Pinal County v. Fuller (CA2 8/28/18)

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Yet another notice-of-claim case. Its unfortunate that these still happen.

Plaintiff’s notice of claim against Pinal County was signed by Plaintiff’s lawyer. The county denied it; Plaintiff filed suit. The county moved to dismiss because the statute requires that the notice be “executed by the person [bringing the claim] under penalties of perjury.” The trial court denied the motion but ordered Plaintiff to comply with the statute, which it then did. The county filed a special action anyway.

The Court of Appeals accepts it and grants relief. A mere signature, even by an attorney, is not execution under penalty of perjury. It does not constitute “substantial compliance”; those cases involved notice — the government had actual notice even though the notice was addressed to the wrong bureaucrat, for example — and, anyway, the idea of substantial compliance has “effectively been superseded by more recent decisions requiring strict compliance.”

What if the lawyer signs under penalty of perjury? The court raises the issue even though the parties didn’t — and for that reason declines to answer it. One assumes that there was a point to the footnote other than allowing the court to pretend to superior intellect; it would be interesting to know what the court imagines that was.

Plaintiff also argued that the county was estopped because its denial of the claim didn’t specifically mention the signature issue. “We assume, without deciding, that it is possible for a county to waive noncompliance . . . based on its prelitigation conduct” but “courts are not inclined to find estoppel based on government conduct.” Finding estoppel would shift the burden of compliance from the claimant to the government, which is — citing a passage we cited from Yahweh — “not duty-bound to assist claimants with statutory compliance.”

“[W]ith so many notice-of-claim cases on the books now, if you have to argue waiver then you made a mistake. Trying to cut corners on this statute is the sort of thing you could end up telling your carrier about some day.” That’s not the court — that’s us, four years ago.

(Opinion: Pinal County v. Fuller)

 

 

Ryan v. Napier (8/23/28)

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We blogged the Court of Appeals’ opinion here; go there for the facts.

The Supreme Court vacates that opinion, reverses, and remands. “[W]e conclude that negligence and intent are mutually exclusive grounds for liability.”  “It follows that if a defendant acts with the intent to cause a harmful or offensive touching (battery), that same act cannot constitute negligence.” Neither negligent use of intentional force nor negligent evaluation of whether to use force is a tort.

The trial court should have granted the defense motion for summary judgment on negligence. Treating it as an an intermediate order affecting the judgment, the court remands for its entry.

The court also addresses other issues “to provide guidance.” Since they’re dicta the guidance value is not entirely solid; the court seems drawn to comment on them because the parties briefed them, which is the cart pulling the horse. In any event, the court says that the jury shouldn’t be instructed on 13-409 (defense of justification regarding arrest or escape) in a negligence case and that when it is used in a civil case the defendant bears the burden of proving it. And the court agrees with Judge Espinosa that expert witnesses shouldn’t purport to tell the jury what the legal standards for justification are.

(Opinion: Ryan v. Napier)

Fisher v. USAA (CA1 8/7/18)

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On the requirement of timeliness when challenging an arbitration award.

Claimants in a UIM arbitration suggested an arbitrator but apparently discovered after the carrier agreed to him than he also did arbitrations for another law firm that represented that carrier. But they raised no objection, went to arbitration, and lost. Following unsuccessful post-hearing motions with the arbitrator, they filed in court to vacate the award and to obtain discovery on the arbitrator’s alleged conflict of interest. The trial court denied the motions. (We have condensed the facts a bit, omitting an intriguing but irrelevant disagreement between the claimants and their original lawyer and making a small guess about what and when the claimants actually filed in court, the description of which lacks clarity and consistency.)

The Court of Appeals affirms, ruling that the claimants waived the objection. The statute (12-3001 et seq.) provides that an arbitrator must disclose conflicts and that an award can be set aside for failure to do so. But comments to the Revised Uniform Arbitration Act, on which our statute is based, say that objection must come “within a reasonable period after the person learns or should have learned of the undisclosed fact.” “We agree that parties who know or have reason to know of possible partiality must raise an objection with the arbitrator during the course of the arbitration proceeding.”

The claimants tried reverse the burden of proof by invoking a presumption of partiality. The statute provides for that if the arbitrator does not disclose a direct interest in the outcome of the case or a substantial relationship with a party. But no interest in the outcome was alleged and working as an arbitrator for another firm that represented a party is not a substantial relationship with that party. “When a party challenges an arbitration award, the burden is on the moving party to prove that grounds for vacating the award exist.”

Waiver of the claim having “extinguished the pending action connected to the discovery request,” the court expressly declines to rule on the denial of that request.

(Opinion: Fisher v. USAA)