This malpractice claim ran afoul of the notice-of-claims statute.

Little’s daughter was a University of Arizona basketball player who died suddenly of a pulmonary embolism in 2005. At her memorial service a tv reporter who wanted to make a documentary asked for permission to look at her daughter’s medical records. Having done so, in July 2007 he filed with her permission a complaint with the Arizona Medical Board (what we used to call the Board of Medical Examiners) alleging that a Campus Health Service doctor, and others, had been negligent. (He then got Little to agree to pay him 10% of any settlement obtained from her daughter’s death.) The Board issued a letter of reprimand in February 2008. Little gave notice of her claim in May 2008, then sued.

But the statute (§ 12-821.01) requires a notice of claim within 180 days of the accrual of the cause of action, which is when the plaintiff knows or should know what to sue for and whom to sue. The trial court dismissed; this opinion affirms.

Little made two arguments. First, she argued that her cause of action did not accrue until the Medical Board ruled. But the reporter’s Board complaint made extensive allegations of detailed negligence, arrived at after his consultation with four doctors. Since the tv reporter was her agent his investigation was her investigation and she had his knowledge as a matter of law. So the cause of action accrued when the Board complaint was filed (or, probably, earlier than that but this analysis does not require a more exact date since the notice of claim didn’t come for another year).

Little then argued for equitable estoppel and tolling. The State’s insurance adjuster had opened a claim file after the death and Little implied that the adjuster had been responsible for some delay in obtaining medical records. But that was speculation and, in any event, by the time of the Board complaint the medical records had long since been obtained. Little also wanted more time because two lawyers had refused her case, allegedly without investigating it. But only “extraordinary circumstances” equitably toll, not “a garden variety claim of excusable neglect,” even assuming that there was anything wrong with what those lawyers had done. (One of them turned her down – in September 2007 – because she had missed the filing deadline. The State’s fallback position was that the cause of action accrued then. The court says that it doesn’t consider that argument since it had already upheld the trial court’s conclusion of an earlier accrual.)

In a footnote the court mentions another argument: the doctor had a duty to tell Little that he or some other doctor might have committed malpractice. The court says that it doesn’t consider this argument because Little had not “adequately developed” it. The court then considers the argument, saying that regardless of what the doctor did or didn’t do Little had all necessary information by the time of the Board complaint. Guys, this doesn’t do much to discourage throwaway arguments. In a case like this the lawyer isn’t saving his bullets for the Supreme Court; if it were worth worrying about on review he’d have shot it at you.

Little’s lawyer also tried to incorporate by reference everything he’d argued in the trial court. That doesn’t work, as the opinion points out it a footnote.

And what, we hope you’re asking, about that tv reporter?  The opinion doesn’t say that anything happened to him or that anyone even reported him for anything. Typical. A private adjuster trying to help settle someone’s insurance claim is an evildoer while a tv reporter moonlighting as a medical-malpractice investigator/evaluator and filing, on behalf of another for a 10% cut, a malpractice claim (that’s what the opinion correctly says –  the Board complaint “was essentially a malpractice allegation"’) is a fine fellow assisting a bereaved lady.

(link to opinion)

The case presents a question of how UIM coverage applies when the underlying carrier waives its limits.

Hamill was hit by a car. He sued its driver; the jury awarded $165,000. State Farm, the defendant’s carrier, had a $100,000 policy limit but had waived it. It appealed the jury award but then settled with Hamill for $152,000.

Hamill made a UIM claim against his Mid-Century policy. The parties agreed to arbitrate and to offset any award by $134,259.59 (the opinion doesn’t mention the reason for that number). The arbitrator found that Hamill’s damages were $140,000 but that he was 10% at fault, so he awarded $126,000. Mid-Century therefore refused to pay anything and Hamill sued. The trial court granted summary judgment for Mid-Century. Hamill appealed; this opinion affirms.

UIM coverage applies, under the statute, when “the sum of the limits of liability under all bodily injury . . . liability insurance policies applicable at the time of the accident is less than the total damages,” § 20-259.01(G). Hamill argued that because $100,000 is less than $165,000 he was underinsured (and should receive $30,740.41, the difference between the jury award and the agreed offset; Mid-Century had stipulated that he could argue based on the jury award rather than the arbitration award). The court decides that “at the time of the accident” refers to the policy rather than to its limits; that’s a logical construction but for some reason the court says that the language “dictates” that result rather than that it has to construe it to get there. Because State Farm had waived the limits, Hamill was not underinsured. (But the court adds that State Farm did so before “both the jury verdict and Hamill‟s UIM demand to Mid-Century,” raising interesting questions about whether that makes a difference.)

Hamill made a similar argument based on the language of his policy, under which an underinsured vehicle is “insured . . . for bodily injury liability at the time of the accident [but] its limit for  . . .  is less than the amount of the insured person’s damages.” But the policy also limits UIM coverage by “[t]he amount of damages established but not recovered by any agreement, settlement, or judgment with or for the person or organization legally liable for the bodily injury” and says that the company “will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” Viewed as a whole, this language also focuses on a policy, not specific limits, in force “at the time of the accident.” This time the court is a bit clearer that it is doing some (entirely sensible) construction, though it again says things that raise timing questions.

That is the important part of the opinion. Hamill raised a few other issues –  ranging from fact-specific to minor to ridiculous – that can safely be ignored. 

(link to opinion)

The holding here is that legal fees to get a divorce can be a community debt.

The plaintiff law firm represented Mrs. Curtiss in a divorce but she died before the decree was issued. So the firm sued her husband for its fees, on the theory that since the divorce wasn’t final yet her fees were a community debt. (It also sued her estate but this opinion does not deal substantively with that part of the case.) The trial court granted Mr. Curtiss’ motion to dismiss for failure to state a claim; it ruled that divorce fees can’t be a community debt because they’re incurred to destroy the community.

The Court of Appeals rules that divorce fees can be a community debt and that the trial court therefore shouldn’t have ruled on the issue as a matter of law. Community debts are intended to benefit the community, though that need not be the primary intention. The court decides that divorce fees can benefit the community by ensuring “the orderly and lawful division of assets, including temporary orders which protect community assets.” That’s a bit like saying that execution is for the benefit of the accused – orderly and lawful, and in the mean time he’s protected in a warm, comfy jail cell. Division and protection are of course not for the benefit of the late community but for that of the resulting individuals. And so the court offers another reason: divorce fees benefit the community because “the advice of counsel and the entry of temporary orders providing for a spouse‟s necessary living expenses may, when coupled with mediation or counseling, actually preserve the marriage.” How temporary spousal maintenance preserves a marriage is obscure. But mediation and counseling saving a marriage – maybe the court’s on to something. Except that when we last knew (we don’t pretend to be divorce experts) mediation was a necessary part of the process – and normally resented by all involved – not the result of counsel’s sage wisdom and valuable advice.

When all else fails there’s the “think of the children” argument, and so here. “Attorneys for the spouses also play a role in benefiting the children of the community in dissolution.” That’s an interesting notion, that your kids aren’t yours but instead your community’s. Its orderly and lawful death is therefore a benefit for them, too. The court actually cites a case for this: a New Mexico case holding squarely that divorce fees are not community debts but also holding that debts to benefit children can be – because the New Mexico statute specifically includes “dependants,” not just “community.”

Speaking of when all else fails, we spoke too soon. A Louisiana statute says that divorce costs are community. People used to think that nobody outside Louisiana used Louisiana authority except in moments of panic. Even its community property law is unique, based on the Code Napoleon rather than Spanish tradition.   Perhaps the court simply wanted the frisson of using precedent from a legal system that does not, at least in theory, use precedent.

So the court remands “for further proceedings consistent with this opinion.” That means  a motion for summary judgment, the law firm arguing that the wife “objectively” intended to benefit the community. How’s the trial court going to determine that? By considering “the surrounding circumstances at the time of the transaction.” Yep, analyzing surrounding circumstances is just the stuff of summary judgment, all right. But if not then the court can presumably hold a trial to find out if the wife, in hiring lawyers to get her a divorce, “objectively” really wanted mediation to save the marriage, or to improve the lot of the “community’s” children, or some such.