- Geoff Trachtenberg | May 31, 2007 11:29 AM |
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MiscellaneousReal 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...
- Geoff Trachtenberg | May 26, 2007 3:43 PM |
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Wrongful DeathDivision One just put out an opinion in Girouard v.Skyline Steel involving interpretation of the wrongful death statute. The case involved admitted liability, but disputed damages where the decedent burned to death in car accident. The Court clarified that, while pre-death suffering is not compensable in a wrongful death action, the horrific circumstances of the death, the necessity of closed...
- Geoff Trachtenberg | May 25, 2007 9:02 AM |
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MiscellaneousLate 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...
- Geoff Trachtenberg | May 24, 2007 1:50 PM |
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MiscellaneousYou know the old phrase from algebra, "show your work," well that is the message to the trial courts. Regretably, trial courts often rule on disputed issues with nothing more than a summary decision and without articulating their reasoning. Obviously, some of this is due the sheer volume of work that trial courts perform, but some of it is also due to habit and being lazy.The trouble with such...
- Geoff Trachtenberg | May 23, 2007 1:40 PM |
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Automobile AccidentsNew case from Division One, Felder v. Physiotherapy Assoc., that has some good stuff in it concerning lost earning capacity and anxiety over the "increased risk" of harm.The first and main issue in the case concerns the quantum of evidence needed to prove lost earning capacity. Although the standard is "reasonable certainty" in predicting the future in such cases, the Court "conclude[d] that...
- Geoff Trachtenberg | May 19, 2007 8:34 PM |
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Automobile AccidentsArizona 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: ...
- Geoff Trachtenberg | May 18, 2007 9:03 PM |
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MiscellaneousGenerally, but the remedies are very much stacked against you.Arizona workers' compensation laws are your avenue for redress if you have sustained injuries at work as a result of a co-worker or employer. You don't need to show negligence on the part of your employer to make a claim. What you need to show is that you were in the "course and scope" of your employment at the time you were injured...
- Geoff Trachtenberg | May 18, 2007 10:39 AM |
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Automobile AccidentsIn Arizona, if you are under 18, your application for an instruction permit or driver's license must be signed by at least one adult. The adult may be responsible for any negligence or willful misconduct when the minor is driving.The statute, A.R.S. 28-3160, provides that "[n]egligence or wilful misconduct of a minor when driving a motor vehicle on a highway is imputed to the person who signs...
- Geoff Trachtenberg | May 16, 2007 3:46 PM |
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MiscellaneousI 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...
- Geoff Trachtenberg | May 15, 2007 8:56 PM |
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MiscellaneousYou can typically recover if you are injured by someone's dog, and generally their homeowner's insurance policy will provide liability coverage for these accidents. In addition, in Arizona we have a dog bite statute creating strict liability for such situations. Therefore, dog owners are liable for such injuries regardless of fault or alleged provacation of the dog.
- Geoff Trachtenberg | May 14, 2007 8:43 PM |
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Automobile AccidentsThis report published by Rueters says that if "the typical stay-at-home mother in the United States were paid for her work as a housekeeper, cook and psychologist among other roles, she would earn $138,095 a year."This is an important study because the issue often comes up about the value of domestic services in personal injury litigaton. Perhaps this data can be reasonably relied upon by an...
- Geoff Trachtenberg | May 12, 2007 9:23 PM |
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Medical MalpracticeAs any medical malpractice attorney worth their salt will tell you, there is absolutely no epidemic of plaintiffs' medical malpractice verdicts. As these attorneys know, very,very few medical malpractice cases are worth pursuing and fewer still result in a monetary award or settlement. Indeed, it is somewhat laughable that so-called tort reformers advance medical malpractice caps of $250,000...
- Geoff Trachtenberg | May 11, 2007 5:12 PM |
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Automobile AccidentsThe other day, Division One affirmed the trial court's granting summary judgment to a livestock owner in connection with an accident occurring on a portion of unfenced "open range" land. The case, Brookover v. Roberts Enterprises, Inc., held that the plaintiff failed to show facts evidencing conduct below the applicable standard of "ordinary care."To get there the Court of Appeals seized upon...
- Geoff Trachtenberg | May 10, 2007 9:40 AM |
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Medical MalpracticeDid you know that a confidentiality clause can have tax consequences? This was the subject of a United States Tax Court opinion in Amos v. IRS (2003), the case where Dennis Rodman kicked a courtside TV cameraman in the groin.The Court held that, if a portion of a settlement is attributable to a confidentiality agreement, that portion is taxable. It is not clear what the long-term effects are...
- Geoff Trachtenberg | May 09, 2007 9:54 PM |
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MiscellaneousRoy L. Pearson Jr. might regret going after a dry cleaners for a lost pair of pants. A panel of four Washington DC officials is considering whether he should return as an administrative law judge for his bringing and maintaining a $65 million suit agaist the cleaners.
- Geoff Trachtenberg | May 08, 2007 12:59 PM |
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MiscellaneousRarely do I find it necessary to write about cases that should never be filed, after all, there are enough people who love to blog about the absurdities of the law. That being said, the case of the Hon. Roy Person, Jr. versus Custom Cleaners is the single-worst example of abusive litigation that I recall having ever seen or heard of.It is safe to say, the Hon. Roy Pearson, Jr. demands...
- Geoff Trachtenberg | May 07, 2007 9:41 PM |
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MiscellaneousMost people do not normally focus on family law issues in personal injury matters, but believe it or not, such issues can make a difference for clients with child support obligations, or even potential future child support obligations. Now, at the outset, let me state clearly that it is every parent's obligation to properly and responsibly care for their children. That being said, divorced...
- Geoff Trachtenberg | May 06, 2007 2:15 PM |
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MiscellaneousAs we have noted in the past, "getting the money and keeping the money" are two different and equally difficult issues in personal injury matters. In many cases, there are liens on recoveries, such as when Medicaid pays all or part of a person's bills.One issue that often arises is the extent to which a third-party can assert a lien. In Arkansas Dept. of Health and Human Servs. v Ahlborn, 547...
- Geoff Trachtenberg | May 05, 2007 1:41 PM |
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MiscellaneousThese days, most people know that both state and federal "Freedom of Information Acts" require the dicslosure of public records. After all, such documents technically "belong to the people" and are created in connection with public service. Indeed, ARS 39-121 provides that "public records and other matters in the custody of any officer shall be open to inspection by any person at all times...
- Geoff Trachtenberg | May 04, 2007 9:36 PM |
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MiscellaneousTo be filed in the "gluttons for punishment" folder, the case of Fulton Homes Corporation v. BBP Concrete that was recently published by Division One.The case affirms an award of $12,000, or $6,000 each, to two parties who Fulton dragged into a lawsuit because, well, "they could" under Rule 14.In short, Fulton pulled in two third-party defendants to a lawsuit under the premise that they were...
- Geoff Trachtenberg | May 03, 2007 9:29 AM |
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Automobile AccidentsA New York personal injury lawyer was recently disbarred for basically "being an asshole." Although I can hardly endorse his brash style (e.g., telling the judge to "Kiss my tuchis!"), it is interesting what other New York attorneys had to say: "Personally, I find him abrasive, angry, tough, fierce, and frightening," says attorney Ron Kuby. "You know, the qualities you usually want in a...
- Geoff Trachtenberg | May 02, 2007 9:18 AM |
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MiscellaneousLawyers are governed by a comprehensive set of ethical rules which, when violated, often lead to civil liability regardless of the ethical violation (e.g., stealing from clients), but what impact does a rule violation have on legal malpractice or other claims against a lawyer? Arizona's ethical rules contain the following Preamble: Violation of a Rule should not itself give rise to a cause of...
- Geoff Trachtenberg | May 01, 2007 10:22 PM |
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MiscellaneousJoe Francis of Girls Gone Wild has been in the press lately, mainly because he is reportedly losing it inside prison without his bottled water and anti-anxiety medication. The reason he is behind bars is a little more complicated, but it is basically because he pissed off a federal judge. Never a good move.Anyway, reading about him refreshed my memory that a respected colleague recently sued...