Sullivan v. Pulte (CA1 7/28/15)

This is essentially Sullivan II; Sulllivan I, described by this opinion as such, is here and here. (The opinion hyperlinks in those blogs are working; we’re aware that the links in some number of our blogs no longer do and we apologize but we really don’t have the time to update 390 blogs every time the courts decide to change the file structure of their servers.) That was essentially a case about the economic-loss doctrine; the Sullivans, subsequent purchasers, sued Pulte for a defective retaining wall.The Supreme Court remanded to allow the negligence claim to proceed while suggesting, citing the Restatement, that it ultimately couldn’t work. This is the appeal of the negligence claim which, after remand, the trial court dismissed. The Court of Appeals affirms, with a dissent.

The court quotes the paragraph from the Supreme Court’s opinion that threw cold water on the negligence claim. But the Sullivans, we will assume in conscious response to that paragraph, had done a clever thing: they disclaimed reliance on common law and insisted that Pulte’s duty of care to them was created by Arizona statutes (apparently the contractor-licensing statutes) and the Phoenix building code. The argument was that those things established a public policy under which they were a protected class of persons.

But the building code says specifically that it isn’t intended to create a protected class. Even if it did, protected-class policy protects against injury, not economic loss. The same goes with the statutes.

The dissent argues that the defective retaining wall might have hurt someone so injury, not mere economic loss, is at issue and a duty should therefore exist. The dissent makes this point in its first paragraph then spends nine more pages making it again, and again, and again in case anyone didn’t get it the first or second or fifteenth time. Actually, though, the dissent carefully avoids using the words “might” or “speculative” in this connection. To the dissent, only the Sullivans’ ability to buy homeowners’ insurance (relevant to risk-spreading theories mentioned in the Restatement) is a “speculative” thing that “might” have happened. The retaining wall hurting someone is in the category of things that “have not yet” happened.

(link to opinion)

Woestman v. Russell (CA1 7/28/15)

It is good that we live in enlightened days when courts have recognized the true purpose of the legal system.

Woestman and Bryan were in a car accident. Bryan hired a lawyer and sued Woestman. Then Bryan, in an apparently-unrelated criminal matter, was declared incompetent. His lawyer had a guardian ad litem appointed for him. Then he left Arizona and they lost track of him. So they moved to appoint a conservator for him on the theory that he had “disappeared” under the conservatorship statute. The trial court granted the motion. On Woestman’s appeal, the Court of Appeals affirms.

Preliminarily, Woestman argued personal jurisdiction. The statute requires that Arizona be the ‘home state” or one with which the protected person has a significant connection. The court holds it a sufficient connection that Bryan had an accident here, hired a lawyer here, and has a sister who lives here.

It seems that the principal question was whether this was a “disappearance.” The argument on Bryan’s side was that it was enough that they didn’t know where he was. Woestman argued that they should have to prove that “the person’s whereabouts are unknown to the person who would be most likely to know the person’s whereabouts.” (Does that mean that nobody asked the sister where Bryan was? Did she not want to say? Were Bryan’s lawyer and guardian not overly motivated to find him? We don’t know.) Woestman’s argument comes from Black’s Dictionary. The court uses Webster’s, which doesn’t contain the person-most-likely-to-know part. Because the statute’s purpose is to protect property, “whether individuals unknown to the court know of the person’s whereabouts does not diminish the court’s duty to appoint a conservator.” (So the test is whether the judge knows where the guy is? Aren’t lawyers, in every other conceivable circumstance, required to make reasonable effort to find people? Isn’t asking the person most likely to know the very minimum of reasonable effort? Did the legislature really mean to include carefully-nurtured ignorance as “disappearance”? How does it effect any purpose of justice to appoint a guardian for someone who could be found just by asking?) 

Those who don’t do much personal-injury work may wonder what the point of all this is. Well, we don’t know this case but we can draw  conclusions. In the old days, losing a plaintiff meant that the claim went away. Now it means that the court can appoint a conservator so that the lawyer can keep the claim going and, with the conservator’s approval, settle it, whereupon various people can take fees from a client who never gets anything. (Because the lawyer has no client to present to a jury this dodge won’t work well every time. But we’ve all known plaintiffs whose lawyers would have much preferred to “disappear” them.)

(link to opinion)

Premier Physicians Group v. Navarro (CA1 7/28/15)

Discussing the time for filing a doctor’s lien. This won’t interest those members of the health care professions who file liens approximately 37 seconds after the patient walks though the door, which is after the patient’s lawyer signs a contract agreeing to pay fees that will never actually be charged the patient. But it may be useful to those who don’t specialize in treating “accident victims.” We’re just going to report this one, not editorialize.

Navarro’s auto insurer settled a claim against her arising out of an accident but for reasons unexplained neither it nor the claimant paid one of the doctors. So the doctor, who had filed a lien, sued Navarro to enforce it. Navarro argued that the lien was untimely. The doctor treated from June  to October and filed the lien in September; the statute says it must be filed “before or within thirty days after . . . any services” relating to the accident. Navarro argued that this means within thirty days of the first service; the doctor argued that it means within thirty days of the last. The trial court agreed with Navarro and dismissed the Complaint.

On appeal, the Court of Appeals doesn’t agree with either side and meanders its way to a middle ground. The statute can’t mean last service because the hospital-lien statute allows a lien to be filed after discharge whereas this statute says “before or within thirty days” so there must be a difference, therefore only hospitals can file after the last service. And it can’t mean first service because it doesn’t say “first.” So the statute means this: a doctor’s lien applies to services rendered within the thirty days previous to its filing and to all services thereafter.

Under that theory the doctor’s lien did catch some of the services so the court remands.

Well, maybe we’ll editorialize a little. Is the result correct? Possibly. But what a heckuva way of getting  there. If the absence of “first” is determinative of Navarro’s argument then why isn’t the absence of “last” determinative – or even worth mentioning – regarding the doctor’s argument? Especially when the essence of your own argument is that the statute can’t mean first or last because it doesn’t say “first” or “last”? And why does the hospital statute make its procedure exclusive? What – other than assuming that conclusion – suggests exclusivity? Aren’t there differences between doctors and hospitals? Aren’t the parties right – isn’t the question here what “any” means? Does the opinion largely read that word out of the statute?

(link to opinion)