Janson on Behalf of Janson v. Christensen

• Decision Date: 05 April 1991
• Docket Number: No. CV-90-0077-CQ,CV-90-0077-CQ
• Citation: 167 Ariz. 470,808 P.2d 1222
• Parties: Patti and Robert JANSON, on behalf of their incompetent son, Robert JANSON, Jr., Plaintiffs, v. Fred K. CHRISTENSEN, M.D., and Robert J. Dunn, M.D., Defendants.
• Court: Arizona Supreme Court

Page 1222

808 P.2d 1222

167 Ariz. 470

Patti and Robert JANSON, on behalf of their incompetent son, Robert JANSON, Jr., Plaintiffs, v. Fred K. CHRISTENSEN, M.D., and Robert J. Dunn, M.D., Defendants.

No. CV-90-0077-CQ.

Supreme Court of Arizona, In Banc.

April 5, 1991.

John P. Moran, P.C. by John P. Moran, Phoenix, for plaintiffs.

Snell & Wilmer by Laura J. Janzik, Courtney Paige Odishaw, Phoenix, for defendants.

CORCORAN, Justice.

Pursuant to rule 27(a), Rules of the Arizona Supreme Court, the United States District Court for the District of Arizona has certified to this court the following question of law:

Does A.R.S. § 12-504, commonly referred to as Arizona's saving statute, apply to the refiling of an action after the statute of limitations has expired, when the original action was terminated before the expiration of the limitations period?

Because this question is an issue of first impression in this state and could be determinative of the action before the district court, we accept jurisdiction pursuant to Ariz. Const. art. 6, § 5(6), A.R.S. § 12-1861, and rule 27(b). ¹ In response to the district court's question, we conclude that the saving statute, by its language, applies to an action that is timely filed and then terminated for one of the enumerated reasons, regardless of whether termination occurs before or after the limitations period has expired.

Facts

On August 16, 1985, after sustaining injuries in a one-car accident, Robert Janson Jr. was admitted to Scottsdale Memorial Hospital (Hospital), where he was treated by Drs. Christensen and Dunn (doctors) and where, on September 18, 1985, Dr. Christensen removed a subdural accumulation from his brain. Janson was a patient at the Hospital for approximately two months. Since November 1985, however, he has been confined in various nursing homes and rehabilitation centers in Pennsylvania and Ohio.

On their son's behalf, Janson's parents sued the doctors in United States District Court, claiming that they had negligently treated Janson. The suit, which was filed in Phoenix on May 21, 1987, was dismissed without prejudice on February 8, 1988, due to insufficiency of process. The Jansons then filed a new complaint in district court on March 29, 1988. Because the two-year statute of limitations on their medical malpractice action had expired before the date of refiling, however, the Jansons invoked A.R.S. § 12-504, Arizona's saving statute.

The doctors moved to dismiss the second suit, arguing that the saving statute applies only when the previous action is terminated after the statute of limitations has run. Under this interpretation, the Jansons could not invoke the statute because their first suit was dismissed before the limitations period had expired, and therefore, without the aid of the statute, their second suit was barred.

The district court concluded, however, that the saving statute was sufficiently ambiguous to prevent it from ruling on the motion to dismiss. It therefore certified to this court the question of whether the statute applies to the refiling of an action after the statute of limitations has expired when the original action was terminated before the expiration of the limitations period.

Discussion

1. The Saving Statute's Language

Arizona's saving statute provides in part:

If an action is commenced within the time limited for the action, and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits, the plaintiff, or a successor or personal representative, may commence a new action for the same cause after the expiration of the time so limited and within six months after such termination.

A.R.S. § 12-504(A).

The district court has asked us to construe the scope and meaning of this provision. In doing so, we follow fundamental principles of statutory construction, the cornerstone of which is the rule that the best and most reliable index of a statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute's construction. See Juvenile Appeal 74802-2, 164 Ariz. 25, 33, 790 P.2d 723, 731 (1990); State v. Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985). Therefore, if we find no ambiguity in the statute's language, we must give effect to that language and we may not employ other rules of construction to interpret the provision. See Balestrieri v. Hartford Accident & Indem. Ins. Co., 112 Ariz. 160, 163, 540 P.2d 126, 129 (1975); Board of Accountancy v. Keebler, 115 Ariz. 239, 240, 564 P.2d 928, 929 (App.1977).

We believe that the language of the saving statute is clear and that we need look no further to answer the district court's certified question. The statute lists two prerequisites to a litigant's right to refile: (1) that "an action is commenced within the time limited for the action," and (2) that "the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution or a final judgment on the merits." ² The Jansons filed their first action in district court on May 21, 1987, well within the two-year statutory period for medical malpractice actions. See A.R.S. § 12-542(1). Thus, the first requirement is satisfied. The district court dismissed the action without prejudice due to insufficiency of process, which is not one of the prohibited forms of termination. Thus, the second requirement is also satisfied.

Under the saving statute, therefore, the Jansons were allowed to commence a new action for the same cause (1) after the expiration of the limitations period and (2) within 6 months after the termination of their first case. The district court found that the Jansons' limitations period expired in late February 1988. Their first action was terminated on February 8, 1988. They refiled on March 29, 1988--after the statute of limitations had expired and within 6 months of the termination of the first action. Having fulfilled the statute's requirements, the Jansons' second action is saved.

2. The Doctors' Interpretation

Despite the statute's simplicity, however, the doctors argue that the provision applies only when the first action is terminated after the expiration of the statute of limitations. We disagree. We find no support for that argument in the statute's language, which provides only that a litigant may commence the second action after the limitations period has expired, not that the first action be terminated after that time. In essence, the doctors are attempting to amend the statute so that the phrase "after the expiration of the time so limited" refers to the termination of the first action, rather than the commencement of the second. They would have the statute read as follows:

If an action is commenced within the time limited for the action, and the action is terminated after the expiration of the time so limited ..., the plaintiff ... may commence a new action for the same cause within six months after such termination.

We must read the statute, however, to give it a fair and sensible meaning. See State v. Garza Rodriguez, 164 Ariz. 107, 112, 791 P.2d 633, 638 (1990). We note that the saving statutes of some jurisdictions expressly require that the limitations period expire during the pendency of the first suit before a party may refile under the statute. See, e.g., Kan.Stat.Ann. § 60-518 (1983) ("If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff ... may commence a new action within six (6) months after such failure.") (emphasis added); Ohio Rev.Code Ann. § 2305.19 (1981) ("In an action commenced, ... if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff ... may commence a new action within one year after such date.") (emphasis added). Arizona's saving statute, however, simply has no similar express restriction, and we cannot graft one on to the provision. Nor do we believe that such a restriction would be appropriate.

The doctors' interpretation of the saving statute would result in severe and arbitrary application of the provision, a result that we believe countermands the statute's obvious remedial purpose. See Templer v. Zele, 166 Ariz. 390, 391, 803 P.2d 111, 112 (App.1990) ("[T]he [saving] statute is broadly worded and we must assume, unless and until the legislature informs us otherwise, that it is worded broadly to ensure its remedial purpose.") For example, assume Plaintiff A and Plaintiff B both have causes of action with statutes of limitations expiring on the same day. Both plaintiffs file timely actions and both actions are dismissed for insufficiency of process. By fate, however, A's suit is terminated the day before the limitations period expires; B's suit is terminated the day after the period expires. Under the doctors' interpretation, although A and B are separated only by the vagaries of fortune, only B can rely on the saving statute to refile, because her suit was terminated after the limitations period had expired.

In his text The Statutes of Limitation Saving Statutes, William Ferguson addressed the shortcomings of the approach advocated by the doctors:

The obvious purpose of the saving statute is that where defendant has...