SUPREME COURT OF ARIZONA
En Banc
ESTATE OF MADDISON ALEXIS DESELA, ) Arizona Supreme Court
a protected person, ) No. CV-10-0172-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 09-0244
)
PRESCOTT UNIFIED SCHOOL DISTRICT ) Yavapai County
NO. 1, a public entity of the ) Superior Court
State of Arizona; LOUISA NELSON, ) No. CV 20071495
an employee of Prescott Unified )
School District; TRACEY MASON )
JOHNSTON, an employee of )
Prescott Unified School District, ) O P I N I O N
)
Defendants/Appellees. )
__________________________________)
Appeal from the Superior Court in Yavapai County
The Honorable Michael R. Bluff, Judge
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
224 Ariz. 202, 228 P.3d 938 (2010)
VACATED
________________________________________________________________
JENSEN LAW FIRM, P.C. Prescott
By Christopher W. Jensen
Sean Phelan
And
KNAPP & ROBERTS, P.C. Scottsdale
By David L. Abney
Attorneys for Estate of Maddison Alexis Desela
HOLM WRIGHT HYDE & HAYS PLC Phoenix
By Matthew W. Wright
David K. Pauole
Attorneys for Prescott Unified School District No. 1,
Louisa Nelson, and Tracey Mason Johnston
JONES, SKELTON & HOCHULI P.L.C. Phoenix
By Eileen Dennis GilBride
Attorneys for Amici Curiae Arizona Counties Insurance
Pool and City of Phoenix
HUMPHREY & PETERSEN, P.C. Tucson
By Andrew J. Petersen
Attorneys for Amicus Curiae Arizona Association of
Defense Counsel
________________________________________________________________
B A L E S, Justice
¶1 The issue is whether an action to recover medical
expenses for injuries to a child is time-barred. Revising
Arizona’s common law rule, we hold that both the minor and the
minor’s parents are entitled to recover pre-majority medical
expenses, but double recovery is not permitted. Pearson &
Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 137
P.2d 381 (1943), and S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29
P.2d 151 (1934), are overruled insofar as they hold that the
right to recover belongs solely to the parents. Because the
minor’s action to recover medical expenses was timely under
Arizona Revised Statutes (“A.R.S.”) sections 12-502 and 12-821
(2010), we reverse the superior court’s judgment dismissing that
action.
I.
¶2 On November 10, 2004, Maddison DeSela, then fifteen
years old, sustained a life-threatening injury at Prescott High
School. On January 31, 2005, Maddison’s mother assigned to
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Maddison all claims for medical expenses incurred from the
accident.
¶3 On March 22, 2005, Maddison filed a notice of claim
with the Prescott Unified School District pursuant to A.R.S. §
12-821.01(A) (2010). This statute generally requires persons
having claims against public entities or employees to file pre-
litigation notices within 180 days after the claim accrues, but
minors may file such notices within 180 days after turning
eighteen. See A.R.S. § 12-821.01(D). Another statute sets a
deadline for filing a lawsuit: “All actions against any public
entity or public employee shall be brought within one year after
the cause of action accrues and not afterward.” A.R.S. § 12-
821. A minor, however, may bring such an action that accrues
during childhood within one year after turning eighteen. See
A.R.S. § 12-502 (2010) (providing that minor or person of
unsound mind “shall have the same time after removal of the
disability which is allowed to others” to file suit).
¶4 Maddison turned eighteen on December 29, 2006. About
six weeks later, a court-appointed conservator filed another
notice of claim on Maddison’s behalf. On December 31, 2007,
Maddison’s Estate filed this negligence action against the
Prescott Unified School District and several school employees
(collectively “PUSD”). This filing was within a judicial year
of Maddison’s eighteenth birthday because December 29, 2007,
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fell on a Saturday. The complaint sought damages for physical
and emotional pain, disability, lost earnings, loss of
enjoyment, and medical expenses. PUSD moved to dismiss the
action for medical expenses, arguing that the cause of action
originally belonged to Maddison’s mother and was not brought
within one year of its accrual, as required by A.R.S. § 12-821.
The superior court granted the motion to dismiss and entered
judgment under Arizona Rule of Civil Procedure 54(b).
¶5 The court of appeals reversed. Estate of DeSela v.
Prescott Unified Sch. Dist., 224 Ariz. 202, 228 P.3d 938 (App.
2010). Citing Pearson, the court noted that Arizona law has
long held that a parent is the proper party to bring an action
for medical expenses resulting from injuries to a child. Id. at
204 n.4, ¶ 8, 228 P.3d at 940 n.4. But Pearson also recognized
that a parent can assign the right of recovery to the child.
Pearson, 60 Ariz. at 364-65, 137 P.2d at 385. Here, Maddison
was expressly assigned the claim for medical expenses on January
31, 2005, or eighty-two days after the accident. The court of
appeals reasoned that the assignment triggered the tolling
provision of A.R.S. § 12-502, and this statute allowed Maddison
to bring the action for medical expenses within one year of her
eighteenth birthday. Estate of DeSela, 224 Ariz. at 205 ¶ 13,
228 P.2d at 941.
¶6 PUSD petitioned for review, arguing that the court of
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appeals erred by applying § 12-502 to toll the limitations
period for an assigned cause of action or, alternatively, by not
subtracting eighty-two days from Maddison’s one-year limitations
period to reflect the time between the accrual of the action and
its assignment. We granted review because determining the
limitations period for recovery of medical expenses resulting
from injuries to minors is an issue of statewide importance. We
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
II.
¶7 The court of appeals assumed, consistent with Pearson,
that a parent is entitled to recover medical expenses for injury
to the child, but the parent may assign the claim to the child.
Estate of DeSela, 224 Ariz. at 204 ¶ 8, 228 P.3d at 940; cf.
Webb v. Gittlen, 217 Ariz. 363, 366 ¶ 13, 174 P.3d 275, 278
(2008) (discussing assignment of causes of action). PUSD did
not dispute the validity of the assignment. The parties
understandably focused their arguments below on whether A.R.S. §
12-502 affects the running of the limitations period that would
have applied, absent the assignment, to an action by Maddison’s
mother.
¶8 Before this Court, Maddison’s Estate argued for the
first time that Pearson should be reconsidered and that the
right to recover medical expenses should belong to both the
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parent and child, provided that no double recovery may occur.
Arguments raised initially in a supplemental brief are generally
deemed waived. See Grand v. Nacchio, 225 Ariz. 171, 177 ¶ 33,
236 P.3d 398, 404 (2010). This rule, however, is a prudential
one, and “we have made exceptions to consider questions that are
of great public importance or likely to recur.” In re Leon G.,
200 Ariz. 298, 301 ¶ 8, 26 P.3d 481, 484 (2001), vacated on
other grounds, Glick v. Arizona, 535 U.S. 982 (2002). Moreover,
the court of appeals was bound by Pearson and therefore unable
to address its continued viability. Under the circumstances, we
exercise our discretion to consider the merits of the Estate’s
arguments.
¶9 Pearson, decided in 1943, stated that in cases
involving injury to a child, “the proper party to bring an
action for . . . the expenses of medical care and treatment [is]
the parent and not the [injured] child.” 60 Ariz. at 364, 137
P.2d at 385 (discussing Gerrard, 43 Ariz. at 66-67, 29 P.2d at
155). Explaining that this rule “is one intended to protect a
defendant against having to pay such expenses a second time,”
the Court refused to apply it to bar a child’s recovery of
medical expenses when a parent had sued on the child’s behalf as
guardian ad litem. Id. The Court held that, in these
circumstances, the parent was deemed as a matter of law to have
assigned the action to the child, thereby allowing recovery in
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the child’s name. Id. at 364-65, 137 P.2d at 385. The Court
further noted that recovery of medical expenses by the child
would preclude duplicate recovery by the parent. See id.
¶10 We agree that Pearson should be reconsidered insofar
as it holds that, absent an assignment, the right to recover
pre-majority medical expenses belongs to the parent and not the
child. Pearson relied on Gerrard, which held that “ordinarily
an infant suing for personal injuries cannot recover for the
impairment of his earning capacity during infancy, or for loss
of time, or for expenses in curing his injuries.” 43 Ariz. at
67, 29 P.2d at 155 (quoting 31 Corpus Juris 1114, § 252). This
rule reflected the notion that a minor’s services and earnings
“belonged to his parents,” and therefore the damages claim for
the child’s injuries also belonged to the parents. Id. at 66,
29 P.2d at 155.
¶11 The underpinnings of Pearson and Gerrard have been
eroded by the development of Arizona’s common law. Gerrard
treated the parent-child relationship in economic terms, much
like the relation between master and servant. In determining
tort liability for injuries to children, however, we have since
observed that “the common law master-servant analogy is clearly
antiquated and long overdue for judicial burial.” Howard Frank,
M.D., P.C. v. Superior Court, 150 Ariz. 228, 233, 722 P.2d 955,
960 (1986) (recognizing parents’ cause of action for loss of
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consortium with adult child). Nor does avoiding double
recovery, the only rationale identified in Pearson, justify
characterizing an action to recover medical expenses for a
minor’s injuries as belonging solely to the parents. That
concern can be addressed simply by denying double recovery for
the same expenses, as Pearson itself recognized. Cf. Villareal
v. Ariz. Dept. of Transp., 160 Ariz. 474, 479, 774 P.2d 213, 218
(1989) (recognizing child’s cause of action for loss of
consortium with parent and noting that double recovery can be
avoided by jury instructions and special verdicts).
¶12 We thus consider whether other reasons justify
retaining Pearson’s common law rule. PUSD argues that treating
a claim for medical expenses as “solely owned” by the parents
(1) provides a set time, measured by the limitations period
applicable to the parents, in which a claim for medical expenses
may be brought; (2) prompts the earlier filing of any separate
action by the child for damages other than medical payments
(such as pain, disfigurement, or disability) concurrently with
the parents’ claim for medical expenses; and (3) allows
defendants, particularly public entities, to assess their
potential liability and make budgeting decisions nearer in time
to the underlying injury.
¶13 The disadvantages of the Pearson rule outweigh the
arguments for its retention. Cf. Villareal, 160 Ariz. at 478-
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79, 774 P.2d at 217-18 (weighing arguments for and against
recognizing child’s cause of action for loss of consortium).
The benefits that PUSD attributes to the Pearson rule are
tenuous. Injured children are entitled, independent of any
assignment from their parents, to recover various damages, such
as long-term disability, pain and suffering, and post-majority
medical expenses. Thus, Pearson does not generally afford
defendants certainty as to the amount of their liability or the
timing of claims resulting from injuries to minors.
¶14 Although the Pearson rule may encourage the bringing
of claims for medical expenses within the parents’ limitation
period, it does so at the cost of promoting piecemeal
litigation, at least in the absence of an effective assignment.
Cf. State ex rel. Packard v. Perry, 655 S.E.2d 548, 560 (W. Va.
2007) (“It is, frankly, absurd that two separate actions for a
child's medical expenses (pre-and post-majority) now arise from
the same allegedly tortious conduct.”). It also poses a
potential trap for the unwary that can insulate defendants from
liability for the child’s medical expenses for reasons unrelated
to the defendant’s fault. Cf. Lopez v. Cole, 214 Ariz. 536,
539-40 ¶ 20, 155 P.3d 1060, 1063-64 (App. 2007) (barring minor’s
recovery of medical expenses when parents had not consented to
assignment). And insofar as the Pearson rule prompts minors to
file actions for other damages earlier and concurrently with a
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parent’s claim for pre-majority medical expenses, this result is
in tension with the legislative policy expressed in A.R.S. § 12-
502 (generally providing that the limitations period for actions
by minors does not begin to run until they turn eighteen), and
A.R.S. § 12-821.01(D) (allowing minors to file notices of claims
within 180 days after turning eighteen).
¶15 Because the common law should adapt when circumstances
make it no longer just or consistent with sound policy, see
Villareal, 160 Ariz. at 477, 774 P.2d at 216, we hold that the
right to recover pre-majority medical expenses belongs to both
the injured minor and the parents, but double recovery is not
permitted. Several other state courts have reached a similar
conclusion. See, e.g., White v. Moreno Valley Unified Sch.
Dist., 226 Cal. Rptr. 742, 745-46 (Ct. App. 1986); Scott Cnty.
Sch. Dist. 1 v. Asher, 324 N.E.2d 496, 499 (Ind. 1975); Boley v.
Knowles, 905 S.W.2d 86, 88-90 (Mo. 1995); Lopez v. Sw. Cmty.
Health Servs., 833 P.2d 1183, 1191-93 (N.M. Ct. App. 1992);
Perry, 655 S.E.2d at 560-61.
¶16 Under today’s holding, the superior court erred in
dismissing the Estate’s action seeking recovery of medical
expenses. Maddison, through her Estate, brought this action
within one judicial year after she turned eighteen, and the
action was thus timely under A.R.S. §§ 12-502 and 12-821.
Because Maddison was entitled to bring the claim in her own
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right, independent of any assignment, we need not address the
application of A.R.S. § 12-502 to other actions that are
assigned to a minor.
III.
¶17 Pearson and Gerrard are overruled insofar as they
conflict with this opinion. We vacate the opinion of the court
of appeals, reverse the superior court’s judgment, and remand
this case to the superior court for further proceedings.
_____________________________________
W. Scott Bales, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Michael D. Ryan, Justice (Retired)
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