In this last blog post of our series on Notice of Claim, we discuss a recent decision by the Arizona Court of Appeals:Ponce v. Parker Fire District, No. 1 CA-CV 13-0038. This case involved a homeowner’s lawsuit against the Parker Fire District (“PFD”) for failure to fully extinguish a fire in his home and allowing it to “rekindle” (this term refers to a second fire caused by an ember from an earlier fire that reignites).
The initial fire occurred on August 16, 2009 The plaintiff homeowner filed a notice of claim against PFD on March 5, 2010, and sued PFD on August 12, 2010. In answering the complaint, PFD asserted as an affirmative defense that plaintiff had failed to file a timely notice of claim. In its motion for summary judgment filed on January 6, 2012, PFD argued that the notice of claim was filed 196 days after the second fire and was therefore untimely under the 180-day limit imposed by A.R.S § 12-821.01. The trial court agreed and granted PFD’s motion.
The plaintiff appealed, asserting that even if his notice of claim was untimely, PFD waived its notice of claim defense by participating in the litigation for more than a year before moving for summary judgment on the issue. He argued that PFD actively participated in disclosure, discovery, and ten depositions. The Court of Appeals stated that actively litigating issues unrelated to the notice of claim defense waives the defense. The Court held that PFD waived its notice of claim defense by failing to seek prompt judicial resolution of that defense. Additionally, a party asserting a notice of claim defense must seek prompt resolution of it. Thus, even if a notice of claim is late, it may be worth filing it and attempting to recover because there could be a variety of circumstances that overcome the timing problems.