This case shows that you can’t just phone it in.

This was an auto accident case; the only issue was damages.  Plaintiff didn’t do a Pre-Hearing Statement; Defendant did one unilaterally. Plaintiff didn’t attend the hearing; her lawyer did so only by telephone. When she tried to appeal the resulting award Defendant argued that she hadn’t participated in good faith (Rule 77: failure to participate in good faith waives the right to appeal absent a showing of good cause). The Superior Court and the Court of Appeals agreed.

When compulsory arbitration was new (if you remember this, please don’t get impatient; its amazing to people who do how many people nowadays don’t), some lawyers had the idea that the way to get around it was to ignore the hearing and then to appeal the award. This perhaps had its origins it attempts to circumvent earlier quasi-judicial procedures such as the medical liability review panels (okay, we admit it, almost nobody remembers those any more). So the rule became that you had to participate in good faith. This was used mostly to try to beat defendants over the head since, in routine tort cases (which are the bulk of the arbitrations), it can be a pain to get the defendant to the hearing or to get his cooperation or even, for that matter, to find him. Eventually, the cases realized (though not all plaintiffs’ lawyers have read them) that a defendant’s personal appearance is not necessary when his testimony isn’t significant to the issues.

Plaintiff’s argument was that the substance of her testimony was all in her medical records, which Defendant had submitted to the arbitrator. If Defendant for some reason specifically wanted her there, he should have subpoenaed her (as one of the cases suggests plaintiffs need do for defendants). (Her counsel had told defendant’s counsel – the day before the hearing – that she would not be coming).

The first problem with that is that the Superior Court’s minute entry dismissed her appeal because she “failed to participate in good faith with the scheduled Arbitration Hearing,” not merely or specifically because she didn’t attend it. Her lawyer apparently never gave anybody any good reason for not cooperating in the preparation of the Pre-Hearing Statement.

The second problem was that even if her non-appearance was the reason for the ruling, the failure of a plaintiff to attend can be a bigger deal than the failure of a defendant. “The lack of good faith participation is more plain when the recalcitrant party bears the burden to prove their right to relief.” Therefore, “a plaintiff with the burden to prove personal damages must present relevant evidence and cannot later claim that the defendant should have objected to the plaintiff’s evidentiary decisions or should have attempted to secure arbitration witnesses for the plaintiff.” In addition, in this particular case there was an issue of distinguishing between pre- and post-accident medical problems that Plaintiff’s testimony could have shed light on.

The court therefore concluded that the trial court did not abuse its discretion by finding that Plaintiff failed to arbitrate in good faith.

(And now a brief note on usage. This opinion call the arbitrator an “arbiter.” It may be too late to do anything about this trend but we want to say that we tried. In the best of all possible worlds, “arbiter” would be held to its earlier connotation of someone privately selected. There is etymological and dictionary support for its broader use – the sort of thing people would laugh at if they didn’t want to use it more broadly – but we would have thought the legal profession open to subtle distinction. We would also have thought that it would use the word (“arbitrator”) that the Rules use – especially after using the word “waiver” to describe a forfeiture presumably because that – for some inscrutable reason – is the word that Rule 77 uses. In the real world that we live in, though, the homely but useful “arbitrator” may be down for the count.)

NOTE: THIS OPINION HAS BEEN REVERSED

We write this on Christmas Day because Division Two has given us a present: a case containing a citation from “Ariz. Terr. 1895.” To those of a certain turn of mind this is warmly comforting and deeply satisfying – as if we had, finally, after wandering though a cold, bleak house, found the room where the fireplace glows and the tree glitters and the hot chocolate steams in its mugs. The old-fashioned lawyer rejoices to find that in at least some areas of the law “common law” and “precedent” still refer to something more than recent sociopolitical invention. Even if the precedent is cited wrongly.

This is a case about easements to real property. A dirt road ran across the property, connecting public roads to the northwest and southeast. Over the years the owner sold the property piecemeal – first the eastern part of the property, then the middle, then the western. The first two deeds were subject to an easement for the dirt road, that for the western part included “an easement over” it. The purchaser of the middle property later sold it to the Dorseys, who decided to block the road. Neighbors sued, claiming an easement, and the trial court granted them summary judgment.

This sort of thing happens surprisingly often in Arizona. People buy a piece of semi-rural property and plan their dream home before finding out that somebody claims an easement over that little dirt track that runs right through where their living room was going to be. Its often a prescriptive easement, so it doesn’t show up in the deeds. Why this appurtenant easement didn’t the opinion doesn’t explain; it does mention that the Dorseys filed a third-party claim against their seller because she allegedly hadn’t told the about the easement, it doesn’t mention why they didn’t also sue their title company.

The interesting thing about this case, though, is that the neighbors who sued were not the owners of the eastern and western portions of the original property. Instead, they owned “neighboring” parcels (we aren’t told just where they were in relation to the Dorseys; an older tradition of opinion-writing would have included a copy of one of the maps in evidence but perhaps that isn’t possible or practical – or cost-effective for the publishers – in the electronic age). The neighbors had to prove that they were beneficiaries of the easement – in other words, that the original owner had intended to dedicate the roadway easement to public use.

Usually, doing that means proving it by “clear and unequivocal” evidence. But trial court and the Court of Appeals’ majority held that when the easement concerns a road there is a rebuttable presumption of public intent (this is where we get Evans v. Blankenship, 4 Ariz. 307, 39 P. 812  (Ariz. Terr. 1895)) and that no sufficient evidence rebutted the presumption in this case (mostly, it seems, because the original deeds didn’t specifically say that the easements were private).

The dissent, which is longer than the majority opinion, argues that that isn’t the law. It contends, in essence, that the cases on which the majority relies either didn’t address this issue or dealt with roadways clearly designed, platted, and/or marked for public use. It also argues that since an easement is presumed to be for the benefit of the grantor, all that the evidence shows is that the original owner wanted to keep, for himself and his successors on the western portion of the property, the right to use the dirt road across the rest of it to get to the public road on the other side.

The dissent surely has the better of the argument. Proving public use requires more evidence, not less. To suggest that public access over private property is either the legal norm or the default intent is strange indeed. If every dirt road on a private survey map is public unless somebody expressly said that it wasn’t then a lot of us could drive through a lot of people’s living rooms tomorrow.

THIS OPINION HAS BEEN VACATED

Automobile insurers must, by statute, offer uninsured and underinsured coverage. The cases have said that the offer must be reasonably calculated to come to the insured’s attention. Ballesteros claimed that American Standard’s offer wasn’t because its UM/UIM offer form was in English and his “primary language” is Spanish. This was an attempt at a class action but the trial court denied certification. It did, however, grant Ballesteros summary judgment on the merits, from which American Standard appealed.

The statute (29-259.01) says that “The selection . . . or rejection of [UM/UIM] coverage by a named insured or applicant on a form approved by the director [of the Department of Insurance] is valid for all insureds under the policy.”   American Standard argued that this created a “safe-harbor,” that because its form had been approved by the director it was adequate as a matter of law. Ballesteros argued that it simply means that if the form isn’t approved then the selection/rejection isn’t binding. The Court of Appeals punted, deciding that even if the safe-harbor “generally exists” it is “not absolute.” In other words, its a safe harbor with reefs and sandbars, which might strike you as somewhat of a contradiction.

American Standard contended that the legislature inserted the quoted language into the statute specifically for the purpose of creating a safe-harbor. This was based on legislative history. But the legislators themselves didn’t expressly and exactly say that. A bunch of people who testified at the relevant committee meeting apparently did, though the opinion carefully avoids telling us what they said; in any event, they were merely “nonlegislators” whose statements (quoting from earlier cases) “are not persuasive evidence of legislative intent ‘unless the circumstances provide sufficient guarantees that the statements reflect legislators’ views.’” “We do not find such indicia of reliability here,” says the opinion. From what little we are told, this apparently means that the legislators themselves didn’t say on the record the things the non-legislators were said to have said, whatever they were.

American Standard then pointed out that the Department of Insurance had in various ways at various times said that use of an approved form satisfied the requirements of the statute. The court admitted that that was true but said that this missed the point, which was not “whether the specific contents of the form offered to Ballesteros contained the appropriate information” but “whether the offer was provided to Ballesteros in a way that reasonably could apprise him of what it contained.” In other words, the question was not whether the American Standard presented appropriate information but whether it presented information that was appropriate. This is the sort of thing that passes for sophisticated analysis in many insurance opinions, especially when trying to escape the fact that they disagree with both other branches of government.

The court ended up deciding that by using an approved form the insurer “facially” complies with the statute but must do more when it “knew or should have known” that the form was insufficient “because the insured could not read it.” The intriguing idea of “facial compliance” with a statute lends itself to more ironic comments than we have space for at the moment. In any event, it isn’t clear why the courts logic (let’s be generous and call it that; its the Holiday season, after all) is limited to Spanish-speakers who can’t read the form. What about any other language? What about people who the insurer “should have known” had intellectual limitations or emotional problems or forgot their reading glasses that day or endless et-ceteras?

In this case, what more should American Standard have done? It need not, the court held, have provided him with a form in Spanish (so much for any lingering hope of an easy, effective class action). But the insurer is required “to take action reasonably calculated to inform the insured of the written offer’s contents.” As a practical matter, of course, this means using a form in Spanish after all (as some insurers already do), in order to avoid endless disputes about how good some insured’s English was or how good some agent’s Spanish was or whether anything in any language was ever said at all.

And those were issues in this very case, so the court remanded for trial of whether American Standard had done enough to help Ballesteros in Spanish and/or had known how bad his English was and/or etc.