Banner Univ. Med. Ctr. v. Gordon/Harris (1.20.22)

The substantive issue is whether the dismissal of an employee with prejudice because of a notice of claim defense precludes an action against the employer based on vicarious liability. It took almost a year after the oral argument for the Arizona Supreme Court to decide it could not decide this issue because there was no Rule 54(b) language in the original dismissal. The case goes back to the trial court, and the supreme tells us in a footnote it expresses no view of whether a dismissal of an employee pursuant to the notice of claim statute precludes a claim of vicarious liability against the employer. This decision provides no guidance to the trial judge as to when 54(b) language should be included, but the court does not want to hear an argument about what follows a final judgment when there isn’t one. (The court of appeals had decided to jump in and treat this as a special action.) Of course, the litigants do not want to proceed through discovery and go to trial only to learn the claims against the hospital ended with the dismissal of the employees. On remand would the trial court abuse its discretion by not including such language and sending it right back out the door? Is our supreme court really this impotent to make a meaningful decision until it does so?

This entry was posted in Uncategorized. Bookmark the permalink.