Morales v. Coffey, No. 1 CA-SA 23-0040  (App. Div. I, August 10, 2023) (J. Perkins) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2023/1%20CA-SA%2023-0040%20Morales%20v.%20Coffee.pdf

IN HIGHWAY DESIGN CASE AGAINST GOVERNMENT, A.R.S. § 12-820.03(B) REQUIRING TRIAL COURT TO BIFURCATE ISSUES OF AFFIRMATIVE DEFENSES FOR SEPARATE TRIAL AND DAMAGES FOR SEPARATE TRIAL IS NOT AN UNCONSTITUTIONAL USURPATION OF THE JUDICIARY'S RULE MAKING FUNCTION

Plaintiffs brought this wrongful death action against the State of Arizona alleging negligent highway design was responsible for the death of their wife and mother.  The decedent while westbound on Interstate 10 lost control of her car, crossed the median and was killed in a head on collision with a semi-truck.  Plaintiffs alleged the state failed to maintain adequate median separation and median-barrier protection on the freeway. The trial court denied the state's motion for summary judgment finding genuine issues of material fact concerning the state's affirmative defenses. The trial court, under A.R.S. § 12-820.03(B), ordered the trial of the state's affirmative defenses be bifurcated for a separate trial with the issues of liability and damages to be tried thereafter only if the state lost the first trial.  Plaintiffs bring this special action claiming A.R.S. § 12-820.03(B) unconstitutionally infringes upon the Arizona Supreme Court's authority to create rules of procedure.  The Arizona Court of Appeals accepted jurisdiction and denied relief to plaintiffs.

A.R.S. § 12-820.03(B) provides that where there are questions of fact regarding affirmative defenses available to the government and its employees in a highway design case, these defenses must be bifurcated and tried separately from a trial on damages. 

Arizona's Constitution directs that “[t]he legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Ariz. Const. art. 4, pt. 2, § 18 (“immunity clause”). This clause gives the legislature the power to require bifurcation as set forth in A.R.S. § 12-820.03(B).  Plaintiffs argue that when an initiative was passed in 1960 giving the Arizona Supreme Court procedural rulemaking authority it abrogated the immunity clause. See Ariz. Const. art. 6, § 5(5).

“The text of the immunity clause does not prohibit the legislature from directing the trial process for suits brought against the state. The bifurcation provision is a proper exercise of the legislature's authority to direct the “manner” in which “suits may be brought against the state.”  A.R.S. § 12-820.03(B) is not in conflict with Rule 42 of the Arizona Rules of Civil Procedure, created by the supreme court.  Rule 42(b) provides: ““[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” The statute merely provides “a more specific procedural direction within the broader framework” of Rule 42.  Both the statute and the rule seek to “expedite and economize” litigation.