ARIZONA COURT OF APPEALS

Morris v. Giovan, CV 09-0740, November 12, 2010.

Plaintiff sued the U.S. and a doctor working at an Indian hospital but who was not a federal employee. Federal case dismissed on jurisdictional grounds, and plaintiff sued the doctor in state court. Held: 28 U.S.C. § 1367(d) does not toll the statute of limitations for supplemental state law claims if the action is dismissed from federal court for lack of a federal question. Summary judgment was granted, denial of Rule 60(c) relief affirmed.

Bither v. Country Mutual, CV 10-0115, November 30, 2010.

A wrongful death statutory beneficiary may not recover uninsured motorist ("UM") benefits under an insurance policy where the beneficiary is not herself an insured. ARS § 20-259.03. Plaintiff's daughter was a passenger in a friend's car and was killed in a crash caused by a UM motorist. Although the daughter was an insured under the car's UM policy, plaintiff conceded that she (mom) was not. [The policy definition of who was an insured was not contained in the policy. Practitioners should note that many if not most Arizona car policies would include the passenger's survivor as an insured. Typical language:

1. The first person named in the declarations

2. His or her spouse

3. Their relatives

4. Any other person while occupying (your car)

5. Any other person entitled to recover damages because of bodily injury to an insured under 1 through 4. Ed.]

Thompson v. Pima County, 2 CA-CV 2010-0087, 11/16/2010.

Summary judgment affirmed for untimely Notice of Claim. The 180 days can begin to run before a potential claimant has "facts sufficient" to support a valid NOC per ARS § 12-821.01. The cause of action "accrues" "when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage." § 12-821.01(B). If the notice of claim is not filed within 180 days after accrual, the claim is barred. § 12-821.01(A). In this case plaintiff knew within a day of her car crash that potholes in the roadway might have contributed to her losing control of the car, and the County repaired the potholes the day after the crash. Held: knowledge of the potholes caused the claim to "accrue," although evidence that the potholes indeed contributed to causing the crash were not obtained until later. (The court noted that the expert report was obtained before the 180 days expired - although the outcome probably would not have been different if it came later.)