Federico v. Maric (CA1 1/28/10)

This opinion discusses the doctrine of aiding and abetting in tort law.

It used to be said – and is still technically true – that there was no such thing as a civil conspiracy. That hindered the sue-everybody-in-sight types and so a tool even better than conspiracy was slipped into their toolbox several years ago: aiding and abetting. That has now become yet another phrase that tort lawyers love to throw around without worrying overmuch about what it means. Even its sponsors, the ivory-tower types at the ALI, may not have too firm a grasp.

Federico said he was hurt in an industrial accident. Maric, the doctor hired by the worker’s compensation carrier to perform an IME, didn’t agree. The carrier turned down the claim and Federico sued everyone in sight. He claimed that Maric aided and abetted the carrier’s wrongful denial. Maric moved for summary judgment; the trial court granted it; this opinion affirms.

After, that is, the usual long, repetitive, useless, boilerplate standard-of-review paragraph. Sometimes we actually get the feeling that the courts are not hanging on our every word.

Aiding and abetting requires substantial assistance to another’s act while knowing that the act is a tort. A leading case, Wells Fargo, 201 Ariz. 474, held that the bank knew enough about Fife Symington’s malfeasance; “actual and complete knowledge of the tort is not uniformly necessary” it said, in one of those delightfully vague, multi-adjectived phrases that allows lots of lucrative litigation.

But the court here ruled that Maric didn’t know enough. Federico painted him as a doctor who thinks almost everyone a malingerer. But those facts relate “only to Maric’s own actions and the propriety thereof” rather than to the carrier’s actions or Maric’s knowledge of them.

The evidence also did not support the idea that Maric substantially assisted the tort because the carrier didn’t need the IME in order to deny the claim.

On a different day, a different panel might have gone in a different direction and said that there was just enough evidence to get past summary judgment. But Federico seems to have been making an unfortunately routine ad hominem argument: Maric is a bad person (a biased doctor) and so he should be liable for something. One of the problems with aiding and abetting is that it gives legal cover for that sort of essentially non-legal argument. Its a tort animal that unless firmly handled could get out of control and eat up most of the zoo. The court perhaps had that in mind.