dissenting.
I disagree with the majority’s conclusion that the claim letter in this case stated a sum certain. As this court has previously held, if a claim is to meet the requirements of A.R.S. section 12-821, it must include an amount for which the claimant will settle. See Dassinger v. Oden, 124 Ariz. 551, 553, 606 P.2d 41, 43 (App.1979); State v. Brooks, 23 Ariz.App. 463, 467, 534 P.2d 271, 275 (1975). Hollingsworth’s claim letter was fatally flawed because it simply cannot be construed as stating that he would be satisfied to settle for $125,000.
The majority seems to confuse “exactness” of damages with “certainty” of the amount for which a claimant is willing to settle. No one suggests that Hollings-worth, as a tort plaintiff, was required to file a claim that anticipated the precise amount of damages that he would be able to prove at trial. Nevertheless, he was required to file a claim that stated, with certainty, the amount for which the city could settle its potential liability. Instead, the claim letter clearly conveyed the message that, nearly a year after his cause of action accrued, Hollingsworth was unable either to demand, or to respond to an offer to settle for, a sum certain. I refer specifically to the third paragraph of the letter:
At present, it would not be practical to demand or offer a sum certain to compensate Mr. Hollingsworth for the physical and emotional pain he has been subjected to by those charged with our safety and protection. However, an educated estimate, of not less than $125,-000.00 would be conservative given the aggravated nature of the officer’s conduct.
(Emphasis added.)
The majority, however, has failed even to consider the impact of the above disclaimer, focussing instead upon the effect of the qualifying words, “not less than.” In this respect, I believe that the majority’s reliance on cases under the Federal Tort Claims Act is misplaced. Those cases do not support the majority’s holding that a claim letter satisfies the sum certain requirement of our claims statute as long as it includes “a reasonable estimate of what the claim is worth.” See majority decision, supra, at 465, 793 P.2d at 1132. The amount claimed need not be reasonable, it need only be certain.
In Martinez, for example, the court held that a claim was in “reasonable compliance” with the FTCA’s sum certain requirement even though the amount prayed for was “in excess of $100,000.” Unlike Arizona law, however, the FTCA provides the rationale for striking such surplus language as “in excess of,” “presently,” or “approximately.” Under the FTCA, the sum certain stated in an administrative claim sets a cap on the amount that may be recovered in any judicial action involving the same injury unless “the increased amount is based upon newly discovered evidence” or the claimant alleges and proves “intervening facts.” 28 U.S.C. § 2675(b); see also Erxleben, 668 F.2d at 271, 273; Martinez, 728 F.2d at 697 n. 6. No such limitation on recovery results from the filing of an administrative claim under Arizona law.
Having stated my disagreement with the majority’s analysis, I also wish to call attention to an issue that neither party has seen fit to mention either in the trial court or on appeal. Under the plain language of A.R.S. section 12-821(A), it appears that this cause of action should not have been dismissed. The majority, having no need to reach an issue not raised, has not quoted the portion of the statute to which I refer:
Persons who have claims against a public entity or public employee shall file such claims in the same manner as that pre*468scribed in the Arizona Rules of Civil Procedure, Rule 4(D) within twelve months after the cause of action accrues. Any claim which is not filed within twelve months after the cause of action accrues is barred and no action may be maintained except upon a showing of excusable neglect if the action is brought within the otherwise applicable period of limitations, provided that if there is no excusable neglect, and if the absence of excusable neglect is because of the conduct of the claimant’s attorney, then the action shall proceed, and the public entity and public employee shall have a right of indemnity against the claimant’s attorney for any liability assessed in the action.
I first note that, contrary to the position taken by the city in its motion to dismiss, failure to comply with the claims statute does not deprive the trial court of subject matter jurisdiction. See Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990); see also City of Tucson v. Fleischman, 152 Ariz. 269, 272, 731 P.2d 634, 637 (App.1986) (failure to timely file notice warrants dismissal only where failure was due to claimant’s conduct, and conduct was not “excusable”).
In the instant case, assuming that the claim letter was inadequate in that it failed to state a sum certain, either the defect is the product of “excusable neglect,” or the negligence, if inexcusable, must be attributed to Hollingsworth’s attorney. Accordingly, the action should have been allowed to proceed, and the city would have had a claim against the attorney for indemnification. However, as Division 2 of this court recognized in Fleischman, the potential for an indemnity order against counsel creates an obvious conflict of interest. Perhaps such a conflict caused counsel in this case to overlook the surest argument against dismissal of his client’s complaint.
Based solely upon the arguments presented to both the trial court and this .court, I would affirm.