Little v. State – 9/30/2010
Arizona Court of Appeals Division Two Holds That a Claim Accrues Under the Notice of Claims Statute When the Plaintiff Discovers Enough Facts to Allege an Injury and the Causes of the Injury, Rather Than When an Official Investigation is Completed.
Shawntinice Polk, a member of the University of Arizona women’s basketball team, collapsed in a training room and died in September 2005. In July 2007, a local reporter making a documentary film about Polk’s death filed a complaint against Polk’s doctor, an employee of the University of Arizona’s Campus Health Service, with the Arizona Medical Board. The reporter’s complaint to the Board repeatedly specified that he was filing it on behalf of and with the authorization of Polk’s mother, Johnnie Little. In February 2008 the Board ruled that Polk’s doctor had acted unprofessionally in failing to adequately examine Polk and consider a diagnosis of pulmonary embolus.
In May 2008 Little filed a notice of claim with the state pursuant to A.R.S. § 12-821.01, alleging negligence by Polk’s doctor. The State moved for summary judgment, claiming that the notice was not made within the statutory time limit of 180 days after accrual and that the claim accrued no later than the day the complaint was filed with the Board in July 2007. Little countered that the claim did not accrue until the Board issued its ruling in February 2008. Little alternatively argued that the time limit should be tolled and that the state should be equitably estopped from asserting the untimeliness of the claim. The superior court rejected all of Little’s arguments and granted summary judgment for the State.
The Arizona Court of Appeals upheld the trial court’s summary judgment ruling, holding that, at a minimum, the claim accrued when Little’s agent filed the complaint with the Board. The notice of claim statute says that a claim accrues “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause” of the damage. A.R.S. § 12-821.01(B). The Court rejected Little’s claim that she could not know she had a cause of action until the Board issued its ruling; the Board complaint contained enough information to allege both an injury and the actors and events which led to the injury, and thus the injury accrued no later than the date of the complaint. The Court also held that Little’s claimed lack of personal knowledge about the doctor’s malpractice did not prevent accrual because the reporter knew the facts and acted as her authorized agent.
The Court also rejected Little’s estoppel and tolling arguments. Little implied that a state insurance adjuster delayed discovery of the claim by blocking access to medical records, but the Court held that any such delay was irrelevant because she had the records long before the reporter filed the Board complaint. Little also claimed that the time limit should be tolled because she consulted two attorneys who refused to take her case, but the Court noted that even if those attorneys acted improperly, equitable tolling applies only in “extraordinary circumstances” and not in “a garden variety claim of excusable neglect.”
Judge Espinosa authored the unanimous opinion; Judges Brammer and Howard concurred.