The UIM statute, A.R.S. 20-259.01 was the topic of the last post, and now Division 1 has weighed in on whether an insurer can exclude an accident caused by an off-highway vehicle.  Plaintiff passenger was riding on an ATV on the dunes outside of Yuma when it rolled.  Passenger collected from the driver and then demanded UIM coverage from her insurer State Farm. State Farm’s policy states an “underinsured motor vehicle” does not include an offroad vehicle (nor is such coverage required under Arizona’s Financial Responsibility Act). State Farm argued the UIM statute does not compel coverage for vehicles that are not operated on the highways. Because there is case history agreeing with State Farm but involving uninsured motorist claims, the court distinguishes UM cases because the statute says UM coverage is “subject to the terms and conditions of the policy” and such language is not included when the legislature defined UIM coverage. The court gives us a side-by-side comparison of the UM/UIM statute while informing us the UIM coverage refers to an “accident” without reference to a motor vehicle at all. The court ascribes the difference in language as especially meaningful. The court backs up its analysis by quoting the overly broad statement in Cundiff that there are no exceptions to UIM coverage (except stacking as we discussed last week). The court rules for the insured but agrees with the dismissal of her bad faith claim which was tacked on the coverage claim and undeveloped in the trial court. This statute has been a favorite at the legislature, and we will see if the Fifty-sixth Legislature is inclined to correct such interpretations.

link to opinion

Reading a Justice Lopez opinion is a struggle. His opinion for the court in Franklin v. CSAA Gen. Ins. Co. begins with conclusions, and he then defends these conclusions with a rulist-textualist interpretation whether he is considering a statute, a prior case, or an insurance policy. He throws punches but they do not land because his writing style is weak. Using a dictionary, he interprets the word “purchased,” and of course we find an obligatory reference to Scalia and Garner’s bible on statutory interpretation. Scalia penned the trite chiasmus: “the rule of law is a law of rules.” Keep this in mind while reading Justice Lopez’s opinion or any opinion from this court.

Where a single automobile insurance policy insures multiple vehicles, the Arizona Supreme Court holds the insured can collect underinsured motorist coverage (UIM) for each separate vehicle listed and stack the limits unless an insured strictly complies with ARS 20-259.01 (H).  This intra-policy stacking has never been the law in Arizona.  One may thus question the court pronouncing it is considering the statute’s context, history, and purpose. One may also question whether insurers are using creative policy drafting intended to evade statutory requirements since insurers do not appear to be type 4 personalities. Subpart H is simple enough: “If multiple policies or coverages purchased by one insured on different vehicles apply to an accident or claim, the insurer may limit the coverage so that only one policy or coverage, selected by the insured, shall be applicable to any one accident.” There is no need for an insurer to be creative. The next sentence in subpart H includes a cure if the selection right is not spelled out in the policy: “If the policy does not contain a statement that informs the insured of the insured’s right to select one policy or coverage as required by this subsection, within thirty days after the insurer receives notice of an accident, the insurer shall notify the insured in writing of the insured’s right to select one policy or coverage.”  This cure, the court determines, alters the policy after the fact and allowing this violates contract law. We’re confused. If we look at the contract, the coverage limit applies whether there is one or ten vehicles — but that’s being creative. If we are deciding how we read the UMA today, a larger question looms: Giving a rulist/textualist interpretation, where does one find the notion of portability upon which all of this depends?

link to opinion

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.