Arizona has inherited the ancient common law doctrine of sovereign immunity. Without its permission, you cannot sue it or any other state. Like the other states, Arizona has waived its immunity, but it has done so with some limitations. One of these is that, before you can bring an action against the state or a subdivision of the state or a state employee, you must first serve a Notice of Claim. Arizona’s Notice of Claim statute, A.R.S. Section 12-821.01, sets forth the requirements of the notice. It is a highly technical statute and, if its requirements are not followed to the letter, you lose your right to sue the state, its subdivisions, and any of its employees who injured you while acting in their capacity as state employees. While the legislature will permit you to sue the state and its employees, it does not want to make it easy to do so. The Notice of Claim statute is a trap for the unwary.
The stated purpose of the Notice of Claim statute is that it gives the state an opportunity to investigate claims against it and to settle those which are meritorious. Given that the state almost never accepts one of these claims without forcing the injured party to sue, this statement of purpose by the legislature is highly suspect. More likely, the intended purpose of the statute is to allow the state to throw out as many claims as possible for failing to meet the statutory requirements.
The very first requirement is one which catches many victims off guard and disposes of many claims. Arizona has a two year statute of limitations for personal injuries. This means that an injured victim can file suit up to two years after the event giving rise to the injury and still get her day in court. Not so if the claim is one against a state entity or employee. A Notice of Claim must be served on the appropriate officials or employees within 180 days of the event giving rise to the claim. I cannot begin to count the number of times someone has come to me with what seems like a strong claim only to find that it is against a state entity or employee and that the event occurred over 180 days ago.
The second requirement is that the Notice contain facts “sufficient to permit the public entity, public school or public employee to understand the basis on which liability is claimed.”
The third requirement is closely related to the second. The Notice must state a specific amount for which the claim can be settled and “the facts supporting that amount.” These two parts of the statute have spawned a lot of litigation as the state routinely claims that the amount stated was not sufficiently specific or that the plaintiff did not include enough facts for it to understand the nature of the claim and to determine if it is worth the amount plaintiff is willing to accept in settlement or both.
The fourth and final requirement also trips up many would-be plaintiffs. The Notice must be served on the “person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure . . . .” It cannot be just mailed. It must be hand-delivered and it must go to a specific person, who will usually be different for each state entity. If you serve the Notice on the wrong person, or don’t serve it on all the persons who should receive it, you will be tossed out of court.
After the Notice is served, the state entity has 60 days in which to decide whether to accept it or not. They almost never do. The Notice is presumed denied after 60 days has passed without an acceptance, unless it is specifically denied before that.
A companion statute requires that all actions against the state, its entities or employees be brought within one year from the time of the event giving rise to the action. This means that after the Notice of Claim is filed, the plaintiff has until the one year anniversary of the event to file suit. The two year statute of limitations for personal injury does not apply.
There is an exception for minors and others under a disability. The 180 days and the one year limitation period do not begin to run for them until they reach the age of majority (18) or until the disability is lifted.
There is one final exception. If a reasonable person would not realize he or she has been damaged and the cause or condition that caused the damage, the Notice of Claim period does not begin to run. This may happen from time to time but there will almost always be an argument by the state that the period ran more than 180 days before the Notice of Claim was eventually filed.
If the state argues that the Notice of Claim was not filed in time, that issue must be resolved before trial and as soon as possible.
You may think that this is pretty straightforward but these requirements are the subject of appellate case after appellate case as the state routinely argues the requirements of the statute were not met and the trial courts agree. There may be questions about who is an employee or agent of the state. For example, doctors participating in residency programs through the University of Arizona are considered state employees. In a very recent case, someone sued a county for actions taken by the county sheriff. The appellate court held that the claim failed because the county is not responsible for sheriffs, who are elected officials and should be sued on their own.
The bottom line is that if you have been injured by a state employee or anyone who might even remotely be considered to be a state employee, get to a lawyer as soon as possible and get legal advice. It will take time to investigate and prepare a Notice of Claim, if one is required, so you better get to the lawyer in time for the necessary investigation to be completed. I cannot even consider taking a case requiring a Notice of Claim that arrives in my office less than 45 days before the expiration of the 180 day period. It is just too risky. Don’t lose your right to sue because you failed to comply with the Notice of Claim statute.
