A case about intervention and a small story illustrating the decline of modern times.

Thomas won one million dollars in the lottery. He elected to take the money as an annuity. That is not in theory the optimal solution but, like structured settlements,  protects people against themselves. But it can’t protect them from the sharks who nowadays swim up to recipients of annuities and structured settlements and tempt them with a cash sale (the opinion says that Thomas was approached by several of them; it calls them “structured settlement companies,” which is what we used to call the outfits that sold them rather than the vultures that buy them).  (Lawyers used to spend considerable time, thought, and effort creating structures to protect the financially unsophisticated, the naïve, and the juvenile; we used to be able to protect the weak. Today there is, for every lawyer’s tv commercial, a commercial enticing the foolish to undo the lawyer’s work.) Thomas sold his million dollars to Genex for $428,128. But then he changed his mind, tried to cancel the deal, and sold instead to Woodbridge for $430,000. (Yes, Thomas arguably breached a contract and undeniably bought himself trouble for 1872 bucks, about .4% of the principal involved; so, you see, there really is a reason why some people should use annuities and structured settlements and why the law shouldn’t let them be taken advantage of on the basis of some pro-forma paperwork.)

But when Thomas and Woodbridge filed their paperwork Genex moved to intervene arguing that it had an interest in the money and that approving the sale would impair its right to recover it. The argument comes from Rule 24, which requires for intervention an intervenor’s interest in the property and threatened impairment of its ability to protect its interest (in addition to a timely motion and the lack of a party who will protect that interest). The trial court denied the motion and entered judgment approving the transfer. Genex then filed a Rule 60(c) motion, which the court denied. The Court of Appeals affirms.

A mere contingent interest in the property is not enough. The requirement (however notional) of court approval for the transfer of the annuity makes Genex’s interest contingent upon that approval. And failing to intervene would not prevent Genex from suing the parties involved.

Genex argued that it had filed a UCC-1 but the court says that it did not in fact have a security interest, again because its interest was contingent.

Because Genex had no right to intervene it also was not entitled to Rule 60 relief even “assuming for purposes of argument that a nonparty may move for relief from judgment under Rule 60.”

(link to opinion)

THIS OPINION HAS BEEN VACATED

This is a wrongful-non-death case.

After a serious car crash involving several victims the DPS told a family that their daughter had died; in fact she had survived. The family celebrated the miracle of her deliverance by suing the DPS and all the officers involved for negligence, negligent training, and intentional infliction. The trial court granted the defendants summary judgment. The Court of Appeals affirms on the negligent training and intentional infliction counts, for which there was basically no evidence, but reverses on negligence.

The court tells us, in a footnote, that the plaintiffs argument was based on a particular section of the Restatement that an earlier case had said was “clearly inapplicable” to this type of situation. So the court sidesteps this minor annoyance and decides the case on a different basis.

That earlier case (Vasquez 2008), among others, held that the state has no duty to identify victims accurately. The court now holds, though, that by telling the next-of-kin of its identification the state assumes a duty to them. “Given [sic] the primary purpose of the notification is to benefit the survivors, coupled with the weight society gives law enforcement’s statements, and the inarguably devastating emotional impact a family member’s death has on survivors, when the State undertakes the actual NOK notification it must communicate the information with reasonable care being given to the accuracy of what is conveyed.”  The court does not use that Restatement provision, nor for that matter much other law that clearly points to such a conclusion.

In keeping with CA1 tradition the opinion recites facts at length, many of which have nothing to do with the holding. The court’s presentation gives the  impression, perhaps deliberately, that rather than acting negligently the defendants were doing their best under difficult circumstances.

(link to opinion)

A minor case about duty – minor because the plaintiff’s argument was pretty thin – that also makes a curious comment about appeal fees.

Barkhurst was assaulted by a drunken minor in the parking lot of a bar in Kingman. This happened during a dance the bar put on during the Kingman rodeo. The Kingsmen is a volunteer group that organizes the rodeo; its web site had listed the dance along with other events put on by rodeo sponsors. Barkhurst sued it on a dram shop allegation. The trial court granted it summary judgment. The Court of Appeals affirms.

It holds that the Kingsmen had no duty to Barkhurst. “As a general matter, there is no duty to prevent a third person from causing harm to another unless the defendant stands in a special relationship with the third person or with the victim.” The Kingsmen did not control the bar or its activities, which distinguishes the cases Barkhurst relied on. Public policy does not “create a duty upon [sic] persons who sponsor and promote events at which liquor is served to prevent serving underage patrons.”

Barkhurst also argued on appeal that the bar was the apparent agent of the Kingsmen. But he hadn’t done so in the trial court so the Court of Appeals declines to address the argument.

The court denies the Kingsmen’s request for a fee award, though, for the reason that to get that the appeal must be “groundless and not made in good faith.” Apparently the court could agree with the “groundless” part but “nothing in the record indicates the appeal was not pursued in good faith.” One wonders what indicia of bad faith the courts expect normally to show up in the record.

(link to opinion)