                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


 BRADFORD F. MARTIN and CARMEN P. MARTIN, husband and wife,
                     Plaintiffs/Appellants,

                                    v.

 VICTOR K. STAHELI M.D., and “JANE DOE” STAHELI, husband and
                wife, et al., Defendants/Appellees.

                          No. 1 CA-CV 19-0074
                            FILED 12-19-2019


           Appeal from the Superior Court in Navajo County
                       No. S0900CV201600214
                The Honorable Dale P. Nielson, Judge

                    REVERSED AND REMANDED


                               COUNSEL

McNamara Goldsmith, P.C., Tucson
By Michael F. McNamara
Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochili PLC, Phoenix
By Eileen Dennis GilBride (argued)
Co-Counsel for Defendants/Appellees Terrence Cavanaugh and White Mountain
Radiology PLLC
Kent & Wittekind PC, Phoenix
By Richard A. Kent and Callie P Maxwell
Co-Counsel for Defendants/Appellees Terrence Cavanaugh and White Mountain
Radiology PLLC

Broening Oberg Woods & Wilson, Phoenix
By James R. Broening, Megan E. Gailey, and Alice M. Jones
Counsel for Defendant/Appellee Summit Healthcare Regional Medical Center

Renaud Cook Drury Mesaros, PA, Phoenix
By William W. Drury, Jr. and Jeffrey S. Hunter
Counsel for Defendants/Appellees Victor K. Staheli, M.D., Curtis Jones, and
White Mountain Emergency Physicians PC

Wood, Smith, Henning & Berman, LLP, Phoenix
By Jodi L. Mullis and Christopher K. Heo
Counsel for Defendants/Appellees Aureus Radiology, LLC, and Jennifer Walcoff

Slutes, Sakrison & Rogers, PC, Tucson
By Kathleen M. Rogers
Counsel for Defendants/Appellees Banner University Medical Center, Tucson
Campus, LLC, Arizona Board of Regents (ABOR) dba The University of Arizona
College of Medicine, and University Medical Center Corporation


                                   Opinion

Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.


M c M U R D I E, Judge:

¶1             Carmen Martin, individually and as the executor of her late
husband Bradford Martin’s estate, appeals the superior court’s dismissal of
the complaint alleging medical negligence against several medical
professionals and their respective employers. We reverse the judgment in
favor of the defendants and hold: (1) an injured party’s death extinguishes
his or her claim for hedonic damages, but it does not extinguish the familial
consortium claims of the surviving family members; (2) the alleged medical
malpractice victim’s estate may maintain a claim for economic damages
after the victim’s death; (3) prejudice must be present before a court may
deny substitution of a decedent’s estate; and (4) the statute of limitations



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                        Opinion of the Court

does not begin to run on a minor child’s loss-of-consortium claim until the
child reaches majority.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In August 2014, Bradford Martin went to the emergency
department at Summit Healthcare Regional Medical Center after a fall. Dr.
Victor Staheli, radiologist Dr. Terrance Cavanaugh, and physician assistant
Curtis Jones treated Martin. After Dr. Cavanaugh interpreted the x-rays, the
medical providers determined Martin was “stable” and discharged him.
Three days later, Martin claimed he felt his back “drop” or “break” when
attempting to sit. He again went to Summit Healthcare, where it was
confirmed that Martin had suffered “a profound fracture at T12-L1.”

¶3           In May 2016, Martin and his wife Carmen filed this case,
alleging medical negligence against Dr. Staheli, Dr. Cavanaugh, Jones, and
Summit Healthcare Regional Medical Center. The Martins later added
White Mountain Emergency Physicians, P.C., as Dr. Staheli’s and Jones’
employer, and White Mountain Radiology, PLLC, as Dr. Cavanaugh’s.
Additional defendants Jennifer Walcoff and her employer, Aureus
Radiology, LLC, and Banner University Medical Center were later added
as defendants. We refer to all the defendants collectively as the “Medical
Providers.”

¶4            The Martins alleged that Dr. Cavanaugh’s incorrect
interpretation of the x-ray, and Dr. Staheli’s and Jones’ failure to properly
examine and treat Martin, led him to being improperly discharged without
further imaging that would have confirmed the presence of the spinal
fractures and instability that put him at risk for the serious spinal cord
injury that he later suffered. The Martins alleged that they both suffered
mental pain and suffering, including a loss of consortium, and suffered and
would continue to suffer economic damages, including medical expenses,
loss of income, and ongoing nursing home care as a result of the injuries to
Martin.

¶5           On April 4, 2018, Martin passed away suddenly after being
diagnosed with cancer the week before. His death was unrelated to the
alleged medical negligence. On April 6, 2018, Martin’s widow filed a notice
of his death. The Medical Providers then moved to dismiss the entire
complaint.

¶6           The motion to dismiss focused on the consortium claims. The
Medical Providers claimed that because Martin’s death was unrelated to
the alleged medical malpractice, “there [was] no legal basis for a wrongful


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death claim,” and that “[Martin’s] claim against these Defendants is invalid
as a matter of law because he has passed away for reasons unrelated to
medical negligence,” therefore, “any claims derivative of the medical
malpractice claim—including loss of consortium—do not survive
[Martin’s] death.” The motion did not provide a basis for dismissing the
claims for economic damages, including medical expenses, loss of income,
and Martin’s inability to live at home as a result of the injuries.
Nevertheless, the motion concluded: “Plaintiffs’ loss of consortium claim
did not survive [Martin’s] death. As such, Plaintiffs’ [Complaint] must be
dismissed.”

¶7            Martin’s widow responded to the motion to dismiss and
moved to amend the complaint to add Martin’s estate and Martin’s
children’s claims for loss of consortium. Her response noted that
“[Martin’s] claim in this case continues to be pursued on behalf of his estate
pursuant to [Arizona Revised Statutes (“A.R.S.”) section 14-3110 (“Survival
Statute”)],” and argued that a family member’s loss-of-consortium claim is
not extinguished upon the death of the injured party.

¶8             Rather than addressing the claims for economic damages, the
Medical Providers’ reply argued only about the consortium claims. They
asserted that the legislature must create a cause of action before the family
could recover premortem loss-of-consortium damages after the injured
party’s death, as it had when it enacted A.R.S. §§ 12-611 through -613 (the
“Wrongful Death Statutes”). The Medical Providers concluded: “because
there is no remaining viable loss of consortium claim for Mrs. Martin, this
case must be dismissed with prejudice.” (Emphasis added.) They also
opposed the motion to amend to add Martin’s minor children, stating that:
(1) the amendment would be futile because Martin’s children’s claims for
loss of consortium fail for the same reasons as his widow’s; (2) the statute
of limitations had expired on the children’s claims; and (3) the undue delay
would prejudice the Medical Providers. The Medical Providers did not
address the request to substitute Martin’s estate.

¶9            The court held oral argument on the various motions, and,
after taking the matter under advisement, dismissed the complaint in its
entirety. The court noted that a loss-of-consortium claim is derivative of the
injured party’s claim. The court then held that under the Survival Statute,
the claims for loss of consortium were extinguished upon Martin’s death.
Martin’s widow moved for clarification about the status of the motion to
amend and whether the court had intended to dismiss the claims for
economic damages. The court denied the motion, stating that the claims
“were derivative and since [Martin] was deceased the claims could not


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                          Opinion of the Court

survive his death” and because the motion to amend “was primarily based
on the [same] issues,” it had implicitly denied that motion as well.

¶10            Martin’s widow moved for a new trial, restating that she and
Martin’s estate had viable claims for economic damages and maintaining
that the court improperly dismissed her consortium claim. The Medical
Providers’ response ignored the economic damages argument in its
entirety, stating: “Plaintiffs’ claims of loss of consortium were extinguished
by the death of Mr. Martin from cancer. The facts and the law will not
change no matter how many times they are recited and Plaintiffs will not
be entitled to relief in this case no matter how many times they ask for it.”
The superior court denied the motion for a new trial and entered final
judgments with awards of costs to the Medical Providers.

¶11           Martin’s widow appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

                                DISCUSSION

¶12           Although the parties frame the issues differently, they can be
summed up as: (1) whether a family member’s claim for loss of consortium
arising out of an alleged tortious act that injured another family member is
extinguished upon the death of the injured family member if the death is
unrelated to the alleged wrongful act; (2) whether the superior court erred
by denying Martin’s widow’s motion to substitute Martin’s estate as a
plaintiff if Martin’s economic claims remained after his death; and
(3) whether the court abused its discretion by denying the motion to add
Martin’s children’s claims for loss of consortium after the two-year statute
of limitations period expired for Martin to bring an action for medical
negligence.

¶13            “This court will affirm a dismissal for failure to state a claim
only if the allegations of the complaint do not state a cause of action
recognized by law.” Owens v. City of Phoenix, 180 Ariz. 402, 405–06 (App.
1994). In reviewing a judgment based on the pleadings, we accept as true
the factual allegations of the complaint. Save Our Valley Ass’n v. Ariz. Corp.
Comm’n, 216 Ariz. 216, 218, ¶ 6 (App. 2007). We review de novo whether a
complaint states a claim for relief, Levine v. Haralson, Miller, Pitt, Feldman &
McAnally, P.L.C., 244 Ariz. 234, 237, ¶ 7 (App. 2018); the application of a
statute of limitations, Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996); and
the superior court’s interpretation of a statute, Watts v. Medicis Pharm. Corp.,
239 Ariz. 19, 23, ¶ 9 (2016), but we review the superior court’s denial of a
motion to amend a complaint for an abuse of discretion, Carranza v.



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                         Opinion of the Court

Madrigal, 237 Ariz. 512, 515, ¶ 13 (2015). The superior court abuses its
discretion when it misapplies the law or predicates its decision on incorrect
legal principles. Hammett v. Hammett, 1 CA-CV 18-0632 FC, 2019 WL
5556953, at *3, ¶ 13 (App. Oct. 29, 2019).

A.     The Death of an Injured Family Member Does Not Extinguish the
       Loss-of-Consortium Claim of a Surviving Family Member.

¶14            The common-law rule in Arizona is that a personal cause of
action in tort held by an injured party does not survive in favor of the
personal representative after the injured party dies. McClure v. Johnson, 50
Ariz. 76, 81 (1937) (“It is admitted that under that law a cause of action for
personal injuries or death based upon a tort did not survive the death of
either the wrongdoer or that of the person killed or injured.”); Harrison v.
Loyal Protective Life Ins. Co., 396 N.E.2d 987, 990 (Mass. 1979) (“The original
reasons for the nonsurvival of torts at common law have been largely
obscured in antiquity.”). This restriction on the survival of causes of action
was expressed in the maxim actio personalis moritur cum persona (a personal
right of action dies with the person).

¶15          Under Arizona’s Survival Statute, however, specific causes of
action may be commenced or maintained by the decedent’s estate or the
personal representative after an individual’s death. The Survival Statute
provides:

       Every cause of action, except a cause of action for damages for
       breach of promise to marry, seduction, libel, slander, separate
       maintenance, alimony, loss of consortium or invasion of the
       right of privacy, shall survive the death of the person entitled
       thereto or liable therefor, and may be asserted by or against
       the personal representative of such person, provided that
       upon the death of the person injured, damages for pain and
       suffering of such injured person shall not be allowed.

A.R.S. § 14-3110. Generally, a cause of action for economic harm can be
pursued post-mortem. See, e.g., Barragan v. Superior Court, 12 Ariz. App. 402,
404 (1970) (“In general, a survival statute provides for recovery of damages
sustained by the deceased party from the time of accident until his death.
Such damages include expenses incurred, necessitated by the injuries, in
the nature of hospital and medical expenses.”). The parties agree that the
Survival Statute does not apply to Martin’s widow or children because they
allege claims based on their damages. They also agree that Martin’s
non-economic claims are no longer viable due to his death. However, the



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                         Opinion of the Court

parties disagree about whether the familial loss-of-consortium claims
survived Martin’s death.

       1.     A Claimant Alleging Loss of Consortium Must Establish the
              Underlying Tortious Action that Caused the Injury that
              Resulted in the Loss of Consortium.

¶16            An individual may make a claim for loss of consortium
against a tortfeasor whose conduct caused the claimant to lose “society,
companionship, care, support, and affection” within a marital or
parent-child relationship. See, e.g., Howard Frank, M.D., P.C. v. Superior
Court, 150 Ariz. 228, 230 (1986) (“It is apparent . . . that the award of
consortium damages is a well-established remedy in Arizona for negligent
injury to family relations.”). “The origin of the consortium action at
common law was the right of the master to recovery for tortious injury to
his servants, since in such a case the master would suffer a loss of services
in addition to whatever loss the servant himself suffered.” Id. at 231. This
right has been extended to husbands, id., wives, City of Glendale v. Bradshaw,
108 Ariz. 582, 584 (1972), parents, Reben v. Ely, 146 Ariz. 309, 312 (App.
1985), and children, Villareal v. State, Dep’t of Transp., 160 Ariz. 474, 477
(1989). Today, an injured party’s family member may bring a separate claim
for loss of consortium. See Lohmeier v. Hammer, 214 Ariz. 57, 62, ¶ 16 (App.
2006).

¶17            Loss of consortium is a derivative claim, which means that the
success of a loss-of-consortium claim is dependent on the success of another
claim. See Barnes v. Outlaw, 192 Ariz. 283, 285–86, ¶ 8 (1998) (derivative
claim for loss of consortium necessarily requires proof of each of the
elements of the underlying cause of action). Here, the dispute is whether
the consortium claimant can maintain his or her claim for loss of consortium
when the decedent cannot claim non-economic damages. Martin’s widow’s
position is that her and the children’s loss of consortium stems from the
Medical Providers’ alleged negligence; therefore, they can recover if they
establish that the Medical Providers were negligent towards Martin, and
the negligence caused a loss of consortium with Martin from that time until
his death.




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                     MARTIN, et al. v. STAHELI, et al.
                         Opinion of the Court

¶18           The Medical Providers’ position is that a loss-of-consortium
claim is a byproduct of Martin’s pain and suffering 1 and because Martin’s
death extinguished his non-economic claims, the derivative familial
consortium claims are likewise prohibited. The Medical Providers cite to
the following cases and state that “if the law were as [Martin’s widow]
suggest[s], and ‘derivative’ meant only that a consortium claimant needs to
prove the elements of negligence towards the decedent, then the
consortium claims would have survived” in these cases. The Medical
Providers’ reliance on the cited cases is misplaced.

¶19           In Quadrone v. Pasco Petroleum Co., Inc., 156 Ariz. 415, 417
(App. 1987), the court held that a party’s recovery for loss of consortium
must be proportionally reduced by the percentage of fault attributed to the
injured party. And as an extension of that principle, in Villareal, 160 Ariz. at
481, the Arizona Supreme Court held that any defense that applies to the
injured party’s substantive claim is enforceable against the party seeking
loss of consortium.

       Both the child’s claim and the parent’s claim are based on the
       same conduct of the defendant. A child’s claim for loss of
       consortium is derivative of the parent’s claim for personal
       injuries. Defenses good against the parent will be good
       against the child, and any percentage of negligence
       attributable against the parent under Arizona’s comparative


1      At oral argument the Medical Providers maintained that familial loss
of consortium is derivative of “hedonic damages,” which are damages that
compensate the injured party for the limitations “to participate in and
derive pleasure from the normal activities of daily life, or for the
individual’s inability to pursue his [or her] talents, recreational interests,
hobbies, or avocations.” Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 39,
¶ 31 (2001) (quoting Boan v. Blackwell, 541 S.E.2d 242, 244–45 (S.C. 2001)).
Hedonic damages “compensate the individual not only for the subjective
knowledge that one can no longer enjoy all of life’s pursuits, but also for the
objective loss of the ability to engage in these activities.” Id. In their
answering brief, the Medical Providers argued that the loss of consortium
is derivative of Martin’s pain and suffering. As relevant here, there is no
distinction between the two positions because they are both non-economic
general damages, Quintero v. Rogers, 221 Ariz. 536, 539–40, ¶¶ 6–10 (App.
2009), and all parties agree Martin’s claim for non-economic damages did
not survive his death.



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                     MARTIN, et al. v. STAHELI, et al.
                         Opinion of the Court

       negligence statute will reduce the amount of the child’s
       recovery.

Id. Neither case addresses nor supports the Medical Providers’ theory that
Martin’s death prohibits loss-of-consortium claims by his surviving family
for their loss before his death.

¶20            Likewise, in Mardian Construction Co. v. Superior Court, an
injured employee’s wife brought a loss-of-consortium claim against her
husband’s employer. 157 Ariz. 103, 104 (App. 1988). We held that her
husband’s election to give up the right to sue by not rejecting the provisions
of Arizona’s Workers’ Compensation Law, A.R.S. § 23-906, was binding on
her. Id. at 106. Because Arizona’s Workers’ Compensation statutes created
an exclusive remedy for covered employees, the court concluded the
statutes evidenced “a clear legislative intent to bar any common law
right-of-action [against the employer] which might possibly flow from a
work-related injury,” including the wife’s loss-of-consortium claim. Id.

¶21           Finally, our case is distinguishable from Stengel v. Medtronic,
Inc., 306 F.R.D. 230, 232–33 (D. Ariz. 2015), where the court dismissed an
ex-wife’s loss-of-consortium claim after the injured party died and his
ex-wife, as his personal representative, failed to substitute in the action to
pursue his claims. As a result, the court dismissed the underlying
negligence claim with prejudice. Id. at 233. The court then concluded that
the ex-wife’s derivative claim, which was based on the now-dismissed
claim, “also fail[ed].” Id. Here, Martin’s widow timely moved to substitute
the estate to pursue Martin’s medical negligence action. Therefore, we
decline to opine on the propriety of the district court’s order.

¶22            The Medical Providers also cite out-of-state cases, but
“because survival statutes and the interpretation of them vary greatly from
state to state, we do not find a survey of the law in other jurisdictions
particularly enlightening in interpreting [A.R.S.] § 14-3110.” Quintero v.
Rogers, 221 Ariz. 536, 539, ¶ 5 (App. 2009).

¶23           Perhaps most notably absent from the Medical Providers’
argument, and the cases they cite, is why an individual could maintain an
action for a prior harm inflicted on the familial relationship, but no longer
maintain that same action—for the same harm, to the same relationship, for
the same time period—upon the injured party’s death. Cf. Haralson v. Fisher
Surveying, Inc., 201 Ariz. 1, 5, ¶ 16 (2001) (“There is no logical reason why
courts should allow a punitive award against a defendant who survives a
judgment, but deny it where death occurs earlier.”); Villareal, 160 Ariz. at



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                         Opinion of the Court

479 (“It would be inconsistent to allow recovery for loss of consortium
resulting from death but to deny recovery when the loss results from severe
injury.”).

¶24              The Medical Providers argued to the superior court—now
abandoned on appeal—that the Wrongful Death Statutes are evidence that
the legislature did not intend to preserve a family member’s premortem
claim for consortium loss because the Wrongful Death Statutes expressly
provide for post-mortem consortium loss. The Wrongful Death Statutes are
unrelated to the issue; that recovery for post-mortem consortium loss is
available within a wrongful-death action does not mean that a claim for
premortem consortium loss by a family member is barred in another action.
Barragan, 12 Ariz. App. at 405 (“We hold, therefore, that a claim under the
survival statute and a claim under the wrongful death statute are separate
and distinct notwithstanding they originate from the same wrongful
act. . . . The latter begins where the former ends and recovery on both is not
a double recovery for a single wrong but rather separate recoveries for
different wrongs.”).

¶25           Accordingly, the court erred by dismissing Martin’s widow’s
loss-of-consortium claim.

       2.     This Decision is Not a Change in the Law and Applying a
              Prospective Application Would Only Serve to Exempt the
              Medical Providers from Liability Under the Existing Law.

¶26           The Medical Providers urge that if we hold that a surviving
family member’s loss-of-consortium claim is not affected by the death of
the injured party, we should only apply it prospectively.

       Unless otherwise specified, Arizona appellate opinions in
       civil cases operate both retroactively and prospectively. To
       determine whether an opinion should apply only
       prospectively, we balance three factors: (1) whether we
       establish a new legal principle by overruling clear and reliable
       precedent or by deciding an issue whose resolution was not
       foreshadowed, (2) whether retroactive application would
       adversely affect the purpose behind the new rule, and
       (3) whether retroactive application would produce
       substantially inequitable results.

Cundiff v. State Farm Mut. Auto. Ins. Co., 217 Ariz. 358, 362, ¶ 18 (2008)
(quotations, alterations, and citations omitted).



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                          Opinion of the Court

¶27           The legal principle supporting our conclusion has its roots in
the common law, is consistent with our existing precedent, and is not a
departure from our current law. This decision does not expand recovery for
loss of consortium beyond what our supreme court has already prescribed.
See Bradshaw, 108 Ariz. at 584 (loss of consortium with a spouse); Villareal,
160 Ariz. at 477 (loss of consortium with a parent). Applying Cundiff, the
analysis in this opinion does not apply only prospectively. Martin’s death
indeed extinguished his non-economic claims. But the alleged tortfeasors
may not request that this court grant them an additional windfall by
denying Martin’s family members the opportunity to establish liability for
the alleged injury the familial relationships suffered from the time of the
alleged injury until his death.

B.     The Superior Court Erred by Denying the Motion to Amend the
       Complaint.

¶28           The court also erred by denying the motion to substitute
Martin’s estate as the plaintiff and add Martin’s children’s claims for loss of
consortium.

       1.     The Superior Court Erred by Denying the Substitution of
              the Plaintiff’s Estate Without the Medical Providers
              Showing Prejudice.

¶29            If a party dies after the commencement of an action,
presumptively, the superior court will order substitution of the proper
party. Ariz. R. Civ. P. 25(a)(1). The appropriate party to maintain an action
after a party’s death is “an executor, administrator, or guardian.” Ariz. R.
Civ. P. 17(b). Although a timely motion to substitute will ordinarily be
granted, the court may deny the motion if it finds “‘undue’ delay, bad faith,
dilatory motive, repeated failure to cure deficiencies by previous
amendments or undue prejudice to the opposing party,” Owen v. Superior
Court of State of Ariz., In & For Maricopa County, 133 Ariz. 75, 79 (1982), or if
circumstances have arisen rendering it unfair to allow the substitution,
Heredia v. Indus. Comm'n, 190 Ariz. 476, 478, n.1 (1997). See Ariz. R. Civ. P.
25(a), State Bar Comm. Note 1963 Amend.; see also Ariz. R. Civ. P. 25(a)(1)
(motion to substitute is timely within 90 days after service of notice of
death).

¶30          Martin’s widow timely moved to substitute Martin’s estate,
and the Medical Providers did not object. On appeal, the Medical Providers
argue that the court did not abuse its discretion by refusing to substitute




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Martin’s estate and, instead, dismissing the complaint with prejudice. The
Medical Providers argue:

      Having failed to argue the “economic damages” point in their
      motion to amend, or to explain why the estate should be
      added as a plaintiff, and having waited until the motion for
      reconsideration to raise the point, Plaintiffs waived the issue
      and deprived Defendants of an opportunity to respond.

Martin’s widow characterizes this argument as “disingenuous.” We agree
the argument lacks merit.

¶31           The issue of whether the complaint was improperly
dismissed is not “waived.” Nor was Martin’s widow required to “argue the
‘economic damages’ point” in the motion to amend. The “economic
damages point” was in the proposed complaint attached to the motion to
amend—as it had been in the previous three amended complaints. See
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008) (“Arizona
follows a notice pleading standard, the purpose of which is to ‘give the
opponent fair notice of the nature and basis of the claim and indicate
generally the type of litigation involved.’” (quoting Mackey v. Spangler, 81
Ariz. 113, 115 (1956))). Further, it is unclear what type of explanation the
Medical Providers claim they needed to understand the reason for the
substitution. Martin had died; that was the basis for the substitution.

¶32           The Medical Providers ask this court to affirm the dismissal
with prejudice of an adequately pled complaint. The Medical Providers,
however, have not provided a legal basis for their motion to dismiss the
medical negligence claim that caused Martin’s widow, as part of the marital
community, to suffer economic damages. The complaint stated, “[the]
Plaintiffs, and each of them, have suffered and will continue to suffer
economic damages, including medical expenses, loss of income, and, in
particular, an economic inability to live at home, all as a result of said
injuries to Mr. Martin.” (Emphasis added.) Nothing more was required.

¶33           The only statement in the Medical Providers’ motion to
dismiss that could be interpreted to apply to the economic claims was their
assertion that Martin’s “claim against [the Medical Providers] is invalid as
a matter of law because he has passed away for reasons unrelated to
medical negligence.” Although they have abandoned that assertion on
appeal, without it, the motion would have been groundless. The Medical
Providers opted to join White Mountain Radiology’s motion to dismiss that
was limited to the consortium claims. During argument on the motion, each



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                          Opinion of the Court

party was asked if there was anything to add, and each said no. That was a
strategy, not a deprivation of the opportunity to defend. The court erred by
dismissing the complaint; moreover, the record is void of any objection to
the substitution. Thus, the court erred by denying the motion to substitute.

       2.     The Superior Court Must Determine Whether It Would
              Cause Prejudice to Amend the Complaint to Add Martin’s
              Children’s Loss-of-Consortium Claims.

¶34            The motion to amend also sought to add Martin’s children’s
claims for loss of consortium. When an injury to a parent causes “severe
damage to the parent-child relationship[,] [t]he child may recover for the
loss of the parent’s love, affection, protection, support, services,
companionship, care, and society.” Villareal, 160 Ariz. at 481. The court
erred because it based its dismissal on the erroneous belief that the
children’s consortium claims were extinguished. See Hammett, 2019 WL
5556953, at *3, ¶ 13. The Medical Providers assert that we should affirm the
denial because the court acted within its discretion to deny the motion
because the statute of limitations expired, or because the two-year delay
caused prejudice. But the Medical Providers are incorrect concerning the
statute of limitations, and the court did not make a ruling on prejudice. See
Broadband Dynamics, LLC v. SatCom Mktg., Inc., 244 Ariz. 282, 287, ¶ 14 (App.
2018) (declining to consider an issue because it was “not addressed by the
superior court and the facts are not sufficiently developed to permit a
proper legal analysis” on appeal).

¶35             The statute of limitations does not bar Martin’s children’s
claims because the Medical Providers did not move for joinder, and each
child is still under the age of eighteen. Villareal, 160 Ariz. at 481. On appeal,
the Medical Providers argue:

       The children’s claim was also arguably barred by the statute
       of limitations. See Maes v. El Paso Orthopaedic Surgery Grp.,
       P.A., 385 S.W.3d 694, 699 (Tex. App. 2012) (parental
       consortium claim was extinguished when the statute ran on
       injured father’s claim; “Because a claim for loss of parental
       consortium is derivative in nature and owes its existence to
       the injured parent’s claim, it is subject to the same defenses
       the injured parent’s action would have been subject to.”).

After citing to this Texas case, the Medical Providers then questioned the
controlling Arizona Supreme Court case, Villareal, by claiming that it is
unclear whether Arizona would allow the plaintiffs’ minority to toll their



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                     MARTIN, et al. v. STAHELI, et al.
                         Opinion of the Court

consortium claim under the statute of limitations. As the Medical Providers
frame it, Villareal is ambiguous because it states that defendants may
require joinder of the claims by appropriate motion to the superior court,
but if joinder is not obtained, “the normal statute of limitations rules will
apply.” Villareal, 160 Ariz. at 481. The Medical Providers maintain that this
statement in Villareal “is not only dicta, but makes little sense.”

¶36           In Villareal, the court applied a new rule to allow a child to
recover for loss of consortium when a parent is severely injured. Villareal
states:

       Ordinarily, children’s minority tolls the statute of limitations.
       A.R.S. § 12-502. Minor children suffering injury may wait to
       bring an action until after they become eighteen years old, and
       the applicable statute of limitations runs from their eighteenth
       birthday. Because a child’s loss of consortium claim is
       derivative of the parent’s personal injury claim, we hold that
       defendants may require joinder of the claims by appropriate
       motion to the trial court. This will avoid duplicate litigation
       and will allow settlement or finalization of all claims resulting
       from the defendant’s conduct at the same time. If the
       defendant does not request joinder, or if joinder is not
       feasible, the normal statute of limitations rules will apply.

160 Ariz. at 481.

¶37           What the Medical Providers reference as “dicta,” this court is
required to follow as “law.” See Resolution Tr. Corp. v. Segel, 173 Ariz. 42, 44
(App. 1992) (a statement from a court expressly declaring a guide for future
conduct is considered authoritative and must be followed); City of Phoenix
v. Leroy’s Liquors Inc., 177 Ariz. 375, 378 (App. 1993) (court of appeals is
bound by decisions of the supreme court and may not “overrule, modify,
or disregard them”). Nor do we find ambiguity in the statement “the
normal statute of limitation rules will apply,” particularly when the
passage begins with the applicable rule that “children’s minority tolls the
statute of limitations.” It would make no sense to require a defendant to
move for joinder of the children or otherwise the parent’s statute of
limitation would apply. Understandably, a defendant does not want to
solicit new plaintiffs. However, if a defendant does not proactively move for
joinder of the injured party’s minor children, or if joinder is not feasible,
tolling applies, and a defendant risks defending an action years after the
alleged injury.




                                      14
                     MARTIN, et al. v. STAHELI, et al.
                         Opinion of the Court

¶38            The Medical Providers’ opportunity to object to the
substitution of the estate has passed. Upon remand, the court will enter the
substitution. However, they did object to the motion to add the children,
claiming it would cause prejudice. And, as they have pointed out, whether
to grant a motion to amend is within the sound discretion of the superior
court. See Bishop v. State, Dep’t of Corr., 172 Ariz. 472, 474 (App. 1992).
Therefore, on remand, the superior court may either grant the motion to
add the children as plaintiffs with their consortium claims, or, if the Medical
Providers can establish prejudice sufficient to prevent the amendment in
this case, the children may commence a new case—now, within two years
of each child turning 18 under A.R.S. § 12-502, or anytime in between. In
the alternative, if the Medical Providers do not want the children’s statute
of limitations to toll as Villareal dictates, they may move for joinder.

                                CONCLUSION

¶39           We reverse the judgment and remand for further proceedings
consistent with this opinion. Accordingly, upon compliance with Arizona
Rule of Civil Appellate Procedure 21, we award Martin’s widow costs as
the successful party under A.R.S. § 12-341.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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