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Chavez v. Arizona School Risk Retention Trust (CA2 5/18/11)

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The Court of Appeals holds that a school bus’s insurance covers students waiting to get on.

Two children were injured when a car ran into the back of the school bus they were in line to board. The Trust insures the school district, including the buses. Plaintiffs sought UIM coverage from the Trust policy. On cross motions for summary judgment, the trial court granted the Trust’s.

The Court of Appeals reverses, holding that waiting to board a school bus constitutes “using” the bus. By statute, all persons using, with permission, a vehicle are covered by its insurance.  “Using” has been held to include loading and unloading (no word on whether the Trust’s policy also said this, as most do). And the use of a specialized vehicle can depend on its purpose. One of the purposes of a school bus is to provide for the safety of students getting on and off  by using – as this one was at the time of the accident – its special lights; so, the students were using the bus’s specialized function of protecting them.

Though this isn’t the hardest issue in the world, this is a nice, clean opinion. The three footnotes are superfluous but short. It could have been done in fewer pages but we’ve learned to stop complaining about anything under ten.

(link to opinion)

Awsienko v. Cohen (CA1 5/12/11)

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The statute says that an expert witness in a malpractice action against a board-certified specialist must be a board-certified specialist. The main question here is whether the witness had to be so at the time of the events giving rise to the claim. The Court of Appeals says “no.”

When Plaintiff’s husband/father died they sued his cardiologist and nephrologist. Their expert witness was an internist who hadn’t become board-certified in nephrology until after the death. So the defendants moved for summary judgment – the cardiologist because the expert wasn’t one, the nephrologist because the expert had become one too late. The trial court granted summary judgment.

The Court of Appeals affirms as to the cardiologist but reverses as to the nephrologist.

The statute says an expert against a specialist must have been specialist at the time of the occurrence. The next sentence says that a specialist against a board-certified expert must be board-certified – but doesn’t say when. The Legislature could have had it wanted to. “When “the legislature has used a particular term in one place in a statute and has excluded it in another place in the same statute, a court should not read that term into the provision from which the legislature has chosen to omit it.”

The court also tells us that because the certification process takes awhile, a witness could have sufficient expertise even if certification came “a day or a week after the incident.” In this case it apparently came a year later, which makes this not the best argument to base the opinion on. However, in context the point is that the statute’s wording is consistent with a rational legislative intent.

As to the cardiologist, Plaintiffs argued that he “never asserted” that he was board-certified. But the statute talks about what the doctor is, not what he “asserts.” Plaintiffs also argued that the witness’s criticisms of the cardiologist “were unrelated to cardiac treatment.” The court says that “the statute contains no such exception.” (The court also agrees with the cardiologist that the witness did not criticize him at deposition, although it does some fact-finding to get there.)

Plaintiffs had asked, in the alternative, for more time to get a new expert, arguing that the statute gives a plaintiff has a reasonable time to cure an insufficient preliminary affidavit. But in this case the time for expert discovery had passed and the witness had been deposed. Why the affidavit hadn’t been challenged isn’t explained but you can draw your own conclusion.

(link to opinion)

Desert Mountain Properties v. Liberty Mutual (5/12/11)

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We blogged the Court of Appeals’ opinion here. The Supreme Court has taken pity on bloggers by writing an opinion that says, after setting forth the issues and its jurisdiction: “After considering the briefs and oral arguments, the Court affirms the opinion of the court of appeals on these issues for the reasons set forth therein.” Problem is, that’s the wrong way to do things.

If the issue isn’t worth your time, why accept review? If you do and only then discover that there’s no point, why not deny it as improvidently granted? Why put everyone through the labor that results in a Supreme Court opinion and then bring forth a mouse? If you want to signal that the Court approves of the lower court’s opinion, then – especially when it was as unsatisfactory and badly-written as this one was – surely you do so in your own words.

This announces that the Court had no interest in doing anything other than pleasing, by giving an opinion they like a Supreme Court address, the usual suspects wheeled out to sign a Trial Lawyers amicus brief. If the Court intended some more worthy announcement, it should have made it.

(link to opinion)