The Court sort of answers certified questions from a federal district court in Utah. The accident occurred in Pima County at a mine operated by Staker. Staker had a haul agreement with BDR. BDR hauled rock materials between processing areas.  Staker required BDR to name it as an additional insured on BDR’s liability policy with Scottsdale Insurance. BDR’s employee was injured when he attempted to dislodge a lock between the trailer’s dual set of tires. The tires exploded, and he was injured. The employee then sued Staker on a theory that the trailer was improperly loaded, the road was not maintained, and Staker did not implement safety training and techniques. Scottsdale Insurance denied coverage asserting that Staker did not qualify as an insured because Staker was not using the vehicle at the time of the accident. Staker then successfully defended the case and demanded Scottsdale reimburse the $1 million dollars it spent on defending the case. First, the Court holds the vehicle was in use and “use” continues from the truck being loaded until it is unloaded. The second question is whose use? This “use” is not independent from BDR’s employee’s use of the vehicle. The claim was that Staker failed to maintain the roads and such claim did not arise from the “use” of the covered vehicle. Third, “managerial functions of an additionally named insured on a commercial automobile policy” do not constitute “use” of a covered vehicle. The court also agreed there is no compelling reason to shift the burden of employee and contractor training onto a subcontractor’s automobile insurer. Fourth, the court discusses causation and the relationship to automobile insurance policies. “For there to be causation, the use of the covered vehicle need only be connected to the negligent ownership, maintenance, or use of the covered vehicle.”

The court sends the case back to Utah for the federal district court to decide how this plays out.  This last part is confusing and does not answer the fourth certified question. But as we read this opinion, Scottsdale did not owe a duty to defend Staker under BDR’s policy. This case was argued two years ago.  Why did it take two years? We watched the oral argument and were confused then by several of the questions and the jumps between tort law and insurance. This opinion clarifies some of this, but in the end, the court ducks the dispute on duty to defend. The court gives up with providing an answer and leaves the parties to argue some more

The Arizona Supreme Court grants a new trial after a jury awarded $4.625 million. The defendant driver admitted liability and the employer admitted respondeat superior liability. The trial should have only been about damages. The plaintiff was allowed to introduce evidence against both the employer and employee. The jury ended up faulting the driver 40% and his employer 60%. This is puzzling, and the Court holds the trial court wrongly allowed evidence that was irrelevant and improper. Because the defendant, however, had not moved to dismiss the negligent hiring claim, the Court declines deciding whether it should adopt the majority rule that once an employer has admitted respondeat superior liability, it is improper to proceed against the employer on any other theory of imputed liability. But it answers this when discussing respondeat superior liability: “Apportionment of fault is therefore not necessary when an employer is vicariously liable because no fault remains for the factfinder to apportion.” The lower courts have floundered on this after the Court’s decision in Kopp. The Court does not discuss these flounderings. This is a pattern with this Court. Take a look at Swift Transp. Co. v. Carman, another opinion from Justice Brutinel, where there are inconsistent appellate court opinions that are not even mentioned.

Plaintiff claims no separate or additional damages from the employer conduct, and the employer’s separate liability adds nothing to the damages sought. What was unfair was plaintiff’s counsel, after being allowed to introduce the irrelevant and inadmissible evidence, painting a picture of a bad employer with arguments that the jury is the “conscience of the community,” the company “does wrong,” and while the driver was at fault, he worked for a company that “acted badly” and turned a “blind eye” in hiring and retaining the employee. Such trial tactics are used because they work. The defendants will get a new trial. We expect the second trial on damages without those tactics being available will not have much steam.

We are late on this one. We try and discuss cases within a week of their appearance, but sometimes we miss our deadline. Developer and Pima County disputed who was entitled to an environmental enhancement fee charged to guests at the Starr Pass Resort.  The opinion is interesting for its guidance on what extrinsic evidence may be considered on a motion to dismiss. If the motion will be converted to a motion for summary judgment under Rule 12(d), this does not mean the defendant must then answer and discovery proceed.  Under 12(d), a trial court has considerable discretion in providing “a reasonable opportunity to present all the material that is pertinent to the motion.” This does not “compel courts to require an answer, discovery, or statements of fact.” If a party needs some discovery, then the party should follow the requirements of 56(d). The court of appeals affirmed the trial court’s reasoning rejecting the defunct developer’s claim to the fees instead of the buyer who purchased the property at a trustee sale. All of this goes back twenty-five years. Like Jarndyce v. Jarndyce, this case does not want to end until the last hope dies, and there are no more fees to earn.