Beynon v. Trezza (CA2 4/13/09)

Here is another in the seemingly never-ending series of notice-of-claim cases, this one with various types of malpractice thrown in.

Beynon had a car accident with a State of Arizona vehicle. The State sent one of its adjusters to his home. The adjuster brought a Notice of Claim form and “assisted” Beynon in filling out a claim for $10,000 for vehicle repair and medical bills. (This notice was made out in the name of the owner of the car Beynon was driving; why the adjuster prepared Beynon’s personal-injury claim in the name of an uninjured owner isn’t explained in the opinion, apparently being left as an exercise for the cynical.) The adjuster presumably then took the form with him, though he opinion doesn’t say.

Beynon then went to his chiropractor. The chiropractor (whose Patient Information form revealed – if it was like any kind of chiropractor’s form we’ve ever seen – that there was a claim against the State) told Beynon that his treatment would be expensive. The chiropractor – helpful fellow – just happened to have a Notice of Claim form of his own, which Beynon filled out with the chiropractor’s “assistance.” (Shame on you for thinking UPL; he was just a friendly guy trying to “assist.”) The new notice – this time in Beynon’s name – said that the State car had made a U-turn in front of him and asked for $50,000. The chiropractor faxed this new notice to the State’s adjuster.

Ten months later, the adjuster having made promises but no payment, Beynon hired an attorney. The attorney let the statute of limitations run, then sent the client a letter cancelling the fee agreement because liability was debatable and the case wasn’t worth the lawyer’s time (we paraphrase only slightly).  Beynon hired a new lawyer to sue him.

The defense couldn’t deny that the statute had been missed but eventually thought to argue that the notice of claim was insufficient and therefore Beynon had no valid claim anyway. The trial court granted summary judgment; Division Two, despite having read Backus v. State, affirmed.

The holding here is that a notice of claim must state facts that explain or justify the injuries and damages, not just liability. What and how much it says about them is completely up to the claimant (that’s Backus) but since Beynon’s notice didn’t say anything at all about them it was no good.

The notice was also ineffective, said the court, because it was not served on the Attorney General as the statue requires. Given the circumstances, there is a great deal that Beynon’s new attorney could have said about this but he apparently didn’t.

He also didn’t argue until appeal that the old attorney should have settled the case before the statue ran. The court rejected it for that reason, though the opinion suggests that the attorney knew that there was a problem with the notice and that he could have settled the claim.

So, despite Backus, the notice-of-claim statute can be a “gotcha” anyway, at least when combined with two or three layers of mistakes.