Flynn v. Campbell (CA1 7/19/16)

This involves relation back of an amended Complaint when somebody sued the insurer instead of the insured.

Plaintiff and Defendant were in a car accident. Plaintiff made a claim against Defendant’s carrier, State Farm. One day before the statute of limitations ran she filed, pro se, an action for her injuries – but she filed it against State Farm. When State Farm moved to dismiss she got a lawyer, who amended her Complaint to substitute the proper defendant. That defendant moved to dismiss, arguing that the amended Complaint did not relate back. The trail court granted the motion; Plaintiff appealed.

The Court of Appeals reverses. Two of the three requirements for relation back under Rule 15(c) were agreed upon: the new Complaint related to the same occurrence and State Farm, whose knowledge is imputed to the defendant, knew of the lawsuit within the time for filing and service. The question was therefore whether the defendant (through State Farm) knew or should have known that Plaintiff had made a mistake “concerning the identity of the proper party.” Defendant argued that Plaintiff knew who she was, could have sued her, and sued her insurance company instead by choice, a deliberate decision. The court quotes from a U.S. Supreme Court opinion to the effect that knowing who people are but misunderstanding their roles in the matter is a “mistake” under the rule. The original Complaint alleged that State Farm had “assumed full responsibility for its insured’s actions,” which indicates mistake as to its role, not a strategic decision.

Unfortunately, the court goes on to suggest that a pro se plaintiff can be cut some slack in deciding on the proper party. It cites an order from an  Illinois federal District Court case. It also cites a paragraph from an Arizona case and does so both incorrectly (the wrong paragraph number; at least unless the court slips in one of its unannounced corrections-opinions the end of its paragraph 18 says “supra ¶ 10” rather than “supra ¶ 19”) and misleadingly (the paragraph in question has nothing to do with a pro-se issue). The rules mean nothing if pro se parties can be forgiven mistakes because they are pro se and there is no good reason here to suggest any exception to that. The court had already decided that Plaintiff’s misunderstanding of “crucial facts” resulted in a “mistake in identity.” It goes on to show, albeit not very clearly, that the real question is what the defendant knew or should have known, and that State Farm should have known perfectly well that Plaintiff was mixed up.

We assume that the lawsuit involves possible excess liability, which would explain why State Farm pursued this issue. Or maybe somebody really, honestly thought that something made this case genuinely different from the other ten thousand times that a pro se has filed at the last minute and named the insurance company. Otherwise, this is a shame. Do reasonable defense counsel advise reasonable companies that reasonable, and reasonably knowledgeable, courts will allow amendment and that fighting it would do nothing but make money for that defense counsel? If they didn’t then this opinion wouldn’t have needn’t to be published, nor even written, since a prior one would have settled the issue fifty years ago.

(Opinion: Flynn v. Campbell)

Cramer v. Starr (7/18/16)

The Supreme Court discusses the interplay of several liability and the Original Tortfeasor Rule.

The defendant in a car-accident case named as a non-party at fault a surgeon who had performed on plaintiff, purporting to treat her injuries, an allegedly unnecessary and harmful surgery. Plaintiff moved to strike the notice, traditional law – which the court grandly calls the Original Tortfeasor Rule – being that a defendant is liable for malpractice in the treatment of the injuries he caused. The trial court granted the motion. Defendant took a special action; the Court of Appeals denied it but the Supreme Court accepted it.

The Supreme Court reverses. The court gives as lengthy explanation of how UCATA works and then basically says that it means what it says: the jury allocates fault among everyone who contributed to the injury. Restatement (Second) 457 – tortfeasor is liable for negligence of those rendering aid to his victim – is rejected to the extent it contradicts UCATA. The court agrees with Plaintiff that the traditional rule is one of causation – it makes the tortfeasor the proximate cause of the malpractice – but causation is among the factors considered by the jury in allocating fault.

The court then largely undoes this in discussing Restatement (Third) 35, the new version of 457. The court, like the Restatement, argues that it “can be read in conjunction with” several liability. The court adopts the section “but only to the extent it does not conflict with UCATA”; the court does not clarify the extent to which the two cannot, after all, be read “in conjunction with” each other. But the bottom line is that although the jury must consider the fault of the malpracticing non-party the plaintiff may still argue, under the traditional rule, that the defendant should nevertheless be liable for damage caused by the malpractice. The court says that in this way the rule “can serve a useful purpose” although it does not specify what that purpose is.  We can think of several purposes for allowing plaintiffs, despite UCATA, to collect damages for the negligence of people they did not think to, did not wish to, or could no longer sue. The court does not discuss whether any are consistent with legislative intent. Whether they are “useful” is an exercise we will leave for the reader.

(Opinion: Cramer v. Starr)

Hogue v. Phoenix (CA1 7/14/16)

The court holds that the police aren’t liable to future victims for not finding a criminal.

Various victims of the Baseline Killer sued Phoenix, arguing that if the police had analyzed DNA samples sooner he could have been caught before he committed the crimes in question. The trial court consolidated the claims and granted Phoenix summary judgment. Plaintiffs appealed.

The Court of Appeals affirms. The statute (12-820.02(A)(1)) requires intent or gross negligence in cases of  “failure to make an arrest.” The court concludes that there can’t be gross negligence because there is no duty of care, either on “special relationship” or public policy grounds. 

A police department is not a “general insurer of safety” and owes no duty to individuals unless it “endeavor[s] to provide specific protection to a particular person.” The city did not have a specific relationship with the victims sufficient to create a duty because it did not know who they would be. “Merely investigating a crime, without any specific endeavor to provide specific protection . . . does not create a duty to a victim’s family.”

Plaintiffs argued that the legislature expressed a public policy that there is a duty by passing the statute limiting liability for it. They raised this for the first time on appeal. The court first announces that it need not consider the argument, then considers it. It says that the argument “flip[s] the analysis on its head” because the statute was meant to create immunity, not duty.

Well, regardless of what you think about letting civil lawyers second-guess police detectives, that last is heavy-handed. It does not “flip the analysis” to point out – as both a matter of logic and of statutory construction – that if the legislature passes a law about something then it has found that there is something to pass a law about. An “immunity statute” (the court calls it that) immunizes against something. It either creates a limited right or limits a pre-existing right. It is possible to read the opinion as meaning that the statute applies only to the particular-person cases; it would have been better, if that’s what it meant, to say so rather than to accuse people of the heinous offense of “flipping.”

(Opinion: Hogue v. Phoenix)