Hosogai v. Kadota
In Hosogai v. Kadota, 145 Ariz. 227, 229, 700 P.2d 1327, 1329 (1985) the Arizona Supreme Court found equitable tolling was appropriate during the pendency of a wrongful death suit resulting in a jury verdict that was vacated on appeal for lack of proper service of process and then refiled in the same court.
In that context, and recognizing that the court was construing a statutory limitations period adopted by the Legislature, Hosogai noted that "Arizona does not have a general savings statute for civil actions." Id. at 230, 700 P.2d at 1330.
Hosogai then rejected a "presumption that mere silence on a particular subject necessarily indicates legislative disapproval in all cases," adding that it found no bill had been presented to the Legislature "for a general civil savings statute" or any legislative "disapproval of savings statutes generally or the equitable tolling doctrine in particular." Id. at 230-31, 700 P.2d at 1330-31.
Hosogai added that "a court has a legitimate interest in the procedural rules that govern lawsuits, especially to prevent such rules from becoming a shield for serious inequity.
Accordingly, a court may under certain circumstances make narrow equitable exceptions to statutes of limitations." Id. at 231, 700 P.2d at 1331.
In concluding such a narrow equitable exception was appropriate in that context, Hosogai cited American Pipe for the proposition that courts have "applied the doctrine of equitable tolling to successive identical actions arising within the same court system," noting "there is no general savings statute in federal civil actions." Id. at 231, 233, 700 P.2d at 1331, 1333.
Hosogai, however, had no need to consider or adopt American Pipe tolling.
Hosogai did, however, evidence caution by the Arizona Supreme Court against broadly adopting tolling concepts in construing statutory limitations periods.
Hosogai noted that the "narrow equitable exception to the statute of limitations" on the distinguishable facts of that case "is far from the equivalent of a savings statute." Id. at 234, 700 P.2d at 1334.
And recognizing that equitable tolling, in substance, involves construing statutory limitations periods, Hosogai concluded that "as overseers of the judicial system in this state, we call upon the legislature to pass a general savings statute in civil actions." Id.