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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HELEN SCHIRMER, Plaintiff/Appellant,

v.

AVALON CARE CENTER – SCOTTSDALE LLC, et al., 

Defendants/Appellees.

No. 1 CA-CV 19-0310 

Appeal from the Superior Court in Maricopa County

No. CV2017-055125

The Honorable Theodore Campagnolo, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Jeffrey L. Victor, P.C., Scottsdale

By Jeffrey L. Victor

Counsel for Plaintiff/Appellant

Anderson & Karrenburg, Salt Lake City, UT

By Craig H. Howe, Blake D. Miller Pro Hac Vice

Counsel for Defendants/Appellees

FILED 7-14-2020
SCHIRMER v. AVALON, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Randall M. Howe1 joined.

W I L L I A M S, Judge:

¶1 Helen Schirmer (”Helen”) appeals the superior court’s order 

granting summary judgment to all defendants. For reasons stated below, 

we affirm the dismissal of the claims based upon the negligence of the 

nursing staff but reverse the dismissal of the remaining claims and remand 

for a jury to determine if the statute of limitations bars those claims.

FACTUAL AND PROCEDURAL HISTORY

¶2 In May 2014, Carl Schirmer (“Carl”), Helen’s husband, was 

admitted to a nursing center, Avalon Care Center-Scottsdale, L.L.C., (“A

CC-Scottsdale”) dba Avalon Care Center-Shadow Mountain (“ACCShadow Mountain”). Upon admission, Carl signed an agreement listing

ACC-Shadow Mountain as the “care center,” which we refer to as “the 

Avalon facility.” While at the Avalon facility, Carl fell and fractured his hip.

As a result, he was hospitalized and later died on August 20, 2014, allegedly 

from complications related to the hip fracture.

¶3 In January 2015, Helen’s attorney wrote to the Avalon 

facility’s attorney asking to discuss Helen’s claim that the nursing staff’s

negligence caused Carl’s death. Helen’s attorney followed up with a second 

letter that included an expert opinion from Wendy Thomason, R.N., 

supporting the negligence claim.

¶4 On July 8, 2015, Helen filed a complaint against Avalon 

Health Care, Inc. (“AHCI”), dba ACC-Shadow Mountain and fictitious 

defendants, asserting claims arising from Carl’s death. AHCI, a Utah 

corporation, removed that action to federal court. The federal district court

granted AHCI summary judgment because it was not sufficiently involved 

in providing care to Carl to impose liability for any of the alleged claims.

1 Judge Randall M. Howe replaces the Honorable Kenton D. Jones, who was 

originally assigned to this panel. Judge Howe has read the briefs, reviewed 

the record, and watched the recording of the March 18, 2020 oral argument. 
SCHIRMER v. AVALON, et al.

Decision of the Court

3

The Ninth Circuit Court of Appeals affirmed this decision. Schirmer v. 

Avalon Health Care, Inc., 772 Fed. Appx. 546, 547 (9th Cir. 2019). 

¶5 On July 14, 2017, after the federal court dismissed the first 

action, Helen filed a complaint naming ACC-Scottsdale dba ACC-Shadow 

Mountain; Avalon Health Care Centers, L.L.C. and Avalon Health Care 

Management of Arizona, L.L.C. (“the corporate defendants”); and 

individual defendants, Douglas Daudelin, the Avalon facility regional 

director; Michael B. Morris, an Avalon facility administrator; Vanessa E. 

Holmes, the director of nursing for the Avalon facility; nurses LaShun 

McSwain and Kyle Mader; and certified nursing assistant Chad Pinkstaff.

As in the 2015 complaint, the 2017 complaint alleged negligence, wrongful 

death, violation of the Adult Protective Services Act (“APSA”) A.R.S. § 46-

455(B), loss of consortium, and punitive damages. The 2017 complaint also 

alleged negligent hiring and management in the Avalon facility.

¶6 Defendants moved for summary judgment, arguing the 

statute of limitations barred the action because the complaint was filed 

more than two years after Helen’s claims accrued. According to 

Defendants, Helen was aware of the wrongful death and loss of consortium 

claims by January 2015, when her expert opined the nursing staff was 

negligent, and the statute of limitations began to run on the negligence 

claims, at the latest, on June 4, 2015, when Helen was appointed personal 

representative of Carl’s estate. In response, Helen argued the statute of 

limitations did not begin to run until early 2016, when she learned the 

correct name of the legal entity responsible for Carl’s injuries, the names of 

the individual nurses, and the facts giving rise to her claims for 

administrative negligence.

¶7 The superior court granted Defendants judgment on all 

claims, finding Helen knew the estate had a cause of action against the 

nursing home and its staff no later than December 31, 2014, when Helen’s 

expert provided her opinion. The court concluded Helen had a duty to 

investigate and determine the correct legal entity, and name that party in 

the federal case. The court also found that even if Helen did not know the 

names of the administrators until the discovery in the federal action, she 

had a duty to amend the 2015 complaint. Helen timely appealed, and we 

have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶8 Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the moving party is entitled to judgment 
SCHIRMER v. AVALON, et al.

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4

as a matter of law.” Ariz. R. Civ. P. 56(a); see also Orme Sch. v. Reeves, 166 

Ariz. 301, 309 (1990). We review the superior court’s grant of summary 

judgment de novo, considering the facts and any inferences drawn from 

those facts in the light most favorable to the party opposing summary 

judgment. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 199, 

¶ 15 (App. 2007).

¶9 The parties do not dispute that Helen had two years after her 

claims accrued to file an action. See A.R.S. §§ 12-542 and 46-455(K). Helen 

did not file the second complaint within two years of Carl’s death or her 

appointment as personal representative of his estate, but contends it was, 

nevertheless, timely because her claims did not accrue until early 2016 

under the discovery rule. To that end, Helen first argues the corporate 

defendants concealed and misrepresented the true identity of the legal 

entity that provided Carl’s care and other relevant facts, thereby tolling the 

accrual date of her claims; and second, the 2017 complaint states 

independent claims for negligent hiring and management of the Avalon 

facility, and she did not discover the facts giving rise to those claims until 

March 2016.

¶10 The statute of limitations “protect[s] defendants and courts 

from stale claims where plaintiffs have slept on their rights.” Gust, Rosenfeld 

& Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590 (1995). Because 

a party is not allowed to “sleep on [their] rights” regarding an unknown 

claim, Doe v. Roe, 191 Ariz. 313, 322, ¶ 29 (1998), the discovery rule provides 

that “a cause of action does not ‘accrue’ until a plaintiff discovers or by the 

exercise of reasonable diligence should have discovered that he or she has 

been injured by the defendant’s negligent conduct,” Anson v. Am. Motors 

Corp., 155 Ariz. 420, 423 (App. 1987). Thus, “[a] cause of action does not 

accrue until the plaintiff knows or should have known of both the what and 

the who elements of causation.” Lawhon v. L.B.J. Institutional Supply, Inc., 159 

Ariz. 179, 183 (App. 1988) (first emphasis added). 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.” Walk v. Ring, 202 Ariz. 310, 316, ¶ 22 (2002).

Determining when a plaintiff should have known the who and what

elements of a claim is usually a question of fact for the jury, and “summary 

judgment is warranted only if the failure to go forward and investigate is 

not reasonably justified.” Id. at ¶ 23 (citing Doe, 191 Ariz. at 323, ¶ 32). A 

plaintiff has the burden of convincing the jury the discovery rule applies to 

delay the accrual of her claims. Ulibarri v. Gerstenberger, 178 Ariz. 151, 155 

(App. 1993).
SCHIRMER v. AVALON, et al.

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I. When Helen Should Have Discovered the Correct Name of the Legal Entity 

Responsible for Carl’s Care Is a Question of Fact

¶11 The 2015 complaint named the entities listed in the medical 

records: AHCI and ACC-Shadow Mountain. Helen argues she did not learn 

ACC-Scottsdale was the correct legal entity responsible for her claims until 

Defendants provided discovery in the federal litigation. Defendants 

concede they did not identify the legal name of ACC-Scottsdale until 

January 21, 2016, during discovery in the course of the federal litigation.

However, Defendants argue Helen was aware of her claim and had a duty 

to investigate the correct legal entity when her attorney sent a letter and an 

expert opinion asserting negligence by “ACC-Shadow Mountain.”

¶12 The admission documents and the medical records available 

to Helen state the care provider was ACC-Shadow Mountain or AHCI.

Helen contends that by using these corporate names, the documents 

actively misled her as to the correct legal entity. Defendants deny the forms 

actively concealed or affirmatively misrepresented information because the 

correct legal name was available on the Arizona Corporation Commission’s 

public website, and Helen should be deemed to know the contents of public 

records. See Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 358 (App. 1985); 

Ruth v. Unifund CCR Partners, 604 F. 3d 908 (6th Cir. 2010).

¶13 Defendants also argue Helen was on notice to investigate 

AHCI’s true identity because AHCI had denied it provided care to Carl as 

a defense in the federal litigation. Helen counters that Defendants’ federal 

pleadings were misleading and insufficient to put her on actual notice that 

she had named the incorrect legal entity. Helen alleged Defendants had 

failed to disclose the name of the entity that had discoverable information

in its initial disclosures, as required by Federal Rule of Civil Procedure 

26(a). This obligation existed even if Helen did not specifically request it, 

Fed. R. Civ. P. 26(a)(1)(A)(i), and an evasive disclosure constitutes a failure 

to disclose, Fed. R. Civ. P. 37(a)(4).

2

¶14 Helen argues that Defendants conduct constitutes fraudulent 

concealment, which relieved her of the duty to investigate until she 

discovered or was put on notice of facts giving rise to the concealment. 

Walk, 202 Ariz. at 319, ¶ 35 (“actual knowledge standard applies to 

2 We recently noted the difficulty that can exist in determining the correct 

legal entity to name in a lawsuit given “[t]he complicated structuring [of 

care facilities] consisting of limited liability companies and limited 

partnerships . . . .” Scott v. Kemp, 248 Ariz. 380, ¶ 2 (App. 2020).
SCHIRMER v. AVALON, et al.

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triggering the statute of limitations” when concealment has occurred).

Therefore, Helen asserts her late discovery was reasonable because she had 

no reason to suspect she had named the incorrect legal entity in the federal 

litigation. Whether fraudulent concealment occurred is an issue of fact for 

the jury. Anson, 155 Ariz. at 429. Even if Defendants’ federal pleadings 

should have put Helen on notice to investigate the existence of a different 

corporate entity than was named, Helen filed the 2017 complaint within 

two years of Defendant’s August 2015 answer; that answer contained 

AHCI’s denial of responsibility, which Defendants contend should have 

put Helen on notice.

¶15 The question then becomes whether Helen reasonably relied 

upon the medical records available to her in determining who to sue, or if 

she had an obligation to further investigate the name of the entity before 

Defendants may have put her on notice she had sued the wrong entity. As 

discussed, supra, ¶ 10, “whether a reasonable person would have been on 

notice to investigate” is usually a question of fact for the jury, Walk, 202 

Ariz. at 316, ¶ 24.

¶16 Defendants contend that Helen’s duty to investigate the 

correct legal name is not, at its core, a factual question because Defendants 

did not make affirmative assurances as in Walk or Anson. While the 

statements in the medical records and Defendant’s answer were not direct 

misrepresentations, the question is whether Helen had reason to know she 

should be looking for an alternative legal entity based upon the medical 

records available to her and Defendants’ conduct during the federal 

litigation. Walk, 202 Ariz. at 316, ¶ 24. On this record, a jury must resolve

this material issue. 

¶17 Finally, Helen’s knowledge of the correct legal entity before 

the federal litigation was dismissed does not render the 2017 complaint 

untimely. As Defendants acknowledged, Helen could have sought to 

amend the complaint in the federal court or filed a timely separate action 

against the correct entity. By filing the 2017 complaint, Helen chose the 

latter. It is for a jury to decide if that complaint was timely.

II. As a Matter of Law, Helen Should Have Known or Discovered the Names 

of the Individual Nursing Staff Members

¶18 Helen contends the 2015 complaint alleged nursing 

negligence without knowing which particular nurses were involved.

According to Helen, the individual nurses’ names were not available until 

the discovery phase of the federal litigation because the patient medical 
SCHIRMER v. AVALON, et al.

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records did not reveal which nurses, if any, committed a negligent act, and 

Defendants concealed the Incident Fall Reports that would have provided 

that information.

¶19 Even if Helen did not know the individual nurses’ names 

until March 2016, she was aware of alleged negligence by nursing “staff” in

January 2015 based upon her expert’s opinion. Thus, by January 2015, 

Helen was on notice to investigate and determine the names of the 

individual nurses she alleged were negligent. The discovery rule does not 

allow a party “to hide behind its ignorance when reasonable investigation 

would have alerted it to the claim.” ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 

287, 290, ¶ 12 (App. 2010). A plaintiff has an affirmative duty of due 

diligence to investigate her potential claims. Id. (citing Doe, 191 Ariz. at 324, 

¶ 37).

¶20 In response to Defendants’ summary judgment motion, 

Helen needed to show that in the exercise of reasonable diligence, she was 

unable to discover the nurses’ identities within the limitations period. See,

e.g., Doe, 191 Ariz. at 323, ¶¶ 32-33. Helen had Carl’s “medical records,” but 

she did not learn that separate “Fall Incident Reports” existed until the 

discovery phase of the federal litigation. Helen contends Defendants 

concealed the Fall Incident Reports which prevented her from obtaining 

this information. However, these reports have never been disclosed.

¶21 Knowledge of the existence of a claim does not necessarily 

require knowledge of the specific Defendants’ identities. Lawhon, 159 Ariz. 

at 181. Yet Helen knew of negligent conduct by at least a single nurse, and 

therefore, had a duty to investigate the identity of that person. Even without 

the Fall Incident Reports, Helen discovered which witnesses to depose 

within the federal litigation, including two of the nurses named in the 2017 

complaint. Having done so, Helen provided no reason why she could not 

have determined the names of the individual nurses before the limitations 

period expired. And although information contained within the Fall 

Incident Reports was relevant, it was clearly not the only way Helen could 

have determined the nurses’ names. Therefore, any concealment of these 

reports did not preclude Helen from otherwise investigating or asserting 

her claims. As a matter of law, Helen had sufficient knowledge to determine 

the identity of the individual nurses before the statute of limitations 

expired, but failed to do so. Helen’s window for a negligence claim against 

those nurses has closed.
SCHIRMER v. AVALON, et al.

Decision of the Court

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III. When Helen Discovered She Had a Claim for the Independent Negligence 

of the Corporate Defendants and Administrators Is a Question of Fact

¶22 The superior court found Helen learned of the administrators’ 

alleged negligence during the federal litigation and, therefore, should have

raised this claim within that case. Defendants contend Helen was aware, or 

should have been aware, of these claims in January 2015 when her expert 

provided an opinion that the nursing staff was negligent.

¶23 Helen’s claims against the corporate defendants and 

individual administrators were based upon conduct distinct from the 

conduct giving rise to the nursing staff negligence claim. Helen’s nursing 

expert addressed only nursing negligence and did not consider or suggest

any negligence by the administrators or corporate defendants. According 

to Helen, she did not learn she also had a claim for the negligent 

administration of the Avalon facility until she took depositions within the 

federal litigation and retained an expert in nursing home administration.

Helen’s expert on nursing home administration stated that she learned facts 

giving rise to the claims for the administrator’s negligence only after the 

depositions in the federal litigation. Only then did Helen learn the Avalon 

facility was understaffed, had insufficient equipment, and lacked an 

assistant director of nursing.

3

¶24 Defendants contend Helen knew of these claims at least by 

September 2015, when she notified Defendants that she planned to depose 

the “Director of Nursing” and an “Administrator” in the federal litigation.

The fact that Helen’s joint case management report listed the unnamed 

Director of Nursing and an Administrator does not establish, as a matter of

law, that she knew or should have known sufficient facts giving rise to the 

claims for negligent hiring and management. In any event, Helen filed the 

2017 complaint within two years of that date.

¶25 Defendants also argue the 2017 complaint does not allege any 

new facts supporting separate claims of “administrative negligence.”

However, the 2017 complaint contained new allegations that Defendants 

3 Defendants contend Helen’s experts’ affidavits are deficient, and, in any 

event, they fail to create a question of fact. As discussed above, the affidavit 

of the expert on nursing home administration raised a question of fact 

whether Helen, in the exercise of reasonable diligence, could have 

discovered earlier the claim for negligent hiring and management. Thus, a

jury must decide this issue. Defendants can raise any objections to the

affidavits they deem appropriate in the course of trial.
SCHIRMER v. AVALON, et al.

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were liable for the hiring and management of their employees and agents, 

exercised control and management over the facility, and failed to “manage, 

control and/or administer” the facility as required by law, proximately 

causing Carl’s death. The 2017 complaint also alleged that Daudelin and 

Morris, as regional director and administrator respectively, breached

various duties owed to Carl. Count Three alleged a violation of the APSA

(A.R.S. § 46-455), and added specific allegations that Defendants 

consciously decided to “promote profits instead of providing the legally 

mandated care” and violated the APSA by breaching the “aforementioned 

duties.” These allegations were not in the 2015 complaint.

¶26 Helen’s negligent hiring and management claims are based 

upon the direct action or inaction of the corporate defendants and 

administrators. As such, they are direct theories of liability and 

independent from any vicarious liability resulting from the principal-agent 

relationship between the nurses and the corporate defendants. See Kopp v. 

Physician Grp. of Ariz., Inc., 244 Ariz. 439, 441-42, ¶¶ 11-12 (2018). Helen’s 

evidence is sufficient to create a factual question when she first knew or 

should have known of the facts giving rise to these claims. Therefore, 

summary judgment was improper. 

¶27 Defendants again argue that Helen could have amended the 

2015 complaint or filed a separate timely action upon learning facts to 

support the separate claims of negligent hiring and management. The 2017 

complaint purports to do just that.

IV. Vicarious Liability

¶28 Because the negligence claims against the nurses are timebarred, the corporate defendants cannot be found vicariously liable for

those claims. Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 574 (1986) (“In 

cases of derivative liability, a judgment or dismissal in favor of the servant 

relieves the master of liability.”). However, dismissal of the claims against 

the nurses does not require dismissal of the independent claims against the 

corporate defendants or administrators for direct liability for any negligent 

hiring and management. Kopp, 244 Ariz. at 441-42, ¶¶ 11-12.

CONCLUSION

¶29 We affirm the dismissal of the claims against nurses McSwain, 

Pinkstaff, and Mader and the dismissal of the claims against the corporate 

defendants based upon the vicarious liability of those defendants. We 

reverse the entry of summary judgment against administrators, Daudelin, 

Morris, and Holmes and the corporate defendants for claims based upon 
SCHIRMER v. AVALON, et al.

Decision of the Court

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their direct liability for negligent hiring and management. On remand, a

jury must determine when these claims accrued and whether Helen’s 

complaint was filed within the statute of limitations.