Arizona Court of Appeals Division One Strictly Construes Notice of Claim Rules to Require Delivery, Not Just Mailing, of Claim.

Plaintiffs sought to bring a claim against the State alleging negligence in designing and maintaining a highway guardrail. Plaintiffs sent a notice of claim via U.S. Mail to the Attorney General on January 20, 2005. The State offered evidence that it did not actually receive the Notice and moved to dismiss for failure to comply with the Notice of Claim requirements of ARS 12-821.01. The Superior Court granted the motion and Plaintiffs appealed.

In still another decision strictly construing ARS 12-821.01, see infra Burkhamer v. State of Arizona, Division One affirmed. The decision noted that the statute requires a claimant to “file” their claim within 180 days. The Court then engaged in a lengthy treatment of the word “file,” ultimately relying on other Arizona cases, analogous federal tort cases, and the dictionary. The Court concluded that the filing requirement obliges tort claimants in Arizona to actually deliver or ensure the actual delivery of the notice of claim to the proper person within the statutory period. Here, because the State offered evidence that no claim was delivered, and because the plaintiff had no proof of delivery, the plaintiffs’ suit was barred.

Judge Weisberg authored the decision in which Judges Winthrop and Ehrlich joined.