Coffee v. Hon. Ryan-Touhill (CA1 6/20/19)

Rule 42.1(e) allows a change of judge “if the appellate decision requires a new trial.” What if the decision requires re-holding an evidentiary hearing?

After what sounds like a somewhat idiosyncratic evidentiary hearing the family court ordered a change in a parenting plan. Father took special action. The Court of Appeals accepted it and granted relief, ruling that the order “cannot stand” because Father was denied due process. It directed the trial court to hold a proper hearing, allowing Father to present certain evidence. Father then moved in the trial court for change of judge under Rule 42.1 (e) (remand for new trial). The judge denied it, opining that the Court of Appeals didn’t “reverse” her and didn’t order a new trial, and also that there was no evidence that she had any “ill-feelings” toward Father. Father again took special action. The trial judge (whose evident unwillingness to reconsider her ruling regardless of any new evidence did her cause no favors) apparently then suggested that she could not hold a hearing until the Court of Appeals revested jurisdiction.

The Court of Appeals accepts the special action.

Before addressing Rule 42 it discusses the jurisdictional question. It points out that a special action does not divest the trial court of jurisdiction. This is pure dicta — the action did not raise the question and everybody here had jurisdiction — but it seems that even trial judges need to be reminded. (So in theory the trial court could have held the new hearing since Father had not obtained from the Court of Appeals an order staying it. But as a practical matter the judge was in no hurry to do anything.)

Then the court grants relief. “Trial” includes a contested evidentiary hearing. Directing the lower court to “revisit the same . . . issue based on the same factors and new evidence” is the same as requiring a new trial. The rule requires no magic words such as “reversed” or “new trial.”

Nor does it require proof of judicial animus. “Actual bias is not required.” The potential for subconscious bias is enough.

The rule does require a “remand.” Although jurisdiction is not remanded in a special action, since the trial court does not lose it, “an order granting relief and directing additional evidentiary proceedings to redo an earlier proceeding is the functional equivalent of a remand.”

(Opinion: Coffee v. Hon. Ryan-Touhill)


Dashi v. Nissan (CA1 6/13/19)

The court rules that “implied obstacle preemption” precludes a tort claim for failure to equip a car with safety devices not required by the government. But the analysis is fact-and-circumstance intensive, focusing on the particular devices at issue here. Whatever other gadgets future plaintiffs decide in retrospect that they should have bought will apparently need to be litigated separately.

Plaintiff sued Nissan because its vehicle did not have certain braking systems, available in other cars, that she alleged rendered it defective and unreasonably dangerous. Nissan moved for summary judgment, arguing that NHTSA regulations — which make such systems optional — pre-empt the claim. The trial court granted the motion.

The Court of Appeals affirms, holding that the claim is impliedly preempted. “A federal agency may trigger implied obstacle preemption when it refuses to adopt a specific equipment standard in furtherance of a federal regulatory objective, thus deliberately leaving manufacturers with equipment alternatives.” The court recounts at length the NHTSA’s study of the devices and its decision that requiring them would inhibit the development of the technology. Then in recounts at more length the federal DOT’s “express views on implied preemption.” It concludes that allowing the common law to require the devices would create an obstacle to the full accomplishment of federal objectives.

The court finishes by distinguishing Plaintiff’s cases in favor of others. There is of course quite a number for both parties to choose from.

(Opinion: Dashi v. Nissan)

Dignity Health v. Farmers (CA1 6/11/19)

The question here is whether med pay is subject to a hospital lien. (The court, following what it says is the usage of  the parties, says “medpay.” This may be a trendy new way to put it. So we won’t.)

Farmers’ insured incurred substantial medical expense at a Dignity hospital following a motor vehicle accident. Dignity filed a lien pursuant to 33-931. Farmers nevertheless paid the med pay to its insured rather than to Dignity. Dignity sued it. Farmers moved to dismiss, arguing that the lien statute doesn’t cover med pay. The trial court granted the motion.

The Court of Appeals reverses. The statute allows the provider a lien on its patient’s claims “other than health insurance and underinsured and uninsured motorist coverage as defined in 20-259.01.” That is the UM/UIM statute, part of which (now subsection J) provides for a med pay lien against the insured’s recovery in UM/UIM cases. So Farmers argued that “health insurance” in 22-931 means “health insurance motorist coverage,” i.e., med pay. But the court indicates that the reference to “health insurance” is separate from the “as defined in 20-259.01” language. The UM/UIM statute doesn’t use the phrase “health insurance”; it defines neither that nor “med pay.” 33-931 didn’t originally contain any exclusions to the hospital lien. Then, in 1988, health insurance was excluded. The exclusion for “underinsured and uninsured motorist coverage as defined in 20-259.01” wasn’t added until 2004; the legislative history from that time doesn’t suggest that this was intended to alter the “health insurance” exclusion.

Farmers also argued that “health insurance” and “med pay” basically mean the same thing anyway. (We trust that the argument was rather more nuanced than this but the court does not describe it in detail.) The opinion says that Farmers waived this argument on appeal, then addresses it. The contention is not consistent with the way the phrases have been used in the statutes and the cases.

So “health insurance” in 33-931 doesn’t mean “med pay,” Dignity had a valid lien.

A couple of style points:

“Had the Legislature wanted to exempt medpay coverage from the . . . lien, it could have done so.” Indeed so, but whether it did so was the point, and conclusion, of the opinion. That it could have done so is a truism. The court’s point, both rhetorically and logically in the context of its analysis, is that the Legislature, if that’s what it wanted to do, could have said so. A court that goes out of its way (¶5) to chide the parties about the sloppiness of their arguments needs to be punctilious about its own.

The court’s historical analysis of the statute gives us the opportunity to point out that its method of citing statutes is a bit of a mess. When first citing it the court, as has become its wont, uses the style “33-391 (2019),” including the date as if citing a case. And it adds its now-standard footnote: “Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.” We’ve all read that sentence, or its close equivalent, enough times by now that we think we know what the court is trying to say. And yet a statement with open-ended qualifiers at both ends doesn’t actually say anything. The court actually means: “We’re going to go with the version our research service puts on our screen without trying to correlate that with what was in effect at the time unless you tell us that we need to.” But if the parties don’t tell it that — if the question of revisions and version and dates is irrelevant — then why bother mentioning it? And if the court does — as here — mention them at length then why include a catch-all footnote up front suggesting that it might not? Court opinions are not manuals for the restatement of bureaucratic rules. If the issue is relevant to the case then it should be addressed but not otherwise. Even a relatively few years ago the court didn’t use this date/footnote form and yet we still managed to keep things straight.

(Opinion: Dignity Health v. Farmers)