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 

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

FILED 12-19-2019
2 

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 
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

3 

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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Opinion of the Court

4 

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

5 

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. 
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

6 

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 
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

7 

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. 
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

8 

¶18 The Medical Providers’ position is that a loss-of-consortium 

claim is a byproduct of Martin’s pain and suffering1 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.
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

9 

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

10 

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).
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

11 

¶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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Opinion of the Court

12 

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

13 

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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Opinion of the Court

14 

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.
MARTIN, et al. v. STAHELI, et al.

Opinion of the Court

15 

¶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.