A case about the firefighters’ rule.

Reid, a police officer, saw Keifauver roll her car and was injured when tried to help her out of it. He sued her for negligence under the rescue doctrine. The trial court granted defendant summary judgment on the firefighters’ rule. Reid appealed.

He argued, first, that the rule didn’t apply to him because he had no duty to help her escape the car; as to that he was merely a volunteer. That’s Espinoza (2006), which otherwise adopted the firefighters’ rule. But Reid was on duty (Espinoza had been off-duty) and had an obligation to “respond to and secure the accident scene.” He might not have had a duty to help but “the key to the analysis is whether Reid’s on-duty obligations as a law enforcement officer compelled his presence at the scene,” not what he did when he got there.

Reid next argued that the firefighters’ rule is about assumption of risk, which only the jury can consider. The Court of Appeals reads Espinoza as saying that it isn’t.

The amici want the firefighters’ doctrine abolished, which obviously CA1 can’t do so its not altogether clear why they were brought in at this level.

(link to opinion)

Businesses that use arbitration agreements with consumers will want to look at this one.

While in a nursing home Clark signed an agreement to arbitrate claims. When he later brought suit against it the nursing home raised the agreement as a defense. After an evidentiary hearing the trial court ruled it procedurally valid but substantively unconscionable: Clark’s expert testified that the arbitrators’ fees would exceed $22,000, Clark couldn’t afford that because he was retired and lived on a fixed income. The nursing home appealed; the Court of Appeals affirms.

“An arbitration agreement may be substantively unconscionable if the fees and costs to arbitrate are so excessive as to ‘deny a potential litigant the opportunity to vindicate his or her rights,’” citing Harrington, 211 Ariz. 241. The court in Harrington said that was a valid argument but that those plaintiffs hadn’t proved it. That’s why Clark got an evidentiary hearing and proved up the purported arbitration costs and his income. On appeal the nursing home questioned the expert’s conclusions and qualifications and whether Clark’s income was enough to cover the arbitration fees but those were factual and discretionary matters concluded by the trial court.

Harrington pointed out a solution: AAA rules allow fees to be reduced or waived in cases of “extreme hardship.” The nursing home wasn’t using those rules; it was a private, you-pick-one-and-we’ll-pick-one agreement that split costs equally. A provision that lets the arbitrator shift costs on a showing of extreme hardship may be the price to pay for keeping some of these agreements alive.   

(link to opinion)

THIS WAS RE-DESIGNATED A MEMORANDUM OPINION by order of the Supreme Court August 27, 2013

We will not blog this for one or more reasons set forth in our FAQ. Insurance attorneys will want to note, though, that the written offer of UM/UIM coverage for auto policies must under this case include a premium quote. There is a dissent, so perhaps the Supreme Court will speak to this.

(link to opinion)