Peters v. M & O Const., Inc.

• Decision Date: 11 May 1978
• Docket Number: No. 1,CA-CIV,1
• Citation: 119 Ariz. 34,579 P.2d 72
• Parties: Charles P. PETERS and Deanna G. Peters, husband and wife, Appellants, v. M & O CONSTRUCTION, INC., an Arizona Corporation; and Ponderosa Homes, a division of Kaiser-Aetna, a partnership, Appellees. 3628.
• Court: Arizona Court of Appeals

Page 72

579 P.2d 72

119 Ariz. 34

Charles P. PETERS and Deanna G. Peters, husband and wife, Appellants, v. M & O CONSTRUCTION, INC., an Arizona Corporation; and Ponderosa Homes, a division of Kaiser-Aetna, a partnership, Appellees.

No. 1 CA-CIV 3628.

Court of Appeals of Arizona,Division 1,Department B.

May 11, 1978.

Robert A. L'Ecuyer, Phoenix, Michael E. St. George, Tempe, for appellants

Jennings, Strouss & Salmon, Stephen A. Myers, Phoenix, for appellees.

OPINION

OGG, Judge.

The issues raised in this appeal are whether the trial court erred in 1) denying a motion to enlarge the time for service of an amended complaint and alias summonses; 2) granting a motion to abate the summonses; and 3) dismissing the cause of action with prejudice because the statute of limitations had run.

On August 29, 1973, plaintiff/appellant Charles P. Peters was injured while acting in the scope of his employment. He retained a lawyer to represent him in both the workmen's compensation proceeding and a civil action against any potential third parties. This appeal concerns only the third party action.

ARS § 23-1023 provides that any third party claim arising out of an injury covered by workmen's compensation must be instituted within one year of the injury or the right to maintain that action shall pass to the insurance carrier. See, Martinez v. Bucyrus-Erie Co., 113 Ariz. 119, 547 P.2d 473 (1976). In accordance with that statute, plaintiff filed a complaint against defendants M & O Construction and Ponderosa Homes on August 28, 1974. The record does not indicate, however, that the summonses were ever issued. As a result, after the expiration of one year, the superior court placed the action on the inactive calendar and scheduled it for involuntary dismissal unless the issues were joined and a certificate of readiness was filed by November 19, 1975. Instead of joining the issues, plaintiff filed an amended complaint and alias summonses on October 29, 1975. Service was made on October 29 and 30.

Defendants filed a timely motion to abate the alias summonses and dismiss the cause of action because the summonses were not served within one year of the original complaint as required by 16 ARS Rules of Civil Procedure, rule 6(f). Plaintiff responded by moving for an enlargement of time for service pursuant to rule 6(b). There was a hearing on the motions, after which the trial court ruled that the summonses were not served in accordance with rule 6 and there was no excusable neglect or good cause justifying enlargement of the required time limitations. The court, therefore, denied the motion for enlargement and granted the motion for abatement of the summonses. The court also found the applicable statute of limitation for third party personal injury claims was two years, as expressed in ARS § 12-542, and it had expired. Consequently, the court dismissed the cause of action with prejudice. From these rulings plaintiff now appeals.

Plaintiff first argues that the trial court erred in granting defendants' motion of abatement and denying plaintiff's motion for enlargement. The abatement statute provides that an action will abate if the summons is not issued and served within one year of the filing of the complaint. The trial court has discretion, however, to extend this period for good cause. Van Campen v. Upjohn Co., 19 Ariz.App. 81, 504 P.2d 1304 (1973). Similarly, the enlargement statute provides that it is within the discretion of the trial court to extend the time for service of the summons if the failure of the service was the result of excusable neglect. The primary question for this court's determination is whether the trial court abused its discretion in making its rulings on the motions.

It is well established law in Arizona that appellate courts will not disturb the exercise of discretion of the trial court if it is supported by any reasonable evidence. Eldridge v. Jagger, 83 Ariz. 150, 317 P.2d 942 (1957). It is plaintiff's position that there was no such evidence presented supporting the trial court's determination that good cause and excusable neglect did not exist for relieving the plaintiff of the time requirements of rule 6. Plaintiff claims the standard to be applied in making this determination is the reasonable man test and under the circumstances presented he satisfied that standard. Specifically, plaintiff alleges 1) within one year of his injury he filed the original complaint against defendants to prevent his right of action from being transferred to the insurance carrier pursuant to ARS § 23-1023; 2) no further action was taken on this complaint because plaintiff first wanted to determine the liability of the insurance carrier; and 3) it was during this delay that the one year period to serve the summonses expired. Plaintiff concludes that since defendants knew the facts concerning the carrier's liability from the beginning, their strategy was to lull plaintiff into believing the workmen's compensation claim was about to be settled and this deception resulted in the delay in issuing the summonses.

Defendants argue, and we agree, that there is nothing in the record which shows the defendants induced the plaintiff not to effect service or led him to believe that liability was not in dispute and settlement was imminent. Moreover, there were well established alternatives available to plaintiff to preserve his claim without violating the requirements of rule 6(f). Even if the injury was not stationary and the amount of liability not fixed, the plaintiff could have 1) served the summonses within one year of injury, thereby preserving his right to maintain the cause of action before it was assigned to the insurance carrier; or 2) negotiated with the carrier for an assignment back of the cause of action, thereby permitting the filing of a lawsuit in the name of the injured party...