The subject is narrow but the procedure reminds us that, for better or worse, there is more than one way to skin a cat.

Kobold, a federal employee, was injured in a motorcycle accident. Aetna, his employer’s insurer, paid his medical bills. When he obtained judgment against the other driver Aetna tried to assert a lien against his recovery. Although prohibited by Arizona law this is allowed by Aetna’s policy; under federal law – the Federal Employee Health Benefits Act (5 USC 8902(m)(1)) – the insurance policy supersedes state law (we hope you are startled by that; even the U.S. Supreme Court considers it “unusual”). The trial court denied Aetna’s claim; the Court of Appeals affirmed, reasoning that the language of the federal statute didn’t quite cover reimbursement claims.

Aetna reacted to that in a traditional, if slightly unusual in this context, way – it filed a petition for writ of certiorari with the U.S. Supreme Court. But it also reacted in the modern way – by sending in the lobbyists. So by the time the Supreme Court got around to considering the case the federal Office of Personnel Management had already written new regulations saying that the statute does too allow Aetna’s claim. The Supreme Court accepted cert but remanded for reconsideration in light of the new regulations.

The Court of Appeals now reverses its earlier ruling. The OPM is an agency entitled to deference in the matter. Its new regulation is a reasonable interpretation of what everybody agrees is an ambiguous statute. “The fact that the regulations postdate our [earlier] decision  . . . does not deprive them of authority” because the court hadn’t concluded that the statute unambiguously leaves no room for the OPM’s construction. The court remands with instructions to enter judgment for Aetna.

Substantively the Court of Appeals’ first opinion was probably wrong anyway; the court was stretching things a bit to uphold Arizona law and policy. But the important lesson is to keep your case alive long enough to let it be decided not by mere judges but by the people who have real power in our society, the bureaucrats.

(Opinion: Kobold v. Aetna)

This is another case (like Hoag) interpreting the supersedeas-bond statute. The court holds that “attorneys’ fees imposed as sanctions . . . are not ‘damages awarded’ for purposes of calculating “ the bond.

The trial court dismissed the plaintiffs’ case and as sanctions awarded against them the defendants’ attorneys’ fees. The plaintiffs appealed. Under the statute the amount of the supersedeas bond is normally the ‘total amount of damages awarded excluding punitive damages.” Since there were no damages the plaintiffs took the position that there need be no bond. The trial court disagreed and refused to stay the judgment; the plaintiffs took special action (after filing a motion to stay directly with the Court of Appeals, which denied it and basically told them to take special action instead).

The Court of Appeals accepts jurisdiction and, in a way,  grants relief. Various cases have held that attorneys fees are not “damages.” Jantzen did so in the context of a supersedeas bond. The plaintiffs tried to distinguish it because in that case fees were awarded under 341.01 (contract case) rather than as a sanction. But as in Jantzen the fees were not part of the substantive claim; they were not “a legal consequence of an original wrongful act.” And the court says that the statute’s exclusion of punitive damages includes amounts awarded as punishment. Finally, 12-349, under which these sanctions were awarded, distinguishes between fees and the doubled fees that it allows to be awarded and calls “double damages.” But here the court has over-analyzed things; if the trial court had doubled the fees would that have made them “damages” for fixing the bond?

The court does not stay the judgment nor instruct the trial court to do so. The court “grants relief by ordering that the award of attorneys’ fees as sanctions” are not “damages” for purposes of a supersedas bond. But that’s a conclusion of law, not an order. Our appellate courts like to take a hands-off attitude toward supersedeas bonds nowadays; the failure to remand with instructions, though, turns this into a sort of advisory opinion that they aren’t really supposed to be in the business of.

We have to suggest again that the legislature take another look at the statute. (For some reason we’re not sure that our last suggestion sent them all running to the books with their red pencils.) Having been written to address a particular problem (that of capping bonds when verdicts are huge) it seems to have in mind only very traditional, damages-only judgments. But those are not the only type that exist and they are, as we have also suggested before (with equal impact on public consciousness), a vanishing species.

(Opinion: Kresock v. Gordon)

A case discussing the elements of medical battery.

The plaintiff went to a doctor for a spinal injection to be given under sedation. He gave her the shot but didn’t sedate her. The shot must have worked since she sued for battery rather than malpractice. The trial court gave the RAJI battery instruction requiring harmful or offensive contact. From a defense verdict the plaintiff appeals.

Her argument is that in a medical-battery case the question is not whether the intentional touching was harmful or offensive but whether it was consented to. The Court of Appeals agrees. “A patient need only prove she was damaged when the physician wilfully [sic] performed a procedure to which she did not consent.” (Apparently the author or the author’s spell-checker is British; in America “willful” has been standard for a few generations now.) (LATER EDIT: The court has today — May 10, 2016 — issued a “corrected” opinion; as far as we can tell the only change is to correct that spelling error. That explains why our date for this case may differ from the one on the opinion you read.)

The defendant tried to argue in various ways that the error wasn’t important but wasn’t helped by his closing argument, which had been that the RAJI instruction requires “intent to harm.”

(link to opinion)