We reviewed the first opinion in this case here; go there for the facts. The Supreme Court vacated that and remanded for reconsideration in light of Soto v. Sacco (2017). It reaches the same result as the original, for essentially the same reasons.
Soto says that a remittitur order must be specific. This one wasn’t, so the court again reverses it. But its original opinion said much same thing (Soto admitted that it broke no new ground) so we wonder whether that’s the part of Soto that the Supreme Court had in mind when vacating.
The court again explains that $30 million for the loss of an adult son is just fine because the statute says “fair and just” and this “provides ‘a very broad base for the measure of damages.'” Perhaps the part of Soto that the Supreme Court had in mind was the part that said that “fair and just” is no broader than the normal personal-injury standard.
Or perhaps it was the part about comps. The original opinion had argued that comparable verdicts shouldn’t be considered; Soto says that they can be but are marginally relevant. The new opinion acknowledges that but, predictably, comes down on the side of “marginal.”
The new opinion says specifically what we inferred from the original: Defendant argued that the award included a punitive component. “[P]laintiffs’ counsel potentially implicated punitive damages by suggesting that the jury was tasked with preventing future deaths.” But the trial court overruled the objection and its order of remittitur didn’t specifically find any aspect of the award puntitive. “The jury’s conduct does not suggest” that it didn’t follow the instructions. Since there was apparently no evidence of the jury’s conduct other than its award, the theory seems to be that $30 million is proof of its own validity.
Which is consistent with the statement that “[T]he $30 million sum for the two parents, combined with the attribution of 5% of the fault to the state, suggests that the verdict was the result of a temperate deliberative process.” Unless merely fillng out the form of verdict is a sign of temperence and deliberation, the statement assumes its own conclusion. (In fairness, it is of course possible to read deliberation into these numbers. The problem is that the deliberation they suggest is about how to give the Plaintiffs $1.5 million even though the State was only 5% at fault.)
This problem with supersedeas bond law has been fixed but the fix isn’t effective until January 1, 2019. So the court accepted this special action to address the issue.
Defendant lost below (we simplify a bit; there were many parties to this lengthy and complex case). They sought to file a property bond (i.e., a supersedeas bond secured by property rather than a cash bond). Salt River (App. 2009) concluded that this was permissible under prior ARCAP 7, which allowed the court to alter the amount and conditions of the security. But then, in 2011, the legislature passed 12-2108 specifying the amount of supersedeas bonds and in response Rule 7 was amended effective 2012, leaving out the language that Salt River relied on. So Plaintiff argued that the trial court could not allow a property bond. The trial court agreed. Defendant filed special action.
The Court of Appeals accepts it and grants relief. The present rule permits the trial court to “enter any further order, in lieu of or in addition to the bond, which may be appropriate to preserve the status quo . . .” (The court for some reason also cites similar language from the 2012 version of the rule, which was replaced almost three years ago. In fact, it cites the old language first and seems to treat the new as more important that the old.)
The court also concludes that Rule 7 is consistent with the statute. The statute “provides the method necessary for calculating the amount of the bond” but does not require that it be in cash. And the statute was arguably intended to make supersedeas bonds easier, not harder. (The rule may actually go beyond the statute a bit but its effect is to add some old-fashioned flexibility around the edges, for cases that the statute’s Procrustean formula doesn’t quite handle.)
Effective next year the rule will expressly permit “other types of security.”
(Opinion: Starr Pass Resort Developments, L.L.C. v. Harrington)
This little insurance case is interesting mostly for its reminder about the parol evidence rule. It has also that rarest of things, a good footnote.
Plaintiff was injured in a car accident. Workers comp paid part of his medical bills but he had to repay that amount, per the workers comp statute, when he recovered from the third-party tortfeasor. He sought med pay from his own carrier, Farmers. Farmers denied the claim because its med pay provision excluded “bodily injury . . . during the course of employment if workers’ or workmen’s compensation benefits are required.” Plaintiff sued, arguing that since he had to repay the benefits they were not “required.” The trial court granted Farmers’ motion to dismiss. Plaintiff appealed.
The Court of Appeals affirms. It concludes that the policy language is not reasonably susceptible to Plaintiff’s interpretation. Plaintiff had a Nevada case dealing with an exclusion that covered workers comp “to the extent . . . required to be payable” by concluding that “payable” was ambiguous. But Farmers had a California case in which the exclusion said “payable or required to be provided” concluding that while “payable” alone might be ambiguous, “required” was not.
Plaintiff also argued that the trial court should have considered parol evidence. But under Taylor (1993) “the party seeking to introduce extrinsic evidence must show that the language of the contract is ‘reasonably susceptible’ to their proposed interpretation.”
There is one footnote in this opinion and, while we normally dislike them, this one is appropriate. Plaintiff tried to cite a trial court ruling in another case. The footnote points out that it “has no precedential value and we disregard it.” A slap on the hand is warranted but has no proper place in the text, thus the footnote.
(Opinion: Doneson v. Farmers)