Schmidt, Sethi & Akmajian Blog

Arizona Law: Courts Rule on Attorneys' Fees, Insurance Law, Dog Bite Law and Qualified Immunity for Law Enforcement

Posted by Matt Schmidt | Nov 10, 2014 | 0 Comments

Since my last blog on Arizona law, there have been five new decisions from the Arizona Appellate Courts that have an impact on our personal injury law practice. Here is a quick summary of what you need to know:

1. In a very messy procedural case involving a car accident, the Arizona Court of Appeals vacated the trial court's award of attorneys' fees in the amount of $72,000 where the verdict in favor of the plaintiff was only $918.50 and remanded the case back to the trial court to reconsider its fee award, considering the following factors pursuant to rule 77(f): 1. Was the arbitration appealed in good faith, 2. Did the appealing party come close to beating the arbitration award by 23%, 3. the amount in controversy, 4. whether post-arbitration litigation could have been avoided, 3. whether evidence of post-arbitration damages might have increased the verdict, 4. The amount of fees the requesting party is obligated to pay her lawyer.

What this means: Similar to punitive damage awards, the Arizona courts continue a pattern of taking away the teeth of incentives (i.e. substantial potential sanctions) for settling a case. This undoubtedly puts more burden on plaintiffs than it does on defendants, who are more often than not represented by big companies with more than enough resources to overcome these hurdles.

2.  In a complicated insurance law case, the Arizona Supreme Court ruled where an insurance company denies coverage for an insured's negligence, the insured enters a stipulated agreement with the plaintiff and pursuant to the agreement the plaintiff pursues the insurance company for payment, the insurance company is allowed to continue arguing that there was never coverage to begin with, so long as the issue of coverage wasn't already determined through actual litigation at an earlier time.

What this means: The bottom line: this makes sense.

3. In a DUI case, the state used an expert to testify about the defendant's blood alcohol content, but the expert was relying on lab work done by a different expert who had since moved out of the state. The defendant argued that this violated the 6th amendment Confrontation Clause, which requires that the defendant have a right to confront his accusers. The Arizona Court of Appeals disagreed, noting that 1. Rule 703 of the Arizona Rules of Evidence allows experts to rely on inadmissible evidence, including a non-testifying expert's analysis, if it forms the basis of the expert's opinion and 2. The Confrontation Clause is not violated, because defendant has the opportunity to cross-examine the expert and question his credibility.

What this means: Experts can testify about information gathered from a non-testifying expert without violating the Confrontation Clause.

4. Dog owners are strictly liable when their dog bites someone. Under the statute, "owner" is defined by anyone who "keeps" the dog for six consecutive days. In this case, The Arizona Court of Appeals defined "keeping" as requiring the exercise of care, custody and control of the dog. A person is not an owner of a dog by simply allowing someone else keep the dog at that person's house.

What this means: Landlords are not liable as dog owners just because they allow their renters to keep dogs in their home.  Ownership of the dog requires more.

5. Law enforcement has qualified immunity in cases where its negligence injures another driver in a car accident,  if the accident is attributable to the driver's reckless or drunk driving. In this case, the plaintiff had  been arrested for DUI and placed in the back of the police officer's squad car, which was parked on the side of the road. Another vehicle rear-ended the squad car and killed the plaintiff. The Arizona Court of Appeals defined "driver" to include persons not in the actual act of driving but who do drive, and determined that law enforcement had qualified immunity under the circumstances described above.

What this means: The court used a very broad, liberal definition of "driver" to award law enforcement qualified immunity not only in situations where a squad car negligently gets into a car accident with a drunk driver, but where the drunk driver is already under arrest and in law enforcement's custody. The decision confuses the matter, because the question now becomes: at what point is the injury to the plaintiff no longer attributable to the plaintiff's drunk driving? In this case, what if the squad car drove recklessly and got into an accident on the way to taking the drunk driver to the station? What if a drunk driver serving time in jail for a DUI is injured due to law enforcement's negligence? How far does the definition of "driver" extend to protect law enforcement from its negligence?

Want to read more about the details of these decisions and others? Check out our Law Updates.

About the Author

Matt Schmidt

Matt graduated from the James E Rogers College of Law at the University of Arizona in passing the Arizona bar exam in 2010. Matt's primary interest in law focuses on general personal injury and insurance bad faith.


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