Failure to proofread his claim costs Arizona man in court

In a unanimous decision, the Arizona Supreme Court has thrown out the lawsuit Joseph Terborg filed against the town of Payson. The reason: His notice of claim contained two different amounts for which he said he would settle his case.

That means Payson is off the legal and financial hook for an incident in which a police dog owned by the town, instead of going after a suspect, injured Terborg. That isn’t fair and doesn’t follow the law, contends attorney David Abney, who represented Terborg after the town denied his claim.

According to court records, the police dog, named Corso, was chasing a suspect when it instead attacked Terborg, who had come out of the house he uses as a home and office for his Mobile 1 RV Service.

"I'm standing outside, a guy hit a pole,'' Terborg told Capitol Media Services. "A cop shows up, lets the dog out without a leash, orders it to attack the guy. And the dog runs around the guy and turns and gets me instead.''

Terborg said the four minutes the dog was on him resulted in him having to get $110,000 of medical treatments, including surgery.

Arizona law says before anyone may sue a government entity, they must file a "notice of claim'' within 180 days, spelling out the basis for seeking funds and "a specific amount for which the claim can be settled.''

In this case, that notice filed by Terborg's original attorney — not identified in the court records here — said his client would settle for "one hundred thousand dollars ($250,000).'' When the town did not respond within 60 days, he filed suit.

But the town, citing the two different figures, got a trial judge to rule that Terborg had not complied with the requirements for the notice of claim, meaning he had no right to sue in the first place.

The Court of Appeals disagreed, citing a provision of contract law saying that when there is a conflict, "words prevail over numbers.'' The appellate judges said Terborg indicated he was open to "negotiate a fair settlement.''

But the Arizona Supreme Court said none of that matters.

Chief Justice Ann Scott Timmer, writing for the court, said the purpose of the notice of claim is to allow a government entity — in this case, Payson — to investigate the claim, assess its liability, consider a settlement and budget for future litigation.

"The officer must either state a specific amount or supply a basis that lets the public entity calculate that amount,'' Timmer wrote. "A specific amount is precisely that. A claimant cannot satisfy this requirement by providing two amounts or otherwise providing an imprecise figure, any more than he could satisfy it by providing none at all.''

Terborg said this "technical error'' in the notice of claim should not bar his ability to get his medical bills paid by Payson. And, if nothing else, he said the town should have contacted him and asked him to correct this "obvious typographical error.''

Timmer was unpersuaded.

"Although a public entity may ask a claimant to clarify a claim or provide additional information, there is nothing in (the law on claims) that requires it do so,'' she wrote. "Our case law has clearly held that public entities in Arizona are not duty-bound to assist claimants with statutory compliance.''

But Abney told Capitol Media Services there are references elsewhere in Arizona law about what happens when there are such conflicts.

When people write out checks, they contain both an amount written in the form of dollars and cents as well as the amount spelled out in writing. The Uniform Commercial Code says a written-out number takes precedence over a numerical figure if there’s a conflict between the two.

Another state law spells out that "statutes shall be liberally construed to effect their objects and to promote justice.''

Abney acknowledged that lawmakers are free to create specific exemptions that require laws to be strictly interpreted.

There are such laws. For example, legislators have decided that initiative and referendum petitions seeking to enact new laws or repeal those approved by lawmakers must be in strict compliance. Many petition drives have been voided because of that.

But Abney said it is the court, not the Legislature, that has decided strict compliance applies to notices of claim.

Timmer, however, said the court's ruling is justified.

She said requiring strict compliance with the notice of claim statute "can serve a statute's purpose and promote justice as defined by the Legislature.'' And in this case, Timmer said, the law requires a notice to state "a specific amount for which the claim can be settled.''

Nor does she think strict compliance would create injustice or that the requirements can serve as a “trap for the unwary.''

"They are easy to satisfy: a claimant need only state one certain, unequivocal amount and provide a factual basis,'' Timmer said.

She said if state lawmakers want to ease the requirements, it is up to them and not the courts.

Terborg said he did get a cash settlement from the original attorney who represented him, which he said compensates him for the mistake.