SUPREME COURT OF ARIZONA

En Banc

JAMES L. LEE, individually and ) Arizona Supreme Court 

as the surviving husband of ) No. CV-07-0293-PR 

TERESA C. LEE, deceased; KYUNG ) 

HEE KIM and TAE GUN KIM, ) Court of Appeals 

children of HYEON BAI KIM and ) Division One 

KYUNG NIM BEA KIM, deceased, ) No. 1 CA-CV 06-0145 

) 

 Plaintiffs-Appellants, ) Maricopa County 

) Superior Court 

 v. ) No. CV2005-012207 

) 

STATE OF ARIZONA, a governmental ) 

entity, ) 

) O P I N I O N

Defendant-Appellee. ) 

) 

) 

Appeal from the Superior Court in Maricopa County 

The Honorable Kenneth L. Fields, Judge

REVERSED AND REMANDED

________________________________________________________________

Opinion of the Court of Appeals, Division One

215 Ariz. 540, 161 P.3d 583 (2007)

VACATED

________________________________________________________________

LAW OFFICE OF SCOTT E. BOEHM, P.C. Phoenix

 By Scott E. Boehm

And

LAW OFFICE OF GLYNN W. GILCREASE, P.C. Tempe

 By Glynn W. Gilcrease, Jr.

 Peter M. Gorski

Attorneys for James L. Lee, individually and as the 

surviving husband of Teresa C. Lee, deceased; Kyung 

Hee Kim and Tae Gun Kim, children of Hyeon Bai Kim and 

Kyung Nim Bea Kim, deceased 
2

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By George Crough, Assistant Attorney General

 Daniel P. Schaack, Assistant Attorney General

 Catherine O’Grady, Special Assistant Attorney 

 General

Attorneys for the State of Arizona

LAW OFFICES OF CHARLES M. BREWER, LTD. Phoenix

 By Charles M. Brewer

 John B. Brewer 

 David L. Abney

 Dane L. Wood

Attorneys for Amicus Curiae Charles M. Brewer, Ltd.

JONES, SKELTON & HOCHULI, P.L.C. Phoenix

 By Eileen Dennis GilBride

 Lori L. Voepel

Attorneys for Amici Curiae Arizona Counties Insurance Pool, 

Arizona School Risk Retention Trust, and City of Phoenix 

________________________________________________________________

B A L E S, Justice 

¶1 Before suing the state or its subdivisions, a person 

generally must file a notice of claim with the prospective 

defendant in compliance with Arizona Revised Statutes (“A.R.S.”) 

section 12-821.01(A) (2003). We hold that proof of mailing a 

notice of claim may create a material issue of fact as to its 

filing even though the State denies receiving the notice.

I. 

¶2 James Lee’s car crashed through a highway guardrail; 

the accident seriously injured Lee and resulted in the death of 

three passengers. Lee and representatives of the passengers 

(collectively “Lee”) filed a complaint against the State, 
3

alleging negligent design, construction, and maintenance of the 

roadway and guardrail. The State moved to dismiss the 

complaint, claiming it never received a notice of claim as 

required by A.R.S. § 12-821.01(A).

¶3 In response, Lee submitted a “proof of service” signed 

under penalty of perjury by a staff member of his attorney’s 

firm, attesting that the notice had been sent to the attorney 

general via regular United States mail more than a week before 

the statutory deadline for its receipt. See A.R.S. § 12-

821.01(A) (requiring filing of claim “within one hundred eighty 

days after the cause of action accrues”). The superior court 

granted the State’s motion and dismissed Lee’s claim.

¶4 The court of appeals affirmed, reasoning that the 

statute required Lee to show that the notice actually arrived at 

the attorney general’s office without relying on the common law 

rule that a letter properly mailed is presumed to reach its 

destination. Lee v. State, 215 Ariz. 540, 543 ¶¶ 10-12, 161 

P.3d 583, 586 (App. 2007). Because Lee had no evidence of 

delivery other than the fact of mailing, the court concluded 

that the “plaintiffs did not raise a material question of fact 

regarding whether the State actually received their notice.” 

Id. at 545 ¶ 17, 161 P.3d at 588.
4

¶5 We accepted review to address this issue of statewide 

importance. We have jurisdiction under Article 6, Section 5(3) 

of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II. 

A. 

¶6 Arizona law requires that “[p]ersons who have claims 

against a public entity . . . shall file claims with the person 

or persons authorized to accept service for the public entity 

. . . as set forth in the Arizona rules of civil procedure.” 

A.R.S. § 12-821.01(A). If a claimant fails to file the notice 

of claim as required, the claim is barred. Id.

¶7 Both Lee and the State agree that “file” means actual 

delivery of the notice of claim to a person authorized to accept 

service. Both also agree that Lee was free to use regular mail 

to accomplish the filing. The dispute turns on the proof 

required to show that a filing occurred when the State denies 

receiving the notice of claim. The State argues that if it 

denies receipt and the claimant lacks contrary evidence other 

than proof of mailing, the claim must be dismissed under A.R.S. 

§ 12-821.01(A). We disagree.

¶8 We have long recognized what is best termed a “mail 

delivery rule.” This common law rule has two components: one a 

presumption, and one a rule regarding the sufficiency of 

evidence. Under the mail delivery rule, there is a presumption 
5

that a “letter properly addressed, stamped and deposited in the 

United States mail will reach the addressee.” State v. Mays, 96 

Ariz. 366, 367-68, 395 P.2d 719, 721 (1964); see also Rosenthal 

v. Walker, 111 U.S. 185, 193 (1884) (“The rule is well settled 

that if a letter properly directed is proved to have been . . . 

put into the post-office . . . it is presumed . . . that it 

reached its destination . . . .”). That is, proof of the fact 

of mailing will, absent any contrary evidence, establish that 

delivery occurred. If, however, the addressee denies receipt, 

the presumption of delivery disappears, but the fact of mailing 

still has evidentiary force. Andrews v. Blake, 205 Ariz. 236, 

242 ¶ 22 n.3, 69 P.3d 7, 13 n.3 (2003). The denial of receipt 

creates an issue of fact that the factfinder must resolve to 

determine if delivery actually occurred. Id.

¶9 The State argues that the mail delivery rule has no 

effect here because A.R.S. § 12-821.01(A) requires that a 

claimant “file” the notice of claim. This language, the State 

contends, means that Lee must present direct evidence that the 

notice was timely delivered, for instance, by presenting 

evidence of the receipt of a claim sent by certified mail or of 

physical delivery by the claimant or a courier. In other words, 

the State interprets “file” as implicitly limiting the type of 

proof that will suffice to show delivery of the notice.
6

¶10 By their terms, however, neither the word “file” nor 

the statute as a whole speaks to the proof required to show 

delivery. The State would have us read into the word “file” not 

only the requirement of actual delivery, but also an abrogation 

of the long-held understanding that mail properly sent will 

reach its destination. Such an interpretation goes against our 

prior conception of the mail delivery rule. In Andrews, we 

noted that the presumption would apply even though we 

interpreted the lease-option contract at issue to require 

“actual receipt . . . of [the lessee’s] written exercise of the 

option.” 205 Ariz. at 241 ¶ 18, 69 P.3d at 12. The State 

attempts to distinguish Andrews because it concerned a private 

contract rather than a specific statutory filing requirement. 

This distinction is unpersuasive. Andrews is instructive 

precisely because it demonstrates that an “actual receipt” 

requirement, like the one imposed by A.R.S. § 12-821.01(A), is 

compatible with the mail delivery rule.

¶11 Indeed, the State’s interpretation ignores the logic 

underlying the mail delivery rule. The rule is not a legal 

fiction; it reflects the commonly recognized fact that the mail 

almost always works. Thus, although a denial of receipt rebuts 

the legal presumption that a piece of mail was received, a 

factfinder may still infer from the fact of mailing that the 

mail did reach its destination. That is, even absent any 
7

presumption of receipt, mailing remains probative evidence that 

a letter was actually delivered to the designated recipient. 

¶12 The legislature could have specified what sort of 

delivery constitutes a filing, or restricted the evidence 

relevant to showing something was filed, but it did not. New 

York law, for example, requires many claims to “be filed with 

the clerk . . . and . . . served upon the attorney general . . . 

either personally or by certified mail, return receipt 

requested.” N.Y. Ct. Cl. Act § 11(a)(i) (McKinney Supp. 2008). 

In New York, regular mail is therefore an insufficient method of 

filing a claim against the state and is not evidence that 

something was filed. See Philippe v. State, 669 N.Y.S.2d 759, 

760 (App. Div. 1998) (affirming dismissal when claimant used 

ordinary mail to serve the state). In contrast, Arizona law 

does not require formal service and allows claimants to mail 

their notices to the state.1

 

¶13 The dissent argues that the statute precludes Lee from 

relying on proof of mailing because it requires a claimant to 

“file . . . as set forth in the Arizona rules of civil 

procedure.” A.R.S. § 12-821.01(A). Dissent ¶¶ 26-28. The 

dissent’s reading of the statute omits critical language. 

                                                           

1

 The State encourages claimants to mail their notices: the 

attorney general’s standard notice of claim form instructs 

claimants to mail the form to the attorney general. 
8

Claimants must “file claims with the person or persons 

authorized to accept service for the public entity or public 

employee as set forth in the Arizona rules of civil procedure.” 

Id. (emphasis added). Arizona Rules of Civil Procedure 4.1(h)-

(j) clearly “set forth” the “person or persons authorized to 

accept service” for various public entities. By contrast, 

nothing in the rules defines how filing must occur. The rules 

do not prohibit mail as a form of filing nor do they indicate 

that mailing, though probative, is inadmissible to prove filing. 

We agree with the dissent that to successfully file requires 

receipt, but we decline to interpret “file” to forbid a claimant 

from proving a contested filing by pointing to the fact of 

mailing.

¶14 The dissent believes that the reference to the rules 

of procedure “mandates that we treat the filing requirement 

under the notice of claims statute in the same manner as we and 

other jurisdictions have consistently treated filing with a 

court.” Dissent ¶ 32. The dissent then points to several cases 

that refuse to “apply the mailbox rule to the filing of a 

document with the clerk of court.” Id. These cases, however, 

are inapposite because of the differences between a court clerk 

and a party to the litigation.

¶15 Lee’s position with respect to the State is not 

“identical to that of a civil litigant filing a document with 
9

the clerk of court.” Dissent ¶ 34. The clerk of the superior 

court, for example, is a constitutionally authorized officer of 

a neutral body, one who is statutorily required to “take charge 

of and safely keep . . . all books, papers and records which may 

be filed.” A.R.S. § 12-282(A) (2003 & Supp. 2007); Ariz. Const. 

art. 6, § 23. There is no similar position in the attorney 

general’s office or in many of the local-level public offices 

that accept notices of claim. 

¶16 A government office’s inability to locate a notice of 

claim may indicate it was never received, but it may also 

indicate that it was received and later misplaced. Which 

conclusion is more plausible in any given case will depend on 

the circumstances of the initial mailing and the intended 

recipient’s procedures, if any, for recording the receipt of 

mail. 

¶17 The notice of claims statute directs claimants to file 

with a potential defendant. We do not think that the statute 

(either as drafted or as elided by the dissent) requires a court 

to treat a defendant’s denial of receipt as dispositive, just as 

we do not treat the plaintiff’s proof of mailing as conclusively 

establishing that the filing did occur when receipt is denied. 

This is the sort of factual dispute appropriate for resolution 
10

by a factfinder.2 The State and its amici also urge the Court to 

adopt the State’s interpretation of “file” because it best 

serves the purposes of A.R.S. § 12-821.01. A notice of claim 

serves to give the government notice of potential liability, an 

opportunity to investigate claims, the chance to avoid costly 

litigation through settlement, and assistance in budgeting. 

Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 

295 ¶ 6, 152 P.3d 490, 492 (2007). The State and amici argue 

that these purposes can be met only if the State actually 

receives the notice; thus, the claimant should bear the full 

risk of ensuring actual receipt without resort to the mail 

delivery rule.

¶18 There is some force to the State’s policy arguments 

but we are not convinced they are embraced in A.R.S. § 12-

821.01(A). We agree that the statutory intent can be served 

only if the State receives the notice of claim, but absent a 

clearer legislative directive than the word “file,” we will not 

deprive Lee of the benefit of the mail delivery rule, a 

                                                           

2

 We decline to address whether a plaintiff’s compliance with the 

requirements of A.R.S. § 12-821.01(A) regarding timely delivery 

of the notice of claim is an issue for the court or for the jury 

because the parties did not contest this issue below. Compare 

Bonner v. Minico, Inc., 159 Ariz. 246, 254, 766 P.2d 598, 606 

(1988) (noting that the trial court may resolve “jurisdictional 

issues, including those which involve disputed issues of fact” 

which do not go to the merits of the case), with Pritchard v. 

State, 163 Ariz. 427, 433, 788 P.2d 1178, 1184 (1990) 

(concluding that compliance with former version of the notice of 

claims statute was procedural and not jurisdictional). 
11

“traditional means of weighing evidence in order to determine 

whether receipt occurred.” Barnett v. Okeechobee Hosp., 283 

F.3d 1232, 1239 (11th Cir. 2002) (internal quotation marks and 

citation omitted).

¶19 We hold that a filing under A.R.S. § 12-821.01(A) may 

be accomplished through the regular mail, and proof of mailing 

is evidence that the governmental entity actually received the 

notice. The implications of our holding are straightforward. 

If a claimant presents proof of proper mailing – timely sent, 

correctly addressed, and postage paid – and the public entity 

denies receipt, it is for the factfinder to determine if the 

claim was in fact received within the statutory deadline. If 

the claim was so received, and otherwise satisfies the statutory 

requirements, then the claimant may pursue the case on the 

merits. In contrast, despite facts from which a reasonable 

factfinder could conclude the notice of claim did reach the 

public entity, the dissent would extinguish the claim based 

merely on a defendant’s testimony that it has no record of 

receipt.

B. 

¶20 Because we conclude that proof of mailing is evidence 

that the State received Lee’s notice of claim, we must determine 

whether the trial court properly dismissed Lee’s lawsuit. We 
12

treat the State’s motion to dismiss as one for summary judgment 

because the parties presented material outside the pleadings. 

Ariz. R. Civ. P. 12(b). Judgment for the State is therefore 

appropriate only if there are no genuine issues of material fact 

and, with all reasonable inferences drawn in favor of Lee, a 

reasonable factfinder could agree only with the State’s 

position. Ariz. R. Civ. P. 56(c); see Orme Sch. v. Reeves, 166 

Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990).

¶21 The State supported its motion by submitting an 

affidavit from an employee of the attorney general’s office who 

avowed that she searched the office’s record of notices received 

and found none from Lee. Lee, in turn, provided a “proof of 

service” signed under penalty of perjury and created on the day 

the notice was purportedly mailed, indicating that Lee’s 

attorney sent the notice, postage prepaid, to the attorney 

general well before the deadline for its receipt.

¶22 Applying the mail delivery rule as outlined in Andrews 

v. Blake, a reasonable factfinder could reject the State’s 

contention that a notice was never filed. After Lee presented 

proof sufficient to establish the mailing of the notice of 

claim, the State’s denial of receipt rebutted the otherwise 

conclusive presumption of delivery, but did not conclusively 

establish non-receipt. Rather, Lee’s proof of mailing and the 

State’s denial of receipt created a material issue of fact.
13

III. 

¶23 For the foregoing reasons, we reverse the judgment of 

the superior court, vacate the opinion of the court of appeals, 

and remand to the superior court for proceedings not 

inconsistent with this opinion.

 _______________________________________

 W. Scott Bales, Justice

CONCURRING: 

_______________________________________

Michael D. Ryan, Justice

_______________________________________ 

Andrew D. Hurwitz, Justice 

M c G R E G O R, Chief Justice, dissenting: 

¶24 I respectfully dissent. The majority holds that a 

claimant’s assertion that he timely mailed a claim against the 

state is sufficient, if accepted by a trier of fact, to 

establish that the claimant complied with the filing requirement 

of A.R.S. § 12-821.01.A, even if the claimant provides no 

evidence to counter the state’s assertion that it did not 

receive the claim. In my view, that holding fails to give 

effect to the language and purpose of the statute, extends the 
14

application of the mailbox rule far beyond its prior use in 

Arizona, and adopts an approach overwhelmingly rejected by other 

jurisdictions applying comparable notice of claim statutes. I 

would conclude that the filing requirement of § 12-821.01.A 

precludes use of the mailbox rule and that evidence of mailing 

alone, therefore, neither satisfies the statute’s filing 

requirement nor creates a material issue of fact. 

I. 

A. 

¶25 The legislature directs the manner in which a claimant 

may bring suit against the state. Ariz. Const. art. 4, pt. 2, § 

18; see State v. Barnum, 58 Ariz. 221, 231, 118 P.2d 1097, 1101 

(1941) (stating that the state is immune from suit “except upon 

its own terms and conditions”). In A.R.S. § 12-821.01, the 

legislature set forth specific requirements with which a 

claimant must strictly comply: 

Persons who have claims against a public entity or a 

public employee shall file claims with the person or 

persons authorized to accept service for the public 

entity or public employee as set forth in the Arizona 

rules of civil procedure . . . . 

A.R.S. § 12-821.01.A (emphasis added). Unless a claimant 

strictly complies with the statute’s filing requirement, a claim 

against the state is statutorily barred. Id.; Deer Valley 

Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 299 ¶ 21, 
15

152 P.3d 490, 496 (2007) (requiring strict compliance and 

rejecting reasonableness standard); Falcon ex rel. Sandoval v. 

Maricopa County, 213 Ariz. 525, 527 ¶ 10, 144 P.3d 1254, 1256 

(2006) (requiring strict compliance and rejecting actual notice 

and substantial compliance). In determining the meaning of the 

term “file,” the Court must “give effect to the legislature’s 

intent,” Parrot v. DaimlerChrysler Corp., 212 Ariz. 255, 257 ¶ 

7, 130 P.3d 530, 532 (2006) (citation omitted), looking first to 

the statutory language as the “most reliable index of a 

statute’s meaning,” Houser, 214 Ariz. at 296 ¶ 8, 152 P.3d at 

493. 

¶26 The majority justifies its expansive interpretation of 

the statute’s filing requirement and the mailbox rule by noting 

that the legislature could have restricted the meaning of “file” 

but did not. Op. ¶ 12. But the legislature did clearly 

restrict the definition of “file.” It did so by requiring that 

a claimant file his notice of claim “as set forth in the Arizona 

rules of civil procedure.”3

 A.R.S. § 12-821.01.A. The statutory 

                                                           

3

 The majority opinion argues that this interpretation 

misreads the statute because the phrase “as set forth in the 

Arizona rules of civil procedure” must apply only to the phrase 

“person or persons authorized to accept service for the public 

entity” and not to the term “filing.” Op. ¶¶ 13-17. The absence 

of commas in the relevant portion of the statute, however, makes 

the better reading of the statute that the phrase “as set forth 

in the rules” applies to the main clause that precedes it. That 
16

language mandates a filing requirement consistent with that 

required under the rules of civil procedure for commencing an 

action. See Ariz. R. Civ. P. 3 (“A civil action is commenced by 

filing a complaint with the court.”). 

¶27 The meaning of “file” within the rules of civil 

procedure is neither obscure nor open to question. 

Traditionally, “file” requires actual delivery and receipt of a 

claim. See Houston v. Lack, 487 U.S. 266, 274 (1988) 

(acknowledging the “general rule” that receipt by a court clerk 

constitutes filing); United States v. Lombardo, 241 U.S. 73, 76 

(1916) (“Filing . . . is not complete until the document is 

delivered and received. ‘Shall file’ means to deliver to the 

office, and not send through the United States mails.”); 

Casalduc v. Diaz, 117 F.2d 915, 916 (1st Cir. 1941) (“‘Filing’ 

means delivery of the paper into the actual custody of the 

proper officer.”); Creasy v. Coxon, 156 Ariz. 145, 148, 750 P.2d 

903, 906 (App. 1987) (“[T]he claimant must show that delivery 

was actually made.”). 

                                                                                                                                                                                               

is, the statute directs that “persons . . . shall file claims 

. . . with the person authorized to accept service . . . as set 

forth” in the rules of civil procedure. If the legislature 

intended that the “as set forth” phrase modify only the “with 

the person” phrase, the statute should have referred to the 

“person set forth” in the rules, rather than use the phrase “as 

set forth in the rules.” The use of as implies that all the 

matters that come before should be done as set forth in the 

rules of procedure.
17

¶28 The mailbox rule simply does not apply to determine 

whether a document was “filed.” As far as I can determine, 

Arizona has never applied the mailbox rule to extend the time 

for filing a document used to initiate a civil proceeding and 

has never regarded a mailing affidavit as evidence sufficient to 

establish actual delivery and receipt. None of the authorities 

relied upon by the majority even suggest that the mailbox rule 

applies to a claim “filed” in accord with the rules of civil 

procedure. Rather, the cases the majority cites apply the 

mailbox rule to establish a party’s receipt of various 

documents. See Rosenthal v. Walker, 111 U.S. 185, 193 (1884) 

(using the mailbox rule to show the plaintiff’s receipt of 

letters mailed to him); Andrews v. Blake, 205 Ariz. 236, 242 n.3 

¶ 22, 69 P.3d 7, 13 n.3 (2003) (allowing the mailbox rule to 

create a presumption of receipt by the plaintiff of the 

defendant’s letter exercising an option to purchase land); State 

v. Mays, 96 Ariz. 366, 367-69, 395 P.2d 719, 720-22 (1964) 

(applying the mailbox rule to show notice of a closed bank 

account to support a conviction of drawing checks with the 

intent to defraud). 

¶29 Courts most frequently consider the relationship 

between mailing and filing when documents are mailed within the 

time permitted for filing, but are received after the deadline 

for filing has passed. In such cases, Arizona courts have 
18

consistently rejected the suggestion that mailing a document 

within the requisite time limit constitutes timely filing. In 

1928, for example, this Court refused to set aside a default 

judgment in Garden Development Company v. Carlaw, 33 Ariz. 232, 

234, 263 P. 625, 625 (1928). In Carlaw, the Court concluded 

that the appellant, who waited “until the eve of default day” to 

mail his answer, which was received late by the clerk, was not 

excused of his untimely filing. Id. By waiting to mail the 

document, the appellant was “hazarding the chance that it would 

reach the clerk by mail on time to prevent default.” Id.

¶30 The court of appeals has also held that mailing within 

a time limit does not satisfy a timely filing requirement. In 

Todd v. Todd, the appellant mailed a notice of appeal, which the 

clerk’s office stamped as having been filed one day late. 137 

Ariz. 404, 407-08, 670 P.2d 1228, 1231-32 (App. 1983). The 

court stated: “While the evidence would support a prima facie

showing that the notice of appeal was timely mailed . . . there 

is no evidence to indicate that this mailing was timely received 

in the Maricopa County Superior Court.” Id. at 407, 670 P.2d at 

1231. The appellant, thus, did not sustain his burden of proof 

that the notice was timely received. Id. at 408, 670 P.2d at 

1232. 

¶31 In an analogous case, Smith v. Industrial Commission, 

the court of appeals refused to interpret a workers’ 
19

compensation statute as equating mailing with applying for a 

petition for a writ of certiorari. 27 Ariz. App. 100, 101-02, 

551 P.2d 90, 91-92 (1976). The relevant statute in Smith stated 

that a decision became final unless a party applied for a writ 

of certiorari within thirty days. Id. at 101, 551 P.2d at 91. 

The petitioner argued that his petition for writ of certiorari, 

mailed within the thirty-day period, satisfied the statute 

because the statute required only that he “apply,” as opposed to 

“file” his petition within thirty days. Id. at 101-02, 551 P.2d 

at 91-92. The court rejected his contention, reasoning that 

“[t]here is nothing in the meaning of the word ‘apply’ which 

would permit compliance by mailing any more than there is in the 

word ‘file.’ Moreover, we are referred to no instances where 

court proceedings are deemed commenced by the act of mailing.” 

Id. at 102, 551 P.2d at 92. The court concluded: “To read the 

word ‘apply’ as petitioner would have us read it would be to 

indulge in verbal legerdemain.” Id. 

¶32 Other jurisdictions also have repeatedly refused to 

apply the mailbox rule to the filing of a document with the 

clerk of court. See Raymond v. Ameritech Corp., 442 F.3d 600, 

604 (7th Cir. 2006) (“The posting of papers addressed to the 

clerk’s office does not constitute ‘filing.’”); McIntosh v. 

Antonino, 71 F.3d 29, 36-37 (1st Cir. 1995) (documents not 

timely filed when mailed on the last day of the statute of 
20

limitations, and received on the following day); Torras Herreria 

y Construcciones, S.A. v. M/V Timur Star, 803 F.2d 215, 216 (6th 

Cir. 1986) (“Filings reaching the clerk’s office after a 

deadline are untimely, even if mailed before the deadline.”); 

Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1472 (11th Cir. 

1984) (“[S]imply depositing the notice in the mail is not the 

same as filing it.”); In re Bad Bubba Racing Prods., Inc., 609 

F.2d 815, 816 (5th Cir. 1980) (recognizing the “‘wellestablished’ principle” that “deposit of notice in the mail is 

not equivalent to filing it”); Allen v. Schnuckle, 253 F.2d 195, 

197 (9th Cir. 1958) (“Delivery . . . to a post office employee 

did not constitute a filing.”); see also Charles Alan Wright & 

Arthur R. Miller, 16A Federal Practice and Procedure § 3949.1 

(3d ed. 1999) (stating the general rule that “deposit in the 

mail is not sufficient of itself to constitute filing with the 

clerk” and the “one exception” for pro se inmates). The 

legislative direction that claims be “filed” as required by the 

rules of procedure, made in the plain language of A.R.S. § 12-

821.01.A, mandates that we treat the filing requirement under 

the notice of claim statute in the same manner as we and other 

jurisdictions have consistently treated filing with a court. 

¶33 Until today’s decision, the sole exception to the 

formal filing requirement involved the “prisoner mailbox rule,” 

recognized by the United States Supreme Court in 1988. See 
21

Houston, 487 U.S. at 276. Under this exception, pro se inmates 

can comply with a “filing” requirement by delivering a document 

“to the prison authorities for forwarding to the court clerk.” 

Id. In reaching its decision, the Court discussed the “large 

body of lower court authority” that has rejected the mailbox 

rule, id. at 274, and contrasted the unique situation of pro se 

inmates with that of general civil litigants, id. at 270-71, 

275. Unlike pro se inmates, the Court explained, civil 

litigants are not forced to risk their filings with “the 

vagaries of the mail and the clerk’s process for stamping 

incoming papers,” but instead “can follow [their] progress by 

calling the court to determine whether the notice has been 

received and stamped, knowing that if the mail goes awry they 

can personally deliver notice.” Id. at 271. Arizona has 

applied the prisoner mailbox rule of Houston on several 

occasions. See State v. Goracke, 210 Ariz. 20, 23 ¶ 10, 106 

P.3d 1035, 1038 (App. 2005) (petition for review to the Arizona 

Supreme Court); State v. Rosario, 195 Ariz. 264, 266 ¶ 10, 987 

P.2d 226, 228 (App. 1999) (petition for post-conviction relief); 

Mayer v. State, 184 Ariz. 242, 244, 908 P.2d 56, 58 (App. 1995) 

(notice of appeal). We have not, however, adopted any other 

exception under which mailing a document fulfills a requirement 

that the document be filed. 
22

¶34 I see no justification for expanding the pro se inmate 

exception to claimants under A.R.S. § 12-821.01.A. The 

situation of an ordinary claimant submitting a notice of claim 

to the state is identical to that of a civil litigant filing a 

document with the clerk of court. Ensuring that the state 

receives a notice of claim is an easy task. Like a civil 

litigant, a claimant can personally deliver the claim, send the 

claim via certified mail, or contact the state to verify receipt 

of the claim. Although a claimant is free to choose to send a 

claim by regular mail, that choice does not excuse the failure 

of the claimant or his attorney to ascertain whether the state 

received the claim. Given the plain language of the statute, it 

is not for this Court to excuse a claimant or his lawyer from 

complying with the statutory requirements.4

B. 

¶35 The majority’s approach not only fails to follow the 

clear language of the statute by “reading out” the requirement 

that claims be filed as required by the rules of civil 

procedure, but also chooses an interpretation inconsistent with 

                                                           

4

 Because this opinion involves the interpretation of a 

statute, the Legislature, if it chooses to do so, can amend the 

language of A.R.S. § 12-821.01.A to limit the methods through 

which a claimant must file a claim against the government. See 

Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 17, 69 P.3d 23, 27 

(2003) (“[I]f the court interprets the statute other than as the 

legislature intended, the legislature retains the power to 

correct us.”). 
23

the purpose of the claims statute. As we have recognized 

several times, A.R.S. § 12-821.01.A exists to provide notice to 

the state “to allow the public entity to investigate and assess 

liability, to permit the possibility of settlement prior to 

litigation, and to assist the public entity in financial 

planning and budgeting.” Falcon, 213 Ariz. at 527 ¶ 9, 144 P.3d 

at 1256 (quoting Martineau v. Maricopa County, 207 Ariz. 332, 

335-36 ¶ 19, 86 P.3d 912, 915-16 (App. 2004)). These functions 

are frustrated, indeed made impossible to accomplish, if the 

Court allows an assertion of mailing to substitute for actual 

receipt of a notice of claim. 

¶36 If a notice of claim is not filed with the state, the 

state has no opportunity to investigate or assess the claim’s 

validity and no ability to engage in financial planning and 

budgeting. In stark contrast to the ease with which a claimant 

can ensure the proper filing of a notice of claim, the state, 

absent actual receipt of a claim, has no ability at all to carry 

out its duty to evaluate a claim against it. The Court should 

avoid a statutory construction that prevents or makes unlikely 

carrying out the statute’s purpose. 

¶37 The majority’s conclusion that a claimant can 

potentially satisfy the filing requirements with mere proof of 

mailing also is inconsistent with this Court’s insistence that 

claimants strictly comply with the notice of claim statute. In 
24

Falcon, the claimant delivered a notice of claim to one member 

of the county board of supervisors, rather than to the chief 

executive officer of the board. Id. at 526 ¶ 2, 144 P.3d at 

1255. We held that service on one member of the board, even if 

it provided actual notice of a claim, did not comply with the 

notice requirements and did not serve the purpose of the 

statute. Id. at 531 ¶ 34, 144 P.3d at 1260. The claim was 

therefore statutorily barred. Id. In reaching our decision, we 

emphasized the strict notice of claim requirements and stated: 

“Actual notice and substantial compliance do not excuse failure 

to comply with the statutory requirements of A.R.S. § 12-

821.01(A).” Id. at 527 ¶ 10, 144 P.3d at 1256. 

¶38 Similarly, in Houser, we held that § 12-821.01.A 

barred a properly filed notice of claim because the notice did 

not include a specific settlement amount, as required by the 

statute. 214 Ariz. at 296-97 ¶ 11, 152 P.3d at 493-94. We 

rejected the “reasonableness standard” urged by the claimant. 

Id. at 299 ¶ 21, 152 P.3d at 496. We reasoned that “fundamental 

principles of statutory construction do not allow us to ignore 

the clear and unequivocal language of the statute,” which the 

legislature intended to “establish specific requirements that 

must be met for a claimant to file a valid claim with a 

government entity.” Id. (citation and internal quotation 

omitted). 
25

¶39 Rather than follow the approach of Falcon and Houser, 

which require strict compliance with the notice of claim 

statute, the majority’s opinion rather inexplicably allows far 

less than strict compliance with the filing requirement itself, 

the initial and most indispensible requirement within the notice 

of claim statute. 

C. 

¶40 The majority’s approach not only seems inconsistent 

with the language and purpose of Arizona’s statute, but also 

departs from the nearly unanimous approach taken by other 

jurisdictions interpreting analogous notice of claim statutes. 

Under the Federal Tort Claims Act (FTCA), for example, a 

claimant with a cause of action against the United States must 

have first “presented” the claim to the appropriate federal 

agency. 28 U.S.C. § 2675(a) (2006). Numerous courts have 

concluded that the “present” requirement is inconsistent with 

the mailbox rule. In Vacek v. United States Postal Service, the 

Ninth Circuit rejected a claimant’s argument that the common law 

mailbox rule creates a presumption that the government received 

a claim under the FTCA. 447 F.3d 1248, 1251-52 (9th Cir. 2006). 

Focusing on the requirement of governmental consent to be sued 

and the “minimal effort” necessary to comply with the statute’s 

requirement of receipt, the Ninth Circuit concluded that the 
26

mailbox rule should not extend to claims brought under the FTCA. 

Id. at 1252. The court reiterated that it would not “stretch 

and distort the statute and the regulation to rescue counsel 

from their own carelessness.” Id. at 1253 (quoting Bailey v. 

United States, 642 F.2d 344, 347 (9th Cir. 1981)). 

¶41 Other jurisdictions, including the Seventh and Eighth 

Circuits, have also held that mailing alone does not satisfy the 

FTCA’s requirement that the claim be “presented” to the 

appropriate governmental agency. See Bellecourt v. United 

States, 994 F.2d 427, 430 (8th Cir. 1993) (finding that the 

claimant’s request was not received by the governmental agency, 

despite the claimant’s argument that the mailbox rule should 

apply); Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985) 

(validating the district court’s conclusion that “mailing is not 

presenting” and concluding that the claimant had not presented 

her administrative claim because the claimant provided no 

evidence to contradict the government’s affidavit alleging nonreceipt); see also Payne v. United States, 10 F. Supp. 2d 203, 

205 (N.D.N.Y. 1998) (concluding that claimants did not satisfy 

the filing requirement of the FTCA because the federal agency 

denied receipt and the letter alleging that notice was mailed 

was not evidence of actual receipt); Crack v. United States, 694 

F. Supp. 1244, 1246-48 (E.D. Va. 1988) (explaining that mailing 

does not satisfy the “presentment” requirement of the FTCA and 
27

presentment is not satisfied if the claimant offers no evidence 

to rebut an agency’s evidence of non-receipt). 

¶42 The majority’s use of language from Barnett v. 

Okeechobee Hospital provides little support for its conclusion. 

See Op. ¶ 18. In addition to the fact that the Barnett decision 

reflects a distinctly minority view, it is factually dissimilar 

to the present case. See 283 F.3d 1232, 1234-35 (11th Cir. 

2002). In that case, the federal government admittedly received 

Barnett’s initial certified letter, but not a second letter 

using a government-provided form. Id. In that context, the 

court applied the mailbox rule. Here, the State asserts it 

never received any notice of Lee’s claim. Moreover, Barnett 

based its ruling on the notion that the government should be 

treated exactly as a private defendant and applied the common 

law mailbox rule rather than the plain language of the FTCA. 

Id. at 1239-40. Arizona’s statute, however, requires that a 

claimant against the government be treated in the same manner as 

a litigant bringing an action against a private defendant: Both 

must file their claims as set out in the Arizona Rules of Civil 

Procedure. See A.R.S. § 12-821.01.A. That requirement, not the 

status of the defendant, precludes application of the mailbox 

rule. See Lombardo, 241 U.S. at 76-77 (refusing to apply the 

mailbox rule to a statute that required filing with a 

governmental agency). 
28

¶43 The result in this case should be dictated by the 

language of A.R.S. § 12-821.01.A, which requires that notice of 

claims be “filed” with the appropriate state agency pursuant to 

the rules of civil procedure. I would hold, in keeping with the 

statutory language and in company with other jurisdictions, that 

the filing requirement cannot be subject to the common law 

mailbox rule.5

 

D. 

¶44 Finally, the practical import of the majority’s 

holding is unclear: Because the majority ventures into new 

territory, its opinion leaves unanswered several critical 

questions, including who determines whether a notice was “filed” 

and how this determination is made. 

¶45 Under the majority’s resolution, the trial judge will 

face those questions on remand and must choose among several 

approaches. On the one hand, the judge might treat the issue 

whether Lee “filed” his claim as a preliminary fact question, 

similar to a jurisdictional issue, or as a matter in abatement. 

If either of those approaches is adopted, the question of 

whether Lee filed the claim presumably is a question for the 

                                                           

5

 Contrary to the majority’s suggestion, that conclusion does 

not mean that a claim would be extinguished “based merely on a 

defendant’s testimony that it has no record of receipt.” Op. ¶ 

19. It does mean that, faced with such testimony, a claimant 

must present evidence of actual receipt, which this claimant 

admittedly cannot do. 
29

judge to resolve. See Ritza v. Int’l Longshoremen’s & 

Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988) 

(recognizing that a “failure to exhaust nonjudicial remedies is 

a matter in abatement, not going to the merits of the claim,” 

and that the court has broad discretion to resolve “factual 

issue[s] [that] arise[] in connection with a jurisdictional or 

related type of motion” (citation omitted)); Bailey v. United 

States, 642 F.2d at 347 (stating that “the district court 

properly concluded” that the government had not received the 

claim); Phillips v. Ariz. Bd. of Regents, 123 Ariz. 596, 599, 

601 P.2d 596, 599 (1979) (“[T]here is a lack of jurisdiction 

when there has been a failure to comply with a prerequisite to 

the court’s considering the merits of a claim.”). 

¶46 On the other hand, Lee may argue on remand that 

Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990), 

requires the issue of filing to be decided by a jury. In 

Pritchard, this Court held that the factual issue of whether a 

claimant’s failure to comply with the time limitation in 

Arizona’s notice of claim statute was excusable must be 

determined by a jury. Id. at 432-33, 788 P.2d at 1183-84. We 

reasoned that under the then-applicable version of A.R.S. § 12-

821, which permitted untimely filing due to “excusable neglect,” 

the time element was not jurisdictional, but procedural, in 

nature. Id. at 432, 788 P.2d at 1183. Pritchard, however, 
30

decided a statutory question no longer at issue because the 

legislature amended the statute to remove the “excusable 

neglect” exception in favor of language that requires strict 

compliance with the statutory filing prerequisites. Compare

A.R.S. § 12-821.01.A with A.R.S. § 12-821.A (1992). 

¶47 Even if Pritchard can be interpreted as requiring that 

a jury decide whether a claim was “filed” under § 12-821.01.A, 

the question remains as to how a jury makes this determination. 

If a jury should decide that question in a separate proceeding 

before a trial on the merits of the claim commences, we will 

have encouraged satellite litigation to decide the issue. Or 

the majority opinion may anticipate a bifurcated trial in which 

the jury first decides receipt, and if receipt is found, then 

decides recovery. That approach will, in those instances in 

which the jury decides no claim was filed, subject the parties 

to unnecessary expense and delay. 

II.

¶48 The language of Arizona’s notice of claim statute is 

clear: A claim must be “filed” as set forth in the Arizona 

Rules of Civil Procedure. Arizona, in company with the 

overwhelming majority of jurisdictions, has never applied the 

mailbox rule to initial civil filing requirements. Particularly 

in view of this Court’s insistence that a claimant strictly 
31

comply with the requirements of § 12-821.01.A, we should reject 

the invitation to expand the mailbox rule. The trial court 

correctly dismissed this action for failure to comply with the 

statute. 

 __________________________________ 

 Ruth V. McGregor, Chief Justice 

CONCURRING: 

_______________________________________ 

Rebecca White Berch, Vice Chief Justice