from the Superior Court in Maricopa County No. CV2013-001762
The Honorable Randall H. Warner, Judge The Honorable Douglas
L. Rayes, Retired Judge The Honorable Lori Horn Bustamante,
Phoenix City Attorney's Office, Phoenix By Brad Holm
Counsel for Third-Party Plaintiff/Appellant
Maledon PA, Phoenix Mary R. O'Grady Counsel for
Third-Party Plaintiff/Appellant Gallagher & Kennedy PA,
Phoenix By Kevin E. O'Malley, Mark A. Fuller, Thomas A.
Maraz Counsel for Third-Party Defendants/Appellees CHI
Construction Co., Continental Homes, Inc.
& Baker Ltd, Scottsdale By Katherine E. Baker, Diane L.
Bornscheuer Counsel for Third-Party Defendant/Appellee
Glenayre Electronics, Inc.
Crane Robinson & Seal LLP, Los Angeles, CA By Brad D.
Bleichner Counsel for Third-Party Defendant/Appellee William
Lyon Homes, Inc.
Greenfield & Polito LLP, Phoenix By Holly P. Davies,
Alexix G. Terriquez Counsel for Third-Party
Defendants/Appellees KB Home Holdings Inc., Richmond American
Homes Inc., MDC/Wood, Inc. Wood Smith Henning & Berman
LLP, Phoenix By Jill Ann Herman Counsel for Third-Party
Defendants/Appellees UDC Homes, Inc. nka Shea Homes of
Phoenix, Inc. (FN), Elliot Homes, Inc.
Gammage & Burnham, PLC, Phoenix By Richard K. Mahrle,
Jason L. Cassidy Counsel for Third-Party Defendant/Appellee
Swengel-Robbins Contracting Co., Inc.
Offices of Joseph A. Kula, Scottsdale By Joseph A. Kula,
Benjamin R. Eid Counsel for Third-Party Defendant/Appellee
Aztec Construction, Inc.
Maynard Cronin Erickson Curran & Reiter PLC, Phoenix By
Daniel D. Maynard Counsel for Third-Party
Defendants/Appellees JNC, Inc., UH Holdings, Inc.
Quintairos Prieto Wood & Boyer, PA, Phoenix By Vincent J.
Montell, Michael J. Ponzo, Rita J. Bustos Counsel for
Third-Party Defendant/Appellee Los Paisanos Development, Inc.
Michael Newsome, Cave Creek Third-Party Defendant/Appellee
Dickinson Wright PLLC, Phoenix By Michael S. Rubin, Stephen
E. Richman, J. Gregory Cahill Counsel for Third-Party
Defendants/Appellees Pulte Home Corp., Del Webb Corp.
Shorall McGoldrick Brinkmann PC, Phoenix By Thomas J.
Shorall, Jr., Jason J. Boblick Counsel for Third-Party
Defendant/Appellee Wittman Contracting Co.
Wilenchik & Bartness PC, Phoenix By Dennis I. Wilenchik,
Mia Nguyen Counsel for Third-Party Defendant/Appellee Jeff
Blandford Investments, Inc.
Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco
The City appeals the trial court's orders: (1) dismissing
its third-party complaint against Appellees because it was
not brought within the eight-year period of repose set forth
in Arizona Revised Statutes (A.R.S.) section 12-552(A),
(2) awarding certain Appellees their attorneys' fees as
the successful parties in a contract action pursuant to
A.R.S. § 12-341.01(A). We conclude A.R.S. § 12-552
applies to governmental entities and that the City's
claims are based in contract within the meaning of A.R.S.
§ 12-552(F); therefore, the City's claims against
Appellees are time-barred. We also find no error in the
court's grant of attorneys' fees to those Appellees
who properly asserted a right to fees and conclude that the
amounts awarded were within the court's discretion. For
these reasons, we affirm.
FACTS AND PROCEDURAL
In 2013, Carlos Tarazon filed a lawsuit alleging he had
developed mesothelioma as a result of long-term exposure to
asbestos while performing pipe installation and repair for
the City and numerous other defendants not parties to this
appeal. Tarazon further alleged the City knew of the inherent
dangers of asbestos exposure and was negligent in failing to
adequately warn and protect him from those
The City immediately filed a third-party complaint seeking
defense and indemnification from eighty-two developers (the
Developers) and eight contractors (the
Contractors) allegedly responsible for planning,
designing, and constructing the projects on which Tarazon was
exposed to asbestos between 1968 and 1993. Within its
complaint, the City alleged the third-party defendants were
solely responsible for the selection, installation, and
disposal of any asbestos-laden products used in their
respective projects, and therefore, the Contractors and
Developers were required to indemnify the City against
Tarazon's claims - the Contractors by virtue of their
construction contracts and right-of-way permits, and the
Developers by virtue of City ordinances incorporated within
Each of the City's contracts with the Contractors
provided that "[t]he Contractor agrees to indemnify and
save harmless the City of Phoenix . . . from all suits,
including attorneys' fees and cost of litigation . . . of
any character or any nature arising out of the work done in
fulfillment of the terms of th[e] contract." The permits
issued to the Developers do not contain any specific covenant
to indemnify, but rather state the permittee "agrees to
perform all work in accordance with" certain agreed-upon
plans and specifications, and that the permit is issued
"on the express conditions that every agreement and
covenant contained in th[e] permit is faithfully
performed." As the City alleges, the agreed-upon plans
incorporate specifications required by the Maricopa
Association of Governments, which in turn require the
permittees to "observe and comply with all such laws,
ordinances, regulations, codes, orders and decrees."
Among those ordinances is the following indemnification
The permittee agrees to indemnify and save harmless the City
of Phoenix . . . from all suits, including attorneys'
fees and costs of litigation . . . of any character or any
nature arising out of or in connection with any act or
omission of the ...