Lopez v. Cole

155 P.3d 1060, 214 Ariz. 536, 501 Ariz. Adv. Rep. 8, 2007 Ariz. App. LEXIS 58
CourtCourt of Appeals of Arizona
DecidedApril 12, 2007
DocketNo. 1 CA-CV 06-0477
StatusPublished
Cited by5 cases

This text of 155 P.3d 1060 (Lopez v. Cole) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopez v. Cole, 155 P.3d 1060, 214 Ariz. 536, 501 Ariz. Adv. Rep. 8, 2007 Ariz. App. LEXIS 58 (Ark. Ct. App. 2007).

Opinion

OPINION

OROZCO, Judge.

¶ 1 Appellant, Laryn Christopher Lopez (Laryn), appeals the trial court’s grant of partial summary judgment to Appellees Harold and Maude Cole (the Coles).1 The basis of the trial court’s ruling was that as a minor, Laryn cannot sue to recover the cost of medical care he received for an injury allegedly caused by the Coles’ neghgence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 During 1992, the Coles’ children cut a two-foot-square hole in the fence between their property and that of their neighbors, Dennis and Raylene Medigovich (the Medi-goviehs), who owned a horse on the adjoining property. In 1993, Laryn and his mother, Melody Cole (Mother), were staying with the Coles, his paternal grandparents. On the day of the incident, Mother was outside with Laryn. Mother went inside briefly and when she returned, she could not immediately locate Laryn. She discovered that Laryn had climbed through the hole onto the Medigo-vichs’ property and had been kicked in the head by the Medigovichs’ horse.

¶ 3 In 2001, more than eight years after the incident, Laryn’s uncle and guardian ad litem, David Lopez, filed this action on Lar-yn’s behalf to recover for his injuries and for the medical expenses he incurred following the incident. The suit alleged that the Coles, the Medigovichs and Mother were negligent, and the Medigovichs’ horse was an attractive nuisance. Mother and the Medigovichs have settled their claims with Laryn.

¶ 4 Two years later, the trial court granted summary judgment to the Coles. This court reversed and remanded. On remand, the trial court granted partial summary judgment to the Coles and held that Laryn could not assert a claim for medical expenses. The case proceeded to trial on the remaining claims and the jury found for Laryn. They determined that his damages were $30,000, but found the Coles were only five percent (5%) responsible.2 Judgment was entered against the Coles in the amount of $1,500 plus $2,046 in costs, for a total award of $3,546.

¶5 Laryn timely appealed and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101.B (2003).

STANDARD OF REVIEW

¶ 6 On appeal from a grant of summary judgment, we independently determine whether any genuine issues of material fact exist and whether the trial court properly applied the law. Bentivegna v. Powers, 206 Ariz. 581, 584, 81 P.3d 1040, 1043 (App.2003). (Citation omitted.) We will uphold the trial court if its decision is supportable on any grounds. McLeod v. Newcomer, 163 Ariz. 6, 8, 785 P.2d 575, 577 (App.1989).

DISCUSSION

Consent

¶7 The issue on appeal is whether the claim for medical expenses in this ease belonged to Laryn’s parents and is therefore barred by the two-year statute of limitations,3 or whether Laryn can pursue the [538]*538claim, and, if so, whether the statute of limitations is tolled pursuant to A.R.S. § 12-502.4

¶ 8 Both parties agree the controlling case is Pearson & Dickerson Contractors Inc. v. Harrington, 60 Ariz. 354, 137 P.2d 381 (1943). In Pearson, our supreme court stated that the proper party to bring an action for damages for the medical expenses of an injured child is the child’s parent and not the child. Id. at 364, 137 P.2d at 385 (citing S.A. Gerrard Co. v. Couch, 43 Ariz. 57, 66-67, 29 P.2d 151, 155 (1934)); see also State v. Juengel, 15 Ariz.App. 495, 503, 489 P.2d 869, 877 (1971). However, Pearson held that a claim for medical expenses may be brought by a child if “the parents have consented to” recovery by the child. 60 Ariz. at 364, 137 P.2d at 385. The court explained that in such a case, by their consent, the parents release their claim to the child in such a way that “it amounts in law to ... an assignment.” Id. at 364-65, 137 P.2d at 385.

¶ 9 Laryn argues that his “parents consented or have given their implied consent for [him] to bring the claim for medical bills ... Therefore, Laryn [is] entitled to bring them as part of his damages for his personal injuries.” However, there is no evidence in the record the parents gave consent, implied or in fact, for Laryn to pursue the medical expenses, as required by Pearson. Id.

¶ 10 Laryn argues his parents consented by waiver because they did not timely bring the claim on their own behalf. The problem with this argument is that Pearson clearly requires parental consent, not waiver, before a child may sue for medical expenses. Id. at 364, 137 P.2d at 385. Furthermore, Laryn fails to cite any Arizona ease holding waiver may constitute the parental consent required in Pearson. Id. That is not surprising, given the difference between the two concepts. When a party waives a right, he or she relinquishes the right, and any potential claim based on the right is extinguished. By contrast, the parental consent discussed in Pearson did not extinguish the claim, but allowed it to survive in another’s hands. Id. at 364-65, 137 P.2d at 385 (parent’s consent amounts to an assignment of claim to child).5

¶ 11 In sum, Laryn urges us to craft a new rule recognizing that if parents “waive” their claim to medical expenses by not bringing it within the two-year statutory period, the claim passes to the child. We decline to do so and instead follow Pearson, which applies when there is evidence of a parent’s consent to assign the claim to the child. Here, because the parents did not consent, the consent exception in Pearson is not applicable.

Doctrine of Necessaries

¶ 12 Laryn also contends the doctrine of necessaries grants him the right to sue for his medical expenses. Some states have adopted the doctrine of necessaries to find an exception to the rule that a child may not bring a claim for medical expenses. See, e.g., Arrabal v. Crew-Taylor, 159 Md.App. 668, 862 A.2d 431 (Ct.Spec.App.2004). The doctrine applies when the child himself is personally liable for the expenses because his parents cannot afford to pay them, and holds that when the child is liable for those expenses, he may sue to recover them. As explained in Arrabal, the doctrine “protects an injured minor’s right to recover from a tortfeasor medical expenses that his or her parents are ill-able to afford and for which he or she ultimately may be liable.” 862 A.2d at 448.

¶ 13 Laryn argues that the medical expenses he sues to recover were paid by the Arizona Health Care Cost Containment System (AHCCCS). He contends that as a result, AHCCCS “is entitled to a lien for medical services” he received.

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Bluebook (online)
155 P.3d 1060, 214 Ariz. 536, 501 Ariz. Adv. Rep. 8, 2007 Ariz. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-cole-arizctapp-2007.