Lopez v. Cole – 4/12/2007

April 27, 2007

Arizona Court of Appeals Division One Holds That a Parent’s Failure to Bring a Claim For Medical Expenses For an Injured Minor Child Within the Two-Year Statute of Limitations Does Not Constitute Consent to Recovery By the Child Such That the Claim Would Pass to the Minor Child.

Lopez, the Guardian Ad Litem for a minor child injured more than eight years prior, brought suit to recover for the child’s injuries and medical expenses. Defendants moved for summary judgment on the claim for medical expenses, arguing that such a claim belonged to the parents of the minor child and was time-barred by their failure to bring the claim within the two-year statue of limitations. The trial court granted partial summary judgment against Lopez on the question of medical expenses, and following a trial on the merits for damages, Lopez timely appealed.

On appeal, both sides conceded that Pearson & Dickerson Contractors Inc. v. Harrington, 60 Ariz. 354, 137 P.2d 381 (1943) controlled. In Pearson, the Arizona Supreme Court held that a claim for damages for the medical expenses of an injured minor child belongs to the parents and not the child, unless “the parents have consented to” recovery by the child. Lopez argued that the court should recognize consent by waiver to recovery by the minor child when parents fail to timely bring the medical expenses claim on their own behalf. The Court of Appeals rejected this argument, noting that consent and waiver are different legal concepts, the former operating as a type of assignment of the right, while the latter operates to relinquish the right entirely. Thus, the court declined to craft a new rule in which minor children would be permitted to pursue claims for medical expenses any time their parents failed to bring such a claim within the two-year statutory period.

The Court also rejected Lopez’s argument that the doctrine of necessaries provided the minor child with a right to sue for medical expenses. The doctrine of necessaries applies when a child himself is personally liable for medical expenses because his parents cannot afford to pay them. Lopez argued that because AHCCCS paid the medical expenses in question, and AHCCCS is entitled to a lien for those expenses, the minor child may personally owe a duty to reimburse AHCCCS. The Court declined to consider the application of this doctrine because Lopez had failed to show that AHCCCS had exercised its right to record a lien within the time frame set forth by statute, and Lopez had failed to make any showing that the parents, in this case, were unable or unwilling to pay the medical expenses.

Judge Orozco authored the unanimous opinion, joined by Judge Johnsen and Judge Portley