*1 P.3d the HAVASUPAI TRIBE OF HAVASUPAI recognized
RESERVATION, federally tribe, Plaintiff/Appellant, Indian
v. BOARD OF REGENTS ARIZONA Markow, Ann and Therese Defendants/Appellees. Havatone, Fydel Tilousi, Ruth Carletta Jones, Manakaja, Jones, Lenora Orlando Manakaja, Manakaja, Sheila Rosemarie Putesoy, Putesoy, Caroline Aral Kaska Putesoy, Putesoy, Ingrid Mark Desiree Putesoy, Sherry Putesoy, Ann Dee Carol Siyuja, Siyuja,
Rogers, Gloria Kathleen Tilousi, Tilousi, Rosella Rex Nettie Ti lousi, Uqualla, Uqualla, Muriel Rena Watahomigie, Watahomi
Claudia Leota Watahomigie, gie, Patricia Wata Violet Wescogame, homigie, Arlene Carrie Goldbaum, Eljean Hanna, Hanna, Grace Tilousi, Putesoy, Edmond Di Matthew Uqualla, Wright, anna Flora Natalie Daisy Jones, Wright, Haven J.H. Mana Jeffrey Manakaja, kaja, Roland Mana kaja, Putesoy, Uqualla, Bemus Gretchen Uqualla, Uqualla,
Debbie D. Floranda Watahomigie, Dennie Lucinda Wesco Watahomigie, game, Paya Germaine Vi Wecogame, Plaintiffs/Appellants, vian Regents; Therese Arizona Board Ann Markow; Daniel John Martin and
Benyshek, Defendants/Appellees. 07-0454, 1 CA-CV 1 CA-CV 07-0801. Nos. Arizona, Appeals Court 1, Depai’tment D. Division Nov. 2008. April Review Denied
216
OPINION
JOHNSEN, Judge.
¶ 1 cases1 Plaintiffs these consolidated against the brought claims Aizona Board (“ABOR”) out of Regents arising and others taken alleged misuse of from members case, early superior In each 1990s. summary judgment entered *4 plaintiffs because it to concluded failed statute, comply with A-izona’s notice-of-claim (“A.R.S.”) Revised section Aizona Statutes (2003). apply 12-821.01 Asked to the stat- requirement ute’s claimant Associates, By Rosette & PC A. Robert supporting” stated de- “facts the settlement Rosette, Ludwick, Chandler, Brendan L. and mand, judgments rea- we reverse the for the Peebles, By & Conly Fredricks LLP J. explained sons below. Schulte, Messineo, Omaha, NE, Joseph V. Attorneys Havasupai Plaintiff/Appellant for AND FACTUAL PROCEDURAL Tribe. HISTORY Lopez, By Rusing & P.L.L.C. J. Michael Havasupai Project. The A. Tucson, Rusing, Hardy, Attorneys Todd for Havasupai 2 of Tribe Members Defendant/Appellee Ann Theresa Markow. (“Tribe”) Village in Supai live in the bottom Canyon.2 of the An Grand A-izona State Goddard, Terry Attorney By General Dan- (“ASU”) University anthropology professor Sehaaek, General, Attorney iel P. Assistant began studying John named Martin O’Grady, Special Catherine Assistant Attor- decades, Tribe in 1963. next Over the few General, Phoenix, ney Attorneys for Defen- developed strong relationship Martin dant/Appellee Regents. A-izona Board of Tribe, working with its edu- members on By Law of Offices Charles M. Brewer Ltd. issues, community develop- cation action and Phoenix, Abney, Attorneys David L. for Ani- programs, ment and social and environmen- Lawyers’ cus Curiae The A-izona Trial Asso- 1989, In tal studies. a member ciation. perceived “epi- asked Martin to look into a among demic” diabetes tribal members. By Law Offices of Abert Flores M. Abert suspected Martin tribal members’ diabetes Flores, Phoenix, Knight & Holland LLP genetics ap- was related to and diet. He By Hanlon, Lawrence, Stephen F. Frank proached genetics professor ASU Therese Schulz, Jr., Felder, George LaKeytria E. W. Markow, agreed who work with Martin on D.C., Attorneys Washington, for Individual what Martin as a described “diabetes-cen- Plaintiffs/Appellants. project.” Athough tered expressed Markow Mariscal, Weeks, McIntyre & Friedlander a desire to broaden the research to include Birnbaum, By Gary Claus, L. L. schizophrenia, Scot Phoe- one of her areas of academic nix, Attorneys interest, Defendants/Appellees Havasupai for Martin told her Benyshek. John Martin and Daniel likely study not be interested in would superior 1. These in the cases consolidated 2. We view the and the to be inferences appellants separate appeals light court but took from from drawn them the most favorable to appellants parties Because the are orders dismissal. cases as the sum whom many City mary judgments based same raise on the facts and similar were entered. Prince issues, Junction, 47, legal Apache we exercise our discretion to Ariz. consol- 912 P.2d 1996). appellate disposition. (App. part, idate them for See ARCAP For the most the facts we 8(b). Report, recite are taken from Hart infra cials, including a ASU Gener- issues, member but he did not fore- exploring other Office, complain that tribal Nevertheless, al Counsel’s almost possibility. close the being (ultimate- samples were used members’ blood an immediately, prepared Markow In March a tribal successful) without consent. study grant application to ly named Tilousi attended member Carletta schizophrenia among tribal members. grad- Tilousi defense. asked dissertation script ASU researchers created a The procedures used uate student about the proposal presenting the for blood-draw permission his blood obtain the donors’ prepared and also informed-con- research, response was but received 1990 and sent documents. Between equivocal at best. from more than samples were taken later, days Martin 6 A few disclosed exchange In Tribe’s Havasupai. Havasupai Tribal Council that ASU ASU participation project, allowed taken have “mishandled” blood to attend some summer tribal members part project. of the diabetes research charge. The blood draws courses free re- ASU for further information Tribe asked through soon continued but researchers samples, and on garding the use of the blood growing quickly concluded diabetes was too *5 April the it would ASU told Tribe among genet- to be related to tribal members investiga- prompt thorough and undertake reported paper published in a ics. Markow tion. In the absence of further information 1991 that there was too little November ASU, however, 9, 2003, May on the from among genetics to variation tribe members’ approved Tribe a “banishment order” among the conclude the incidence of disease part: stated in relevant genetics-related. them was recently Tribe has been Havasupai The ¶4 Although the ended the project by that Havasu- informed reliable sources purposes allegedly by to Hava- consented by has been pai blood collected A.S.U. elsewhere, supai, and researchers at ASU research, to distributed others for and Arizona, including University contin- Ha- research have been conducted on publish perform ued to research and articles blood, others, vasupai [ ASU] and based from tribal members’ blood on data any to purposes unrelated diabetes or samples. Among publications disorder, medical all other in violation least and various four doctoral dissertations given by Havasupai members. the consent papers, academic of which some concerned evolutionary genetics, rather than medical paper’s genetics. generated Some [ASU], employees its Professors and samples
from the blood dealt with schizo- are, this from date forward banished from inbreeding phrenia, and theories about an- Havasupai Reservation. migrations population cient from Asia human body latter work to North America. The days it 7 Three after issued the banish- that, Havasupai contrary is to the belief as a order, it the Tribe informed ASU that ment originated Canyon. people, they in the Grand publi- press to hold a conference to intended matter’. not to cize the ASU asked the Tribe Questions B. of Informed go press with and forward conference Consent Are Raised. authority” jointly hire offered to “an external ¶ Martin, thought investigate council who had diabetes selected with tribal early happened respect blood project had ended after studies failed what to the subsequent The identify genetic samples link to and research. the disease members, among accepted ASU tribal learned Tribe the offer and with Confidentiality Coopera- genetic signed had a Joint non-diabetes research continued Havasupai Investigation Agreement, expressed samples. on the After he was tive cir- graduate purpose that an of which was to “the told in 2003 ASU student discover completion surrounding of a nearing was dissertation cumstances collection from Havasupai genetics samples re- blood and other research data based on additional search, Havasupai several offi- members of Tribe Martin contacted ASU subsequent letter, samples September and all uses of the 11 In the counsel for ge- them derivatives and other research data for the Tribe asserted that “ASU conducted purposes.” experiments Havasupai research or other netics on the blood
samples purposes or derivatives ... for unre- lated to diabetes” without tribal members’ Report C. The Hart and the consent, consent. Without the Tribe further Meetings. Settlement asserted, “published papers ASU unrelated attorney 8 ABOR retained Phoenix Ste- private to diabetes but which genet- disclosed phen perform promised indepen- Hart to private ic data and other information derived investigation. reported dent Hart to the Havasupai samples.” from the Fur- represen- various ASU and ABOR ther, alleged, the Tribe ASU distributed trib- investigation tatives on the status of his dur- al members’ blood third-party ing meeting September 2003. On institutions without consent to do so. These 24, 2003, October members of the Tribe and third-party institutions conducted their own its counsel met with counsel for ABOR and genetics results, published research and representatives other ABOR to discuss set- consent, all alleged. without the Tribe tling relating the Tribe’s pro- claims personal “ASU’s actions have invaded the ject. No settlement was reached at that privacy Havasupai tribal members and the time, and on December Hart issued religious privacy cultural and of the Havasu- report a final describing investigation his Tribe,” pai the letter asserted. Under a listing findings. Report his The Hart was section labeled “Amount for which the claim pages long, counting 319 attached settled,” can be the Tribe’s counsel wrote: together exhibits that came thousands of Tribe does not know all later, pages. *6 request A week at the of ASU of the facts about what ASU has done with Ward, general counsel Paul counsel for both Havasupai samples blood since ASU again case, resolving sides met to discuss Supai Village. removed them from The but no settlement was reached. requested has this information from ASU. ASU has not disclosed all such facts. D. The Tribe’s Notices of Claim. Therefore, this Notice is based on the best time, Plaintiff in available information. At the first of these two this how- consol- ever, Tribe, sufficiently the Tribe idated cases is the is not informed separate letters, to set an amount filed three notiee-of-claim for which the Tribe’s and 8, 2003, September dated member-donors’ claims can be Af- March 2004 and settled. 31, 2004, provides ter March ASU sufficient respectively. facts about what ASU and others have done with Ha- ¶ 10 The Tribe’s first notice of claim was vasupai samples, blood the Tribe will days dated three after Hart met with the supplement amend or pro- this Notice and initially Tribe and report others to on the figure. vide a settlement investigation. status of his September The you Please contact ifme wish to discuss Markow, letter was Attorney addressed to this Notice. Terry General Goddard and ASU President letter, 12 In its second notice-of-elaim Michael copies Crow. The Tribe also served 5, 2004, again dated March addressed to general of the letter on ASU’s counsel and Markow, Crow, Goddard and the Tribe’s Attorney Assistant General Al- Richard counsel identified a brecht, amount for which represented both of whom had them- it would settle its claims: selves to the Tribe as counsel for ASU and ABOR. The Tribe stated the notice was on ASU has still not disclosed all of the facts, its parens patriae own behalf and as all including for relevant the whereabouts members of the Tribe involved the diabe- of all of the Havasupai genetic blood and project.3 tes material taken from tribal members and all " doctrine, "parens patriae govern- 3. Under Dictionary her own. 2004). suit on Black's Law may prosecute (8th ment a lawsuit on behalf of a ed. citizen, particularly bring a citizen unable to (29) members twenty-nine represent genetic We to which such blood of the uses Nevertheless, Havasupai Tribe.... put. have been materials Tribe, 12- compliance with A.R.S. 821.01(A) hereby notifies ASU it is [*] [*] [*] the sum all claims for willing to settle belief, information ... Based on million. The Tribe believes certain $50 samples for has misused these ASU adequate to amount would this the diabetes unrelated to studies additional individual and those compensate the Tribe causing consent study without our Clients’ acting in the Tribe is for whom members and extreme dis- severe harm our Clients injuries litany of patriae for the parens tress. ASU, punish and to them inflicted on wrongful conduct. for its ASU you wish to discuss contact me Please will not us ... ASU cannot or supplement further. this handling, accounting of the full with a stamped letter received 13 In a third transfer, Havasupai blood or use of the Goddard, only addressed March samples in obtaining such samples since willingness to settle
the Tribe reiterated simply our early has 1990’s. ASU left additional details million and added for $50 wony possible uses about Clients its claim: about samples, the their blood and locations of acts, omissions and conduct be- religious values and violation their professors University of Arizona and its lost, samples have been liefs, whether these fiduciary duty, breach of [sic] constitutes contimie to be used whether will consent, fraud, misrep- of informed lack purposes. additional unauthorized concealment, resentation, in- fraudulent going Many now our Clients fear distress, infliction emotional tentional attention, clinic, seeking medical health distress, of emotional negligent infliction diag- providing blood medical conversion, rights, negli- violations of civil or treatment. nosis negligence negligence gence, gross actions have violated the per se. These *7 tribal members’ Havasupai Tribe’s and provide us with ... refused to ASU has cultural, rights religious, legal and and regarding this information substantive Havasupai Tribe and its
have caused matter[,J the find- nor has ASU released distress. The severe emotional members “independent” investi- ings of its so called Havasupai and its members intend In the public or others. gation and federal pursue all relevant state light, come to event that additional facts Havasupai in this matter. claims right bring additional we reserve general, compensatory, Tribe will seek upon facts. claims based those relevant dam- punitive and other specific, has mis- believe that ASU Our Clients attorney’s well as fees under ages as samples for unauthorized used their blood of action. applicable causes harm, ex- purposes causing them severe distress, emotional trauma.... treme and E. The Tilousi Plaintiffs’ of Claim. Notices ad- in the second case we 14 Plaintiffs jury prefer would to allow mem- Our Clients and 51 other tribal
dress are Tilousi and other how much ASU filed to determine plaintiffs all of those Some or bers. compensate our pay to and defendants should claim with ABOR others. notices of four However, 14, 2003, injuries. notice, for their August Clients dated Tilousi’s first statute, our with the State to God- conformance from counsel addressed was a letter a settlement Martin, Benyshek, required are to state dard, Clients Markow and Daniel please advised Consequently, amount. The letter stated ASU researcher. another their claims Clients would settle that our pertinent part: $45,000[] Arizona, early juncture this per and three Markow other re- client. explained searchers. This letter that counsel represented then listed members of added.) (Emphasis Tribe. Counsel stated: In15 a second letter dated November January Attorney Stephen In Hart only general addressed to ASU’s coun- ... Report issued a ... Final on the ac- sel, Tilousi’s counsel stated had transfer, loss, use, quisition, and destruc- by retained been 15 “additional members of data, samples, tion of blood hundreds of Havasupai Tribe who believe their blood and including related information hand samples by were misused ASU.” The letter prints genealogy and ... We believe the continued: Report clearly Final only shows know, youAs on October ASU did ASU numerous commit violations of Havasupai confirmed to the Tribal Council law, University but [the also of Arizona samples blood (“UA”) professors engaged ] and its in ex- improperly collected and mishandled tensive misconduct which has caused seri- officials, ASU and used unauthorized ous harm to our clients. purposes including various studies to de- termine supai people ancestors of traveled across the modern-day Bering Hava- v [*] :¡: bridge Strait land ago. from Asia eons ... pi’ofessors UA and ... have in- Clearly, those unauthorized uses of the negligent flicted intentional and infliction samples totally blood are unrelated to the of emotional distress our clients.... study originally promised diabetes by ASU These actions have violated our clients’ officials.... cultural, religious, legal rights and Our clients believe that ASU has mis- have caused them severe emotional dis- their used for unauthorized tress. harm, purposes causing them extreme dis- This final letter with a lump-sum closed new tress, and emotional trauma. The conver- demand: “[P]lease be advised that our improper sion these use of blood sam- clients would early settle their claims at this ples ASU officials our violates client[s’] dollars, juncture $10,000,000.” for ten million cultural, privacy as well as their religious, legal rights____ Superior Proceedings. F. Court closing, plaintiffs’ noted, In counsel also 1. The Tribe case. feel “Please free to call me ... so that we discuss this matter.” 18 On March the Tribe filed a ¶ 16 complaint alleging state federal letter, In a third claims notice this *8 against ABOR and Markow.4 Defendants one addressed to general ASU’s counsel and complaint court, removed the to federal Albrecht, Attorney to Assistant General dat which dismissed 29, parens the federal-law and 2003, ed December plaintiffs’ counsel patriae granted claims but the Tribe they leave to stated had been retained two addi allege amend to for claims breach of fiducia tional members of the Tribe who had “the fraud, ry duty, negligence trespass. and or similar same the claims” as other mem Again, plaintiffs’ stated, bers. counsel ¶ 19 After the case was remanded to state [you] “Please feel free to any call me have filed, complaint court and an amended ABOR questions any or need additional informa moved summary judgment, arguing that tion.” complaint the amended should be dismissed Finally, on plaintiffs’ March the comply because Tribe had failed to sent a counsel fourth letter by Markow, addressed to A.R.S. 12-821.01. Joined Goddard, ABOR, University the Chair the September ABOR contended that the of Arizona & specific Committee on Ethics Commit- notice a identify did not amount for ment, general the of the University counsel which the claim could settled and that the 4. Other named have been defendants since dis- missed. with a plaintiffs had not served them untimely. certain
subsequent of claim were notices granted both mo- three were of claim. The court argued also that all notices notice It improperly served. tions.5 complete briefing was on 20 After presented of motions 24 The second set but before the court issued ABOR’s motion appeal. Citing Deer in this primary the issue supreme court decided Deer ruling, our summary argued judg- on Valley, defendants Valley School District No. 97 the of claim failed in- ment that notices Unified (2007).
Houser,
2. The Tilousi case. diag- providing blood for medical ¶ 22 Tilousi and 51 other individuals filed do nosis or letters treatment^”] alleging complaint February experiencing which Plaintiffs are indicate and state and federal claims ABOR which of the referenced fears fear and/or defendants, including individual Mar- several experiencing. they are kow, Benyshek. After the defen- Martin Finally, explain while Plaintiffs court, to federal dants removed case why [Hart] March 2004 letter Re- claims federal-law claims several other of the al- port establishes existence dismissed; however, alleging claims misconduct, there is leged violations negligent and intentional infliction of emo- nothing suggesting letter negligence survived. tional distress *9 fear, any additional Plaintiffs have suffered ¶ court, superior 23 After remand to the Yet, worry, harm or emotional distress. First, Markow, two sets motions ensued. settlement demand increases Plaintiffsf’] defendants, joined by the other moved $190,000 $45,000 per from Plaintiff to over summary judgment on the basis that certain per Plaintiff. plaintiffs failed file a notice claim to ¶ appeal in commencing Martin and Be- 26 Plaintiffs both cases before suit. jurisdic- arguing that of their claims. We have nyshek filed a similar motion dismissal appeal, Benyshek and it in their answer. In this concluded that Martin had asserted 5. The court estopped not those find- and from the Tilousi Plaintiffs do contest had not waived ings. asserting defense because a notice-of-claim 223 12-2101(B) pursuant tion to A.R.S. section action accrues. The claim shall contain (2003). permit public entity sufficient facts to public employee to understand the basis upon liability is claimed. The claim DISCUSSION shall contain a also amount
A. Standard of Review. which the claim can be settled and the Any supporting that amount. claim ¶ Summary judgment may granted 27 be which is not within one hundred filed genuine when there no is issue as to eighty days after the cause of action ac- moving party material fact and the is entitled may crues is barred and no action judgment to as a matter of law. Ariz. R. Civ. maintained thereon. 56(c)(1). summary P. judgment We review a ¶ any genuine purpose de novo to determine whether 30 The of the statute is issues of material government entity fact exist and whether the to with an claim, properly applied opportunity investigate the law. Eller to Media assess ¶ Tucson, 127, 4, City 130, potential liability, its prior Co. v. Ariz. reach a settlement 198 136, litigation, budget plan. Valley, 7 (App.2000). P.3d 139 Deer ¶ 295, 6,
214 Ariz. at
If
152 P.3d
492.
a
served,
notice
properly
of claim is not
Analysis.
B.
Maricopa
claim is barred.
Falcon v.
See
Legal principles.
525, 527, ¶10,
County, 213 Ariz.
144 P.3d
1254,
(2006) (“Actual
¶28
goal in
1256
notice and
construing
Our
statutes is to
sub
compliance
stantial
give
legislative
effect
do not excuse failure
intent. Zamora v.
Reinstein,
272, 275,
1227, comply
statutory requirements
185 Ariz.
915 P.2d
(1996).
12-821.0KA).”).
§
plain
A.R.S.
language
of a statute
intent,
strongest
legislative
is the
indicator of
estoppel.
2. Waiver and
clear,
language
and when that
is
“it is deter
minative of the statute’s construction.”
¶
Deer
31 We first address the Tribe’s ar
¶
296, 8,
Valley,
Persons who have long claims after the initial notice entity public employee lic or a engaging meetings shall file after in settlement person persons presumably claims with the author- were based on information set *10 accept public entity ized to service for the forth in the notice of claim. See Pritchard v. public employee Arizona, 427, 432, 1178, or as set forth in the 788 P.2d (1990). procedure generally, Arizona rules of civil within one 1183 More the Tribe also eighty days argues hundred estopped after the cause of ABOR and Markow are 224 979, ¶ 19, (declining to (App.2000) 7 P.3d 984 defense raising supporting” a “facts
from superior presented not statute because issues notice-of-claim consider under court). with actions inconsistent they took several defense, commissioning the including specific supporting the consider- 3. Facts investigation, processing and Hart amount demanded. participating
ing the Tribe’s claim
meetings
the Tribe. See
settlement
notices of claim.
a. The Tribe’s
Scottsdale,
110,
Ariz.
Young City
193
v.
¶
March 5 letter stated
35 The Tribe’s
¶
942,
114, 15,
(App.1998) (city
P.2d
946
970
million—demanded
specific
$50
amount —
not
that notice of claim was
argument
waived
Valley, 214 Ariz. at
See Deer
settlement.
by
the claim and
processing
properly served
(statute
¶ 9,
296,
“unmistak-
225
issue,
appeal,
language.”
214 Ariz.
meaning
did not reach this
but
statute’s
is its
296,
did
8,
Janson,
Tribe asserts that its claims
not accrue
(quoting
into
not require
does
sion that
12-821.01
section
ed”).10
prove
facts sufficient to
a notice to contain
to omit a
legislature’s
decision
claim,
41
superior
the
we conclude
summary judgment
provide
granting
a claimant
“suffi
erred
in
requirement
that
the extensive fac
the Tribe because
his
supporting”
or her settlement
cient facts
Septem
in the Tribe’s
tual detail included
logical when one considers what
demand is
claim,
notices of
read
ber 8 and March 5
sought
is. The amount
demand
settlement
together, complied with the statute’s re
is a function of the relative
in settlement
quirement
supporting”
contain “the facts
to
liability
and
the claimant’s
claim
strength of
pro
The notices
its
million demand.
$50
damages allegedly in
of the
magnitude
the
describing
defen
vided a host of details
the
“strong”
liability
A case
on
but
curred.
wrongdoing: The
alleged
dants’
letters as
damages reasonably might sup
on
“weak”
tribal
having
serted
obtained
members’
that
port
as another
the same settlement demand
use,
namely,
a limited
to
blood
liability
“strong”
but
on dam
“weak” on
case
study
among tribal
diabetes occurrences
reason,
members,
ages.
depending
this
on the
defendants used members’ blood
For
genetics experiments and other
uses un
claim,
supporting”
may
“facts
a demand
the
diabetes,
the
related
all without
donors’
to
greater or fewer
of facts
consist of a
number
Further, although
allegedly
consent.
ASU
allegedly gave
that
rise to
the acts
about
represented that
the research would be
damages
liability
describing
and facts
the
ASU,
entirely at
the September
conducted
incurred.
See
Services
allegedly
United
consent,
alleged
notice
that without
that
8
Morris,
154
741
Auto. Ass’n
Ariz.
Havasupai
institution distributed
blood sam
(1987) (reasonable
246, 254
settlement
P.2d
per
in
ples
parties,
to third
which
turn
evaluating
bearing
facts
amount “involves
genetics experiments
formed additional
us
liability
damages aspects
on the
and
of claim
ing
confidential
data.
tribal members’
case,
going
as well as
risks of
to
ant’s
asserted,
Together,
the Tribe
ASU’s acts
¶ 20,
trial”); Backus,
Rep.
534 Ariz.
at
Adv.
personal privacy
“have
Ha
invaded the
(“
at
204 P.3d
404
‘one size
vasupai
tribal members and
cultural
compliance
approach to
with the stat
fits all’
privacy
and
religious
problematic”).
Tribe.”11
ute
be
Backus,
colleague
Although
argues
in
claim.
76.
dissent
that
notices of
sec-
Our
10.
Infra
to,
alia, provide
tion
is intended
inter
rely, erroneously
12-821.01
which we
concluded that
on
entity
governmental
liability,
facts to enable the
to investi-
application
not
12-821.01 does
mandate
section
gate
Valley,
potential
Deer
see
214
requirement
standard"
of an "evaluative
295, 6,¶
Ariz. at
152 P.3d at
we do not
supporting”
a notice of claim contain "facts
thal
provide
gov-
purpose
be
understand its
to
to
respectfully
We
demand.
dis-
the settlement
might
every single
require
ernment
fact it
to
with
agree, for the reasons stated above. The dissent
Indeed,
negotiations.
in
conclude settlement
this
"corroborate,"
"support” means
observes that
presumably
case
ASU
relied
information con-
argues
"argue in favor
of”
“substantiate”
negotiated
report
tained in
Hart
with the
requirement that a notice con-
that the statute's
in-person
than one
at more
settlement
supporting” the
tain "facts
demand must mean
meeting.
or all of those.
1174. We do not
one
disagree;
Infra
that the
in
our view is
facts included
noted,
supra,
the Tribe's
As
invasion-of-
at issue in this case indeed "corrobo-
the notices
privacy
was dismissed
federal court
demands, "argued
the various settlement
rated”
here, however,
prior to remand. We deal
As
in favor of” them and "substantiated” them.
whether the Tribe's notice of claim
issue of
Backus,
plainly
in the
absence of
stated
support
damages
stated
facts sufficient
objective requirement
in the statute
stated
said to
from the claims set out in the
have arisen
supporting” are
the "facts
demand
claim,
pleadings
notice
the state of the
not
evaluated,
logic
concluding
we see no
that
later,
years
months
after extensive motion
legislature
296, 9,¶
must have intended that a claim for
Valley,
practice.
214 Ariz. at
Deer
See
damages
general
detail
("[T]he
must
facts that describe
[notice
claim]
statute
P.3d at
"incidence, nature,
severity
of the dam-
require
claimants
does not
reveal
¶¶
allegedly
ages”
litigation
incurred.
Final-
they
45-46.
trial if
amount
will demand at
Infra
argues
government
simply requires
that the
ly,
dissent
could
that claimants identi
ensues but
fy
"responsibly settle" the
at issue with-
for which
will settle
claims
amount
amount.”).
supporting
provided
in addition
information
to that
out
¶ Although the
upon
Tribe’s notices do not
a claim for relief for intrusion
seclusion.”
incurred,
injury
describe the nature of the
Id.
*13
privacy relating
invasions of
to tissue sam
¶
injury
naturally
45 The
flows
ples such as the Tribe described in its claim
purported privacy
from the
invasions set
naturally give
subjective per
notices
rise to
forth in the Tribe’s two notice-of-claim letters
when,
here,
injury,
samples
sonal
even
necessarily subjective, deeply personal
is
given voluntarily.
Vasquez,
are
See
2008 WL may
quantifiable except by
jury.
not be
¶
309-10,
Bloodsaw Lawrence
sufficiency
damages
of the claim or the
al
(9th Cir.1998),
govern
“dignitary torts” such as those man- proof physical require above, Tribe do the Tilousi described 50 As See, injury. e.g., Rumbauskas ifestation August 14 notice of claim asserted Plaintiffs’ Cantor, A.2d N.J.Super. members’ blood having obtained tribal *14 (“[R'Jeeovery harm to the (App.1993) for 1362 study, de ostensibly for a diabetes samples privacy depend does not interest plaintiffs samples for other stud misused the fendants ... resulting distress showing of mental on a studies, published the results of those ies and privacy is plaintiffs harm to interest notice, writ consent. The all without damages.”), compensated itself a loss to be Tilousi, say to by went on ten counsel N.J. 649 grounds, 138 rev’d on other “any informa to disclose that ASU refused (1994); Snakenberg v. The A.2d 853 use, Hartford handling or transfer” regarding the tion Inc., Co., S.C. 383 S.E.2d 299 Cas. Ins. samples. The misuse of of the blood (damage wrongful intru- (App.1989) from 6 “a be samples constituted claimants’ blood a private affairs “established as into is sion Havasupai people and trayal of trust with the tort are law” if elements of the matter of original agreement” and a of the violation 7.3(2), Dobbs, § proved); 2 Law Remedies “privacy rights as the claimants’ violation of (2d 1993) (speaking generally of ed. at 305 cultural, legal religious, and well as their torts, to dam- “The tort is said dignitary The letter contin rights,” asserted. counsel ...”). age in itself alleged miscon ued that as result harm, duct, ex plaintiffs suffered “severe authorities do not cite these We distress, and emotional trauma.” treme or to establish proof as of the Tribe’s claims that because of defen Counsel further stated damage amount due the Tribe. particular acts, worry wrongful the claimants dants’ them instead to demonstrate We offer locations of their possible about the uses and that validity the Tribe’s contention worry the violation of samples, blood about naturally may alleged it privacy invasions beliefs, going religious fear their values subjective give deeply personal rise clinic, seeking fear medical health on which the Tribe based injury of the sort providing and fear blood attention demand. the circum its settlement Under diagnosis medical or treatment. stances, not its members suffered whether or of claim letter 51 The November 6 notice injury, of that physical manifestations that that the claimants had learned added required was not Tribe’s notice of claim research defendants among the unauthorized support its facts to settle additional of tribal members’ permitted or conducted generally v. Co ment demand. See Jones to deter- samples were “various studies 372, 377, 19, blood County, 218 Ariz. chise modern-day Havasupai (A.R.S. mine ancestors of (App.2008) 12-821.01 P.3d Bering Strait land people traveled across precise accounting for require “a does ago.” assert- bridge from Asia eons Counsel damages” but “instead possible each basis for use of defendants’ unauthorized only provide the ed requires that the claimant samples, they “emotion- had caused lump award for those supporting sum our trauma” to the claimants and “violated al damages”).14 provided (App.1978). argues Because the Tribe does not assert notices 14. The Tribe also damages. support punitive alleged any exception a claim for to this facts to its notices however, rule, entity public rule, general that a is general the no- we not conclude that damages. punitive See A.R.S. is not liable for merely 12-821.01 because tices satisfied section damages against (barring punitive § 12-820.04 repeated outrageous reprehensi- they alleged employee acting public entity public within or "a might support acts of the sort that otherwise ble employment”); scope see State San the chez, of his punitive damages. a claim for 64, 65-66, P.2d 569-70 cultural, privacy well symptoms clients’] as their ous cataloged of distress in the notices, religious, legal rights.” provide any the notices “did not rea- way sonable for the defendants evaluate ¶ 52 Like the Tribe’s notices of claim de- the claims and decide whether to settle” with above, scribed the Tilousi Plaintiffs’ notices noted, however, any of the claimants. As “general damages,” set forth nature when a notice of claim sets forth acts that subjective, deeply personal are and often dif- give presumed damages general rise to or to letter, quantify. August ficult to In their tort, damages naturally flow from the gave the Tilousi they Plaintiffs notice that the statute require does not the claimant to $45,000 willing to settle for each and stress, ways detail the pain various in which supported that description amount with a suffering is manifested. anxieties and concerns contend- alleged ed resulted from wrong- defendants’ (2) The Tilousi Plaintiffs’ March ful acts. conclude that We for the reasons 4 notice of claim. above, discussed the Tilousi Plaintiffs’ notices ¶ 56 ABOR and the individual defen of claim requirement satisfied the of A.R.S. argue dants also the March 4 notice of claim *15 § provide 12-821.01 to supporting” “the facts is deficient because it did not state whether the settlement demand. each accepted individual claimant would have ¶ 53 ABOR and the individual defen proportionate a share of the million de $10 argue plaintiffs’ dants “unspeci stated separate mand to settle his or her claim. worry” fied “generalized and fear” were in They also contend the March 4 letter was justify sufficient they the settlement untimely it because was filed more than 180 above, however, sought. As noted the test is days 14, August after the 2003 notice. Given not whether a notice of claim contains facts that we August have concluded that the 14 justify prove or the amount of the settle letter, supplemented by the November 6 and ment demand. Nor is it whether the facts letters, December 29 valid constituted notices demonstrate that the settlement demand is claim, of the content and the timeliness of the Instead, reasonable. it is whether the notice March 4 notice is irrelevant to claims claim, whole, of provides read as a facts brought by individuals identified in the earli supporting the settlement demand. er notices.15 ¶ 54 argue Defendants the notices of claim ¶ question remains, however, 57 A of fact were they deficient provide because did not toas the timeliness of the March 4 notice of they all the might facts have needed to evalu- as it relates to of the Tilousi Plain- plaintiffs’ But, ate settlement demand. as tiffs who were identified for the first time in ¶ above, 39, nothing noted in section 12- remand, that claim Upon notice. superi- the requires 821.01 a claimant to all the may consider the timeliness of the pertaining damage facts to a claim or even all March 4 plaintiffs. notice of claim as to those might facts that the claimant know as of If the court finds the 4March notice of claim the time the notice A timely is filed. notice of claim plaintiffs, as to may those it then merely which, triggers process a at the address the issue of whether the letter satis- public entity election of the fies section though with the 12-821.01 even it states claimant, only lump-sum negotiated consent of the a a settlement demand. settle- (Each may ment occur. of the four notices 4. Other matters. of claim the Tilousi Plaintiffs filed in this case counsel.) public invited entity to contact a. Timeliness of the Tribe’s notices of claim. ¶ argue 55 Defendants also that be ¶ cause the specify notices of claim did not 58 an ground As alternative on experienced which claimants each of the vará which judgment against the Tribe 15. The dissent argues $45,000 individual). that the Tilousi sought per Plaintiffs' notice had Our 14, settlement demands increased over August time without decision that the November 6 and providing supporting together "additional harms.” December 29 notices satisfied A.R.S. 76, ¶ colleague We infer our refers to the 12-821.01 moots the issue of increase in infra. claim, sought lump March 4 notice of which the settlement demand staLed in the 4 March (the August $50 sum of million settlement 14 notice.
230
affirmed,
could be settled within 180
the which the claims
ABOR and Markow assert
29,
8,
untimely
days
April
May
were
1997 or
of claim
be-
Tribe’s notices
either
days
not served within 180
cause
it
response,
62 In
the Tribe asserts that
claims
the Tribe’s
accrued.
the date
ac-
triggered
did not
the facts
discover
it
Hart
crual of
claim until after met with
12-
59 Pursuant
section
2003,
September
prelimi-
to hear
821.01(B),
cause of action accrues when
“a
investigation.
nary
realizes
has
of his
It further
damaged party
he or she
results
reasonably
knows
fraudulent concealment
damaged
been
contends defendants’
cause,
event,
source, act,
important
abil-
facts foreclosed
Tribe’s
should know
ity
days
instrumentality
proper
or condition which caused or
notice within
file a
180
damage.”
May
April
to the
a cause
order.
contributed
When
1997 letter or
“usually
necessarily”
accrues is
action
Viewing
light
the evidence
most
Roe,
jury.
question
of fact for the
Doe v.
Tribe,
question
of fact
favorable
¶ 32,
P.2d
April
exists
to whether either
(1998).
May
letter or
2003 order demonstrates
argue
first
the Tribe’s
60 Defendants
damaged
had been
Tribe realized it
upon receipt
April
claim accrued
of an
knew or
known the
of that
should have
cause
Martin,
per-
from
letter
stated
damage.
part:
tinent
genes suspected
other
to underlie
Some
Proper
b.
service
Tribe’s
Pi-
have also been studied in the
diabetes
of claim.
notice
*16
colleagues
Dr. Markow and her
mas and
argues
also
the
64 ABOR
compare
Havasupai
to
the
for
were able
Tribe’s
of claim was
because
notice
deficient
well____Low
genes
genet-
as
two of these
proper person
it was
the
not served on
ic variation became evident for the other
ABOR.
was not addressed to
Section 12-
genes
graduate
...
as well when a
student
821.01(A) provides that a notice of claim
genes controlling dopamine
at the
looked
person
“shall
... with the
filefd]
or
[be]
study
receptors.
dopamine
Scientists
re-
accept
persons
to
for the
authorized
service
possible
of their
role in
ceptors because
public entity
public employee
or
as set forth
problems
depres-
medical
such as
other
procedure.”
in the
of civil
The
Arizona rules
sion, schizophrenia, and movement control.
(“Rule”)
applicable Rule of Civil
is
Procedure
is well
Because Dr. Markow
known for her
Rule 4.1(j),
pro
which addresses service of
work on inherited diseases such as schizo-
cess on governmental entities:
phrenia,
get
to
funding
we were able
for
upon any governmental entity
Service
dopamine receptor
which also
the
research
state,
county, municipal
than the
a
[other
paid
sampling
for blood
for the diabetes
corporation
governmental
or other
subdivi-
Havasupais
...
work. Because
indicated
by
per-
serving
sion] shall be effected
they were not interested
additional be-
son, officer,
body
research,
group
responsible
or
for
medicine
Dr. Markow
havioral
that entity
administration of
go beyond
examining
research
did not
legal
genes
serving
appropriate
officer,
in these
level of variation
in Havasu-
any,
entity.
representing
upon
pai.
Service
person who is
member of the
¶ Alternatively,
argue
defendants
“body” responsible
“group” or
for the ad-
8,May
accrued no later than
Tribe’s claims
entity
ministration of the
shall be suffi-
2003, when the Tribe issued the banishment
cient.
order,
announced that
the Tribe had
added.)
noted,
(Emphasis
been
that “research
have been
As
Tribe’s
informed
Ward,
pur-
presi-
...
notices
to
conducted on
were delivered
vice
¶ 6,
ASU,
poses
supra.
general
unrelated to diabetes.”
dent and
counsel of
and to
See
Attorney
contend the
claims must
Defendants
Tribe's
Assistant
General Albrecht. View-
ing
light
because the
filed no no-
record in the
most favorable to
dismissed
Tribe,
stating
tice of claim
amount for
the record demonstrates that at
public employee
public entity,
the time of and
connection with this mat-
and as a
ter,
public employee
claimant must serve the
appropri-
Ward
Albrecht were “the
public entity.
plaintiffs
well as the
legal
representing”
ate
ABOR. For
offieer[s]
complied
requirement.
these cases
with that
example,
May
on
three months
claim,
signed
before the notice of
Ward
¶ 68 Defendants
cite Duke v.
also
Cochise
Confidentiality
Cooperative
Joint
Inves-
County,
(App.1996),
Ariz.
mand. while the Tilousi plaintiffs notices aver some suffered distress, fears and some worries and fears, worries, say notices do not what distress were whom and what suffered Further, degree these were suffered. harms plaintiffs’ these time demands increased over supporting without additional be, harms. As real these harms well government I cannot conclude that the could responsibly settle these claims without the
required statutory information.
¶ 77 I Accordingly, would affirm.
Tilley, wife, husband
Plaintiffs/Appellants, Benjamin DELCI; Albert Con Americor
tractors, Inc., corpora an Arizona
tion, Defendants/Appellees.
No. 1 CA-CV 07-0777. Arizona, Appeals Court of 1, Department Division A. Jan.