DESELA v. PRESCOTT UNIFIED SCHOOL DISTRICT NO. 1 et al

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SUPREME COURT OF ARIZONA En Banc ESTATE OF MADDISON ALEXIS DESELA, ) a protected person, ) ) Plaintiff/Appellant, ) ) v. ) ) PRESCOTT UNIFIED SCHOOL DISTRICT ) NO. 1, a public entity of the ) State of Arizona; LOUISA NELSON, ) an employee of Prescott Unified ) School District; TRACEY MASON ) JOHNSTON, an employee of ) Prescott Unified School District, ) ) Defendants/Appellees. ) __________________________________) Arizona Supreme Court No. CV-10-0172-PR Court of Appeals Division One No. 1 CA-CV 09-0244 Yavapai County Superior Court No. CV 20071495 O P I N I O N 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. By Christopher W. Jensen Sean Phelan Prescott And KNAPP & ROBERTS, P.C. By David L. Abney Attorneys for Estate of Maddison Alexis Desela HOLM WRIGHT HYDE & HAYS PLC By Matthew W. Wright David K. Pauole Attorneys for Prescott Unified School District No. 1, Scottsdale Phoenix Louisa Nelson, and Tracey Mason Johnston JONES, SKELTON & HOCHULI P.L.C. By Eileen Dennis GilBride Attorneys for Amici Curiae Arizona Counties Insurance Pool and City of Phoenix 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 expenses for injuries whether to a an child action is to recover time-barred. medical Revising Arizona s common law rule, we hold that both the minor and the minor s parents expenses, but are double entitled to recovery recover is not pre-majority permitted. medical 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. minor s action to recover medical expenses was Because the 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 2 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 prelitigation notices within 180 days after the claim accrues, but minors may eighteen. file such notices within See A.R.S. § 12-821.01(D). 180 days after turning 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. 821. A.R.S. § 12- A minor, however, may bring such an action that accrues during childhood within one year after turning eighteen. A.R.S. § 12-502 (2010) (providing that minor or See person of unsound mind shall have the same time after removal of the disability which is allowed to others to file suit). ¶4 six Maddison turned eighteen on December 29, 2006. weeks later, a court-appointed conservator notice of claim on Maddison s behalf. Maddison s Estate filed this filed About another On December 31, 2007, negligence action against the Prescott Unified School District and several school employees (collectively PUSD ). of Maddison s This filing was within a judicial year eighteenth birthday 3 because December 29, 2007, fell on a Saturday. and emotional The complaint sought damages for physical pain, disability, enjoyment, and medical expenses. lost earnings, loss of 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. 204 n.4, ¶ 8, 228 P.3d at 940 n.4. Id. at 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 the reasoned that the assignment triggered 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 4 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). not dispute the validity of the assignment. The PUSD did 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 5 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, involving injury decided to a in child, 1943, the stated proper that party to in cases 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 6 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. ¶10 See id. 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 eroded by the development of Arizona s common law. have been 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 7 consortium recovery, with the characterizing minor s adult only an injuries child). rationale action as to Nor does identified recover belonging avoiding in Pearson, justify medical solely double expenses to parents. the for a 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 retaining Pearson s common law rule. other reasons justify 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 defendants, claim for particularly medical public expenses; entities, and to (3) assess allows their potential liability and make budgeting decisions nearer in time to the underlying injury. ¶13 The disadvantages arguments for its retention. of the Pearson rule outweigh the Cf. Villareal, 160 Ariz. at 4788 79, 774 P.2d at 217-18 (weighing arguments for and against recognizing child s cause of action for loss of consortium). The benefits tenuous. that Injured PUSD attributes children are to the entitled, Pearson rule independent of are 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 9 parent s claim for pre-majority medical expenses, this result is in tension with the legislative policy expressed in A.R.S. § 12502 (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. conclusion. Several other state courts have reached a similar 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 Estate s holding, the action superior seeking court recovery of erred in dismissing the 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 10 right, independent of any assignment, we need not address the application of A.R.S. § 12-502 to other actions that are as they assigned to a minor. III. ¶17 Pearson and Gerrard conflict with this opinion. are overruled insofar 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) 11

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