(LATER NOTE: This is opinion was amended by another issued on July 28, 2011. The only difference appears to be the deletion of a couple of sentences (from paragraphs 22 and 25) regarding the use and effect of DOI forms, about which one of the parties presumably raised some quibble. For purposes of our analysis the changes are inconsequential.)

A.R.S. 20-259.01(B) requires a written offer of UIM coverage. The issue here is whether it also requires a written denial. The answer is “no.”

When Blevins bought his car insurance from GEICO it gave him a written offer. He refused the coverage but didn’t sign the form saying so. After being in an accident he claimed UIM; GEICO denied it; he sued. The trial court gave him summary judgment; this opinion reverses.

An earlier case (State Farm v. Ash) had decided this issue for the insurer. But since then the statute has added two sentences.

Since 1992 the statute has said “The selection of limits or rejection of coverage by a named insured or applicant on a form approved by the director shall be valid for all insureds under the policy.” The trial court apparently focused on this, interpreting it as requiring a written denial on the written form. But the Court of Appeals points out that the sentence does not explicitly require a written denial nor even that a form be used. The Legislature could have done so had it wished, as it has with other insurance statutes, e.g., 20-259.01. The legislative history and a Supreme Court case indicate that use of the written form – including a written denial – is one method of demonstrating compliance, not the only way to comply with the UIM requirement. The sentence relates to an effect of using the form, namely, that the policyholder’s UIM choice applies to all insureds.

Since 2003 the next sentence of the statute has said “The completion of such form is not required where the insured purchases such coverage in an amount equal to the limits for bodily injury or death contained in the policy.”  This, Blevins argued, means that the form is required otherwise. But the court says that the 2003 sentence relates only to the 1992 sentence, under the last antecedent rule (“a qualifying phrase [is] applied to the word or phrase immediately preceding as long as there is no contrary intent indicated”). In other words, the sentence means that the purchase of maximum UIM coverage is valid for all insureds whether or nor a state-approved form is used.

The Department of Insurance has taken the position that it must approve the forms used to offer UM/UIM coverage. But an agency’s interpretations are advisory only; “to the extent it conflicts with our interpretation, we do not find [the Department’s] interpretation controlling.

(This will cause some consternation since there are efforts already underway to attack some companies’ UM/UIM selection forms based on the Department’s interpretation.)

The rule in Ash therefore still applies. The denial of UIM need not be in writing.

The Court remands with instructions to enter judgment for GEICO.

(link to opinion)

Rule 55 requires that notice of default be given to the attorney of a represented party. This plaintiff tried to base a $750,000 default judgment on not doing that, with predictable results.

Spectrum (in Utah) and Neeme (in Arizona) had a falling-out over a contract. Spectrum sued Neeme in Utah; Neeme sued Spectrum in Arizona. Spectrum didn’t appear in Arizona and Neeme took default judgment. Neeme sent copies of the application for default to Spectrum itself but not to Spectrum’s lawyer in Utah. On Spectrum’s motion, the trial court set the default aside. Neeme appealed. The Court of Appeals affirms.

Neeme argued that the Utah attorney wasn’t going to appear in the Arizona case. But the rule says “attorney,” not “attorney who is going to appear in the case.” The court emphasizes the facts that Neeme knew of the the Utah lawyer and that he represented Spectrum in the same dispute out of which Neeme’s case arose. And it limits its holding to that set of facts, declining to rule on various scenarios that Neeme apparently proposed – whether, for example, the rule means all of multiple lawyers, or in-house counsel, or lawyers working on matters unrelated to the subject of the dispute.

Neeme also argued that Spectrum had unclean hands because Neeme had announced that it would sue Spectrum on a particular day and Spectrum filed its suit the day before. Spectrum thereby, you see, “force[d] Neeme to litigate in a foreign forum.”  We don’t know whether the increasing ability of lawyers to make outrageous and even simple-minded arguments with a straight face arises out of an increase in attitude or an increase in ignorance, or both. In any event, the court treats the argument with at least as much respect as it deserves, making some comments about the meaning and effect of equitable defenses and also that the unclean hands have to arise out of the same transaction.

(link to opinion)

One of your standard murderer-sues-his-doctor-for-letting-him-murder cases.

Pompeneo murdered his girlfriend, pled guilty to avoid the death penalty, then sued the doctors who had tried unsuccessfully to control his various mental disorders. The murder, the suicide attempt he made after it, and his incarceration were, he claimed, their fault. The trial court granted summary judgment; this opinion affirms.

As to the suicide attempt, the Court of Appeals relies on a case (Tocci) to the effect that if the attempt is intentional – as opposed to the result of an insane impulse or an inability to realize the nature or risk of the act – then that intentional act is a superseding cause. The court then applies the same principle to the murder. There was no evidence of irresistible impulse, etc., and Pompeneo had said in his plea that he killed the girlfriend because of an argument and that it was premeditated.

Pompeneo sought various sorts of damage for being in prison. For some reason the court addresses this but it does not try to parse it too closely, contenting itself with saying that there was no evidence of at least some of them.

The doctors argued for a broad policy rule against recovery for criminal acts; the court mentions but doesn’t address that since standard summary judgment analysis resolves the matter.

(link to opinion)