                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


         MILENA WALLACE, a single woman, Plaintiff/Appellant,

                                          v.

  MICHAEL MOFFATT and JANE DOE MOFFATT, husband and wife;
  STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a
             foreign corporation, Defendants/Appellees.

                              No. 1 CA-CV 13-0231
                               FILED 4-1-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-000625
               The Honorable Arthur T. Anderson, Judge

                       VACATED AND REMANDED


                                    COUNSEL

The Law Offices of Ho & Greene, P.L.L.C., Phoenix
By David D. Greene
Counsel for Plaintiff/Appellant

DeCiancio Robbins, PLC, Tempe
By Joel DeCiancio, Christopher Robbins
Counsel for Defendant/Appellee
                      WALLACE v. MOFFATT et al.
                        Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1            Plaintiff Milena Wallace timely appeals from a judgment in
favor of defendants Michael and Jane Doe Moffatt and State Farm Mutual
Automobile Insurance Company (Defendants). Because Defendants failed
to show as a matter of law that Wallace’s claims were time barred on the
limited record presented in a motion for judgment on the pleadings, the
judgment is vacated and this matter is remanded for further proceedings.

               FACTS 1 AND PROCEDURAL HISTORY

¶2             In October 2004, Wallace was driving Grace Stika’s car when
a car driven by Connie Helgeson crashed into Wallace and injured her
knee. According to her complaint, after the accident, Wallace has
undergone extensive treatment. At the time of the October 2004 accident,
both Wallace and Stika had State Farm car insurance purchased through
State Farm agent Moffatt. Wallace’s policy had an underinsured coverage
limit of $25,000; Stika’s policy had no underinsured coverage.

¶3          At some later date apparently before October 2008, Wallace
sued Helgeson for injuries resulting from the October 2004 accident. In
April 2008, State Farm informed Wallace that she had $25,000 in
underinsured coverage and that Stika had no underinsured coverage.
Although Helgeson apparently had $100,000 in insurance coverage,
Wallace settled her claim against Helgeson in October 2008 for
approximately $60,000.

¶4          In April 2010, Wallace sued Defendants in superior court
making allegations similar to those in this case. That April 2010 case


1In reviewing the grant of a motion for judgment on the pleadings, this
court accepts as true the well-pled factual allegations of the complaint.
Shaw v. CTVT Motors, Inc., 232 Ariz. 30, 31, ¶ 8, 300 P.3d 907, 908 (App.
2013) (citation omitted).



                                    2
                       WALLACE v. MOFFATT et al.
                         Decision of the Court

apparently was dismissed without prejudice for lack of prosecution in
March 2011.

¶5           In May 2011, Wallace underwent “a total knee replacement
surgery necessitated by the October [] 2004 accident,” incurring $90,000 in
related expenses. Wallace alleges “[p]rior medical intervention did not
reduce [her] pain, suffering and disability associated with her knee
complaints.” The record reveals no other information about Wallace’s
recovery from or progress regarding her October 2004 knee injury.

¶6             In January 2012, Wallace filed this case against Defendants
alleging two counts: (1) her surgery in May 2011 entitled her to
underinsured coverage benefits and (2) negligence in selling her
inadequate insurance. After answering, defendants moved for judgment
on the pleadings arguing Wallace’s claims, which they characterized as
“insurance agent malpractice claim[s],” were barred by the two-year
limitations period in Arizona Revised Statutes (A.R.S.) section 12-542(1)
(2014). 2 In opposition, Wallace argued her claims accrued in May 2011, as
“only then could [Wallace] have known that the adverse driver’s liability
insurance was insufficient to cover her injuries.” Wallace argued count 1
was governed by a three-year limitations period and was subject to a
discovery rule, meaning the claim was timely. Wallace argued count 2 was
a contract claim subject to a six-year limitations period and was timely,
citing Ins. Co. of N. Am. v. Superior Court, 166 Ariz. 82, 86, 800 P.2d 585, 589
(1990).

¶7            The superior court granted Defendants’ motion for
judgment on the pleadings. Although not specifying a date when
Wallace’s claims accrued, for count 1, the court applied A.R.S. § 12-555(B)
and found Wallace’s “May 2011 discovery date simply is not credible,”
citing her April 2010 suit and the allegation that she had “‘undergone
extensive treatment’ since the October 2004 accident.” 3 The court found

2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.

3 Defendants’ reply brief attached materials outside of the pleadings that
the superior court then relied upon. Wallace did not object to those
materials and the superior court did not convert the motion into a motion
for summary judgment by referencing those materials. Cf. Strategic Dev. &
Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64, ¶13, 226 P.3d
1046, 1050 (App. 2010) (noting “a Rule 12(b)(6) motion that presents a



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                       WALLACE v. MOFFATT et al.
                         Decision of the Court

Wallace had not “borne her burden of proving tolling from the date of the
accident,” meaning count 1 was time barred. Construing count 2 as
alleging “insurance producer malpractice,” the court found the two-year
limitations period under A.R.S. § 12-542(1) applied. Finding count 2
accrued “no later than April 2008,” when State Farm informed Wallace
that she had $25,000 in underinsured coverage, the court found count 2
was time barred.

¶8           Wallace timely appealed from the resulting judgment. This
court has jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

                               DISCUSSION

¶9             A motion for judgment on the pleadings pursuant to
Arizona Rule of Civil Procedure 12(c) tests whether the complaint states a
claim upon which relief may be granted. Giles v. Hill Lewis Marce, 195 Ariz.
358, 359, ¶ 2, 988 P.2d 143, 144 (App. 1999). If a complaint alleges sufficient
facts, or combined with the answer the pleadings raise an issue of material
fact, a motion for judgment on the pleadings should be denied. See AFL-
CIO, Council 97 v. Lewis, 165 Ariz. 149, 151, 797 P.2d 6, 8 (App. 1990). In
addressing a motion for judgment on the pleadings, any allegations in the
answer are deemed denied. Ariz. R. Civ. P. 8(d). The focus is on the
allegations in the complaint, not what might be shown later during
discovery, in a motion for summary judgment or at trial. This court
reviews de novo a superior court’s grant of a motion for judgment on the
pleadings. Shaw v. CTVT Motors, Inc., 232 Ariz. 30, 31, ¶ 8, 300 P.3d 907,
908 (App. 2013) (citation omitted).

I.     Disputed Issues Of Material Fact Preclude Entry Of Judgment On
       The Pleadings For Count 1.

¶10            Defendants argue count 1 is time barred under A.R.S. § 12-
555(B) because Wallace “did not give written notice to State Farm of a
potential [underinsured motorist] claim until more than three years after”
the October 2004 accident. In making this argument, however, Defendants
rely on a statute that was not enacted until two years after the accident.

¶11           Focusing on the law in effect at the time of the accident,
A.R.S. § 12-555(B) (2004) -- relied on by Defendants -- addressed when an

document that is a matter of public record need not be treated as a motion
for summary judgment”).



                                      4
                      WALLACE v. MOFFATT et al.
                        Decision of the Court

insurer could bring a subrogation action under A.R.S. § 20-259.01, an issue
not relevant here. Instead, A.R.S § 12-555(A) (2004) provided the relevant
limitations period and stated, in part:

             An insurer is not liable for . . . underinsured
             motorist coverage benefits unless the person
             making the claim gives notice to the insurer in
             writing of the person’s intent to pursue the
             claim against the . . . underinsured motorist
             portion of a motor vehicle insurance policy
             within three years after the person knows or should
             know that the party that the person claims caused
             the harm . . . has insufficient liability insurance to
             cover the person’s injuries.

A.R.S. § 12-555(A) (2004) (emphasis added). It is possible that Wallace
knew or “should have known” of the need for underinsurance benefits for
her May 2011 knee surgery prior to May 2008, which would make her
claim time barred. On this limited record, however, it is also possible that
Wallace did not know and may not be properly held to the “should have
known” standard until a date within the three-year limitations period,
which would make her claim timely. For example, using as an accrual
date either May 2011 (when she had her knee surgery) or April 2010
(when she filed the suit that was dismissed without prejudice), count 1
would not be time barred under a three-year limitations period. Based on
the limited record regarding Wallace’s knowledge and medical condition
during the years leading up to her May 2011 knee surgery, and the limited
factual inquiry applicable in addressing a Rule 12(c) motion, it cannot be
said that Wallace’s claim is time barred as a matter of law based on the
pleadings. Accordingly, in addressing defendants’ Rule 12(c) motion,
Count 1 was not time barred as a matter of law under A.R.S. § 12-555(A)
(2004). 4




4  Defendants argue that amendments to A.R.S. § 12-555(B), effective
September 21, 2006, set the applicable standard. The Legislature, however,
made plain that those amendments “appl[y] only to losses that occur on or
after the effective date” of the amendments. Laws 2006, Ch. 107, § 2; see
also A.R.S. § 1-244 (“No statute is retroactive unless expressly declared
therein.”). Accordingly, those amendments do not apply here.




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                      WALLACE v. MOFFATT et al.
                        Decision of the Court

II.    Disputed Issues Of Material Fact Preclude Entry Of Judgment On
       The Pleadings For Count 2.

¶12           The superior court found the two-year limitations period in
A.R.S. § 12-542(1) applies to count 2, a finding not challenged by Wallace
on appeal. Accordingly, the issue is whether the court erred in granting
Defendants’ motion for judgment on the pleadings that count 2 is barred
by a two-year limitations period. See Best v. Edwards, 217 Ariz. 497, 504 n.7,
¶ 28, 176 P.3d 695, 702 n.7 (App. 2008) (noting that failure to argue a claim
in the opening brief on appeal constitutes waiver of that claim). 5

¶13           In applying this two-year limitations period, as noted above,
Wallace claims that she did not know there was insufficient liability
insurance to cover her injuries until May 2011, when she had her knee
surgery. Even if Wallace knew there was insufficient liability insurance to
cover her injuries when she filed the April 2010 suit later dismissed
without prejudice, Wallace filed this case within two years of that April
2010 filing. Again noting the narrow inquiry of a motion for judgment on
the pleadings, which is limited to the allegations in the pleadings,
Defendants have not shown that count 2 is time barred as a matter of law.

¶14           In vacating and remanding, this court expresses no view on
the factual merit of Wallace’s claims or Defendants’ limitations defenses.
Instead, recognizing the limited factual nature of a motion for judgment
on the pleadings, the court vacates and remands because the current
record leaves unresolvable as a matter of law when Wallace knew or
should have known of her need for surgery that ultimately occurred in
May 2011 and/or when she knew or should have known that Helgeson’s
liability coverage was inadequate to cover her injuries incurred in the
October 2004 accident. This court leaves issues of what Wallace knew or
should have known for resolution on remand, be it through discovery,
subsequent motion practice or trial.




5 By failing to challenge on appeal the superior court’s ruling that Wallace
could not assert a claim based on Moffatt’s alleged failure to offer
adequate underinsured coverage to Stika, Wallace also waived that
argument. See Best, 217 Ariz. at 504 n.7, ¶ 28, 176 P.3d at 702 n.7; see also
Napier v. Bertram, 191 Ariz. 238, 242-44, ¶¶ 13-19, 954 P.2d 1389, 1393-95
(1998) (absent special relationship, insurance agent owes no duty to non-
client).



                                      6
                     WALLACE v. MOFFATT et al.
                       Decision of the Court

                            CONCLUSION

¶15           Because Defendants failed to demonstrate that Wallace’s
claims are time barred as a matter of law based on the allegations in the
pleadings, the judgment reflecting the grant of Defendants’ motion for
judgment on the pleadings is vacated and this matter is remanded for
further proceedings. Because Defendants were not the prevailing parties
on appeal, their request for an award of attorneys’ fees on appeal
pursuant to A.R.S. § 12-341.01(A) is denied. Wallace is awarded her costs
on appeal upon her compliance with Arizona Rule of Civil Appellate
Procedure 21.




                                  :MJT




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