Arizona

Recently, the Arizona Court of Appeals issued several decisions of interest to insurance companies and those litigating in Arizona state court.

Industrial Commission of Arizona – Special Action

Aguirre v. The Industrial Commission of Arizona, et. al., No. 1 CA-IC 17-0017 (December 4, 2018)

Gilbert Aguirre, Jr. was a firefighter for the City of Goodyear. As part of his annual employment physical, he received a blood test which came back abnormal. Soon after, he was diagnosed with chronic myeloid leukemia. Aguirre filed a workers’ compensation claim which was denied by CopperPoint American Insurance Company (“CopperPoint”). Aguirre requested a hearing in front of the Administrative Law Judge (“ALJ”). Aguirre and two physicians testified at the hearing. Following the hearing, the parties filed simultaneous post-hearing memorandum. The ALJ stated he was more persuaded by CopperPoint’s memorandum and concluded Aguirre “failed to carry his burden of proving by a reasonable preponderance of the evidence that he sustained a work related injury on May 14, 2015.”  Aguirre appealed.

Anderson, et. al v. Esbacrosa, Inc., No. 2 CA-CV 2018-0057 (October 24, 2018) – Memorandum Decision

Kristopher and Angelique Anderson took their son, Cooper Anderson (collectively “Andersons”) to Colossal Cave Mountain Park (“Park”) operated by Escabrosa, Inc.. The reception area to the Park serves as the entrance for cave tours. A half wall separates the reception area from the open desert and a rock formation is located within the walls of the reception area. While visiting the park, Cooper Anderson was bitten by a juvenile rattlesnake hiding within the rock formation. The Andersons sued Escabrosa under a negligence cause of action for allowing on its property “an unreasonably dangerous condition that it knew of or should have known of: a juvenile rattlesnake.”

Recently, the Arizona Court of Appeals issued several decisions of interest to insurance companies and those litigating in Arizona state court.

“Relative Resident” Policy Interpretation

Allstate Vehicle and Property Ins. Co. v. Sela Maile, No. 1 CA0CV 17-0723 (Ariz. App. October 18, 2018) – Memorandum Decision

Allstate Vehicle and Property Insurance Company (“Allstate”) insured a home owned by Amelia Maile. The home caught fire on August 19, 2014. Amelia’s son, Benjamin, lived in the home with his wife, Sela, and their son, Sevod. Benjamin suffered severe injuries from the fire and died. In March 2016, Sela demanded coverage under the policy for claims relating to bodily injuries she suffered in the fire and for Benjamin’s wrongful death. Allstate filed a declaratory relief action alleging it had no duty to defend or indemnify either Amelia or Samisoni, Amelia’s son, against Sela’s claims. Neither Amelia nor Samisoni responded and the court entered default on August 30, 2016. Allstate then moved for summary judgment to preclude Sela from pursuing coverage under the policy. Allstate also asserted the policy did not provide coverage because Sela and Sevod were “resident relatives” of Amelia at the time of the fire.

In Ryan v. Napier, No. CV-17-0325-PR (August 23, 2018), the Supreme Court of Arizona evaluated whether a claimant can assert a negligence claim based solely on an officer’s intentional use of physical force.

Plaintiff Brian McDonald was driving his car in Tucson, Arizona at night when he swerved into oncoming traffic, nearly colliding with a police patrol vehicle. The police officer, Deputy Matthew Dixon, gave chase and called for assistance. McDonald pulled over before hitting strategically placed traffic spikes. Dixon demanded McDonald show his hands and throw the car keys through the window. McDonald did not respond. Deputy Joseph Klein and his police dog, Barry, arrived at the scene. Klein warned McDonald the dog would be unleashed unless McDonald started talking. McDonald rolled up his windows and drove towards the spikes. Deputies again gave chase. McDonald drove over the spikes, hopped a curb and stopped. McDonald exited the vehicle and walked around the back toward the passenger’s side. When McDonald reached the passenger’s side of the vehicle, he stopped and put his hands on the roof of the car. The instant before McDonald’s hands hit the roof of the car, Klein intentionally released Barry. Barry bit McDonald’s leg and held onto it between 25 and 38 seconds until Klein ordered the dog to release. McDonald suffered severe injuries.