Johnson v. SUPERIOR COURT, PIMA COUNTY

763 P.2d 1382, 158 Ariz. 507, 20 Ariz. Adv. Rep. 31, 1988 Ariz. App. LEXIS 333

• Court: Court of Appeals of Arizona
• Decided: October 31, 1988
• Docket: 2 CA-SA 88-0121
• Status: Published

Opinions

OPINION

ROLL, Presiding Judge.

The sole issue in this special action is whether the mandatory notice of a claim required by A.R.S. § 12-821(A) must be presented to an individual public employee as a prerequisite to the maintenance of an action against that employee for injuries resulting from an act or omission allegedly committed in the scope of his employment. The issue presents a question of law which has resulted in inconsistent determinations in the superior court. The statutes involved in this case were recently enacted by the legislature, and the issue presented has not been addressed by the Arizona appellate courts. For these reasons, we assume jurisdiction. See City of Tucson v. Fleischman, 152 Ariz. 269, 731 P.2d 634 (App.1986).

FACTS

Petitioners are the City of Tucson and Tucson Police Department officers Eric Johnson and Jerry Sterner. Petitioners are defendants in a superior court action brought by the real party in interest, Owowanta Ogbonnaya Ahanonu, who filed an action for damages for false arrest, false imprisonment, malicious prosecution, negligence, assault and battery, and deprivation of civil rights by the officers, and predicated liability of the city for their actions on the doctrine of respondeat superi- or. The claims arose from Ahanonu’s arrest by Johnson and Sterner at a local grocery store on March 22,1986. Ahanonu alleges that the police officers had no reason to arrest him and used excessive force in accomplishing the arrest. There is no dispute that the officers were acting within the scope of their employment in this case.

Following the incident, Ahanonu presented a timely notice of claim to the city by service upon the city clerk. See A.R.S. § 12-821(A); Creasy v. Coxon, 156 Ariz. 145, 750 P.2d 903 (App.1987); Ariz.R.Civ.P. 4(d), 16 A.R.S. Ahanonu did not present notices of his claim to the individual officers. For that reason, petitioners moved in the trial court for dismissal of, or partial summary judgment on, Ahanonu’s action against the individual officers, because he had failed to comply with the notice requirements of A.R.S. § 12-821(A). The trial court denied the motion, concluding that § 12-821(A) does not require a plaintiff to give notice of his claim to a public employee so long as notice has been served upon the public entity employer as required by the statute. For the following reasons, we disagree with the trial court’s ruling.

CLAIMS STATUTES

In 1984, the legislature passed a comprehensive act entitled “Actions Against Public Entities or Public Employees,” which governs the immunity and liability of public entities and employees. 1984 Ariz.Sess. Laws, Ch. 285. The act presently is codified at A.R.S. §§ 12-820 to -826, and was enacted in the wake of our supreme court’s landmark decision in Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), which had overruled the last vestiges of governmental tort immunity and held that the state and its agents may be held liable for their acts and omissions as in the private sector. The 1984 act replaced a previous statute which governed claims against the state on contract or for negligence. The new law applies to the state as well as its political subdivisions, A.R.S. § 12-820(6), and has been found applicable to municipal corporations. City of Tucson v. Fleischman, 152 Ariz. 269, 272, 731 P.2d 634, 637 (App.1986).

Former A.R.S. § 12-821 provided:

Persons having claims on contract or for negligence against the state, which have been disallowed, may on the terms and conditions set forth in this article, bring action thereon against the state, and prosecute the action to final judgment.

The purposes of the statute were to provide notice to the state and an opportunity to investigate and assess its liability, to permit the possibility of settlement prior to litigation, and to assist in fiscal planning or budgeting. State v. Brooks, 23 Ariz.App. 463, 466, 534 P.2d 271, 274 (1975). The current notice statute, A.R.S. § 12-821(A), provides as follows:

Persons who have claims against a public entity or public employee shall file such claims in the same manner as that prescribed in the Arizona Rules of Civil Procedure, Rule 4(D) within twelve months after the cause of action accrues. Any claim which is not filed within twelve months after the cause of action accrues is barred and no action may be maintained except upon a showing of excusable neglect if the action is brought within the otherwise applicable period of limitations, provided that if there is no excusable neglect, and if the absence of excusable neglect is because of the conduct of the claimant’s attorney, then the action shall proceed, and the public entity and public employee shall have a right of indemnity against the claimant’s attorney for any liability assessed in the action. (Emphasis added.)

In addition to the objectives of notice, settlement and fiscal planning, which we find implicit in this statute as well, the legislature expressly declared Arizona public policy to be “that public entities are liable for acts and omissions of employees in accordance with the statutes and common law of this state.” 1984 Ariz.Sess. Laws, Ch. 285, § 1(A). However, recognizing that the government’s power to act for the public good is broad when compared with the activities of a private entrepreneur or enterprise and that “government should not have the duty to do everything that might be done,” id., the legislature provided for certain absolute and qualified immunities and affirmative defenses in favor of public entities and their employees.¹ See A.R.S. §§ 12-820.01 to -820.05.

Petitioners argue that § 12-821(A) requires individual notice of claims to public employees as a prerequisite to bringing suit against them, relying upon Creasy v. Coxon, 156 Ariz. 145, 750 P.2d 903 (App.1987). In Creasy, however, the issue of the plaintiff’s failure to give individual notice to the employee in that case was not presented and was not decided.

Nevertheless, we agree with petitioners that § 12-821(A) unambiguously provides that both public entities and their employees are entitled to notice of claims against them. In construing a statute, the law requires us to give it such effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant. State v. Rodriguez, 153 Ariz. 182, 186, 735 P.2d 792, 796 (1987); State v. Superior Court for Maricopa County, 113 Ariz. 248, 249, 550 P.2d 626, 627 (1976). To read § 12-821(A) as Ahanonu argues would render the words “public employee” meaningless. While it is true that the claims statutes are intended to protect a public entity, the legislature’s decision to include public employees in the language of the statute constituted a departure from the language of the prior state claims statute. When read together with the immunities contained in the 1984 act and the indemnification provision contained in § 12-821(A), the statute can only be construed to require that notice be given to the public employee, as well as the public entity, for claims arising from acts or omissions committed or allegedly committed by the employee within the scope of his or her employment prior to the maintenance of lawsuits against them.

Additional support for this conclusion is found in the legislative history of the 1984 act. The act is partially derived from a combination of proposed legislation drafted by a governor’s commission on govemmental tort liability and a bill proposed but not passed by the legislature the previous year which was modeled after New Jersey’s statutes. See Note, A Separation of Powers Analysis of the Absolute Immunity of Public Entities, 28 Ariz.L.Rev. 49, 50-51 (1986). In New Jersey, the law provides that “no action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.” N.J.S.A. 59: 8-3 (1972). The New Jersey courts have construed the plain language of their statute to mean that no notice of claim to a public employee is required prior to maintaining an action against the employee. See Lutz v. Semcer, 126 N.J. Super. 288, 314 A.2d 86, 92 (1974). Our legislature’s inclusion of the words “or public employee” in § 12-821(A) evidences an intent to avoid the interpretation which the New Jersey courts have applied. In drafting § 12-821(A) to require that notice of claims be given to both the public entity and the public employee individually, the legislature insured that Arizona and its political subdivisions, as well as its employees, will be afforded the opportunity to investigate, settle and fully defend any claim against them. Arizona is not the only state which has determined that employees of the state and its political subdivisions are entitled to notice of claims against them arising in the scope of their employment. See, e.g., Minn. Stat § 3.736(5) (1987) (“shall present to the attorney general of the state ... and any state employee from whom the claimant will seek compensation, ... a notice ... ”); Wis.Stat. § 893.80(l)(a) (1983 and Supp. 1987) (“written notice ... served on the ... governmental subdivision or agency and on the officer, official, agent or employee....”)

In view of our holding, we must next address the question of excusable neglect and attorney indemnification provided under § 12-821(A). As quoted above, the statute provides that if a claim is not timely filed, a preliminary showing of excusable neglect will allow the action to proceed, so long as it has been brought within the applicable statute of limitations. Section 12-821(A) further provides that if there is no excusable neglect and the absence of excusable neglect results from the conduct of the claimant’s attorney, the action nevertheless proceeds with the public entity and public employee having a right of indemnity against the attorney for any liability assessed against them in the lawsuit.

In this case, the parties agree that Ahanonu’s failure to file individual claims with the police officers resulted from the conduct of his attorney. Petitioners are not, however, entitled to a dismissal or to summary judgment on Ahanonu’s claim against the individual officers. Under § 12-821(A), the action against all of the petitioners may proceed and, if judgment is entered against the officers, they may seek indemnification from Ahanonu’s counsel.

As we have held, any action against a public entity or public employee must be preceded by notice of the claim to each entity and each employee named in the subsequent lawsuit. In the instant case, if a judgment is entered against the officers and the City of Tucson, the officers may seek indemnification from Ahanonu’s counsel, and it is for the court to determine whether counsel’s neglect was excusable.² City of Tucson v. Fleischman, 152 Ariz. at 272, 731 P.2d at 637. Should the court determine that counsel’s neglect was inexcusable, the officers’ right of indemnity extends only to those judgments they personally are required to pay. In other words, the entity, having received timely and proper notice under § 12-821(A), is not entitled to indemnification from the claimant’s attorney to the extent that it may be held vicariously liable for its employees’ conduct or may be required to indemnify its employees.³

The trial court’s denial of petitioners’ motion was correct, although based on erroneous reasoning. We therefore deny relief. The matter is remanded to the trial court for proceedings consistent with this opinion and with § 12-821(A).

LACAGNINA, C.J., concurs.

1 . A public employee is an officer, employee or servant of a public entity, "whether or not compensated or part-time, who is authorized to perform any act or service." A.R.S. § 12-820(1) and (5). The statutory definition specifically includes noncompensated, appointed advisory board members and excludes independent contractors. Thus, by definition, the "public employee” referred to in the 1984 act is a person who is authorized to act and the statutes are applicable only in situations where public employees have acted in the scope of employment.

2 . In view of the confusion and inconsistent rulings regarding individual notices of claims, the court may find that counsel’s neglect was excusable. However, that is not for us to decide.

3 . SeeA.R.S. § 41-621(G) providing indemnification for state employees exercising discretionary power.