Plaintiff’s son was killed while walking home from school. She faults the City of Peoria and sent a notice of claim offer to settle for millions. In the notice, she included a 30 day deadline stating: “This compromise to settle is valid for 30 days from the date of this letter.” Both the trial court and court of appeals held the notice is invalid because the notice provides a shorter deadline, and the notice of claim statute gives a governmental entity 60 days. Almost ten years ago the court of appeals reached the same result as the court of appeals in this case. Drew v. Prescott Unified School Dist., 233 Ariz. 522 (App. 2013). In Drew, the court of appeals held in the absence of a written denial by a public entity, the settlement offer in a notice of claim must remain open for 60 days. The court invalidated the notice of claim because it included a shorter deadline. Relying on Drew and contract law, the court of appeals held the notice of claim was a contract offer and the 30 day window was “neither meaningless nor ineffectual.” The supreme court reverses. The deadline is meaningless and ineffective and is a legal nullity. The City still has 60 days to respond and the shorter deadline is “of no legal consequence.”
As far as contract law, the supreme court tells us the City conceded at oral argument this is a matter of statutory interpretation and not contract law. When the court of appeals used contract law principles as the basis for its ruling, we sort of expect the supreme court to do something more than referencing a concession at oral argument. The statute provides under subpart (E): “A claim against a public entity. . . filed pursuant to this section is deemed denied sixty days after the filing of the claim unless the claimant is advised of the denial in writing before the expiration of the sixty days.” This language is a deadline for the public entity and not the claimant. It gives the public entity 60 days to respond. “Because James did not have the statutory or other legal authority to impose a shorter time for the City to respond, her attempt in the notice of claim to shorten the sixty-day deadline to thirty days had no effect. A legal nullity. Accordingly, James’ thirty-day deadline did not invalidate her otherwise valid notice of claim.”
Plaintiff injured his leg in a motorcycle accident and later developed necrotizing fasciitis. He filed suit against some but not all of his health care providers. The Arizona Supreme Court decides: 1) treating physicians can opine on standard of care and not violate the one-expert rule under Rule 26(b)(4)(F)(i); and 2) a defendant dismissed on summary judgment cannot be named as a non-party at fault. The trial court correctly determined both legal issues, but the court of appeals decision ordering a new trial is affirmed because the “undisclosed expert opinions” were not adequately disclosed before trial. The case will be retried because of a lack of disclosure, and the trial court abused its discretion. The Court cites other opinions as examples including Solimeno and Englert. The Court’s footnotes explain what a nonparty at fault is, disclosure obligations on expert opinions, and the last one tells us the Court is not interpreting subpart (ii) of the “rule” allowing a defendant in a medical malpractice case to testify as to standard of care. Each of these points should have easily been made in the opinion or eliminated.
As you may notice, the Court capitalizes its references to the subpart of Rule 26(b)(4)(F)(I) as the “One-Expert Rule.” This gives it an easy reference and identity. The Court concludes, however, by grounding the rule to discretion. A trial court may still exclude cumulative testimony whether from a treating physician or a retained expert. And, the rule is a presumption. “Thus, a plaintiff may be entitled to additional experts under appropriate circumstances to fairly meet a ‘deluge’ of defense expert witnesses.’”
We noticed this had not posted correctly so here it is.
The Arizona Supreme Court holds a design professional separately hired by a contractor owes no duty to the owner of the property. Easy enough. The trial court and the court of appeals both reached this same conclusion. The foreseeability analysis discussed in Donnelly is no longer good law.
This opinion has a distracting style. There are seven justices on our supreme court and each writes differently. When one justice comments on another’s draft opinion, judicial etiquette is not to comment on matters of style. Style receives little attention. Law clerks rarely possess mature legal writing ability, and judicial opinions are not law review articles.a few modest Here are a few suggestions. First, when referring to the earlier Donnelly opinion, using “our holding” or “we held” is awkward. Donnelly was decided 38 years ago. The “we” is better used when speaking for the court today or what the law still is. When referring to prior decisions and distancing from those cases, perhaps use “the court” or even “this court.” Second, a sentence is not a paragraph even when tacking a citation on the end. If an opinion needs to have headings – most short opinions never do– then use headings. Third, placing commentary in string citations is distracting and confusing. Fourth, scattered throughout this opinion are unnecessary prepositional phrases. Good advice from Judge Ruggero Aldisert in his legal opinion writing book: “Examine each sentence word for word, phrase by phrase and clause by clause to see what can be cut.” Finally, this opinion ends, as none should, with dicta suggesting other possibilities for relief. This leaves us wondering. We wonder what an “assignment of liability” means and whether the “third-party beneficiary doctrine” may be useful in some other case. We wonder what, if anything, was newly decided.