Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swenson v. County of Pinal

Court of Appeals of Arizona, Second Division

August 22, 2017

Sean Swenson, a married man; and Brent Swenson, a single man, Plaintiffs/Appellants,
v.
County of Pinal, an Arizona municipal corporation and public entity, Defendant/Appellee.

         Appeal from the Superior Court in Pinal County No. S1100CV201502128 The Honorable Daniel A. Washburn, Judge

          Lewis 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

          Struck 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 [1] concurred.

          OPINION

          VÁSQUEZ, Presiding Judge.

         ¶1 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.

         Factual and Procedural Background

         ¶2 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.

         ¶3 On November 13, 2015, Sean and Brent - Keith's sons - brought this wrongful-death action against Pinal County, alleging negligence.[2] 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 funds."[3]

         ¶4 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.[4] We have jurisdiction pursuant to A.R.S. §§ 12-120.21 (A)(1) and 12-2101(A)(1).

         Motion to Dismiss

         ¶5 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).

         ¶6 "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.

         ¶7 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.