Billboards exist because they work.  (Lawyers use most of the available billboard space, and lest we forget, in 1977 Arizona lawyers John Bates and Van O’Steen brought lawyer advertising to a billboard near you.) The Arcadia Osborn Neighborhood and several of its members filed a special action against the City of Phoenix Board of Adjustment after the Board granted permission to Clear Channel to relocate three billboards onto the facade of a new building and make two of the billboards digital.  The central issue is whether the local neighborhood or any of its members has standing in court to challenge the Board’s decision.  The trial court said no, and the court of appeals agrees.  Generalized concerns of traffic safety and loss of aesthetic values are not sufficient for standing under either state or federal law. The court distinguishes and limits the holding in Scenic Ariz. v. City of Phoenix Bd. Of Adjustment, finding that decision relied upon the Arizona Highway Beautification Act. The Scenic Act situation is different because that billboard was subject to a specific statute, and these billboards are not. The court of appeals discusses representational standing, direct standing, and holds the basic premise of general public harm is not enough for standing. It is unclear, aside from scenic highways, what will be enough to provide standing. Cf., Johnson v City of Grants Pass, 50 F.4^th 787 (9^th Cir. Sept. 28, 2022 (holding class representatives have standing to challenge City’s anti-camping ordinance and, according to a dissent, giving license to lawlessness and the surrendering of parks and sidewalks to homeless camps). Moreover, adding a request for relief under the declaratory judgment action statute does not convert this special action into something else over which the court can control the Board.   Although billboards may be a minor problem when compared to the deterioration we see on our streets, we end with a few words from Ogden Nash.

I think that I shall never see,

A billboard lovely as a tree.

Perhaps, unless the billboards fall,

I’ll never see a tree at all. 

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Personal injury settlements are personal and not community property unless the settlement includes damages for economic losses such as earnings or loss of consortium damages.  Husband had an unnecessary pacemaker surgery.  Husband and wife filed suit against the doctor, hospital, and pacemaker manufacturer and recovered $2 million in compensatory and $5.4 million in punitive damages against the pacemaker manufacturer.  (The trial court reduced a $60 million award for punitive damages.)  Case then settles for $6.6 million of which $2.2 million was attributable to personal injuries. (We round out these numbers but wonder how $2 million in compensatory damages became $2.2 million. The court also notes the math does not add up and $1.2 million is missing.)  Most of the funds were used to fund an annuity, and we guess this was structured to avoid taxes. Wife then files for divorce and argues she is entitled to some of the monies not specifically attributable to husband’s personal injury.  The annuity payments went to husband during his lifetime and then to wife for her lifetime.  When payments were made before the divorce, the funds were placed in a joint account. Husband argues the monies are all his as his wife’s interest in the funds was contingent upon his death and this arrangement was a postnuptial agreement. The court holds the underlying settlement agreement with the manufacturer does not provide a specific allocation of the settlement monies and the annuity itself is not a postnuptial agreement. The case is sent back to the trial court, and if the trial court cannot allocate, the court should go with the presumption of community property. We expect an actual settlement agreement between the two will happen before then.  As for the larger question as to whether punitive damages are community or separate property, the suggestion is to closely at the compensatory damage award and go from there. One point on style: Justice Montgomery’s use of footnotes is distracting and raise questions the court is not answering. The footnotes may be there to swat away the flies, but they cause our minds to wonder where they will land.

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The UIM statute, A.R.S. 20-259.01 was the topic of the last post, and now Division 1 has weighed in on whether an insurer can exclude an accident caused by an off-highway vehicle.  Plaintiff passenger was riding on an ATV on the dunes outside of Yuma when it rolled.  Passenger collected from the driver and then demanded UIM coverage from her insurer State Farm. State Farm’s policy states an “underinsured motor vehicle” does not include an offroad vehicle (nor is such coverage required under Arizona’s Financial Responsibility Act). State Farm argued the UIM statute does not compel coverage for vehicles that are not operated on the highways. Because there is case history agreeing with State Farm but involving uninsured motorist claims, the court distinguishes UM cases because the statute says UM coverage is “subject to the terms and conditions of the policy” and such language is not included when the legislature defined UIM coverage. The court gives us a side-by-side comparison of the UM/UIM statute while informing us the UIM coverage refers to an “accident” without reference to a motor vehicle at all. The court ascribes the difference in language as especially meaningful. The court backs up its analysis by quoting the overly broad statement in Cundiff that there are no exceptions to UIM coverage (except stacking as we discussed last week). The court rules for the insured but agrees with the dismissal of her bad faith claim which was tacked on the coverage claim and undeveloped in the trial court. This statute has been a favorite at the legislature, and we will see if the Fifty-sixth Legislature is inclined to correct such interpretations.

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