In Arizona, $100,000 doesn’t equal $250,000. And a plaintiff suing the government will lose his case if he forgets that fact, according to a ruling from the state’s highest court in a case involving a man mistakenly attacked by a police dog.
Joseph Terborg was injured in June 2023 after a police dog in the Town of Payson attacked him while chasing a suspect. As required under Arizona law, Terberg filed a claim with the town before suing, offering to settle for “one hundred thousand dollars ($250,000).”
The town moved to dismiss the complaint because it didn’t comply with the statute requiring a specific dollar amount. Gila County Judge Timothy Wright granted the dismissal, but Division Two of the Court of Appeals reversed, ruling Terberg offered to settle for $100,000, regardless of the subsequent error.
Not so, the Arizona Supreme Court held in a Sept. 24 decision by Chief Justice Ann Timmer. Saying the case involved “an issue of statewide importance,” the court ruled that plaintiffs suing the government must strictly comply with Section 12‑821.01(A). The requirement for a clear claim amount is necessary to allow public entities to investigate the claim and possibly budget for the settlement, the court said.
The appeals court analyzed Terberg’s claim in the context of contract law, where courts can try and determine the true intent of the parties when language is ambiguous. But that approach is inappropriate with the settlement statute, which says nothing about using contract principles, the Supreme Court said.
“A notice of claim is not a contract; it is a statutory prerequisite for filing a damages lawsuit against a public entity,” the court said. Otherwise, courts would be required to look beyond the notice to figure out “what the claimant subjectively meant.”
The Supreme Court said it has made similar rulings in the past, including rejecting a claim for a dollar amount or the applicable insurance limit. The plaintiff cited another case in which an appeals court applied contract law principles to an offer of settlement, but that was to decide if it was an unambiguous offer to settle and not to decide between two conflicting settlement amounts, the court said. The town couldn’t be expected to assume $100,000 was the correct amount because $250,000 was in parentheses, the court went on.
“Although the Town easily could have asked Terborgto clarify his intention, the law did not require it to do so,” the court concluded.
James M. Jellison represented the defendant, and David Abney of Ahwatukee Legal Office represented the plaintiff.
