Sean Swenson, a married man; and Brent Swenson, a single man, Plaintiffs/Appellants,
County of Pinal, an Arizona municipal corporation and public entity, Defendant/Appellee.
from the Superior Court in Pinal County No. S1100CV201502128
The Honorable Daniel A. Washburn, Judge
Law Firm, PLC, Phoenix By Robert K. Lewis and Christopher A.
Treadway and Pokora Law, PLC, Phoenix By Amy M. Pokora
Counsel for Plaintiffs/Appellants
Wieneke & Love, P.L.C., Chandler By Kathleen L. Wieneke
and Kevin L. Nguyen Counsel for Defendant/Appellee.
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Howard
VÁSQUEZ, Presiding Judge.
Sean and Brent Swenson (collectively, Swenson) appeal from
the trial court's dismissal of their complaint against
Pinal County. Swenson argues the court erred in concluding
the County had not waived the notice-of-claim requirement and
statute of limitations under A.R.S. §§ 12-821 and
12-821.01 by obtaining liability insurance and contractual
indemnification. For the following reasons, we affirm.
and Procedural Background
In reviewing a trial court's decision to grant a motion
to dismiss, we assume the truth of the facts asserted in the
complaint. Sw. Non-Profit Hous. Corp. v. Nowak, 234
Ariz. 387, ¶ 4, 322 P.3d 204, 206 (App. 2014). However,
the relevant facts are undisputed. On November 18, 2013,
Keith Swenson was driving on Ironwood Drive in Pinal County
when he lost control. His vehicle spun and then rolled across
the opposite lanes of traffic. Keith was ejected and died as
a result of his injuries.
On November 13, 2015, Sean and Brent - Keith's sons -
brought this wrongful-death action against Pinal County,
alleging negligence. The County moved to dismiss the complaint
pursuant to Rule 12(b)(6), Ariz. R. Civ. P., arguing it was
barred by the failure to file a notice of claim, see
§ 12-821.01(A), and the one-year statute of limitations,
see § 12-821. In response, Swenson maintained
the County had "waived its sovereign immunity
protections provided in Title 12 . . ., including the notice
of claim requirements and one year statute of limitations,
" because the County had "secur[ed] liability
insurance and contractual indemnity." Swenson thus
reasoned the claim was not barred. Contemporaneously with the
response, Swenson also filed a motion for leave to amend the
complaint, primarily seeking to add "factual allegations
related to the County's securing of liability insurance
and contractual indemnity rights to protect public
After hearing oral argument, the trial court granted the
motion to dismiss because Swenson "did not file a notice
of claim" and "did not file suit within the
one-year statute of limitations." The court further
explained that §§ 12-821 and 12-821.01 were
procedural and not "some sort of implementation of
sovereign immunity, " as Swenson had urged.
Consequently, the court also denied as moot Swenson's
motion for leave to amend the complaint. This appeal
followed. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21 (A)(1) and 12-2101(A)(1).
Swenson argues the trial court erred by granting the motion
to dismiss because a public entity, like Pinal County,
"waives its sovereign immunity rights, " including
the notice-of-claim requirement and statute of limitations in
§§ 12-821 and 12-821.01, "when it secures
liability [insurance] and contractual indemnity to protect
public funds." We review de novo the dismissal of a
complaint under Rule 12(b)(6). Coleman v. City of
Mesa, 230 Ariz. 352, ¶ 7, 284 P.3d 863, 866 (2012).
Dismissal under that rule is appropriate "only if
'as a matter of law . . . plaintiffs would not be
entitled to relief under any interpretation of the facts
susceptible of proof.'" Id. ¶ 8,
quoting Fid. Sec. Life Ins. Co. v. Ariz. Dep't of
Ins., 191 Ariz. 222, ¶ 4, 954 P.2d 580, 582 (1998).
"The doctrine of sovereign immunity precludes bringing
suit against the government without its consent."
Clouse v. State, 199 Ariz. 196, ¶ 8, 16 P.3d
757, 759 (2001); see also City of Phoenix v.
Fields, 219 Ariz. 568, ¶¶ 7-8, 201 P.3d 529,
532 (2009). After our supreme court abolished the common-law
defense of sovereign immunity in 1963, our legislature
codified the doctrine in 1984 by adopting the Actions Against
Public Entities or Public Employees Act, A.R.S. §§
12-820 to 12-826. Clouse, 199 Ariz. 196,
¶¶ 8-9, 13, 18, 16 P.3d at 759-60, 762. "The
legislation provides for absolute immunity, qualified
immunity, and affirmative defenses in favor of public
entities and public employees." Id. ¶ 13,
quoting James L. Conlogue, Note, A Separation of
Powers Analysis of the Absolute Immunity of Public
Entities, 28 Ariz. L. Rev. 49, 49 (1986); see
§§ 12-820.01 to 12-820.05.
In addition, § 12-821.01(A) requires a claimant who
wishes to bring an action against a public entity or employee
to file a notice of claim with the entity or employee
"within one hundred eighty days after the cause of
action accrues." Section 12-821 further provides:
"All actions against any public entity or public
employee shall be brought within one year after the cause of
action accrues and not afterward." Strict compliance
with §§ 12-821 and 12-821.01 (A) is generally
required. Martineau v. Maricopa County, 207 Ariz.
332, ¶¶ 15, 17, 86 P.3d 912, 915 (App. 2004);
see also Democratic Party of Pima Cty. v. Ford, 228
Ariz. 545, ¶ 9, 269 P.3d 721, 724 (App. 2012)
("shall" denotes mandatory provision). Those
statutes, however, are procedural in nature and therefore
"subject to waiver." Pritchard v. State,163 Ariz. ...