount for which the claims against the State could be settled, as required by the notice of claim statute, A.R.S. § 12-821.01.

In October 2010, after retaining new counsel, the surviving spouses and representatives of the driver’s and passenger’s estates (collectively “Plaintiffs”), filed a “supplemental” notice with ADOT, which included settlement amounts. In February 2011, after ADOT did not respond, the Plaintiffs filed suit in Maricopa County Superior Court.

After the first judge overseeing the case ruled on cross-motions for summary judgment and allowed the question of accrual of Plaintiffs’ claim to be resolved by a jury, the case was transferred to a second judge, who presided over the trial. At trial, the State filed a motion for judgment as a matter of law under the notice of claim statute, A.R.S. § 12-821.01. The second judge declined to overrule the first judge’s summary judgment rulings. The jury ultimately found for the Plaintiffs and awarded damages in the amount of $47,010,000, with $39,958,500 attributable to the State.

The State appealed, and the Arizona Court of Appeals reversed. After reviewing the information Plaintiffs had available to them, the Court of Appeals concluded that no reasonable jury could conclude that the accrual of Plaintiffs’ claim under A.R.S. § 12-821.01(B) was later than 2008 because each of the Plaintiffs had sufficient information to investigate claims against the State. The Court of Appeals found the November 2008 notice of claim deficient because it did not include an amount for which the claims could be settled. The Court of Appeals held that the October 2010 notice was time-barred because it was not submitted within 180 days of accrual of the claim, as required by A.R.S. § 12-821.01(A).  The Court of Appeals, therefore, held that the Plaintiffs’ claims against the state were barred under A.R.S. § 12-821.01 and remanded to the trial court for entry of judgment in favor of the State.

Judge Brown authored the opinion, in which Judges Jones and Cruz joined.