We previously discussed this worker’s compensation case. The Arizona Supreme agrees with the court of appeals and holds the legislature did not violate the constitution when it enacted a statute limiting mental injury claims to on-the-job stressors which are unusual, unexpected, or extraordinary.  The court reminds us the legislature did not come up with this standard on its own, but the legislature codified the supreme court’s holding in Sloss v. Indus. Comm’n, 121 Ariz. 10 (1978).

Then along came the Arizona Supreme Court’s decision in Grammatico v. Indus. Comm’n, 211 Ariz. 67 (2005). There, the court held the legislature violated the Arizona Constitution Art. 18 sec 8 when it enacted statutes denying worker’s compensation benefits when the injuries were caused in part by the employee’s use of illegal drugs or alcohol.  The court in Grammatico explained denying benefits under these circumstances injected fault into a no-fault system. The court in Grammatico further explained the legislature cannot alter legal causation but can alter medical causation. Here, Matthews latches on to Grammatico and argues the legislature violated the constitution by limiting mental injury claims to instances only where the stressors are “unusual, unexpected, or extraordinary.”

In answering the argument Grammatico created, the court looks back to when the Arizona Constitution was adopted and determines the “public meaning” of terms in Art. 18 sec 8 including “injury,” occurring by “accident”, and a “necessary risk or danger of employment.” The court concludes in 1912, stress-related mental illness would neither have been considered an “injury,” nor an “accident.” The court holds: “We are persuaded that the original, plain meaning of injury by accident requires more than the ordinary stresses presented by a specific job, but rather an unexpected event resulting in tangible physical harm.” These are the core requirements of Art. 18 sec 8, and the legislature can do as it wishes when determining what other benefits may be available.  As far as the equal protection claim, if there is a distinction between mental injuries and physical injuries, the legislature can make that distinction. Justice Timmer dissents.  She argues the public meaning of the same terms included mental injuries and points to other contemporary sources. She concludes the statute violates the constitution by limiting mental injury stress claims. Citing Grammatico, she concludes Art. 18 sec 8 includes such claims.

Both Justice Bolick, who authors this opinion, and Justice Timmer in her dissent endorse the original public meaning theory of constitutional review. Searching for an originalist “public meaning” devolves into historical word play comparing dictionaries and contemporaneous writings. Shaky ground? If “public meaning” constrains both Justice Bolick and Justice Timmer, why such divergent results?  Justice Bolick emphasizes public meaning in a broad sense of “corpus linguistics”: “But, article 18, section 8 uses the terms ‘injury’ and ‘accident,’ not ‘illness,’ ‘disease,’ or ‘condition.’” Engaging in a similar analysis, dictionaries, and sources Justice Timmer concludes on the job stressors can constitute an “accident,” and she concludes “injury” is broad enough to include any unexpected injury.  If attempts to recover original public meaning reach contrary results, is there a different methodology we could better embrace? What about Grammatico?  Is this a thorn in the “corpus linguistics” analysis or can it be limited under this methodology to certain “core requirements.” If we read Art. 18 sec 8 the only thing that is clear–in a run-on sentence a paragraph long– is the authority given to the legislature to enact worker’s compensation laws as it “may prescribe” and “as defined by law.” Maybe the answer is much simpler and made unnecessarily complex by Grammatico.

A builder cannot disclaim the implied warranty of workmanship and habitability in new home construction. Arizona courts have imposed the implied warranty since 1979, and courts have thwarted prior attempts to eliminate or narrow it. So it is here. This opinion follows long-standing precedent. The supreme court agrees with the court of appeals’ prior opinion rejecting a disclaimer as against public policy, but the supreme court replaces that opinion with its own. Cf., ARCAP 23(d)(3). Why then did the court grant review? One reason may be the court of appeals invited review in its opinion: “Arizona may one day change course and allow for an implied-warrant waiver or disclaimer. But we cannot chart that new direction without further guidance from our supreme court.” The answer may come from the dissent by Justice King and Justice Bolick who would allow a disclaimer. Two additional votes would have been needed for review and perhaps, as the opinion suggests, the court was interested in whether there should be a different rule when a sophisticated consumer is involved – Zambrano was a licensed real estate broker. All of this points to an issue of state-wide importance which is sufficient reason to grant review.

Compare the supreme court opinion authored by Vice-Chief Justice Timmer with the court of appeals’ opinion. Justice Timmer’s opinion is forceful, careful, strong, and well-reasoned. Arguably this is one of her finest opinions. Justice Timmer easily casts off the dissent and the builders’ arguments. She schools the dissent who resort to an appeal to the legislature. If the builders saw an opening in the courts after 1800 Ocotillo, which allowed limitation of liability clauses in professional service contracts in commercial construction, the court has forcefully shut the door as to home construction.

This case was argued on November 19, 2020. The Arizona Supreme Court begins:

“This case requires us to clarify the standard of proof applicable to establishing a prima facie case for punitive damages necessary to justify the discovery of a defendant’s financial information. We hold that to make such a showing in a negligence case, a plaintiff must establish that there is a reasonable likelihood that the punitive damage claim will be submitted to the jury. We also hold that a punitive damage claim will be submitted to the jury only where there is proof that the defendant’s conduct was either intended to cause harm, motivated by spite or ill will, or outrageous, in which the defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant injury to others.”

This looks like the Arizona Recommended Jury Instruction which has been used for many years. The problem with the instruction has been deciphering what it means to have “consciously pursued a course of conduct knowing that it created a substantial risk of significant injury to others.” The Arizona Supreme Court clarifies the punitive damage standard is not met by evidence of cumulative negligent acts, gross negligence, or even reckless indifference. Most times, the so-called “evil mind” is shown by intentional wrongful conduct or criminal conduct. In a negligence case, outrageous conduct is required. The court explains it will be a rare negligence case where this standard is met. “Although it is enough that the defendant had reason to know of the facts creating a substantial risk, it is not enough that a defendant had reason to appreciate the severity of the risk; the defendant must have actually appreciated the severity of the risk before consciously disregarding it.” Id. at ¶ 25. That standard is not met in this case where the defendant was driving a semi-truck too fast, on wet roads, with the Jake Brake engaged, while on cruise control, talking to his daughter on the phone, etc.

While the opinion is helpful, one expects better guidance. Referring to precedent, emphasizing the “outrageous” conduct required, and reminding us of subjectivity are fine points, but look at the floundering by trial courts and the court of appeals over the past several years. This was a missed opportunity to replace a vague standard with something better.