Humphrey v. State ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JAMES MICHAEL HUMPHREY, et al., Plaintiffs/Appellees/Cross-Appellants,
v.
STATE OF ARIZONA, Defendant/Appellant/Cross-Appellee.
No. 1 CA-CV 16-0570
FILED 12-5-2019
Appeal from the Superior Court in Maricopa County
No. CV2011-091958
The Honorable David K. Udall, Judge
The Honorable Emmet Ronan, Judge, Retired
REVERSED IN PART; AFFIRMED IN PART; REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Fred Zeder, Daniel P. Schaack
Co-counsel for Defendant/Appellant/Cross-Appellee
Renaud, Cook, Drury, Mesaros PA, Phoenix
By William W. Drury, John A. Klecan
Co-counsel for Defendant/Appellant/Cross-Appellee
Struck, Love, Bojanowski & Acedo PLC, Chandler
By Nicholas D. Acedo
Co-counsel for Defendant/Appellant/Cross-Appellee
HUMPHREY, et al. v. STATE
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The Leader Law Firm PC, Tucson
By John P. Leader
Co-Counsel for Plaintiffs/Appellees/Cross-Appellants Humphrey
Zachar Law Firm PC, Phoenix
By Christopher J. Zachar
Co-counsel for Plaintiffs/Appellees/Cross-Appellants Quinn
Aiken & Scoptur PC, Milwaukee, WI
By Timothy J. Aiken
Co-counsel for Plaintiffs/Appellees/Cross-Appellants Quinn and Humphrey
League of Arizona Cities and Towns, Phoenix
By Christina Estes-Werther
Attorney for Amicus Curiae Apache County, et al.
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge Maria Elena Cruz joined.
B R O W N, Judge:
¶1 The State of Arizona challenges several superior court rulings
relating to a judgment entered in favor of Plaintiffs in this wrongful death
case.1 The dispositive issue here is whether the court erred in denying the
1 James Michael Humphrey pursued this action as the statutory
plaintiff and surviving spouse of Pamela Humphrey, individually and on
behalf of Pamela’s other statutory beneficiary (Sean Humphrey). See A.R.S.
§ 12-612(A) (“An action for wrongful death shall be brought by and in the
name of the surviving husband or . . . child . . . of the deceased person for
and on behalf of the surviving husband or wife, children or parents, or if
none of these survive, on behalf of the decedent’s estate.”). Lynn Quinn
pursued this action as the statutory plaintiff and surviving spouse of Ann
Quinn, individually and on behalf of Ann’s statutory beneficiaries
(Christopher Quinn (aka Lynn Quinn II), Brent Quinn, and Chase Quinn).
Id. When Lynn Quinn passed away, the court granted Chase Quinn’s
motion to substitute for Lynn as the statutory plaintiff. Unless otherwise
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State’s motion for summary judgment and motion for judgment as a matter
of law (“JMOL”), both of which sought dismissal of Plaintiffs’ negligence
claims on statute of limitations grounds. As a matter of law, we conclude
that Plaintiffs failed to file a valid notice of claim. We therefore reverse the
court’s orders denying summary judgment and JMOL, and remand for
entry of judgment in favor of the State. In their cross-appeal, Plaintiffs
argue the court erred in dismissing Plaintiffs’ claim that the State violated
Arizona’s Public Records Act. See A.R.S. § 39-121. We affirm the court’s
dismissal of that claim.
BACKGROUND
¶2 On May 14, 2008, Pamela Humphrey and Ann Quinn
(Pamela’s sister-in-law) were traveling on Interstate I-10 (“I-10”) near mile
marker 171.4 when Pamela lost control of her vehicle, crossed through the
open median, and collided with a semi-trailer truck traveling in the
opposite direction. Neither Pamela nor Ann survived the crash.
¶3 On or about August 13, 2008, Quinn (who moved to
Oklahoma after the accident) read a newspaper article from The Oklahoman,
titled “Barriers Put Brake on Road Deaths,” that discussed the Oklahoma
Department of Transportation’s decision to install cable median barriers in
“medians prone to crossover collisions.” The article concluded that “the
installation of cable barriers has been one of the most effective, if not the
most effective, safety improvements the department has made,” and
illustrated this concept by noting that since installation, the barriers had
been hit more than 500 times by passenger cars without fatalities. Quinn
mailed the article to Humphrey with the following note: “Read the article
on Barriers[,] [i]f only! Please save and use this[.]”
¶4 Around the same time, Humphrey began to investigate cross-
median accidents and fatalities because he “wanted to prevent others from
having a family member die” in such a collision. Humphrey contacted
friends who did landscape architecture work for the Arizona Department
of Transportation (“ADOT”) and “asked them if there was anyone that [he
could] talk to at ADOT about median cables and what we can do.”
Humphrey then contacted Sean Hammond, a friend who worked in the
noted, individually we refer to James Michael Humphrey as “Humphrey,”
Lynn Quinn as “Quinn,” and Sean Humphrey, Christopher Quinn and
Brent Quinn as “the Beneficiaries.” We refer to Humphrey, Chase, and all
statutory beneficiaries collectively as “Plaintiffs.”
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Governor’s Office of Highway Safety and asked if Hammond could
“recommend or find . . . someone that [he could] talk to and begin a
dialogue about what we can do about the median cable.” Specifically,
Humphrey wanted to (1) know the number of fatalities on I-10 as a result
of crossover accidents, and (2) meet with ADOT officials “to see if he could
help them with getting cable barriers and . . . additional safety measures”
along I-10. Hammond believed he could obtain this information for
Humphrey because he had made similar requests in his professional
capacity to ADOT’s Director of Traffic Studies, Nancy Crandall. Acting on
behalf of Humphrey (i.e., not in his professional capacity), Hammond asked
Crandall about the number of cross-median collisions between Tucson and
Phoenix. Crandall informed Hammond that cross-over incidents were
“occasional,” but she did not provide him with any specific data sets.
¶5 In late October or early November 2008, attorney John
O’Hare, a “personal friend of Pam,” informed Humphrey of the need to file
a notice of claim to preserve his right to pursue legal action against the State.
Humphrey authorized O’Hare to draft and file a notice of claim. O’Hare
submitted a notice to the Arizona Attorney General’s Office and ADOT on
November 7, 2008 (“2008 notice”), which stated in relevant part as follows:2
We are sending this letter providing formal notice of a
personal injury claim against the State of Arizona pursuant to
A.R.S. Section 12-821.01.
On May 14, 2008, in the morning, Ms. Pamela Waters
Humphrey was operating her vehicle on Interstate 10 about
milepost 172 in the State of Arizona, Pinal County. Her sister-
in-law, Ms. Ann Quinn was a passenger in the same vehicle.
For reasons unknown at this time, Ms. Humphrey, while
operating the vehicle at a safe speed, lost steering control. Ms.
Humphrey’s vehicle went through the median and was
struck by an oncoming truck in the opposite traffic lane. The
police report provides greater detail. As a result of these
events, both Ms. Humphrey and Ms. Quinn immediately died
from injuries.
It is believed that the Humphrey vehicle rolled through the
median and into oncoming traffic due to the State of Arizona’s
negligent maintenance of the highway, median; and failure to
2 Although the 2008 notice is dated November 7, 2009, it is undisputed
the submittal date was November 7, 2008.
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provide a guard barrier to prevent vehicles from going into
oncoming traffic.
Both Ms. Humphrey and Ms. Quinn were married and left
additional family members. The Humphrey and Quinn
estates and families have suffered devastating pecuniary and
non-pecuniary losses because of the deaths of Ms. Humphrey
and Ms. Quinn.
This seeks the recovery of damages for wrongful death of
both women including all proper damages associated with
their deaths, that are due their estates and surviving family
members. While their damages are difficult to quantify at this
time, we believe that a fair value for these damages is in the range
of Five to Ten Million Dollars for each of their deaths.
(Emphasis added.)
¶6 Shortly thereafter, Humphrey sent a letter to Congresswoman
Gabrielle Giffords on December 5, 2008, requesting her “assistance” in
“mount[ing] a new public campaign to make Arizona’s highways safer.”
After summarizing the details of the crash, his letter stated:
I found out after the crash that this section of I-10 does not
have a median cable barrier, which is designed to prevent
vehicles from crossing through the median and onto
oncoming traffic.
. . .
Interstate 10 should have median cable barriers installed
along the entire stretch between Tucson and Phoenix. These
barriers are crucial given the heavy (and increasing) traffic
volumes, high posted speeds and unsafe roadway conditions
(uneven roadways, narrow lanes, road debris, wildlife
crossings and dust from the plowing of nearby fields).
. . .
I have heard it estimated that the cost of a highway fatality is
between $5 and $10 million dollars. If we can prevent up to
95% of these types of accidents from occurring, it seems likely
that the cost savings will cover the cost of installing and
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maintaining a median cable barrier system. Besides the
dollars involved, think of the tragic human cost to families
who lose loved ones. Both my wife and sister would most likely
be alive today if a median cable barrier had been in place.
(Emphasis added.)
¶7 On January 26, 2009, Humphrey sent ADOT a letter
“rescinding [his] personal injury claim against the State of Arizona” and
advising that O’Hare was no longer representing him. On the same day,
Humphrey also submitted a “public information request” to ADOT, which
asked the following:
1. How many cross-median fatalities have occurred on I-10
between Tucson and Phoenix?
2. How many cross-median accidents have occurred on I-10
between Tucson and Phoenix?
3. How many miles of I-10 between Tucson and Phoenix remain
uncabled?
4. How much would it cost [to cable] those remaining sections of
I-10 between Tucson and Phoenix?
¶8 In response to questions one and two, ADOT’s custodian of
records (Susan Olson) stated, “Our accident statistical information does not
narrow the cause of the accident into the data input. Therefore, I do not
have a record that reports the number of cross-median fatalities.” As for
questions three and four, Olson listed the mile markers on I-10 between
which cable barriers had not been installed, and she provided cost
information for the recent installation of cable barriers in “the Tucson area.”
Olson sent Humphrey another letter on February 25, 2009, referencing a
“supplemental telephonic request” and provided the “[t]raffic records
statistical reports for [I-10, Tucson–Phoenix (MP 231.50–163.5)] from
1/1/06 to 12/31/08 (latest available): Motor Vehicle Crashes (Eastbound
and Westbound) by: 1) First Harmful Group; 2) Collision Manner; [and] 3)
Accident History Data.”
¶9 In August or September 2010, a private investigator working
for attorney John Leader noticed a cross at the crash site with Pamela’s
name and contacted Humphrey, asking if he would be interested in helping
in another case involving a cross-median accident. The investigator
informed Humphrey that Leader had information about cross-median
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accidents and fatalities on I-10, which led to Humphrey retaining Leader as
his attorney in this case. On October 29, 2010, Leader filed a
“supplemental” notice of claim on behalf of all Plaintiffs, explaining that
while the original notice of claim “was adequate in all respects, this
supplemental notice is submitted in an abundance of caution.” When
ADOT did not respond to the notice, Plaintiffs filed their complaint on
February 3, 2011, alleging negligence, gross negligence, and a violation of
the Arizona Public Records Act, A.R.S. § 39-121.3
¶10 The State sought summary judgment on the negligence claim,
arguing it was time-barred under A.R.S. §§ 12-821 and -821.01. In response,
Humphrey argued that accrual of the negligence claim was “necessarily” a
question of fact for the jury and that he was “entitled to judgment as a
matter of law on the issue of tolling due to the [State’s] deliberate
concealment of material facts.” Humphrey also filed a cross-motion for
summary judgment on the tolling issue. Quinn’s separate response to the
State’s motion argued the issue of accrual was a jury question, the time of
accrual for the statute of limitations was tolled “to the extent that State
officials or employees gave false information to [Humphrey],” and
regardless, Quinn had “no knowledge” until October 2010 of a potential
claim against the State.
¶11 In its summary judgment motion, the State also requested
dismissal of the alleged public records violation, asserting Humphrey made
“a general request for information that does not reasonably describe an
identifiable record” maintained by the State. Humphrey countered that
ADOT’s answers “violated the spirit and purpose of the public records law”
because it “suggeste[d] the information Plaintiff requested [did] not exist,”
when the State did in fact possess Department of Public Safety accident
reports from which the answers to Humphrey’s questions could be gleaned.
¶12 In July 2012, the superior court denied the State’s motion and
Humphrey’s cross-motion relating to compliance with A.R.S. §§ 12-821 and
-821.01. The court first noted that “when a cause of action accrues and when
the statute of limitations begins to run is an issue of fact for the jury” and
then found that genuine issues of material fact existed as to the following:
(1) whether Humphrey’s “knowledge, understanding and acceptance, in
the aggregate, provided sufficient information that he should have known
he had a cause of action against the State based on the absence of a median
barrier”; (2) whether he made a public records request and whether ADOT
3 Because the gross negligence claim was not submitted to the jury, we
do not address it further.
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had records containing the information he sought; (3) whether ADOT had
“deliberately concealed material information” that Humphrey requested or
“[misled] Mr. Hammond and [Humphrey] into believing there was no
problem with crossover collisions on the I-10 between Phoenix and
Tucson.” Although not entirely clear, the record does not show that the
court specifically addressed the State’s requested dismissal of Plaintiffs’
claim that a public records violation occurred.
¶13 After re-assignment of the case from Judge Ronan to Judge
Udall, the State filed a motion for partial summary judgment in October
2013 that requested dismissal of Plaintiffs’ public records claim because “at
the time of [the] request, ADOT did not have any record or report providing
an answer to [the] questions and [had] no practical way of identifying police
reports of cross-median crashes.” The State acknowledged that it requested
similar relief in its initial motion for summary judgment but contended
raising the issue again was not improper because the issue had “become
lost in the shuffle” of the myriad of separate filings related to the motions
and had not been ruled on. Humphrey responded that the previous ruling
“implicitly . . . denied or intended to deny” the motion on that issue and it
could not be reconsidered. After hearing oral argument, the court granted
the State’s motion, finding that the State “appropriately answer[ed]
Plaintiffs’ inquiries to the best of their ability” and could not be “required
to produce what it does not have.”
¶14 A jury trial was held in 2015. After Plaintiffs rested their case,
the State moved for JMOL, asserting that Plaintiffs failed to comply with
the requirements of §§ 12-821 and -821.01. Judge Udall denied the motion,
stating he would not overrule Judge Ronan’s summary judgment ruling.
The jury found in favor of Plaintiffs and awarded damages in the amount
of $47,010,000, of which $39,958,500 was attributable to the State. Following
the denial of several post-judgment motions—including a renewed motion
for JMOL—the State timely appealed and Plaintiffs timely cross-appealed.4
4 The parties reached a high/low settlement after the appeal was filed,
under which the amount of damages Plaintiffs will receive depends on the
outcome of this appeal.
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DISCUSSION
Statutory Prerequisites for Suing the State
¶15 The State argues that Plaintiffs’ claims are barred as a matter
of law because Plaintiffs failed to comply with the requirements of §§ 12-
821 and -821.01. The State addresses both the denial of its motion for
summary judgment and its motion for JMOL, but its primary focus seems
to be the summary judgment ruling. Generally, the denial of a motion for
summary judgment is not appealable, but we need not address whether an
exception to this rule applies because the State properly preserved the
argument in its JMOL motion. See John C. Lincoln Hosp. & Health Corp. v.
Maricopa County, 208 Ariz. 532, 539, ¶ 19 (App. 2004) (“[I]n cases that have
gone to trial, a party who wants to preserve a summary-judgment issue for
appeal, with a possible exception for a purely legal issue, must do so by
reasserting it in a Rule 50 motion for judgment as a matter of law or other
post-trial motion.”). Regardless, our analysis of the court’s rulings on each
of these motions is the same because no material differences exist between
the evidence presented at the summary judgment stage and at trial as to
whether Plaintiffs filed a proper notice of claim.
¶16 We review de novo whether the superior court properly
denied the State’s motion for summary judgment and motions for JMOL.
Glazer v. State, 237 Ariz. 160, 167, ¶ 29 (2015) (“The standards for granting
or denying a motion for JMOL and a motion for summary judgment are the
same.”). We also review questions of statutory interpretation de novo. Id.
at 163, ¶ 12. JMOL is proper when “a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on that issue.”
Ariz. R. Civ. P. 50(a)(1); see Robertson v. Wal-Mart Stores, Inc., 202 Ariz. 286,
290, ¶ 14 (App. 2002) (“The ‘motion should be granted if the facts produced
in support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.’”)
(quoting Orme School v. Reeves, 166 Ariz. 301, 309 (1990)).
¶17 Arizona law requires a plaintiff to file a notice of claim
“within one hundred eighty days after the cause of action accrues” before
filing a lawsuit against a public entity. A.R.S. § 12-821.01(A). The lawsuit,
in turn, must be filed “within one year after the cause of action accrues and
not afterward.” A.R.S. § 12-821.
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¶18 The notice of claim must include (1) “facts sufficient to permit
the public entity. . . to understand the basis on which liability is claimed”;
(2) “a specific amount for which the claim can be settled”; and (3) facts
supporting the requested settlement demand. A.R.S. § 12-821.01(A). If
litigants do not strictly comply with § 12-821.01(A), their compliance with
the one-year statute of limitations in § 12-821 is irrelevant because “no
action may be maintained” in the absence of a statutorily compliant notice.
Id.; see also Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527, ¶ 10
(2006) (“Actual notice and substantial compliance do not excuse failure to
comply with the statutory requirements.”).
¶19 Two notices of claim were filed in this case—the first by
O’Hare on November 7, 2008, and the second by Leader on October 29,
2010. The 2008 notice satisfies almost all statutory requirements: it was
filed within 180 days from the date of the accident, and it asserted that
Plaintiffs’ wives/mothers died because I-10 (maintained by the State) did
not have a median barrier and was unsafe. This assertion unequivocally
allowed ADOT to understand the alleged basis for its liability, and thus met
the statute’s “facts sufficient” requirement. A.R.S. § 12-821.01(A).
However, the 2008 notice was legally insufficient because it did not contain
a “specific amount for which the claim can be settled.” Id.; Deer Valley
Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296–97, ¶ 10 (2007) (holding
that a notice of claim was invalid because its “qualifying language [made]
it impossible to ascertain the precise amount” for which the public school
could have settled the claim). Thus, the 2008 notice cannot serve as a valid
notice of claim for the Plaintiffs’ lawsuit.
¶20 The 2010 notice, in contrast, complied with § 12-821.01. It
asserted the same basis for liability as the 2008 notice, set forth a specific
amount for which the claims could be settled, and explained why the facts
supported the requested relief. But the 2010 notice was filed more than two
years after the date of the accident, which means it could not qualify as a
timely notice of claim unless Plaintiffs’ cause of action accrued on or after
May 2, 2010. A.R.S. § 12-821.01(A) (“Any claim that is not filed within one
hundred eighty days after the cause of action accrues is barred and no
action may be maintained thereon.”). We address first whether either
Humphrey or Quinn submitted a timely notice of claim, and then turn to
the statutory beneficiaries.
A. Accrual of Humphrey’s Claim
¶21 Section 12-821.01(B) provides that accrual begins when “the
damaged party realizes he or she has been damaged and knows or
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reasonably should know the cause, source, act, event, instrumentality, or
condition that caused or contributed to the damage.” We have interpreted
§ 12-821.01(B) “as a codification of the discovery rule for determining when
causes of action against public entities . . . accrue.” Thompson v. Pima County,
226 Ariz. 42, 46, ¶ 12 (App. 2010). Under that rule, a cause of action accrues
when the plaintiff knows he or she has been injured and has a “reason to
connect [the injury] to a particular [cause, source, act, event,
instrumentality, or condition] in such a way that a reasonable person would
be on notice to investigate whether the injury might result from fault.” Walk
v. Ring, 202 Ariz. 310, 316, ¶ 22 (2002) (emphasis added); Doe v. Roe, 191
Ariz. 313, 322, ¶ 29 (1998) (“A cause of action [accrues when] the plaintiff
knows or with reasonable diligence should know the facts underlying the
cause.”) (emphasis added).
¶22 The State argues Humphrey’s claim accrued as a matter of
law by November 7, 2008, at the latest; but Humphrey counters that accrual
is a factual question that is “usually and necessarily” for the jury to
determine and cannot be decided as a matter of law. Walk, 202 Ariz. at 316,
¶ 23. We acknowledge that when an action accrues must generally be
resolved by the trier of fact. See id. at ¶¶ 23–24 (concluding that whether
plaintiff was on notice to investigate could not be decided as a matter of law
when she had been assured by her doctor that he had done nothing wrong
and subsequent doctors did not inform her they believed the original doctor
was negligent); see also Doe, 191 Ariz. at 324, ¶ 35 (explaining accrual did
not begin when the victim first began to recall repressed memories that she
did not believe were real because plaintiffs are not required to file
complaints when they “subjectively believe[] [the facts] to be false or
unbelievable”).
¶23 The general rule, however, does not apply when there is no
genuine dispute as to facts showing plaintiff knew or should have known
the basis for the claim. See Thompson, 226 Ariz. at 46–47, ¶¶ 13–14 (finding
no genuine factual dispute that plaintiffs had “reasonable notice to
investigate” whether the county was negligent for failing to maintain a
roadway because evidence showed the driver learned after the accident he
had driven over potholes, the officer on scene told the driver the potholes
likely caused or contributed to her accident, and the driver’s family
members testified they suspected the potholes were a cause of the accident);
Little v. State, 225 Ariz. 466, 470, ¶ 13 (App. 2010) (affirming summary
judgment ruling that notice of claim was untimely and explaining the
plaintiff’s investigation into doctor’s negligence started “when a
‘reasonable person would have been on notice’ to investigate whether
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negligent conduct may have caused [the] injury”) (citing Walk, 202 Ariz. at
310, ¶ 24).
¶24 Humphrey testified in his deposition that “[a]fter reading the
research and seeing the difference between a cabled roadway and an
uncabled roadway,” he came to the conclusion that the roadway at mile
marker 171.4 was unsafe. He then acknowledged that he reached that
conclusion “within months after [his wife’s] death.” (Emphasis added.)
Although Humphrey asserts the need for a median barrier could only be
known after an expert witness could review the prior crash history, the 2008
notice alleged that Humphrey’s wife died “due to the State of Arizona’s
negligent maintenance of the highway[] median; and failure to provide a
guard barrier to prevent vehicles from going into oncoming traffic.”
(Emphasis added.) Despite Humphrey’s frequent attempts to distance
himself from the relevance of the 2008 notice, his counsel told the jury that
Humphrey complied with the notice of claim statute via the 2008 notice,
and Humphrey testified that he read and approved the 2008 notice. These
facts establish he knew in 2008 that he had been injured, and he knew the
source of his injury was the lack of a median barrier on a State-maintained
highway. See Little, 225 Ariz. at 470, ¶ 12 (finding plaintiff’s knowledge and
authorization of the filing of a letter showed that at the time, her
knowledge, understanding, and acceptance provided enough facts to
constitute a cause of action). This evidence also confirms that no later than
November 7, 2008, Humphrey had reasonable notice to investigate whether
the State was negligent in failing to place a barrier in the median.5
¶25 Humphrey testified at trial that he had “no facts” to support
the allegations contained in the 2008 notice, and that O’Hare merely filed
the notice—he did not help Humphrey gather additional facts to support a
complaint. On appeal, he relies on that testimony in support of his
argument that the cause of action did not accrue until he had “facts
sufficient” to support both a notice of claim and the subsequent complaint.
Humphrey contends that a plaintiff “must have reason to know a potential
defendant did something wrong” and that “the need for a median barrier
5 Our analysis is further supported by Humphrey’s letter to
Congresswoman Giffords, stating he believed Arizona’s roads were unsafe
and his wife and sister would likely be alive had there been a cable median
barrier. Humphrey sent this letter a month after the 2008 notice was filed,
but it confirms he possessed sufficient facts to file a valid notice of claim
before May 2, 2010.
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could not be evaluated or known (even via traffic engineer) without prior
crossover crash information.”
¶26 Humphrey’s arguments are similar to those raised by the
plaintiffs in Thompson v. Pima County, who asserted their notice of claim was
timely because accrual did not begin until their investigation into the State’s
negligence was complete and they received their expert’s opinion on
causation. 226 Ariz. at 44–45, ¶¶ 6–9. Rejecting their argument, we held:
Under the plain language of the statute, “accrual” and “facts
sufficient” are distinct concepts. Accrual relates to when the
plaintiff first becomes aware that he or she has a cause of
action against the defendant, and “facts sufficient” describes
the quantum of facts that the plaintiff must include in the
notice of claim. And, the statutory language does not
condition the accrual of a claim upon the plaintiff’s ability to
articulate the “facts sufficient” for giving notice of the claim
pursuant to § 12-821.01(A). Indeed, the 180-day delay
between the time of accrual and the time at which the notice
of claim containing “facts sufficient” must be filed is clear
evidence the legislature did not intend [the two terms] to have
the same meaning.
Id. at 45, ¶ 9.
¶27 Humphrey attempts to distinguish Thompson from his claim
by asserting the existence of the potholes was easily discoverable, and the
Thompson plaintiffs were informed by the officers that the potholes may
have contributed to the accident. Although the facts of each accident and
the plaintiffs’ discovery of their respective injuries are distinguishable, the
legal conclusion is not. The purpose of a notice of claim is to “allow the
public entity to investigate and assess liability, . . . permit the possibility of
settlement prior to litigation, and . . . assist . . . in financial planning and
budgeting.” Deer Valley, 214 Ariz. at 295, ¶ 6 (quotation omitted). It is not
intended “to test the legal sufficiency of the claim or the damages alleged.”
Havasupai Tribe v. Ariz. Bd. of Regents, 220 Ariz. 214, 227, ¶ 45 (App. 2008);
see Little, 225 Ariz. at 470, ¶ 13 (rejecting plaintiff’s argument that her claim
did not accrue until she received an expert medical opinion of malpractice).
Consistent with these authorities, delaying accrual until Humphrey had
facts sufficient to satisfy filing a complaint would be contrary to the plain
language of the notice of claim statute. See A.R.S. § 12-821.01.
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¶28 Humphrey also argues the 2008 notice, which was filed in
November, is irrelevant because his claim was tolled from August 2008
when ADOT allegedly began concealing evidence from him. Humphrey
focuses on the discussions between Hammond and Crandall, asserting that
Crandall had access to the requested information and not providing it to
Hammond was an act of fraudulent concealment. Even assuming that
Crandall was “legally required” to provide more specific information to
Hammond, our holding here would not change. Tolling does not continue
indefinitely; it ends when a plaintiff becomes aware or should be aware of
the pertinent facts giving rise to the claim. See Little, 225 Ariz. at 471, ¶ 17
n.8. As a matter of law, any period of tolling ended on November 7, 2008,
when Humphrey filed a notice of claim that plainly established that he
knew his injury arose from the State’s alleged negligence, or alternatively,
he had reasonable notice to investigate whether the State was negligent. See
Walk, 202 Ariz. at 319, ¶ 35 n.6. Because Humphrey failed to file a timely
notice of claim despite having the facts necessary to do so, his negligence
claim against the State is barred.6
B. Accrual of the Quinn Claim
¶29 Quinn argues he did not learn of facts regarding a “potential
claim against the State” until mid-October of 2010, and the uncontroverted
evidence established that the need for median barriers could not be known
without an expert opinion. Quinn’s argument fails to properly
acknowledge the principles we have outlined above—that accrual of an
action starts when the party either knew or should have known to
investigate whether its injury was attributable to a defendant. See A.R.S.
§ 12-821.01(B); Walk, 202 Ariz. at 316, ¶ 23. This rule is premised on the
notion that it is “unjust to deprive a plaintiff of a cause of action before the
plaintiff has a reasonable basis for believing that a claim exists,” Doe, 191
Ariz. at 322, ¶ 29 (quotation omitted); it does not permit plaintiffs to sleep
6 Humphrey urges us to consider public policies that are generally
applicable to limitation statutes, including recognition that the orderly
administration of justice resulting from a limitations requirement may be
outweighed “where the interests of justice require the vindication of a
plaintiff’s rights.” See Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996)
(quotation omitted). But Humphrey cites no authority suggesting those
policies would permit us to deviate from the requirements the legislature
has established for filing claims and lawsuits against governmental entities.
Cf. Deer Valley, 214 Ariz. at 299, ¶ 21 (noting the legislature intended
statutory amendments “to establish specific requirements that must be met
for a claimant to file a valid claim with a government entity”).
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on their rights and ignore their affirmative duty to “timely inquire whether
any basis exists for legal action, ” Walk, 202 Ariz. at 317, ¶ 25.
¶30 Quinn testified in his deposition that he sent Humphrey the
newspaper article, supra ¶ 3, because it made him think “the fatalities could
have been stopped” if a median barrier had been in place, and that although
he was generally aware Humphrey was trying to obtain information from
the State about the crash, he chose not to investigate further. On this record,
Quinn’s knowledge, understanding, and acceptance of his injury and its
connection to the State were sufficient to trigger his duty to investigate
whether the State was at fault; his failure to do so entitled the State to
judgment as a matter of law under § 12-821.01. Cf. ELM Retirement Ctr., LP
v. Callaway, 226 Ariz. 287, 290, ¶ 12 (App. 2010) (explaining that plaintiffs
are not permitted “to hide behind [their] ignorance when a reasonable
investigation would have alerted [them] to the claim”).
C. Statutory Beneficiaries
¶31 Relying on Wilmot v. Wilmot, 203 Ariz. 565 (2002) and James v.
State, 215 Ariz. 182 (App. 2007), Plaintiffs argue that even if Humphrey’s
and Quinn’s claims are statutorily barred, the 2010 notice and subsequent
complaint were statutorily compliant as to Beneficiaries because “each
beneficiary’s claim, including when it accrued, must be separately
evaluated” and each of the Beneficiaries avowed they lacked knowledge of
any facts that would alert them of a possible claim against the State.
Assuming without deciding that dismissal of a statutory plaintiff’s liability
action for failure to comply with § 12-821.01 does not extinguish the
statutory beneficiary’s claim to damages, we conclude the Beneficiaries’
claims are barred under § 12-821.01. Cf. Valder Law Offices v. Keenan Law
Firm, 212 Ariz. 244, 250–51, ¶ 21 (App. 2006) (stating that “a statutory
plaintiff [is] the only party entitled to litigate liability,” but beneficiaries
have a right to participate in establishing damages because “[i]njuries,
obviously, are unique to the particular beneficiary and not necessarily tied
to the liability issues that the statutory plaintiff has the sole duty of
prosecuting”).
¶32 We reiterate that claim accrual begins when a plaintiff is
aware of an injury and has a reason to connect it to a particular cause such
that “a reasonable person would be on notice to investigate whether the
injury might result from fault.” Walk, 202 Ariz. at 316, ¶ 22. The
Beneficiaries knew they were injured when the accident occurred on a
highway maintained by the State. The subsequent actions of their
respective fathers illustrate that these facts created a reason to connect the
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injury to the State “in such a way that a reasonable person would be on
notice to investigate” whether the State was at fault long before the 2010
notice was filed. Walk, 202 Ariz. at 316, ¶ 22.
¶33 Plaintiffs have failed to direct us to evidence in the record
showing the Beneficiaries took any steps to investigate whether the State’s
maintenance or construction of the highway may have caused or
contributed to their mothers’ cross-over accident. Instead, the Beneficiaries
rely on their absence of knowledge as support that the claim was tolled until
everyone was specifically informed of the other cross-over accidents in
2010. For example, Sean Humphrey’s affidavit states he “had not given
any thought to a possible lawsuit involving [his mother’s] death and . . .
had no idea the State . . . might have done anything wrong in failing to
provide a roadway barrier” before October 2010, when his father told him
he was pursuing legal action against the State. We reject Plaintiffs’ assertion
that parties may receive the benefit of tolling simply because they fail to
take any action to discover information relevant to the cause of an injury.
Accepting that premise would run counter to the plain language and the
purposes of §§ 12-821 and -821.01, as well as years of established precedent
applying the discovery rule. See ELM Retirement Ctr., LP, 226 Ariz. at 290,
¶ 12.
¶34 Viewing the evidence in the light most favorable to Plaintiffs,
“a reasonable jury would not have a legally sufficient evidentiary basis” for
a determination that any of the Plaintiffs complied with the notice of claim
statute; therefore, their negligence claims are barred as a matter of law.7
7 Because the notice of claim was not timely filed, we need not address
whether the complaint was also barred by the one-year statute of
limitations under A.R.S. § 12-821. Nor do we consider the other issues
raised on appeal. We note, however, that nothing in the record suggests
the parties brought to the superior court’s attention pertinent legislative
amendments that would have permitted the notice of claim issue to be
resolved in a different manner, namely, a 2012 statutory amendment that
provides, “[i]f a genuine issue of material fact exists as to whether the
requirements of this section have been complied with, the issue shall be
resolved before a trial on the merits and at the earliest possible time.” A.R.S.
§ 12-821.01(G) (emphasis added). Given the court’s finding that there were
genuine disputes of material fact concerning compliance with the notice of
claim, it was procedurally improper for a jury to decide compliance issues
at the same time as the trial on the merits. Based on our conclusion, whether
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Decision of the Court
Cross-Appeal: Violation of A.R.S. § 39-121
¶35 Plaintiffs argue Judge Udall disregarded the law of the case
by considering and granting the State’s motion for partial summary
judgment on their public records claim because Judge Ronan denied the
State’s initial motion, finding there was a question of fact as to whether
ADOT had the information Humphrey requested. Plaintiffs also argue the
State’s request was an “impermissible horizontal/lateral appeal.” We
review the superior court’s reconsideration of an earlier ruling for an abuse
of discretion. Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 332, ¶ 20
(App. 2009).
¶36 The “law of the case” is a procedural doctrine reflecting “the
need for ‘an end to litigation and a final decision the parties can rely
on.’”State v. King, 180 Ariz. 268, 279 (1994) (citations omitted). The doctrine
is used when determining “whether a judge is bound to follow a prior
decision made in the same case by another judge in the same court.” Id. at
278–79 (quoting 5 Am. Jur. 2d Appeal and Error § 744 (1962)). As explained
by our supreme court:
At the trial court level, the doctrine of the law of the case is
”merely a practice that protects the ability of the court to build
to its final judgment by cumulative rulings, with
reconsideration or review postponed until after a judgment is
entered.” . . . [I]t [does not] prevent a different judge, sitting
on the same case, from reconsidering the first judge’s prior,
nonfinal rulings.
Id. at 279 (citations omitted).
¶37 Judge Ronan’s denial of the State’s initial motion for summary
judgment was not a final, appealable order; thus, the law of the case
doctrine is inapplicable except to the extent it encompasses the court’s
decision to permit a horizontal appeal, which “is a request that a second
trial judge reconsider the decision of the first trial judge in the same matter,
even though no new circumstances have arisen in the interim and no other
reason justifies reconsideration.” Donlann v. Macgurn, 203 Ariz. 380, 385,
¶ 29 (App. 2002) (quotation omitted); see Powell-Cerkoney v. TCR-Montana
Ranch Joint Venture, II, 176 Ariz. 275, 278 (App. 1993) (“The policy against
the procedure outlined in § 12-821.01(G) would have affected the outcome
here is moot.
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horizontal appeals . . . forms part of the general concept of law of the case
as applied to decisions of the same court.”).
¶38 Horizontal appeals are generally discouraged, and we have
urged trial judges to “exercise caution when considering a motion that has
already been denied by another judge.” Dunlap v. City of Phoenix, 169 Ariz.
63, 66 (App. 1990). However, this policy is procedural, and judges have
discretion to determine it should not be applied, especially “when an error
in the first decision renders it manifestly erroneous or unjust or when a
substantial change occurs in essential facts or issues, in evidence, or in the
applicable law,”Powell-Cerkoney, 176 Ariz. at 279, or if the issue was not
actually decided in the previous ruling or if the ruling is ambiguous,
Dancing Sunshines Lounge v. Indus. Comm’n, 149 Ariz. 480, 483 (1986).
¶39 The State’s motion for partial summary judgment informed
Judge Udall that the State previously sought dismissal of the public records
claim but that Judge Ronan did not resolve the matter. In response,
Plaintiffs argued Judge Ronan’s ruling was dispositive because even
though it did “not expressly deny the State’s earlier motion . . . it [was]
implicitly clear that Judge Ronan denied or intended to deny that motion.”
Given that both parties acknowledged Judge Ronan’s ruling did not
expressly decide the State’s request to dismiss the public records claim, we
cannot say Judge Udall abused his discretion in considering the State’s
subsequent motion for partial summary judgment.8
¶40 Plaintiffs also argue that its public records claim must be re-
instated because our decision in Lunney v. State, 244 Ariz. 170 (App. 2017),
“imposes an affirmative duty and obligation on public officials to query and
search databases and produce responsive public records.” Plaintiffs
contend Olson did not search ADOT’s databases—she “simply conveyed
that ADOT did not have the requested information,” which Plaintiffs allege
was false because “ADOT had copies of every responsive accident report in
its possession.”
¶41 Judge Udall found that (1) the records requested did not exist,
and the State could not be required to produce what it did not have; and (2)
there was no practical way for the State to obtain the information Plaintiffs
had requested. We agree with these findings. As we stated in Lunney,
8 Because Plaintiffs have limited their argument on appeal to whether
Judge Udall was precluded under the law of the case doctrine from issuing
a ruling on the State’s motion, we do not address the merits of his decision.
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Arizona’s Public Records Law requires a state agency to
“query and search its database to identify, retrieve, and
produce responsive records for inspection” if the agency
maintains public records in an electronic database. Agencies
are not required to “tally and compile previously untallied
and un-compiled information or data available” in an
electronic database.
Id. at 177, ¶ 20 (citations omitted). We also explained that a distinction
exists between “‘searching an electronic database to produce existing
records and data’ and ‘searching an electronic database to compile
information about the information it contains.’” Id. (quoting Am. Civil
Liberties Union v. Ariz. Dep’t of Child Safety (ACLU), 240 Ariz. 142, 149, ¶ 18
(App. 2016)). Here, it is undisputed that in order to answer Humphrey’s
questions, ADOT would have had to engage in “hand analysis” by
reviewing at least 37,000 accident reports on microfilm and determining
which accidents were “cross-median accidents” resulting in fatalities.
Neither Lunney nor ACLU would have required ADOT to “‘tally or compile
numerical or statistical information and percentages’ and ‘create a new
record that compiles analytical information about information.’” Lunney,
240 Ariz. at 144, ¶ 22 (quoting ACLU, 240 Ariz. at 148, ¶ 17).
¶42 As for Plaintiffs’ suggestion that Olson had a duty to inform
Humphrey that although ADOT could not compile the data, it had the raw
data in the form of 37,000 accident reports that he could independently
review, Plaintiffs do not cite supporting authority, and nothing in the plain
language of § 39-121.01 imposes such a duty.
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CONCLUSION
¶43 We hold that Plaintiffs’ claims for negligence are barred as a
matter of law based on their failure to comply with the statutory
requirements for timely asserting claims against a government entity. We
therefore reverse the superior court’s orders denying summary
judgment/JMOL and remand for entry of judgment in favor of the State.
We affirm the court’s order granting summary judgment on Plaintiffs’
public records claim.
AMY M. WOOD • Clerk of the Court
FILED: AA
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