Another neighborly dispute. A neighbor sues her neighbors for making too much noise. She cites the CC&Rs and requests fees but then loses at a bench trial. The neighbors then demand their fees. Although there is a clause in the CC&Rs prohibiting noise and a separate clause allowing for attorney’s fees, the essence of the claim is a nuisance tort. No one receives fees in tort actions, and one cannot contract around common law. The court provides a good review of Barmat and prior cases under § 12-341.01 to emphasize that fees are authorized only when the tort could not exist but for the breach of contract.

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The Arizona Supreme Court interprets an insurance clause for non-owned vehicles. Under the policy, an employee operates a non-owned auto “in connection with your business” when using the vehicle while engaged in the employer’s business. To qualify, an employee’s use of a vehicle must be directly involved with, or in furtherance of, an employer’s business purpose and does not include a routine commute to or from an employer’s office. The court states this interpretation is something less than “course and scope,” but doesn’t that depend on how one defines “course and scope”?

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In a criminal case, our supreme court determined that the surviving half-sister of a six-year-old murdered by another family member can request restitution for his loss of earnings. Quite absurd. The reality is that the young child had no loss of earnings before or after his death. While we are all sympathetic to victims, no need to defy reality. The law has always made a distinction in civil cases between estate claims under the survival statute (economic losses end with death) and the wrongful death statute (beneficiaries can claim their own personal economic losses). The rules may be different in a criminal case with restitution under victim’s rights but one can only guess why. Since we celebrated Shakespeare’s birthday last week, reading this opinion brought to mind Henry V and the Archbishop’s speech on Salic law.

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