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...
Schmidt, Sethi & Akmajian Blog
Torts - Judicial Immunity re Adoption Agency
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 Plaintiffs initiated adoption proceedings in Superior Court and hired defendant to process the certification proc...
Is Mold or Water Damage Covered Under Your Home Insurance Policy?
Insurance companies like to leave you feeling relieved with the belief that any significant damage to your home will be covered by your plan. Buried in your policy, however, are a multitude of exceptions your insurance company relies on to avoid coverage. One issue we have seen come up many times...
Insurance Bad Faith Under UM Policy & Punitive Damages
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 P...
Torts: Employer Has No Duty to Protect Against “Take Home Exposure” of Asbestos
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 Dr. Quiroz' lived with his father from 1952 to 1966 during which time he was exposed to...
Federal Government Bars Arbitration Clauses for Certain Nursing Homes
The federal government has passed a new rule barring arbitration clauses for any nursing homes that accept federal funding. Though this rule is likely to be challenged in court, this is a huge victory for nursing home patients and their families. Companies in all industries have taken advantage ...
Liens—Timeliness of Recording Medical Lien
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 Plaintiff recorded a lien for some $12,000 in medical services provided to Mandy Gipson for injuries arising out...
Torts—Real Estate Broker Not Employer of Sales Agents
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 Plaintiffs' husband was killed in a head on collision with defendant's real estate salesman as he was r...
Arizona Supreme Court Approves Rewriting of Rules of Civil Procedure
As part of its annual review of proposed changes to court rules, the Arizona Supreme Court has approved a comprehensive restyling of, and other amendments to, the Arizona Rules of Civil Procedure. These rules govern civil cases filed in the superior courts throughout Arizona. . The amendments r...
State Farm Gets Nailed
From our friend and colleague Frank Verderame at Plattner Verderame : A judge in Florida recently nailed State Farm with sanctions for failing to provide discovery related to the amount of money paid to a doctor who regularly performs Rule 35 Independent Medical Exams for them. You will be enter...
Barry Davis National Trial Team Endowment
I am honored to have the opportunity to announce the formation of “The Barry Davis National Trial Team” Endowment at the University of Arizona College of Law. The Davis family has agreed to make a $50,000 matching gift to kick off the endowment. I am sharing this with the best and most concerne...
Exploding Vape Pens Continue to Cause Problems
I have written about exploding vape pens, or e-cigarettes, as they are also known. Problems with the small batteries that power these vaporizers explode, leading to severe burns and scarring.The Arizona Burn Center at Maricopa Medical Center has recently begun tracking the havoc caused by explod...
Arbitration/Appeal—Amended Arbitration Award Post Appeal Deadline
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 In this compulsory arbitration involving a landlord/tenant dispute the arbitra...
The Tragedy of the Takata Airbag Recall
Profits over people...you think this stuff is only in the movies like The Verdict or dramatized Erin Brockovich. But it remains a very real part of real life. The New York Times takes a very deep dive into the massive Takata airbag recall, concluding, "shaving a few dollars off the price of a u...
Civil Procedure/Appellate Jurisdiction: Appeal from Non-Final Judgment Pursuant to Statute
Brumett v. MGA Home Healthcare, LLC, 744 Ariz. Adv. Rep. 11 (App. Div. I, July 28, 2016) (J. Thumma) PERFECTING STATUTORY APPEAL FROM NON-FINAL JUDGMENT DOES NOT REQUIRE 54(b) or (c) LANGUAGE In these consolidated cases the Arizona Court of Appeals addressed this question of first impression:...
Stop for School Buses
School is back in session, and along with it school zone speed limits and school bus traffic. Do you know when to stop for a school bus? Guessing wrong is costly -- a minimum $250 fine and insurance penalties. The bottom line -- unless
Torts: Duty of Municipality for Failure to Arrest Perpetrator of Crime
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 This lawsuit was brought by a sexual assault victim and the families [Families] of several murder victims agains...
Civil Procedure: Statute of Limitations/Relation Back Based Upon Mistake
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 Plaintiff was in an car collision and was gi...
Civil Procedure: Remittitur
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 PR...
Choosing Wisely is a Great Resource To Evaluate Whether You Should Have A Test or Procedure
Tests and procedures carry risk. The Choosing Wisely site can give you very useful information to help help navigate these important decisions.
Torts—Scope of Vulnerable Adult Claim/Claim Preclusion
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 ...
Dev Sethi Takes Over the Letter of the Law
The University of Arizona Rogers College of Law turned over its weekly newsletter to Dev Sethi this week. In his contribution, Dev recalls his mentor and friend Tom Mauet's contribution to his career -- and the trial careers of many others. Read more below... ...
Civil Procedure: Pleading Negligent Entrustment
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...
Torts—Common Law Indemnity
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 TOLL...
Public Records Requests—Scope of What Can be Required of Agency
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 UNTALL...