Kopp v. Physician Group of Arizona (7/9/18)

The Supreme Court changes the law on the effect of dismissal.

Plaintiffs sued a doctor and a hospital for malpractice; against the hospital they alleged both respondeat superior and independent negligence in hiring and supervision. They settled with the doctor and dismissed him with prejudice. The hospital then moved for summary judgment, arguing that the claims against it were derivative. The trial court granted the motion; the Court of Appeals affirmed.

The Supreme Court reverses.

“Derivative liability is no broader than vicarious liability.” Even though the claims of independent negligence against the hospital depend on proving the doctor negligent they are not vicarious.

But, the hospital also argued, dismissal of the doctor was an adjudication on the merits against him so he can’t be proved negligent. The lower courts had followed Torres (App. 1971), holding that allegations against the hospital don’t survive dismissal of the doctor if proving the doctor’s negligence is an element of those allegations. The Supreme Court cites Chaney Building (1986) to the effect that collateral estoppel applies only to facts or issues actually litigated. Stipulated judgments aren’t litigated and bind others only if the settlement agreement said so. The court recognizes that the law since DeGraff (1945) has been otherwise; “we disavow our holding in DeGraff insofar as that case and its progeny conclude that a stipulated dismissal with prejudice ‘operate[s] as an adjudication that [the dismissed party] was not negligent.'”

At least the court acknowledges DeGraff. In all other respects it follows the script written years ago by one of the people involved in this case: this opinion isn’t radically changing existing law, you understand, that was really done years ago by another case (Chaney Building in this performance of the play) so this one is simply following the precedent, never mind that the supposed precedent had never before been read that way.

(Opinion: Kopp v. Physician Group)


Teufel v. American Family (6/14/18)

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)

Quiroz v. Alcoa (5/11/18)

We blogged the Court of Appeals’ opinion here. The majority comes to the same result for mostly the same reasons, which it sums up as follows:

“First, duty is not presumed; in every negligence case, the plaintiff bears the burden of proving the existence of a duty. Second, . . . foreseeability is not a factor in determining duty. Third, duty is based on either special relationships recognized by the common law or relationships created by public policy. Fourth, in the context of duty, the primary sources for identifying public policy are state and federal statutes. In the absence of such legislative guidance, duty may be based on the common law — specifically, case law or Restatement sections consistent with Arizona law.”

“Duty is not presumed” means — and this seems to be the main point of the opinon — that the court specifically rejects the attempt of the Third Restatement of Torts to write duty out of the law by presuming it. The court (citing Palsgraf, which had been infra dig for a while) says that “before negligence can be predicated [on] a given act, [in] back of the act must be sought and found a duty to the individual complaining.”

On the issue of public policy the court emphasizes that “in the absence of a statute . . . we exercise great restraint in declaring public policy.” Policy is “primarily a legislative function” and even the court does not establish duties “based on our own notions of appropriate public policy.”

Bales and Pelander dissent, though Pelander apparently does not go so far as to think that Arizona should adopt the Third Restatement.