Ponce v. Parker Fire District – 3/27/2014

April 1, 2014

Arizona Court of Appeals Division One Holds That Failure To File Notice of Claim Is An Affirmative Defense Subject to Waiver.

Manuel Ponce’s home was almost destroyed by fire on August 21, 2009.  Experts concluded that the fire was likely caused by embers from an August 16th fire on his neighbor’s property, which had reached Ponce’s property.  Embers from that earlier fire likely traveled through openings created by the firefighters in a board into the Ponce’s attic, igniting days later.    

On March 5, 2010, Ponce submitted a notice of claim to the Parker Fire District (“PFD”).  On March 26, 2010, Ponce filed a complaint against his neighbor and in August of that year filed an amended complaint adding a claim against PFD.

PFD asserted as an affirmative defense the failure to file a timely notice of claim, arguing that the notice of claim was filed 196 days after the second fire and therefore was untimely under the 180-day limit imposed by A.R.S. § 12-821.01.  On January 6, 2012, PFD filed a motion for summary judgment on the issue.  The superior court granted the motion and Ponce appealed.

The Court of Appeals reversed.  The failure to comply with the notice of claim statute is an affirmative defense subject to waiver.  A party asserting this defense must seek prompt resolution of the issue.  While limited discovery on accrual may be appropriate in some cases, PFD actively litigated the merits of the case for well over a year.  Because of this conduct, the Court concluded that PFD waived its notice of claim defense. 

PFD also argued that the summary judgment could be affirmed on the ground that Ponce had not retained a qualified expert on firefighting techniques.  Ponce relied on PFD’s Fire Chief and other firefighters to establish the standard of care and its breach.  Viewing the testimony and record in the light most favorable to Ponce, the Court found that a question of fact existed regarding PFD’s standards and concluded summary judgment was not appropriate.  

Judge Thompson authored the opinion, in which Judges Swann and Johnsen joined.