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Opioids = Lawsuits in Mohave County, Arizona

Author: Michael McDonald

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

The nationwide opioid epidemic has hit small-town Arizona hard. On July 21, 2019, The Washington Post (“The Post”) published information from the Drug Enforcement Administration’s database that tracked sales of oxycodone and hydrocodone pills in the United States from 2006 through 2012. According to The Post, more than 76 billion oxycodone and hydrocodone pills were distributed in the US during this seven-year period, and nearly 100,000 deaths resulted from these legal pain pills.

Arizona Bans Hand-Held Cell Phone Use While Driving

Author: Amy Chambers

Guest Editor: Jillian Stanley

August 7, 2019 10:00am

In April, Arizona became the 48th state to ban texting while driving, and only the 16th state to enact a hands-free cell phone law. On April 22, 2019, Governor Doug Ducey signed HB-2318 into law banning handheld cellphone use.  This was the 12th year the Arizona Legislature considered such a ban.  Support for the new law recently increased following the death of Salt River Police Officer Clayton Townsend, who was killed by a driver who…

Arizona Case Law Update

Author: Ben Davis

Guest Editor: Jillian Stanley

August 7, 2019 10:00am

Ephraim Dabush, et al. v. Seacret Direct LLC, et al. (June 27, 2019, No. 1 CA-CV 18-0288)
Patricia McCall v. Thomas A. Arvidson, et al.
Marcie Normandin v. Encanto Adventures, LLC, et al. (May 17, 2019, No. CV-18-0200-PR)

Recent Legal Issues Involving Cosmetics

Author: Rachel Donnelly

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

In the recent past months, there have been a growing number of reports of cosmetics contaminated with asbestos. Whether ultimately accurate or not, such reports create issues relating to the manufacture and marketing of cosmetics as safe for consumers (especially teens, children, and expectant mothers). This article addresses the potential legal challenges for supply chain participants in the cosmetic industry given the increased…

Arizona Case Law Update

Author: Alice Segal

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

Dignity Health v. Farmers Insurance Company
When Bethanie Elliott, was injured in a car accident, she received medical services from Plaintiff Dignity Health, doing business as Mercy Gilbert Medical Center.  The medical services cost in excess of $160,000. As a result, Dignity Health perfected and recorded a health care provider lien for more than $140,000.  Without regard for the…

Arizona Case Law Update

Author: Alice Segal

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

Normandin v. Encanto Adventures, LLC.[1]

Factual and Procedural History

Marcie Normandin sued Encanto Adventures, LLC. and the City of Phoenix for a broken ankle and injured arm, which she received when she stepped into sprinkler head divot.  Encanto Adventures, LLC had a licensing agreement with the City of Phoenix through which Encanto Adventures was permitted to build and maintain children’s rides and an amusement park in an area within the larger Encanto Park, known as Picnic Island.  The amusement park, known as Enchanted Island, was a fenced-in and contained area within Picnic Island.  In addition to Enchanted Island, the agreement with the City also permitted Encanto Adventures to use an unfenced part of Picnic Island next to Enchanted Island, which was known as the “piñata area.”  Encanto Adventures maintained the piñata area by “patrolling, maintaining, inspecting, preparing, and grooming the grounds.”  However, the area was kept open for the public to use.

A Historical View of Arbitration Agreements and their Rise in Employment Agreements

Author: Rachel Donnelly

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

In the 1920’s, businesses throughout the United States faced a legal dilemma. The federal courts they heavily relied on to resolve various disputes and enforce contracts were painfully overcrowded and difficult to navigate. As a result, businesses turned their reliance to arbitration agreements in which they agreed to submit their disputes for binding resolution to a third party who was generally an expert in their industry. However, the courts thwarted arbitration as they refused to enforce arbitration agreements.

Arizona Case Law Updates

Author: Emily Berman

May 6, 2019 12:48pm

Duff v. Lee[1]

In October 2017, the Arizona Supreme Court adopted a pilot program in the Pima County Superior Court called the Fast Trial and Alternative Resolution Program (“FASTAR”) by administrative order. This program effectively eliminated compulsory arbitration under A.R.S. section 12-133 by lowering the monetary limit to the threshold of the superior court’s original jurisdiction in the local court’s rules, and plaintiffs with claims valued between that threshold and $50,000 could instead choose between a fast trial or binding alternative dispute resolution without right of appeal or de novo trial (which would remain available to the defendant).  Consistent with the pilot program, the Pima County Superior Court’s presiding judge filed a petition for a local rule change in October, 2017 to conform Pima County’s local rules to the Administrative Order.  The Supreme Court granted the petition.

Proposal for Revisions to White Collar Exemptions

Author: Rachel Donnelly

May 6, 2019 12:46pm

On March 7, 2019, the U.S. Department of Labor (“DOL”) published a proposal for revisions to the “white collar” or executive, administrative and professional (EAP”) exemptions from the overtime provisions of the Fair Labor Standards Act (“FLSA”). The notice of proposed rulemaking sets two new salary thresholds: an EAP threshold and a highly compensated employee (“HCE”) exemption. This article will focus on the proposed increase in the HCE salary threshold from $100,000 to $147,414. This threshold is approximately the 90th percentile of the earnings distribution of full-time, non-hourly workers in the entire U.S.

Arizona Case Law Update

Author: Terra Davenport

Guest Editor: Christopher Schon

April 1, 2019 12:22pm

Dormant Commerce Clause of the United States Constitution – Anti-diversion provision of the Arizona Constitution

Saban Rent-a-Car LLC v. Arizona Department of Revenue, No. CV-18-0080-PR (February 2019)

The legislature created the Arizona Tourism and Sports Authority (the “AzSTA”) in 2000 to build and operate a sports stadium, build Major League Baseball spring training facilities, build youth and amateur sports and recreation facilities, and promote tourism. See A.R.S. §§ 5-801(4), -802(A), -807 to -809, -815. AzSTA’s authority is restricted to counties with populations greater than two million people, meaning it has only ever operated in Maricopa County. See § 5-802(A). AzSTA’s construction projects are funded solely by taxes and surcharges approved by Maricopa County voters. See § 5-802(C). One such voter-approved surcharge is at issue here.

Verified Complaints in Arizona

Author: Katie Greenbaum

Guest Editor: Christopher Schon

April 1, 2019 12:20pm

In most jurisdictions, verified complaints are only filed in rare occasions or where required by statute as they can raise additional obstacles for plaintiffs. In Arizona, unless a rule or statute specifically states otherwise, complaints need not be verified. (16. A.R.S. Rules of Civil Procedure, Rule 8(h)) However, where a verified complaint is required, the complaint “must be accompanied by an affidavit by the party–or a person acting on the party’s behalf who is acquainted with the facts—attesting under oath, to the best of the party’s or person’s knowledge, the facts set forth in the pleading are true and accurate.” (Id.)

Arizona’s Dram Shop Laws and General Negligence Laws “Cut-Off” a Bar or Restaurant’s Immunity to Civil Liability for Continuing to Serve Alcohol to Intoxicated Patrons

Author: Ben Davis

March 4, 2019 9:00am

Have you experienced being at a bar or restaurant and noticed an obviously physically impaired patron continue to be served alcohol?  In this situation, have you wondered how the bar or restaurant could continue to serve the impaired patron alcohol?  Well you should know there are dram shop laws and liability pursuant to a common law negligence standard to ensure bars and restaurants serve alcohol in a responsible manner.

Arizona Case Law Update

Author: Danielle Vukovich

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 11:54am

Arizona Supreme Court Determines That Assignment of Rights to Workers’ Compensation Benefits Depends on the Law of the State Paying Those Benefits

The Arizona Supreme Court addressed a workers’ compensation related issue involving whether a one year statute of limitations pursuant to Arizona Revised Statute section 23-1023 is applicable in actions involving workers’ compensation benefits paid under the laws of another state.

A Look at Arizona’s Wrongful Death Statute and Recoverable Damages

Author: Katie Greenbaum

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 11:00am

Who Can Recover?

A survival claim is brought by the estate of the deceased and a wrongful death claim is brought by the deceased’s surviving family members. These two claims are not mutually exclusive and can be brought simultaneously. Liability arises from a death in Arizona when but for a wrongful act or negligence the decedent would not have died and been entitled to pursue a personal injury action. (A.R.S. § 12-611.)  Pursuant to A.R.S. § 12 -612, standing to bring a survivorship or wrongful death action is limited to the following: the decedent’s estate, the surviving spouse; child; parent or guardian; and/or legal representative of the decedent. Unlike other jurisdictions, Arizona excludes recovery for siblings or other relatives; same-sex partners; and common law spouses.

Arizona’s Governor Signs Insurance Bill Resolving Issues with Enforceability of Translated Insurance Policies

Author: Eric L. Cook

December 3, 2018 9:00am

With a stroke of his pen to House Bill 2083, Governor Doug Ducey clarifies the enforceability of an insurance contract translated into a foreign language. Arizona Revised Statutes (“A.R.S.”) section 20-1119 mandates the English-language version of an insurance policy that was translated into a language other than English will control in any disputes as to the construction and contents of an insurance policy so long as the cover page of the policy contains a specified disclaimer indicating same.

The “Reasonably Susceptible” Interpretation Considerations of Parole Evidence in Arizona

Author: Sitar Bhatt

November 5, 2018 9:00am

Recently, the Arizona Court of Appeals, Division Two, revisited the “reasonably susceptible” analysis in determining whether to consider parol evidence to interpret a contract. In Donsen v. Farmers Insurance, No. 2 CA-CV 2017-0174 (October 3, 2018), plaintiff Samuel Donsen (“Donsen”) filed a complaint against Farmers Insurance (“Farmers”) claiming breach of contract, declaratory relief, insurance bad faith, and interference with contract. Donsen filed the lawsuit after suffering injuries in an automobile accident in which he incurred approximately $22,000 in medical expenses. A portion of his medical expenses were paid by workers’ compensation benefits. Donsen also recovered $15,000 from the third-party tortfeasor and, pursuant to A.R.S. § 23-1203(D), was required to reimburse his workers’ compensation insurer in the amount of $8,750.

Is Mediation the New Trial?

Author: Kristin Mathis

November 5, 2018 9:00am

99.9 percent of all cases filed in Arizona never make it to the jury. While many cases can resolve informally between the attorneys; the most successful strategy for resolution tends to be private mediation. As such, attorneys should prepare for mediation as thoroughly as they would prepare for trial.

Substantively Differing Laws Mean No Class for You

Author: Sitar Bhatt

Guest Editor: Catie R. Johnson

October 1, 2018 10:00am

Ferrara v. 21st Century North America Insurance Company Background

In Ferrara v. 21st Century North America Insurance Company, No. 2 CA-CV 2017-0195 (September 10, 2018), the Arizona Court of Appeals Division Two reviewed whether plaintiff Cynthia Ferrara’s (“Ferrara”) motion for class certification complied with the requirements of Rule 23, Ariz. R. Civ. P.

Dogs, Strict Liability and Summary Judgment

Author: Sitar Bhatt

September 5, 2018 9:00am

Recently, the Arizona Court of Appeals affirmed a trial court’s decision, which granted defendants’ summary judgment motion finding the strict liability and negligence claims failed based on the lack evidence to support such claims.

When Multiple Negligent Acts are considered a “Single Occurrence” under Arizona Law

Author: Kristin Mathis

Guest Editor: Natasha K. Zaslove

August 6, 2018 9:00am

According to an Arizona Court of Appeals holding, a single event caused by several independent acts is a single occurrence under an insurance policy, when the policy defines “occurrence” as an “accident.” Cincinnati Indemnity Company v. Southwestern Line Constructors Joint Apprenticeship and Training Program, et al., No. 1 CA-CV 17-0238 (May 31, 2018).

Stipulated Dismissal Does Not Trigger Issue Preclusion

Author: Sitar Bhatt

Guest Editor: Natasha K. Zaslove

August 6, 2018 9:00am

Thomas Kopp, et al., v. Physician Group of Ariz., Inc., et al., No. CV-17-0222-PR (July 9, 2018) – Opinion

In a recent opinion, the Arizona Supreme Court ruled a dismissal with prejudice does not, on its own, trigger issue preclusion. Thomas Kopp v. Physician Group of Arizona, et. al. No. CV-17-0222-PR (July 9, 2018) – Opinion. In doing so, the Court overturned a 73 year old ruling in DeGraff v. Smith, 62 Ariz. 261, 269-70 (1945) that a dismissal with prejudice is a judgment on the merits that carries preclusive effect.

Arizona Court of Appeals Allowing Assignments of Post-Loss Benefits

Author: Sitar Bhatt

July 9, 2018 9:00am

When an insured assigns its rights to post-loss benefits to a third-party, under the insurance policies, can the third-party bring a breach of contract claim against the insurer? According to an Arizona Court of Appeals holding, post-loss assignments of benefits under insurance policies are valid despite anti-assignment provisions. Farmers v. Hon. Udall and EcoDry, No. 1 CA-SA 18-0081 (June 12, 2018).

Tiered Case Systems on the Horizon in Arizona Civil Court

Author: Sitar Bhatt

May 31, 2018 9:22am

At the end of 2015, the Committee on Civil Justice Reform was established as part of the Arizona Supreme Court’s strategic agenda to promote access to justice and improve the court process to better serve the public. Recently, the Arizona Supreme Court approved the procedural reforms proposed by the Committee. These rule changes go into place July 1, 2018, and are important to note for purposes of preparing to successfully defend civil litigation claims.

Reliance on Existing Record Enough to Set Aside a Default Judgement

Author: Sitar Bhatt

Guest Editor: Raymond K. Wilson Jr.

April 27, 2018 10:48am

The Arizona Supreme Court recently considered whether a defendant must submit additional evidence outside the existing record to establish a “meritorious defense” in a motion to set aside a default judgment under Arizona Rules of Civil Procedure 60(b).[1] The Supreme Court held in Gonzalez v. Nguyen, No. CV-17-0017-PR (April 12, 2018), a defendant may rely on the existing record and a trial court has broad discretion to determine whether a matter should be decided on the merits.

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