Arizona Court of Appeals:  Your Sum Isn’t Certain

In Yahweh v. City of Phoenix, No. 1 CA-CV 16-0270, __ WL __ (Ariz. App. July 11, 2017), the court held that A.R.S. § 12-821.01’s sum-certain requirement requires a claimant to include in a notice of claim “a particular and certain amount of money that, if agreed to by the government entity, will settle the claim.”  “Simply reciting the amount a claimant will demand in a complaint is insufficient to satisfy § 12-821.01, because such a statement does not express a willingness to accept a specific sum in settlement.”

In Yahweh, a former city employee delivered a notice of claim letter to the city, alleging defamation and violations of the Family Medical Leave Act.  His notice of claim stated:

“The Claimant will be bringing legal action against the Phoenix Police Department and the City of Phoenix seeking damages for 1.5 million dollars, as the Claimant planned to earn for the next ten years and these were his projected earnings. He is suing for defamation of his character in the public, as the PSB report is a public record, and among his peers, and it has affected his earning potential to obtain employment. He will also be bringing action for violations of the Family Medical Leave Act. In order to obtain an agreeable resolution to this matter, contact his lawyer Jess Lorona Esq., promptly.” (Emphasis added).

The court held that, although the notice stated Yahweh would sue for $1.5 million for loss of projected earnings, it made no mention of the amount of damages he would seek for his FMLA claim, nor was there any indication “demonstrating a willingness to settle all claims against the City for any stated amount.”  Instead, the notice “merely informed the City of the amount Yahweh intended to demand in litigation, not a sum-certain settlement offer. There were no words of intent in the NOC granting the City the power to settle all of Yahweh’s claims for a particular and certain amount of money.”

The court further held that the notice’s instruction to “contact his lawyer” to “obtain an agreeable resolution to this matter” was still not a valid offer because it did not show an “intent to be bound” by a settlement offer.”  Rather, it was an “invitation to bargain for a yet-undefined settlement amount.”  Finally, the court rejected Yahweh’s argument that the city could have cured the deficiency had it requested clarification: “[p]ublic entities in Arizona are not duty-bound to assist claimants with statutory compliance.”

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