Author Archives: unknown

Normandin v. Encanto Adventures (CA1 6/26/18)

Posted on by

THIS OPINION HAS BEEN VACATED IN PART

On the constitutionality of the recreational-user statute. We add at the end a note on usage.

Plaintiff held her child’s birthday party at Encanto Park. She paid for a package of things including ride tickets, reservations at picnic tables, etc. There was a nearby area where people broke pinatas but the package did not cover that. So she brought her own pinata, during the breaking of which she fell, allegedly on a hidden sprinkler head in the pinata area. She sued in negligence for her injury Encanto Adventures, which ran the park and sold her the package, and the City of Phoenix. Defendants moved for summary judgment under the statute (13-1551). The trial court granted the motion.

The Court of Appeals affirms. It first agrees that under these facts Encanto Adventures was a “manager” covered by the statute and that the money Plaintiff paid for the package didn’t turn her from a recreational user into a commercial customer (because she hadn’t paid anything for the pinata or use of the pinata area).

It then holds the statute constitutional. It does not violate the anti-abrogation provision because negligence did not lie against the government at common law and Defendant acted as a government agent. It did not violate the privileges-and-immunities clause because the creation of a “recreational user” class, which has been done by many states, is rationally related to the governmental interest in encouraging the opening of land for recreational use.  And it is not a “special law” favoring certain corporations like Encanto Adventures because it meets the requirements of Gallardo (2014): it has a rational relationship to a legitimate legislative objective, it covers all similarly situated, and it allows entities to move in and out of the class (by chosing whether to charge a non-negligible admission fee).

The court awards costs to Defendants. They also asked for sanctions because there had been an Offer of Judgment. The court says that Rule 68(g) applies only to costs in the Superior Court.

On the subject of usage, the court uses a cedilla over the “n” in “pinata.” So is it a foreign word? If so, it should also be italicized. If not, it shouldn’t use the cedilla because English doesn’t. But a bigger problem is that modern Spanish doesn’t, either. The cedilla here is a sign of politically-correct genuflection, not of sophistication or cultural respect. In fairness to the court it is hardly the only offender in this regard nowadays and may simply be reflecting the style of the briefs.

(Opinion: Normandin v. Encanto)

 

Teufel v. American Family (6/14/18)

Posted on by

The court discusses the meaning of an exclusion in a homeowner’s policy. (We’ll condense things a bit, omitting minor issues briefly discussed.) The result may well be correct. But the opinion is not a model of contract analysis.

Plaintiff built a house intending to live in it himself, so the story goes, having it built by a company in which he — a “dabbler” in the real-estate business — was merely an investor. But he decided to sell it instead. When part of the property slid down the side of a mountain the buyer sued him in tort and contract, alleging that he was the builder. By this time Plaintiff had bought another house and an American Family homeowner’s policy on it. He tendered the defense to the carrier, which denied it. He sued.

The policy excludes liability “under any contract or agreement.” Does that mean that it excludes any liability that exists because there was a contract (AmFam’s position, accepted by the trial court, which granted it summary judgment)? Or does it exclude only contractual liability (Plaintiff’s position, accepted by the Court of Appeals, which reversed)?

The Supreme Court decides that both interpretations are reasonable and that (citing Wilson 1989) the policy is therefore ambiguous and must be construed “by examining the transaction as a whole, including the policy language and the insured’s reasonable expectations.” “Transaction as a whole” is of course one of those phrases that means whatever a court wants it to mean in a given case. In this case it apparently means nothing; the analysis deals only with policy language and reasonable expectations.

As to policy language, the exclusion said “under” while most other exclusions in the policy said “arising out of.” Whether their meaning differs, the court tells us, is “unclear.” It cites dictionary definitions of both. “Applying these definitions” (note the plural), the court concludes that the provision does not apply “simply because a contract brought [the parties] together”; instead, it excludes only “liability required by or originating from a contract.” In other words, “regardless of the precise meaning of ‘under,'” Plaintiff is right.

So the court uses definitions of both “under” and “arising out of” to interpret a provision that uses one but not the other. The interpretation of either thus remains unclear. But the court is able to combine them using some obscure dialectic that gives meaning to a word “regardless” of its meaning.

“An insured’s reasonable expectations under this policy also suggest that the . . . exclusion does not apply to [tort] liability.” What, you ask, were those reasonable expectations? How did the policy language (the “unclear” policy language) inspire them? How did they “suggest” the result? The court doesn’t actually say; its reasonable-expectations paragraph isn’t an analysis as much as an announcement of conclusions. It gives the strong impression, in fact, that all it really has in mind is what it specifically says in the next paragraph: if AmFam meant to exclude all liability then it should expressly have said so.

(The carrier then argued that in this situation even the tort claim arose out of the contract. The court disagrees, citing Woodward (1984) for the proposition that “a builder–vendor owes a common law duty of care that is independent of a contractual duty.”)

Since the negligence claim is not excluded the insurer must defend, though which claims it must pay for is a question the court sidesteps.

(Opinion: Teufel v. American Family)

Farmers Insurance v. Udall (CA1 6/12/18)

Posted on by

The issue of how homeowners insurers pay — or don’t pay — water-damage claims has been out there awhile. Having spawned a cottage industry of “restoration” contractors, carriers treat them as they do their many similar children (including insurance-defense lawyers) — providing just enough sustenance to keep them alive but maintain their dependence. This case combined four such claims; for clarity we’ll treat it in the singular.

Farmers used a contractor called EcoDry to remediate its insured’s damage. EcoDry’s work order made clear that it worked for the insured but also contained an assignment to it of the insured’s rights, though Farmer’s policy had an anti-assignment clause. Farmers, predictably, declined to pay EcoDry the full amount of its invoice so it sued Farmers under the insurance policy. Farmers moved to dismiss, arguing that EcoDry had no valid assignment and therefore no rights against it. The trial court denied the motion. Farmers filed a special action.

The Court of Appeals accepts jurisdiction but denies relief.

A policy can’t be assigned; you can’t change the insurer’s risk without its consent. But assignment of a claim — i.e., accrued policy rights after a loss — is valid. Farmers argued that assignability isn’t triggered when the amount of the claim is still in dispute. The court disagrees that this affects Farmers’ risk or obligations. The policy requires it to pay the reasonable costs of repair regardless of who pursues that claim.

Whether EcoDry’s broad assignment would allow it to make a bad-faith claim the court leaves for another day since EcoDry — at least in its Amended Complaint — was careful to avoid the issue.

(Opinion: Farmers v. Udall)