Backus v. State

SUPREME COURT OF ARIZONA
En Banc

SHANNON BACKUS, a married woman, ) Arizona Supreme Court
) No. CV-08-0284-PR
Plaintiff/Appellant, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CV 07-0640
STATE OF ARIZONA, ) 1 CA-CV 07-0671
) (Consolidated)
Defendant/Appellee. )
__________________________________) Maricopa County
) Superior Court
ROSEMARY JOHNSON, on behalf of ) Nos. CV2006-015696
herself as biological mother of ) CV2007-001453
VICKIE JOHNSON, deceased, and on ) (Consolidated)
behalf of all statutory )
beneficiaries of VICKIE JOHNSON, )
deceased, )
) O P I N I O N
Plaintiff/Appellant, )
)
v. )
)
STATE OF ARIZONA, a political )
entity; ARIZONA DEPARTMENT OF )
CORRECTIONS, an agency of the )
State of Arizona, )
)
Defendants/Appellees. )
)
__________________________________)

Appeals from the Superior Court in Maricopa County
The Honorable Edward O. Burke, Judge
The Honorable Carey Snyder Hyatt, Judge

REVERSED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
534 Ariz. Adv. Rep. 26 (App. July 17, 2008)

VACATED
____________________________________________________________
CATES HANSON SARGEANT & RAKESTRAW PLC Phoenix
By Leslie L. Rakestraw
Attorneys for Shannon Backus

ROBBINS & CURTIN PLLC Phoenix
By Joel B. Robbins
Attorneys for Rosemary Johnson and Vickie Johnson,
deceased

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Daniel P. Schaack, Assistant Attorney
General
Richard P. Broder, Assistant Attorney
General Tucson
Attorneys for Arizona Department of Corrections and
State of Arizona

HARALSON MILLER PITT FELDMAN & MCANALLY PLC Tucson
By Stanley G. Feldman

And

HEBERT SCHENK PC Phoenix
By Richard M. Gerry

And

CHARLES M BREWER LTD Phoenix
By David L. Abney
Attorneys for Amicus Curiae Arizona Trial Lawyers
Association

Joined By

SCHARF-NORTON CENTER FOR CONSTITUTIONAL LITIGATION, Phoenix
GOLDWATER INSTITUTE
By Nicholas C. Dranias
Attorneys for Scharf-Norton Center for Constitutional
Litigation, Goldwater Institute

And Joined By

ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Phoenix
By Timothy M. Hogan
Attorneys for Arizona Center for Law in the Public
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Interest

JONES SKELTON & HOCHULI PLC Phoenix
By Eileen Dennis GilBride
Lori L. Voepel
Attorneys for Amici Curiae Apache County, Cochise
County, Gila County, Graham County, Greenlee County,
La Paz County, Mohave County, Navajo County, Pinal
County, Santa Cruz County, Yavapai County, Arizona
School Risk Retention Trust Inc, and City of Phoenix

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Thomas E. Dugal, Deputy County Attorney
Attorneys for Amicus Curiae Pima County
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 Before suing a public entity, a claimant must file a

notice of claim in compliance with Arizona Revised Statutes

(A.R.S.) section 12-821.01.A (2003). Section 12-821.01.A

requires that a notice of claim set forth “a specific amount for

which the claim can be settled and the facts supporting that

amount.” In this consolidated action, we address the standard

that applies to determine whether a claim adequately states the

“facts supporting” the amount claimed.

I.

¶2 On October 18, 2005, Gerald Dunford died while in the

custody of the Arizona Department of Corrections (ADOC). On

March 17, 2006, the attorney for Shannon Backus, Dunford’s

daughter, sent a notice of claim letter to the State asserting

that ADOC had been negligent in providing medical care to

Dunford. The letter stated:
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 As he was born on January 15, 1947, Gerald
Michael Dunford was only fifty-eight years old at the
time of his death. According to the mortality tables,
a person between the ages of 58 and 59 has a life
expectancy of 23.6 years. For the sole purpose of
putting a damage amount on the life of Gerald Dunford,
Mrs. Backus is claiming $21,500 per year for the loss
of her father. At 23.6 years, this is a total of
$507,400.

As a result of this unfortunate incident, Mrs.
Backus has authorized me to make a claim upon [ADOC]
in the amount of $500,000.

¶3 After Backus and the State failed to settle her claim,

Backus filed a civil complaint in October 2006, alleging that

the State’s negligence in providing medical treatment to Dunford

caused his death. The State moved to dismiss Backus’s amended

complaint for failure to comply with A.R.S. § 12-821.01, arguing

Backus had not provided facts supporting the specific amount for

which she was willing to settle her claim. The trial court

granted the motion.

¶4 Vickie Johnson, a 35-year-old mother of six children,

died on March 16, 2006, while serving a 2.5-year prison term. On

May 31, 2006, the attorney for Rosemary Johnson, Vickie’s

mother, filed a notice of claim with the State on behalf of

Rosemary and Vickie’s six children. The letter made the

following damages claim and settlement demand:

Had Ms. Johnson received the proper medical care
she needed, her death and needless suffering would
have been avoided. Ms. Johnson was scheduled to be
released from custody in just a few short months, and
leaves behind six (6) children[.]
4
 This Notice of Claim is for the wrongful death of
Vickie Johnson, caused by the negligence of the
Arizona Department of Corrections and its medical
providers. I have been given authority by the
statutory beneficiaries of Ms. Johnson to resolve this
matter in the amount of $2,000,000.00.

¶5 The State did not respond to the claim and, on January

25, 2007, Johnson, on behalf of herself and Vickie’s six

children, filed a complaint alleging negligence and wrongful

death. The State moved to dismiss that action on the basis that

the notice of claim failed to comply with § 12-821.01.A because

“it fail[ed] to contain facts supporting the specific amount for

which the claim [could] be settled with the State.” The trial

court granted the State’s motion to dismiss and entered judgment

against Johnson. Johnson appealed and the court of appeals

consolidated her appeal with that of Backus.

¶6 The court of appeals concluded that a claimant

satisfies § 12-821.01.A if the claimant provides “any facts to

support the proposed settlement amounts, regardless of how

meager.” Backus v. State, 534 Ariz. Adv. Rep. 26, 29 ¶ 28 (App.

July 17, 2008). Accordingly, the court held that the facts

contained in the Backus and Johnson letters satisfied § 12-

821.01.A. Id. at 29-30 ¶¶ 30-31.

¶7 The State petitioned for review, arguing that the

court of appeals’ holding misconstrued the supporting-facts

requirement of the claims statute. We granted review to
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consider this recurring issue of statewide importance. We

exercise jurisdiction under Article 6, Section 5, Clause 3 of

the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶8 These consolidated cases require us to construe the

language of § 12-821.01.A. When analyzing statutes, our primary

“goal is ‘to fulfill the intent of the legislature that wrote

[the statute].’” Zamora v. Reinstein, 185 Ariz. 272, 275, 915

P.2d 1227, 1230 (1996) (quoting State v. Williams, 175 Ariz. 98,

100, 854 P.2d 131, 133 (1993)).

¶9 The general intent of the statutes governing claims

against public entities is clear. When the legislature adopted

these statutes in 1984, it explicitly declared the purpose of

the legislation:

[I]t is hereby declared to be the public policy of
this state that public entities are liable for acts
and omissions of employees in accordance with the
statutes and common law of this state. All of the
provisions of this act should be construed with a view
to carry out the above legislative purpose.

1984 Ariz. Sess. Laws, ch. 285, § 1 (2d Reg. Sess.) (codified at

A.R.S. §§ 12-820 to -823). The act thus codified the holding of

Stone v. Arizona Highway Commission, that “the rule is

[governmental] liability and immunity is the exception.” 93

Ariz. 384, 392, 381 P.2d 107, 112 (1963), overruled in part by

Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d

6
1227 (1977). The claims statutes thus advance the overarching

policy of holding a public entity responsible for its conduct.

¶10 We also construe statutes to give effect to an entire

statutory scheme. Grant v. Bd. of Regents, 133 Ariz. 527, 529,

652 P.2d 1374, 1376 (1982). The notice of claim statute, § 12-

821.01, operates within the general framework of the act

defining the scope of claims against public entities. The

statute permits an action against a public entity to proceed

only if a claimant files a notice of claim that includes (1)

facts sufficient to permit the public entity to understand the

basis upon which liability is claimed, (2) a specific amount for

which the claim can be settled, and (3) the facts supporting the

amount claimed. A.R.S. § 12-821.01.A.1 These statutory

requirements serve several important functions: “They ‘allow

1
The statute provides:

Persons who have claims against a public entity or a
public employee shall file claims with the person or
persons authorized to accept service for the public
entity or public employee as set forth in the Arizona
rules of civil procedure within one hundred eighty
days after the cause of action accrues. The claim
shall contain facts sufficient to permit the public
entity or public employee to understand the basis upon
which liability is claimed. The claim shall also
contain a specific amount for which the claim can be
settled and the facts supporting that amount. Any
claim which is not filed within one hundred eighty
days after the cause of action accrues is barred and
no action may be maintained thereon.

A.R.S. § 12-821.01.A.
7
the public entity to investigate and assess liability, . . .

permit the possibility of settlement prior to litigation, and .

. . assist the public entity in financial planning and

budgeting.’” Deer Valley Unified Sch. Dist. No. 97 v. Houser,

214 Ariz. 293, 295 ¶ 6, 152 P.3d 490, 492 (2007) (quoting Falcon

ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527 ¶ 9, 144

P.3d 1254, 1256 (2006)). Our interpretation of the statute at

issue, then, must be consistent with both the general intent of

the claims statutes and the intent of the specific statute

involved.

¶11 “When analyzing statutes, we apply ‘fundamental

principles of statutory construction, the cornerstone of which

is the rule that the best and most reliable index of a statute’s

meaning is its language and, when the language is clear and

unequivocal, it is determinative of the statute’s

construction.’” Id. at 296 ¶ 8, 152 P.3d at 493 (quoting Janson

ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d

1222, 1223 (1991)). When statutory language admits of only one

interpretation, we go no further.

¶12 In Deer Valley, we considered whether a notice of

claim that contained qualifying language as to the amount of the

claim satisfied § 12-821.01.A’s “specific amount” requirement.

Id. at 295-96 ¶ 7, 152 P.3d at 492-93. We held that the “clear

and unequivocal” text of § 12-821.01.A “requires that claimants
8
identify the specific amount for which they will settle and

provide facts supporting that amount.” Id. at 296 ¶ 9, 152 P.3d

at 493. In that case, however, the “repeated use of qualifying

language [made] it impossible to ascertain the precise amount

for which the [public entity] could have settled [the

plaintiff’s] claim.” Id. at 296 ¶ 10, 152 P.3d at 493. We held

that a claim without a specific settlement amount does not

satisfy the statute, id. at 297 ¶ 11, 152 P.3d at 494, but did

not explicitly address the supporting-facts requirement.

¶13 In the present cases, the parties disagree as to the

meaning of the supporting-facts requirement. The State argues

that a claimant satisfies that requirement only if the claimant

discloses facts that, viewed objectively, are sufficient to

allow the public entity to understand how the claimant reached

the specific amount demanded and to reasonably evaluate the

claim.

¶14 Backus and Johnson, in contrast, argue that a notice

of claim that includes any facts that support a demanded amount

meets the supporting-facts requirement. They argue that

particularly when, as here, an action is for wrongful death, the

facts must be viewed subjectively because wrongful death damages

are among the most subjective in the realm of personal injury.

See Caldarera v. E. Airlines, 705 F.2d 778, 784 (5th Cir. 1983)

(noting that a lawsuit for wrongful death is inherently
9
subjective because its purpose is to assign a monetary value to

something priceless: human life).

¶15 Several panels of the court of appeals have considered

the standard to apply to test compliance with the supporting-

facts requirement and, although the panels adopted similar

reasoning, the standards developed vary somewhat. In Vasquez v.

State, for instance, Division Two held that including “any facts

to support the proposed settlement amounts, regardless of how

meager” meets the statutory requirement. 2 CA-CV 07-0148, slip

op. at ¶ 15 (Ariz. App. Sept. 29, 2008) (quoting Backus, 534

Ariz. Adv. Rep. at 29 ¶ 28). In Yollin v. City of Glendale, a

panel from Division One held that the language and purpose of

the statute “support the inference that the supporting facts

requirement demands a recitation of how past events harmed the

claimant and led to his offer.” 219 Ariz. 24, __ ¶ 27, 191 P.3d

1040, 1048 (App. 2008). According to the court in Yollin, the

recitation need not include “trial level proof of damages,” nor

must it include disclosure of every possible fact supporting the

offer or how to calculate the pain and suffering. Id. at ¶ 27,

191 P.3d at 1048-49. Finally, in Jones v. Cochise County,

another Division Two panel applied no specific test to determine

whether the claimant met the supporting-facts requirement, but

instead, after engaging in a factual inquiry, held that the

notice contained sufficient detail. 218 Ariz. 372, 378 ¶ 20,
10
187 P.3d 97, 103 (App. 2008).

¶16 We conclude, as did the court of appeals, that the

statutory language imposing the supporting-facts requirement is

not clear and unequivocal. Because the statute is susceptible

to more than one reasonable interpretation, as reflected by the

various interpretations urged by the State and by these

claimants, as well as the interpretations adopted by various

panels of the court of appeals, we must consider other factors

to reach the interpretation that best furthers the intent of the

legislature.

III.

¶17 Although Deer Valley did not directly address the

supporting-facts requirement, it does provide some direction.

There, we explained that the supporting-facts provision

“requires that claimants explain the amounts identified in the

claim by providing the government entity with a factual

foundation to permit the entity to evaluate the amount claimed.”

Deer Valley, 214 Ariz. at 296 ¶ 9, 152 P.3d at 493. In other

words, a claimant must explain not only the facts forming the

basis of alleged liability, but also the specific amount

requested and the facts supporting that amount. Armed with that

information, the public entity can decide whether and how to

investigate the claim, at what level of damages to attempt to

resolve the claim, and how to take the claim into account in
11
planning and budgeting activities.

¶18 That explanation, however, does not resolve the effect

of a disagreement between a claimant and a public entity, as

occurred here, as to whether the factual foundation the claimant

provides meets the supporting-facts requirement. The State

argues that the risk of not providing sufficient information

should fall on the claimant. As a result, if a claimant files a

civil action and the public entity asserts that the factual

foundation was insufficient to support the amount claimed, the

trial judge should determine whether the claimant met an

“objective” standard. If the claimant did not meet the

standard, the judge should dismiss the civil action as time-

barred. See id. at 299 ¶ 23, 152 P.3d at 496 (dismissing suit

after determining claim did not comply with the statutory

requirements and was subsequently time-barred). In response,

Backus and Johnson argue that submitting to a judge any

disagreement as to the sufficiency of the facts will encourage

satellite litigation and deprive claimants of valid claims

against the government.

¶19 We agree that allowing a public entity to challenge

the adequacy of a notice of claim in the trial court if the

public entity regards the supporting facts submitted as

insufficient can produce two negative results, neither of which

furthers legislative intent.
12
¶20 The combination of the relatively short time within

which a claimant must file a notice of claim and bring a civil

action,2 coupled with a claimant’s lack of knowledge about what

facts a public entity will regard as sufficient in a particular

case, results in the distinct possibility that a claimant will

lose the right to bring an action against a public entity, even

when his claim is justified. By the time a trial judge could

decide whether a particular claim satisfied the supporting-facts

requirement, the time to file a claim letter will have expired.

Under the circumstances, the trial judge would have no option

but to dismiss the civil action if the judge found the factual

statement insufficient. See id. Because the legislature

intended that liability of public entities be the rule and

immunity the exception, it could not have intended to erect this

significant and unpredictable obstacle to claimants’ actions

against public entities.

¶21 The second negative impact of the State’s approach is

that, even in those cases in which a trial judge finds the

notice of claim met the supporting-facts requirement, all

parties may have been exposed to considerable expense and delay

2
A claimant has one year after a cause of action accrues to
file a lawsuit against a public entity, A.R.S. § 12-821, but
only one hundred eighty days after the cause of action accrues
to file a notice of claim with the public entity. A.R.S. § 12-
821.01.A.
13
in resolving the satellite litigation. These cases, and others

like them,3 aptly demonstrate just how common and lengthy such

satellite litigation is likely to be. Encouraging additional

litigation frustrates one of the goals of § 12-821.01, which is

to encourage public entities and claimants to resolve claims

without resorting to litigation.

¶22 The State’s approach also is not consistent with the

statutory language. As the court of appeals noted in Havasupai

Tribe v. Arizona Board of Regents, although the statutory

language requires a claimant to describe facts “sufficient to

permit” the public entity to evaluate liability, it does not

require a claimant to set out facts “sufficient” to support the

amount claimed. 544 Ariz. Adv. Rep. 10, 15 ¶ 40 (App. Nov. 28,

2008). If the legislature had intended to require that a notice

contain facts “sufficient” to support the amount claimed, it

would have said so.

¶23 The approach that best furthers legislative intent is

to allow a claimant to decide what facts support the amount

claimed and to disclose those facts as part of the notice of

claim. As the State points out, only the claimant knows which

facts he regards as supporting the amount claimed. Accordingly,

the statutory requirement that the claim include the facts

3
See, e.g., decisions cited in ¶ 15, supra.
14
supporting the amount claimed must refer to the view of the

claimant, rather than to that of the public entity. We hold,

therefore, that a claimant complies with the supporting-facts

requirement of § 12-821.01.A by providing the factual foundation

that the claimant regards as adequate to permit the public

entity to evaluate the specific amount claimed. This standard

does not require a claimant to provide an exhaustive list of

facts; as long as a claimant provides facts to support the

amount claimed, he has complied with the supporting-facts

requirement of the statute, and courts should not scrutinize the

claimant’s description of facts to determine the “sufficiency”

of the factual disclosure.

¶24 This standard avoids both of the negative results

described above. The public entity and claimant avoid

unnecessary and potentially expensive satellite litigation. In

addition, because the facts must be those that the claimant

views as supporting the amount claimed, the claimant does not

face the risk of having a valid claim dismissed for failure to

meet a public entity’s view of which facts the claimant should

have disclosed.

¶25 The statutory interpretation we adopt may raise

concerns that a claimant, deliberately or carelessly, will fail

to provide facts in his possession that would assist the public

entity in evaluating the claim. Several factors should
15
substantially reduce the likelihood that this problem will

occur.

¶26 First, as the State pointed out in its brief, such a

course of action would be unexpected. Unrepresented claimants,

the State predicted, would supply facts “in abundance because

they would want to settle [their claim].” And, as the State

also noted, claimants’ lawyers “know they must provide their

adversaries the information necessary to properly evaluate their

claims if they wish to induce settlement.” We agree; a claimant

has no valid reason to withhold facts. We believe that the

benefits of disclosing the facts that support a claim will be

apparent to claimants.

¶27 Second, the professional obligations of claimants’

lawyers will deter them from submitting incomplete or inaccurate

information in claim letters. Any deliberate attempt to

misrepresent facts supporting a claimed amount could violate a

lawyer’s obligation of truthfulness under the Arizona Rules of

Professional Conduct. Ariz. R. Sup. Ct. 42, ER 4.1. A lawyer’s

obligation to represent a claimant competently, see id. ER 1.1,

will encourage the inclusion of sufficient information in claim

letters to allow the public entity to evaluate and possibly

settle the claim. We also expect claimants’ lawyers to act

honorably. Id. Preamble at [1]. A decision by a claimant or an

attorney to misrepresent the facts supporting the amount claimed
16
may result in the information submitted to the public entity

being admissible at trial to impeach the testimony of the

claimant. As we stated in Hernandez v. State,

[e]xcluding evidence offered solely to impeach a
party’s credibility does not encourage complete candor.
To the contrary, that approach fails to hold parties
accountable for setting forth one version of the facts
to obtain a settlement and describing another version
at trial. Claimants should present their claims
truthfully. Lawyers should not lie on behalf of
clients in presenting a claim.

203 Ariz. 196, 199-200 ¶ 14, 52 P.3d 765, 768-69 (2002)

(emphasis added).

¶28 Finally, as the court of appeals pointed out in

Vasquez, a public entity can request more facts if needed to

evaluate a claim. 2 CA-CV 07-0148, slip op. at ¶ 18. While

such action is not required from a public entity, certainly

nothing prevents it from taking steps to obtain additional

information.

IV.

¶29 Both Backus and Johnson provided those facts they

regarded as supporting the specific amounts they claimed.

Accordingly, both notice of claim letters comply with A.R.S. §

12-821.01.A.

V.

¶30 For the foregoing reasons, we vacate the opinion of

the court of appeals. We vacate the judgments of the superior

17
courts in these two cases and remand for proceedings consistent

with this opinion.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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