All Topics

• Failure to Plead Sufficient Facts - The New Legal Malpractice?

  Geoff Trachtenberg | October 21, 2007 3:48 PM | 0 CommentsScottsdale, AZ

  There's a new case out this week from Division Two, Cullen v. Koty-Leavitt Insurance, which deals with the reasonable expectations doctrine in the UIM setting. The case is not particularly fascinating from a substantive perspective, but it raises questions about potential legal malpractice exposure.In sum, Cullen filed a UIM claim based upon the fact that his family was given the right to...

• Defamation, Intentional Infliction of Emotional Distress and the Relationship of Larry Flynt and Jerry Falwell

  Geoff Trachtenberg | May 16, 2007 3:46 PM | 0 CommentsScottsdale, AZ

  I often get asked about defamation suits and whether they are viable. Every time I deal with the issue I explain that the close cousin of defamation is intentional infliction of emotional distress and that both present difficult challenges. While defamation liability can be established fairly easily, damages can prove a problem for most cases. Intentional infliction of emotional distress, by...

• Mandatory Closing Provisions Strictly Enforced in Real Estate Purchase Contracts

  Geoff Trachtenberg | March 11, 2008 12:41 PM | 0 CommentsScottsdale, AZ

  That hissing sound you hear is not just air coming out of the real estate bubble, it's the folks at Mining Investment Group, LLC ("MIG") who today learned the importance of a mandatory closing date where a contract specifies that "time is of the essence." The case, Mining Investment Group, LLC v. Roberts, shows just how strictly the courts will interpret real estate purchase contracts - indeed,...

• Heirs Have the Right to Redeem Tax Liens As a Matter of Law, Setting Aside a Default Judgment and Rule 11 Sanctions Imposed on an Heir That Was Not Made a Party to a Lien Foreclosure Action

  Geoff Trachtenberg | May 31, 2007 11:29 AM | 0 CommentsScottsdale, AZ

  Real estate is one of this author's favorite "hobbies" of late -- call it schadenfreude, but the real estate roller coaster is at least as good as reality television, and better than Grey's Anatomy. As a result, it is not surprising that we should see more real estate cases come out of the woodwork, especially those related to foreclosure. Today Division One published Roberts v. Robert, which...

• Business Owners Now Owe Nondelegable Duties to Keep Premises Reasonably Safe

  Geoff Trachtenberg | December 26, 2007 1:18 PM | 0 CommentsScottsdale, AZ

  "Attention Safeway shoppers, business owners now owe nondelegable duties to their invitees to keep their premises reasonably safe."Steven H. Simon sued Safeway after he was injured during a store altercation with a security guard who "physically and sexually" assaulted him. The guard was employed by a third-party company who had contracted with Safeway. He mistakenly concluded that Mr. Simon...

• Supreme Court Accepts Review in State Farm v. Premier

  Geoff Trachtenberg | May 25, 2007 9:02 AM | 0 CommentsScottsdale, AZ

  Late last year Division One handed down an awful decision in State Farm Ins. Cos. v. Premier Manufactured Systems, Inc., in which the court addressed whether the principles of comparative fault established are applicable to the participants in the chain of distribution of an allegedly defective product. In essence, Division One held that Arizona's comparative fault statute overrules...

• Legal Malpractice and Breach of Fiduciary Duty

  Geoff Trachtenberg | March 31, 2007 9:46 AM | 0 CommentsScottsdale, AZ

  Many people do not understand the difference between legal malpractice and breach of fiduciary duty.Legal malpractice arises when an attorney owes someone a duty of care and, by an act or omission, the attorney's conduct breaches that duty of care and causes that person cognizable harm. While the "person" harmed is typically a client, an attorney-client relationship is not required and legal...

• Assignments vs. Liens In the Personal Injury Context

  Geoff Trachtenberg | December 09, 2007 8:41 AM | 0 CommentsScottsdale, AZ

  A large number of people, attorneys included, don't know the difference between "assignments" and "liens."Why does it matter, you ask? For a number of reasons that will be more obvious when the difference is understood.An assignment is the easier of the two to understand since, as the name implies, it is an transfer of all or some rights or property to a third-party. Although an assignor...

• The Difference Between Wrongful Death and Survival Actions

  Geoff Trachtenberg | April 22, 2007 9:44 AM | 0 CommentsScottsdale, AZ

  Arizona law provides for two causes of action when someone dies: a wrongful death claim and a survival action. The purpose of providing both actions is to give the parties damaged a complete remedy and opportunity to recover the loss sustained.The wrongful death action is intended to benefit certain survivors -- called statutory beneficiaries -- such as the decedent's parents, children, and...

• Statutes and Rules that Require Mandatory Disclosure of Medical Records Violate HIPPA

  Geoff Trachtenberg | May 19, 2007 8:34 PM | 0 CommentsScottsdale, AZ

  Arizona requires mandatory disclosure of medical records in medical malpractice cases and, amazingly, is currently considering a change to mandatory arbitration procedures to require the same thing. As we have often explained, these provisions violate HIPPA, the comprehensive federal scheme that provides essential privacy rights for medical records.The voice of reason is finally kicking in: ...