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Torts-- Liability for Minor's Medical Expenses/SOL/NOC

Desela v. Prescott Unified School Dist,. 606 Ariz. Adv. Rep. 18 (January 18, 2011) (J. Bales )
BOTH PARENTS AND MINOR MAY RECOVER MEDICAL EXPENSES OF MINOR BUT NO DOUBLE RECOVERY IS ALLOWED AND MINOR'S NOTICE OF CLAIM AND STATUTE OF LIMITATIONS DEADLINES FOR SEEKING SUCH DAMAGES ARE TOLLED UNTIL MINOR REACHES MAJORITY

The plaintiff was 15 years old when she sustained a life threatening injury at Prescott High School. While a notice of claim was filed within 180 days of the injury the minor plaintiff filed another one within 180 days of turning 18 and filed suit within a year of her 18th birthday. Eighty one days after the accident she received an assignment of her parents' claim for her medical expenses while a minor. The trial court granted defendant's motion to dismiss the plaintiff's claim for medical expenses finding that claim belonged to the parents and accrued on the date of the accident and therefore suit had to be filed within a year of the accident to recover them. The court of appeals reversed and the Arizona Supreme Court affirmed the court of appeals.

First the supreme court overruled 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) holding that medical expenses of a minor are recoverable damages by the minor's parents and by the minor herself provided there is no double recovery. Next the court found that the minor's right to recover these damages does not require an assignment from the parents since the right to these damages rests with the minor and the parents when incurred and even before the minor reaches majority. Pearson and Gerrard, were based upon old common law principles that treated the child as an economic asset of the parents similar to the relationship of master and servant. In practice the rule in these cases encourages piecemeal litigation, suit for pre-majority medical expenses and later post-majority expense, is a potential trap for the unwary allowing defendants to escape responsibility for damages they cause without regard to their fault and in conflict with ARS sec. 12-502 & 12-821.01 (D) which expressly toll the time for filing a lawsuit and notice of claim until a minor reaches majority.

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