Monthly Archives: August 2011

Ryan v. San Francisco Peaks Trucking (CA1 8/25/11)

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This 26-page opinion is a bit like an elephant giving birth to a mouse. Anything different would have been a major shock to the law. We don’t know which part the court thinks is publishable but we’re afraid it’s the several pages dedicated to showing that affidavits are testimonial.

Ryan was killed in an accident with an SFP truck. His widow sued SFP and later also sued the doctors who had treated his injuries; the two cases were consolidated. When she settled with the doctors SFP named them as non-parties at fault and announced its intention to offer Ryan’s malpractice witnesses and her pleadings, disclosure statements, and discovery documents. The trial court ruled that SFP couldn’t force her witnesses to testify but could use their 12-2603 affidavits and Ryan’s discovery/disclosure. At trial the jury returned a defense verdict.

On appeal Ryan argued that her disclosure statements weren’t admissions against interest. The Court of Appeals held that they were. They are evidentiary admissions, i.e., they’re admissible but not conclusive. In a footnote the court says that even if they weren’t admissions they could be used for impeachment, although the real issue here is whether they could be used as prima facie evidence.

Ryan then argued that SFP shouldn’t have been able to blame the doctors because it didn’t have any live witnesses (the court having precluded SFP from calling Ryan’s). The court concludes that Ryan’s disclosure statements themselves were inadequate because, although they explained the alleged acts of negligence in detail, they didn’t contain opinions of medical experts. But SFP also had the expert’s affidavits, which the court eventually concludes qualify as “expert testimony.” 

The court also holds that it wasn’t error to allow SFP to cross-examine Ryan with the expert affidavits, asking her if her counsel had hired the experts and if she remembered the statements defense counsel read from their affidavits.

The problem with the case is that its publication suggests that the issues are close ones. Cases with both personal-injury and malpractice elements are not all that unusual. Cautious personal-injury counsel may now feel the need to depose the plaintiff’s malpractice experts immediately, since we don’t know how a court could preclude their depositions (which are, we trust the Court of Appeals would conclude, testimonial), or even to hire its own. The latter has been known to happen, at great cost. The court should have said that of course a plaintiff can’t meticulously prepare a malpractice case and then try to sweep it under the rug because the personal-injury defendant didn’t duplicate her efforts.

We don’t, in case you were wondering, know enough about the case to report why a defense verdict could result in an appeal about whether the exonerated tortfeasor could blame the doctors who treated the injuries.

(link to opinion)

IB Holdings v. Rancho del Mar (CA2 8/24/11)

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This appeal from a preliminary injunction is mostly uninteresting and fact-specific but does raise a couple of interesting points.

Rancho built a fence across what IB claimed as an easement. The trial court granted a preliminary injunction against the fence. Rancho unsuccessfully appealed.

It argued, first, that the trial court had used the wrong standard. The judge had followed Shoen (1990), which requires a “strong likelihood that [the party seeking the injunction] will succeed at trial on the merits.” Rancho argued that the standard had changed, citing the U.S. Supreme Court case of Winter (2008) which says “likely to succeed on the merits.” The Court of Appeals says that the Shoen language is still the law of Arizona. It does not attempt to say which rule is right. (Neither, for that matter, did Shoen or Winter, both of which focused on bitter factual disputes and simply quoted the injunction standard from other cases.)

Shoen also requires “the possibility of irreparable injury . . . not remediable by damages.” IB’s injury would be loss of income and loss of property value. Rancho cited cases for the proposition that injunction isn’t appropriate for purely economic loss; the court’s incisive analysis of them is to explain, in a footnote, that they aren’t binding because they’re out of state. 

But damages uncertain or difficult of calculation can support equitable relief, according to the Restatement. In response, Rancho pointed out that IB’s Complaint had pled for damages “in an amount to be proven at trial” without claiming that that would be difficult. Though it didn’t fly, and probably shouldn’t have (the court ends up deciding that the trial court’s finding of irreparable harm was sufficiently supported by the evidence), we think this an instructive argument. Have you ever thought about why your prayer says what it says? Most lawyers haven’t; to them the prayer for relief is just a form tacked on at the end, maybe by a paralegal or computer, using language somebody at some unknown time took from some other Complaint. There is old authority to the effect that the prayer isn’t technically part of the Complaint but that doesn’t mean that it isn’t important or doesn’t have consequences. But how many prayers like IB’s have you seen? Hundreds? Why do they want damages “in an amount to be proven at trial? The formulation has no legal meaning – unlike, for example, “just and reasonable damages,” though that isn’t necessary, either. “Just and reasonable damages in an amount to be proven at trial” is just an abomination. The truth is, this sort of language was used by lawyers accustomed to having to pray for a specific amount and uncomfortable with not doing so even long after that sort of requirement was, for almost all cases, dropped and/or prohibited. This is one of the things (like our favorite legal dinosaur, Rule 31) that stays in the law because too many people know too little about their profession to know why they have it.

The very least you can do would be to use proper modern English: “in an amount to be proved at trial.” Yes, we know lawyers like “proven,” mostly because it somehow sounds more impressive, and because they can point to the old Scottish verdict “Not Proven.” But “proven” is archaic at best. Leave it to its few remaining jobs, e.g., “proven commodity.”

And where else, by the way, do these people think the damages will be proved? If you said the injunction hearing under Rule 65 then we’ll give you half a point since that’s technically the trial. But how many people who use the language have that – or much of anything else– in mind?

(link to opinion)

Engler v. Gulf Interstate (CA1 8/9/10)

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This opinion attempts to correct that in McCloud.

Gray, a Gulf employee, drove a car that hit Engler. Gray normally works in Houston but was living in a hotel in Yuma while commuting daily to a Gulf project in Mexico. The accident happened when Gray was driving back to the hotel from dinner, after the work day was over. The trial court granted summary judgment for Gulf, concluding that Gray was not within the course and scope. Division Two then issued McCloud, holding that meals of an employee working out of town are in the course and scope, but the trial court refused to change its mind. Engler appealed.

Division One affirms. McCloud applied a workers’ compensation rule to a respondeat superior case. This opinion rejects it, citing Robarge (1982) for the principle that the two have a different focus (relatedness to a job versus employer’s right of control) and Carnes for the idea that they have different purposes and effects (compensation versus encouraging proper supervision by creating liability to third parties).

So, since Gulf had no control over Gray’s going to dinner he wasn’t in the course and scope.

Whoever wrote this opinion, signed by Judge Winthrop, is a true believer in the classic Division One way of doing things: 24 pages, only nine footnotes but many of them quite long, a boilerplate page about the standard of review, etc. But we’ll cut this one a break since, first, this is correct and McCloud is wrong and, second, since you probably do need to explain yourself at length when disagreeing with another panel. (Yes, we said panel; although McCloud was a Division Two case this opinion doesn’t mention that, instead using the now-politically-correct “a panel of the Arizona Court of Appeals.”)

(link to opinion)