Fisher v. USAA (CA1 8/7/18)

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)


Ruffino v. Lokosky (CA1 7/12/18)

The court discusses service of process in the context of the internet.

Plaintiff sued because of some allegedly defamatory posts by Defendant on Defendant’s web site. When his process server failed to make service he moved for alternative service by mail. The trial court denied the motion, spotting the fact that the process server — despite a return that seemed to show a lot of effort — hadn’t really tried very hard. Plaintiff made one more desultory try then served by publication and took default judgment. He knew defendant’s email address and phone number and knew she was active on social media. And he had been in internet contact with her before the suit. But he didn’t try to notify her in any of those ways nor ask to serve electronically.

Defendant moved to set aside the judgment. After an evidentiary hearing the trial court granted the motion, finding that Defendant was not evading service and that service attempts were insufficient. Defendant appealed.

The Court of Appeals affirms. Plaintiff argued that the court should review de novo, presumably to avoid the lower court’s findings. The court points out that it reviews Rule 60 motions for abuse of discretion and clearly-erroneous findings.

The rule on service by publication (4.1(l)) requires that the plaintiff be unable to find the address after diligent effort or that the defendant is evading service, and also that service by publication is “the best means practicable in the circumstances for providing the person with notice.” (Some of us remember when our rules were written in English rather than in semi-grammatical jargon.) For some reason the trial court made a finding on only one of those things — that Defendant wasn’t evading. But there were only three possible addresses, the process server admitted that she thought one of them was the right address, and Plaintiff had the means of contacting Defendant to confirm it but didn’t. “A reasonably diligent effort . . . would have included reaching out to [Plaintiff] via telephone, email, or even social media to verify her correct address.” You can find telephone cases that are years old but the email/social media aspects of this are somewhat novel.

The court uses them with the “best means practicable” requirement as well. It says that even if there had been diligent effort and/or evasion of service, “given our present society . . . modern methods of communication, especially email, were more likely to give . . . notice of a suit than publication.” (The telephone is an even better way but that’s not the point of the opinion.)

The court adds archly, in an unnecessary and ill-considered comment, that the newspaper used for publication was distributed in a rural area 70 miles from Defendant’s Scottsdale address. But what of the very next section of Rule 4.1(l), which specifically allows service “in a newspaper published in the county where the action is pending,” as it and its predecessors have for many years? Would using a “closer” paper have overcome the failure to make a phone call or send an email? Is “a newspaper published in the county” no longer good enough? If so, why does the rule still say that? If not, on what basis should defendent select a newspaper — by trying to read the plaintiff’s mind about which one (if any, nowadays) she’s most likely to read? (And if that’s the standard, why don’t we require publication to be done on the paper’s front page rather than rather than in parts that nobody reads anyway?) Granted, the Republic needs the income; but the niche papers that make a living printing legal notices will be sorely disappointed.

There’s not actually much new here except the reminder to pursue internet contacts. And the moral is the old one: you need to direct and assist your process servers actively, not just let them go through their comfortable motions. The dogged, clever, self-starting process servers you read stories about presumably exist but you will never find one.

(Opinion: Ruffino v. Lokosky)


Kopacz v. Banner Health (CA1 7/5/18)

This malpractice case breaks no new legal ground but contains a practice pointer and illustrates a modern quirk of Rule 56.

Plaintiff had complications following cardiac catheterization by Defendant, resulting in surgeries and a stay in a rehab hospital. Her lawsuit came after the limitations period so Defendant moved for summary judgment. Plaintiff argued that the complications had rendered her unable to understand what was happening, tolling the statute. The trial court granted the motion.

The Court of Appeals affirms.

Mental disability may constitute “unsound mind” under the tolling statute (12-502). But the showing requires “hard evidence” of inability to manage one’s affairs or to understand one’s rights. Plaintiff submitted conclusory affidavits from herself and her daughter to the effect that she’d been too sick to consider suit. The court considers them insufficient, especially in view of “hard evidence” in the hospital records showing that Plaintiff was alert, oriented, and aware of her injury just a few days after the catheterization. (Was the court weighing evidence? Well, yeah; affidavits are either conclusory or not on their face, regardless of other evidence.)

Plaintiff argued that even if her evidence didn’t qualify her for “unsound mind” it at least triggered the discovery rule. But the discovery rule deals with when information revealing the cause of action was available. In this case that was shortly after the incident. Whether Plaintiff had the mental ability to evaluate it is an “unsound mind” question.

The take-away is that mental impairment caused by the tort can indeed extend the time for suit but you need some pretty clear evidence in the medical record, a good expert opinion, or both.

After the trial judge’s ruling Plaintiff asked for a more specific statement, arguing that the minute entry didn’t address an issue discussed at oral argument. Rule 56(a) says that the trial court “should” state the reasons for its ruling on summary judgment. This court’s minute entry said that the action had accrued on a particular date — which was more than two years before the Complaint — and that the action was therefore barred. The Court of Appeals says that “even if we were to interpret the word ‘should’ in Rule 56(a) as imposing a requirement — a proposition for which [Plaintiff] offers no authority” this minute entry was sufficient.

So the part about stating reasons isn’t a requirement and can be satisfied with a truism rather than a reason. And for once we’re not being sarcastic — that’s a reasonable and appropriate way to treat the sentence. Why, then, does it exist? Well, it didn’t always.

Once upon a time — long, long ago (i.e., when we started practicing) — a good trial judge would grant summary judgment with a minute entry that said “The motion is GRANTED.” The judges realized that since they could be affirmed for any available reason, to focus attention on a subset of reasons increased the chance of reversal. But that also had the effect of increasing appellate workload, and for the same reason: although review is de novo, both the parties and the court tend to consider primarily — and often exclusively — reasons given by the trial judge. And so the “should” sentence was insinuated into the law, as a way of narrowing review in practice but not in theory. (Those who did so presumably told themselves that they were increasing judicial efficiency, a standard excuse for cutting corners.)