It is good that we live in enlightened days when courts have recognized the true purpose of the legal system.

Woestman and Bryan were in a car accident. Bryan hired a lawyer and sued Woestman. Then Bryan, in an apparently-unrelated criminal matter, was declared incompetent. His lawyer had a guardian ad litem appointed for him. Then he left Arizona and they lost track of him. So they moved to appoint a conservator for him on the theory that he had “disappeared” under the conservatorship statute. The trial court granted the motion. On Woestman’s appeal, the Court of Appeals affirms.

Preliminarily, Woestman argued personal jurisdiction. The statute requires that Arizona be the ‘home state” or one with which the protected person has a significant connection. The court holds it a sufficient connection that Bryan had an accident here, hired a lawyer here, and has a sister who lives here.

It seems that the principal question was whether this was a “disappearance.” The argument on Bryan’s side was that it was enough that they didn’t know where he was. Woestman argued that they should have to prove that “the person’s whereabouts are unknown to the person who would be most likely to know the person’s whereabouts.” (Does that mean that nobody asked the sister where Bryan was? Did she not want to say? Were Bryan’s lawyer and guardian not overly motivated to find him? We don’t know.) Woestman’s argument comes from Black’s Dictionary. The court uses Webster’s, which doesn’t contain the person-most-likely-to-know part. Because the statute’s purpose is to protect property, “whether individuals unknown to the court know of the person’s whereabouts does not diminish the court’s duty to appoint a conservator.” (So the test is whether the judge knows where the guy is? Aren’t lawyers, in every other conceivable circumstance, required to make reasonable effort to find people? Isn’t asking the person most likely to know the very minimum of reasonable effort? Did the legislature really mean to include carefully-nurtured ignorance as “disappearance”? How does it effect any purpose of justice to appoint a guardian for someone who could be found just by asking?) 

Those who don’t do much personal-injury work may wonder what the point of all this is. Well, we don’t know this case but we can draw  conclusions. In the old days, losing a plaintiff meant that the claim went away. Now it means that the court can appoint a conservator so that the lawyer can keep the claim going and, with the conservator’s approval, settle it, whereupon various people can take fees from a client who never gets anything. (Because the lawyer has no client to present to a jury this dodge won’t work well every time. But we’ve all known plaintiffs whose lawyers would have much preferred to “disappear” them.)

(link to opinion)

THIS OPINION HAS BEEN VACATED

[LATER NOTE: This opinion was re-issued on October 1, 2015; the new opinion appears to be almost identical to the old]

Discussing the time for filing a doctor’s lien. This won’t interest those members of the health care professions who file liens approximately 37 seconds after the patient walks though the door, which is after the patient’s lawyer signs a contract agreeing to pay fees that will never actually be charged the patient. But it may be useful to those who don’t specialize in treating “accident victims.” We’re just going to report this one, not editorialize.

Navarro’s auto insurer settled a claim against her arising out of an accident but for reasons unexplained neither it nor the claimant paid one of the doctors. So the doctor, who had filed a lien, sued Navarro to enforce it. Navarro argued that the lien was untimely. The doctor treated from June  to October and filed the lien in September; the statute says it must be filed “before or within thirty days after . . . any services” relating to the accident. Navarro argued that this means within thirty days of the first service; the doctor argued that it means within thirty days of the last. The trial court agreed with Navarro and dismissed the Complaint.

On appeal, the Court of Appeals doesn’t agree with either side and meanders its way to a middle ground. The statute can’t mean last service because the hospital-lien statute allows a lien to be filed after discharge whereas this statute says “before or within thirty days” so there must be a difference, therefore only hospitals can file after the last service. And it can’t mean first service because it doesn’t say “first.” So the statute means this: a doctor’s lien applies to services rendered within the thirty days previous to its filing and to all services thereafter.

Under that theory the doctor’s lien did catch some of the services so the court remands.

Well, maybe we’ll editorialize a little. Is the result correct? Possibly. But what a heckuva way of getting  there. If the absence of “first” is determinative of Navarro’s argument then why isn’t the absence of “last” determinative – or even worth mentioning – regarding the doctor’s argument? Especially when the essence of your own argument is that the statute can’t mean first or last because it doesn’t say “first” or “last”? And why does the hospital statute make its procedure exclusive? What – other than assuming that conclusion – suggests exclusivity? Aren’t there differences between doctors and hospitals? Aren’t the parties right – isn’t the question here what “any” means? Does the opinion largely read that word out of the statute?

(link to opinion)

The court denies “cross-jurisdictional tolling.”

Plaintiffs’ investment failed. Other investors filed a class action in federal court; when it eventually settled these plaintiffs opted out. But in the mean time the statute of limitations against the law firm that had written the offering materials had expired. They sued it anyway, arguing that the statute was tolled during the time they were members of the class. The trial court dismissed. The Court of Appeals affirms.

Plaintiffs argued that Arizona should adopt “cross-jurisdictional tolling,” which means that a class action filing in another jurisdiction can toll the statute. They began by arguing that Arizona has already adopted “inter-jurisdictional tolling,” i.e., an attempted class action in the same jurisdiction tolls the statute until class status is denied. The U.S. Supreme Court adopted that in a case called American Pipe but not all the states have. Arizona cases have referred to American Pipe a few times and one case, to decide a certified question from the Ninth Circuit, assumed that it would apply. But the Court of Appeals points out that even that case expressly did not decide whether it actually does. And it wouldn’t apply even if Arizona had adopted in since in this case the class action was certified as such and was a federal case, not one in this jurisdiction.

The jurisdiction problem is solved by cross-jurisdictional tolling, which some states have adopted. But none of those states has applied it where certification was granted.

Plaintiffs cite some federal cases in which allowed tolling even though certification was granted but the court distinguishes them because the federal system lacks a savings statute. Arizona has one, which both parties said doesn’t apply. “[B]y enacting this general Arizona savings statute, the Legislature adopted a form of cross-jurisdictional tolling, just not in the form Appellants claim should apply to their claims here.” In other words, the tolling statute can apply to filings in other jurisdictions but doesn’t include class actions. The court declines to read class actions into the statute; the wording isn’t there and the statute “involve[s] ‘very delicate policy decisions that properly belong to the legislative branch of government.’”

The analysis isn’t the best organized we’ve seen but generally gets the job done. What we’re not clear on is the court’s attitude toward the savings statute. The court says things apparently intended to imply – or that in any event do imply, whether intended or not – that the savings statute as written would indeed apply, that this opinion should not be read as authority that it doesn’t, and that what the plaintiffs are losing is their argument that something new needs to be added to Arizona law. If so, we applaud the court for limiting the analysis to the argument.

(link to opinion)