Estate of Maddison Desela v. Prescott Unified

SUPREME COURT OF ARIZONA
En Banc

ESTATE OF MADDISON ALEXIS DESELA, ) Arizona Supreme Court
a protected person, ) No. CV-10-0172-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 09-0244
)
PRESCOTT UNIFIED SCHOOL DISTRICT ) Yavapai County
NO. 1, a public entity of the ) Superior Court
State of Arizona; LOUISA NELSON, ) No. CV 20071495
an employee of Prescott Unified )
School District; TRACEY MASON )
JOHNSTON, an employee of )
Prescott Unified School District, ) O P I N I O N
)
Defendants/Appellees. )
__________________________________)

Appeal from the Superior Court in Yavapai County
The Honorable Michael R. Bluff, Judge

REVERSED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
224 Ariz. 202, 228 P.3d 938 (2010)

VACATED
________________________________________________________________

JENSEN LAW FIRM, P.C. Prescott
By Christopher W. Jensen
Sean Phelan

And

KNAPP & ROBERTS, P.C. Scottsdale
By David L. Abney
Attorneys for Estate of Maddison Alexis Desela

HOLM WRIGHT HYDE & HAYS PLC Phoenix
By Matthew W. Wright
David K. Pauole
Attorneys for Prescott Unified School District No. 1,
Louisa Nelson, and Tracey Mason Johnston
JONES, SKELTON & HOCHULI P.L.C. Phoenix
By Eileen Dennis GilBride
Attorneys for Amici Curiae Arizona Counties Insurance
Pool and City of Phoenix

HUMPHREY & PETERSEN, P.C. Tucson
By Andrew J. Petersen
Attorneys for Amicus Curiae Arizona Association of
Defense Counsel
________________________________________________________________

B A L E S, Justice

¶1 The issue is whether an action to recover medical

expenses for injuries to a child is time-barred. Revising

Arizona’s common law rule, we hold that both the minor and the

minor’s parents are entitled to recover pre-majority medical

expenses, but double recovery is not permitted. Pearson &

Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 137

P.2d 381 (1943), and S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29

P.2d 151 (1934), are overruled insofar as they hold that the

right to recover belongs solely to the parents. Because the

minor’s action to recover medical expenses was timely under

Arizona Revised Statutes (“A.R.S.”) sections 12-502 and 12-821

(2010), we reverse the superior court’s judgment dismissing that

action.

I.

¶2 On November 10, 2004, Maddison DeSela, then fifteen

years old, sustained a life-threatening injury at Prescott High

School. On January 31, 2005, Maddison’s mother assigned to
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Maddison all claims for medical expenses incurred from the

accident.

¶3 On March 22, 2005, Maddison filed a notice of claim

with the Prescott Unified School District pursuant to A.R.S. §

12-821.01(A) (2010). This statute generally requires persons

having claims against public entities or employees to file pre-

litigation notices within 180 days after the claim accrues, but

minors may file such notices within 180 days after turning

eighteen. See A.R.S. § 12-821.01(D). Another statute sets a

deadline for filing a lawsuit: “All actions against any public

entity or public employee shall be brought within one year after

the cause of action accrues and not afterward.” A.R.S. § 12-

821. A minor, however, may bring such an action that accrues

during childhood within one year after turning eighteen. See

A.R.S. § 12-502 (2010) (providing that minor or person of

unsound mind “shall have the same time after removal of the

disability which is allowed to others” to file suit).

¶4 Maddison turned eighteen on December 29, 2006. About

six weeks later, a court-appointed conservator filed another

notice of claim on Maddison’s behalf. On December 31, 2007,

Maddison’s Estate filed this negligence action against the

Prescott Unified School District and several school employees

(collectively “PUSD”). This filing was within a judicial year

of Maddison’s eighteenth birthday because December 29, 2007,
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fell on a Saturday. The complaint sought damages for physical

and emotional pain, disability, lost earnings, loss of

enjoyment, and medical expenses. PUSD moved to dismiss the

action for medical expenses, arguing that the cause of action

originally belonged to Maddison’s mother and was not brought

within one year of its accrual, as required by A.R.S. § 12-821.

The superior court granted the motion to dismiss and entered

judgment under Arizona Rule of Civil Procedure 54(b).

¶5 The court of appeals reversed. Estate of DeSela v.

Prescott Unified Sch. Dist., 224 Ariz. 202, 228 P.3d 938 (App.

2010). Citing Pearson, the court noted that Arizona law has

long held that a parent is the proper party to bring an action

for medical expenses resulting from injuries to a child. Id. at

204 n.4, ¶ 8, 228 P.3d at 940 n.4. But Pearson also recognized

that a parent can assign the right of recovery to the child.

Pearson, 60 Ariz. at 364-65, 137 P.2d at 385. Here, Maddison

was expressly assigned the claim for medical expenses on January

31, 2005, or eighty-two days after the accident. The court of

appeals reasoned that the assignment triggered the tolling

provision of A.R.S. § 12-502, and this statute allowed Maddison

to bring the action for medical expenses within one year of her

eighteenth birthday. Estate of DeSela, 224 Ariz. at 205 ¶ 13,

228 P.2d at 941.

¶6 PUSD petitioned for review, arguing that the court of
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appeals erred by applying § 12-502 to toll the limitations

period for an assigned cause of action or, alternatively, by not

subtracting eighty-two days from Maddison’s one-year limitations

period to reflect the time between the accrual of the action and

its assignment. We granted review because determining the

limitations period for recovery of medical expenses resulting

from injuries to minors is an issue of statewide importance. We

have jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24.

II.

¶7 The court of appeals assumed, consistent with Pearson,

that a parent is entitled to recover medical expenses for injury

to the child, but the parent may assign the claim to the child.

Estate of DeSela, 224 Ariz. at 204 ¶ 8, 228 P.3d at 940; cf.

Webb v. Gittlen, 217 Ariz. 363, 366 ¶ 13, 174 P.3d 275, 278

(2008) (discussing assignment of causes of action). PUSD did

not dispute the validity of the assignment. The parties

understandably focused their arguments below on whether A.R.S. §

12-502 affects the running of the limitations period that would

have applied, absent the assignment, to an action by Maddison’s

mother.

¶8 Before this Court, Maddison’s Estate argued for the

first time that Pearson should be reconsidered and that the

right to recover medical expenses should belong to both the
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parent and child, provided that no double recovery may occur.

Arguments raised initially in a supplemental brief are generally

deemed waived. See Grand v. Nacchio, 225 Ariz. 171, 177 ¶ 33,

236 P.3d 398, 404 (2010). This rule, however, is a prudential

one, and “we have made exceptions to consider questions that are

of great public importance or likely to recur.” In re Leon G.,

200 Ariz. 298, 301 ¶ 8, 26 P.3d 481, 484 (2001), vacated on

other grounds, Glick v. Arizona, 535 U.S. 982 (2002). Moreover,

the court of appeals was bound by Pearson and therefore unable

to address its continued viability. Under the circumstances, we

exercise our discretion to consider the merits of the Estate’s

arguments.

¶9 Pearson, decided in 1943, stated that in cases

involving injury to a child, “the proper party to bring an

action for . . . the expenses of medical care and treatment [is]

the parent and not the [injured] child.” 60 Ariz. at 364, 137

P.2d at 385 (discussing Gerrard, 43 Ariz. at 66-67, 29 P.2d at

155). Explaining that this rule “is one intended to protect a

defendant against having to pay such expenses a second time,”

the Court refused to apply it to bar a child’s recovery of

medical expenses when a parent had sued on the child’s behalf as

guardian ad litem. Id. The Court held that, in these

circumstances, the parent was deemed as a matter of law to have

assigned the action to the child, thereby allowing recovery in
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the child’s name. Id. at 364-65, 137 P.2d at 385. The Court

further noted that recovery of medical expenses by the child

would preclude duplicate recovery by the parent. See id.

¶10 We agree that Pearson should be reconsidered insofar

as it holds that, absent an assignment, the right to recover

pre-majority medical expenses belongs to the parent and not the

child. Pearson relied on Gerrard, which held that “ordinarily

an infant suing for personal injuries cannot recover for the

impairment of his earning capacity during infancy, or for loss

of time, or for expenses in curing his injuries.” 43 Ariz. at

67, 29 P.2d at 155 (quoting 31 Corpus Juris 1114, § 252). This

rule reflected the notion that a minor’s services and earnings

“belonged to his parents,” and therefore the damages claim for

the child’s injuries also belonged to the parents. Id. at 66,

29 P.2d at 155.

¶11 The underpinnings of Pearson and Gerrard have been

eroded by the development of Arizona’s common law. Gerrard

treated the parent-child relationship in economic terms, much

like the relation between master and servant. In determining

tort liability for injuries to children, however, we have since

observed that “the common law master-servant analogy is clearly

antiquated and long overdue for judicial burial.” Howard Frank,

M.D., P.C. v. Superior Court, 150 Ariz. 228, 233, 722 P.2d 955,

960 (1986) (recognizing parents’ cause of action for loss of
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consortium with adult child). Nor does avoiding double

recovery, the only rationale identified in Pearson, justify

characterizing an action to recover medical expenses for a

minor’s injuries as belonging solely to the parents. That

concern can be addressed simply by denying double recovery for

the same expenses, as Pearson itself recognized. Cf. Villareal

v. Ariz. Dept. of Transp., 160 Ariz. 474, 479, 774 P.2d 213, 218

(1989) (recognizing child’s cause of action for loss of

consortium with parent and noting that double recovery can be

avoided by jury instructions and special verdicts).

¶12 We thus consider whether other reasons justify

retaining Pearson’s common law rule. PUSD argues that treating

a claim for medical expenses as “solely owned” by the parents

(1) provides a set time, measured by the limitations period

applicable to the parents, in which a claim for medical expenses

may be brought; (2) prompts the earlier filing of any separate

action by the child for damages other than medical payments

(such as pain, disfigurement, or disability) concurrently with

the parents’ claim for medical expenses; and (3) allows

defendants, particularly public entities, to assess their

potential liability and make budgeting decisions nearer in time

to the underlying injury.

¶13 The disadvantages of the Pearson rule outweigh the

arguments for its retention. Cf. Villareal, 160 Ariz. at 478-
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79, 774 P.2d at 217-18 (weighing arguments for and against

recognizing child’s cause of action for loss of consortium).

The benefits that PUSD attributes to the Pearson rule are

tenuous. Injured children are entitled, independent of any

assignment from their parents, to recover various damages, such

as long-term disability, pain and suffering, and post-majority

medical expenses. Thus, Pearson does not generally afford

defendants certainty as to the amount of their liability or the

timing of claims resulting from injuries to minors.

¶14 Although the Pearson rule may encourage the bringing

of claims for medical expenses within the parents’ limitation

period, it does so at the cost of promoting piecemeal

litigation, at least in the absence of an effective assignment.

Cf. State ex rel. Packard v. Perry, 655 S.E.2d 548, 560 (W. Va.

2007) (“It is, frankly, absurd that two separate actions for a

child's medical expenses (pre-and post-majority) now arise from

the same allegedly tortious conduct.”). It also poses a

potential trap for the unwary that can insulate defendants from

liability for the child’s medical expenses for reasons unrelated

to the defendant’s fault. Cf. Lopez v. Cole, 214 Ariz. 536,

539-40 ¶ 20, 155 P.3d 1060, 1063-64 (App. 2007) (barring minor’s

recovery of medical expenses when parents had not consented to

assignment). And insofar as the Pearson rule prompts minors to

file actions for other damages earlier and concurrently with a
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parent’s claim for pre-majority medical expenses, this result is

in tension with the legislative policy expressed in A.R.S. § 12-

502 (generally providing that the limitations period for actions

by minors does not begin to run until they turn eighteen), and

A.R.S. § 12-821.01(D) (allowing minors to file notices of claims

within 180 days after turning eighteen).

¶15 Because the common law should adapt when circumstances

make it no longer just or consistent with sound policy, see

Villareal, 160 Ariz. at 477, 774 P.2d at 216, we hold that the

right to recover pre-majority medical expenses belongs to both

the injured minor and the parents, but double recovery is not

permitted. Several other state courts have reached a similar

conclusion. See, e.g., White v. Moreno Valley Unified Sch.

Dist., 226 Cal. Rptr. 742, 745-46 (Ct. App. 1986); Scott Cnty.

Sch. Dist. 1 v. Asher, 324 N.E.2d 496, 499 (Ind. 1975); Boley v.

Knowles, 905 S.W.2d 86, 88-90 (Mo. 1995); Lopez v. Sw. Cmty.

Health Servs., 833 P.2d 1183, 1191-93 (N.M. Ct. App. 1992);

Perry, 655 S.E.2d at 560-61.

¶16 Under today’s holding, the superior court erred in

dismissing the Estate’s action seeking recovery of medical

expenses. Maddison, through her Estate, brought this action

within one judicial year after she turned eighteen, and the

action was thus timely under A.R.S. §§ 12-502 and 12-821.

Because Maddison was entitled to bring the claim in her own
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right, independent of any assignment, we need not address the

application of A.R.S. § 12-502 to other actions that are

assigned to a minor.

III.

¶17 Pearson and Gerrard are overruled insofar as they

conflict with this opinion. We vacate the opinion of the court

of appeals, reverse the superior court’s judgment, and remand

this case to the superior court for further proceedings.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Michael D. Ryan, Justice (Retired)

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