EE v. M&H, WAL-MART,
Arizona Court of Appeals, Division One, decided 4/21/2015
Plaintiff was employed by Able Body Labor who supplied workers for a general contractor, M&H Enterprises, Inc, who was doing construction at a Sam’s Club, which is owned by Walmart. Plaintiff was injured on the job, successfully pursued a workers compensation claim against Able Body, and then sued Wal-Mart and M&H for negligence. Plaintiff alleged that Wal-Mart and M&H acted negligently by failing to maintain a safe place to work, free of hidden danger.
A landowner is not liable for injuries suffered by an employee of an independent contractor performing work on the property. Wal-Mart, as the landowner, did not owe the plaintiff a non-delegable duty of care because the plaintiff was working as an employee of an independent contractor at the time he sustained the injuries.
Wal-Mart’s exercise of its right to inspect during final walkthroughs to ensure compliance with the contract did not amount to taking direct control of M&H such that it retained “a right of supervision,” so Wal-Mart could not be liable on a theory of retained control.
The plaintiff was a “lent employe” of M&H and as such could only recover from M&H workers compensation benefits.
REGISTRAR OF CONTRACTORS
Pinnamaneni v. ROC, et al., 2015 WL 1611776
Arizona Court of Appeals, Division One, decided 4/9/2015
Plaintiff designed a home for him and his family to be built on property owned by his family’s revocable living trust. Plaintiff acted as agent of Pioneer Family Investments, his limited liability company, to negotiate all financial and contractual matters, including a contract with the contractor The Untouchables, Inc. Plaintiff, through Pioneer, filed a register of contractors (“ROC”) complaint against the The Untouchables. On the complaint plaintiff listed himself as the “homeowner” and Pioneer as the “company name.” Following a hearing, the ROC adopted the administrative law judge’s finding that The Untouchables had performed deficient work and should have its licensed revoked. The Untouchables subsequently filed bankruptcy and plaintiff and Pioneer filed a joint claim to recover payment from the Fund for damages incurred as a result of the deficient construction. The ROC denied the claim based on plaintiff, his family trust, and Pioneer not meeting the legal definition of a “person injured.” Plaintiff, individually and as trustee, appealed the denial to the superior court, which affirmed the ROC’s order. He then appealed to the Arizona Court of Appeals.
Plaintiff, as trustee of the family trust and occupant of the residence, qualifies for recovery from the Fund as a “person injured,” and the superior court erred by affirming the ROC’s claim denial.
UNDERINSURED MOTORIST INSURANCE COVERAGE
Newman v. Cornerstone National Insurance Co., 237 Ariz. 35, 344 P.3d 337, 338 (2015)
Arizona Supreme Court, decided March 18, 2015
Plaintiff was injured in a motor vehicle accident due to another driver’s negligence. The at-fault driver did not have sufficient coverage to pay for plaintiff’s damages. Plaintiff filed a claim with her insurer for underinsured motorist (“UIM”) coverage, but her insurer denied the claim based on plaintiff having waived UIM coverage. The insurer had offered UIM coverage on a form approved by the department of insurance, but the offer did not contain a premium quote.
The Arizona UIM statute, A.R.S. § 20-259.01(B) does not require the written notice offer of underinsured motorist coverage to specify the cost of the UIM coverage.
Boisson v. Arizona Board of Regents, 236 Ariz. 619, 343 P.3d 931 (Ct. App. 2015)
Arizona Court of Appeals, Division One, decided March 10, 2015
Plaintiff’s son, a student at the University of Arizona, died of altitude sickness while in Mount Everest base camp in Tibet, which is approximately 18,000 feet above sea level. He was visiting Tibet with fourteen other students that were in a study abroad program at the Nanjing American University (“Nanjing”) in China. The study abroad program was a collaborative effort between the Arizona Board of Regents (“ABOR”) and Nanjing. Plaintiff sued the State of Arizona, the ABOR, and Nanjing (“Defendants”) for wrongful death. The superior court entered summary judgment for Defendants on the grounds that they owed no affirmative duty of care to plaintiff’s son while he was on the student organized trip to Tibet.
The Court of Appeals affirmed the superior court’s finding that the Defendants owed no duty to the decedent while he was on the trip to Tibet. The Court’s reasoning was that the Tibet trip was conceived by exchange students who wanted to visit Mount Everest and was not for any Nanjing related purpose, Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip.
CONSUMER FRAUD ACT
Watts v. Medicis Pharmaceutical Corp., 236 Ariz. 511, 342 P.3d 847, 849 (Ct. App. 2015)
Arizona Court of Appeals, Division One, decided January 29, 2015
Plaintiff sued Medicis Pharmaceutical Corporation for injuries she allegedly suffered after using Solodyn, a prescription antibiotic used for the treatment of acne. Medicis filed a 12(b)(6) motion to dismiss for failure to state a claim, which was granted. Plaintiff filed a Rule 59 motion for a new trial, which was denied. Plaintiff then appealed to the Arizona Court of Appeals.
Plaintiff’s motion for a new trial was a time-extending motion which extended her time to file a notice of appeal, which was timely filed.
The trial court erred in dismissing plaintiff’s claim because her complaint alleged (1) that “Medicis’s promotional materials and product labeling affirmatively and falsely state that the safety of using Solodyn for longer than twelve weeks is unknown,” (2) that she relied on those statements to her detriment; and (3) that her use of Solodyn was the proximate cause of her injury. Plaintiff’s complaint adequately plead a private cause of action under the Consumer Fraud Act.
The learned intermediary doctrine, which was first recognized in 1978, is inconsistent with the Uniform Contribution Among Tortfeasors Act which was enacted in 1984 and amended in 1987 to abolish joint liability between co-defendants in most circumstances.
ABOUT THE AUTHOR: Lena Pond is a graduate of the Sandra Day O’Connor College of Law at Arizona State University. She specializes in insurance defense, insurance coverage disputes, insurance bad faith, professional liability, and general civil litigation. Contact her at 602-386-5654 or email@example.com.
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