The Arizona Legislature jumped on the bandwagons driven across the country extending statute of limitations for sexual abuse claims. In 2019, Arizona extended the statute of limitations to twelve years, and the legislature created a window statute for certain otherwise time barred sexual abuse claims. As the window statute was closing at the end of 2021, Boyd filed a notice of claim against the State for sexual abuse by a former female corrections officer in 2001.  He included additional claims against other State employees for threatening him not to “make up any lies” about the correctional officer. A few days after filing his notice of claim, he filed his complaint because the window was closing. The complaint was timely; the issue is whether he could file his complaint before the notice of claim expired, and when his cause of action accrued under the revival statute. The State argued the claim accrued when the legislation enacted the new law. The court holds the window revival statute’s phrase “notwithstanding any other law” means notice of claim accrual is irrelevant. Because Boyd filed his complaint before the window closed, his only obligation was to file a notice of claim first and then a complaint. The court sees the law differently from another panel which held otherwise in a memorandum decision a few months back. The court assures us trial courts should make certain the 60 days remains open if a lawsuit is filed before the 60 days has expired. We now have conflicting decisions from Division One. Although the revival window is closed, we will see if the Arizona Supreme Court decides to review the prior case, this one, or perhaps one of the other lawsuits challenging the revival statute at its core. After all, we know where bandwagons end up.

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Holding: A lienholder is entitled to collect under an auto policy with a standard loss-payable clause despite the insurer rescinding the policy because of the insured’s misrepresentations. But no one knows whether this insurance policy between the lienholder and insurer includes such a clause. When the lender filed this declaratory judgment action, the lender did not include the policy. The trial court dismissed the case on a motion to dismiss and cited a rescission letter attached to the insurer’s opposition.  No, procedurally one should not do this, and a court should not use such evidence without this becoming a motion for summary judgment.

No one seems to be thinking. This opinion is a reminder to read the policy. And, if you are filing a case dispositive motion, follow the rules. This embarrasses everyone when the court must re-educate attorneys on motion practice.

We are late on this one. When we initially reviewed this, our frustrations caused us to set it aside for several weeks.  The Arizona Supreme Court holds an institutional negligence claim against a prison medical contractor does not have to meet A.R.S. § 12-2604(A) expert standard of care requirements for a medical malpractice case.  This statute references individuals including a “health professional,” “specialist” and “general practitioner.” Institutional negligence does not fit this expert requirement (only an expert within the same specialty is qualified to testify) although the medical contractor (Corizon) acted through individual employees. When there is a “class of providers” and “when it is unclear which provider breached the standard of care, an expert on institutional standards of care may address an alleged breach by establishing that a class of providers failed to exercise appropriate care.” There is enough expert testimony here on causation, and the court points to failures by both nurses and a physician. In addition to potential vicarious liability, on institutional negligence, there is a CMS standard for a prison infirmary, and standards for charting and record keeping. The opinion ends with stating a nurse may be qualified to give causation testimony under Ariz.R.Evid. 702. But, the trial court will have to look at this first.

Some of our frustrations: Why refer to the decedent by his first name and explain this with quotes inside a parenthetical? Easier to refer to decedent by his last name and refer to plaintiffs as plaintiffs. We will not be confused, and we advocate getting away from first names. Second, take a red pen and cross out all the unnecessary surplus words and prepositional phrases. Third, do we need two dictionary definitions for a general practitioner?  Fourth, is anyone proofreading? CMS is an acronym for the Center for Medicare and Medicaid Services not “Medicine and Medicaid Services.” Finally, this opinion is a maze with sentence interruptions, citations to other parts of itself, and surplus references to other cases; Thompson, for example.  Justice Beene uses phrases and headings to give direction but doing this does not make it any better. Take all of this out, and what is left may be a more coherent opinion.

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