Opinion
No. 1 CA-CV 18-0335
12-12-2019
RODNEY D. OLIVIER, Plaintiff/Appellant, v. CORRECTIONAL HEALTHCARE COMPANIES, INC., et al., Defendants/Appellees.
COUNSEL Ahwatukee Legal Office, P.C., Phoenix By David L. Abney Counsel for Plaintiff/Appellant Dickinson Wright, P.L.L.C., Phoenix By Denise H. Troy Counsel for Defendant/Appellee Correctional Healthcare Companies, Inc. Sanders & Parks, P.C., Phoenix By Garrick L. Gallagher, John C. Quinn Counsel for Defendant/Appellee Management and Training Corporation.
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CV201700236
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
COUNSEL Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant Dickinson Wright, P.L.L.C., Phoenix
By Denise H. Troy
Counsel for Defendant/Appellee Correctional Healthcare Companies, Inc. Sanders & Parks, P.C., Phoenix
By Garrick L. Gallagher, John C. Quinn
Counsel for Defendant/Appellee Management and Training Corporation.
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined. JONES, Judge:
¶1 Rodney Olivier challenges the superior court's dismissal of his breach of contract claims against Correctional Healthcare Companies, Inc. (CHC) and Management & Training Corporation (MTC). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 While incarcerated, Olivier filed a complaint seeking damages arising out of the misdiagnosis and mistreatment of scabies he suffered while an inmate in the Arizona state prison system between 2012 and 2014. Olivier alleged CHC and MTC breached contracts with the Arizona Department of Corrections (ADOC), which obligated CHC to "provide adequate, necessary, and comprehensive health care to Inmates" and MTC to "operate the Arizona State Prison Complex-Kingman." He alleged he was entitled to enforce both agreements as a third-party beneficiary to the contracts.
Olivier also sought relief for state constitutional violations and negligence of other defendants, but he does not appeal the dismissal of those claims.
¶3 The superior court dismissed Olivier's contract claims against CHC and MTC finding they sounded in tort because "the duties allegedly breached are imposed by law and would exist 'but for' the contract" and were therefore time-barred under Arizona Revised Statutes (A.R.S.) § 12-542 (setting a two-year limitations period for claims alleging "injuries done to the person of another"). Olivier timely appealed the final judgment. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
Absent material changes from the relevant date, we cite the current version of rules and statutes.
DISCUSSION
¶4 Olivier argues the superior court erred in dismissing his breach of contract claims against CHC and MTC. "We review de novo a trial court's dismissal based on its application of a statute of limitations." Andrews ex rel. Woodard v. Eddie's Place, Inc., 199 Ariz. 240, 241, ¶ 1 (App. 2000) (citing Weekly v. City of Mesa, 181 Ariz. 159, 162-63 (App. 1994)).
¶5 Olivier does not dispute that the events giving rise to his claim occurred more than two years before he filed his complaint but appears to suggest the trial court incorrectly applied the two-year statute of limitations for tort claims rather than the longer, six-year statute of limitations for breach of contract claims. Compare A.R.S. § 12-542 (personal injury), with A.R.S. § 12-548(A)(1) (contract in writing). But the label Olivier places on his claims is not conclusive. See Thomas v. Goudreault, 163 Ariz. 159, 163-64 (App. 1989) ("In determining whether a tort or contract claim has been pled, the court must look to the substance of the allegations, not the labels attached to them.") (citing McClure v. Johnson, 50 Ariz. 76, 86 (1937)). "To determine whether contract or tort law applies in a specific case, the court must consider the facts of the case, bearing in mind the purposes of tort law recovery as contrasted with contract law." John Munic Enters., Inc. v. Laos, 235 Ariz. 12, 16, ¶ 10 (App. 2014) (quotation omitted). "Contract remedies are designed to redress loss of the benefit of the bargain." Id. (quoting Arrow Leasing Corp. v. Cummins Ariz. Diesel, Inc., 136 Ariz. 444, 447 (App. 1983)). In contrast, "[t]he basic policy in the law of torts is to deter tortious conduct and provide compensation for the injured victim." Gordon v. Kramer, 124 Ariz. 442, 445 (App. 1979); see also Flagstaff Affordable Hous. Ltd. P'ship v. Design All, Inc., 223 Ariz. 320, 325, ¶¶ 25-27 (2010).
¶6 Here, Olivier alleged each company owed him a legal duty of care while carrying out its contractual obligations, and thereafter breached those duties. Specifically, Olivier alleged his medical condition was initially "misdiagnosed . . . as a fungal infection," that he suffered a "severe adverse reaction" to the anti-fungal medication he was prescribed, and after months of "ineffective treatment," a CHC or MTC physician took an improper biopsy that further delayed treatment. Olivier alleged he was not properly diagnosed or treated for scabies for more than a year, "caus[ing] unrest with the other inmates," as well as serious pain, permanent scarring, and "extreme mental anguish and emotional distress." The complaint clearly states a claim for damages for personal injury stemming from medical negligence, not economic losses stemming from a breach of contract.
¶7 Although Olivier identified certain duties imposed upon CHC and MTC via its contracts with ADOC, this does not convert his claim for personal injuries into a contract claim. "When the duty breached is one implied by law based on the relationship of the parties, the claim sounds fundamentally in tort, not contract. . . . The test is whether the defendant would have a duty of care under the circumstances even in the absence of a contract." See Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 15-16, ¶ 27 (App. 2000); see also Thomas, 163 Ariz. at 163-64. The existence and breach of the duty of care, not the alleged agreements with ADOC, are the foundation of Olivier's claims and would exist even in the absence of a contract. See Ramsey, 198 Ariz. at 16, ¶ 28 (concluding a pilot "owes a legal duty of care to many people" notwithstanding the terms of a contract between the parties); Diggs v. Ariz. Cardiologists, Ltd., 198 Ariz. 198, 201, ¶ 14 (App. 2000) ("Although an express contractual physician-patient relationship clearly gives rise to a duty to the patient, the absence of such a relationship does not necessarily exclude a duty to the patient."). The trial court correctly applied the two-year limitations period of A.R.S. § 12-542(1), and we find no error.
Olivier argues, for the first time in his reply brief, that Kain v. Arizona Copper Co., 14 Ariz. 566 (1913), supports his contention that his claims sound in contract. An issue raised for the first time in a reply brief is waived. Summers v. Gloor, 239 Ariz. 222, 227, ¶ 20 n.6 (App. 2016) (citing Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007), and Muchesko v. Muchesko, 191 Ariz. 265, 268 (App. 1997)). Moreover, it is not clear that Kain — decided more than a hundred years ago — continues to be relevant outside its specific facts. In Kain, the plaintiff sought enforcement of a specific provision in his employment contract with a mining company whereby the plaintiff paid valuable consideration in exchange for the company's agreement to provide competent medical care at company-owned hospitals. 14 Ariz. at 567-69. Here, however, Olivier brings claims directly against the service providers, who owe a general duty of care under the law. See Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 523 (1987) (holding a claim against a professional sounds in tort unless the duty allegedly breached "would not exist 'but for' the contract").
Because we conclude Olivier's claims against CHC and MTC sound in tort and exist independently of their contracts with ADOC, we need not and do not address whether Olivier was a third-party beneficiary of the agreements. --------
¶8 Finally, Olivier requests, for the first time in his reply brief on appeal, leave to amend his complaint. But "a party cannot argue on appeal legal issues and arguments that have not been specifically presented to the trial court." Sobol v. Marsh, 212 Ariz. 301, 303, ¶ 7 (App. 2006).
CONCLUSION
¶9 The superior court's order dismissing Olivier's claims against CHC and MTC is affirmed.