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Ryan v. Napier (8/23/28)

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We blogged the Court of Appeals’ opinion here; go there for the facts.

The Supreme Court vacates that opinion, reverses, and remands. “[W]e conclude that negligence and intent are mutually exclusive grounds for liability.”  “It follows that if a defendant acts with the intent to cause a harmful or offensive touching (battery), that same act cannot constitute negligence.” Neither negligent use of intentional force nor negligent evaluation of whether to use force is a tort.

The trial court should have granted the defense motion for summary judgment on negligence. Treating it as an an intermediate order affecting the judgment, the court remands for its entry.

The court also addresses other issues “to provide guidance.” Since they’re dicta the guidance value is not entirely solid; the court seems drawn to comment on them because the parties briefed them, which is the cart pulling the horse. In any event, the court says that the jury shouldn’t be instructed on 13-409 (defense of justification regarding arrest or escape) in a negligence case and that when it is used in a civil case the defendant bears the burden of proving it. And the court agrees with Judge Espinosa that expert witnesses shouldn’t purport to tell the jury what the legal standards for justification are.

(Opinion: Ryan v. Napier)

Fisher v. USAA (CA1 8/7/18)

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On the requirement of timeliness when challenging an arbitration award.

Claimants in a UIM arbitration suggested an arbitrator but apparently discovered after the carrier agreed to him than he also did arbitrations for another law firm that represented that carrier. But they raised no objection, went to arbitration, and lost. Following unsuccessful post-hearing motions with the arbitrator, they filed in court to vacate the award and to obtain discovery on the arbitrator’s alleged conflict of interest. The trial court denied the motions. (We have condensed the facts a bit, omitting an intriguing but irrelevant disagreement between the claimants and their original lawyer and making a small guess about what and when the claimants actually filed in court, the description of which lacks clarity and consistency.)

The Court of Appeals affirms, ruling that the claimants waived the objection. The statute (12-3001 et seq.) provides that an arbitrator must disclose conflicts and that an award can be set aside for failure to do so. But comments to the Revised Uniform Arbitration Act, on which our statute is based, say that objection must come “within a reasonable period after the person learns or should have learned of the undisclosed fact.” “We agree that parties who know or have reason to know of possible partiality must raise an objection with the arbitrator during the course of the arbitration proceeding.”

The claimants tried reverse the burden of proof by invoking a presumption of partiality. The statute provides for that if the arbitrator does not disclose a direct interest in the outcome of the case or a substantial relationship with a party. But no interest in the outcome was alleged and working as an arbitrator for another firm that represented a party is not a substantial relationship with that party. “When a party challenges an arbitration award, the burden is on the moving party to prove that grounds for vacating the award exist.”

Waiver of the claim having “extinguished the pending action connected to the discovery request,” the court expressly declines to rule on the denial of that request.

(Opinion: Fisher v. USAA)

 

Chula Vista HOA v. Irwin (CA2 7/27/18)

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The question presented is whether a supersedeas bond should include the amount of a fee award. City Center (2015) settled that; this case follows it, adding a bit of additional discussion of exceptions that don’t apply here.

Plaintiffs sued their homeowners association. They won, receiving some declaratory relief, $5000 damages, costs, and $35,000 attorney’s fees on a contract claim. The HOA file a notice of appeal. It argued that the amount of its supersedeas bond should not include the fee award; the trial court ruled that it should. So the HOA filed this special action.

The Court of Appeals accepts review and grants relief. The part of Rule 7 at issue here bases the bond on the “total amount of damages.” It is hornbook law that attorney’s fees are not “damages.”

But there are exceptions. The trial court apparently followed Desert Mountain (2010): “when one party’s breach of contract places the other in a situation that ‘makes it necessary to incur expense to protect his interest, such costs and expenses, including attorneys’ fees, should be treated as the legal consequences of the original wrongful act and may be recovered as damages.'” But Desert Mountain was a claim against an insurer to recover amounts — including fees — paid by an insured for claims the insurer refused to cover. The holding was that in that context the fees fell under the policy language of things the insured was “legally obligated to pay as damages.” The fees in this case didn’t arise from litigation with a third party. (It might be worth noting, though the court does not utilize the distinction, that Desert Mountain also did not use the standard legal definition of “damages”; instead it used the “plain and ordinary meaning” standard applied to insurance policies.)

Some provisional remedies are also exceptions, so Plaintiffs argued that their slander-of-title claim was “akin” to a provisional remedy. The court points out that the claim is statutory and that the statute (33-420), although allowing fees, does not define them as part of the “damages.”

(Opinion: Chula Vista Homeowners v. Irwin)