This fairly simple insurance coverage case is written to make the insurer’s argument sound pretty stupid (or maybe that’s how it really sounded) and has odd notions of evidence and procedure.

Giant Electric Corporation is a big name for a Benson electrician who obtained his company’s auto coverage by calling Progressive’s 800 number. He explained that his existing policy had liability/UM/UIM limits of one million dollars apiece. The Progressive agent told him that if he wanted to he could save money by reducing the UM and UIM limits to $100,000. He did. Then a passenger in one of his utility vans was killed by an uninsured motorist. Progressive filed this DJ action to confirm its UM/UIM limits

The statute, 20-259.01, requires written notice to the insured offering UM/UIM limits equal to the liability limits. Progressive didn’t do a written notice but the phone conversation was recorded. Progressive argued that that should be good enough. The trial court disagreed, as did the Court of Appeals.

The court made a big point of saying that “written” means “written.”

It dealt with the other, better argument in a footnote. Commercial statutes treat recorded calls as writings. Even if those applied here, the court says, the recording wasn’t provided to the insured. But the statute says “made available” to the insured. Presumably that wasn’t done, either, or at least the insured wasn’t informed of its availability; with appropriate facts, though, the distinction should make a difference.

Why deal with the best argument in a footnote? This tends to happen when oral argument focuses on something the court didn’t in the draft opinion. It can also happen when somebody wants more attention paid to the easy part than to the hard part, but those tend to be the usual suspects and we’re not really dealing with one of them here.

This opinion contains another example of a phenomenon we noted once before, when we made what we thought was just a smart-alec comment about something we didn’t really expect to see again. This court wanted to point out that if the Legislature had meant to include tape recordings then it could have said so. But somebody decided that that required evidence that recording had been invented as long ago as 1981. So somebody – we’d guess the same somebody – looked that up on the internet and cited it: “http://home.intekom.com/restore/History_Recording.html (last accessed May 4, 2010).”

This should be an embarrassment. But we’re charitable folk, so we assume that the somebody was an eager and well-intentioned twenty-something whose grasp of what happened in the dark times before he or she graced the planet is as good as that of most Political Science majors. This is why we occasionally recommend adult supervision. First, there was no need. Phone calls have been recordable for a long time; that should have gone without saying or could at least have been the subject of judicial notice. Second, do this and Batty mean that the courts really have decided that they can supplement the record by surfing the web? Where do the rules say that? What happens when they get it wrong? What happens when a different web page says something different? Can we cite the web back at them?

We do get a kick out of that “(last accessed May 4, 2010),” though. What in the world does somebody think that adds to the cite? Does frequency of accession make it more accurate? We get accessed every day; does that mean we must be right? Should we add to our case citations “(last cited by my friend Joe just last month in the Smith case)?”

We’re sure that our appellate-court judges, like all judges, work hard and put much effort into their work. Yes. But sometimes you do read an opinion that seems to have been churned out for the sake of churning it out.

Ward was Taser’s marketing VP. Before resigning he started working on an invention, the sort of thing Taser sells to law enforcement; after resigning he started marketing it. Taser sued, among other things, for breach of fiduciary duty and breach of the “duty of loyalty.” Taser moved for summary judgment on them; the trial court granted it. How that’s Rule 54(b) when the other causes of action, based on the same facts, are misappropriation of trade secrets, tortious interference with contract, breach of contract, conversion, and unjust enrichment isn’t clear, nor is it clear that anybody paid any attention.

An employee may not compete with his employer. Ward argued that he didn’t actively compete with Taser until he left it. Before then, he was merely preparing to do so – developing  a business plan, hiring attorneys, researching patents, and doing preliminary investigation of another invention that turned out to have been patented already so Ward had to start developing a slightly different one. The Court of Appeals agreed. These, the court says, are “qualitatively different” from competition. How so? Your guess is as good as ours. Since the opinion doesn’t attempt to define “competition,” it’s hard to figure that one out. But the court says there was a question of fact about the extent to which Ward had been working, pre-resignation, with the company that later manufactured his product. That, it seems, is qualitatively the same as competition.

Taser argued that Ward had emailed his lawyers on company time. But the times of the emails weren’t in the record. Well, actually, they were but the document was a summary of a log sheet and the judges of the appellate court “decline . . . to consider it.” Why? They don’t say. Did the trial court consider it? They don’t say. If so, why was that wrong? They don’t say.

Taser argued that Ward had deprived it of a business opportunity by selling something it would have – and later did – develop. The court says that business opportunity means a “concrete opportunity to purchase goods, services, or property, or to enter into some contract or other business transaction” and that, besides, Taser did eventually sell a similar product, which “belies its argument.” This must all be original stuff, since no authority is cited.

There’s more of the same. The opinion is fact-heavy and law-light. Its organization apparently follows that of the briefs. That can work when the briefs are well done but not when they’re mediocre. We haven’t read them but we have to hope, for the sake of those hard-working judges, that they’re at least part of the excuse.

The opinion does in passing make one interesting point that we mentioned a few weeks ago: summary judgment can be granted for either side.

THIS OPINION HAS BEEN VACATED

A personal-jurisdiction opinion, long (33 pages) but not of earth-shattering importance.

TPG is an investment outfit that sells insurance on the side, or vice versa. One of its insurance clients found out about its investment activities and sent it, with his brother’s permission, a report about the brother’s California mining property. TPG ended up investing in the mine. There was a falling-out and TPG sued.

The problem was that the brother and other defendants were California residents. They moved to dismiss, arguing that they did not have minimum contacts with Arizona. The trial court granted the motion; the Court of Appeals affirmed.

If you’ve read other personal-jurisdiction cases, you’ve pretty much read this one. Who sent what where, who called whom, World-Wide Volkswagen and Burger King and G.T. Helicopters and Uberti, the whole nine yards. This is one of those cases that will be cited because it is a shiny, new source for the same, old stuff.

The court apparently feels that its contribution is to discuss the distinction between purposefully availing oneself of the privileges of the forum and purposefully directing one’s activities toward it. The difference, the opinion tells us, is that the former applies to contracts while the latter applies to torts and is subdivided into a three-part test involving (1) intentional acts (2) aimed at the forum, which (3) caused harm the defendants should have known could happen there.

The court says that the distinction is “a major crux” of the appeal. (Usage notes: “Major crux” is painfully redundant. And there is only one crux.) That might be right if jurisdiction were proper under one analysis but not the other. All the court really means is that TPG argued the case in those terms.

Personal jurisdiction cases tend to get this sort of over-analyzed, death-by-a-thousand-citations treatment. Judging by the facts in the opinion, it wasn’t actually a very hard case. But this is one to throw into your bag of cites for when you next have the issue.