Wyckoff v. Mogollon Health Alliance

FILED BY CLERK
IN THE COURT OF APPEALS AUG 22 2013
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
SUSAN WYCKOFF, )
)
Plaintiff/Appellant, ) 2 CA-CV 2012-0152
) DEPARTMENT B
v. )
) OPINION
MOGOLLON HEALTH ALLIANCE, )
a foreign corporation, )
)
Defendant/Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY
Cause No. CV201000376
Honorable Gary V. Scales, Judge Pro Tempore
Honorable Christopher P. Staring, Judge
AFFIRMED
Watters & Watters, P.L.L.C.
By Andrea E. Watters Tucson
Attorneys for Plaintiff/Appellant
Law Offices of Mary Brooksby, PLLC
By Don Stevens Phoenix
Attorneys for Defendant/Appellee
E C K E R S T R O M, Judge.
¶1 Plaintiff Susan Wyckoff appeals from the trial court’s grant of summary
judgment in favor of defendant Mogollon Health Alliance. For the following reasons, we
affirm.
Factual and Procedural Background
¶2 In reviewing a trial court’s grant of summary judgment, we view the facts
and reasonable inferences therefrom in the light most favorable to the losing party. See
Acosta v. Phx. Indem. Ins. Co., 214 Ariz. 380, ¶ 2, 153 P.3d 401, 402 (App. 2007).
Wyckoff was employed by a hospital owned by Mogollon Health Alliance (Mogollon)
when she noticed water leaks in her office “staining the walls and causing an offensive
odor.” Throughout the time of her employment, Wyckoff recognized a pattern of illness:
she would gradually become more and more ill as the workweek progressed, feel “very
ill” by Friday, but would then feel better by Sunday, “only to start the illness cycle all
over again come Monday.” Wyckoff moved to another office within the same building,
but her health did not improve. After the move, she noticed “a black substance she
believed to be mold” throughout the building. Wyckoff and other employees complained
about the mold problem. She also conducted an air quality test within her office and
provided the results to her employer as proof that the environment was unsafe.
Wyckoff’s health problems worsened, and she eventually left her employment at the
hospital on February 1, 2008.1
1
In what appears to be a typographical error and repeated oversight, Wyckoff
mistakenly claims she retired in February 2006.
2
¶3 Wyckoff filed a complaint in Pima County against Mogollon, alleging
premises liability and negligence. Mogollon did not file an answer in a timely manner,
and the court entered a default judgment against Mogollon in the amount of $650,000.
Mogollon filed a motion to set aside the default judgment, which the court granted. The
court also granted Mogollon’s motion to transfer the case to Gila County. Mogollon then
filed a motion for summary judgment in Gila County, claiming Wyckoff’s action was
barred by the statute of limitations. The court granted Mogollon’s motion. On appeal,
Wyckoff contends the court erred in setting aside the default judgment and in granting
Mogollon’s motion for summary judgment.
Jurisdiction
¶4 As a threshold matter, Mogollon posits that this court lacks jurisdiction to
consider the order vacating the default judgment. Under A.R.S. § 12-2101(A)(2), this
court has jurisdiction to hear an appeal “[f]rom any special order made after final
judgment.” Although this does not include an order setting aside an entry of default, it
does generally include an order setting aside a default judgment. Sanders v. Cobble, 154
Ariz. 474, 475-76, 744 P.2d 1, 2-3 (1987). However, the order setting aside the default
judgment in this case was not signed and did not concern all parties, and it was therefore
not appealable under § 12-2101(A)(2). See Ariz. R. Civ. P. 54(a), (b), 58(a).
Nonetheless, “an appealable judgment . . . brings before us all the orders from which . . .
separate appeals could not be taken.” Miller v. Ariz. Bank, 45 Ariz. 297, 303, 43 P.2d
518, 521 (1935); see A.R.S. § 12-2102(A) (appellate review from “final judgment”
includes “intermediate orders involving the merits of the action and . . . all orders and
3
rulings assigned as error”). Therefore, because we have jurisdiction to consider the trial
court’s grant of summary judgment under § 12-2101(A)(1), we likewise have jurisdiction
to consider all issues related to this judgment that were not separately appealable,
including the order vacating the initial default judgment.
Abatement
¶5 Mogollon also argues that Wyckoff’s failure to serve her complaint in a
timely manner caused her action to abate. Abatement is an affirmative defense that must
be raised below, otherwise it is waived. Snow v. Steele, 121 Ariz. 82, 86, 588 P.2d 824,
828 (1978); see Schwartz v. Ariz. Primary Care Physicians, 192 Ariz. 290, 295, 964 P.2d
491, 496 (App. 1998) (recognizing 1991 rule changes “did not eliminate the doctrine of
abatement” but “simply shortened the time limit for service”). Because Mogollon has
raised this claim for the first time on appeal, and because the trial court did not dismiss
the action against Mogollon due to untimely service, see Ariz. R. Civ. P. 4(i), we do not
consider the argument further. Owens v. City of Phoenix, 180 Ariz. 402, 407 n.8, 884
P.2d 1100, 1105 n.8 (App. 1994).
Default Judgment
¶6 Wyckoff asserts the court erred in granting Mogollon’s motion to set aside
the default judgment. We review a trial court’s order vacating a default judgment for an
abuse of discretion. See BYS Inc. v. Smoudi, 228 Ariz. 573, ¶ 14, 269 P.3d 1197, 1201
(App. 2012). She claims the court erred in finding the judgment was void, rather than
voidable, and that Mogollon had not met its burden of showing the judgment should be
vacated under Rule 55(c) and Rule 60(c), Ariz. R. Civ. P. However, Wyckoff never
4
argued to the trial court that the judgment was voidable, rather than void. She has
therefore waived this argument on appeal. See Dawson v. Withycombe, 216 Ariz. 84,
¶ 64, 163 P.3d 1034, 1055 (App. 2007).2
Statute of Limitations
¶7 Wyckoff next contends the trial court erred in finding her claims time
barred. “In reviewing the granting of summary judgment on statute of limitations
grounds, . . . [w]e must determine de novo whether there are any genuine issues of
material fact and whether the trial court erred in applying the law.” Logerquist v.
Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996).
¶8 A cause of action based on a personal injury must be brought within two
years after the cause of action accrues. A.R.S. § 12-542(1). “The purpose of the statute
of limitations is to ‘protect defendants and courts from stale claims where plaintiffs have
slept on their rights.’” Doe v. Roe, 191 Ariz. 313, ¶ 29, 955 P.2d 951, 960 (1998),
quoting Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590,
898 P.2d 964, 968 (1995). Statutes of limitations are premised on two foundations: First,
that a person who has a valid claim will promptly “‘attempt to enforce a demand,’” and
second, that after too much time has passed, “‘by loss of evidence from death of some
witnesses, and the imperfect recollection of others, or the destruction of documents, it
might be impossible to establish the truth.’” Mayer v. Good Samaritan Hosp., 14 Ariz.
2
Because Wyckoff’s remaining arguments challenging the trial court’s order
setting aside the default judgment are premised on her contention that the court erred in
concluding the judgment was void, we do not address them.
5
Ohio App. 248, 251, 482 P.2d 497, 500 (1971), quoting Riddlesbarger v. Hartford Ins. Co., 74
U.S. 386, 390 (1868).
¶9 However, in some situations, a plaintiff may be injured in a way that is
difficult for her to discover within the period of limitations. Id. at 251-52, 482 P.2d at
500-01. Acknowledging that a plaintiff “cannot maintain an action before she knows she
has one,” Arizona courts have adopted the discovery rule. Id. at 252, 482 P.2d at 501.
Under that rule, “a cause of action accrues ‘when the plaintiff knew or by the exercise of
reasonable diligence should have known of the defendants’ conduct.’” Logerquist, 188
Ariz. at 19, 932 P.2d at 284, quoting Mayer, 14 Ariz. App. at 252, 482 P.2d at 501. In
other words, the statute begins to run not from the moment of the defendant’s injurious
conduct, but when a claimant knows or should know she has been injured and when she
likewise “knows or with reasonable diligence should know the facts underlying the
cause.” Doe, 191 Ariz. 313, ¶ 29, 955 P.2d at 960. Arizona follows the discovery rule in
cases of personal injury resulting from exposure to toxic substances. See Burns v.
Jaquays Mining Corp., 156 Ariz. 375, 378, 752 P.2d 28, 31 (App. 1987). The plaintiff
has the burden of establishing that the discovery rule should apply to delay the statute of
limitations. Logerquist, 188 Ariz. at 19, 932 P.2d at 284.
¶10 Arizona courts have not addressed the issue of the discovery rule in the
specific context of toxic mold exposure. However, in reviewing cases from other
jurisdictions, a general rule emerges: The cause of action begins to accrue when the
claimant experiences physical signs and symptoms of illness, knows that she has been
exposed to mold, and knows that mold may present a health hazard. See, e.g., Graveline
6
v. Select Comfort Retail Corp., 871 F. Supp. 2d 1033, 1038 (E.D. Cal. 2012) (statute
began to run when plaintiff discovered mold in mattress); Doherty v. Admiral’s Flagship
Condo. Trust, 951 N.E.2d 936, 941-42 (Mass. App. Ct. 2011) (statute began to run when
plaintiff received report of hazardous mold in her condominium); Marcinkowski v.
Castle, 870 N.Y.S.2d 206, 207 (App. Div. 2008) (statute began to run when plaintiff
began to experience health issues from previously discovered mold); Pirtle v. Kahn, 177
S.W.3d 567, 573-74 (Tex. App. 2005) (statute began to run when plaintiff discovered
mold in her apartment and inferred connection to her health problems).
¶11 We find Gerke v. Romero, 237 P.3d 111 (N.M. Ct. App. 2010), particularly
instructive. In that case, a tenant began experiencing symptoms shortly after moving into
a rental home. Id. at 116. The tenant eventually moved out of the home, and, at the time
of the move, “was suffering from a host of symptoms, knew that there was mold in the
home, believed that the mold was causing his symptoms, and had been informed by the
[Environmental Protection Agency] that mold could indeed be dangerous to humans.” Id.
The court held that the date the tenant moved out was the latest possible date the accrual
period could have begun, id., even though he did not receive a “formal medical
diagnosis” until nearly three years later. Id. at 115.
¶12 Here, although Wyckoff does not provide specific dates for the events
leading up to her leaving employment at the hospital, they must have occurred before
February 1, 2008, when she retired. At that point, Wyckoff was experiencing physical
illness. She knew her illness grew worse as the workweek progressed and improved over
the weekend, which she concedes gave her cause to suspect a condition at her workplace
7
was causing her illness. She had observed that “a black substance she believed to be
mold was pervasive in her office,” and she reported to her employer that this issue was
causing her to experience health problems. Wyckoff even conducted a petri-dish test of
the air in her office, and, although she does not specify precisely what was found, the
results were sufficient for her to “advise [her employer] that the workplace was unsafe.”
¶13 Like the plaintiff in Gerke, Wyckoff was experiencing physical symptoms,
aware of the presence of mold, knew that mold was dangerous, and suspected that the
mold could be the cause of her illness. 237 P.3d at 116. Because these events all
occurred before February 1, 2008, Wyckoff’s cause of action accrued at some point
before that date. Wyckoff did not file her complaint until February 1, 2010, more than
two years after accrual began.
¶14 Wyckoff emphasizes that, notwithstanding her suspicions regarding the
cause of her illness, her treating physicians during her employment and after her
retirement persistently declined to diagnose her ailments as having been caused by
exposure to mold. To support this argument she presents medical reports from her
treating physicians dated October and November 2006 (during her employment), March,
April, and May of 2009 (more than a year after she asserts she “medically retired”), and
August of 2009 (when she first received a diagnosis connecting her ailments to mold
toxicity). If, hypothetically, these documents revealed that Wyckoff had presented her
suspicions of mold toxicity to her physician in 2006 and had received a contradictory
diagnosis, those facts might cause us to postpone the date of accrual. Accrual begins
when a person knows, or with reasonable diligence should have known, the cause of her
8
injury, Doe, 191 Ariz. 313, ¶ 29, 955 P.2d at 960, and we would not hold that reasonable
diligence requires a lay person to ignore the opinion of a trained medical expert.
¶15 However, the documents do not reflect, and Wyckoff does not allege, that
she presented her suspicions regarding the mold to a medical professional before her
retirement. The first mention of mold in any of Wyckoff’s medical records is dated
April 13, 2009, more than one year after Wyckoff’s retirement. Wyckoff’s own affidavit
states that when her primary care doctor “was made aware of [her] problems, . . . [he]
was not able to determine whether or not they were caused by the mold,” and he referred
her to a specialist for further consultation. Moreover, at no point was Wyckoff ever
definitively advised that her health problems were unrelated to the mold exposure. To
the contrary, the record suggests that once she raised the issue to her physician in April of
2009, he eventually referred her to a specialist who confirmed mold toxicity as the cause
of her ailments. Accordingly, when viewed in the light most favorable to Wyckoff, the
record before the trial court does not support the inference that contradictory medical
opinion overrode her initial belief about the cause of her injury. Rather, the record
suggests that, once she sought a medical opinion to confirm those suspicions, she
eventually received that confirmation, albeit after several months had passed.3
3
Wyckoff does not argue the statute of limitations should be tolled for the period
between when she first saw her primary care physician, who could not confirm that
suspicion, and when she received the diagnosis of mold toxicity, and therefore we do not
consider it. See Van Loan v. Van Loan, 116 Ariz. 272, 274, 569 P.2d 214, 216 (1977)
(“[F]ailure to raise an issue either at the trial level or in briefs on appeal constitutes a
waiver of the issue.”).
9
¶16 The trial court therefore did not err in granting summary judgment in favor
of Mogollon based on the statute of limitations.
Disposition
¶17 For the foregoing reasons, the judgment of the trial court is affirmed.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
10