Ballesteros v. American Standard Insurance Co. (CA2 12/23/09)

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THIS OPINION HAS BEEN VACATED

 

Automobile insurers must, by statute, offer uninsured and underinsured coverage. The cases have said that the offer must be reasonably calculated to come to the insured’s attention. Ballesteros claimed that American Standard’s offer wasn’t because its UM/UIM offer form was in English and his “primary language” is Spanish. This was an attempt at a class action but the trial court denied certification. It did, however, grant Ballesteros summary judgment on the merits, from which American Standard appealed.

The statute (29-259.01) says that “The selection . . . or rejection of [UM/UIM] coverage by a named insured or applicant on a form approved by the director [of the Department of Insurance] is valid for all insureds under the policy.”   American Standard argued that this created a “safe-harbor,” that because its form had been approved by the director it was adequate as a matter of law. Ballesteros argued that it simply means that if the form isn’t approved then the selection/rejection isn’t binding. The Court of Appeals punted, deciding that even if the safe-harbor “generally exists” it is “not absolute.” In other words, its a safe harbor with reefs and sandbars, which might strike you as somewhat of a contradiction.

American Standard contended that the legislature inserted the quoted language into the statute specifically for the purpose of creating a safe-harbor. This was based on legislative history. But the legislators themselves didn’t expressly and exactly say that. A bunch of people who testified at the relevant committee meeting apparently did, though the opinion carefully avoids telling us what they said; in any event, they were merely “nonlegislators” whose statements (quoting from earlier cases) “are not persuasive evidence of legislative intent ‘unless the circumstances provide sufficient guarantees that the statements reflect legislators’ views.’” “We do not find such indicia of reliability here,” says the opinion. From what little we are told, this apparently means that the legislators themselves didn’t say on the record the things the non-legislators were said to have said, whatever they were.

American Standard then pointed out that the Department of Insurance had in various ways at various times said that use of an approved form satisfied the requirements of the statute. The court admitted that that was true but said that this missed the point, which was not “whether the specific contents of the form offered to Ballesteros contained the appropriate information” but “whether the offer was provided to Ballesteros in a way that reasonably could apprise him of what it contained.” In other words, the question was not whether the American Standard presented appropriate information but whether it presented information that was appropriate. This is the sort of thing that passes for sophisticated analysis in many insurance opinions, especially when trying to escape the fact that they disagree with both other branches of government.

The court ended up deciding that by using an approved form the insurer “facially” complies with the statute but must do more when it “knew or should have known” that the form was insufficient “because the insured could not read it.” The intriguing idea of “facial compliance” with a statute lends itself to more ironic comments than we have space for at the moment. In any event, it isn’t clear why the courts logic (let’s be generous and call it that; its the Holiday season, after all) is limited to Spanish-speakers who can’t read the form. What about any other language? What about people who the insurer “should have known” had intellectual limitations or emotional problems or forgot their reading glasses that day or endless et-ceteras?

In this case, what more should American Standard have done? It need not, the court held, have provided him with a form in Spanish (so much for any lingering hope of an easy, effective class action). But the insurer is required “to take action reasonably calculated to inform the insured of the written offer’s contents.” As a practical matter, of course, this means using a form in Spanish after all (as some insurers already do), in order to avoid endless disputes about how good some insured’s English was or how good some agent’s Spanish was or whether anything in any language was ever said at all.

And those were issues in this very case, so the court remanded for trial of whether American Standard had done enough to help Ballesteros in Spanish and/or had known how bad his English was and/or etc.

Trombi v. Donahoe (CA1 12/23/09)

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We are of two minds whether to review this one. It is part of the war between the judiciary and the Sheriff in Maricopa County, a disgusting and degrading spectacle we would rather avoid. But the case is interesting and contains a useful summary of the law of contempt.

Basically, the Maricopa Count Superior Court was upset that the Sheriff wasn’t bringing prisoners to court on time. The court ordered Trombi to appear before the criminal presiding judge to show cause in about thirty cases. Trombi is apparently the guy nominally in charge of transporting prisoners (as much as we complain about excessive recitation of facts, in this opinion some of them seem to have been elided). The judge found Trombi in contempt. It ordered him to pay certain sums to the defendants, defense attorneys, prosecutors, and jurors in about 25 cases; it also ordered him to pay the court $2000 unless the Sheriff’s office signed an agreement by a certain date promising to bring all the prisoners on time.

Trombi petitioned for Special Action. The Court of Appeals affirmed the contempt but struck all but one of the sanctions.

Trombi’s first argument was based on a comment the judge made at the hearing rather than on his order. This seems consistent with the quality of argument generally displayed in the case, at least from reading the opinion. The judge had said ““I’m alerting you to the fact that all the judicial officers have been instructed if they don’t get – if the defendants are unreasonably late or if they don’t get transported at all, to issue an order to show cause.” The Court of Appeals backhandedly acknowledged that telling other judges what orders to issue in their cases would have been an abuse of authority. Its solution was to pretend that the presiding judge’s instruction wasn’t an instruction but, instead, a suggestion.  Giving suggestions about how judges might handle certain situations is a perfectly proper thing for a presiding judge to do. While we’re not sure we would have wanted to be a judge who didn’t take this particular suggestion, the opinion’s approach was the graceful one.

Trombi next argued that the presiding judge didn’t have authority to issue contempt orders in cases not assigned to him. A case decided last year (an earlier battle in the Maricopa County Wars) held otherwise. The opinion manages to take two pages to say that.

Trombi argued that the court was violating the separation of powers by trying to “micromanage” the Sheriff’s Department. This apparently has to do with the judge’s finding that the Sheriff was deliberately not assigning enough deputies to take prisoners to court. But it has less to do with the sharp end of the order which, as the opinion points out, merely told the Sheriff to bring prisoners, not how many people to hire.

The court then addressed the contempt issues that should have been at the heart of the case but weren’t since its really all about politics. The opinion says nothing new or reportable about contempt but is now a good source for cites about it.

The opinion makes it clear that the presiding criminal judge carefully phrased his contempt order after reading up on the difference between civil and criminal contempt. Disappointingly for one’s faith in the system, or presiding judges, or something, he got it almost all wrong. Civil contempt forces a person to obey a court order and/or compensates somebody for his losses; the sanctions are paid to the claimant and must be related to the extent of the loss; the person held in contempt must be given the chance to purge himself; and the evidentiary standard is clear and convincing. Criminal contempt punishes a past act to vindicate the authority of the court, there is no chance to purge, Criminal Rule 33 must be followed, and the standard is evidence beyond a reasonable doubt that the act being punished was willful. (The opinion cites cases for all these things.) The judge phrased his order as if it were a civil contempt even though he was, at least in part, punishing past acts (as the briefs or arguments seem to have acknowledged), people to whom Trombi was ordered to pay money weren’t complainants, the amounts of money bore no relationship to the amount of their actual losses, and Trombi had no chance to purge except for the $2000. Needless to say, the judge imposed this obviously criminal contempt using the civil standard of evidence, relieving him of the burden of beyond-a-reasonable-doubt and the necessity of finding willfulness.

So, the court reversed all but the $2000 sanction, which Trombi’s lawyer agreed was a civil sanction (though how it bears a relationship to actual losses isn’t obvious).

Kaufman v. Langhofer et al. (CA1 12/22/09)

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Salty was an “intelligent, affectionate, and playful companion” — the love of Kaufman’s life, by the sound of it. Salty died allegedly because of Dr. Langhofer’s negligence, so Kaufman sued Langhofer and his clinic. The complication is that Salty was a pet bird.

Kaufman sued for the vet bill and bird’s value. He also sued for pain, suffering, loss of the bird’s companionship and society, and other emotional-loss claims. The trial court dismissed the emotional-loss claims and instructed the jury that damages were limited to the bird’s fair market value. The case was actually tried to a jury, which allocated some fault to the vet but most to Kaufman and awarded zero damages (Kaufman’s own expert testified that the bird had no market value because of a congenital heart problem).  Kaufman appealed, arguing that he should have gotten damages for emotional distress.

The opinion first takes about six pages to state hornbook law: pets are personal property, if negligently destroyed or damaged you get their fair market value or the reduction thereof. The court distinguished a grab-bag of cases (e.g., bad faith, landlord/tenant) cited by the plaintiff’s amici (PETA and other animal groups) that allowed emotional distress when various property rights were at issue; in those cases “the tortious act directly harmed the plaintiff and affected or burdened a personal, as opposed to an economic or other interest belonging to the plaintiff.” Here, the vet treated the bird, not its owner.

Kaufman next argued that even if the bird had no market value he can recover the special value it had to him. This is another hornbook theory but not one that his lawyer remembered to preserve in the trial court. The Court of Appeals pointed out, though, that “special value” for pets generally doesn’t  include sentimental value, apparently to signal that it wouldn’t have let Kaufman get emotional damages anyway.

In a footnote, the opinion then declines to address an issue raised by the amici but not by Kaufman. According to one of those rules that courts rigorously follow whenever they want to, appellate courts decide cases based “solely on issues raised by the parties themselves.”

Finally, Kaufman argued that Arizona law should be changed to allow him to recover emotional damages because “71% of dog owners and 64% of cat owners consider their pets like a child or family member.” (We know this to be true because the amici quoted a survey that said so. This is the sort of thing that passes for evidence once amici get involved; they used to call them “Brandeis briefs” when lawyers were still educated enough to know who Louis Brandeis was. Love for pets is probably subject to judicial notice but details about cats and dogs is a bit much.) In any event, the opinion pointed out that most courts haven’t bought that argument and that if Arizona were to do so then damages for the death of a pet would be broader than for the death of a person (since they would not be restricted by the Wrongful Death statute or the rules on bystander liability).

But at the end the court throws the amici a bone by mentioning that damages for a pet death might be greater if there was more than mere negligence involved. At least if its a dog; we’re not sure about cats.