Doneson v. Farmers Insurance (CA2 10/3/18)

This little insurance case is interesting mostly for its reminder about the parol evidence rule. It has also that rarest of things, a good footnote.

Plaintiff was injured in a car accident. Workers comp paid part of his medical bills but he had to repay that amount, per the workers comp statute, when he recovered from the third-party tortfeasor. He sought med pay from his own carrier, Farmers. Farmers denied the claim because its med pay provision excluded “bodily injury . . . during the course of employment if workers’ or workmen’s compensation benefits are required.” Plaintiff sued, arguing that since he had to repay the benefits they were not “required.” The trial court granted Farmers’ motion to dismiss. Plaintiff appealed.

The Court of Appeals affirms. It concludes that the policy language is not reasonably susceptible to Plaintiff’s interpretation. Plaintiff had a Nevada case dealing with an exclusion that covered workers comp “to the extent . . . required to be payable” by concluding that “payable” was ambiguous. But Farmers had a California case in which the exclusion said “payable or required to be provided” concluding that while “payable” alone might be ambiguous, “required” was not.

Plaintiff also argued that the trial court should have considered parol evidence. But under Taylor (1993) “the party seeking to introduce extrinsic evidence must show that the language of the contract is ‘reasonably susceptible’ to their proposed interpretation.”

There is one footnote in this opinion and, while we normally dislike them, this one is appropriate. Plaintiff tried to cite a trial court ruling in another case. The footnote points out that it “has no precedential value and we disregard it.” A slap on the hand is warranted but has no proper place in the text, thus the footnote.

(Opinion: Doneson v. Farmers)


Cook v. Grebe (9/11/18)

This little case, in addition to illustrating practice pointers about fee requests that apparently need  illustrating, is an example of how judicial fashion changes. Thirty years ago this opinion might have been tossed out in three pages, especially in Division Two. Ten years ago it would have taken twelve. This year it takes just over six, which is about right.

Plaintiff claimed adverse possession and also sued for a private nuisance. Defendant counterclaimed to quiet title and also alleged conversion, unjust enrichment, and trespass. Defendant won the adverse possession/quiet title issues, Plaintiff the rest.  (One of the ways the opinion saves space is to omit the underlying facts. They have nothing to do with the issue on appeal but even a few years ago that would not have prevented a factual recitation equally lengthy and useless.)

Defendant then moved for an $82,000 fee award under 12-1103 (quiet title). Plaintiff objected, arguing that Defendant wasn’t the prevailing party — that the case was basically a “draw” — and that she shouldn’t recover fees for claims Plaintiff won. The trial court found Defendant entitled to fees under 1103 and awarded $50,000.

The Court of Appeals affirms. Under 1103 “the determination of who is the prevailing party . . . turns on whether a party successfully quieted title, regardless of whether claims that do not involve quieting title are included in the same lawsuit.”

Now the practice pointers.  Fees under 1103 are discretionary — but the court notes that Plaintiff didn’t argue that. His argument wasn’t that, even if Defendant were the prevailing party, the trial court should use its discretion under these circumstances to deny fees.  (Is the court’s mentioning this the sort of we’re-smarter-than-you comment that we complained about the other day? Not really; the case discussed the court’s discretion and it’s fair to mention that the full extent of that discretion was not requested. And the court’s comment was, perhaps deliberately, worded in a slightly elliptical fashion.)

Instead Plaintiff argued vaguely that the amount of the request was unreasonable, without analyzing Defendant’s China Doll affidavit and pointing out which fees were unreasonable or unrelated to quiet title. Defendant showed nothing in the record to indicate that the trial court abused its discretion.

Of course the fact that the trial court awarded only about 40% of the requested fees killed this appeal once the prevailing-party issue was decided. What did Defendant say about that reduction? More of the above but also that it was arbitrary because “neither party argued for a 40% reduction.” Which adds a final practice pointer: any ill-considered idiocies floated in your brief or at oral argument will quite likely be used against you in an appellate court of law.

(Opinion: Cook v. Griebe)


Stair v. Maricopa County (CA1 9/4/2018)

Plaintiff’s decedent, an apartment manager, was shot by a member of the Mexican Mafia when he happened to walk into an empty apartment where the shooter was hiding. The shooter was awaiting trial for multiple felonies but had taken off his ankle bracelet, gotten a sawed-off shotgun, and gone back to working with the gang. It turned out that various organs of government, mentioned below, knew all this but had done nothing about it, so his wife sued them. The trial court dismissed, concluding that there was no duty.

The Court of Appeals affirms.

Most of the opinion deals with the claim against an employee of the Legal Defender’s office — a “mitigation specialist” — who, at the request of the jailed Mexican Mafia member with whom she was having an affair, had bailed the shooter out of jail and who was helping to coordinate his mission, which was to be a gang enforcer. Plaintiff argued, and the court agrees, that the various statutes against gangs announce a public policy against them. But she only pled guilty to one of those statutes and the court says that the ones she didn’t violate can’t create a duty for her. The one she did violate prohibits promoting or furthering the “criminal objectives of a criminal street gang.” But this murder wasn’t a criminal objective of the gang since it was just a “tragic random act of violence,” not something directed against a gang enemy. So, the shooter’s job was to shoot people but the person he shot was not a person who’s job his was to shoot so the statute announces no policy against the shooting. Because the legislature wanted to protect innocents caught in the crossfire of gang hits but not innocent but intended non-gang victims of gang enforcers.

Plaintiff also argued that a duty was created by the code of ethics of something called the National Alliance of Sentencing Advocates and Mitigation Specialists. But Arizona apparently hasn’t adopted the code and the court says it creates no duty to third parties anyway. (One of the advantages of the civil practice is unfamiliarity with the pseudo-professional bureaucrats who have attached themselves like barnacles to the criminal side of the profession. Apparently mere defense lawyers can’t be trusted to advocate for sentences or know about mitigation. In fairness to the bureaucrats, though, the court mentions in passing their advantage — other than saving money on lawyers’ salaries — to the prosecutorial apparatus: the lawyers’ rules of ethics don’t apply to them.)

Plaintiff argued that Restatement (Third) §7 created a duty. So the court stayed this appeal pending the Supreme Court’s opinion in Quiroz, which “plainly reject[ed] the approach to duty represented by §7.” And the relationship between the bureaucrat and the shooter was not the type of “special relationship” — e.g., parent-child, employer-employee — to trigger liability under Restatement (Third) §41.

So much for the employee. Plaintiff argued that the Legal Defender’s office itself owed a duty based on various ERs. But no “ethical rule supports imposition of a duty of care owed by a law firm to a non-client. Moreover, the supreme court’s preamble to the Rules of Professional Conduct specifically instructs against imposition of a duty based on the rules.”

The Sheriff’s office and the Police Department were also defendants because they also knew about the shooter’s activities before the murder. Plaintiff cited Austin (1984), in which a 911 caller had warned that a particular man at a particular place might be murdered; he was, and the Supreme Court reversed a directed verdict against his estate. But no case establishes a duty “to prevent a random act of violence such as that which happened here.” The “random act” language may seem to conflate the gang-statute analysis with the Austin analysis but the court’s point is that detailed knowledge of a victim can create a duty to him but detailed knowledge of a criminal can’t create a duty to any one person.

Finally, the court affirms the trial court’s denial of leave to file a third amended complaint, on the grounds that the amendment wouldn’t have made a difference. §12-820.05 provides that government isn’t liable for its employees’ felonies unless it knew of the employee’s “propensity for that action.” Plaintiff wanted to allege that a supervisor knew of the employee’s affair with the jailed Mexican Mafia member. The court says that the statute does not establish a duty but instead carves out an exception to the rule of governmental immunity.

(Opinion: Stair v. Maricopa County)