Water, Water Everywhere: Bad Faith Litigation and Motions for Summary Judgement in Arizona

Author: Jenny Silverstein

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

Most of us, hopefully, have some form of insurance for our home, whether it be a single family home we own or an apartment we rent. We pay monthly premiums in the hope that, heaven forbid, an earthquake, flood, tornado, fire, or other catastrophic event occurs, the insurance company to whom we have been sending our monthly checks will make us whole again. It may be a long road, but it is our hope that we will be paid fairly for the property lost or damaged, we will have a place to stay temporarily, and there will be a friendly ear on the other side when the road seems too long and daunting.

Arizona Case Law Update

Author: Michelle Ronan

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

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.

Represent Yourself at Your Own Risk: Garrow v Earley, Wells Fargo No. 2 CA-CV 2018-0053 (November 29, 2018)

Author: Christopher J. Feasel

Guest Editor: Tiffany Rouhi

January 7, 2019 9:00am

Representing yourself in court is always an iffy proposition, as one such pro se litigant recently found out in Garrow v Earley, Wells Fargo.

Mary Garrow sued Joanne Early, a manager at Wells Fargo, after Ms. Garrow was ordered to leave the branch for talking on her phone while waiting to cash a check. Ms. Garrow filed suit against Ms. Earley and Wells Fargo for intentional infliction of emotional distress (IIED), harassment, intimidation, hostile environment, and violating her civil rights.  She alleged Ms. Earley’s actions caused her severe emotional distress and “possible” bodily harm because she was embarrassed by the incident and was forced to drive to another Wells Fargo to conduct her business. She sought $60,000.00 in damages.

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

Author: Eric L. Cook

Guest Editor: Alexander Nguyen

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.

Appellate Court “Strips” Plaintiff of Victory: Dupray v. JAI Dining, No. 1 CA-CV 17-0599 (11-15-2018)

Author: Christopher J. Feasel

Guest Editor: Tiffany Rouhi

December 3, 2018 9:00am

JAI Dining Services (“JAI”) appealed a jury verdict, which found it liable for negligently overserving alcohol to a patron that later drove while intoxicated and caused a collision that seriously injured Mark Dupray (“Dupray”).  The appellate court agreed with JAI and overturned the verdict, finding the trial court abused its discretion in not giving JAI’s requested jury instruction on superseding and intervening cause[1].

Rattled by the Law: A Look at Arizona’s Premises Liability Law

Author: Michelle Ronan

Guest Editor: Tiffany Rouhi

December 3, 2018 9:00am

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.”

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

Author: Sitar Bhatt

Guest Editor: Tiffany LeMelle

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 McLaughlin

Guest Editor: Tiffany Rouhi

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.

Arizona Case Law Update

Author: Michelle Ronan

Guest Editor: Tiffany LeMelle

November 5, 2018 9:00am

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.

“When you’re a Jet…” Gang Violence and Negligence Claims: Stair v Maricopa County, No. 1 CA-CV 15-0758 (2018).

Author: Christopher J. Feasel

Guest Editor: Tiffany Rouhi

October 1, 2018 10:00am

As a former gang prosecutor, I understand firsthand the devastation gang violence takes on communities.  But does that violence transcend into the civil world regarding negligence claims against municipalities, and specifically against a “gang task force?”  In Arizona, the recent case of Stair v Maricopa County, No. 1 CA-CV 15-0758 (2018) says no.

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.

Can a Police Officer be Found Negligent for Intentional Conduct in Arizona?

Author: Michelle Ronan

Guest Editor: Catie R. Johnson

October 1, 2018 10:00am

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.

Arizona Case Law Update

Author: Jenny Silverstein

Guest Editor: Tiffany Rouhi

September 5, 2018 12:42pm

A Recorded Affidavit Alleging CC&R Violations Does Not Mean An Encumbrance On a Person’s Real Property Is Created Unless The Affidavit Explicitly States Otherwise

Thomas M. Baumgartner and Julie B. Baumgartner, et al. v. Edward A. Tmmins, Jr., et al. (August 30, 2018, 2018 WL 4177840)

An Arbitrator’s Conflict of Interest and When a Party Should Object

Author: Christopher J. Feasel

Guest Editor: Tiffany Rouhi

September 5, 2018 9:00am

When a plaintiff brings a claim against a defendant’s insurance company, which is greater than the defendant insured’s policy limits, a plaintiff may also file a claim against his own insurance company for underinsured motorist coverage. Underinsured motorist coverage allows a plaintiff to recover additional compensation, when defendant insured’s policy limit is not enough to cover his or her claim.

Dogs, Strict Liability and Summary Judgment

Author: Sitar Bhatt

Guest Editor: Tiffany Rouhi

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.

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