Family involved in fatal mix-up after crash suing state

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By Alicia Barron By Alicia Barron

A Glendale family has filed a lawsuit against the state following an identity mix-up that led them to believe their daughter had died in car crash last summer west of Phoenix when she was actually alive.

Sergio and Maria Guerra are suing the Department of Public Safety, claiming DPS failed to follow protocols when officers said their daughter Abby Guerra died in a car crash in last July.

Guerra, 20, along with Marlena Cantu and several other friends, were on their way back to the Valley from Disney last July when their vehicle rolled-over on the I-10 near Tonopa.

DPS Officers initially told the Guerras that Abby had died in the crash only to discover six days later than Cantu was the deceased victim, Guerra remained in the hospital fighting for her life.

Mick Levin, attorney for the Guerras, says they've decided to pursue a lawsuit against D.P.S. because the agency has not responded for the families request to discuss how they can improve their procedures.

"DPS unfortunately has not come to the table, they're not willing to talk to us," said Levin.

Bart Graves, a DPS spokesman, declined comment because the lawsuit is pending, but said the department has not conducted any internal investigations regarding the case.

In a notice of claim filed on behalf of the Guerras in January Levin asked for $250,000 in damages. He said Tuesday the family is not looking for money and would rather get a commitment from DPS to improve their protocols.

"They're not looking for money, they're looking for a policy change and they're looking for a conversation so that something like this doesn't happen again," said Levin.

Earlier in the year Levin filed a notice of claim against the Maricopa County Medical Examiner's office on behalf of the Guerras, but that claim has since been dropped after the County agreed to work with the family to improve their practices.

The County Medical Examiner's office also helped craft legislation known as "Abby's Law," which allows family members to participate in the identification of a dead body if their is a question about identity. Governor Jan Brewer signed the bill into law in the spring. 

Attorneys for the family members of Marlena Cantu filed notices of claim against the State and County earlier this year, but they did not return calls about the status of those claims on Tuesday.

The Associated Press contributed to this story