How a Typo Can Bar Your Claim Against the Government

By Joseph Kanefield, Eric H. Spencer, Cole Craghan, and Lilly Geiler

A police dog bites an innocent bystander. The victim files his notice of claim, as required by Arizona law, but lists the settlement amount as “one hundred thousand dollars ($250,000).” That seemingly innocuous typo surely could not be enough to kill the bystander’s claims, right? That typo worked its way up to Arizona’s highest court, which in turn reminded the public in Terborg v. Payson just how unforgiving procedural requirements can be for those with claims against the government.

The Notice of Claim Requirement

Under Arizona law, before suing a public entity, like a city or school district for money damages, a potential plaintiff must deliver a notice of claim to the entity. This notice must include (1) sufficient facts to enable the public entity to understand the basis on which liability is claimed, (2) a specific amount for which the claim can be settled, and (3) facts supporting the settlement amount. Although these requirements may seem straightforward, mistakes are common. In deciding the sufficiency of notices of claim, courts have historically required strict compliance with statutory requirements.

The Terborg case addressed the settlement amount requirement. In that case, a Payson Police Department K-9 bit an innocent bystander. The bystander served the City with a notice of claim that offered to settle his claim for “one hundred thousand dollars ($250,000).” Although the notice inadvertently stated two different numbers, the plaintiff argued he had offered to settle his claims for $100,000 based on common sense and contract interpretation principles. The Court disagreed, finding the City could not tell from the face of the notice whether the plaintiff would settle his claims for $100,000 or $250,000. Because the plaintiff failed to serve a compliant notice of claim within the required timeframe, he was prohibited from proceeding with his lawsuit.

Arizona Supreme Court Reinforces “Strict Compliance”

The plaintiff in Terborg asked the Court to depart from precedent requiring “strict compliance” and adopt a more forgiving “substantial compliance” standard, which would allow individuals to proceed with their claims as long as they reasonably satisfied notice of claim requirements. The Court declined to do so. The statute unequivocally requires a “specific” amount, and the Court reasoned that requiring strict compliance — including a sum certain settlement amount — enables public entities to effectively investigate and evaluate liability within a short timeframe. Although it could be argued those harmed by the government should not have to face harsh technical obstacles to pursuing a valid claim, the Court observed that it is up to the Arizona Legislature to make that policy decision and, if appropriate, amend the notice of claim statute.

The Bottom Line

For anyone considering a claim against a public entity in Arizona, the lesson is clear: every detail matters. A notice of claim must be timely served, properly delivered, and meticulously drafted. A single misstep, like a missed deadline or ambiguous settlement offer, can close the courthouse doors forever. The government has no obligation to contact you seeking clarification about what settlement figure was intended in the notice of claim. Thus, those injured by the government should seek legal counsel to ensure notice of claim requirements are properly satisfied.