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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JANEL RAINER, wrongful death statutory beneficiary, for and on behalf 

of herself and survivors of her husband, 

decedent CHRISTOPHER RAINER,

Plaintiff/Appellant,

v.

SWIFT TRANSPORTATION COMPANY OF ARIZONA, LLC, et al.,

JAMES M. KURBAT, M.D. and MARGARET ELLEN KURBAT, Husband 

and Wife1,

Defendants/Appellees.

No. 1 CA-CV 15-0080

Appeal from the Superior Court in Maricopa County

Nos. CV2009-032279, CV2011-015216 (Consolidated)

The Honorable Lisa Daniel Flores, Judge

AFFIRMED

COUNSEL

Treon & Shook, P.L.L.C., Phoenix

By Daniel B. Treon

Counsel for Plaintiff/Appellant

 

1 On the court’s own motion, it is ordered amending the caption in 

this appeal as reflected in this decision. The above referenced caption shall 

be used on all further documents filed in this appeal. 
2

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Phillip H. Stanfield, Jonathan P. Barnes and Jason P. Kasting

Counsel for Defendant/Appellee Swift Transportation Company of Arizona, LLC

Bonnett Fairbourn Friedman & Balint, PC, Phoenix

By William G. Fairbourn, Jonathan S. Wallack and Laura Van Buren

Counsel for Defendant/Appellee James M. Kurbat, M.D.

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge Maurice Portley joined.

B R O W N, Presiding Judge:

¶1 Janel Rainer (“Rainer”) appeals the trial court’s order granting

summary judgment in favor of Swift Transportation Co. of Arizona, LLC. 

(“Swift”) and James M. Kurbat, M.D. and Margaret Ellen Kurbat 

(collectively “the Kurbats”), based on Rainer’s failure to sue Swift and the 

Kurbats within the applicable statute of limitations. For the following 

reasons, we affirm.

BACKGROUND

¶2 On October 24, 2007, Rainer’s husband, Christopher 

(“decedent”), died from injuries suffered after his car collided with a 

delivery truck owned by Swift Charities for Children (“SCC”) and driven 

by its recently-hired employee, Juan Sanchez-Valdez (“Sanchez-Valdez”). 

On March 20, 2008, Rainer’s counsel sent SCC a certified 17-page letter 

referencing the accident and requesting, inter alia, that SCC preserve and 

produce all of the documents listed in the letter, including SanchezValdez’s “Driver’s Qualification File” and “Personnel File.” In pertinent 

part, the letter requested (1) all medical examinations, drug tests and 

certification of medical examinations; and (2) any and all completed 

applications for employment; all actual driver’s motor carrier road and 

written tests administered; all road and written test certificates, regardless 

of the date; and all past employment inquiries sent to or secured from 

former employers along with all responses received. The letter also 

referenced the Federal Motor Carrier Safety Regulations (“FMCSR”), 

stating that the FMCSR required SCC to maintain a Driver’s Qualification 

File for each driver. 
RAINER v. SWIFT et al.

Decision of the Court

3

¶3 On March 31, 2008, SCC’s counsel acknowledged receipt of 

the letter, stating that he would like to speak to Rainer’s counsel about the 

letter at his “earliest convenience,” and that if it would be “more convenient 

to set aside a specific time,” arrangements could be made. By his own 

admission, Rainer’s counsel did not reply or otherwise seek to contact 

SCC’s counsel about the March 31 response. 

¶4 On May 28, 2008, Rainer’s counsel received a “Fatal Traffic 

Collision Report” from the Glendale Police Department. The report 

showed that officers believed decedent “failed to stop for a red traffic light”

and collided with Sanchez-Valdez, and identified at least two witnesses 

who observed decedent enter the intersection against a red light. The report 

also indicated that while interviewing Sanchez-Valdez at the scene of the 

accident, Officer Rico noticed Sanchez-Valdez had a “sleepy left eye.” In 

response to questioning, Sanchez-Valdez replied that he injured his left eye 

ten years earlier, which required surgery. Sanchez-Valdez stated he could 

still see out of his left eye, but that he did not see the decedent’s car before 

the collision. Sanchez-Valdez provided officers with his Class D Arizona 

driver’s license, which was issued three years prior to the accident and gave

no indication he was subject to any restrictions, including corrective lenses. 

¶5 The SCC truck’s registration listed its weight at 26,000 

pounds. Officer Trier noted that this kept the vehicle out of the 

“commercial vehicle” range and that a Class D driver’s license was 

sufficient to operate a truck in that weight range. During a subsequent 

accident investigation, Detective Quigley requested that the Arizona Motor 

Vehicle Division (“MVD”) Medical Review Program conduct a “medical 

review” of Sanchez-Valdez’s vision because she was concerned that he 

never saw decedent’s car before the impact. Quigley subsequently learned 

from MVD that Sanchez-Valdez’s vision was adequate for a Class D license

and notified Rainer of such in June 2008. 

¶6 On October 23, 2009, Rainer filed a wrongful death action 

against Sanchez-Valdez for negligence and against SCC for negligent hiring

and vicarious liability, alleging in part that Sanchez-Valdez’s “vision, and 

therefore his ability to observe oncoming traffic, was impaired due to a 

medical condition.” She did not serve the complaint until January 21, 2010. 

SCC and Sanchez-Valdez answered, then served their initial disclosure 

statements on June 15, 2010, and disclosed SCC’s “file concerning Juan 

Sanchez-Valdez,” who had worked for SCC less than one month prior to 

the accident. The file contained: (1) a Department of Transportation 

Medical Examination Report (“DOT Medical Report”) signed by Dr. Kurbat 

on October 2, 2007, evidencing he performed a medical examination of 
RAINER v. SWIFT et al.

Decision of the Court

4

Sanchez-Valdez on that date and noted an “eccentric” left pupil secondary 

to trauma; (2) Dr. Kurbat’s signed certification dated October 2, 2007 that 

Sanchez-Valdez was fit to be a commercial driver as defined by the FMCSR;

(3) Section 3 of the DOT Medical Report indicating Sanchez-Valdez had a 

vision examination on October 11, 2007 for clearance to drive a truck for 

SCC, which was performed and signed by an optometrist; and (4) a 

prescription written on the optometrist’s letterhead requiring that SanchezValdez wear eye glasses full-time. 

¶7 In January 2011, Rainer deposed Sanchez-Valdez. After 

approval by the court, Rainer filed an amended complaint in September 

2011, adding Swift, the Kurbats, and several other defendants who were 

subsequently dismissed from the litigation.2 Rainer’s amended complaint 

alleged medical malpractice against Dr. Kurbat, negligent hiring and 

vicarious liability against Swift, and negligence per se against all defendants. 

Rainer alleged that Dr. Kurbat was not qualified to conduct commercial 

driver fitness examinations and, in particular, eye examinations. Rainer 

also alleged Swift was negligent for hiring a physician who was not 

qualified to conduct medical examinations for its drivers to determine their 

fitness.

¶8 After considering separate motions for summary judgment 

filed by Swift and the Kurbats, the trial court ruled that: (1) the statute of 

limitations accrued no later than May 28, 2008, based on the discovery rule, 

because when Rainer received the police report, she was “on notice that 

[Sanchez-Valdez’s] vision was an issue and [she] had a duty to reasonably 

investigate any potential claims based on his vision;” (2) Rainer “failed to 

diligently investigate her claims;” (3) the two-year statute of limitations 

expired on May 28, 2010; and (4) Rainer’s claims against Swift and the 

Kurbats were time-barred. This appeal followed. 

DISCUSSION

¶9 Rainer argues the trial court erred in granting summary 

judgment, asserting that when her claims accrued and whether she 

diligently investigated are jury questions.

¶10 Summary judgment is appropriate when there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment 

 

2 Rainer’s claims against Sanchez-Valdez and SCC were eventually 

dismissed pursuant to a settlement. 
RAINER v. SWIFT et al.

Decision of the Court

5

as a matter of law. Ariz. R. Civ. P. 56(a). We determine de novo whether 

any genuine issue of material fact exists and whether the trial court erred in 

application of the law. Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996). 

We construe the evidence and reasonable inferences in the light most 

favorable to the non-moving party. Wells Fargo Bank v. Ariz. Laborers, 

Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 482, 

¶ 13 (2002) (citation omitted). And, we will uphold the trial court’s ruling 

if correct for any reason. Logerquist, 188 Ariz. at 18.

¶11 A complaint for personal injury must be filed within two 

years after the cause of action accrues. Arizona Revised Statutes (“A.R.S.”) 

section 12-542. Under the common law discovery rule, accrual occurs 

“when the plaintiff knew or by the exercise of reasonable diligence should

have known of the defendants’ conduct.” Wyckoff v. Mogollon Health All., 

232 Ariz. 588, 591, ¶ 9 (App. 2013) (internal quotations and citation 

omitted). Courts typically apply the discovery rule when the “injury or the 

act causing the injury, or both, have been difficult for the plaintiff to detect.” 

ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 290, ¶ 12 (App. 2010)

(citing Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 589 

(1995)). Although knowledge of all the underlying facts is not necessary, 

the plaintiff “must at least possess a minimum requisite of knowledge 

sufficient to identify that a wrong occurred and caused injury.” Walk v. Ring, 202 

Ariz. 310, 316, ¶ 22 (2002) (citation omitted). A plaintiff must also have a 

“reason to connect the ‘what’ to a particular ‘who’ in such a way that a 

reasonable person would be on notice to investigate whether the injury 

might result from fault.” Id.

¶12 Generally, determining when a plaintiff learned of 

defendant’s conduct, thereby triggering accrual of a cause of action, is a 

question of fact for a jury, and summary judgment is appropriate only if

failing to investigate potential claims is not reasonably justified. Id. at 316, 

¶ 23. Yet, a party may not “hide behind its ignorance when reasonable 

investigation would have alerted it to the claim.” ELM, 226 Ariz. at 290, ¶ 

12 (citing Doe v. Roe, 191 Ariz. 313, 324, ¶ 37 (1998) (explaining that plaintiffs 

have an affirmative duty of due diligence when investigating potential 

claims)). The key question in applying the discovery rule is “whether a 

reasonable person would have been on notice to investigate,” and plaintiffs 

are not relieved of their affirmative duty to “timely inquire whether any basis 

exists for legal action.” Walk, 202 Ariz. at 316-17, ¶¶ 24-25 (emphasis added). 

¶13 Here, Rainer did not seek to add Swift and the Kurbats until 

almost four years after the accident, which means her claims against them

are barred unless under the discovery rule the time for filing suit against 
RAINER v. SWIFT et al.

Decision of the Court

6

them was tolled. As the plaintiff, Rainer has the burden of proving that the 

discovery rule should apply to delay accrual, as well as refuting a prima facie

case for summary judgment by showing that available, competent evidence 

justifies a trial. See Ulibarri v. Gerstenberger, 178 Ariz. 151, 155 (App. 1993). 

Thus, we must determine whether Rainer has established the existence of 

material issues of fact that she timely inquired as to whether there was a 

basis for suing Swift and the Kurbats. 

I. Diligent Investigation

¶14 Rainer argues she diligently investigated her claims, and was 

aware there could be “vision” issues at play, but that her investigation 

revealed no vision examination issues, thereby connecting the ‘what’ 

(medical negligence and negligent hiring) to a particular ‘who’ (Swift and 

the Kurbats). As such, she maintains she was not on notice to investigate 

Swift and Dr. Kurbat until she received SCC’s initial disclosures in June 

2010. 

¶15 On March 20, 2008, Rainer’s counsel sent SCC the 17-page 

letter requesting numerous documents, including Sanchez-Valdez’s 

Driver’s Qualification File pursuant to the FMCSR. SCC’s counsel replied, 

asking to speak to Rainer’s counsel about the request. Rainer’s counsel, 

however, did not respond or otherwise attempt to obtain the file. Two 

months later, on May 28, 2008, Rainer’s counsel received the police report, 

which revealed potential concerns about Sanchez-Valdez’s vision: (1) he 

had a “sleepy left eye,” which was previously injured and required surgery;

(2) he told officers he did not see decedent’s car before the collision; and (3) 

Officer Quigley was concerned enough to request an MVD review. The 

police report also stated that Sanchez-Valdez told officers he worked for 

SCC, and the SCC truck he was driving, which was referred to throughout 

the report as the “Swift” truck or “Swift Transportation” truck by both 

officers and witnesses, weighed 26,000 pounds, for which a commercial 

driver’s license (“CDL”) was not necessary. 

¶16 Rainer asserts that the March 2008 letter was merely a “form” 

letter, sent as a precautionary measure, as she did not know if the FMCSR 

applied to SCC. Rainer argues that once she received the police report in 

May 2008, and learned the truck was not in the commercial vehicle range

for which a CDL was required, she knew three key points: (1) the FMCSR 

did not apply to SCC; (2) SCC would not have the Driver Qualification File 

she requested; and (3) it was pointless to respond to SCC’s counsel’s letter 

of March 31, 2008. We are not persuaded by these assertions. 
RAINER v. SWIFT et al.

Decision of the Court

7

¶17 First, the FMCSR applies to all employers who transport 

property or passengers in interstate commerce in a commercial motor 

vehicle weighing 10,001 pounds or more. FMCSR §§ 390.3(a), 390.5. Those

employers must maintain a Driver Qualification File for each driver, 

including medical certifications. FMCSR § 391.51. As stated in Rainer’s 

March 20, 2008 correspondence to SCC, the FMCSR requires it to “secure 

and maintain possession” of documents in Sanchez-Valdez’s Driver’s 

Qualification File, including medical examinations. Sanchez-Valdez was 

not required to possess a CDL, because the truck weighed less than 26,001 

pounds. FMCSR §§ 383.5, 390.3(b). Thus, a Class D license was sufficient. 

A.R.S. § 28-3101(2)(a). 

¶18 Rainer argues SCC is not a “federal motor carrier” because it 

does not transport “interstate” and labels the SCC truck as an “in-town” 

truck. However, she does not identify where she raised this point to the 

trial court nor does she point to any evidence supporting the assertion that 

SCC was not a federal motor carrier. Rainer states that after learning about 

trucking law from a trucking expert, she deduced that SCC was not subject 

to the FMCSR because the truck was utilized as a local delivery truck. Even 

so, Rainer did not consult with a trucking expert until early 2009, and by 

her own admission, they only discussed “how [Sanchez-Valdez] drove the 

truck,” as well as whether any “additional duties of care” existed for nonCDL drivers. Nothing in the record indicates Rainer and the trucking 

expert discussed the applicability of the FMCSR.

¶19 Second, even assuming SCC was not subject to the FMCSR,

and regardless of whether SCC kept a Driver Qualification File, it is clear 

that SCC maintained certain records for Sanchez-Valdez, including the 

medical information provided with the initial disclosure statement. The 

medical information was precisely the type of information Rainer sought in 

her March 20 letter. Thus, regardless whether Rainer believed the FMCSR 

applied to SCC, no reasonable person in Rainer’s position, conducting a 

diligent investigation of her potential claims, would have failed to followup on SCC’s counsel’s invitation to discuss the letter.

¶20 Third, Rainer maintains that the police report’s references to 

Sanchez-Valdez’s eyesight indicated only that poor vision may have 

contributed to the accident, and that the investigative lead provided by the 

police report was foreclosed once Rainer learned that Sanchez-Valdez’s 

vision was adequate for a Class D license. She thus argues there was no 

way, short of litigation, to learn about Dr. Kurbat’s examination of SanchezValdez because the police report did not mention Dr. Kurbat or Swift or 

mention that Valdez had a recent eye examination. According to Rainer, it 
RAINER v. SWIFT et al.

Decision of the Court

8

was not until SCC’s initial disclosures in June 2010—during litigation—that 

she was alerted to a potential medical malpractice claim. 

¶21 Again, armed with the multiple vision concerns highlighted 

in the police report, if Rainer had followed-up with SCC’s counsel, she 

would have discovered several key facts; that Sanchez-Valdez was recently 

hired by SCC and recently had a medical examination, including an eye 

examination, and that Swift provided the medical examinations for SCC 

drivers. These facts provided a basis for further investigation in the effort 

to connect the ‘what’ (medical malpractice and negligent hiring) with the 

‘who’ (Swift and the Kurbats). And, if SCC’s counsel refused to provide the 

file in response to the March 20 letter, then Rainer could have documented 

that refusal as part of her investigation, and pursued other alternatives for 

obtaining the records after the lawsuit was filed. To simply assume that her 

17-page request for production of information would have borne no fruit, 

based on the supposed inapplicability of federal regulations and the

absence of clues of an eye examination in the police report, ignores a 

plaintiff’s obligation to reasonably investigate potential claims within the 

statute of limitations. 

¶22 Fourth, Rainer’s original complaint alleged that SCC was

liable for negligently hiring Sanchez-Valdez because he was not “qualified, 

trained, or supervised” to safely operate a delivery truck and that SCC 

knew or should have known that his unsafe operation of the truck could 

injure other motorists. To support such a claim, we presume that Rainer 

had “knowledge, information, and belief formed after reasonable inquiry” 

that her claim was “well grounded in fact” and “warranted by existing 

law.” Ariz. R. Civ. P. 11(a). Records that would bear on the issue of 

negligent hiring would include tests, certifications, and training SanchezValdez was required to complete, and Rainer’s counsel in fact requested 

those specific records in his March 20 letter to SCC. Again, no reasonable

person in Rainer’s position would have failed to follow-up on the March 20 

letter, particularly in light of the negligent hiring claim against SCC, which 

asserted that Sanchez-Valdez had not been properly qualified, trained, or 

supervised by SCC.

¶23 Finally, Rainer failed to act in a reasonably prompt manner in 

seeking pertinent information after receipt of the police report, which 

alerted her to Sanchez-Valdez’s vision issues. For example, Rainer filed her 

complaint against SCC and Sanchez-Valdez the day before the statute of

limitations expired, which was seventeen months after she received the 

police report. When she served the complaint several months later, she did 

not seek expedited disclosure or discovery. Upon exchanging initial 
RAINER v. SWIFT et al.

Decision of the Court

9

disclosures with SCC in June 2010, seven months after filing the complaint, 

SCC provided its file relating to Sanchez-Valdez, which prompted Rainer 

to investigate Dr. Kurbat’s medical examination records. She did not 

depose Sanchez-Valdez until January 2011, and the amended complaint 

was not filed until September 2011, fifteen months after receipt of SCC’s 

initial disclosure statement. Rainer’s actions belie her assertion that she 

diligently investigated her claims against Swift and the Kurbats.

3 

II. Accrual of the Statute of Limitations

¶24 In her opening brief, Rainer asserts that Sanchez-Valdez and 

SCC (along with its counsel) concealed critical evidence, which delayed her 

discovery of the claims against Swift and the Kurbats, thereby tolling 

accrual of the statute of limitations. Rainer has waived this argument, 

however, because she failed to describe any legal theory or cite any 

authority supporting her suggestion. See ARCAP 13(a)(7)(A) (stating that 

arguments in appellant’s opening brief must contain “contentions 

concerning each issue presented for review, with supporting reasons for 

each contention and with citations of legal authorities and appropriate 

references to the portions of the record on which the appellant relies”). 

¶25 Waiver aside, Rainer has not shown how the concealment 

theory supports her position under these facts. “The wrongful concealment 

sufficient to toll a statute of limitations requires a positive act by the 

defendant taken for the purpose of preventing detection of the cause of 

action.” Ulibarri, 178 Ariz. at 162 (citing Cooney v. Phoenix Newspapers, Inc., 

160 Ariz. 139, 141 (App. 1989); see also Jackson v. Am. Credit Bureau, Inc., 23 

Ariz. App. 199 (1975)). Rainer argues SCC concealed Dr. Kurbat’s existence 

and his affiliation with Swift by not disclosing the fact that it complied with 

the FMCSR and maintained a Driver’s Qualification File on SanchezValdez, including his medical examination reports. Rainer asserts SCC and 

its counsel withheld this information by not responding to her March 20, 

2008 letter, but provides no supporting evidence. 

¶26 Assuming Sanchez-Valdez’s false representation to police 

was an affirmative act to conceal evidence from Rainer, his misconduct is 

 

3 Rainer cites several cases in support of her assertion that whether a 

reasonable investigation had been conducted in a particular situation is a 

jury question. As explained, supra ¶ 12, we agree that claim accrual issues 

are generally decided by a jury; however, that principle does not apply if 

failing to investigate potential claims is not reasonably justified. See Walk,

202 Ariz. at 316, ¶ 23.
RAINER v. SWIFT et al.

Decision of the Court

10

not imputed to Swift or the Kurbats. See Ulibarri, 178 Ariz. at 162 (positive 

act by the defendant) (emphasis added). Moreover, it was Rainer’s failure to 

follow-up on SCC’s offer to discuss Sanchez-Valdez’s file, not concealment 

by SCC, that kept her from obtaining the file. If Rainer had done so, she 

would have been alerted to the involvement of Dr. Kurbat and Swift. 

¶27 Viewed in the light most favorable to Rainer, the record does 

not reveal any material issue of disputed fact regarding whether she failed 

to timely conduct a reasonable investigation of her claims against Swift and 

the Kurbats. Thus, we agree with the trial court’s finding that her claims 

are time-barred.4

CONCLUSION

¶28 Because the trial court did not err in granting summary 

judgment for Swift and the Kurbats, we affirm.

 

4 Because we conclude that summary judgment was appropriate on 

statute of limitations’ grounds, we need not address Swift’s alternative 

argument that it could not be held vicariously liable for Dr. Kurbat’s alleged 

negligence.