Justice Pelander answers this certified question in 16 pages, which for him is admirable, and much-appreciated-by-bloggers, brevity. The answer is also correct, though we’re not sure that the reasoning doesn’t raise as many questions as it answers.

Sharp was injured while a passenger on her husband’s motorcycle. They had separate AmFam policies, he on his motorcycle and she on her car. She recovered his liability limits then claimed UIM from her own policy. The policies said in effect that the spouse of a named policyholder, where the couple had multiple AmFam policies, could chose from either but not both. AmFam filed a declaratory action in federal court, which certified a long-winded question asking whether 20-259.01H applies (“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.”)

The court says that “The [statutes’] text alone does not resolve the parties’ dispute.” We don’t entirely understand that since the statute speaks of multiple policies purchased by one insured, not multiple policies purchased by multiple insureds.  According to a footnote on the last page, the parties fought about whether she was “one insured” but the court doesn’t address that issue because it has already decided the case despite it. So what does “one insured” really mean, if not “one insured?” Guess that will have to be answered down the line.

Anyway, the court looks to “legislature’s intent, considering the statute’s context, effects and consequences, and spirit and purpose.” After a brief analysis it concludes that “the phrase “multiple policies or coverages” applies when an insured obtains coverages for several vehicles and then attempts to claim multiple UIM coverages for the same accident.” In other words, the court focuses the controversy not on the “one insured” language but on the “one policy or coverage language,” holding that it applies only to UIM coverage, so that a liability claim against one policy doesn’t bar a UIM claim against the other.

(link to opinion)

We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court vacates that opinion but agrees that a zero award in a wrongful-death case is proper. Since wrongful death is not a common-law claim the common-law rule does not apply; the CA2 cases to the contrary are overruled.

Apparently the children acknowledged that in principle but argued that the jury had ignored uncontradicted  evidence of their loving relationship with the deceased. But a jury has great discretion in wrongful death cases and could have discredited the children’s testimony because, for example, of their self-interest. The court also says, though, that “the jury might have accepted the children’s testimony about their loss, but nonetheless decided, given all the circumstances, that awarding no damages was “fair and just.” It seems that the jury’s discretion in wrongful death is just about unlimited.

[LATER EDIT 4/15/12] We’ve been asked about an issue in the CA1 opinion that we didn’t mention here and have realized that we should have.

Specialists argued that Walsh waived the issue by not raising it when the jury returned the verdict. The Court of Appeals said that was “moot” and addressed the substance, which we said “puts the cart before the horse.” The Supreme Court, in a footnote, says that the lower court’s mootness comment was correct. So, who’s right?

Though “moot” is not quite the right word, it is logically true that if a zero verdict is not defective then it need not be treated as such (i.e., Walsh didn’t waive anything by not raising the issue at the time). But our comment intended to refer to a matter not of legal logic but of jurisprudence – the question, addressed later in our Court of Appeals blog, of CA1’s approach to the CA2 precedent. The Supreme Court’s approach is understandable but the same can’t be said of CA1. As we blogged, that court “reaches the issue because it wants to,” not because it should have.

This is especially true since our appellate courts have nowadays made a point of referring to Division Two opinions as merely being those of “another panel” of the Court of Appeals (e.g, here and here; if you think these random, meaningless occurrences then please remember not to buy bridges in Brooklyn or answer Nigerian emails). The fact that there even are two divisions, in other words, is a secondary thing we should ignore. But the Court of Appeals in Walsh blithely threw over two decisions from two panels – four different judges – twenty years apart. We’re shown that some panels are nevertheless more equal than others and that decisions from some aren’t really “real” – no matter how many nor how old they are –  until they’re confirmed by another. That isn’t a legal system – its legal chaos. It would even be better to admit officially – if its true – that CA2 is considered the minor leagues and counts only until someone in the Valley makes the call. That would at least give us some guidance in trying to tell our clients what the law is.

The Court of Appeals already knows how to handle this problem correctly: Follow the precedent but signal that you do so by obligation rather than agreement. And the Supreme Court is not blameless, since it has made the problem worse by not mentioning it in this opinion.

(link to opinion)

This case clarifies the standard of care for common carriers.

Defendant runs the Tucson city buses. Nunez’ decedent (who died before trial of unrelated causes) was a wheelchair-bound bus passenger. The driver strapped her wheelchair down but didn’t seat belt her. When the bus had to stop suddenly, she was thrown forward and injured.

Plaintiff argued that Brown should have been belted. The trial instructed the jury on the classic common-carrier standard: “the highest degree of care practicable under the circumstances.” Professional had asked for a reasonable-care instruction in addition to that, based on Atchison (1939), which decided that that instruction properly limits a common carrier’s duty. From a plaintiff’s verdict, the defendant appealed.

The Court of Appeals affirmed.

The Supreme Court reverses. Atchison is “hardly a model of analytical consistency” but it and later cases demonstrate that Arizona has always been uneasy with the common-carrier standard. Although common carriers have been held to have numerous duties, the standard of care in satisfying them is a separate issue. On that score the Restatements (second and third) require only reasonable care. Passengers entrust their safety to common carriers but they do the same with doctors, for example; there is no basis for imposing a higher standard.

Lowrey came to this conclusion ten years ago, based on a New York decision this opinion also cites, but that was a Division One case that Division Two (which handled this appeal) didn’t think it could follow in the face of other precedent. The Supreme Court agrees that the precedent was not clear.

“We therefore conclude that the appropriate standard of care in negligence actions by passengers against common carriers is the objective, reasonable person standard in traditional negligence law.”

Plaintiff argued that changing the standard would abrogate her cause of action. But clarifying the standard does not abrogate, it merely regulates. And ““Just as the common law is court-made law based upon the circumstances and conditions of the time, so can the common law be changed by the court when conditions and circumstances change.” So, does anti-abrogation apply to courts or not? The court chooses not to nail this down.

Plaintiff also argued that the court’s decision should be prospective only. But the precedent was not “clear and reliable,” especially in view of Lowrey, so that’s not appropriate.

This opinion tells you clearly, repeatedly, and exactly what it means, and why, in a relative minimum of pages. Hurwitz? You guessed it.

(link to opinion)