Rainer v. Swift

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JANEL RAINER, wrongful death statutory beneficiary, for and on behalf
of herself and survivors of her husband,
decedent CHRISTOPHER RAINER,
Plaintiff/Appellant,

v.

SWIFT TRANSPORTATION COMPANY OF ARIZONA, LLC, et al.,
JAMES M. KURBAT, M.D. and MARGARET ELLEN KURBAT, Husband
and Wife1,
Defendants/Appellees.

No. 1 CA-CV 15-0080
FILED 10-11-2016

Appeal from the Superior Court in Maricopa County
Nos. CV2009-032279, CV2011-015216 (Consolidated)
The Honorable Lisa Daniel Flores, Judge

AFFIRMED

COUNSEL

Treon & Shook, P.L.L.C., Phoenix
By Daniel B. Treon
Counsel for Plaintiff/Appellant

1 On the court’s own motion, it is ordered amending the caption in
this appeal as reflected in this decision. The above referenced caption shall
be used on all further documents filed in this appeal.
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Phillip H. Stanfield, Jonathan P. Barnes and Jason P. Kasting
Counsel for Defendant/Appellee Swift Transportation Company of Arizona, LLC

Bonnett Fairbourn Friedman & Balint, PC, Phoenix
By William G. Fairbourn, Jonathan S. Wallack and Laura Van Buren
Counsel for Defendant/Appellee James M. Kurbat, M.D.

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Maurice Portley joined.

B R O W N, Presiding Judge:

¶1 Janel Rainer (“Rainer”) appeals the trial court’s order granting
summary judgment in favor of Swift Transportation Co. of Arizona, LLC.
(“Swift”) and James M. Kurbat, M.D. and Margaret Ellen Kurbat
(collectively “the Kurbats”), based on Rainer’s failure to sue Swift and the
Kurbats within the applicable statute of limitations. For the following
reasons, we affirm.

BACKGROUND

¶2 On October 24, 2007, Rainer’s husband, Christopher
(“decedent”), died from injuries suffered after his car collided with a
delivery truck owned by Swift Charities for Children (“SCC”) and driven
by its recently-hired employee, Juan Sanchez-Valdez (“Sanchez-Valdez”).
On March 20, 2008, Rainer’s counsel sent SCC a certified 17-page letter
referencing the accident and requesting, inter alia, that SCC preserve and
produce all of the documents listed in the letter, including Sanchez-
Valdez’s “Driver’s Qualification File” and “Personnel File.” In pertinent
part, the letter requested (1) all medical examinations, drug tests and
certification of medical examinations; and (2) any and all completed
applications for employment; all actual driver’s motor carrier road and
written tests administered; all road and written test certificates, regardless
of the date; and all past employment inquiries sent to or secured from
former employers along with all responses received. The letter also
referenced the Federal Motor Carrier Safety Regulations (“FMCSR”),
stating that the FMCSR required SCC to maintain a Driver’s Qualification
File for each driver.

2
 RAINER v. SWIFT et al.
Decision of the Court

¶3 On March 31, 2008, SCC’s counsel acknowledged receipt of
the letter, stating that he would like to speak to Rainer’s counsel about the
letter at his “earliest convenience,” and that if it would be “more convenient
to set aside a specific time,” arrangements could be made. By his own
admission, Rainer’s counsel did not reply or otherwise seek to contact
SCC’s counsel about the March 31 response.

¶4 On May 28, 2008, Rainer’s counsel received a “Fatal Traffic
Collision Report” from the Glendale Police Department. The report
showed that officers believed decedent “failed to stop for a red traffic light”
and collided with Sanchez-Valdez, and identified at least two witnesses
who observed decedent enter the intersection against a red light. The report
also indicated that while interviewing Sanchez-Valdez at the scene of the
accident, Officer Rico noticed Sanchez-Valdez had a “sleepy left eye.” In
response to questioning, Sanchez-Valdez replied that he injured his left eye
ten years earlier, which required surgery. Sanchez-Valdez stated he could
still see out of his left eye, but that he did not see the decedent’s car before
the collision. Sanchez-Valdez provided officers with his Class D Arizona
driver’s license, which was issued three years prior to the accident and gave
no indication he was subject to any restrictions, including corrective lenses.

¶5 The SCC truck’s registration listed its weight at 26,000
pounds. Officer Trier noted that this kept the vehicle out of the
“commercial vehicle” range and that a Class D driver’s license was
sufficient to operate a truck in that weight range. During a subsequent
accident investigation, Detective Quigley requested that the Arizona Motor
Vehicle Division (“MVD”) Medical Review Program conduct a “medical
review” of Sanchez-Valdez’s vision because she was concerned that he
never saw decedent’s car before the impact. Quigley subsequently learned
from MVD that Sanchez-Valdez’s vision was adequate for a Class D license
and notified Rainer of such in June 2008.

¶6 On October 23, 2009, Rainer filed a wrongful death action
against Sanchez-Valdez for negligence and against SCC for negligent hiring
and vicarious liability, alleging in part that Sanchez-Valdez’s “vision, and
therefore his ability to observe oncoming traffic, was impaired due to a
medical condition.” She did not serve the complaint until January 21, 2010.
SCC and Sanchez-Valdez answered, then served their initial disclosure
statements on June 15, 2010, and disclosed SCC’s “file concerning Juan
Sanchez-Valdez,” who had worked for SCC less than one month prior to
the accident. The file contained: (1) a Department of Transportation
Medical Examination Report (“DOT Medical Report”) signed by Dr. Kurbat
on October 2, 2007, evidencing he performed a medical examination of

3
 RAINER v. SWIFT et al.
Decision of the Court

Sanchez-Valdez on that date and noted an “eccentric” left pupil secondary
to trauma; (2) Dr. Kurbat’s signed certification dated October 2, 2007 that
Sanchez-Valdez was fit to be a commercial driver as defined by the FMCSR;
(3) Section 3 of the DOT Medical Report indicating Sanchez-Valdez had a
vision examination on October 11, 2007 for clearance to drive a truck for
SCC, which was performed and signed by an optometrist; and (4) a
prescription written on the optometrist’s letterhead requiring that Sanchez-
Valdez wear eye glasses full-time.

¶7 In January 2011, Rainer deposed Sanchez-Valdez. After
approval by the court, Rainer filed an amended complaint in September
2011, adding Swift, the Kurbats, and several other defendants who were
subsequently dismissed from the litigation.2 Rainer’s amended complaint
alleged medical malpractice against Dr. Kurbat, negligent hiring and
vicarious liability against Swift, and negligence per se against all defendants.
Rainer alleged that Dr. Kurbat was not qualified to conduct commercial
driver fitness examinations and, in particular, eye examinations. Rainer
also alleged Swift was negligent for hiring a physician who was not
qualified to conduct medical examinations for its drivers to determine their
fitness.

¶8 After considering separate motions for summary judgment
filed by Swift and the Kurbats, the trial court ruled that: (1) the statute of
limitations accrued no later than May 28, 2008, based on the discovery rule,
because when Rainer received the police report, she was “on notice that
[Sanchez-Valdez’s] vision was an issue and [she] had a duty to reasonably
investigate any potential claims based on his vision;” (2) Rainer “failed to
diligently investigate her claims;” (3) the two-year statute of limitations
expired on May 28, 2010; and (4) Rainer’s claims against Swift and the
Kurbats were time-barred. This appeal followed.

DISCUSSION

¶9 Rainer argues the trial court erred in granting summary
judgment, asserting that when her claims accrued and whether she
diligently investigated are jury questions.

¶10 Summary judgment is appropriate when there is no genuine
dispute as to any material fact and the moving party is entitled to judgment

2 Rainer’s claims against Sanchez-Valdez and SCC were eventually
dismissed pursuant to a settlement.

4
 RAINER v. SWIFT et al.
Decision of the Court

as a matter of law. Ariz. R. Civ. P. 56(a). We determine de novo whether
any genuine issue of material fact exists and whether the trial court erred in
application of the law. Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996).
We construe the evidence and reasonable inferences in the light most
favorable to the non-moving party. Wells Fargo Bank v. Ariz. Laborers,
Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 482,
¶ 13 (2002) (citation omitted). And, we will uphold the trial court’s ruling
if correct for any reason. Logerquist, 188 Ariz. at 18.

¶11 A complaint for personal injury must be filed within two
years after the cause of action accrues. Arizona Revised Statutes (“A.R.S.”)
section 12-542. Under the common law discovery rule, accrual occurs
“when the plaintiff knew or by the exercise of reasonable diligence should
have known of the defendants’ conduct.” Wyckoff v. Mogollon Health All.,
232 Ariz. 588, 591, ¶ 9 (App. 2013) (internal quotations and citation
omitted). Courts typically apply the discovery rule when the “injury or the
act causing the injury, or both, have been difficult for the plaintiff to detect.”
ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 290, ¶ 12 (App. 2010)
(citing Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 589
(1995)). Although knowledge of all the underlying facts is not necessary,
the plaintiff “must at least possess a minimum requisite of knowledge
sufficient to identify that a wrong occurred and caused injury.” Walk v. Ring, 202
Ariz. 310, 316, ¶ 22 (2002) (citation omitted). A plaintiff must also have a
“reason to connect the ‘what’ to a particular ‘who’ in such a way that a
reasonable person would be on notice to investigate whether the injury
might result from fault.” Id.

¶12 Generally, determining when a plaintiff learned of
defendant’s conduct, thereby triggering accrual of a cause of action, is a
question of fact for a jury, and summary judgment is appropriate only if
failing to investigate potential claims is not reasonably justified. Id. at 316,
¶ 23. Yet, a party may not “hide behind its ignorance when reasonable
investigation would have alerted it to the claim.” ELM, 226 Ariz. at 290, ¶
12 (citing Doe v. Roe, 191 Ariz. 313, 324, ¶ 37 (1998) (explaining that plaintiffs
have an affirmative duty of due diligence when investigating potential
claims)). The key question in applying the discovery rule is “whether a
reasonable person would have been on notice to investigate,” and plaintiffs
are not relieved of their affirmative duty to “timely inquire whether any basis
exists for legal action.” Walk, 202 Ariz. at 316-17, ¶¶ 24-25 (emphasis added).

¶13 Here, Rainer did not seek to add Swift and the Kurbats until
almost four years after the accident, which means her claims against them
are barred unless under the discovery rule the time for filing suit against

5
 RAINER v. SWIFT et al.
Decision of the Court

them was tolled. As the plaintiff, Rainer has the burden of proving that the
discovery rule should apply to delay accrual, as well as refuting a prima facie
case for summary judgment by showing that available, competent evidence
justifies a trial. See Ulibarri v. Gerstenberger, 178 Ariz. 151, 155 (App. 1993).
Thus, we must determine whether Rainer has established the existence of
material issues of fact that she timely inquired as to whether there was a
basis for suing Swift and the Kurbats.

I. Diligent Investigation

¶14 Rainer argues she diligently investigated her claims, and was
aware there could be “vision” issues at play, but that her investigation
revealed no vision examination issues, thereby connecting the ‘what’
(medical negligence and negligent hiring) to a particular ‘who’ (Swift and
the Kurbats). As such, she maintains she was not on notice to investigate
Swift and Dr. Kurbat until she received SCC’s initial disclosures in June
2010.

¶15 On March 20, 2008, Rainer’s counsel sent SCC the 17-page
letter requesting numerous documents, including Sanchez-Valdez’s
Driver’s Qualification File pursuant to the FMCSR. SCC’s counsel replied,
asking to speak to Rainer’s counsel about the request. Rainer’s counsel,
however, did not respond or otherwise attempt to obtain the file. Two
months later, on May 28, 2008, Rainer’s counsel received the police report,
which revealed potential concerns about Sanchez-Valdez’s vision: (1) he
had a “sleepy left eye,” which was previously injured and required surgery;
(2) he told officers he did not see decedent’s car before the collision; and (3)
Officer Quigley was concerned enough to request an MVD review. The
police report also stated that Sanchez-Valdez told officers he worked for
SCC, and the SCC truck he was driving, which was referred to throughout
the report as the “Swift” truck or “Swift Transportation” truck by both
officers and witnesses, weighed 26,000 pounds, for which a commercial
driver’s license (“CDL”) was not necessary.

¶16 Rainer asserts that the March 2008 letter was merely a “form”
letter, sent as a precautionary measure, as she did not know if the FMCSR
applied to SCC. Rainer argues that once she received the police report in
May 2008, and learned the truck was not in the commercial vehicle range
for which a CDL was required, she knew three key points: (1) the FMCSR
did not apply to SCC; (2) SCC would not have the Driver Qualification File
she requested; and (3) it was pointless to respond to SCC’s counsel’s letter
of March 31, 2008. We are not persuaded by these assertions.

6
 RAINER v. SWIFT et al.
Decision of the Court

¶17 First, the FMCSR applies to all employers who transport
property or passengers in interstate commerce in a commercial motor
vehicle weighing 10,001 pounds or more. FMCSR §§ 390.3(a), 390.5. Those
employers must maintain a Driver Qualification File for each driver,
including medical certifications. FMCSR § 391.51. As stated in Rainer’s
March 20, 2008 correspondence to SCC, the FMCSR requires it to “secure
and maintain possession” of documents in Sanchez-Valdez’s Driver’s
Qualification File, including medical examinations. Sanchez-Valdez was
not required to possess a CDL, because the truck weighed less than 26,001
pounds. FMCSR §§ 383.5, 390.3(b). Thus, a Class D license was sufficient.
A.R.S. § 28-3101(2)(a).

¶18 Rainer argues SCC is not a “federal motor carrier” because it
does not transport “interstate” and labels the SCC truck as an “in-town”
truck. However, she does not identify where she raised this point to the
trial court nor does she point to any evidence supporting the assertion that
SCC was not a federal motor carrier. Rainer states that after learning about
trucking law from a trucking expert, she deduced that SCC was not subject
to the FMCSR because the truck was utilized as a local delivery truck. Even
so, Rainer did not consult with a trucking expert until early 2009, and by
her own admission, they only discussed “how [Sanchez-Valdez] drove the
truck,” as well as whether any “additional duties of care” existed for non-
CDL drivers. Nothing in the record indicates Rainer and the trucking
expert discussed the applicability of the FMCSR.

¶19 Second, even assuming SCC was not subject to the FMCSR,
and regardless of whether SCC kept a Driver Qualification File, it is clear
that SCC maintained certain records for Sanchez-Valdez, including the
medical information provided with the initial disclosure statement. The
medical information was precisely the type of information Rainer sought in
her March 20 letter. Thus, regardless whether Rainer believed the FMCSR
applied to SCC, no reasonable person in Rainer’s position, conducting a
diligent investigation of her potential claims, would have failed to follow-
up on SCC’s counsel’s invitation to discuss the letter.

¶20 Third, Rainer maintains that the police report’s references to
Sanchez-Valdez’s eyesight indicated only that poor vision may have
contributed to the accident, and that the investigative lead provided by the
police report was foreclosed once Rainer learned that Sanchez-Valdez’s
vision was adequate for a Class D license. She thus argues there was no
way, short of litigation, to learn about Dr. Kurbat’s examination of Sanchez-
Valdez because the police report did not mention Dr. Kurbat or Swift or
mention that Valdez had a recent eye examination. According to Rainer, it

7
 RAINER v. SWIFT et al.
Decision of the Court

was not until SCC’s initial disclosures in June 2010—during litigation—that
she was alerted to a potential medical malpractice claim.

¶21 Again, armed with the multiple vision concerns highlighted
in the police report, if Rainer had followed-up with SCC’s counsel, she
would have discovered several key facts; that Sanchez-Valdez was recently
hired by SCC and recently had a medical examination, including an eye
examination, and that Swift provided the medical examinations for SCC
drivers. These facts provided a basis for further investigation in the effort
to connect the ‘what’ (medical malpractice and negligent hiring) with the
‘who’ (Swift and the Kurbats). And, if SCC’s counsel refused to provide the
file in response to the March 20 letter, then Rainer could have documented
that refusal as part of her investigation, and pursued other alternatives for
obtaining the records after the lawsuit was filed. To simply assume that her
17-page request for production of information would have borne no fruit,
based on the supposed inapplicability of federal regulations and the
absence of clues of an eye examination in the police report, ignores a
plaintiff’s obligation to reasonably investigate potential claims within the
statute of limitations.

¶22 Fourth, Rainer’s original complaint alleged that SCC was
liable for negligently hiring Sanchez-Valdez because he was not “qualified,
trained, or supervised” to safely operate a delivery truck and that SCC
knew or should have known that his unsafe operation of the truck could
injure other motorists. To support such a claim, we presume that Rainer
had “knowledge, information, and belief formed after reasonable inquiry”
that her claim was “well grounded in fact” and “warranted by existing
law.” Ariz. R. Civ. P. 11(a). Records that would bear on the issue of
negligent hiring would include tests, certifications, and training Sanchez-
Valdez was required to complete, and Rainer’s counsel in fact requested
those specific records in his March 20 letter to SCC. Again, no reasonable
person in Rainer’s position would have failed to follow-up on the March 20
letter, particularly in light of the negligent hiring claim against SCC, which
asserted that Sanchez-Valdez had not been properly qualified, trained, or
supervised by SCC.

¶23 Finally, Rainer failed to act in a reasonably prompt manner in
seeking pertinent information after receipt of the police report, which
alerted her to Sanchez-Valdez’s vision issues. For example, Rainer filed her
complaint against SCC and Sanchez-Valdez the day before the statute of
limitations expired, which was seventeen months after she received the
police report. When she served the complaint several months later, she did
not seek expedited disclosure or discovery. Upon exchanging initial

8
 RAINER v. SWIFT et al.
Decision of the Court

disclosures with SCC in June 2010, seven months after filing the complaint,
SCC provided its file relating to Sanchez-Valdez, which prompted Rainer
to investigate Dr. Kurbat’s medical examination records. She did not
depose Sanchez-Valdez until January 2011, and the amended complaint
was not filed until September 2011, fifteen months after receipt of SCC’s
initial disclosure statement. Rainer’s actions belie her assertion that she
diligently investigated her claims against Swift and the Kurbats.3

II. Accrual of the Statute of Limitations

¶24 In her opening brief, Rainer asserts that Sanchez-Valdez and
SCC (along with its counsel) concealed critical evidence, which delayed her
discovery of the claims against Swift and the Kurbats, thereby tolling
accrual of the statute of limitations. Rainer has waived this argument,
however, because she failed to describe any legal theory or cite any
authority supporting her suggestion. See ARCAP 13(a)(7)(A) (stating that
arguments in appellant’s opening brief must contain “contentions
concerning each issue presented for review, with supporting reasons for
each contention and with citations of legal authorities and appropriate
references to the portions of the record on which the appellant relies”).

¶25 Waiver aside, Rainer has not shown how the concealment
theory supports her position under these facts. “The wrongful concealment
sufficient to toll a statute of limitations requires a positive act by the
defendant taken for the purpose of preventing detection of the cause of
action.” Ulibarri, 178 Ariz. at 162 (citing Cooney v. Phoenix Newspapers, Inc.,
160 Ariz. 139, 141 (App. 1989); see also Jackson v. Am. Credit Bureau, Inc., 23
Ariz. App. 199 (1975)). Rainer argues SCC concealed Dr. Kurbat’s existence
and his affiliation with Swift by not disclosing the fact that it complied with
the FMCSR and maintained a Driver’s Qualification File on Sanchez-
Valdez, including his medical examination reports. Rainer asserts SCC and
its counsel withheld this information by not responding to her March 20,
2008 letter, but provides no supporting evidence.

¶26 Assuming Sanchez-Valdez’s false representation to police
was an affirmative act to conceal evidence from Rainer, his misconduct is

3 Rainer cites several cases in support of her assertion that whether a
reasonable investigation had been conducted in a particular situation is a
jury question. As explained, supra ¶ 12, we agree that claim accrual issues
are generally decided by a jury; however, that principle does not apply if
failing to investigate potential claims is not reasonably justified. See Walk,
202 Ariz. at 316, ¶ 23.

9
 RAINER v. SWIFT et al.
Decision of the Court

not imputed to Swift or the Kurbats. See Ulibarri, 178 Ariz. at 162 (positive
act by the defendant) (emphasis added). Moreover, it was Rainer’s failure to
follow-up on SCC’s offer to discuss Sanchez-Valdez’s file, not concealment
by SCC, that kept her from obtaining the file. If Rainer had done so, she
would have been alerted to the involvement of Dr. Kurbat and Swift.

¶27 Viewed in the light most favorable to Rainer, the record does
not reveal any material issue of disputed fact regarding whether she failed
to timely conduct a reasonable investigation of her claims against Swift and
the Kurbats. Thus, we agree with the trial court’s finding that her claims
are time-barred.4

CONCLUSION

¶28 Because the trial court did not err in granting summary
judgment for Swift and the Kurbats, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

4 Because we conclude that summary judgment was appropriate on
statute of limitations’ grounds, we need not address Swift’s alternative
argument that it could not be held vicariously liable for Dr. Kurbat’s alleged
negligence.

10