THIS OPINION HAS BEEN VACATED IN PART

Choice of law in an asbestos case.

Pounders was an APS employee working at the Four Corners plant in New Mexico. While there he inhaled asbestos. Diagnosed with mesothelioma some years later while living in Arizona, he sued those responsible for the parts of the plant that contained asbestos. He then died and his widow amended the Complaint to wrongful death.

The trial court applied New Mexico’s statute of repose, granting the defendants summary judgment. Pounders appealed. The Court of Appeals affirms.

The Restatement choice-of-law rule defaults to the law of the place where the injury occurred unless another state has a “more significant relationship” to the claim.

Much of the opinion is devoted to Mrs. Pounders first argument, that the injury occurred in Arizona – where the condition developed and was diagnosed – rather than where the fibers were inhaled. She cited cases to the effect that you can’t sue before you know you have a disease. But the Restatement says that the injury happens “where the force set in motion by the actor first takes effect on the person” and the first effects occur immediately upon inhalation. So the injury occurred in New Mexico. For some reason the opinion then discusses at length cases from other jurisdictions that have gone both ways before announcing that the better-reasoned cases come to the conclusion it had reached before discussing them.

But it seems that Pounders was wise to emphasize that argument. Though the court next takes six pages to slog through the interest analysis before deciding that Arizona did not have a more significant interest than New Mexico, that is more a matter of Division One style than of necessity. Turns out that Arizona was simply where Pounders happened to be when he was diagnosed and died.

In the last several pages the court analyses the New Mexico statute, in light of New Mexico precedent, to rule that it does indeed apply to this case. The court suggests that its having to analyze New Mexico law is “curious” but its actually routine in choice-of-law cases, especially those rather obviously filed in one jurisdiction to try to avoid the law of another.

(link to opinion)

This case holds incidentally that a subsequent house purchaser can’t rescind but its real interest concerns how to factor in attorneys fees in deciding who is the successful party under 12-341.01.

Hall was unhappy with her house and sued its builder, Read. The jury awarded her $30,000. This was less than Read had offered in settlement and so it argued that under 12-341.01A Hall was not the “successful party” for purposes of awarding fees. But the trial court awarded fees anyway, on the theory that the amount Hall’s fee request (about $300,000) exceeded Read’s offer. Read appealed.

The statute says that the offeror is the successful party if the “judgment finally obtained” is less than the offer. Since the “judgment finally obtained” can include fees the question becomes whether the amount of the fees to be included should be considered in deciding whether they should be included. The Court of Appeals says “yes,” and affirms. It says that “judgment finally obtained” is clear language. Then, in backhanded acknowledgment that context just might have something to do with it, the court says that, anyway, the statute doesn’t specifically prohibit choosing the successful party the same way – or in some sort of overlapping way – in a case where there’s been a settlement offer as in a case where there hasn’t. The court also says that it is “harmonizing” the statute with Rule 68, which makes specific provision for the fee question. “Harmonizing” a statute with a rule – even if the two said roughly the same thing – raises interesting constitutional questions that, if they occurred to the court, are deftly hidden.

We may be having an off day; we’ve read the twenty pages the court takes to reach this conclusion more than once and still can’t figure out how a law that the person who wins gets fees can logically mean, or was intended to mean, that the person who gets fees wins.

(link to opinion)

This employment case raised several issues, addressed in this opinion and a memo, but only a point about the psychologist-patient privilege is of much general interest.

Mr. and Mrs. McLeod owned Structural I, a framing contractor. They wanted to transition out of running the business. Their counselor – a registered social worker they were seeing about various issues – suggested that they hire D’Amico for a few years as a “bridge CEO.” They did, then feuded with and fired her; she sued, won at trial, and Structural I appealed.

(The main lesson here is not to rely on your social worker to advise you on who should run your construction company.)

The counselor testified at trial about her sessions with the McLeods. Structural argued that this violated the psychologist-patient privilege. (D’Amico didn’t argue that the counselor didn’t qualify since she wasn’t a psychologist.) The Court of Appeals rules that Structural doesn’t have standing to raise the issue because the privilege belongs the McLeods.

Which raises the question of what happened here. Under the statute, the psychologist-patient privilege is like the lawyer-client privilege: the psychologist can’t divulge the info without consent. But evidently this counselor did. Or did she think she had consent because the lawyer for the McLeod’s company was at her deposition, for example, and didn’t object? Does that make a difference? Did that lawyer object – and if not, why not? Why didn’t the McLeods write the counselor early on, instructing her not to say anything?

Too many unknowns to draw any conclusions. But it sounds like a problem that should have been nipped in the bud rather than after it had grown into a problem at trial/appeal.

(link to opinion)