Happy Halloween from the TRK Family
Spooky News: the Death of the Peremptory Strike in Arizona
by Brit Simon
If you have ever watched an episode of Law & Order or fulfilled your civic duty to sit on a jury, you are probably familiar with the process of jury selection. The attorneys ask questions of the jurors in an effort to learn more about their backgrounds, identify any potential biases or conflicts, and eventually determine which individuals will sit on the jury itself. For centuries, attorneys have had two options with respect to removing jurors from the list of potential candidates – for-cause challenges and peremptory strikes. The former allows an attorney to strike a juror if they can cite to a specific reason why the juror should not sit on the jury based upon a lack of fairness or impartiality. The second option, the peremptory strike, allows an attorney to strike a juror without having to provide a reason.
Historically, The Arizona Rules of Criminal Procedure afforded the prosecution and criminal defendant between two and ten peremptory challenges, depending on the severity of the charges. The Arizona Rules of Civil Procedure previously afforded a litigant four peremptory challenges. However, the jury selection process in Arizona is about to change significantly. On August 30, 2021, the Arizona Supreme Court instituted a landmark rule change that made Arizona the first state in the country to abolish the use of peremptory challenges in criminal and civil trials. The rule change will go into effect on January 1, 2022, and thereafter, the only challenges that can be advanced will be those that challenge the jurors based upon a lack of fairness and/or impartiality.
The proposal to end the practice of peremptory strikes was set forth by two state appellate judges who argued that peremptory strikes propagated bias against potential jurors on the basis of sexual orientation, disability, gender, race, or ethnicity. However, their proposal was not particularly well received by other members of the legal community in Arizona. Notable organizations such as The State Bar of Arizona, the Arizona Attorney General’s Office, the Mutual Insurance Company of Arizona, the American Board of Trial Advocates, and others all spoke out in staunch opposition to the rule change. The motivation of most, if not all, of these organizations was rooted in the argument that the abolishment of the peremptory strike rule would result in the empanelment of juries that were not fair or impartial.
Despite the majority opposition to the proposed rule change, the Arizona Supreme Court adopted the proposal and set into motion a change that will undoubtedly have an impact on jury trials across the state. To what degree, however, is a question that will be answered in the months and years to come.
The attorneys at Thomas Rubin & Kelley, PC have significant experience with jury trials and will continue to monitor the effect of this rule change on an ongoing basis. If you have any questions about the abolishment of the peremptory strike in Arizona, or if you require any assistance as to any of your Arizona litigation claims, please do not hesitate to contact Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).
Dog Bite Claims & Punitive Damages
In Part III of this series, we discuss the application of punitive damages in a dog bite claim. On a broad scale, Arizona law restricts punitive damages in those cases in which (1) the defendant's conduct is “aggravated and outrageous,” and (2) the wrongful conduct was guided by “an evil mind.”[1] When a Plaintiff is asserting a claim for punitive damages against a Defendant in a civil lawsuit, “a plaintiff must always prove ‘outwardly aggravated, outrageous, malicious, or fraudulent conduct” and a plaintiff must also prove, as a second element, that the defendant's wrongful conduct was guided by evil motives.[2]
In the context of civil lawsuits involving a dog bite claim, the general consensus in Arizona is that punitive damages are available when the owner either intended to have the dog bite the injured person or were reckless and careless in the training or handling of the dog. For example, punitive damages may be appropriate in a case where the dog owner trained the dog to attack people, even if the dog owner did not specifically direct the dog to attack the person injured.
However, Arizona courts have allowed the question of punitive damages to be presented to a jury in cases where the evidence against the Defendant was far less extreme. In one case, the Plaintiff was allowed to make a claim for punitive damages against a Defendant because the dog in question had a prior history of viciousness and there was evidence that the Defendant continued to retain the dog despite knowledge of said viciousness.[3] In most cases, whether the plaintiff has clear and convincing evidence of an “evil hand” guided by an “evil mind” is often left to be decided by the jury.
The attorneys at Thomas Rubin & Kelley are well-versed in all areas of dog bite claims, including those involving punitive damage allegations. If you require assistance on any of your Arizona claims, please do not hesitate to contact Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).
[1] Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 331, 723 P.2d 675, 680 (1986).
[2] Rawlings v Apodaca, 151 Ariz. 149, 163, 726 P.2d 565, 578 (1986).
[3] Jones v. Manhart, 120 Ariz. 338, 585 P.2d 1250 (1978).
Common Law Negligence & Defenses
by Brit A. Simon
As mentioned in Part I of this series, under Arizona law, there are two theories of liability for a dog bite claim: strict liability and common law negligence. Each of these theories has distinct elements and separate defenses. However, it is important to note that the statute which gives rise to strict liability for dog bites does not codify or replace common law liability[1]. It is therefore possible for a Plaintiff to proceed with both theories of liability in one action.
A dog’s owner is only liable for common law negligence if the owner knew or had reason to know of their dog’s vicious propensities prior to the bite1. There are two necessary factors in this regard: 1) that the dog had vicious propensities; and 2) that the owner had knowledge of said vicious propensities. Both factors must be proven to succeed on a common law negligence claim.
Arizona courts will determine whether a dog had “vicious propensities” on a case-by-case basis. In one case, it was held that “[w]here one keeps on his premises a dog which has attacked or bitten a considerable number of persons, and is notoriously cross and vicious, it may be presumed that the owner has some knowledge of this fact.”[2] With respect to the owner’s knowledge of the dog’s vicious propensities, courts have held that said knowledge need not be actual – meaning it can be imputed upon an owner if a joint owner, employee, spouse, or similarly situated person was aware of the animal’s vicious propensities, and thus it can be implied that the owner himself had such knowledge as well.2
Arizona also permits claims based on the common law theory of negligence per se, which prescribes that “[a] person who violates a statute enacted for the protection and safety of the public is guilty of negligence per se.”[3] There are numerous laws, statutes, and ordinances which specify certain guidelines as to the duties of a dog owner. For example, most jurisdictions have laws which prohibit a dog from being “at large,” meaning the dog is not sufficiently and legally fenced in, leashed, or contained. Thus, if a dog owner is found to have violated such a statute by allowing their dog to be “at large,” and the dog causes harm to someone, the owner can be held liable under a theory of negligence per se. It is also important to note that this cause of action is not exclusively limited to dog bite incidents but can be applied in any case wherein a dog “at large” causes any sort of harm or damage, including property damage.
Thomas Rubin & Kelley is happy to assist you in the defense of all claims. If you have any questions, please do not hesitate to contact Brian Rubin (602-604-7509 / brubin@trkfirm.com) or Michael Kelley (602-604-7505 / mkelley@trkfirm.com) for more details.
[1] Murdock v. Balle, 144 Ariz. 136, 696 P.2d 230 (Ct. App. 1985)
[2] Perazzo v. Ortega, 32 Ariz. 154, 156, 256 P. 503, 504, (Ct. App. 1927)
[3] Good v. City of Glendale, 150 Ariz. 218, 221, 722 P.2d 386, 389 (App. 1986)
Strict Liability for a Dog Bite Claim in Arizona
by Brit A. Simon
Recent statistics show that nearly 50% of homeowners in Arizona own a dog. [1] When you adopt a furry friend, it is, of course, assumed that you will be responsible for feeding, walking, and taking care of your pet. Most people, however, do not consider the liabilities associated with dog ownership before adopting a dog, the most daunting of which is: What if my dog bites someone?
Under Arizona law, there are two theories of liability for a dog bite claim: strict liability and common law negligence (the second of which will be discussed in Part II of this series). Strict liability is a significantly more rigid cause of action. Arizona Revised Statute (A.R.S.) §11-1025 prescribes that a dog owner is strictly liable for damages when their dog “bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog.” This is true “regardless of the former viciousness of the dog or the owner’s knowledge of its viciousness.”
Pursuant to the statute, if a dog bites someone who is either in a public place (i.e. a park, sidewalk, or street) or lawfully present on private property (i.e. anyone who is not a trespasser), the owner of that dog is liable – regardless of whether that dog was on a leash, behind a fence, or even on its own property. Further, under a strict liability cause of action it is irrelevant that the dog had never bitten anyone before nor demonstrated aggressive behavior prior to the incident. This is a common misconception amongst the public, as there is an old wives’ tale (partially rooted in historical laws of other states) that there is a “one free bite” rule, meaning you are not responsible for the first time the dog bites someone. It is important to understand that under Arizona law, there is no “one free bite” rule, and you are liable regardless of the dog’s history of biting.
Unless the person was trespassing at the time of the incident, the only defense to a strict liability dog bite clam is provocation. This defense asserts that the victim is responsible for their own damages because he or she took some action that “a reasonable person would expect…is likely to provoke a dog.” The term “provoke” is not defined in the statute. However, the Arizona Court of Appeals has held that provocation is defined as an act or process of provoking, stimulation, or incitement. [2] Whether or not the actions of the victim constitute provocation is a question the majority of courts will leave up to the discretion of a jury. When a policyholder presents a claim for coverage following a dog bite incident, it is important to aggressively and thoroughly investigate the claim as soon as possible to determine whether any defenses to strict liability exist under Arizona law.
Thomas Rubin & Kelley is happy to assist you in the defense of all claims. If you have any questions, please do not hesitate to contact Brian Rubin (602-604-7509 / brubin@trkfirm.com) or Michael Kelley (602-604-7505 / mkelley@trkfirm.com) for more details.
[1] https://worldpopulationreview.com/state-rankings/pet-ownership-statistics-by-state
[2] Toney v. Bouthillier, 129 Ariz. 402, 631 P.2d 557, quoting Nelson v. Lewis, 36 III.App.3d 130, 344 N.E.2d 268 (1976).
Insurers Should Retain Counsel Early to Avoid Default Judgments
by Michael Kelley
Avoiding Default Judgments Before a Lawsuit is Filed
While many claims are resolved prior to litigation, it is important for insurers to keep in mind the potential for a lawsuit should the claimant not accept an insurer’s most recent settlement offer. Most insurers have form letters which provide requisite notices to claimants, but the majority of those letters do not contain any information regarding the identify of defense counsel should a lawsuit be filed against their insured. This may seem unnecessary at first glance, but it is an important way for insurers to protect themselves and their insureds from a default judgment.
Rule 55 of the Arizona Rules of Civil Procedure contains a specific provision which requires a party who files an application for entry of default to identify “any attorney known to represent the party claimed to be in default in the action in which default is sought or in a related matter.” Moreover, this rule also requires the Plaintiff to mail a copy of the application for entry of default to the attorney whom the plaintiff knows represents the defendant in the matter or in a related matter. If a plaintiff fails to properly provide notice of the application for entry of default to the known attorney, then the entry of default is ineffective, and the defendant still has time to file an answer and avoid a default judgment.
Rule 55 was recently tested in Maclean v. Newgioco Group, Inc., CA-CV20-0164 (App. Div. I, March 16, 2021). This case involved a plaintiff who filed a wrongful termination lawsuit against her former employer and attempted to obtain a default judgment when the employer failed to file a timely answer. The plaintiff had properly served the summons and complaint upon the statutory agent and sent a copy of the application for entry of default to the statutory agent when her former employer did not respond to the complaint. The trial court entered a Default Judgment for $1,050,204.00, plus costs and interest, against the defendant, but the default judgment was set aside when the defendant was able to successfully argue that the plaintiff did not comply with the notice requirements of Rule 55 by failing to provide a copy of the application for entry of default to the defendant’s attorney. The company had not specifically retained any attorneys to represent it in the pending lawsuit, but the former employee had signed two employment agreements which required that all notice and other communications be provided to lawyers in Canada and New York. The Court ultimately held that mere service of the default filings on a statutory agent without serving the application for entry of default and the motion for default judgment on a defendant’s lawyer known to a plaintiff is not sufficient to perfect the default process. As a result, it was proper for the trial court to set aside the default judgment. To make matters worse for the plaintiff, the Court of Appeals also ordered that the plaintiff pay the defendant’s reasonable attorneys’ and costs fees on appeal.
If you have preferred defense counsel, it is recommended that you provide a notice in your letters to claimants which states that in the event a lawsuit is filed, all notices regarding the lawsuit and any subsequent pleadings must also be sent to your preferred defense counsel. If the plaintiff fails to comply with this request, then there is a good basis to set aside an entry of default which may be obtained against your insured. This will also provide advance notice of the lawsuit against your insured and allow defense counsel to make immediate efforts to notify the insured of the pending lawsuit and obtain their cooperation. Of course, in the event you do decide to retain different counsel to represent your insured you are free to do so, but this one small step could be the difference between a default judgment and the ability to defend the case on the merits.
Thomas Rubin & Kelley is happy to assist you in the defense of all claims. If you have any questions, please do not hesitate to contact Brian Rubin (602-604-7509 / brubin@trkfirm.com) or Michael Kelley (602-604-7505 / mkelley@trkfirm.com) for more details.
Arizona Courts and COVID-19
We have now passed the one-year benchmark of when the global COVID-19 pandemic began affecting essentially all areas of business (and life). The good news is that it seems tides are beginning to turn, and that progress is slowly being reflected within the court system in Arizona. Below you will find updated information with respect to how various courts in Arizona are modifying their operations in the direction of a “return to normal.” We will continue to provide updates as additional guidelines are set forth by Arizona Courts. If you have any questions about these issues, please contact Brian Rubin (602-604-7509/ brubin@trkfirm.com) or Michael Kelley (602-604-7505/ mkelley@trkfirm.com).
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MARICOPA COUNTY SUPERIOR COURT
The Presiding Judge of the Maricopa County Superior Court issued an Administrative Order on March 15, 2021. This Order provides updated information with respect to conducting jury operations during the public health emergency in Maricopa County. The relevant guidelines are as follows:
The limitations placed on criminal jury trials within the previous order (December 3, 2020) are lifted. Criminal jury trials may resume utilizing fifteen safely spaced courtrooms until further ordered.
Effective April 1, 2021, civil jury trials may recommence under a modified calendar system. Only one civil jury trial may take place at a time within each courthouse (East, Old Courthouse, Southeast, and Northeast).
Except for jury trials and other specifically enumerated in-person hearings, the Court will continue to conduct business via audio and visual platforms.
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PIMA COUNTY SUPERIOR COURT
The Presiding Judge of Pima County Superior Court issued an updated Administrative Order on February 4, 2021. The relevant guidelines for Pima County are as follows:
All jury trials in Pima County Superior Court and all Pima County limited jurisdiction courts are suspended until and through March 31, 2021.
No additional orders have been issued with respect to court operations after the March 31, 2021 moratorium expires. __________________________________________________________________
ARIZONA DISTRICT COURTS
The Chief Judge in the United States District Courts, District of Arizona, issued an updated Administrative Order on March 8, 2021. The relevant guidelines are as follows:
Civil and criminal jury trials may be scheduled and resume as of March 1, 2021.
Grand Jury proceedings may resume the week of March 22, 2021.
April is National Distracted Driving Awareness Month
by: Megan Spaulding
According to the National Safety Council, nearly 3,000 people are killed on U.S. roads yearly in distracted driving accidents, and the majority of distracted driving accidents involved some form of cell phone use. In 2018, there were 57,514 accidents in Arizona with 810 fatalities and 15,689 injuries resulting from distracted driving of some manner. However, these numbers only reflect those accidents that were reported, and according to Arizona’s Chapter National Safety Council, distracted driving is severely underreported.
Evidence of distracted driving was addressed in State v. Salamanca, 233 Ariz. 292, 311 P.3d 1105 (Ct. App. 2013). This case involved a defendant who was travelling along Route 66 towards downtown Flagstaff. Defendant was weaving in and out of traffic at a speed approximately twice the posted speed limit. As a result, he lost control of the vehicle, causing the vehicle to fishtail across five lanes into oncoming traffic, and colliding head on with another vehicle. The other driver died as a result of the injuries sustained in the head on collision. A cell phone was discovered on the floorboard below the front passenger seat of the defendant’s vehicle which showed a series of text messages sent shortly before 9-1-1 calls were made. As a result of the collision, the defendant faced criminal charges, including second-degree murder, failure to remain at the scene of the accident involving death or personal injuries, and criminal damage. During the trial, two of the text messages were admitted into evidence. Following the trial, the defendant was sentenced to 22.5 years in prison. The defendant appealed his conviction, arguing that the trial court abused its discretion in admitting the text messages into evidence. The Appellate Court ultimately concluded there was no abuse of discretion by admitting the text messages into evidence, reasoning that the second text message was close enough in time to the collision that it was intrinsic to the charged offenses. Further, the jury could have concluded the second text caused the collision, with the court stating, “[T]he act of sending the text, or the act of handling his cell phone directly after having sent the text, caused Salamanca to lose control of his vehicle.”
Unfortunately, Salamanca is just one of many cases involving texting and driving. In January of 2019, a Salt River Police Department officer was killed in a motor vehicle accident on Loop 101. The officer was conducting a traffic stop when he was hit by a passing vehicle which then collided with the vehicle stopped by the officer. The driver of the passing vehicle admitted to texting while driving. In October of 2013, Brendan Lyons was on a bike ride when a driver travelling 45 MPH glanced down to see an incoming call, and his vehicle swerved into the bike, striking Brendan and his girlfriend. As a result of the collision. Brendan suffered several fractured vertebrae, a fractured pelvis, and a traumatic brain injury. Because of these injuries, Brendan could no longer continue his dream job as a firefighter.
It is easy to get distracted while driving, whether it be your cell phone or some other form of distractions. However, while technology may be the problem, it also is a solution. In effort to confront distracted driving from cell phones, several apps and devices are available and are designed to help drivers focus on the road by restricting drivers from accepting or making calls, texting, and even scrolling the internet. Safe driving apps to minimize distracted driving include, DriveMode, EverDrive, LifeSaver, TrueMotion Family, and TextDrive.
In addition to these safe driving apps, many states including Arizona now have laws in place which allow law enforcement to cite drivers if they are caught using their cell phone while driving. If you are found in violation of this law, you could be subject to civil penalties. For a first-time violation, the fine starts at $75.00, but no more than $149.00. For any subsequent violation(s), the fine is increased to at least $150.00, but no more than $250.00.
Despite the strict laws put in place to tackle cell phone use while driving, the issue is not going away anytime soon. In fact, a violation of Arizona’s cell phone laws may also constitute negligence per se. That is, a violation of this statute may lead to an automatic finding of negligence. If you have any questions about distracted driving laws in Arizona, please do not hesitate to contact Brian Rubin (602-604-7509 / brubin@trkfirm.com) or Michael Kelley (602-604-7505 / mkelley@trkfirm.com) for more details.
“I’m here live. I’m not a cat.” Zoom-ing through the Court System
If you have been online in the past few weeks, chances are you have seen the viral video in which a Texas lawyer appeared in a virtual legal proceeding over Zoom with a filter that turned his face into that of an adorable kitten – and then could not figure out how to turn it off. “I’m here live. I’m not a cat,” said the lawyer, to which the judge responded, “I can see that” before trying to walk the lawyer through fixing the filter issue.
In the current times of social distancing and work-from-home protocols, you would likely be hard pressed to find someone who has not utilized Zoom or similar application in lieu of an in-person meeting. Members of all areas of the legal profession are no exception, and lawyers have turned to Zoom to conduct depositions, hearings, client meetings, and even to participate in trials. A study conducted in 2020 by The National Judicial College found that among 702 judges who responded to a survey indicated that 48% of judicial officers preferred to use Zoom and 25% preferred WebEx when conducting virtual proceedings.[1]
Despite the generally user-friendly nature of Zoom and similar online video conferencing platforms, the viral ‘cat lawyer’ video highlights the importance of being digitally savvy in order to put your best foot forward. The obvious lesson to be learned from the now infamous ‘cat lawyer’ is to ensure you do not have a filter activated before joining a Zoom meeting. However, there are a few other hidden tips and tricks that the team at Thomas Rubin & Kelley have learned over the past year which not only help a Zoom call run smoothly, but also safeguard some of the benefits of having in-person meetings, hearings, and depositions.
Keyboard Shortcuts:
Zoom offers many shortcuts you can navigate using keys as opposed to scrambling to find the right icon on the Zoom screen. To enable shortcuts within the Zoom interface, simply head over to your settings menu. These are the ones we have found to be most useful:
Space bar to mute/unmute microphone
Alt+V to start/stop video
Alt+Q to end the meeting
Alt+F to enter/exit full screen mode
Alt+S to start/stop screensharing
Share your screen:
When participating in a deposition, meeting, or hearing that requires, or would benefit from, the use of exhibits or a presentation, you can share your entire desktop screen, or just certain windows, with other participants. Simply click the Screenshare icon on the toolbar at the bottom of the meeting screen, and then the red Stop Share icon to turn it off (or use the shortcut mentioned above!).
As a warning – if you share your entire desktop, participants will be able to see anything displayed on your screen, meaning they can see other windows you have open, personal photographs or information displayed, and your email account if you have it pulled up. Always make sure you close out of anything you would not want on display for other participants before sharing your entire screen with the group.
Hide non-video attendees:
If you are hosting a larger call, the meeting screen can get cluttered quickly with participants. This can be especially distracting if some of them do not have their camera on anyway. Minimize these distractions by going to Settings > Video > Meetings, and clicking hide non-video participants.
Use break-out rooms:
One benefit of having a meeting in-person (in particular, a mediation), is that parties can be situated in different rooms/offices, allowing for private conversations or targeted discussions. You can still take advantage of that option, even if you are participating virtually. Zoom allows participants to break into smaller groups in separate sequestered “rooms.” Breakout rooms allow you to split your Zoom meeting in up to 50 separate sessions. The meeting host can choose to split the participants of the meeting into these separate sessions automatically or manually, or they can allow participants to select and enter breakout sessions as they please. The host can also switch between sessions at any time.
Thomas Rubin & Kelley attorneys have utilized this feature for mediations when confidential conversations are required, for depositions when we want to speak with clients privately off-the-record, and even for meetings when different groups needed to discuss separate topics and then rejoin the larger group to report back their conclusions.
It is entirely unclear when we will be able to return to the “status quo” of conducting meetings, hearings, and depositions in person. In the meantime, the abovementioned tips and tricks can help ease the burden of the Zoom evolution (and can hopefully prevent more ‘cat lawyer’ blunders!) If you have any questions about how the team at Thomas Rubin & Kelley PC is working to ensure the best representation for our clients, even in this time of unprecedented change, please contact Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).
[1] https://www.judges.org/news-and-info/two-platforms-dominated-in-our-poll-of-virtual-court-operations/
ARIZONA COURTS & COVID-19
Updated as of: January 22, 2021
It is no secret that for close to a year, most industries in America have been affected by the COVID-19 virus. In response to the pandemic, the Arizona Supreme Court has periodically issued Administrative Orders providing information on updated guidelines with respect to court procedures. Other branches of the Arizona Court system have been issuing county-specific guidelines within the confines of those set forth by the Arizona Supreme Court. At Thomas Rubin & Kelley PC, we continue to actively monitor these updates. Set forth below is a summary of the guidelines that may affect ongoing matters, including those that are pre-litigation and those in active litigation. We will continue to provide updates as additional guidelines are set forth by Arizona Courts. If you have any questions about these issues, please contact:
Brian Rubin ● 602-604-7509 ● brubin@trkfirm.com
Michael Kelley ● 602-604-7505 ● mkelley@trkfirm.com
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ARIZONA SUPREME COURT
On December 3, 2020, the Arizona Supreme Court issued an updated order which provides protocols with respect to all Arizona state courts. The relevant guidelines are as follows:
Arizona Courts may continue transitioning to in-person proceedings to the extent this can be safely accomplished.
Judicial Officers shall liberally grant continuances and make accommodations, if necessary and possible, for attorneys, parties, victims, witnesses, jurors, and others with business before the courts who are at a high risk of illness from COVID-19 or who report any COVID-19 diagnosis, symptoms, or exposure notification by public health authorities.
Presiding Superior Court Judges shall determine for the courts in their respective counties how in-person court proceedings and courthouse activities are to be phased-in and conducted, in a manner that protects the health and safety of all participants.
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MARICOPA COUNTY SUPERIOR COURT
The Presiding Judge of the Maricopa County Superior Court issued an Administrative Order on December 3, 2020. This Order provides updated information with respect to conducting jury operations during the public health emergency in Maricopa County. The relevant guidelines are as follows:
Superior Court criminal jury trials will be held with appropriate screening and properly marked spacing. No more than two jury trials may proceed at any one time and no more than one jury shall be empaneled per day to minimize the number of jurors processed through the jury assembly room in a single day.
The empanelment of juries for civil trials is suspended through February 28, 2021.
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PIMA COUNTY SUPERIOR COURT
The Presiding Judge of Pima County Superior Court issued an updated Administrative Order on January 15, 2021. The relevant guidelines for Pima County are as follows:
All jury trials in Pima County Superior Court and all Pima County limited jurisdiction courts are suspended until and through February 28, 2021.
Trials currently set to take place prior to February 28, 2021 shall be set for telephonic status conferences to set new dates for trial.
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YAVAPAI COUNTY SUPERIOR COURT
The Presiding Judge of Yavapai County Superior Court issued an updated Administrative Order on October 7, 2020. The relevant guidelines are as follows:
In light of the ongoing health crisis and restrictions on empaneling of juries, Yavapai County has been approved to participate in a Pilot Program called Yavapai County Expanded Alternative Dispute Resolution Program (YEADR).
The purpose of YEADR is to provide a mechanism for civil litigants to utilize an adversarial process to resolve their claims in the Superior Court and avoid the delay of waiting for a jury trial.
At the same time, YEADR preserves the parties’ rights to a trial by jury and an appeal as provided by law.
A case is eligible for YEADR, regardless of the value of the claim(s), if the case is in Tier 2 or 3 under Civil Rule 26.1 and is one where a jury trial is required by law and has not been waived.
Under the YEADR program, a decision on a case can be rendered by either a “fact finder judge” which is either a current superior court judge or a permanent or seasonal superior court judge pro tempore, or the parties may elect to have a panel of three fact finders including judges, attorneys, members of the public, or any combination of these categories.
In essence, in a case that would normally be appropriately tried before a jury (under our civil system, meaning a case valued in excess of $50,000), the parties now have a right to litigate their case under the YEADR program, which, in lieu of said jury trial, will allow a decision to be rendered by either a fact finder judge or a panel of three fact finders, akin to a private Arbitration Hearing. If the parties decide to have their case proceed under the YEADR program, they would still have the right to appeal the fact finder(s) decision to a jury trial.
However, like appeals from Compulsory Arbitration, the party which seeks a trial de novo must be “successful” at trial to avoid paying sanctions, which would include the other party’s (1) reasonable attorney’s fees for the trial de novo, and (2) reasonable expert witness fees, if any, for the trial de novo. A party is “successful” if the monetary judgment is at least 23% more favorable than the YEADR judgment. If no monetary judgment is involved, the party is “successful” if it obtains a judgment that is “qualitatively superior” to the YEADR judgment. If the party requesting a trial de novo is successful at the trial de novo on some but not all of its claims or defenses, the court must determine the successful party.
Do minor settlements need to be court approved?
Arizona law requires all minor settlements for $10,000 or more be approved by a court and a conservatorship set-up with the funds placed in a court restricted bank account. However, this does not mean settlements for $9,999.99 or less do not need court approval. As the settlement is with a minor, the settlement is voidable by the minor until the statute of limitations passes for them, which is two years after his or her 18th birthday. To deal with this issue, and make a release binding, Arizona case law states a court can approve a minor’s settlement. If the settlement amount attributed to the minor is less than $10,000 and there are limits issues, concerns regarding the injuries, or other special concerns, it is strongly recommended that you request court approval of the settlement.
If you have any questions regarding minor settlements, please contact us. Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).
ARIZONA SUPREME COURT ORDER UPDATED OPERATIONS
Updated as of: May 11, 2020
It is no secret that we are living in a different world than we did six months ago. As we attempt to transition into a “new normal,” operations and procedures with respect to the court system are adapting. On May 8, 2020, the Arizona Supreme Court issued an updated Administrative Order (No. 2020-75) which provides direction on the resumption of certain court operations in a way that prioritizes the safety of all those involved within the court system. Thomas Rubin & Kelley PC wants to keep everyone updated regarding the new operations and procedures which will remain in effect until the Arizona Supreme Court advises otherwise.
The Administrative Order includes the following guidelines with respect to Arizona court operations:
Rule 42.1 of the Arizona Rules of Civil Procedure, which grants litigants with the option to request a change of judge as a matter of right, is suspended until December 31, 2020. Parties will still have the ability to request a change of judge for cause.
Until December 31, 2020, each side is allowed only two peremptory juror strikes (the right to eliminate potential jurors without having to give a reason or show cause) when selecting a jury versus the four peremptory strikes provided by the rule.
The public is prohibited from attending in-person proceedings; however, beginning July 1, 2020, the presiding judge of each court shall provide public access to court proceedings via video or audio connection.
The Administrative Order also sets forth a phased plan for resumption of on-site court operations:
Phase “Zero” (current phase):
Courts should limit the number of persons at any court event to ten people.
The empaneling of new juries is suspended.
In-person contact is to be limited through the use of audio and/or video hearings.
Phase One (beginning June 1, 2020):
Courts may begin transitioning to in-person proceedings.
In-person appearances are limited to attorneys, parties, victims, witnesses, jurors, and court personnel.
Courts should continue to limit the number of people at any court event to ten people.
Masks and face coverings are required when in the courthouse.
Courts shall continue the use of virtual hearings to the highest extent possible.
Jury trials may resume on June 15, 2020, subject to approval of the presiding superior court judge.
Courts shall utilize appropriate social distancing and measures necessary for the protection of jurors, including the use of technology for virtual selection of jurors and, with the approval of the presiding superior court judge, for jury trials.
Jury trials shall be scheduled in the following order of priority:
a) Criminal cases where the defendant is in custody;
b) Sexually violent person cases;
c) Criminal felony cases where the defendant is not in custody;
d) Criminal misdemeanor cases where the defendant is not in custody;
e) Civil and other jury trial cases.
Phase Two (date pending):
Scheduling of in-person court proceedings may resume.
Courts should limit the number of people at any event to thirty.
The use of technology should continue.
Jury trials shall be scheduled in the same order of priority as in Phase One.
Safety measures with respect to selection of jurors and jury trials remain the same as in Phase One.
Phase Three (date pending):
Scheduling of in-person court proceedings can fully resume.
Courts should follow CDC social distancing guidelines and limit the number of persons at any court event appropriately.
Safety measures with respect to the selection of jurors and jury trials remain the same as in Phase One and Phase Two.
Phase Four (date pending):
Return to normal operations – no restrictions.
As you can see, the Arizona Supreme Court is dedicated to slowly transitioning court operations back to normal, while also prioritizing the health and safety of all those who interact with the court system. Thomas Rubin & Kelley PC anticipates that these guidelines and procedures will continue to be updated as circumstances change and we have adjusted our operations in a way that focuses on our clients’ needs.
If you have any questions about what effect these updated operations may have on your Arizona cases, please do not hesitate to contact Brian Rubin (602-604-7509 / brubin@trkfirm.com) or Michael Kelley (602-604-7505 / mkelley@trkfirm.com) for more details.
Arizona Courts Continue to Find Ways to Avoid Dismissing Cases for Untimely Service of Process
Think Plaintiff Blew the Deadline for Service? Think Again.
by Michael Kelley
Since 2017, the Arizona Rules of Civil Procedure have required that plaintiffs serve a copy of the summons and complaint upon each defendant within 90 days. “If a defendant is not served with process within 90 days after the complaint is filed, the court - on motion, or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Ariz R. Civ P. 4(i). While the rule states that the court “must dismiss the action,” the rule also gives each judge discretion to extend the time for service within a specified time. This discretionary decision must be based on facts presented to the court, but the Arizona Supreme Court has recently confirmed that very little is required to affirm a trial court’s decision to extend the time for service. Additionally, if there is good cause for the failure to serve the summons and complaint within the 90-day period, the Court must extent the time for service.
The scope of a trial court’s discretion to extend the time for service of process was recently examined by the Arizona Supreme Court in Sholem v. Langevin. In that case the plaintiff sued a hospital and doctors for being exposed to radiation in 1996 when she was still a fetus. She filed her Complaint on June 9, 2017 and thus had until September 7, 2017 (90 days) to serve the defendants. One of the doctors proved to be difficult to serve as the process server attempted service at his house six times between July 27, 2017 and August 11, 2017. While the house appeared unoccupied during each visit, someone had removed a package from the doctor’s porch between the service attempts. The doctor executed an affidavit avowing that he was out of town for one week “in early August 2017” and was not evading service. In May of 2018 – 11 months after the complaint was filed - the plaintiff filed a motion to extend the time for service of process. The trial court granted the motion without explanation and extended the deadline until August 31, 2018. The defendant was ultimately served on July 17, 2018, and shortly thereafter filed a motion to dismiss. In his motion defendant argued that there was no good cause to extend the deadline for service of process. The trial court denied the motion to dismiss and a subsequent motion for reconsideration. The Arizona Court of Appeals also denied the defendant’s petition for special action, but the Arizona Supreme Court ultimately accepted the petition for review.
The Arizona Supreme Court confirmed in its opinion that the Arizona Rules of Civil Procedure do not require a finding of good cause for a trial court to extend the deadline to complete service of process. The Court also confirmed that trial courts must extend the time for service if the plaintiff shows good cause for the failure to complete service of process in a timely manner. While the defendant correctly pointed out that if the plaintiff files a general motion to extend time after an original deadline has expired Rule 6 of the Arizona Rules of Civil Procedure (which deals with extensions of time under the rules) requires the plaintiff to show that the failure was due to excusable neglect, the Court held that Rule 6 does not apply to initial motions to extend the time to complete service of process. In particular, the Court determined that Rule 4(i) is a specific rule which applies to service of process and takes precedence over the conflicting standards set forth in Rule 6. However, Rule 4(i) only applies to initial motions to extend the time to complete service of process. Rule 6 applies to all subsequent motions to extend the deadline for service as the new deadline would be based on a court order, rather than the time limitations set forth in Rule 4(i). Even in that scenario, if the plaintiff files the second motion to extend the time to complete service of process before the time limit expires, the trial court may grant the motion if good cause is shown. It is only if the plaintiff fails to file the motion within the original extension that the trial court will require the plaintiff to prove “excusable neglect” for failing to meet the deadline.
Since the trial court denied the defendant’s motion to dismiss and motion for reconsideration without making a specific finding, the Arizona Supreme Court was left to determine if it could affirm the trial court ruling on any basis supported by the record. The Court first determined whether there was good cause to extend the time for service of process, and the Court found that there was none. In order for the good cause exemption to apply, the plaintiff must show that they exercised reasonable diligence in trying to serve the defendant. “Reasonable diligence” requires the plaintiff to provide the trial court with a valid reason or explanation for failing to serve the defendant within the 90-day time period. Ignorance, mistake, and inadvertence do not constitute a valid reason for missing the deadline.
The plaintiff’s attorney claimed that he was unable to complete service because they were busy identifying the other defendants and locating another doctor, but the Arizona Supreme Court found that being preoccupied with other parties and claims is not a valid reason for failing to timely serve another defendant. The Court also found that the plaintiff did not act diligently in attempting to complete service of process as she only attempted service six times over fourteen days of the allotted 90-day period. Diligence generally requires the plaintiff to make multiple attempts to serve a party throughout the 90-day period, and abandoning service after a few unsuccessful attempts to serve does not constitute diligence. Additionally, it was clear that the plaintiff made no attempt to serve the defendant at his business, or even attempt to use an alternative means of service, such as mail or publication. Based upon the foregoing, the Court found that there was no good cause to allow an extension of the original 90-day period for service of process.
Since the Arizona Supreme Court could not support the trial court’s ruling based upon the good cause exception, the Court then analyzed whether there was another fact which would have given the trial court discretion to extend the time for service. The discretion to extend the time for service is not “limitless” and must be based upon facts contained in the record. Trial courts will look at several factors, including whether the applicable statute of limitations bars the plaintiff from re-filing the action; whether the defendant had evaded service; and whether the defendant will be prejudiced if the trial court grants the extension. In this case the Arizona Supreme Court found that the plaintiff waived the argument that her claim would be barred by the statute of limitations because she did not present any evidence on this issue to the trial court. However, the Court also found that there was no evidence to show the defendant would be prejudiced by the delay. Even though more than 20 years had passed since the incident occurred, there was no evidence to show that evidence had be lost or that witnesses were no longer available as a result of the plaintiff’s delay. While the defendant had lost the ability to have the case dismissed on the grounds of abatement, this did not qualify as a showing of prejudice due to untimely service of process.
After rejecting every argument presented by plaintiff’s counsel, the Court found one fact it could use to support its position: the defendant possibly evaded service because someone had removed a package from his door step on July 27th or July 28th, and his affidavit only stated that he was out of town for “approximately one week in early August,” leaving open the possibility that he was home when the package was removed. This one fact allowed the Arizona Supreme Court to find that the trial court did not abuse its discretion when it denied the defendant’s motion to dismiss.
While it appears as though Arizona trial courts are given broad discretion to latch onto any fact to justify extending the time for service of process, the same cannot be said with respect to defendants who fail to file a timely answer when served with a summons and complaint. If your insured is served with a summons and complaint, they must act promptly and diligently to avoid a potential default judgment.
The attorneys at Thomas Rubin & Kelley are litigators. We will look at every avenue available to potentially dismiss a case for insufficient or improper service of process. These defenses must be asserted as early as possible in a case to avoid any argument that the issue has been waived. When you need prompt and efficient legal service, you can rely on Thomas Rubin & Kelley to be there for you and your insureds.
Please feel free to contact us if you have any questions regarding this article or need assistance with any of your Arizona claims.
TRK's Response to COVID-19
As COVID-19 continues to affect us all, we would like to assure you that Thomas Rubin & Kelley remains fully operational and prepared to respond to all of our clients’ needs. We are taking preventative measures to ensure the safety of our employees while continuing to provide our clients with uninterrupted service. Please continue to use your normal method of contacting us. Our plan includes contingencies to ensure that we receive all communications in real time.
To this end, we want to keep you fully informed of the steps we have taken to ensure business continuity for all of our clients as well as the action we are taking to slow the transmission of COVID-19 for the health of our employees and our communities.
Business Continuity Plan: We have a comprehensive plan in place to ensure you will continue to have access to the resources and services you require. These plans were developed to cover any contingency that might interrupt day-to-day business, and they have been updated to account for new challenges caused by COVID-19.
Remote Workforce: Our attorneys AND professional staff are equipped to work remotely. We have ensured that our entire support staff are able to work remotely without interruption. This is a normal work practice for our attorneys and legal professionals, and you will see no change in our ability to maintain the level of service that you have come to expect from us.
In Person Meeting Restrictions: We have instructed employees to leverage technology and conduct internal and external meetings virtually as much as possible. All depositions at this time, if they are not postponed, are being conducted via videoconference. We will continue to update our staff and workspaces with the latest health and wellness practices and tips provided by the United States Center for Disease Control.
Client Guidelines and Expectations: We are continuously updating our plans according to our clients’ instructions We are meeting these expectations to minimize business interruption but also to protect the health and safety of our employees and our clients. Should you have any specific instructions in response to COVID-19, please communicate them to us.
Court Updates and Closures: We are continuously monitoring the changes within our court system in both Arizona and California and will keep you updated as changes are announced.
This is an unprecedented time for everyone, and the situation remains fluid as the recommended precautions and best practices are changing daily. We are committed to maintaining our business operations and ensuring that you will continue to receive the highest quality service from us, regardless of our ability to access our physical offices.
We are fortunate that we can make these changes with no business disruption. Our hearts and thoughts go out to those people who have been directly affected by this unprecedented event, and we thank the healthcare workers, local communities, and governments around the world who are on the front line working to contain this coronavirus. We will continue to actively monitor the situation and share updates as needed. We thank you for your continued trust in our firm. We wish you and your colleagues and loved ones good health and a speedy return to normalcy. In the interim please feel free to reach out, even if just to say hello.
Brian Rubin (brubin@trkfirm.com) • Michael Kelley (mkelley@trkfirm.com)
April Hancock (ahancock@trkfirm.com) • Kristen Briney (kbriney@trkfirm.com)
Brit Simon (bsimon@trkfirm.com)
Arizona Courts Respond to COVID-19
ARIZONA COURTS AND COVID-19
Updated as of: March 19, 2020
It is no secret that most industries in America are being affected by the COVID-19 virus (Coronavirus). The Arizona Supreme Court has issued an order providing updated guidelines with respect to court procedures in light of this current health crisis. Other branches of the Arizona court system have issued county-specific guidelines within the confines of those set forth by the Arizona Supreme Court. Thomas Rubin & Kelley, PC is actively monitoring these updates and we wanted to provide our clients with a summary of the guidelines that may affect ongoing matters, including those that are pre-litigation and those in active litigation. We will continue to keep our clients updated as additional guidelines are set forth by Arizona courts. This is certainly a difficult time for many people across the globe. Thomas Rubin & Kelley, PC is dedicated to continuing to protect our clients while simultaneously doing our part to combat the effects of the current health crisis. If you have any questions about the status of Arizona court systems or requirements, please do not hesitate to contact us.
Brian Rubin (602-604-7509 / brubin@trkfirm.com)
Michael Kelley (602-604-7505 / mkelley@trkfirm.com)
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ARIZONA SUPREME COURT
The Arizona Supreme Court issued an order on March 18, 2020, which provides updated protocols with respect to all Arizona state courts. The relevant guidelines are as follows:
All in person proceedings in all Arizona appellate, superior, justice, and municipal courts shall be avoided to the greatest extent possible.
All jury trials set for any date between March 18, 2020 and April 17, 2020 are to be rescheduled.
All local courts must liberally grant continuances and additional accommodations to parties, witnesses, jurors, and others with business before the courts.
The presiding superior court judge of each county must issue county-specific orders regarding in-person court proceedings that comply with CDC recommendations and protect the health and safety of all participants.
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DISTRICT COURT OF ARIZONA
The District Court of Arizona issued an order on March 18, 2020, which provides updated protocols with respect to all Arizona federal courts. The relevant guidelines are as follows:
All civil and criminal jury tries scheduled to commence on or before May 4, 2020 are continued pending further order of the Court.
Individual judges may continue to hold hearings, conferences, and bench trials that they deem necessary. Such proceedings shall be conducted by telephone or video-teleconference when feasible.
Premises Liability Law in Arizona: Defending Against the Mode of Operation Rule
This month’s article focuses on the history and application of the mode of operation rule in Arizona. Despite the allegations of some personal injury attorneys, the mode of operation rule does not apply to every slip and fall case and does not create a rule of absolute liability for business owners. As discussed below, the burden of proof remains with the Plaintiff, and there are multiple strategies to defending application of the rule in a premises liability case.
Arizona first adopted the mode of operation rule in 1966 in a case involving a grocery store customer who slipped on a piece of lettuce. In Rhodes v. El Rancho Markets, 4 Ariz. App. 183, 418 P.2d 613 (1966), the Arizona Court of Appeals took judicial notice of the fact that “in a self-service market operation . . . the customer is expected to handle and examine the produce displayed in the open bins.” Id. at 185, 418 P.2d at 615. Since, the risk of a customer slipping and falling was foreseeable by the grocer, the grocer had a duty to take “reasonable steps to obviate the danger.” Id.
Since Rhodes was decided, Arizona has expanded the mode of operation rule to cases involving almost all items dropped or spilled on the ground by other customers. The rule has been applied to cases involving lettuce, pizza, milk, grapes, soft drinks, water, and even liquids spilled by customers opening sealed bottles on display in the store. The rule is not limited in its application to the type of product as “the only real issue is whether or not [the business owner] could reasonably anticipate that [the item] would be spilled on a regular basis.” Chiara v. Fry's Food Stores, 152 Ariz. 398, 401, 733 P.2d 283, 286 (1987). However, the Arizona Supreme Court has recognized that the mode of operation rule “is of limited application” because “if the rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law.” Id.
For the mode of operation rule to apply, the Plaintiff bears the burden of proving unreasonably dangerous conditions regularly occurred, and the store failed to exercise reasonable care under the circumstances. The standard jury instruction states the following:
Even if you find that Defendant had no notice of the unreasonably dangerous condition that Plaintiff claims caused harm, Defendant was negligent if you find the following:
Defendant adopted a method of operation from which it could reasonably be anticipated that unreasonably dangerous conditions would regularly arise; and
Defendant failed to exercise reasonable care to prevent harm under those circumstances.
REVISED ARIZONA JURY INSTRUCTIONS (CIVIL) 6th, Premises Liability 1A.
One way to challenge the rule is to hold Plaintiff to his or her burden of proving “unreasonably dangerous conditions would regularly arise” prior to the accident. “Since people can and daily do sustain injuries from almost all conceivable conditions under a multitude of varying circumstances, and since the possessor of the premises is not an insurer of the safety of invitees, the line between liability and nonliability must be drawn at some point.” Berne v. Greyhound Parks, 104 Ariz. 38, 448 P.2d 388 (1968).
The first hurdle a Plaintiff faces is proving the condition was “unreasonably dangerous.” “Defective conditions are not necessarily dangerous conditions.” Id. at 41, 448 P.3d at 391. A “defective condition” is only a “dangerous condition” if it involved “an unreasonable risk of harm.” Id. As such, while a crack in the grandstands which allows spilled liquid to drip onto the floor below might be a defective condition, it is not an unreasonably dangerous condition unless there is evidence to prove spills regularly dripped to the floor below, creating an unreasonable risk of harm to other patrons. Berne v. Greyhound Parks, 104 Ariz. 38, 448 P.2d 388 (1968). In Berne, the Court refused to apply the mode of operation rule when the evidence only showed that spilled liquids dripped through cracks at wide and irregular intervals, and there was no evidence to prove that other customers had slipped on dripping liquids.
The Plaintiff must also prove the condition would “regularly arise” prior to their accident for the mode of operation rule to apply. “Regular” is defined as "customary, usual, or normal." Borota v. Univ. Med. Ctr., 176 Ariz. 394, 396, 861 P.2d 679, 681 (Ariz. App. 1993). If the evidence establishes spills do not occur very often, that would be “the opposite of the mode-of-operation rule” and “insufficient to establish that third-party interference was reasonably foreseeable so as to invoke that rule.” Id. at 396, 861 P.2d. at 681. For example, in Borata, the Arizona Court of Appeals held a hospital was entitled to summary judgment because the Plaintiff was unable to establish that spills regularly occurred in the hallway where she fell. However, the Arizona Supreme Court has upheld the application of the rule where testimony was elicited from employees that there were “lots of things” to clean up and “it’s not the cleanest place.” Chiara, 152 Ariz. at 401, 733 P.2d at 286. Conversely, the Arizona Court of Appeals affirmed summary judgment in favor of a drug store where the store manager only testified “things would end up on the floor” and would have to be cleaned up “from time to time.” Contreras v. Walgreens Drug Store #3837, 214 Ariz. 137, 140, 149 P.3d 761, 764 (Ariz. App. 2006). While the store manager admitted it was “typical” for “a couple of spills a week” to require cleaning, he also testified that spills were not “repetitive in nature” or “something that [he] would expect.” Id. Since there was no evidence the spilled liquid “reached the floor nor that those spills occurred in the area of the store accessible to customers,” the Plaintiff had not met his burden of proving that prior spills “regularly created a hazardous condition.” Id.
Even if there is enough evidence to prove unreasonably dangerous conditions regularly occurred, the Plaintiff still bears the burden of proving the store failed to exercise reasonable care to prevent harm under the circumstances. While this is the Plaintiff’s burden “a defendant involved in a jury trial will want to introduce any and all evidence indicating that it exercised reasonable care under the circumstances.” Chiara, 152 Ariz. at 402, 733 P.2d at 287. This may include testimony from a member of management establishing how employees are trained on the prevention of customer accidents, testimony from employees regarding their inspection and cleaning of the premises on the day of the accident, and copies of written policies and procedures. According to the Arizona Supreme Court, “If the business was exercising reasonable care under the circumstances, the business will prevail at trial.” Id. at 401, 733 P.2d at 286.
In all mode of operation cases, consideration should be given to identifying the unknown individual who created the condition as a non-party at fault. Arizona is a pure comparative fault state, and Defendants may identify non-parties at fault within 150 days of the filing of their answer. This procedure allows the jury to assess a percentage of fault upon the individual who negligently created the condition and failed to remedy the condition or notify the business of the condition in time to provide a remedy or warning. See, e.g., McKillip v. Smitty's Super Valu, 190 Ariz. 61, 65, 945 P.2d 372, 376 (Ariz. App. 1997)(holding it was proper for a jury to apportion 65% of the fault to the unknown customer who dropped wax paper on the floor even though “how the paper reached the floor, whether a person dropped the paper, and how long the paper rested on the floor [were] all unknown”).
The mode of operation rule is not the death knell in a premises liability case. Many Plaintiff’s attorneys fail to take the depositions of Defendant’s employees to establish unreasonably dangerous conditions regularly occurred prior to the accident. Defense counsel may also be able to elicit testimony from the Plaintiff that he or she regularly patronized the establishment and is unaware of prior spills or customer accidents on the premises. With the right testimony, and hopefully good video surveillance footage, a motion for summary judgment can be successful.
This article was written by Michael Kelley, a Partner at Thomas Rubin & Kelley PC. Mr. Kelley is an experienced trial lawyer and specializes in premises liability, automobile negligence, homeowner’s liability, insurance coverage, insurance bad faith, and appeals. Please feel free to contact Mr. Kelley should you need legal assistance on your Arizona cases. mkelley@trkfirm.com
Avoiding Pitfalls with Arizona’s Unfair Claims Settlement Practices Act
This month, we want to discuss three areas of the Arizona Unfair Claims Settlement Practices Act that tend to generate a number of questions from insurers. Please keep in mind that the Arizona Unfair Claims Settlement Practices Act does not create a private cause of action for an insured and cannot be used to instruct a jury in a bad faith case. However, the Unfair Claims Settlement Practices Act and regulations set forth under the Arizona Administrative Code provide specific standards for conduct during an insurer’s daily investigation, evaluation and processing of claims.
Does an insurer need to notify a third-party claimant that the statute of limitation is about to expire?
Yes, pursuant to Arizona Administrative Code Rule 20-6-801(G)(4), insurers shall not continue negotiations for settlement of a claim directly with a claimant who is neither an attorney or represented by an attorney until the claimant’s rights may be affected by the statute of limitations without giving the claimant written notice of the statute of limitations and that the statute of limitations may affect the claimant’s rights. In a third-party situation, this notice needs to be given to claimants at least sixty (60) days before the date on which the statute of limitations may expire. Some attorneys may argue that if the insurer fails to provide this notice, the statute of limitations is tolled on the claim, thus preventing dismissal of an untimely filed lawsuit. However, any argument that the statute of limitations defense has been waived or tolled by promissory estoppel or equitable estoppel will likely fail absent a specific promise to toll the statute of limitations during settlement negotiations. Nevertheless, it always best to disclose the applicable statute of limitations to unrepresented claimants early and often to avoid having to defend these types of arguments.
Does an insurer need to disclose all pertinent coverages to a first party insured?
Yes, pursuant to Arizona Administrative Code Rule 20-6-801(D)(1), an insurer has an obligation to advise an insured of all pertinent policy provisions when a claim is presented. Thus, if an insured submits a med pay claim for an accident involving an uninsured motorist, the carrier is under an obligation to point out to the insured that uninsured motorist coverage may apply to the loss as well if uninsured motorist coverage exists on the policy. Rule 20-6-801(E)(4) also requires the insurer, upon receiving notification of a claim, to promptly provide necessary claim forms, instructions, and reasonable assistance so that first party claimants can comply with the policy conditions and the insurer’s reasonable requirements. Ultimately, the insurer has a duty to treat the insured fairly, and providing notice of applicable coverages and forms is one way to make sure insurers are complying with this duty.
Does an insurer have to cite pertinent policy provisions in a written denial of coverage?
Yes, under Arizona Administrative Code Rule 20-6-801(G)(1)(a), an insurer, when denying a claim, must reference provisions, conditions, or exclusions which form the grounds of the written denial. Regardless of this rule, it is always best to inform the insured of specific policy language which forms the basis of a denial to avoid confusion and to give the insured a fair opportunity to respond to the denial.
If you have additional questions about the Arizona Unfair Claims Settlement Practices Act or we can assist with any potential case, please contact Brian Rubin brubin@trkfirm.com or Michael Kelley mkelley@trkfirm.com.
Unnecessary Roughness: Potential Civil Liability for Sports Injuries
Anyone who enjoys watching sports can describe the audible groan heard amongst the crowd when a player is injured during a game. Whether the players are recreational level athletes, high school athletes, or professional athletes; injuries are certainly commonplace in most sports. However, some athletes have decided to seek compensation for their injuries from other players and coaches, which begs the question – who is responsible? This question was recently highlighted by national news networks when an NFL player for the Cleveland Browns and a player for the Pittsburgh Steelers had a physical altercation during a game, which resulted in the Browns player striking the Steelers player over the head with a helmet.
The most cited case with respect to negligence in sports is Hackbart v. Cincinnati Bengals, Inc., wherein a player sued another player for injuries caused during an NFL game. In that case, an angry and emotional player struck a blow to the back of an opposing player’s head. The injured player sued under theories of negligence and reckless misconduct. In 1979, the Tenth Circuit Court of Appeals held that even if an opposing player breaches a duty owed by striking another player, the football player assumed the risk of such an injury due to the level of violence and the frequency of emotional outbursts in the NFL.
With respect to Arizona, in 1999 a recreational softball player was injured when an opposing player stepped on his leg during a game. As a result, the injured player initiated a negligence action against the opposing player in a case titled Estes v. Tripson. In that case, the Court held that the opposing player did nothing to “exacerbate the inherent risks” that a softball player faces when he plays the game and, therefore, was not liable for negligence. A common theme across these cases is the acknowledgement that there is some degree of assumption of risk amongst those who engage in athletics.
What about a situation where a player is injured due to negligently maintained property? In 2000, an Arizona court addressed that issue in Benjamin v. Gear Roller Hockey Equipment, Inc.. In that case, the Plaintiff was an experienced roller-blader who tripped and fell during a roller hockey match due to an uneven skating floor at a roller hockey rink. The Plaintiff alleged that the roller rink negligently maintained their skating floor and was therefore liable for his injuries. The roller rink argued that the Plaintiff had signed a waiver and release of liability agreement prior to participating the hockey league. Therefore, the rink argued there was no basis for which he could sue the rink for negligence. The Court agreed with the roller rink and held that the Plaintiff was familiar with the risks of roller hockey, including the fact that there would be problems with the skating surface which could cause an accident, and yet he still chose to sign the liability release. The Plaintiff was also a lawyer who understood the meaning of the term negligence, so he could not testify that he did not understand what rights he had waived when he signed the waiver and release of liability agreement. A different result was reached in 2005 when the Arizona Supreme Court held in Phelps v. Firebird Raceway, Inc. that summary judgment is not appropriate, even if there is a signed waiver, because the Arizona Constitution provides that assumption of risk is "in all cases whatsoever" and "at all times” a question of fact for the jury.
More recently, a high school baseball coach in New Jersey was sued by a player who was injured after the coach instructed him to slide into third base during a game. The player’s family sued the coach for negligence and alleged that he gave the player reckless advice which caused him injury. The trial court initially granted summary judgment in favor of the coach, but the Court of Appeals reversed, thus allowing the case to proceed to a jury trial. The jury ultimately decided that the coach was not liable for the player’s injuries because they did not believe the coach acted recklessly. However, the lawsuit lasted over seven years and cost over $75,000.00 to defend – a hefty price tag for a coach simply telling a player to slide during a baseball game.
It is important to note that while each of these cases had an end which was favorable to their respective defendants, that does not minimize the fact that these suits are filed and cost a considerable amount to defend. There are also many scenarios where the cause of injury is so far outside the known risks associated with the sport that the defendant cannot avoid liability by arguing the other player assumed the risk of injury.
The attorneys at Thomas Rubin & Kelley PC have extensive experience handling negligence and premises liability cases. Please feel free to contact us if you need assistance with any of your Arizona claims.
Kristen Briney Presents at the January 2020 Arizona Insurance Claims Association
Kristen Briney recently participated in a panel discussion at the January 2020 Arizona Insurance Claims Association meeting. Along with an expert and local claims handler, Kristen discussed the legal implications of using vehicle data. In addition, Kristen provided insight as to legal aspects with respect to obtaining and utilizing said data.