Making a Claim against a Public Entity

In Thompson v. Pima County, 2 CA-CV 2010-0087, November 16, 2010, the Court of Appeals found that under A.R.S. §12-821.01, if a person or entity has been injured by a public entity, such as a City, the County or the State, or a political division thereof, the injured party has 180 days to notify the injuring public entity “after the cause of action accrues”. “Accrual” is defined as “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage.” This means, by way of example only, if you are in a car accident that involves a City of Tucson vehicle, you have 180 days from the date of that accident to investigate the accident and evaluate your damages, including physical injuries, and make a claim against the City of Tucson. The statute requires that as part of your claim, you set forth sufficient facts regarding the incident as well as a dollar amount for damages, to support the claim. In a companion case, Lee v. State, 1 CA-CV 09-0657, November 9, 2010, the Court of Appeals determined that the question of whether a timely claim was actually delivered to the public entity is a question of fact for the fact finder, in this case, a jury, to determine. Proof of mailing of the claim to the public entity creates a rebuttable presumption that the claim was received and the jury must decide based upon the facts presented, whether the claim actually was received.

Forcible Detainer Action in Foreclosed Home

In Arizona Real Estate Inv., Inc. v. Schrader, 1 CA-CV 10-0038, November 9, 2010, Arizona Real Estate Investors, Inc. purchased a foreclosed property and then sued the former owner in a forcible detainer action. Arizona Real Estate Investors, Inc. never attempted personal service but merely posted the property and mailed a copy of the summons and complaint to the former owner. The Court ruled that a landlord must make a good faith effort to personally serve a tenant with a forcible detainer action and prove that such personal service is impracticable before the landlord may request alternative service, such as service by mail. The Court found that the requirement that a “speedy and quick determination” of a forcible detainer action is not sufficient cause to allow alternative service absent reasonable efforts to personally serve a tenant with the action.

Inadvertently Waiving Your Arbitration Rights

In In re Cortez (Cortez v. Avalon Care Center Tucson, L.L.C. et al.), 2 CA-CV 2010-0071 December 22, 2010, when sued by the estate of a deceased resident, the owner of the nursing home waited until the case had been active for more than a year before seeking to enforce an arbitration clause in the admission paperwork signed by the deceased husband. The Court of Appeals ruled that the nursing home waived its right to enforce the arbitration clause by its conduct; i.e., failing to request arbitration in its Answer, failing to move to dismiss or stay the proceedings in order to arbitrate the matter, by failing to reserve its right to arbitrate and waiting nearly a year after filing its Answer before seeking to enforce the Arbitration Clause in its own contract. The Court also found that the nursing home waived its contractual right to arbitration because the nursing home had constructive knowledge of its own arbitration agreement and any failure to assert the arbitration defense on a known right acted as a waiver of the right to arbitrate the claims made by the estate.

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