Purdy v. Metcalf, No. 2 CA-SA 2021-0039 (App. Div. II, September 24, 2021) (J. Staring)
Punitive damage instruction appropriate in wrongful death case where evidence supports conclusion defendant professional driver was distracted by cell phone use while driving at excessive speed from wrong side of commercial truck when he ran a red light causing collision with plaintiffs.
State v. Fox, No. CR-20-036-PR (September 20, 2021) (J. Bolick) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CR200306PR.pdf
Crime victim has constitutional right to be heard on the merits of a defendant's attempt to delay appeal.
Grunwald v. Scottsdale Healthcare Hospitals, No. 1 CA-CV 20-0188 (App. Div. I, August 26, 2021) (J. Thumma) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/CV20-0188%20-%20Grunwald%20OP.pdf
Hospital lien for difference between what health insurance paid and what hospital customarily charges ("Balance Billing") valid against car accident victims because plaintiff's health insurance providers are not "health care services organizations" under A.R.S. § 20-1072(F) (2021).
Canas v. Bay Entertainment, LLC, No. 1 CA-CV 20-0127 (August 26, 2021) (J. Swann) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/1%20CA-CV%2020-0127.pdf
Common law torts of right of publicity, invasion of privacy and false light not preempted by federal copyright law or precluded by statutory right of soldiers to such protections.
Tortolita Veterinary Services, PC v. Rodden, No. 2 CA-CV 2020-0070 (App. Div. II, August 27, 2021) (J. Staring) https://www.appeals2.az.gov/decisions/CV20200070Opinion.pdf
Liquidated damages in covenant not compete clause enforceable where it approximates loss anticipated by breach at time of contract creation or actual loss/tortious interference with business relationship supported by employer's facilitating a knowing breach of covenant not to compete by employees.
American Civil Liberties Union v. Arizona Dept. of Child Safety, No. CV 20-0030-PR (August 25, 2021) (J. Beane) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CV200030PR.pdf
A.R.S. § 39-121.02(B) Party seeking public records entitled to Attorney's fees & costs if "substantially prevailed" - "More successful than not in obtaining records".
Rizzio v. Surpass Senior Living LLC, No. CV-20-0058-PR (August 17, 2021) (J. Montgomery) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CV200058PR.pdf
Contractual agreement to arbitrate disputes may be found substantively unconscionable if it requires plaintiff to bear all costs and fees of defendant if plaintiff shows financial inability to pay. Court may consider plaintiff's fee contract with her attorney where attorney agrees to advance all costs in determining substantive unconscionability.
Sampson v. Surgery Center of Peoria, No. CV-210-0024-PR (July 30, 2021) (J.Bolick) https://supremestateaz.granicus.com/player/clip/3145?view_id=11&redirect=true
Where cause of death is disputed in medical malpractice case causation must be proven by expert testimony.
- Mesnard v.Campagnolo, No. CV20-0209-PR (June 30, 2021) (J. Timmer) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CV200209PR.pdf The speaker of the houseordering an outside law firm to investigate alleged sexual harassment claims against another member of the house of representatives, editing and then disseminating that report to all members of the house and the public is a legislative function and thus protected by absolute legislative immunity/issuing a press release concerning the investigation and its aftermath is not a legislative function and therefore not immune from tort claims of defamation and conspiracy to defame.
Hardeman v. Monsanto Co., Nos. 19-16636 19-16708 (9th Cir., May 14, 2022) (J. Nelson) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/14/19-16636.pdf
California failure to warn law consistent with federal Insecticide, Fungicide & Rodenticide Act thus not preempted/plaintiffs' experts testimony admissible under Daubert where based upon reliable scientific standards and punitive damages reduced to $20 million for a 3.8 to 1 damage ratio comports with due process.
Heaphy v. Willow Canyon Healthcare, Inc, No. 2 CA-CV 2020-0113 (App. Div. II, May 18, 2021) (J. Espinosa) https://www.appeals2.az.gov/decisions/CV20200113Opinionwithcoverpagecorrection.pdf
Healthcare power of attorney does not give wife authority to bind her husband or his estate to an optional arbitration agreement when admitting him to a nursing home especially where she failed to sign that she was the legal representative or agent.
Major v. Coleman, No. 2 CA-CV 2020-0081 (App. Div. II, May 5, 2021) (J. Eppich) https://www.appeals2.az.gov/decisions/CV20200081Opinion.pdf
Trial Court has jurisdiction to dismiss an action with prejudice upon settlement while retaining authority to enforce the settlement.
Ford Motor Co. v. Montana, No. 19-368 (March 25, 2021) (J. Kagan) https://www.supremecourt.gov/opinions/20pdf/19-368_febh.pdf
Residents of state where accident occurred have personal jurisdiction in that state over Ford Motor Co. which does substantial business in the state.
- Maclean v. Newgioco Group, Inc., No. 1 CA-CV 20-0164 (App. Div. I, March 16, 2021) (J. Portley) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/CV%2020-0164%20MacLean%20OP.pdf Application for default judgement must identify and give notice to any attorney known to represent party in default.
Academy of Country Music v. Continental Casualty Co., No. 20-55589 (9th Cir. March 22, 2021) (J.Callahan) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/22/20-55589.pdf
Notice of removal to federal court on diversity grounds does not require proof that the amount in controversy exceeds $75,000; "Plausible Allegations" will suffice.
- Shepherd v. Costco Wholesale Corp., No. CV-19-0144-PR (March 8, 2021) (J. Montgomery) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/ASC-CV190144%20-%203-8-2021%20-%20FILED%20-%20OPINION.pdf Plaintiff need not allege bad faith or rebut the HIPAA good faith presumption in his complaint when asserting a claim of negligent disclosure of medical information.
- France v. The Industrial Comm’n, No. CV-20-0068 PR (March 2, 2021) (J. Gould) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CV200068PR-Amended.pdf Work-related mental injury is compensable if the specific event causing the injury was objectively "unexpected, unusual or extraordinary"-As viewed from the standpoint of a reasonable employee with the same or similar job duties and training as claimant.
- Cavallo v. Phoenix Health Plans, Inc., No. 1 CA-CV 20-0167 (App. Div. I, February 23, 2021) (J. McMurdie) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/1%20CA-CV%2020-0167%20(Cavallo).pdf Insurer may raise contract defense of waiver to defeat portion insurance bad faith tort claim.
- Apollo Education Group, Inc. v. National Union Fire Ins. Co., No. CV-19-0229-CQ (February 17, 2021) (J. Bolick) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CV190229CQ.pdf Under insurance policy without a contractual duty to defend, objective reasonableness of insurer's decision to withhold consent to settlement is assessed from the perspective of the insurer and not the insured.
- In re M.G., No. 1 CA-CV 20-0467 (App. Div. I, February 9, 2021) (J.Howe) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/CV%2020-0467%20In%20re%20M.G.%20and%20R.G.pdf When child's only living parent dies parental rights are terminated allowing for appointment of guardian.
- Villanueva v. State of Calif., D.C. No. 8:17-cv-01302-JLS-KES (January 28, 2021) (J. Warlaw) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/28/19-55225.pdf Freedom of movement of passenger in car is terminated when police shoot at the car and question of fact exists regarding use of excessive force when officers shot passenger and driver when driver was driving car slowly towards officers.
- Solorzano v. Jensen, 1 CA-CV 19-0772 (App. Div. I, December 29, 2020) J. Winthrop In deciding is sue requiring assessment of credibility of witness due process requires court allow sworn live testimony.
- Christakis v. Deitsch, No. 1 CA-CV 19-0344 (App. Div. I, December 1, 2020) (J. Swann) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2019-0344.pdf Ecclesiastical abstention doctrine not applicable to bar tort claims even where they arise out of an ecclesiastical matter/publication to only three people does not meet the publication threshold to sustain a claim for false light invasion of privacy/wrongly accusing someone of being a pedophile is sufficient to support a claim of intentional infliction of emotional distress.
- Cortesluna v. Leon, No. 19-15105 (9th Cir., October 27, 2020) (J. Garber) https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/27/19-15105.pdf Police officers have qualified immunity when court finds their use of force was objectively reasonable/controlling precedent puts police officers on notice that kneeling on plaintiff while he lies face down creates question of fact as to whether excessive force was used.
Haught v. Payson Healthcare, NO. 2-CA-CV 2019 (Az App. Div. I, Ocotober 30, 2020) (J.Vasquez) https://www.appeals2.az.gov/decisions/CV20190150Opinion.pdf
Impermissible to ask multiple treating doctors expert opinions in medical negligence case-violates one expert per issue rule/impermissible to fail to elicit expert opinions different than those stated in party's disclosure statement.
- Harianto v. State, No. 1 CA-CV 18-0446 (App. Div. I, September 24, 2020) (J. Brown) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV18-0446%20Harianto%20OP.pdf ADOT & DPS dispatchers have qualified immunity against claim of negligence in dispatching officers to apprehend crime in progress/citing vacated decisions not permitted even if vacated on grounds different from the issue before the court.
- JTF Aviation Holdings Inc. v. CliftonLarsonAllen LLP, No. CV2017-003641 (September 18, 2020) (J. Montgomery) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190209PR.pdf Contract barring tort claims not enforceable against non-party to contract/closely related party doctrine.
- Clayton v. Kenworthy, No. 1 CA-SA 20-0086 (App. Div. I, September 15, 2020) (J. Howe) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/SA%2020-0086%20Clayton%20v.%20Hon.%20Kenworthy.pdf Rule 35 does not give court discretion to bar recording an examination upon a party's request.
- Clements v. Bernini, No. CR-19-0140-PR (September 9, 2020) (J. Brutinel) Party claiming attorney-client privilege must make prima facie showing privilege applies/court may hold hearing to determine whether privilege applies/court may not invade the privilege to determine its existence even with in camera special master/party attempting to set aside privilege based upon crime-fraud exception must demonstrate good faith and reasonable factual basis to support in camera review of communication.
- Torres v. JAI Dining Services Inc., No. 1 CA-CV 19-0544 (App. Div. I, July 16, 2020) (J. Winthrop) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2019-0544%20-%20Torres.pdf Where driver becomes intoxicated at bar then drives home, sleeps, gets up and drives again causing injury in car crash, sleeping at home constitutes intervening superceding cause.
- Standard Constr. Co. Inc. v. State, No. 1 CA-CV 19-0411 (App. Div. I, September 3, 2020) (J. Swann) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2019-0411.pdf Where parties are contractually obligated to submit to alternative dispute resolution NOC deadline is tolled until ADR procedure is "exhausted".
- Perdue v. La Rue, No. 1 CA-CV 19-0657 (App. Div. I, September 3, 2020) (J. Howe) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV%2019-0657%20Perdue%20v.%20La%20Rue.pdf Sham Affidavit doctrine requires court to disregard affidavit filed in contradiction to deposition testimony in different legal proceeding when deciding motion for summary judgement.
- Slayton v. State, No. CR-19-0118-PR (August 4, 2020) (J. Brutinel) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR190118PR.pdf Cap on amount of restitution defendant may be liable to pay in plea agreement without victim's consent violates victim's right to restitution/no constitutional right to cap on amount of restitution/lawyer representing victim has a presumptive right to sit in front of the bar in courtroom during a proceeding where victim's constitutional or statutory rights are at issue.
- Ibarra v. Gastelum, No. 1 CA-CV 19-0597 (App. Div. I, July 23, 2020) (J. Thumma) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV19-0597%20-%20Ibarra.pdf Violation of landlord/tenant statute requiring landlord keep apartment "fit and habitable" is not negligence per se/landlord tenant act makes no reference to personal injury actions, does not create a specific legal requirement only a general standard of care.
Dinsmoor v. City of Phoenix, No. 1 CA-CV 19-0045 (App., Div. I, June 30, 2020) (J. Cattani) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2019-0045.pdf
School-student relationship may give rise to duty to protect student from reasonably foreseeable off-campus shooting.
- State v. Stuebe, No. 1CA-CR 19-0032 (App. Div. I, June 30, 2020) (J. Morse) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CA-CR%2019-0032%20State%20v%20Stuebe%20OP%20-%20FINAL.pdf Automated email & machine produced video not hearsay because not made by a person.
- In Re MH 2019-004895, No. 1 CA-MH 19-0065 (App. Div. I, June 23, 2020) (J. Brown) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/MH%2019-0065%20OP.pdf Behavioral health professional-client privilege protects information obtained in relationship with client and not just communications.
- Heaphy v. Metcalf, No. 2CA-SA 2020-0001 (App. Div. II, June 18,2020) (J. Eppich) https://www.appeals2.az.gov/decisions/SA20200001Opinion.pdf Medical records of beneficiary in wrongful death case not discoverable unless beneficiary puts medical condition at issue/that life expectancy of beneficiary is at issue does not make records discoverable.
Humphrey v. State, I CA-CIV 16-0570 (App. Div. I, April 30, 2020) (J. Brown) Notice of claim deadline accrues when plaintiff knows or reasonably should know cause of damage/when facts are not in dispute it is not a question for the jury.
Sholum v. Gass, No. CV-19-0149-PR (March 30,2020) (J. Gould) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190149.pdf Rule 4(i) requires extension of time to serve a complaint not originally served within the required 90 days when good cause is shown but court has discretion to extend even if good cause is not shown and plaintiff need not show excusable neglect.
- Ansley v. Banner Health Network, No. CV-19-0077-PR (March 9, 2020) J. Bolick https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190077PR.pdf Arizona Statutes authorizing the recording of liens against third party tortfeasors for hospitals to recover health care costs exceeding their Medicaid reimbursement (Balance Billing) is disallowed by federal preemption.
- Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen, No. CV 2018-00428 (February 25, 2010) (J. Timmer) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190123PR%20FILED.pdf Entity claiming tribal sovereign immunity as a subordinate economic organization has burden of proving by preponderance of the evidence that its creation and business form, purpose, relationship with the tribe, tribe's intent to share immunity, financial relationship with tribe and federal policies weigh in favor of finding immunity.
- Brown v. Dembow, No. 1 CA-CV 19-0054 (App. Div. I, February 25, 2020) (J. Thumma) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV19-0054%20-%20Brown.pdf Prior conviction that could be designated a felony but was ultimately designated a misdemeanor could not be used to impeach defendant under Rule 609.
Fields v. Elected Officials Retirement Plan,No. 1 CA-CV 18-0126 (App. Div. I, February 6, 2020) (J. Weinzweig) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2018-0126%20-%20Fields%20v.%20EORP%20-%20FINAL.pdf Successful party entitled to Attorneys' fees under A.R.S. § 12-341.01 where party contractually obligated to seek and pay attorneys fees awarded.
Tuuamalemalo v. Greene, No. 18-156665 (9th Cir. December 24, 2019) (J. Fletcher) https://law.justia.com/cases/federal/appellate-courts/ca9/18-15665/18-15665-2019-12-24.html Use of choke hold on a non-resisting restrained person violates 4th Amendment prohibition against use of excessive force.
- Center for Auto Safety v. Goodyear Tire & Rubber Co., No. 1 CA-CV 18-0244 (App. Div. I, November 26, 2019) (J. Swann) Arizona Rule of Civil Procedure 5.4 and the Uniform Trade Secret Act protect trade secrets even in the face of important public safety interest in disclosure.
- Rojas v. State, No. 2 CA-CR 2018-0271 (App. Div. II, August 28, 2019) (J. Eppich) https://www.appeals2.az.gov/decisions/CR20180271%20Opinion.pdf Where courtroom observer posts video of trial showing some of the jurors in the video and posts it on social media and some jurors become aware of the post and express concern over public reaction that might be directed at them in deciding guilt or innocence in a sexual misconduct with a minor case, trial court appropriately granted new trial.
- Brush & Nib Studio, LC v. City of Phoenix, No. CV-18-0176-PR (September 16, 2019) (J. Gould) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2019/Brush%20and%20Nib%20Filed.pdf Art studio has constitutional right to create custom wedding invitations for a same sex marriage in violation of owner's religious beliefs.
City of Caldwell v. Winfield, D.C. No. 1:16-cv-00359 (9th Cir. July 25, 2019) (J. Graber) http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/18-35300.pdf Where Police Officer believed he had permission to enter Plaintiff's home to conduct search and arrest in absence of controlling authority to the contrary qualified immunity exists.
- Dashi v. Nissan N.A., Inc, No. 1 CA-CV 18-0389 (App. Div. I, June 13 2019) (J. Weinzweig) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2019/1%20%20CA-CV18-0389%20-%20Dashi%20v.%20Nissan%20-%20File%20Version.pdf NHTSA'S refusal to require advanced automatic braking technology in light vehicles creates implied obstacle preemption barring state tort law claims against auto manufacturer for failure to install such technology.
- Coffee v. Superior Court, No. 1 CA-SA 18-0251 (App. Div. I, June 20, 2019) (J. Weinzweig) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2019/1%20CA-SA%2018-0251.pdf Successful party on appeal or special action may notice the trial judge where that judge is ordered to reconsider a prior ruling based upon new evidence.
- State v. Mahoney, No. 1 CA-SA 19-0067 (App. Div. I, May 16, 2019) (J. Johnsen) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2019/1%20CA-SA%2019-0067.pdf Defendant may designate unknown and unidentified persons as nonparties at fault.
- Shepherd v. Costco Wholesale Corp., 1 CA-CV 18-0072 (App. Div. I, April 30,2019) (J. Perkins) Pharmacy may be liable for negligent filling of prescription medications twice cancelled where the filling results in embarrassing information being conveyed to a third person and where a financial incentive exists to refill unwanted prescriptions a punitive damage claim might stand.
- Redlin v United States, No. 17-16963 (9th Cir. April 23, 201`9 (J. Ikuta) (Appeal from Arizona District Court) http://cdn.ca9.uscourts.gov/: Second Notice of Claim under Federal Torts Claim Act filed after first claimed denied is not an amendment of first claim nor a timely request for reconsideration tolling statute of limitations when filed over 6 months after denial of first notice of claim.
- Apodaca v. Keeling, __Ariz. Adv. Rep.__, No. 1 CA-CV 18-0416 (App. Div. I, March 19, 2019) (J. Howe): Where a single complaint is brought in a single lawsuit court must evaluate whether defendant obtained a result 23% more favorable than arbitration award based upon total verdict and not on a party by party basis.
- Duff v. Lee, __Az. Adv. Rep. __No.2 CA-SA 2018-0058 (App. Div. II, March 29, 2019) (J. Starling): Rules implementing Fastar program are procedural/procedural rules enacted by supreme court control over statutory procedural edicts and supreme court administrative orders and rules control over inferior court local rules.
- Gibson v. Theut, __Ariz. Adv. Rep. __, No. 1 CA-CV 17-0562 (App. Div. I, March 12, 2019) (J. Perkins): Court appointed attorney and court appointed guardian ad litem may be sued by minor ward for malpractice and do not have judicial immunity and state may be sued for negligence in hiring court appointed guardians and attorneys.
- Ansley v. Banner Health Network, __Ariz. Adv. Rep. __, No. 1 CA-CV 17-0075 (App. Div. I, March 12, 2019) (J. Johnsen): Federal Medicare law preempts state statutes allowing balanced billing.
- Brittner v Lanzilotta, __Ariz. Adv. Rep. __ No. 1 CA-CV 18-0088 (App. Div. I, March 12, 2019) (J. Campbell): Court appointed interventionist therapist in family court matter has judicial immunity from civil claims.
- Anderson v. State Farm Mut. Auto. Ins. Co., No 15-35981 (9th Cir. March 8, 2019) (J. McKeown):Timely removal measured 30 days from Defendant's actual receipt of initial pleading
- Jackson v. EAGLE KMC L.L.C., __Az Adv. Rep. __ No. CV-18-0056-PR (January 2, 2019) (J. Gould): Law of state where workers compensation benefits are paid determines assignment rights of employer and employee.
- Conklin v. Medtronics, Inc., __ Ariz. Adv. __No. CV-17-0322-PR (December 18, 2018) (J. Pelander): Failure to report adverse results to FDA regarding medical device is impliedly preempted by Federal Law.
- Dupray v. Jai Dining Services, 804 Ariz. Adv. Rep. 11 (App. Div. I, November 15, 2018) (J. Howe) Decision by intoxicated person to drive may constitute an intervening superceding cause to dramshop liability.
- Spooner v. City of Phoenix, __Ariz. Adv. Rep. __ No.1 CA-CV 17-0500 (App. Div. I, November 27, 2018) (J. Jones) Police officer not liable for simple negligence in investigaton criminal activity and is not subject to impeachment at trial with grand jury testimony.
- Ahmad v. State, __Ariz. Adv. Rep. ___ No. 1 CA-CV 14-0664 (App. Div. I, November 13, 2018) (J. Swann): Trial court must state with particularity grounds Remittitur.
- Doneson v. Farmers Ins. Exch., __Ariz. App.__,No. 2 CA-CV2017-0174 (App. Div. II, October 3, 2018) (J. Ekerstrom) Medpay exclusion providing no coverage where workmen's compensation benefits are required applies even where workmen's compensation carrier is reimbursed out of insures's third party tortfeasor claim.
- Ferrara v. 21st Century N.A. Ins. Co., 799 Ariz. Adv. Rep. 23 (App. Div. II, September 10, 2018) (J. Eppich) Certification of a class for class action requires "numerosity" of class members and where class members reside in multiple states a level of "commonality" and "typicallity" in the applicable law of each state.
- Tapia v. The Industrial Comm'n, 797 Ariz. Adv. Rep. 52 (App. Div. II, August 16, 2018) (J. Ekerstrom) Self-insured employer engages in unfair claim without adequate supporting information in its possession or available to it; self-insured's claims department cannot excuse its failed investigation by blaming bad communication from another within the self-insured company.
- Ryan v. Napier, __Ariz. Adv. Rep. __ No. CV-17-0325-PR (August 23, 2018) (J. Timmer) Careless decision making resulting in intentional act is an intentional Tort and not an actionable negligence claim/negligence vs battery.
- Twin City Fire Ins. Co. v. Leija, __Ariz. Adv. Rep. __ No. CV-17-0280-PR (App. Div. I, August 2, 2018) (J. Pelander) Tort victim has no right to post-settlement apportionment of employer's fault hearing to reduce workers compensation lien against settlement with third parties.
- Morales v. United States, __F3d__, No. 17-15215 (July 13, 2018) (J. McKeown) US Geological survey decision to mark a cable contributing to helicopter crash driven by policy considerations is discretionary function rendering USA Immune from suit.
- Whitmer v. Hilton Casitas Homeowner’s Assoc., 795 Ariz. Adv. Rep. 20 (App. Div. I, July 10, 2018) (J. Cattani) Where office of administrative hearings has no jurisdiction to enforce its directives, the Superior Court of General Jurisdiction has original jurisdiction to do so.
- Ruffin v. Lokosky, __Ariz. Adv. Rep. __ 1 CA-CV 17-0353 (App. Div. I, July 12, 2018) (J.Mc Murdie): Default judgment set aside for lack of due diligence when Plaintiff knowing Defendant's email address, telephone number and social media accounts chose to serve by publication.
- Koepff v. Physician Group of Arizona, Inc., __Ariz. Adv. Rep. __, No. CV-17-0222-PR (July 9, 2018) (J. Bales): Dismissal with prejudice of agent-surgeon does not preclude claim against surgeon's principal for its independent negligence.
- Kopacz v. Banner Health, __Ariz. Adv. Rep. __, 1 CA-CV 17-0493 (App. Div. I, July 5, 2018) (J. Johnsen): Medical malpractic not tolled by physical infirmity/must show absence of sound mind.
- Normandin v. Encanto Adventures, LLC, __Ariz. Adv. Rep. No. 1 CA-CV 17-0373 (App. Div. I, June 26, 2018) (J. McMurdie). Recreational use statute is constitutional and bars claim against manager of premises where fee paid by plaintiff was not for use of specific area in park where injury occurred.
Farmers Ins. Exch. V. Udall, __Ariz. Adv. Rep. __ 1 CA-SA 18-0081 (App. Div. I, June 12, 2018) (J. McMurdie)
Claim for property damage against insurer after loss occurs may be assigned to third party despite policy language prohibiting transfer of an interest in the policy.
- Rasor v. Northwest Hospital LLC, 789 Ariz. Adv. Rep. 4 (App. Div. II, April 24, 2018) (J. Espinosa) Qualifications required of causation expert in medical negligence case are less than required of standard of care expert/basics of rule 702 ARIZ. R. EVID. APPLY/NURSE may qualify.
- Hanfelder v. Geico Indemnity Co., 791 Ariz. Adv. Rep. 33 (App. Div. I, May 22, 2018) (J. Thompson) In order to require insured to choose only one UIM coverage from multiple policies written by separate affiliated insurance companies, insurer must specify in the policy the choice must be made as to separate policies written by separate companies " under common management".
- Torts--Duty Quiroz v Alcoa Inc., __Ariz. Adv. Rep. __, No. 16-0248-PR (May 11, 2018) (J. Gould)Asbestos manufacturers owe no duty of care to public for secondary asbestos exposure.
- Chavez v. JP Morgan Chase & Co., No. 16-55957 (9th Cir., April 20, 2018) (J. Bybee) Amount in controversy for diversity jurisdiction determination is not limited to damages incurred at time of removal but is determined by the operative complaint at the time of removal and discovery.
- Gonzalez v. Nguyen, __Ariz. Adv. Rep. __ No. CV-17-0117-PR (April 12, 2018) (J. Bolick)Defendant need not submit evidence outside existing record to establish meritorious defense in support of motion to set aside default judgement under Rule 60 (c) (6) nor establish "Excusable Neglect".
Ansley v. Banner Health Network, __ Ariz. Adv. Rep. __ (App. Div. I, April 3, 2018) (J. Johnsen)
Hospital does not have a lien against tort recovery for full value of services rendered where it agreed to accept a lower amount from AHCCCS.
- Allen v. Town of Prescott Valley, 786 Ariz. Adv. Rep. 10 (App. Div. I, March 13, 2018) (J. Johnsen) Fee of $270 per team for softball league was "nominal" under recreational use statute defeating negligence claim but evidence of notice of non functioning lights and authority to cancel game created fact question on theory of gross negligence/no obligation to amend complaint or specifically allege "gross negligence" in disclosures where defendant pleads immunity based upon statute in answer.
The Butler Law Firm, PLC v. Higgins, 785 Ariz. Adv. Rep. 20 (February 22, 2018) (J. Brutinel): Where contract to perform legal services did not require the services be performed in county where plaintiff was located and where defendant was an LLC and not a corporation, defendants were entitled to move venue to county of their residence.
- Doe v. Mahoney, 784 Ariz. Adv. Rep. 34 (App. Div. I, February 6, 2018) (J. Mc Murdie): Unless false statements in an anonymous blog change the "substantial sting" of otherwise truthful statements the First Amendment will protect blogger's anonymity and defeat a defamation action.
City of Tucson v. Sensibar, 784 Ariz. Adv. Rep. 17 (App. Div. II, February 5, 2018) (J. Eppich): Where Statutory basis for appeal exists Rule 54 language unnecessary to render judgment appealable.
Knightbrook Ins. Co. v. Payless Car Rental, __Ariz. Adv. Rep.__ No. Cv-17-0156-CQ (February 8, 2018) (J. Lopez): Arizona's equitable indemnity law does not allow an action for restitution based upon payment of an obligation the payor "justifiably believes? the defendant is primarily obligated to pay.
Allstate Prop. & Cas. Ins. Co. v. Watts Water Technologies, Inc., __ Ariz. Adv. Rep. __, No1 CA CV 16-0500 (App. Div. I, February 6, 2018) (J. Gemmill): Where parties signed contract agreeing to arbitrate claims and later amended the agreement excluding products claims, product claims accruing before amendment must be arbitrated; attempt to apply exclusion to product claims accruing before amendment but filed after based upon an e-bulletin not signed by the parties was a substantive change not allowed even under insurer's contractual right to make rules and regulations for processing of claims.
- Demaree v Pederson, No 14-16207 (9th Cir., January 23, 2018) (Per Curiam): No Qualified Immunity for social worker who removes children from home without warrant where there is no imminent harm to children at the time to justify removal.
- Vanoss v. BHP Copper Inc., 782 Ariz. Adv. Rep. 21 (App. Div. II, January 8, 2018) (J. Ekerstrom): Employer not vicariously liable for independent contractors' negligence in causing death of independent contractor's employee/Excluding expert testimony dependent upon vicarious liability appropriate/ Trial court may redact depositions read to jury and is not required to find a waiver of attorney/client privilege for discovery abuse.
- State v. Zeitner, 782 Ariz. Adv. Rep. 4 (App. Div. I, January 16, 2018) (J. Johnsen): AHCCCS fraud statute abrogates doctor patient privilege.
- Jackson v. Eagle KMC LLC, 782 Ariz. Adv. Rep. 7 (App. Div. I, January 16, 2018) (J. Orozco): Nature and extent of worker's comp. lien subrogation and assignment rights in third party action determined by law where comp. benefits are paid.
- Levine v. Haralson, Miller, Pitt, Feldman, __ Ariz. Adv. Rep. __ No. 1 CA-CV 16-0590 (App. Div. I, January 25, 2018) (J. Jones): Attorneys have no claim for contingent fee unless agreement is in writing.
- Muscat v. Creative Innervisions LLC, 781 Ariz. Adv. Rep. 4 (App. Div. I, December 26, 2017) (J. Brown): Wrongful Conduct Rule adopted in Arizona. Harms arising solely from consequences of plaintiff's own criminal conduct do not constitute legally cognizable injuries to support a tort claim.
- Lunney v. State of Arizona, 779 Ariz. Adv. Rep. 6 (App. Div. I, December 7 , 2017( (J. McMurdie): Agency required to query search various databases in response to proper request/private phone use in the public service renders private phone data attainable.
- Richardson v. All Services ULTD, Inc., __Az Adv. Rep. __No. 1 CA-CV 15-0642 (App. Div. I, December 14, 2017) (J. Howe): Plaintiff's mistaken belief as to proper party responsible for injury constitutes a mistake and amending complaint adding proper party relates back for purposes of the statute of limitations.
- Fappani v. Bratton, 778 Ariz. Adv. Rep. 8 (App. Div. I, November 16, 2017) (J. Brown): Urging Sheriff to to issue citation and a prosecutor to prosecute those citations for a legitimate purpose does not constitute abuse of process.
- Smith & Wesson Corp. v. The Wuster, __Ariz. Adv. Rep. __ No. 1CA-CV 160378 (App. Div. I, November 21, 2017) (J. Thumma): Default judgment is void if not supported by well-pled facts where defendant establishes untimely motion to dismiss that personal jurisdiction is lacking; Plaintiffs' contact with forum state irrelevant to establish personal jurisdiction over non-resident defendant where there is no evidence defendant purposefully availed itself of the privilege of doing business in forum state.
- Noriega v. Town of Miami, 776 Ariz. Adv. Rep. 24 (App. Div. II, October 26, 2017) (J. Vasquez): Though Police have qualified immunity for failing to arrest someone where police know of threat to harm to specific individual, special relationship maybe created when police state to victim that they can arrest perpetrator.
- McDonald v. Napier, 776 Ariz. Adv. Rep. 7 (App. Div. II, October 18, 2017) (J. Eckerstrom): Negligence in decision to release police dog and causing injury to plaintiff does not require the claim be brought as a bettery
- Twin City Fire Ins. Co. v. Leija, 772 Ariz. Adv. Rep. 17 (App. Div. I, August 31, 2017) (J. Johnsen) Injured Worker Entitled To Jury Trial Regarding Appropriate Reduction of Worker's Comp Lien Based Upon Employer's Comparative Fault
- Conklin v. Medtronics, Inc., __Ariz. Adv. Rep. __ No. 1 CA-CV 16-0252 (App. Div. I, October 19, 2017) (J. Howe) Torts-Federal Preemption of Product Liability Claims Regarding a Medical Device
- Razor v. Northwest Hospital, LLC, ___Az Adv. Rep. ___ No. CV-16-0134-PR (October 18, 2017) (J. Bollick) TORTS: MEDICAL MALPRACTICE EXPERT QUALIFICATIONS
Spring v. Bradford, __Ariz. Adv. Rep. __, No. CV-17-0068-PR (October 23, 2017) (J. Pelander)
Evidence Rule 615: Invoking Rule of Exclusion/Expert Witnesses
Baird & Co., Inc. v. Kutak Rock L.L.P., __Ariz. Adv. Rep.__,No. 1 CA-SA 17-0034 (App. Div. I, September 29, 2017) (J. Swann) Plantiffs' attorney client privilege not waived due to issues raised in defendants' affirmative defenses
Swenson v. County of Pinal, 772 Ariz. Adv. Rep. 26 (App. Div. II, August 22, 2017) (J. Vasquez) State's obtaining liability insurance & contractual indemnity does not excuse compliance with notice of claim and statute of limitation deadlines in tort claim against county.
Cruz v. City of Tucson, 770 Ariz. Adv. Rep. 8 (App. Div. II, August 1, 2017) (J. Vasquez): Notice of Claim must be filed within 180 days of when plaintiff knows or reasonably should know she has been damaged and the cause, source, act, event, instrumentality or condition causing or contributing to the damage/abuse of process claim accrues at the time of abuse.
Security Alarm Financing Enterprises v. Fuller,___ Ariz. Adv. Rep. __, 1CA-CV-16-0255 (App. Div. I, July 6, 2017) (J. Johnsen): Whether failure to pleast right to arbitration under Federeal Arbitration Act constitutes waiver of this right is governed by Federal law which requires a showing of prejudice for waiver to apply.
- Soto v. Sacco, __ Ariz. Adv. Rep. __ No. CV-16-0136-PR (July 13, 2017) (J. Lopez): Trial court has discretion under Rule 59(a)&(i) to issue remittitur or additur of jury verdict if it adequately states the grounds and explains its ruling with sufficient particularity to avoid speculation as to its basis or appellee establishes the trial court ruling was supported by substantial evidence and not an abuse of discretion.
- Yahweh v. City of Phoenix, __ Ariz. Adv. Rep. __ No. 1 CA-CV 160207 (App. Div. I, July 11, 2017) (J. Beene): Notice of claim reciting amount plaintiff will plead in complaint does not satisfy requirement notice articulate amount plaintiff would accept to settle all claims.
- BNCCORP Inc. v. HUB Int'l Ltd, __ Az. Adv. Rep. __ (App. Div. I, July 11, 2017) (J. Thompson): Contractual waiver of right to jury trial included civil claims of negligence & affiliate to party to contract is bound by waiver/insurance broker standard of care does not require assessment of risks to insured where sophisticated business insured could not foresee risks itself.
- Delgado v. Manor Care of Tucson, 767 Ariz. Adv. Rep. 47 (June 20, 2017) (J. Gould): Vulnerable adult claims under APSA no longer require proof the alleged negligence is linked to service the caregiver renders due to recipient's incapacity and related to the problem(s) caused by the incapacity.
- D.L. v. Vassiliev, __F3d__, No. 15-15542 (June 5, 2017) (J. Lasnik): Failure to serve notice of claim cured where first action voluntarily dismissed against defendant doctor followed by proper notice of claim and second filing.
- Sanders v. Alger, 766 Ariz. Adv. Rep. 22 (June 1, 2017) (J. Bales): Patient has duty to exercise reasonable care interacting with caregiver based upon caregiver/patient relationship & rescue rule/caregiver not a professional rescuer acting in response to an emergency hence firemen's rule not applicable.
- Nevens v. AZHH, LLC, 766 Ariz. Adv. Rep. 19 (App. Div. I, May 30, 2017) (J.Downie): Rebuttal expert addressing causation issue not addressed in case in chief allowed/loss of consortium of parent doesn't require catastrophic injury.
- Johnson v. Arizona Dept. of Registrars, __ Ariz. Adv. Rep. __, No. 1 CA-CV 16-026 (App. Div. I, May 25, 2017) (J. Norris): Appeal of agency decision by administrative law judge is to superior court & not to agency.
- Wal-Mart Stores, Inc. v. LeMaire, 764 Ariz. Adv. Rep. 29 (App. Div. I, May 11, 2017) (J. Swann): Foreign corporation must be incorporated in state, have principal place of business in state or consent to jurisdiction in state in order for there to be general jurisdiction for event occurring outside state.
- Wagner v. State, 763 Ariz. Adv. Rep. 32 (App. Div. I, April 20, 2017) (J. Cattani): Where state had obligation to provide medical care to inmates and exercised control over outside agency staffing social workers at prison, social worker was statutory employee of state for purposes of workers' compensation.
- Goodyear Tire & Rubber Co. v. Haeger, No. 15-1406 (April 18, 2017) (J. Kagan): Awarding attorneys' fees as a sanction for discovery abuse must pass "but for" test -- fees that would not have been incurred "but for" the bad faith discovery abuse.
- Passmore v. McCarver, 762 Ariz. Adv. Rep. 10 (App. Div. I, April 6, 2017) (J. Swann): Failure to timely file expert affidavit in med mal cases w/in stipulated extension constitutes failure to prosecute justifying dismissal and rendering relief under savings statute discretionary.
- ACRI v. State of Arizona, 761 Ariz. Adv. Rep. 18 (App. Div. I, March 30, 2017) (J. Cattani): State forestry department has no duty to protect private property when fighting wildfire.
- Varco, Inc. v. UNS Electric, Inc., 761 Ariz. Adv. Rep. 37 (App. Div. II, March 23, 2017) (J. Miller): Where court granted motion in limine precluding evidence yet trial counsel repeatedly asked witnesses about the evidence new trial order was appropriate.
- American Power Products, Inc. v. CSK Auto, Inc., 761 Ariz. Adv. Rep. 33 (March 23, 2017) (J. Pelander): Where contract provides "prevailing party" in contract dispute is entitled to recover attorneys' fees but does not define "prevailing party" A.R.S. sec. 12-341.01 controls/party that obtains judgement less favorable to settlement offer is not prevailing party.
Boswell v. Fintelmann, 760 Ariz. Adv. Rep 19 (App. Div. I, March 9, 2019) (J. Thompson): Failure to file preliminary expert affidavit establishing medical negligence suit has merit requires dismissal without prejudice.
- Gullett v. Kindred Nursing Center West, LLC, 758 Ariz. Adv. Rep. 12 (App. Div. II, February 15, 2017) (J. Staring): Agreement to arbitrate not substantively unconscionable where reasonable though limited discovery allowed and where both party's are allowed input on who will arbitrate; limited discovery should be allowed to determine if agreement to arbitrate was the result of a fair meeting of the minds.
- Zuluaga v. Bashas'Inc., 757 Ariz. Adv. Rep. 12 (App. Div. I, February 3, 2017) (J. Vasquez): Absent proof of prejudice by jury trial judge's abuse of discretion in limiting scope of voir dire is not reversible/curative instruction within broad discretion of trial court where potential misleading inference is perceived in opening statement.
- Orosco v. Maricopa County Special Health Care Dist., 757 Ariz. Adv. Rep. 11 (App. Div. I, February 2, 2017) (J. Johnsen): Sanctions for acquiring judgement in excess of offer of judgement are calculated from first of two offers and costs of service by private process server are taxable.
- Spring v. Bradford, ___ Ariz. Adv. Rep. ___, 1 CA-CV 15-0505 (App. Div. I, January 12, 2017) (J. Cattani): Where parties agree to apply rule of excluding witnesses during trial it is improper to allow expert witnesses to read trial transcript of other witnesses without first getting court's permission/witnesses essential to management of case may be exempted under evidence rule 615(C).
- Romero v. Hasan, 755 Ariz. Adv. Rep. 27 (App. Div. I, January 5, 2017) (J. Thompson): Plaintiff's failure to file preliminary expert affidavit in medical negligence case supports dismissal and live testimony of expert at hearing in lieu of affidavit is not a permissible subsitute under the statute.
- McKee v. State, 755 Ariz. Adv. Rep. 30 (App. Div. I, December 30, 2016) (J. Gould): Wrongful death action is barred by exlusive remedy where decedent elects workers' compenasation and intentional act exception requires deliberate intent to injury and intentional infliction of emotional distress requires plaintiff to be present when the tortious acts occur.
- Coulter v. Thornton, 755 Ariz. Adv. Rep. 15 (App. Div. I, January 3, 2017) (J.Cattani): Discovery Rule Applies Re: accrual of Statute of Limitations in accountant malpractice and where accountant represents plaintiff before internal revenue service accrual doesn't occur until IRS proceeding resolved.
Rasor v. Northwest Hospital, __Ariz. Adv. Rep. __, No.2 CA-CV 2015-0065 (App. Div. II, J. Espinosa) (Trial Judge Leslie Miller): Standard of Care expert must spend majority practice in same field as defendant previous year/ discovery of prior similar incidents allowed.
Villasenor v. Evans, 754 Ariz. Adv. Rep. 34 (App. Div. I, December 20, 2016) (J.Swann): Notice of claim required to sue public official/employee for any acts or omissions occurring within scope of public employment.
Stafford v. Burns, 753 Ariz. Adv. Rep. 14 (App. Div. I, November 29, 2016) (J. Jones): Medical negligence of ER doctor must be proven by clear and convincing evidence regarding all acts and omissions occurring in the course of evaluating and treating a patient in ER/Defendant doctor can testify to standard of care/trial judge discretion in determining probative value exceeds prejudicial effect/judgement as matter of law only appropriate where decision will eliminate a claim or defense.
- St. George v. Plimpton, 753 Ariz. Adv. Rep. 8 (App. Div. I, November 19, 2016) (J.Gould): Plaintiffs should plead negligent supervision as separate count/lack of testimony of specific acts of negligence/lack of qualifications of expert/proper denial of request for more time to find proper expert.
Franklin v. Clemett, 750 Ariz. Adv. Rep. 13 (App. Div. I, October 25, 2016) (J. Norris): Arizona Revised Statute §12-711 constitutionally allows a jury to bar a plaintiff 50% or more at fault from any tort recovery if found to have also been intoxicated.
- Viniegra v. Town of Parker Municipal Prop. Corp., 749 Ariz. Adv. Rep. 19 (App. Div. I, October 6, 2016) (J. Kessler): A.R.S. §12-821 one year statute of limitations is not unconstitutional under equal protection or anti-abrogation clause nor does equitable tolling apply where risk management does not admit liability, agree to toll statute of limitations or promise to settle.
- Griggs v. Oasis Adoption Services, 749 Ariz. Adv. Rep. 16 (App. Div. I, October 6, 2016) (J. Downie):: Adoption agency has no judicial immunity for ex parte communication with court.
Sobieski v. American Standard Ins., 748 Ariz. Adv. Rep. 9 (App. Div. I, September 26, 2016) (J. Johnsen): Evidence of an incomplete and biased investigation supporting an unreasonable claim denial will support a claim for insurance bad faith but absent clear and convincing evidence of malice or placing profits ahead of insureds' interests punitive damages are not permitted.
Quiroz v. Alcoa, Inc., 748 Ariz. Adv. Rep. 18 (App. Div. I, September 20, 2016) (J. Thompson): Property owner not liable for asbestos exposure to family members from father's clothes brought home from work.
- Premier Physicians Group, PLLC v. Navarro, 746 Ariz. Adv. Rep. 29 (August 30, 2016) (J. Bolick): Nonhospital medical lien must be recorded within 30 days of first providing services.
- Santorii v. Martinezrusso, LLC, 746 Ariz. Adv. Rep. 22 (App. Div. I, August 23, 2016) (J. Cattani): Real estate sales persons are independent contractors not employees of real estate brokers.
- Klesla v. Wittenberg, 745 Ariz. Adv. Rep. 14 (App. Div. I, August 18, 2016) (J. Thompson): Arbitrator lacks jurisdiction to issue "supplemental arbitration award" (to add fees) after deadline to appeal award has run.
- Brunnet v. MGA Home Healthcare, LLC, 744 Ariz. Adv. Rep. 11 (App. Div. 1, July 28, 2016) (J. Thumma): Perfecting statutory appeal from non-final judgment does not require 54(b) or (c) language.
- Flynn v. Campbell, 743 Ariz. Adv. Rep. 13 (App. Div. I, July 19, 2016) (J. Norris): Lay person who mistakenly sues insurer and not insured as a result of automobile collision entitled to relation back to original filing when filing amended complaint.
- Hogue v. City of Phx., 743 Ariz. Adv. Rep. 10 (App. Div. I, July 14, 2016) (J. Howe): Police owe no duty to crime victims for failing to reasonably investigate or apprehend criminal.
Ahmad v. State of Arizona, 743 Ariz. Adv. Rep. 8 (App. Div. I, July 12, 2016) (J. Swann): Great deference to jury assessment of damages/remittitur only appropriate where trial court makes specific findings demonstrating no reasonable jury could have reached this verdict based upon the evidence presented.
- Delgado v. Manor Care, LLC, 742 Ariz. Adv. Rep. 10 (App. Div. II, June 28, 2016) (J. Howard): Allegation death of incapacitated adult was caused by caregiver's failure to send decedent out for hospitalization falls within APSA/claim preclusion does not apply to claims brought in the same action.
- Verduzco v. American Valet, 741 Ariz. Adv. Rep. 22 (App. Div. I, June 21, 2016) (J. Thumma): Negligent entrustment claim against valet co. properly pled/valet cos not exempt from negligent entrustment claims based on public policy/valet cos have no general negligence duty to third parties injured by driver to whom they give car.
Hatch Dev., LLC v. Solomon, 741 Ariz. Adv. Rep. 9 (App. Div. I, June 21, 2016) (J. Gemmill): Party without fault discharging obligation of another at fault is entitled to common law indemnity/indemnity claim not barred by statute of limitations where parties to underlying claim stipulated to tolling statute during settlement negotiations.
American Civil Liberties Union v. Arizona Dept. of Child Safety, __Ariz. Adv. Rep.__, 1 CA-CV 140781 (App. Div. I, June 9, 2016) (J. Norris): Public agencies are required to do specific data searches to comply with public record requests but are not required to tally and compile previously untallied information.
Southwest Barricades v. Traffic Mgmt, Inc., 740 Ariz. Adv. Rep. 5 (App. Div. I, June 9, 2016) (J. Gemmill): Compulsory arbitration award is not self-executing judgement - party must ask superior court to enter final judgement before seeking rule 60 (c) relief.
Ader v. Estate of Felger, __Ariz. Adv. Rep. ___ No. 2 CA-CV 2015-0170 (App. Div. II, May 27, 2016) (J. Vasquez): Claims against estate based upon pre-death torts are governed by "nonclaims" statute not sol and accrue upon death and not date of discovery of claim.
Soto v. Saco, __ Ariz. Adv. Rep. __, No. 1 CA-CV 15-0092 (App. Div. I, May 19, 2016) (J. Downie) (Trial Judge Michael D. Gordon): Time to appeal not triggered until there is a signed order/ remititur appropriate deference to trial judge.
Sierra Tucson, Inc. v.Bergin, __Ariz. Adv. Rep. __ No. 2 CA-SA 2016-0017 (App. Div. II, May 11, 2016) (J. Howard): Wrongful Death Claims not derivative of claims decedent might have/ contract not binding on those not party to contract.
- State v. Wright, 735 Ariz. Adv. Rep. 10 (App. Div. II, March 26, 216) (J. Miller): Undercover police officer real time description of drug transaction he was observing constitutes present sense impression exception to hearsay rule.
American Power Products, Inc. v. CSK Auto, Inc., 731 Ariz. Adv. Rep. 28 (February 5, 2016) (J. Brutinel): Improper but objectively nonprejudicial statement by bailiff to juror not grounds for new trial and no evidentiary hearing required when there exists no significant fact question.
Carter v. The Pain Center of Arizona, PC, 731 Ariz. Adv. Rep. 34 (App. Div. I, February 2, 2016) (J. Johnsen): Tort of battery in medical negligence case does not require intentional harm or intentional offensive touching where theory is willful disregard of plaintiff's limited consent.
- Watkins v. Arpaio, 731 Ariz. Adv. Rep. 36 (App. Div. I, February 2, 2016) (J. Johnsen): Accrual of statute of limitations of 1 year for negligent infliction of emotional distress claim against public employee occurs when plaintiff reasonably should know of the harm and its cause.
- Russo v. Barger, 731 Ariz. Adv. Rep. 31 (App. I, January 26, 2016) (J. Downey): Right to asset forum selection clause waived by substantial participation in state court action.
- Escareno v. Kindred Nursing Centers West, LLC, 731 Ariz. Adv. Rep. 41 (App. Div. II, January 26, 2016) (J. Vasquez): To establish agency, it must be proved the principal has manifest assent to the existence of agency relationship.
Watts v. Medicis Pharmaceutical Corp., 730 Ariz. Adv. Rep. 26 (January 21, 2016) (VCJ Pelander): Drug manufacturer protected from liability to consumer under learned intermediary doctrine if it adequately warns prescribing physicians of side effects/ a drug is "merchandise" and thus covered under Arizona's Consumer Fraud Act.
Murray v. Farmers Ins. Co., 730 Ariz. Adv. Rep. 9 (App. Div.II, January 19, 2016) (J. Espinosa): Insurance agent may be liable for misleading insureds into purchasing insufficient UM/ UIM coverage even where DOI forms signed/ negligent infliction of emotional distress allowed for harm to peace of mind that family is properly insured.
DBT Yuma, LLC v. Yuma County Airport Auth., 726 Ariz. Adv. Rep. 38 (November 24, 2015) (J. Pelander): County not liable for alleged breach of sublease by airport authority- ARS §28-8424.
- Pinal County v. Cooper, 719 Ariz. Adv. Rep. 7 (App. Div. I, October 20, 2015) (J. Swann): Qualified immunity is complete defense and is not defeated by spite or ill will-- must show objective malice.
Premier Physicians Group, PLLC v. Navarro, 722 Ariz. Adv. Rep. 17 (App. Div. I, October 1, 2015) ()J. Norris): Nonhospital liens may cover 30 days treatment prior to filing and all future treatment.
US Airways, Inc. v. Qwest Corp., 722 Ariz. Adv. Rep. 12 (App. Div. I, October 1, 2015) (J. Portley): Damage limitations in federal tariffs enforceable against claims for economic loss.
- Grubagh v. Blomo (Lawrence), 722 Ariz. Adv. Rep. 23 (App. Div. I , September 22, 2015) (J. Gemmill):
- Jaynes v. McConnell, 721 Ariz. Adv. Rep. 20 (App. Div. I, September 15, 2015) (J. Gemmill): Deadline for filing motion for new trial not triggered until final appealable judgement entered/ defendant's medical expert may be asked about personal practices.
- Gambrell v. IDS Property Cas. Ins. Co., 721 Ariz. Adv. Rep. 24 (App. Div. II, September 9, 2015) (J. Miller): Where insurer clearly states that UIM coverage in a personal auto policy does not apply when the insured is occupying a commercial vehicle ARS § 20-259.01 (C) requires a finding of no coverage.
Bambrell v. IDS Property & Cas. Ins. Co., 721 Ariz. Adv. Rep. 24 (App. Div. II, September 9, 2015) (J. Miller) : UIM coverage in personal auto policy is not portable as to injury in commercial vehicle.
- Newman v. Select Specialty Hospital-Arizona, Inc., 720 Ariz. Adv. Rep. 12 (App. Div. I, September 1, 2015) (J. Gemmill): Punitive damage instruction appropriate where nurses failed to care for bed sore knowing the failure created a substantial risk of significant harm/ right to attorneys' fees is substantive and vests when suit is filed where repeal of statute is not explicitly retroactive.
- Fidelity Nat’l Title Ins. Co. v. Centerpoint Mechanic Lien Claims, LLC, 720 Ariz. Adv. Rep. 8 (App. Div. I, August 27, 2015) (J. Cattani): Morris Agreement invalid when made between insured and entity is controlled for an amount greater than what was paid to purchase lien and where insured had no personal exposure.
- Preston v. Amadei, 720 Ariz. Adv. Rep. 22 (App. Div. I, August 27, 2015) (J. Brown): Standard of care expert in medical negligence must engage in clinical practice in same specialty as defendant but if expert is found unqualified, plaintiff must have reasonable time to substitute new expert as qualified.
- Ritchie v. Costello, 720 Ariz. Adv. Rep. 19 (App. Div. I, August 25, 2015) (J. Portley): No duty to business invitee once he leave premises.
- Hoag Charitable Remainder Unitrust v. French, 719 Ariz. Adv. Rep. 40 (App. Div. I, August 18, 2015) (J. Gould) : No jurisdiction over foreign trustee operating outside jurisdiction where trustee did not reach out to plaintiff's state of residence to create a relationship.
Rodriquez v. Fox News, LLC, 718 Ariz. Adv. Rep. 14 (App. Div. I, August 4, 2015) (J. Johnsen): First Amendment bars tort claims related to news report of concern to public.
- Woestman v. Russell, 718 Ariz. Adv. Rep. 26 (App. Div. I, July 28, 2015) (J.Howe): Guardianship appropriate where plaintiff has disappeared, has no "home state" and has significant connection with Arizona.
Premier Physician’s Group, PLLC v. Navarro, 718 Ariz. Adv. Rep. 17 (App. Div. I, July 28, 2015) (J. Norris): Non-hospital medical lien perfected retroactively and prospectively if recorded within 30 days of service.
Sullivan v. Pulte Home Corp., 667 Ariz. Adv. Rep. 36 (App. Div. I, July 28, 2015) (J. Downie): Home builder owes no duty based upon statute or ordinance to subsequent purchaser of home with whom builder has no contractual relationship for purely economic loss.
- State v. Steinle, 717 Ariz. Adv. Rep. 27 (App. Div. I, July 23, 2015) (J. Orozco): Cropped or edited video inadmissible in violation of Rule of Completeness-- Failure to show whole story.
- Carranza v. Madrigal, 717 Ariz. Adv. Rep. 23 (July 22, 2015) (J. Brutinel): While Trial Court must give real party in interest reasonable time to substitute into case, the substitution must be done in by a Rule 15(a) Motion to Amend and such a motion may be denied for unjust delay and prejudice to adverse party.
Wilks v. Manobianco, 716 Ariz. Adv. Rep. 14 (July 9, 2015) (J. Berch): Compliance with statutory requirement to offer UIM coverage does not bar negligence claim against agent for failure to procure such coverage.
- Fleming v. State of Arizona DPS, 716 Ariz. Adv. Rep. 17 (July 9, 2015) (J. Pelander): Qualified Immunity for DUI applies only when driver is driving or in physical control.
- Robertson v. Alling, 715 Ariz. Adv. Rep. 23 (June 24, 2015) (J. Timmer): Attorney has apparent authority to enter settlement agreement where based up clients' actions there exists a reasonable belief the attorney has such authority/Rule 80(d) only applies where the existence or terms of agreement are challenged, does not require client's written assent but does require written documentation of the terms - e-mail satisfies the written documentation requirement.
- Rader v. Greenberg Traurig, 715 Ariz. Adv. Rep. 26 (App. Div. I, June 23, 2015) (J. Thuma): Arizona does not recognize equitable tolling of an action where plaintiff opts out of class action filed in another jurisdiction.
- Phillips v. Garcia, 714 Ariz. Adv. Rep. 13 (App. Div. I, June 9, 2015) (J. Gemmill): Arbitration award is not an appealable "Judgment".
- Burch & Cracchiolo, P.A. v. The Honorable Robert D. Myers, 2015 WL 3511835 (App. Div. I, June 4, 2015) (J. Jones): Attorney client privilege not waived regarding inadvertently disclosed documents by virtue of party bringing motion to disqualify attorney inadvertently receiving documents.
- Flood Control Dist. Of Maricopa County v. Paloma Investment Ltd. Partnership, 713 Ariz. Adv. Rep. 31 (App. Div. I, May 26, 2015) (J. Thompson): Interest on judgment is governed by the interest rate in place when the judgment is entered and partial payment on judgment applies to interest before principal.
- Merkens v. Federal Ins. Co., 713 Ariz. Adv. Rep. 28 (App. Div. I, May 21, 2015) (J. Portley): Worker must first seek adjudication of denial of compensation benefits from industrial commission before bringing law suit for bad faith/Attys' fees under ARS §12-341.01(A).
- Gallagher v. Tucson Unified School District, 712 Ariz. Adv. Rep. 22 (App. Div. II, May 12, 2015) (J. Vasquez): School district immune from claim of negligent hiring employee who commits felonious act absent actual knowledge.
Glazer v. State of Arizona, 212 Ariz. Adv. Rep. 16 (May 8, 2015) (J. Timmer): State immune from liability for road design that conformed to state of the art at time of design but liable for subsequent failure to warn of danger.
- Guerra v. State of Arizona, 712 Ariz. Adv. Rep. 24 (May 8, 2015) (V.C.J. Pelander): Police owe no duty to exercise reasonable care when investigating identity of deceased and notifying next of kin.
- NSF Railway v. Seats Inc., 712 Ariz. Adv. Rep. 9 (App. Div. I, May 5, 2015) (J. Cattani): State law negligence claim based upon Federal standard not preempted by Federal Locomotive Inspection Act.
- Lee v. M&H Enterprises, Inc., 237 Ariz. 172 (App. Div. I, April 21, 2015) (J. Brown): Landowners not liable for injury on premises where contractor has control of employee and manner of work -- "Lent Employee" doctrine renders contractor provided workers from another immune where right to control manner of work is retained by contractor.
- Newman v. Cornerstone National Insurance Co., 708 Ariz. Adv. Rep. 32 (March 18, 2015) (J. Brutinel): Statute requiring auto liability insurers to make written offer of UIM coverage does not require price quote.
- Boisson V Arizona Board of Regents, 236 Ariz. 619 (Div. I, March 10, 2015) ( J. Thumma): University owes no duty of care to study abroad students on independently student organized side trip.
- Hayenga v. Gilbert, 706 Ariz. Adv. Rep 10 (App. Div. I, February 12, 2015) (J. Swann): Legal Malpractice claims that occur "In the course of" litigation do not accrue until litigation finally resolved -- failure to name/join party and discovery defence.
- Watts v. Medicis Pharmaceutical Corp., 705 Ariz. Adv. Rep. 19 (App. Div. I, January 29, 2015) (J. Gemmill): Learned intermediary doctrine inconsistent with AZ comparative fault & realities of 21st century drug advertising.
- Desert Palm Surgical Group v. Petta, 704 Ariz. Adv. Rep. 9 (App. Div. I, January 15, 2015) (J. Winthrop): Defamation and false light invasion of privacy damage award of $12 million requires supporing evidence beyond plaintiffs' vague, conclusionary testimony.
- Everest Indem. Ins. Co. v. Rea, 704 Ariz. Adv. Rep. 23 (App. Div. I, January 15, 2015) (J. Gemmill): Attorney client privilege waived only if defendant affirmatively claims its conduct was in good faith because it was based upon advice of counsel,
- Abbott v. Banner Health Network, 702 Ariz. Adv. Rep. 14 (App. Div. I, December 23, 2014) (J. Kessler): Hospital Liens on AHCCCS Paid Services Preempted and Prohibited by Federal Law/According and Satisfaction Agreeing to Lien Unenforceable
- McKee v. Peoria Unified School District, 701 Ariz. Adv. Rep. 11 (App. Div. I, December 2, 2014) (J. Cattani): Timliness of Public Record Production Determined by Scope of Entire Request/Nature & Purpose of Document Define its Status.
- DBT Yuma, LLC v. Yuma County Airport Authority, 702 Ariz. Adv. Rep. 24 (App. Div. I, December 1, 2014) (J. Jones): Yuma County Does not Exercise Adequate Control of Airport to be Vicariously Liable for Acts of Yuma County Airport Authority.
- KB Home Tucson, Inc. v. The Charter Oak Fire Ins. Co., 700 Ariz. Adv. Rep 19 (App. Div. I, November 25, 2014) (J. Cattani) (Trial Judge M. Brain): General Contractor Created Question of Facts as to Whether it Was Additional Insured Under Subcontractor's General Liability Insurance/Requirements Set Forth in Correspondence by the General to the Sub When Acted Upon by Sub Creates Contract/No Duty By Insurance Agent to Third Party General Contractor Regarding Failure to Obtain Coverage.
- Mill Alley Partners v. Wallace, 700 Ariz. Adv. Rep. 26 (App. Div. I, November 20, 2014) (J. Johnsen): Trial Court May Not Grant New Trial Based Upon Improper Jury Instruction Not Objected to by Moving Party Absent Showing of Prejudice.
- Dobson v. McClennen, 699 Ariz. Adv. Rep. 9 (App. Div. I, November 4, 2014) (J.Thumma): Medical Marijuana Card Not Get Out of Jail Free Card Under A.R.S. §28-1381(A)(3).
- Fleming v. State of Arizona, 698 Ariz. Adv. Rep. 7 (App. Div. II, October 31, 2014) (J. Miller): Qualified Immunity Protects State DPS where Plaintiffs' Decedent was Arrested for DUI, Placed in Back of Parked Squad Car on Freeway then Killed in Rearend Accident.
- Spirlong v. Browne, 698 Ariz. Adv. Rep. 4 (App., Div. I, October 28, 2014) (J. Norris): Dog Owner is Strictly Liable for Dog Bite and Person "keeping" Dog More than Six Consecutive Days is Considered Owner but "keeping" requires Person Have Care, Custody and Control of Dog.
- State v. Kapp, 26 Ariz. App 567, 550 P.2d 121 (Div. I, October 9, 2014) (J. Howe): Arizona Rule of Evidence Rule 703 Allows Expert to Reasonably Rely Upon Work of Non-Testifying Expert without Violating Confrontation Clause.
- Quihuis v. State Farm Mut. Auto. Ins. Co., 697 Ariz. Adv. Rep. 23 (October 1, 2014) (J. Pelander): Insurer has Right to Litigate Coverage Despite Damron or Morris Agreement but may not Relitigate Liability Facts in Guise of Coverage Question.
- Granville v. Howard, 236 Ariz. 29, 335 P.3d 551 (App. Div. I, October 2014) (J. Downie): Rule 77 Attorneys' Fees Award After Trial De Novo Appeal from Arbitration Award Reasonableness Factors.
- Fisher v. Edgerton, 696 Ariz. Rep. 22 (App. Div. I, September 30, 2014) (J. Kessler): Defedant Who Appeals Compulsory Arbitration Result Against Plaintiff And Codefendant Arguing Codefendant at Fault Must Pay Fees and Costs to Codefendant Where Position not Improved 23%
- Reyes v. Frank's Service & Trucking, 695 Ariz. Adv. Rep. 17 (App. Div. I, September 16, 2014) (J. Downie): Taxable Costs Include Reasonable Costs of Taking Depositions Including in and out of State Travel, Interpreter Fees, "No Show" Costs and Videotape and/or Stenographic Costs (However Seeking Both Video and Stenographic Costs is Not Always Reasonable). Where Jury Award Plus Taxable Costs Incurred as of Date of Offer of Judgment Exceeds the Offer, Rule 68(g) Sanctions Are Not Awardable. Negligence Per Se Only Applies Where Statute Requires a Specific Act and Not Where it Merely Requires Party to Act Reasonably.
- Boyle v. Ford Motor Co., 694 Ariz. Adv. Rep 20 (App. Div. II, August 29, 2014) (J. Espinosa): Failure to Timely Object to Terms of Offer of Judgment Waives Right to Seek New Trial Based Upon Defects in Offer.
- Felipe v. Theme Tech Corp., 694 Ariz. Adv. Rep. 14 (App. Div. I, August 28, 2014) (J. Gemmill): Investigating Officer's Accident Reconstruction Testimony Did not Constitute Plaintiff's "One Independent Expert" On Subject of Accident Reconstruction.
- Larue v. Brown, 693 Ariz. Adv. Rep. 18 (App. Div. I, August 19, 2014) (J. Gould): Defamatory Statements Made in Excess of a Year Prior to Filing of Complaint but Republished within the Year are not Barred by One Year Statute of Limitations.
- Cuellar v. Vettorel, 693 Ariz. Adv. Rep. 32 (App. Div. II, August 18, 2014) (J. Kelly): Offer of Judgment Contingent upon Satisfaction of Liens Does Not Require Computation of Lien Amounts at Time of Offer to Determine if Failure to Accept the Offer Should Result in Sanctions.
- Arellano v. Primerica Life ins. Co., 693 Ariz. Adv. Rep. 13 (App. Div. I, August 12, 2014) (J. Orozco): Application for Insurance not Admissible Evidence Where not Attached to Policy or Delivered to Customer at Time of Formation of Oral Contract for Coverage/Arizona Does Not Recognize a Tort for Forgery though such Conduct may Support a Claim for Bad Faith/Where Reprehensibility of Defendant Conduct was in Mid to High Range a Ratio of 13:1 of Punitive Damages to Compensatory Damages Reduced to a ratio of 4:1
- American Power Products, Inc. v. CSK Auto, Inc., 692 Ariz. Adv. Rep. 22 (App. Div.I, August 5, 2014) (J. Norris): Evidentiary Hearing may be required to determine prejudice where baliff has ex parte communication with jurors during deliberation converning substantive procedural matter.
- Wilks v. Manobainco, 691 Ariz. Adv. Rep. 15 (App. July 22, 2014) (J. Norris): Negligence Claim against insurance agent for failure to obtain UIM Coverage where insured asked for "exact same coverage as before" will stand even in face of signed "DOI" form by insured declining coverage.
- In re the Marriage of Stuart Thorn, 235 Ariz. 216, 330 P.3d 973 (App. Div II, July 17, 2014) (J. Miller): Appellate Court lacks jurisdiction to hear issue raised for the first time in an untimely filed Amended Notice of Appeal.
- Midtown Medical Group, Inc. v. Farmers Ins. Group, 691 Ariz. Adv. Rep. 21 (App. Div. I, July 15, 2014) (J. Portley) ARS 33-934(A): Medical Lien Asserted Directly Against Insurer.
- Metzler v.BCI Coca-Cola Bottling Co.,Inc.,690 Ariz.Adv.Rep. 7(July 11, 2014) (J. Pelander): Interest Calculated as Interest on "Judgment" not "Obligation"
- State v. Salazar-Mercado, 687 Ariz. Adv. Rep. 9 (May 29, 2014) (J. Timmer): Arizona Rule of Evid 702 allows expert testimony that educates the fact finder re general principles without considering particular facts of the case.
- Beaver v. American Family Mut. Ins. Co., 687 Ariz. Adv. Rep. 18 (App. Div. I, May 20, 2014) (J. Norris): Arizona Uninsured/Underinsured Motorist Act allows exclusion of family member from definition of "insured" where family member owns vehicle.
- Abeyta v, Soos, 680 Ariz. Adv. Rep. 26 (App. Div. II, February 19, 2014) (J. Miller): Social Worker Privilege
- Monroe v Basis School, Inc., 234 Ariz. 155, 318 P.3d 871 (App. Div II, February 10, 2014) (J. Miller): School has no duty to provide crossing guard at intersection a block from school.
- Gonzalez v. Kiewit-Sundt, 678 Ariz. Adv. Rep. 9 (App. Div. I, January 23, 2014) (J. Howe): Law No Longer Requires Reassignment of Claim From Comp Carrier to Injured Employee After One Year.
- Accomazzo v. Kemp, 678 Ariz. Adv. Rep. 23 (App. Div. I, January 21, 2014) (J. Swann): Challenging enforceability of prenuptial agreement does not necessarily constitute waiver of attorney/client privilege with respect to the attorney who advised the spouse challenging the agreement nor does the presence of spouse's parents during communication with attorney necessarily constitute a waiver.
- State v. Bernstein, 234 Ariz. 89, 317 P.3d 630 (App. Dv. I, January 14, 2014) (J. Thumma): Absent showing of inaccuracies in Defendants' test results or improper test procedures, shortcomings in chromatograph does not preclude admission of BAC measurements.
- Estate of DeCamacho v. La Solana Care & Rehab. Inc., 234 Ariz. 18, 316 P.3d 607 (Ct. App. Div. II, January 14, 2014) (J. Vasquez): Arbitration clause in nursing home contract is binding on vulnerable adult claim but, as written, not wrongful death claims.
- State v. Buccheri-Bianca, 233 Ariz. 324, 312 P.3d 123 (App. Div. II, October 30, 2013) (J. Espinosa): Counsel may successfully preclude admissibility of evidence then argue in closing for a verdict based on the absence of the evidence; Expert may testify to general principles without applying those principles to facts of case.
- Drew v. Prescott Unified School Dist., 674 Ariz. Adv. Rep. 33 (App. Div. I, November 26, 2013) (J. Winthrop):ivil Procedure: ARS 12-821.01 requires settlement offer in Notice of Claim be held open 60 days unless public entity responds earlier.
- Jamerson v. Quintero, 673 Ariz. Adv. Rep. 17 (App. D I, November 7, 2013) (J. Johnsen): Under Arizona's UCATA settlement and dismissal of the principal does not extinguish claim against agent for its negligence.
- Centennial Dev. Group v. Lawyer's Title Ins. Corp., 669 Ariz. Adv. Rep. 11 (App. Div. I, September 19, 2013) (J. Johnsen): Title report is not a representation of the condition of title of property by statute but "continuation of insurance" creates potential for breach of contract claim for damages incurred while insured held title to property even if claim is brought after property is sold.
- Rice v. Brakel, 669 Ariz. Adv. Rep. 15 (App. Div. II, September 12, 2013) (J. Howard): Absence of evidence of breach of standard of care and causation or that surgery was other than what was consented to, patient has no battery, negligence or breach of contract claim and hostile actions of partner not imputed to employer and other partners.
- Cohen v. Lovitt & Touche, Inc., 668 Ariz. Adv. Rep. 36 (App Div. II, September 6, 2013)(J. Ekerstrom): Insuring against obligation of insured to make restitutionary payments due to negligence not against public policy and broker could be liable for failure to procure such insurance
- Kobold v. The Aetna Life Ins. Co., 668 Ariz. Adv. Rep. 42 (App. Div. I, September 5, 2013) (J. Swann): Arizona law against subrogation of a personal injury claim bars FEHBA claim for reimbursement and there is no federal preemption.
- Metzler v. BCI Coca-Cola Bottling Co., 668 Ariz. Adv. Rep. 38 (App. Div. II, August 28, 2013) (J. Vasquez): Interest on a failure to accept a more favorable Offer of Judgment than the verdict is at 10%.
- Peterson v. Newton, 668 Ariz. Adv. Rep. 30 (App. Div. I, August 27, 2013) (J. Brown): Plaintiff who obtains judgement in small claims court is barred by issue preclusion from bringing same claim in superior court.
- Wyckoff v. Mogollon Health Alliance, 667 Ariz. Adv. Rep. 26 (App. Div. II, August 22, 2013) (J. Ekerstrom): In toxic mold case the statute of limitations accrues when plaintiff experiences physical signs of illness, knows she was exposed to mold and knows that mold may present a health hazard.
- Pounders v. Enserch E&C, Inc., 667 Ariz. Adv. Rep. 29 (August 21, 2013) (J. Brutinel): Substantive law of state with most significant relationship to "occurrence" and "parties" controls.
- Sanchez v. Gama, 667 Ariz. Adv. Rep. 49 (Ct. App. Div. I, August 2, 2013) (J. Thompson): Doctors called to testify only regarding their examination and treatment of patient are not entitled to expert witness fees.
- MacKinney v. City of Tucson, 231 Ariz. 584, 299 P.3d 1282 (App. Div. II, March 13, 2013) (J. Espinosa): Arizona's recreational use statute applies to injuries incurred on a city golf course if fees charged to play are nominal.
- Baker v. University Physicians Healthcare, 231 Ariz. 379, 296 P.3d 42 (March 12, 2013) (J. Bales): Plaintiffs' expert on standard of care in medical malpractice must hold the same specialty or subspecialty of defendant if the nature of the care and treatment at issue falls within the specialty held or claimed by the defendant; Specialty means board certification in the area and "claimed specialty" means area of specialization where board certification is available but not held by defendant.
- Baker v. Bradley, 655 Ariz. Adv. Rep. 10 (App. Div. I, March 5, 2013) (J. Gemmill): Premature notice of appeal creates jurisdiction only when acts left for trial court are ministerial and no substantive motions are pending.
- Marquez v. Ortega, 65 Ariz. Adv. Rep. 18 (App. Div. I February 28, 2013 (J.Hall): Significant delay and disregard for court imposed deadlines justifies the trial court in refusing to allow an extension of expert disclosure deadlines.
- Arizona State Hospital v. Klein, 653 Ariz. Adv. Rep. 33 (App. Div. I, February 5, 2013) (J. Johnsen): Arizona Rules of Evidence 702 applies to testimony by a mental health expert at a trial on a petition for discharge filed by a committed person under Arizona's Sexually Violent Persons Act
- Reynolds v. Reynolds, 653 Ariz. Adv. Rep. 30 (App. Div. I, January 31, 2013) (J. Hall): Claim of defamation and false light must be based on a statement of and concerning the plaintiffs.
- Bowen Productions, Inc. v. French, 231 Ariz. 424, 296 P.3d 87 (App. Div. I, January 24, 2013) (J. Swann): Notice of nonparty at fault deficient in stating factual basis for fault cured by disclosure statements.
- Bradshaw v. Jasso-Barajas, 651 Ariz. Adv. Rep. 6 (App. Div. I, January 18, 2013) (J. Portley): Trial court appropriately awarded attorneys' fees under Rule 77(F) (Failure to beat arbitration award by 23%) without first deducting Rule 68 (G) (Offer of Judgment) sanctions.
- McMurtry v. Weatherford Hotel, Inc., 651 Ariz. Adv. Rep. 13 (App. Div. I, January 10, 2013) (J. Brown): Question of fact for jury as to whether hotel is liable under premises liability and dramshop liability for overserving plaintiff's decedent before she stepped out of window in hotel room and fell to her death.
- State Farm Mut. Auto. Ins. Co. v. White, 651 Ariz. Adv. Rep. 8 (App. Div. I, January 3, 2013) (J. Johnsen): ARS Sec. 20-259 does not limit wrongful death damages under UIM Policy to named insureds.
- Belen Loan Investors v. Bradley, 650 Ariz. Adv. Rep. 8 (App. Div. II, December 21, 2012) (J. Espinoza): Appraiser has duty to third persons it intends to receive appraisal or knows it will receive it from unless sole identity of the initial recipient is "important and material" to appraiser.
- In re Marriage of Johnson, 650 Ariz. Adv. Rep. 4 (App. Div. II, December 19, 2012): Trial court has jurisdiction to award fees after "clearly" premature filing of notice of appeal.
- Wells Fargo Bank v. Allen, 231 Ariz. 209 , 292 P.3d 195(App. Div. I, December 4, 2012) (J. Swann): Plaintiff must establish right to judgment by admissible evidence to obtain summary judgment and plaintiff is not entitled to summary judgment based upon defendants' failure to adequately refute plaintiff's argument in response to plaintiff's motion for summary judgment.
- Cornerstone Hospital vs Marner, 231 Ariz. 67, 290 P.3d 460 (App. Div. II, December 7, 2012) (J. Vasquez): ARS Sec. 12-2604 requires affidavit establishing breach of standard of care by qualified healthcare professional to proceed against nursing home for negligent medical care under vulnerable adults ARS Sec. 46-451 through 459; Registered nurse qualified to testify regarding standard of care for RN, LPN, CNA and PN
- Colorado Cas. Ins. Co. v. Safety Control Co., Inc., 230 Ariz. 560, 288 P.3d 764 (Ct. App. 2012): stipulated judgment with motorist did not fraudulently or collusively shift liability from general contractor's excess insurer to subcontractor's ongoing operations insurer
- Catalina Foothills Unified School Dist. v. La Paloma Property Owner's Ass'n, Inc., 229 Ariz. 525, 278 P.3d 303 (App. Div. II, May 30, 2012) (J. Espinoza): Partial judgment with Rule 54(b) language granting possession in condemnation action is not final appealable judgment.
- Flood Control District v. Paloma Investment, Ltd., 635 Ariz. Adv. Rep. 4 (App. Div. I, May 31, 2012) (J. Kessler): Contractual agreement to indemnify for "all liability" includes obligation to pay amount of stipulated judgment subject to covenant not to execute ala Damron agreement; premature notice of claim valid where government suffers no detriment to ability to investigate and evaluate; rule 68 expert fee sanctions apply to fees related to actual testimony and preparation to testify only; ARS Sec. 12-341.01 gives trial judge discretion to award reasonable hourly rate and not actual contingent fee.
- In re Estate of Long, 229 Ariz. 339 ,275 P.3d 638 (App. Div. I, May 3, 2012) (J. Winthrop): Where inappropriate ex parte communication by judge to opposing party had no impact on outcome of case, trial judge is admonished but motion for new trial is denied.
- Walsh v. Adv. Card. Spec. Chart., 229 Ariz. 193, 273 P.3d 645 (April 13, 2012) (J. Pelander): Even where wrongful death claimants' trial testimony is uncontroverted, jury may find liability yet award no damages if it deems the result fair and just; Trial court may grant new trial if it determines the award is insufficient or unsupported by the evidence.
- Nunez v. Professional Transit Management, 229 Ariz. 117, 271 P.3d 1104 (February 23, 2012) (Vice Chief Justice Hurwitz): Arizona common carriers no longer must exercise the "highest degree of care" vis a vis passengers; Ordinary reasonable care will suffice.
- Am. Family Mut. Ins. Co. v. Sharp, 229 Ariz. 487, 277 P.3d 192 (2012) (J. Pelander): Where wife settles injury claim with husband's liability insurer it is also permissible for her to claim UIM coverage from her separate auto policy.
- Florez v. Martinez, 231 Ariz. 18, 289 P.3d 946(App. Div. I, November 20, 2012) (J. Vasquez): Trial court order entered prior to time that appellate court issued mandate was void for lack of jurisdiction and was not appealable.
- Geller v. Lesk, 230 Ariz. 624, 285 P.3d 972(App. Div. I, September 25, 2012) (J. Kessler): Amount of attorneys' fees awarded to prevailing party must be based upon prima facie showing of reasonableness.
- State ex rel. Raber v. Wang, 230 Ariz. 476, 286 P.3d 1085(App. Div. I, September 6, 2012) (J. Howe): State's recovery of medical costs paid to injured party when injured party settles with third party tortfreasor should not include reduction of state's pro rata share of attorneys' fees.
- Lee v. West Coast Life Ins. Co., 688 F.3d 1004(9th Cir., July 31, 2012) (J. Paez): Where insurer interpleads life insurance proceeds and parties agree to a division of the proceeds insurer remains potentially liable for independent tort claim.
- Yanes v. Maricopa County, 231 Ariz. 281, 294 P.3d 119 (App. Div. I, November 13, 2012) (J. Gould): A substantive due process claim for malicious prosecution does not exist under 42 USC 1983.
- Para v. Anderson, 231 Ariz. 91 290 P.3d 1214 (App. Div. I, November 1, 2012) (J. Swann): Once expert witness opinions disclosed, cannot protect expert from further discovery by re-designating as "consultant."
- Sierra Tucson, Inc. v. Lee (Litwack), 230 Ariz. 255, 282 P.3d 1275 (App. Div. II, June 28, 2012) (J. Espinoza): Failure to timely controvert motion to change venue divests trial court of authority to grant motion to add local defendant to preserve venue.
- Nardelli v. Metropolitan Group Prop. & Cas. Ins. Co., 230 Ariz. 592, 277 P.3d 789 (App. Div. I, May 1, 2012) (J. Norris): Insurance bad faith and right to punitive damages established where defendant fails to reasonably investigate and fails to pay at least amount sufficient to repair SUV and fails to alert isnured as to favorable language in policy; punitive damages, however, should match compensatory award.
- Metzler v. BCI Coca-Cola Bottling Co., 230 Ariz. 26, 279 P.3d 1188 (App. Div. II, May 11, 2012) (J. Brammer): Where plaintiff beats her offer of judgment at trial, defendant wins new trial motion but court of appeals reverses, interest on judgment runs from date of offer until the mandate issues from the appellate court reinstating the judgment.
- Castle v. Barrett-Jackson Auction Co., 229 Ariz. 471, 276 P.3d 540(App. Div. I, May 10, 2012) (J. Orozco): Where defendant clearly disclaimed in writing that it was making any representations regarding car sale and plaintiff signed agreement acknowledging this fact, consumer fraud action could not withstand a motion to dismiss.
- Atreus Communities Group v. Stardust Dev., Inc., 229 Ariz. 503, 277 P.3d 208(App., Div. I, May 1, 2012) (J. Kessler): Arbitration agreements are favored and unless agreement expressly says otherwise, arbitrator has authority to grant summary judgment.
- Van Heeswyk v. Jabiru Aircraft PTY, Ltd, 229 Ariz. 412, 276 P.3d 46 (App. Div. II, April 24, 2012) (J. Vasquez): Foreign manufacturer with distributors in the U.S. that requires distributors target Arizona consumers is subject to personal jurisdiction in Arizona.
- Grubb v. Do It Best Corp., 230 Ariz. 1 279 P.3d 626 (App. Div. II, May 4, 2012) (J. Howard): Co-op that never possesses a product, has no say in the design, manufacture and packaging of product and merely collects a small fee to cover billing expenses, is not seller in the chain of distribution and cannot be strictly liable for a defect in the product.
- Arpaio v. Figueroa, 229 Ariz. 444, 276 P.3d 513(App. Div. I, April 30, 2012) (J. Vasquez): Financial worth evidence cannot be compelled from defendant until court determines a prima facie case for punitive damages exists; trial court should make such determination "as soon as reasonably possible."
- Pounders v. Enserch E&C, Inc., 632 Ariz. Adv. Rep. 26 (App. Div. I, April 17, 2012) (J. Timmer): Conflicts of law presumes substantive law in jurisdiction where injury occurs controls and injury occurs where the force set in motion first takes effect on plaintiff. (Affirmed in Part, Reversed in Part by Pounders v. Enserch E&C, Inc., 667 Ariz. Adv. Rep. 29 (August 21, 2013) (J. Brutinel).
- Delci v. Guiterrez Trucking Co., 632 Az. Adv. Rep. 8 (App. Div. I, April 19, 2012) (J. Hall): No duty for failure to secure vehicle resulting in theft of vehicle and ultimate injury and death to plaintiffs in auto accident caused by thief.
- Hall v. Reed Dev., Inc., 229 Ariz. 277(App. Div. I, April 12, 2012) (J. Brown): In calculating whether a party beat a written offer to settle at trial to justify an award of attorneys' fees under ARS Sec. 12-341.01(A), court should include fees and costs the court awards prevailing party to the date of the written offer of judgment.
- D'Amico v. Structural Co., 631 Az. Adv. Rep. 11 (App. Div. I, April 4, 2012) (J. Johnsen): Framing company lacked standing to argue Superior Court erred when it admitted testimony covered by psychologist/patient privilege; only person holding privilege can assert it.
- Assyia v. State Farm Mut. Auto. Ins. Co., 229 Ariz. 216, 273 P.3d 668(App. Div. I, March 22,2012) (J. Downie): UM claim arises out of contract justifying award of attorneys' fees under ARS Sec. 12-341.01 and taxable costs to successful party.
- The Salvation Army v. Bryson, 629 Ariz. Adv. Rep. 11 (App. Div. II, March 2, 2012) (J. Espinosa): Summarized statements obtained of employees and agents of defendants by investigator under direction of defendant's corporate counsel are protected by attorney/client privilege.
- Santee v. Mesa Airlines, 229 Ariz. 88, 270 P.3d 915 (App. Div. II, February 28, 2012) (J. Ekerstrom): Filing of Rule 68 motion for sanctions renders filing of notice of appeal from minute entry dismissing suit a premature nullity.
- State v. Palmer, 628 Ariz. Adv. Rep. 8 (App. Div. II, February 17, 2012) (J. Brammer): Statement made by friend of criminal defendant "where is your backpack?", not being an assertion, is not hearsay.
- Baker v. University Physicians Healthcare, 228 Ariz. 587, 269 P.3d 1211 (App. Div. II, February 22, 2012) (J. Howard): In medical negligence actions plaintiff must have expert holding the same ABMS board certified specialty as the defendant; holding the same subspecialty will not suffice. (Baker v. University Physicians Healthcare, 231 Ariz. 379, 296 P.3d 42 (March 12, 2013) (J. Bales)).
- State v. Penny, 627 Ariz. Adv. Rep. 4 (App. Div. I, January 31, 2012): Defendant not given right to counsel when provided phone and yellow pages with attorneys' section torn out.
- BYS Inc. v. Smoudi, 627 Ariz. Adv. Rep. 16 (App. Div. I, February 9, 2012) (J. Orozco): Where defendant appears after notice of default but before judgment and no hearing held, default judgment void.
- Cosper v. Rea ex rel, 228 Ariz. 555, 269 P.3d 1179 (February 6, 2012) (J. Brutinel): Arizona rule of civil procedure 77(g)(1) & (4) require filing list of witnesses and exhibits simultaneously with appeal from arbitration and a later disclosure is allowed only for "good cause" shown.
- Benkendorf v. Advanced Cardiac Specialists, 228 Ariz. 528, 269 P.3d 704(App. Div. I, January 24, 2012) (J. Brown): While plaintiff must prove causation is probable, defense may challenge causation with expert testimony as to what is possible.
- BNSF Railway Co. v. Buttrick, 624 Ariz. Adv. Rep. 41 (App. Div. I, December 29, 2011) (J. Swan): Arizona court lacks jurisdiction to issue protective order prohibiting employer from obtaining medical records of employee who brought personal injury action under FELA.
- Ochser v. Funk, 228 Ariz. 365, 266 P.3d 1061 (December 21, 2011) (J. Pelander): Sheriff deputies have qualified immunity in making unconstitutional arrest where existing law does not "clearly establish" unconstitutionality of their actions.
- Braden v. State of Arizona, 228 Ariz. 323, 266 P.3d 349(November 30, 2011) (J. Brutinel): State not considered "legal entity" under Adult Protective Services Statute (ARS Sec. 46-455) and therefore not bound by the act.
- McBride v. Kieckhefer Assoc., Inc., 228 Ariz. 262, 265 P.3d 1061 (App. Div. I, November 3, 2011) (J. Gemmill): Trial court may weigh evidence and consider witness credibility on motion for new trial but may not on motion for directed verdict or motion for judgment as a matter of law; Trial court is finder of fact on equitable estoppel theory.
- Jackson v. Nationwide Mut. Ins. Co., 618 Ariz. Adv. Rep. 25 (App. Div. II, September 30, 2011) (J. Kelly): Where insured had auto policy providing UM coverage, the insured's general commercial policy with a garage liability endorsement is not required to offer UM coverage.
- Ryan v. San Francisco Peaks Trucking Co., Inc., 228 Ariz. 42, 262 P.3d 863 (App. Div. I, August 25, 2011) (J. Brown): Plaintiff's allegations in disclosure statement and plaintiff's expert affidavits establishing medical negligence of settling defendant admissible to establish nonparty at fault allegation by non settling defendant.
- Cohen v. Maricopa County, 615 Ariz. Adv. Rep. 10 (App. Div. I, August 16, 2011) (J. Winthrop): Where patient died of drug overdose after release from county hospital, county had no duty to patient in the out-patient care of a facility hired by state and not county.
- Engler v. Gulf Interstate Engineering, Inc., 227 Ariz. 486, 258 P.3d 304 (App. Div. I, August 9, 2011) (J. Winthrop): Employee working out of town in auto accident on way back to hotel from dinner not acting within course and scope of employment; Division I rejects Division II holding.
- Fidelity & Deposit Co. v. Bondwriter Southwest, Inc., 613 Ariz. Adv. Rep. 9 (App. Div. I, July 28, 2011) (J. Gemmill): In suit for breach of contract and negligence arising out of the same conduct, contract damages are not subject to UCATA or apportionment of damages based upon fault.
- Blevens v Government Employees Ins. Co., 613 Ariz. Adv. Rep. 20 (App. Div. I, July 28, 2011) (J. Portley): UIM statute does not require written and signed rejection of coverage for rejection to be valid.
- Oliver v. Henry, 613 Ariz. Adv. Rep. 31 (App. Div. I, July 28, 2011) (J.Winthrop): Plaintiff may recover diminished value of automobile after accident and repair even though she has not sold, exchanged or disposed of vehicle.
- Lund v. Donahoe, 613 Ariz. Adv. Rep. 39 (App. Div. I, July 28, 2011) (J. Swann): Trial court abused discretion in holding attorney in contempt and sanctioning him for issuing subpoena to expert seeking past reports.
- State v. Whitten, 228 Ariz. 17, 262 P.3d 238(App. Div. I, July 21, 2011) (J. Downie): Doctor called to testify regarding information received during treatment of patient not an "expert" witness entitled to expert fees.
- American Asphalt & Grading Co v. CMX, LLC, 227 Ariz. 117, 253 P.3d 1240(July 1, 2011) (J. Brutinel): Rule 38.1(a) requires contemporaneous if not nearly contemporaneous notice to parties that a case is being assigned to the inactive calendar and an order stating this will occur in 150 days does not comply with the rule.
- State v. Carver, 611 Ariz. Adv. Rep. 7 (App. Div. I, June 28, 2011) (J.Kessler): Arizona's newly amended marital communication privilege exempting communications from the privilege when spouse gives voluntary statement to law enforcement is procedural and therefore may be applied retroactively.
- Estate of Timothy Maudsley v. Meta Services, Inc., 227 Ariz. 430, 258 P.3d 248 (App. Div. I, June 23, 2011) (J. Morris): Arizona's mental health statutes and doctor-patient relationship each create a duty by psychiatric hospital and psychiatrist to exercise reasonable care in intake, evaluation, treatment and decision to hospitalize mentally ill patient.
- Long v. TRW Vehicle Safety Sys. Inc., 796 F.Supp.2d 1005 (D. Ariz., June 20, 2011): Expert testimony not needed to prove seatbelt was defective where ordinary consumer could form expectation regarding their safety.
- Duncan v. Progressive Preferred Ins. Co., 228 Ariz. 3 261 P.3d 778 (App. Div. I, June 9, 2011) (J. Gemmill): Where probate registrar appoints individual as special administrator of deceased tort defendant's estate for sole purpose of accepting service of process, insurer may not collaterally attack that appointment in the underlying tort action.
- Chavez v. Arizona School Risk Retention Trust, Inc., 609 Ariz. Adv. Rep. 37 (App. Div. II, May 18, 2011) (J. Howard): ARS Sec. 20-259.01(B) mandates UIM coverage for children boarding school bus.
- Awsienko v. Cohen, 227 Ariz. 256, 257 P.3d 175 (Ariz. Ct. App. 2011): an expert witness testifying against a board-certified specialist in a medical malpractice action need not be board-certified in the same specialty as the defendant at the time of the underlying incident.
- Winterbottom v. Ronan, 609 Ariz. Adv. Rep. 54 (App. Div. I, May 20, 2011) (J. Kessler): Victim's Bill of Rights does not protect victim from deposition by attorney formerly representing perpetrator in perpetrator's attorney malpractice action against former attorney.
- Slaughter v. Maricopa County, 606 Ariz. Adv. Rep. 30 (App. Div. I, May 5, 2011) (J. Winthrop): County is not agent of state for purpose of accepting service of Notice of Claim by county employee alleging discrimination and hostile work environment.
- Edonna v. Heckman, 227 Ariz. 108, 253 P.3d 627 (App. Div. I, May 3, 2011) (J. Swanson): Natural born son of decedent does not have standing to bring wrongful death claim where he was adopted by step-father before natural father died, thus legally severing parental relationship with natural father.
- Goodman v. Staples, 644 F.3d 817 (9th Cir., May 3, 2011) (J. Silverman): Federal rules of civil procedure 26(a)(2)(B) requires party submit an expert report authored by treating physician if doctor will offer opinions (such as causation) which are formed outside the course of treatment.
- Marquette Venture Partners v. Leonesio, 227 Ariz. 179, 254 P.3d 418 (App. Div. I, May 3, 2011) (J. Portley): Defendant must file motion for new trial or for judgment NOV after verdict is in to preserve right to challenge sufficiency of evidence on appeal; pretrial motions and pre-verdict motion under rule 50(A) do not suffice.
- Wickham v. Hopkins, 226 Ariz. 468, 250 P.3d 245 (App. Div. I, April 19, 2011) (J. Gemmill): Parents of 14-year-old girl who throws drinking party while parents are out of town owe no duty to teenager attending party who is assaulted by another attendee.
- Young v. Beck, 227 Ariz. 1 251 P.3d 380 (April 5, 2011) (J.Pelander): Family Purpose Doctrine renders son the agent of his parents in operation of family vehicle placing the doctrine outside the abolition of joint liability in UCATA and son's minor deviation from scope of permission to use vehicle does not excuse parents from liability for his negligent driving.
- Blevins v. Government Employees Ins. Co., 227 Ariz. 456, 258 P.3d 274 (App. Div. I, March 24, 2011) (J. Portley): ARS sec. 20-259.01 requires UIM coverage be offered in writing but does not require the rejection of coverage also be in writing.
- Southwest Fiduciary, Inc., v. Arizona Health Care Cost Containment System Administration, 226 Ariz. 404, 249 P.3d 1104 (App., Div. I, March 10, 2011) (J. Johnsen): State medicaid may recover no more than the portion of the victim's settlement that represents recovery of the plan's payments on behalf of the victim, less a deduction for litigation expenses.
- Chappell v. Wenholz, 601 Ariz. Adv. Rep. 6 (App., Div. I, February 8, 2011)(J. Timmer): Defendants who engage in brawl and beat plaintiffs to ground act "in concert" and are jointly and severally liable.
- Lear v. Fields, 599 Ariz. Adv. Rep. 37 (App. Div. II, January 12, 2011) (J. Espinosa): ARS sec. 12-2203 adopting Daubert standard of admissibility of expert opinion violates Arizona Supreme Court's rule-making authority and constitutional requirement of separation of powers.
- The Planning Group of Scottsdale v. Lake Matthews Mineral Properties, 226 Ariz. 262246 P.3d 343 (January 21, 2011) (J. Hurwitz): Purposeful availment of the jurisdiction is the appropriate test for personal jurisdiction in a contract action and purposeful direction is most appropriate in tort cases.
- Desela v. Prescott Unified School Dist,. 606 Ariz. Adv. Rep. 18 (January 18, 2011) (J. Bales ): Both parents and minor may recover medical expenses of minor but no double recovery is allowed and minor's notice of claim and statute of limitations deadlines for seeking such damages are tolled until minor reaches majority.
- Blair v. Burgener, 598 Ariz. Adv. Rep. 26 (App. Div. II, December 29, 2010) (J. Vasquez): Alternative service of process upon person at front desk of defendant's office and by mail where process server made 5 attempts to serve defendant at home and 7 attempts to serve defendant at office but was always told defendant was not in.
- Short v. Dewald, 598 Ariz. Adv. Rep. 19 (App. Div. I, December 28, 2010) (J. Hall): Med mal action filed outside the statute of limitations pursuant to relief granted under savings statute in prior action where defendant did not appeal the granting of relief to refile was not time barred; refiling restarted the time for service of process.
- Midis Greenhouses v. Global Horticultural, Inc., 598 Ariz. Adv. Rep. 33 (App. Div. II, December 22, 2010) (J. Kelly): Economic loss rule does not bar action for products liability and misrepresentation where defendant knew the use to which plaintiff would put defendant's product and nonetheless provided a product defective for that use.
- Cortez v. Avalon Care Center, 598 Ariz. Adv. Rep. 30 (App. Div. II, December 22, 2010) (J. Ekerstrom): Failure to plead right to arbitration in answer or to raise issue until after a year of litigation constitutes waiver of the defense.
- Dooley v. O'Brien, 598 Ariz. Adv. Rep. 23 (App. Div. I, December 2, 2010) (J. Swan): Action arising out of a duty imposed by law, not by express or implied promise, is not an action "arising out of contract" under attorneys' fees statute.
- Hamill v. Mid-Century Ins. Co., 590 Ariz. Adv. Rep. 14 (App., Div. II, September 3, 2010) (J. Howard): Where liability insurer lifts policy limits and ultimately settles after verdict for amount over original policy limits there is no right to underinsured motorist coverage.
- Estate of Mary Winn, 225 Ariz. 275, 237 P.3d 628(App., Div. I, August 10, 2010) (J. Downie): Adult Protective Services Act while allowing "actual damages" does not allow recovery of damages for the loss of the protected adult's life.
- Desert Mountain Properties, Ltd. Partnership v. Liberty Mutual Fire Ins. Co., 588 Ariz. Adv. Rep. 59 (App., Div. I, August 3, 2010) (J. Johnsen): Claimant need not sue to invoke insurance company's obligation to indemnify for insured's defective soil compaction and where insurer not prejudiced, volunteer repairs and payments covered.
- Robinson v. Kay, 225 Ariz. 191 236 P.3d 418(App., Div. II, July 30, 2010) (J. Vasquez): Dismissal of one of two theories supporting a single claim does not support 54(b) language and court of appeals lacks jurisdiction to decide case piecemeal.
- McReynolds v. American Commerce Ins. Co., 225 Ariz. 125, 235 P.3d 278 (App., Div. I, July 14, 2010) (J. Barker): Insurer not in bad faith for failing to accept offer of judgment within policy limits when it interplead funds in light of multiple claims against policy limits.
- Clusiau v. Clusiau Enterprises, Inc., 225 Ariz. 247, 236 P.3d 1194(App., Div. I, July 8, 2010) (J. Johnsen): A judgment obtained in small claims court has no collateral estoppel effect on subsequent superior court action.
- Johnson v. State of Arizona, 224 Ariz. 554 233 P.3d 1133 (July 8, 2010) (J. Pelander): Subsequent remedial measure excluded even where defendant was unaware of plaintiff's accident at time of putting up new signs and even where defendant denied the intersection was unsafe without the signs and alleged comparative fault on plaintiff.
- Roberts v. City of Phoenix, 585 Ariz. Adv. Rep. 33 (App. Div. I, July 1, 2010) (J. Brown): Where defendant repeatedly failed to produce documents compelled by court and there was evidence this was done in bad faith and to obstruct discovery striking answer was appropriate.
- Simon v. Maricopa Medical Center, 585 Ariz. Adv. Rep 28 (App. Div. I, July 1, 2010) (J. Kessler): Where plantiff names a nonjural entity in notice of claim and complaint but serves the appropriate jural entity with these documents remedy is to allow an amendment to complaint and not dismissal.
- State Compensation Fund v. Fink, 585 Ariz. Adv. Rep. 54 (App. Div. I, July 1, 2010) (J. Gemmill): Right to Intervene is Procedural and Therefore Can Be Exercised Retroactively.
- Perry v. Ronan, 585 Ariz. Adv. Rep. 56 (App., Div. I, June 22, 2010) (J. Orozco): Acceptance of settlement offer after deadline can be enforced.
- Ellsworth Land & Livestock Inc., v. Bush, 585 Ariz. Adv. Rep. 45 (App., Div. *I, June 22, 2010) (J. Orozco): Where court has personal jurisdiction over nonresident defendant, it may issue garnishment order on annuity payments originating outside jurisdiction.
- Ezell v Quoun, 585 Ariz. Adv. Rep. 40 (App., Div. I, June 17, 2010) (J. Hall): Where complaint pleads right to partnership interest and punitive damages default judgment for these damages appropriate.
- Yeung v. Maric, 196 Ariz. 411, 998 P.2d 1084 (App., Div. I, June 9, 2010)(J. Gemmill): Doctor's statements in IME report as part of private arbitration are absolutely privileged and cannot form basis of defamation or false light invasion of privacy claim.
- Braillard v. Maricopa County, 583 Ariz. Adv. Rep. 8 (App. Div. I, May 27, 2010) (J. Vasquez): Daughter has standing to bring wrongful death and 42 USC 1983 survival action against government employees for failing to provide medical care to mother resulting in her death and may recover pain and suffering and punitive damages against government employees but may not sue Maricopa County Sheriff's Office as it is a nonjural entity.
- Young v. Beck, 224 Ariz. 408, 231 P.3d 940, 1 CA-CV 09-0188 (Ct. App., Div. I, May 20, 2010) (J. Brown): Family purpose doctrine renders parents liable for negligent driving of son even when son exceeds scope of authorized use of vehicle.
- Comerica Bank v. Mahmoodi, 581 Ariz. Adv. Rep. 27 (App., Div. I, May 4, 2010) (J. Swann): Summary Judgment for plaintiff on common law fraud complaint where defendant became incapacitated and could not remember transaction must fail due to inability to fully establish knowledge and intent to defraud.
- Diaz v. Phoenix Lubrication Service, 224 Ariz. 335, 230 P.3d 718 (Ct. App., Div. I, May 4, 2010) (J. Gemmill): Automobile lube station performing routine oil change and "service job" does not have a duty to inspect tires.
- Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008 (2010): Arizona does not recognize cause of action for first-party spoliation of evidence.
- Aqua Management, Inc. v. Abdeen, 224 Ariz. 91, 227 P.3d 498 (App., Div. I, March 30, 2010) (J. Portley): Arbitrator's award of attorneys' fees and potential and prejudgment interest included in computation to determine if appellant beat arbitration award by 23% to avoid sanctions.
- Edwards v. Board of Supervisors, 597 Ariz. Adv. Rep. 7 (App., Div. I, March 30, 2010)(J. Orozco): County immune from suit for flooding where uncontroverted its culvert design met accepted engineering standards and where plaintiff was warned in writing flooding could occur.
- Solimeno v. Yonan, 224 Ariz. 74, 227 P.3d 481 (App., Div. I, March 18, 2010) (J. Downie): Where defendant doctor in a medical malpractice case testifies he complied with standard of care, there must be a timely pretrial disclosure of the facts, opinions and a summary of the grounds for the opinions; ARS sec. 12-349(A)(3) allows for award of fees and costs for failure to disclose thus causing mistrial.
- Preston v. Kindred Hospitals West, 226 Ariz. 391 249 P.3d 771 (March 24, 2010) (J. Bales): Plaintiff's failure to prosecute a case in the name of a real party in interest does not require a showing of "understandable mistake or difficulty in identifying the party."
- Wilshire Ins. Co. v. S.A., 224 Ariz. 97, 227 P.3d 504 (App., Div. I, March 23, 2010)(J. Johnsen): Criminal Act Exclusion in business policy bars claim for false imprisonment as part of sexual assault by insured under public policy against insuring for intentional acts.
- State v. Damper, 223 Ariz. 572, 225 P.3d 1148 (App., Div. I, March 2, 2010) (J. Johnsen): Text message made during the event at issue or shortly thereafter is a present sense impression and not excluded by the hearsay rule.
- Riendeau v. Wal-Mart Stores, Inc., 223 Ariz. 540, 225 P.3d 597 (App., Div. I, February 25, 2010) (J. Kessler): Tardy Filing of Cost Bond Does Not Destroy Superior Court Jurisdiction of Appeal from Mandatory Arbitration.
- Flagstaff Affordable Hous. Ltd. P'ship v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010): economic loss doctrine applies to construction contracts.
- Gamboa v. Metzler, 575 Ariz. Adv. Rep. 21 (App., Div. I, February 2, 2010) (J. Portley): Trial Court May Set Time Limits on Witness Examination.
- Aztar Corp. v. U.S. Fire Ins. Co., 574 Ariz. Adv. Rep. 5 (App., Div. I, January 28, 2010) (J. Barker): Business Interruption Insurance Where Explansion of Business Collapses.
- Federico v. Maric, 574 Ariz. Adv. Rep. 15 (App., Div. I, January 28, 2010) (J. Irvine): IME doctor not Liable for "Aiding and Abetting" Insurance Co. in Bad Faith Denial of Workers Comp Claim.
- Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806 (9th Cir., January 4, 2010) (J. Ikuta): Charter School not State Actor in Employment Matters.
- Romer-Pollis v. Ada, 223 Ariz. 300, 222 P.3d 916 , 1 CA-CV 08-0692 (App., Div. I, December 24, 2009) (J. Portley): Failure to Attend Arbitration Grounds for Dismissing Appeal.
- Kaufman v. Langhoffer, 572 Ariz. Adv. Rep. 11 (App., Div. I, December 22, 2009)(J. Norris): Pet is Personal Property so no Emotional Distress Damages for Pet's Death.
- Minjares v. State, 223 Ariz. 54, 219 P.3d 264 (Ct. App. Div. I, October 29, 2009)(J. Weisberg): Interest on judgment against state on appeal to be paid out of state revolving fund to be based on average yield of US Treasury Bonds not 10%.
- Hammoudeh v. Jada, 222 Ariz. 570, 218 P.3d 1027 (Ct. App. Div. II, October 9, 2009)(J. Vasquez): Striking complaint and answer to counterclaim appropriate sanction where pervasive pattern of intentional delay and subterfuge by plaintiff demonstrated the record.
- American Family Mutual Ins. Co. v. Grant, 566 Ariz. Adv. Rep. 26 (Ct. App. Div. II, October 8, 2009) (J. Downie): Where evidence of prior testimony and bias is available subpoena duces tecum for all reports for an insurance company or attorney and list of all cases was overbroad.
- Advanced Cardiac Specialists v. Tri-City Cardiology Consultants, 563 Ariz. Adv. Rep. 14 (App. Div. I, August 25, 2009) (J. Swann): ARS 32-1451 abrogates common law absolute privilege to report medical malfeasant and substitutes qualified privilege requiring showing of "good faith".
- Lips v. Scottsdale Healthcare Corp., 563 Ariz. Adv. Rep. 10 (App. Div. I, August 25, 2009) (J. Thompson): Arizona does not recognize a claim for spoilation of evidence by a first or third party to the litigation. (Affirmed in Part, Vacated in Part by Lips v. Scottsdale Healthcare Corp., Ariz., May 3, 2010)
- Arizona Department of Administration v. Cox, 222 Ariz. 270, 213 P.3d 707 (App., Div II, August 17, 2009) (Justice Howard): State's statutory lien right attaches to tort damages against third person without limit.
- Vicari v. Lake Havasu City, 222 Ariz. 218, 213 P.3d 367 (App., Div. I, August 4, 2009) (J. Weisberg): Award of attorney's fees to defendant appropriate after plaintiff files rule 41 notice of dismissal in response to defendant's rule 12 motion to dismiss.
- Parra v. Continental Tire, Inc., 222 Ariz. 212, 213 P.3d 361 (App., Div. I, July 28, 2009) (J. Johnsen): Forum non conveniens not permissible as ground for dismissal where plaintiffs were Mexican nationals and accident occurred in Mexico but where product was manufactured, sold and maintained in Arizona
- Maria v. Najera, 214 Ariz. 306, 214 P.3d 394 (App. Div. I, July 21, 2009)(J. Johnsen): Appellate court has no jurisdiction to hear appeal from denial of motion for new trial based upon granting of partial summary judgment.
- State v. Grant, 222 Ariz. 197, 213 P.3d 346 (App., Div. I, July 21, 2009) (J. Johnsen): Nonparty that did not agree to be bound by protective order not subject to sanctions for disseminating protected deposition transcript.
- Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, 213 P.3d 320 (App., Div. I, July 14, 2009)(J. Barker): Statute of limitations on legal malpractice in handling creditor's claim in bankruptcy is not an adversarial proceeding so "ongoing litigation" rule does not apply.
- Mendoza v. McDonald's Corp., 222 Ariz. 139, 213 P.3d 288 (App., Div. I, July 7, 2009)(J Norris): Damages in worker's comp and bad faith action includes pain and suffering, lost wages and medical expenses where plaintiff's condition aggravated by self-insured employer and defendant waives attorney/client privilege where it takes position it acted reasonably and had no "evil mind" because it relied upon advise of counsel.
- Castro v. Ballesteros-Suarez, 222 Ariz. 48, 213 P.3d 197 (App. Div. I, June 18, 2009): Assertion of 5th amendment in civil action creates inference of guilt and Arizona's slayer statute bars spouse recovering life insurance benefits where it is found spouse killed decedent.
- Huerta v. Nelson, 222 Ariz. 44, 213 P.3d 193 (App., Div. I, June 16, 2009) (J. Johnsen): No Right to Second Notice of Change of Judge After Case Consolidation.
- Carondelet Health Network v. Miller, 221 Ariz. 614, 212 P.3d 952 (App., Div. II, June 12, 2009) (J. Vasquez): Doctor/patient privilege does not bar discovery of patient's identity who witnesses falls of plaintiff's decedent in hospital and allegedly notified nurse.
- Batty v. Glendale Union H.S. Dist., 221 Ariz. 592 (App., Div. II, June 2, 2009) (Justice Weisberg): Service of Notice of Claim on school superintendent inadequate; must serve school board.
- Quintero v. Rogers, 221 Ariz. 536, 212 P.3d 874 (Ct. App. 2009): damages for loss of enjoyment of life are precluded by survival statute, but punitive damages are not.
- Sage v. Blagg Appraisal Co., 555 Ariz. Adv. Rep 22 (App. Div. I, April 30, 2009) (Justice Johnsen): Real estate appraiser can be liable to buyer on purchase money mortgage for negligence in performing appraisal.
- Jilly v. Rayes, 555 Ariz. Adv. Rep. 33 (App. Div. I, April 30, 2009) (Justice Thompson): ARS 12-2603 requiring expert affidavit that medical defendant breached standard of care does not constitutionally impinge on court's separate rulemaking power.
- Ritchie v. Krasner, 221 Ariz. 288, 211 P.3d 1272 (App. Div I, April 21, 2009)(Justice Irvine): Even absent formal doctor-patient relationship a doctor conducting an IME owes a duty of reasonable care to his patient.Beynon v. Trezza, 554 Ariz. Adv. Rep. 15 (App. Div. II, April 13, 2009)(Justice Pelander):
- Beynon v. Trezza, 554 Ariz. Adv. Rep. 15 (App. Div. II, April 13, 2009)(Justice Pelander): Attorney malpractice defendant wins even where attorney misses SOL where plaintiff would not have prevailed in underlying case. (Later ordered Depublished).
- Bailey-Null v Value Options, 221 Ariz. 63, 209 P.3d 1059 (Ct. App. Div. I, April 7, 2009)(Justice Swann): Need not exhaust administrative remedies with Arizona Department of Health Services before seeking civil remedies because agency lacks original jurisdiction over such claims.
- Devries v. State of Arizona, 221 Ariz. 201, 211 P.3d 1185 (App., March 31, 2009)(Justice Gemmill): State qualified immunity barring claim by intoxicated driver who sues state for road barrier design is constitutional and overcome only by showing of reckless disregard.
- Brethauer v. General Motors Corp., 221 Ariz. 192, 211 P.3d 1176 (App., March 31, 2009)(Justice Timmer): Statement in opening and in cross of plaintiff that he was not belted at time of accident permissible and failure to give consumer expectation product liability instruction harmless error where jury found plaintiff did not wear seatbelt.
- Backus v State, 220 Ariz. 101 203 P.3d 499 (March 19, 2009) (Chief Justice McGregor) Notice of claim must state facts supporting the amount of the claim that are known to the claimant.:
- Valley Forge Ins. Co. v. Sam's Plumbing, 552 Ariz. Adv. Rep. 16 (App. Div. II, March 19, 2009)(Justice Eckerstrom): Economic loss rule does not bar claim where harm is sudden even where no personal injury or personal property loss is sustained.
- Poulson v. Ofack, 220 Ariz. 294, 205 P.3d 1141 (App. Div. I, March 17, 2009) (Justice Brown): Prevailing party is entitled to full payment of fees and costs incurred during tortfeasor's appeal of arbitration award.
- Seisinger v. Siebel, 220 Ariz. 85 203 P.3d 483 (March 13, 2009): Requirement that affidavit signed by expert in same medical speciality as defendant establishing breach of standard of care be filed with disclosure is substantive and not procedural, thus not within rule-making purview of the courts and therefore not in violation of the separation of powers.
- Pipher v Loo, 221 Ariz. 399 212 P.3d 91 (App., Div. II, March 10, 2009) (Justice Irvine): Causation expert may opine breach of standard of care as predicate to opinion on causation; Rule 703 evidence allows expert to base opinion in part upon hearsay where other reliable and trustworthy evidence such as laboratory research.
- Zenith Electronics Cor. v. Ballinger, 220 Ariz. 257, 204 P.3d 1106 (App. Div. I, March 5, 2009) (Justice Weisberg).: Public interest organization permitted to intervene in wrongful death action after settlement and dismissal to challenge protective order on product safety information.
- Scottsdale Ins. Co. v. Cendejas, 220 Ariz. 281, 205 P.3d 1128 (App. March 3, 2009) (Justice Weisberg): Defendant's nonparty at fault properly stricken where insufficient facts set forth in notice to establish viable claim of liability; prejudgment interest runs on liquidated damages from the date plaintiff specifies how they can be calculated; expert witness fees awarded for failing to accept offer of judgment includes fees for non testifying experts.
- Adams v. Pacific Cycle, UNPUBLISHED, 2009 WL 532629 (App., Div I, March 3, 2009)(Justice Gemmill):Admissibility of CPSC regulation compliance in support of state of the art defense; Comparative fault of plaintiff's alcohol and marijuana use not necessarily a "reasonably foreseeable use.
- In re MH2007-0018995, 548 Ariz. Adv. Rep. 23 (App., Div I, February 10, 2009)(Justice Kessler): Must challenge competency of interpreter at time of translation and no right to court certified as opposed to court qualified.
- Monterey Homes Arizona, Inc. v. Federated Mutual Ins. Co.. 549 Ariz. Adv. Rep. 14 (App., Div. II, February 10, 2009) (Justice Norris): Insurer with subrogation rights has right to intervene at reasonableness hearing after Morris Agreement but may only challenge reasonableness of settlement.
- Tilley v. Delci, 548 Ariz. Adv. Rep. 15 (App. Div. I, January 29, 2009)(Justice Downie): Grant of summary judgment is not a sanction for failing to comply with court order to file proper response.
- Pride of San Juan, Inc. v. Pratt, 548 Ariz. Adv. Rep. 20 (App. Div. I, January 29, 2009)(Justice Norris): Crop dusting is still inherently dangerous activity rendering landowner vicariously liable for actions of crop duster.
- City of Phoenix v. Fields, 548 Ariz. Adv. Rep. 33 (January 22, 2009) (Justice Hurwitz): Class action plaintiff must file notice of claim against government specifying amount for which class representative would settle his individual claim; Defendant may waive right to compliance with notice of claim statute by substantial participation in litigation before pursuing defense.
- Hudgins v. Southwest Airlines, Co., 547 Ariz. Adv. Rep. 5 (Ct. App. Div. 1, January 13, 2009) (Justice Timmer): Excessive punitive damages award is unconstitutional.
- Britt v. Steffen, 546 Ariz. Adv. Rptr. 12 (Ct. App. Div. I, December 26, 2008)(Justice Hall): Trial court has jurisdiction to consider application for fees after entry of judgment of dismissal for lack of prosecution and such judgment renders defendant the successful party under A.R.S. 12-341.01.
- Messina v. Midway Chevrolet Co., 545 Ariz. Adv. Rptr. 12 (Ct. App. Div. I, December 18, 2008) (Justice Downie): Garage policy excludes customers to include one who purchases or patronizes.
- Kellogg v. Wyeth, 612 F.Supp.2d 421 (D. Vt., December 17, 2008): State Tort Claims Not Preempted for Failure to Warn Regarding Generic Drug.
- FIA Card Services, v. Levy, 545 Ariz. Adv. Rptr. 15 (Ct. App. Div. II, December 12, 2008) (Justice Vasquez): Arbitration clause allowing arbitrator to rule without hearing where party does not meet deadline for filing opposition upheld.
- In re Mattel, Inc., 588 F.Supp.2d 1111 (C.D. Cal., December 8, 2008): Consumer product safety commission regulations do not preempt state law class actions by consumers.
- MT Builders, LLC v. Fisher Roofing, Inc., 543 Ariz. Adv. Rep. 21 (Az Ct. App., Div. 1, November 13, 2008) (Judge Norris): Sub-contractors indemnity agreement limited to proof of actual negligence by sub and proof settlement was reasonable.
- 1800 Ocotillo, LLC v. The WLB Group, Inc., 542 Ariz. Adv. Rep. 11 (Az Sup. Ct. November 3, 2008) (Justice Bales): Limitation of liability clause in contract limiting damages for negligence of surveyor to the surveyor's fees did not violate public policy and did not constitute an assumption of the risk constitutionally requiring a jury trial.
- MB Financial Group, Inc. v. United States Postal Service, No. 06-56267 , 545 F.3d 814 (9th Circuit, September 25, 2008). (Judge Schroeder). The United States Post Office is not immune for failing to make available a post office box to customer it had promised to provide a box.
- Cullen v. Auto Owners Ins., 218 Ariz. 417 189 P.3d 344 (July 25, 2008) (Justice McGregor): Rule 8 of Arizona Rules of Civil Procedure Requires complaint be pled with sufficient specificity to show pleader is entitled to relief.
- Haab v. County, 532 Ariz. Adv. Rep. 8 (Ariz. Ct. App. Div. 1, on June 17, 2008) (Judge Irvine): Arizona revised statute §12-2604(A) requiring affidavit by medical doctor in same specialty as defendant to support filing lawsuit violate separate of powers unconstitutional. The plaintiff filed a medical malpractice lawsuit claiming that a defendant doctor negligently administered a spinal epidural. The plaintiff filed an affidavit from a medical doctor who was not in the same specialty as the defendant.
- Penn-America Insurance Company v. Sanchez, 532 Ariz. Adv. Rep. 3 (Ct. App., Div. 1, June 17, 2008) (Justice Gemmill): Standard for determining when a reservation of rights will be considered timely.
- Haab v. Kali of Maricopa, 532 Ariz. Adv. Rep. 25 (Ct. App. Div 1, June 5, 2008) (Justice Johnsen): Notice of Claim must specify set alleged wrongs by public entity; Alleging one set of acts and then pursuing claim for another is improper.
- Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 183 P.3d 1285_(App. Div. 2, May 30, 2008) (Justice Eckerstrom): Preliminary expert opinion affidavit necessary under ARS Sec. 12-2603 and 2604, even where plaintiff alleges defendant is negligent under doctrine of res ipsa loquitur; dismissal with prejudice not appropriate sanction for failure to file affidavit.
- Owens v. M.E. Scheep Limited Partnership, 529 Ariz. Adv. Rep. 3 (Sup. Ct., March 8, 2008) (Justice Hurwitz): The statute of frauds is not applicable only where "part performance unequivocally refers to contract and supplies key to what is promised."