Kenyon v. Hammer

HAYS, Justice,

specially concurring:

I concur in the result reached by the majority but my reasoning is less convoluted and perhaps more simplistic than that in the majority opinion. In essence, it is my *88opinion that the right to bring an action in Arizona is, under our constitution, a fundamental right. Ariz. Const, art. 18, § 6. A statute of limitations or repose which abrogates an action for damages even before the action arises or can reasonably be discovered is unconstitutional.

This court, in Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977), found a portion of the Medical Malpractice Act requiring a bond, A.R.S. § 12-567(K), to be unconstitutional because it placed a heavy burden on access to the courts and violated the privilege and immunities clause of the Arizona Constitution. Although the article of the constitution cited applies to equal privileges and immunities (art. 2, § 13), the parallel is apparent.

I concur with the majority’s holding that the three-year statute of limitations of A.R.S. § 12-564 will remain in effect except that the courts of this state shall follow the discovery rule as set out in Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971).