Scottsdale Personal Injury Lawyer - Car Accidents

No Personal Jurisdiction Over Across-the-Border Bar That Overserves Patron Killing Arizona Pedestrian

Geoff Trachtenberg — Fri, 29 Feb 2008 12:34:51 GMT

Interesting and disappointing personal jurisdiction memo opinion from Division One, Womack v. KC Arena. In short, KC operates a bar on the Nevada side of the Arizona-Nevada border, over served a patron who then drove across the state line and killed an Arizona pedestrian. Moreover, plaintiffs asserted that KC employees knew the patron lived in Bullhead City and that he would return there after he left the facility.

KC filed a motion to dismiss based upon a lack of personal jurisdiction. The plaintiffs opposed the motion, asserted general and specific personal jurisdiction, and (smartly) requested the opportunity to conduct discovery on the issue of personal jurisdiction. The trial court, however, granted KC's motion and Division One affirmed!

General personal jurisdiction over any claim against a defendant arises when the defendant has "substantial" or "continuous and systematic" contacts with the state. Though the record contained evidence that KC (1) advertises on television broadcasts in Arizona; (2) lists its establishment in various Arizona telephone directories; (3) employs Arizona residents; and (4) maintained an interactive website that has a "chat room" and solicits email, the Court of Appeals determined that these contacts were insufficient for general personal jurisdiction (they claimed to ignore the website since it was not, apparently, raised in the trial court).

Specific personal jurisdiction over a related claim against a defendant arises when (1) the defendant performed some act or consummated some transaction with the state by which it "purposefully availed" itself of the privilege of conducting activities in the forum state; (2) the claim "arises out of or relates to" the defendant's forum-related activities; and (3) the exercise of jurisdiction would be reasonable. KC argued that there was not a sufficient nexus between the plaintiffs' claim and KC's contacts with Arizona - namely, its local television advertising and telephone directory listings - to support the exercise of specific jurisdiction because those contacts are unrelated to the events giving rise to the plaintiffs' claims. The Court essentially agreed, focusing particularly on the fact that the events giving rise to the liability occurred in Nevada and that the location of the "injury causing event" in Arizona was irrelevant.

The Court also affirmed the trial court's exercise of discretion in denying the plaintiffs an opportunity to conduct discovery because, in essence, the Court concluded that the additional discovery would not have made a difference in the analysis. Don't you love that kind of logic - speculating on the outcome of the appeal based upon discovery that was not allowed?

Personally, Judge Barker's concurrence makes the most sense to me:

KC runs a bar that is immediately across the river from Arizona. Certainly, the business of the bar, and plaintiffs' claim, "relate[] to" the steady stream of patrons that come to the bar from Arizona and re-enter Arizona after frequenting the bar's premises. KC chose to locate its bar in that location. It initiated those contacts. It should not be jurisdictionally immune from the impact that it is having on Arizona residents when it sends intoxicated drivers onto Arizona highways.

But, alas, it is so immune.

Originally posted at InjuryBoard by Geoff Trachtenberg

Arizona Supreme Court Finds No Workers' Compensation Offset for Underinsured Motorist Coverage

Geoff Trachtenberg — Thu, 10 Jan 2008 16:04:22 GMT

Today the Arizona Supreme Court issued an opinion in Cundiff v. State Farm Mutual Automobile Ins. Co. which dealt with workers' compensation offsets in underinsured motorist (UIM) claims.

Pima County Deputy Sheriff Jean Cundiff was injured by a third-party while on the job, in her patrol car. Although she was paid certain workers' compensation benefits, the third-party only carried $15,000 in liability coverage. So, after accepting these minimal limits, Ms. Cundiff made a UIM claim with her insurer, State Farm.

State Farm, however, had a term in its policy that provided for an offset against any UIM coverage based upon benefits received from a workers' compensation carrier. The provision stated that: "Any amount payable under [UIM] coverage shall be reduced by any amount paid or payable to or for the insured under any worker[s'] compensation, disability benefits, or similar law. This does not reduce the limits of liability required by law for this coverage."

The claim went to arbitration and Ms. Cundiff prevailed. Nevertheless, relying upon the foregoing provision, State Farm was only willing to pay a reduced amount of the arbitration award, i.e., an amount offset based upon the benefits Ms. Cundiff received from her workers' compensation carrier. So Ms. Cundiff sued State Farm for the full amount she was due pursuant to the arbitration award, without application of any offset.

The trial court and Court of Appeals (in a published decision) sided with State Farm, but the Arizona Supreme Court reversed these decisions. Based on the terms of the UIM statute, which override the terms of the State Farm policy, the Supreme Court explained that only "liability insurance" can be deducted from the full value of an insured's loss to reduce the amount of the claim -- that is, only proceeds received from a liability policy will be offset against the full value of an insured's claim. The Court explained that, since workers' compensation does not constitute "liability insurance," workers' compensation benefits cannot be offset against an insured's claim.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Geoff Trachtenberg

Supreme Scrooge: Arizona's Supreme Court Delivers a Serious Blow to Products Liability

Geoff Trachtenberg — Sun, 09 Dec 2007 06:32:12 GMT

Worried about lead in your toys this Christmas? You now have something else to worry about - if those toys harm or kill your children, your rights and remedies in the state of Arizona are under serious attack.

This week, in State Farm Ins. Co. v. Premier Mfg. Sys. Inc., the Arizona Supreme Court held that, despite centuries-old common law "strict liability" in product liability cases, Arizona's Legislature eliminated such protections (in 1984) when they enacted the Arizona Uniform Contribution Among Tortfeasors Act, commonly referred to as UCATA.

Historically, courts have afforded protection to the public in extraordinary situations by imposing "strict liability" on parties engaged in certain activities. Although strict liability has always been the exception in civil cases rather than the rule, it has long been the rule in certain types of cases, such as products liability or "ultra-hazardous" activities. This is due to the balance of harms to the public and the fact that, in the products liability context, manufacturers and distributors were typically in much better positions to take steps to prevent harm if they were all held strictly liable.

In Premier, the Supreme Court concluded that UCATA's adoption, more than 20 years ago, changed this landscape. The Court held that, under UCATA, manufacturers, distributors and all others involved in putting dangerous and defective products into the stream of commerce, are to be held responsible under traditional comparative fault laws.

What does this mean to you? Assume Hasbro imports a toy from China with lead paint, and better yet, assume Hasbro absolutely knows that the toys have lead paint. Assume there is a memorandum to the Board of Directors saying, "Dear Board, we have found that we can make an additional profit of .10 per toy if we use Lead Masters Production Company in Hong Kong because Lead Masters coats all their toys in lead that will probably cause permanent brain damage to the children that play with the toys."

What used to happen before Premier? Hasbro and Lead Masters Production Company were strictly liable for damages caused by the product, so a Board of Directors receiving such a memo would have an incentive to avoid such situations (and fire the morons who came up with such a scheme) because they would be just as liable as the Chinese company for any harm that resulted from their product.

What happens now, after Premier? Hasbro has little or no exposure. In a lawsuit over who is responsible for little Jimmy's permanent brain damage due to the hypothetical Hasbro toy above, the jury will be asked to apportion fault to the various parties bringing the toy to market. That means everyone from Lead Masters Production Company in Hong Kong, to the importing company, the shipping company, any middle-man merchants, Hasbro and the store, such as Wal-Mart, who sold the product that injured little Jimmy.

What will happen? Most of the time there will not be a memo, such as the one described above, but even if there was one, the party that actually produced the harmful product will be the one with all or most of the fault. And in those situations where the toy companies, such as Hasbro above, claim ignorance of the fact that lead was used and claim that they had no reason to know lead would be used in the product, what then? If the jury believes them, they will get away free of any responsibility.

Maybe you think, "well, that's not the end of the world." But imagine that Lead Masters Production Company in Hong Kong is no longer in business, has no insurance, is bankrupt or is nothing more than a couple of part-time rickshaw drivers who make toys on the weekend. Yes, it will be found responsible, but that won't matter to little Jimmy or his parents because they will have nothing more than a worthless pyrrhic victory and no way to pay for the special care that little Jimmy will need for the rest of his life.

This decision is devastating to those people harmed by products and must be addressed by the Legislature. And frankly, one cannot fault the courts for reaching the conclusion. The simple fact is that the courts must interpret the law and, due to the poor drafting of UCATA in 1984, the result handed down by the Supreme Court was, while dramatic and disappointing, probably inevitable.

One last point bears mentioning, UCATA needs to be amended to avoid the result in Premier in the products liability arena, but it also needs to be amended to apply only to negligence matters. UCATA is as inapplicable to intentional torts as it is to products liability, yet it is applied to intentional torts all the time. UCATA is a fine idea, but it should be limited to negligence cases so that, in those case, only parties who are at fault have to pay for the damages they cause in proportion to their fault.

For more information on this subject, please refer to the section on Defective and Dangerous Products.

Originally posted at InjuryBoard by Geoff Trachtenberg

$800,000 Wrongful Death Settlement for Motorcycle Collision in Arizona

Geoff Trachtenberg — Fri, 12 Oct 2007 17:31:07 GMT

Levenbaum & Cohen ("L&C") is pleased to report that the firm recently settled a motorcycle wrongful death case for $800,000.00. L&C, which also does business as The Law Tigers -- a group of attorneys concentrating in motorcycle injury -- obtained the settlement after two riders, one in his 70s and the other in her 50s, collided with a vehicle that was trying to pass a semi-truck.

If you or a family member has been injured in a motorcycle accident, please contact an attorney by filling out the form at right.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Geoff Trachtenberg

Court Permits Hospitals to Charge "Maximum Rates" to Those Who Can Least Afford It

Geoff Trachtenberg — Mon, 27 Aug 2007 14:43:32 GMT

Division One just handed down Banner Health v. Medical Savings Ins. Co., a terrible opinion which deals with whether a hospital can charge a patient and its "non-network insurer" full billed amounts historically paid by only two percent of all patients. The answer, for now, is yes in a two-to-one decision.

Incidentally, by "non-network insurer," I mean to refer to an insurer who has no agreement with the hospital - i.e., in this case Medical Savings Ins. Co. did not have an agreement with Banner Health. This scenario - i.e, someone who has insurance with a company who has no agreement with a specific medical provider - is probably more common than most people realize. In addition, although the case does not directly mention uninsured patients, the decision impacts them most of all.

Anyway, the majority held that the rate schedule filed with DHS is incorporated into Conditions of Admission ("COA") agreements, signed by the patients, regardless of whether the COAs refer to this rate schedule, because the statutory scheme for capping hospital rates is made part of the contract by operation of law (i.e., some of the challenged COAs referred to published DHS rates, and some did not). Likewise, the majority held that, as a matter of law, these published rates were neither unconscionable nor did they violate a patient's reasonable expectations because they were adopted pursuant to a scheme "sanctioned by a legislatively-created process."

Unfortunately, Judge Kessler was not able to convince his colleagues of his much more enlightened view (he, by the way, is a former medical malpractice lawyer with a great deal of experience in handling issues related to healthcare administration). He wrote a very good dissent, explaining that the purpose of the publication statute is to limit the amount of rates charged by hospitals and to promote competition among healthcare providers, not to regulate hospital charges. Judge Kessler explained:

To state that they are the only rates chargeable under the law not only misconstrues the effect of the statute, but also its purpose. The legislature had no intent to create a schedule of rates by which the hospitals must operate. Its intent was exactly the opposite: to deregulate the cost of healthcare and allow for private forces to assume that responsibility.

Judge Kessler correctly noted that the statutory scheme was not designed to pass upon the reasonableness of hospital rates whatsoever. He observed that "[i]t is merely a publication vehicle meant to facilitate free market forces within the healthcare field." Thus, since it is a "publication vehicle" without any substantive mandate or oversight, even if such a "scheme" was read into the COAs, one cannot take the next leap and impose the subsequent published rates into COAs that do not even refer to the published rates. Judge Kessler is right.

Next, Judge Kessler points out that it was inappropriate for the Court to determine that the doctrines of unconscionably and reasonable expectations should not be considered. Since the statutory scheme is simply a "publication vehicle," it was not possible to conclude, as the majority did, that the rates were "sanctioned by a legislatively-created process." Yet, with respect to the COAs referencing the DHS rates, Judge Kessler indicated his view that there could not be a reasonable expectations challenge because of the specific reference. Still, he did not indicate his reasonable expectations view of those COAs that did not specifically refer to the DHS rates and, presumably, he would permit a reasonable expectations challenge to those COAs.

Notwithstanding all of this, Judge Kessler said all of the COAs were subject to unconscionably review and that the trial court erred in failing to consider whether the rates were unconscionable. As Judge Kessler explained:

MSIC and the patients argued the price terms of the COAs were unconscionable. In support of this argument, the patients or their representatives who signed the COAs presented affidavits stating that they signed the COAs in emergency situations, while they were under stress caused by their medical conditions or the medical conditions of their dependents. Several of the patients stated in their affidavits that the COAs were not explained to them by the hospital personnel when they signed them, and that they believed that signing the COAs was a prerequisite to treatment. Furthermore, MSIC submitted the deposition of Banner's Vice President of Finance, indicating that the cost-to-charge ratio for some medical treatments at Banner hospitals was as low as 19.77%.

These facts raise at least the specter of unconscionability as to the price terms in the COAs.

Yet, Judge Kessler observed the trial court and majority failed to consider this evidence. Indeed, the trial court applied the wrong standard, holding that "[t]here are no facts presented that support the claim that the rates were unreasonable," and Judge Kessler stated that "[u]nreasonability, however, is not the benchmark of unconscionability."

Judge Kessler also had several other astute observations. For example, in reference to whether patients where reasonably supposed to anticipate or understand the "576 pages of single-spaced" rates filed with DHS, he said such thinking was so unrealistic as to be "the modern day equivalent of the information given persons entering Dante Alighieri's vision of purgatory." He also shot down the hospital's "doomsday argument that the entire health care system will be undermined" if courts were allowed to evaluate the unconscionability of rates, noting "Banner conceded that it collects the filed rates from only approximately two percent of its patients."

So, in my opinion, this is quite a blow to patients who are uninsured or who happen to have insurance with the "wrong company" (i.e., one who has not contract with a healthcare provider). Those patients, which are always those who can least afford to be paying full-freight, are going to be devastated by this decision.

Originally posted at InjuryBoard by Geoff Trachtenberg

Arizona Courts Have General Personal Jurisdiction over Foreign Insurers

Geoff Trachtenberg — Mon, 27 Aug 2007 14:14:00 GMT

New decision from Division One, Bohreer v. Erie Ins. Exch.. Bohreer holds that an Arizona court has general personal jurisdiction over a foreign insurer which has appointed the Director of Insurance as an agent for service of process and has not withdrawn such qualification or appointment, but has ceased doing business in the state prior to the acts underlying the complaint. The Court held that exercising such jurisdiction did not violate due process.

Originally posted at InjuryBoard by Geoff Trachtenberg

Court Holds Offer of Judgment Sanctions Include All Reasonable Expert Fees

Geoff Trachtenberg — Tue, 19 Jun 2007 17:18:40 GMT

Division One handed down Levy v. Alfaro today which holds that Rule 68 sanctions include all reasonable expert witness fees after the offer, not just those fees for testifying at trial. The decision is no surprise to those of us who regulaly try cases, but I suppose it is good to have it "clarified."

Originally posted at InjuryBoard by Geoff Trachtenberg

Judicial Officers are Subject to the "De Facto Officer" Doctrine and Failure to Object to the Appointment of a Judge Pro Tempore is a Procedural Defect That Can Be Waived

Geoff Trachtenberg — Fri, 08 Jun 2007 08:49:57 GMT

Division One just handed down Garner v. Schindler, a short and sweet opinion on the nature of judges pro tempore (I am a judge pro tempore, by the way). In sum, the appellant had a probate dispute litigated before a judge pro tempore and, after the case was over, decided to raise (for the first time) hyper-technical defects in the judge's appointment.

The Court of Appeals, awknoweldged that there was a defect in the appointment of the judge pro tempore, but observed that the Supreme Court had previously applied the "de facto officer" doctrine in determining the validity of acts of other public officers whose appointment or election to the office was legally defective. The de facto officer doctrine applies as follows:

one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment [that would otherwise be] void by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

The Court recognized the sound policy behind the doctrie:

The de facto officer doctrine was developed to protect the public from the chaos and uncertainty that would ensue if actions taken by individuals apparently occupying government offices could later be invalidated by exposing defects in the officials' titles. The doctrine has generally been applied to individuals who are in possession of an office, are performing the duties of the office, and who maintain an appearance of right to the office.

The Court held that "[w]e do not perceive any reason why the doctrine of de facto officers . . . should not be extended to judges -- including judges pro tempore -- who occupy office under color of a known appointment that suffers from a procedural defect or irregularity that is unknown to the public." Indeed, "it makes little sense to waste 'valuable judicial and private resources' by '[r]equiring relitigation of matters decided by a competent, unbiased judge.'" "This is particularly so when, as here, the 'procedural defects in a judge's qualifications do not affect the fairness of the proceedings.'" Accordingly, the Court held that the de facto officer doctrine is applicable to judicial officers.

The Court then turned to whether the defect was "procedural" or "jurisdictional." The significance being that the former is subject to waiver, unlike the latter. The Court held that "the defect in the appointment process was a procedural error that [was] waived by not raising [it] before the probate hearing commenced."

Originally posted at InjuryBoard by Geoff Trachtenberg

Court of Appeals (Incorrectly) Dismisses Wrongful Death Appeal Due to Untimely Notice of Appeal After Plaintiff Attempts to Obtain a Change to the Breadth of the Trial Court's Judgment

Geoff Trachtenberg — Fri, 01 Jun 2007 15:00:33 GMT

Frank Zappa said, "We are a nation of laws; badly written and randomly enforced." That's probably the way that Joe Burkhamer feels, having lost his daughter (and son-in-law) in tragic accident in 2003, and now having had his appeal dismissed in a published opinion from Division Two, Burkhamer v. State of Arizona, because two of the three Judges on the panel decided that the appeal was filed too late.

Among other things, the case is an exercise in form over substance and a reminder of just how complicated the wrongful death statute is for people in the "real world." In Burkhamer, the parties (i.e., the surviving parents) blamed the State of Arizona for negligently designing and maintaining a road that caused the children's deaths. It is difficult to tell from the opinion, but it appears that Joe Burkhamer and his ex-wife had separate attorneys, separately filed their own Notices of Claim, but may have jointly filed an action against the State of Arizona, along with the parents of the other young man who was killed, altogether.

This, of course, is the first clue that things are squirrelly since we all know that, according to the Supreme Court's decision in Wilmot v. Wilmot, 203 Ariz. 565, 58 P.3d 507 (2002), "there is 'one action' for damages occasioned by a wrongful death," and there is "but one plaintiff, one of the persons designated by statute." So, at most, there should have been two plaintiffs in this case, one for the beneficiaries of the lost daughter and another for the beneficiaries of the lost son.

In any event, in what would have been an interesting and important appeal, Mr. Burkhamer delivered his own Notice of Claim via facsimile to the Arizona attorney general's office and, not surprisingly, the State moved to dismiss Mr. Burkhamer's claims and/or for partial summary judgment under the premise that his Notice of Claim was not properly served pursuant to A.R.S. Â§ 12-821.01. This would have been an important appeal because, unlike related counterparts, Rule 4.1(h), Ariz.R.Civ.Proc., provides that service upon the State is effected by merely "delivering" a copy of documents to the attorney general as opposed to "serving" such documents. Compare Rule 4.1(j), Ariz.R.Civ.Proc. (concerning service upon "other governmental entities," requires "serving" the appropriate legal officer).

The trial court, however, agreed with the State that such delivery was ineffective and entered a judgment (dated January 26) against Mr. Burkhamer, pursuant to Rule 54(b), stating that "this shall constitute the Court's Final Judgment dismissing all claims asserted by [him] against the State of Arizona in this matter." It is not clear when this judgment was submitted by the State, but a few days after the judgment was entered, Mr. Burkhamer filed an "Objection to Defendant's Final Judgment and Order Dismissing Claim."

Again, something seems squirrelly because Rule 58(d), Ariz.R.Civ.Proc., provides a mechanism to object to the form of a judgment. That Rule requires that no judgment may be entered until "five days after the proposed form [of judgment] . . . has been served upon opposing counsel." Either the Judgment was entered too soon (which should make it defective, something which is not addressed in the opinion and something that Mr. Burkhamer appears to have belatedly argued and waived, Â¶34) or Mr. Burkhamer's Objection came too late. Anyway, the Objection is a document that becomes the centerpiece of why the appeal was dismissed, and Rule 58(d) becomes important later.

In the Objection, Mr. Burkhamer objected to the Judgment on the ground its language "dismissing all [his] claims" was "overbroad" because the trial court supposedly had agreed at the hearing on the State's motion to dismiss that, even though it was dismissing his claim, he could still file a motion to amend the pleadings "to assert a claim as a beneficiary of the claim of Plaintiff Marjorie Surine [i.e., Mr. Burkhamer's ex-wife] in her status as the statutory plaintiff for the wrongful death claim."

Yet again, something seems squirrelly because why would Mr. Burkhamer be able to amend pleadings to assert a claim brought on behalf of another plaintiff for his benefit? This makes no sense. Anyway, about a week later, Mr. Burkhamer also filed a motion to amend the pleadings, seeking permission "to continue his involvement in this case" as a nonparty, statutory beneficiary under his ex-wife's claim and asking for "his damages [to] be considered in any award ultimately determined in this matter." Evidently, the trial court did not see things the way Mr. Burkhamer saw them and, after a hearing on that motion, the trial court signed an order (dated May 22) denying both Mr. Burkhamer's motion to amend as well as his Objection to the Judgment.

If you are keeping track of time, you might realize that Mr. Burkhamer is about to have a problem. Mr. Burkhamer filed a notice of appeal on June 19 to both the January 26 judgment and the May 22 order. The timeliness of the appeal became an issue because June 19 is "more than thirty days after the trial court's entry of judgment" on January 26 and, of course, you generally must file a notice of appeal within 30 days to perfect an appeal.

The Court of Appeals, however, recognized that there are various exceptions to the 30-day rule, including where a party files a motion to "alter of amend the judgment" pursuant to Rule 59(l), Ariz.R.Civ.Proc. And this is where the rubber hits the road with respect the Objection -- namely, whether Mr. Burkhamer's Objection was a motion to "alter of amend the judgment."

While the majority in Burkhamer acknowledged that, in determining whether a filing constitutes motion to "alter of amend the judgment" pursuant to Rule 59(l), it is the substance of the document that controls -- i.e., not the title or "magic incantations" stated in the brief -- the Court held that, since Mr. Burkhamer's Objection "neither cited nor otherwise referred to Rule 59, or any of its grounds, or any other civil procedure rule" and because "[n]othing in the record here suggests that the trial court treated Burkhamer's objection to the judgment as one of the time-extending motions prescribed in ARCAP 9(b)," it would not be considered a motion to "alter of amend the judgment" pursuant to Rule 59(l). As a result, Mr. Burkhamer's notice of appeal was untimely.

As you might imagine, Mr. Burkhamer argued that his Objection to the judgment should "be treated as a Rule 59(l) motion" because "[t]he substance of [his] objection was a request that the [trial] court amend or alter the January 26 [judgment] so as to permit him to participate as a wrongful death beneficiary." In my view, this is where the majority lost its focus and made a mistake.

Rather than address whether the "substance" of the Objection was indeed a request to "alter or amended the judgment," the majority said they were not persuaded because (1) the Objection "did not cite Rule 59(l ) or any other rule"; (2) "although Burkhamer complained in his objection that the trial court's judgment was 'overbroad,' he did not expressly ask the court to 'alter or amend' it"; (3) "before alternatively arguing in his reply brief that his objection should be treated as a Rule 59(l) motion, Burkhamer characterized that filing as a 'Rule 58(d)[, Ariz.R. Civ. P., 16 A.R.S., Pt. 2,] objection' to the trial court's proposed judgment"; and (4) "that the trial court held a hearing on Burkhamer's motion to amend the pleadings and ultimately denied that motion as well as Burkhamer's objection to the judgment does not suggest the court treated that objection as a Rule 59(l) motion."

None of these reasons address the substance of the Objection, which was clearly a request to modify or alter the judgment.

Taking these in turn, the fact that Mr. Burkhamer "did not cite Rule 59(l)" is the epitome of placing "form over substance." Our Rules do not require "magic words or phrases."

The fact that Mr. Burkhamer "did not expressly ask the court to 'alter or amend' [the judgment]" is a similar technicality and misses the point. Mr. Burkhamer clearly intended -- whether expressly or implicitly -- that the trial court "alter or amend" the judgment. He called it "overbroad" since it applied to "all" of his claims, and was clearly asking the trial court to change it so that he could still "assert a claim as a beneficiary." If that is not substantively asking the court to "alter or amend" the Judgment, then what is? Just the fact that it was filed after the Judgment was entered is evidence that it is a request to "alter or amend" the Judgment.

The fact Mr. Burkhamer once characterized the filing as a Rule 58(d) filing is, in a word, unfortunate but should not bear on the substance. Focusing on the mere fact that it was once referred to as a Rule 58(d) filing is really no different than focusing on the fact that he "failed to cite Rule 59(l)" or that it is titled "Objection." The issue is not the citation to particular Rules or the title of the document, it is the substance of what was being asked of the trial court and, frankly, Mr. Burkhamer's Objection simply could not have been a Rule 58(d) filing since we know it came after the Judgment was entered and Rule 58(d) is clearly only applicable to filings before Judgment is entered.

And, lastly, notwithstanding "how the court treated [the] objection," the case law that the majority relied upon, e.g., Farmers Insurance Co. v. Vagnozzi, 132 Ariz. 219, 644 P.2d 1305 (1982), did not require that the trial court had to treat the document as a Rule 59(l) request if the document itself substantively made such a request. To the contrary, the case law simply stated that "when the trial court has stated in the record its intention to do so" then the request will be treated as a Rule 59 request and extend the time for appeal. So whether the trial court did or did not treat Mr. Burkhamer's request as one under Rule 59(l) should have no bearing on whether it, in fact, was substantively a request to "alter or amend" the Judgment.

Although Mr. Burkhamer went on to posit an alternative argument -- namely, that his appeal was at least timely as to the May 22 order and it was that order that adjudicated his claim to participate as a beneficiary -- the Court (correctly) shot down this argument since Judgment clearly adjudicated "all claims," but something the Court said in connection with addressing this contention undermines its earlier reasoning. That is, the Court said "Burkhamer's own objection to the trial court's judgment, in which he claimed the judgment was 'overbroad,' belies his argument. That objection manifested Burkhamer's valid concern that the judgment, as framed and filed by the trial court, in fact disposed of any and all claims Burkhamer might have had in this action." Precisely! And that is why the majority is wrong -- i.e., because the "objection manifested Burkhamer's . . . concern that the judgment . . . disposed of any and all claims" and he clearly wanted that to be "altered or amended."

And, finally, Mr. Burkhamer argued that the Court should disregard the Rule 54(b) certification on the Judgment and deem the Judgment as premature because his claim -- as a statutory beneficiary -- could not possibly have been resolved. Once, again, I think Mr. Burkhamer is correct on the appeal (although this is not the way he chose to pursue the case in the trial court). Relying upon the fact that there is supposed to be a single plaintiff that presents all the claims of the statutory beneficiaries, Mr. Burkhamer argued that the Rule 54(b) certification in the Judgment was not appropriate.

Since "there is but 'one' plaintiff and 'one' judgment" in wrongful death case, it does not make sense that there could a Rule 54(b) judgment as to one beneficiary while leaving the others to continue litigating (unless, of course, that party was held not to be an actual statutory beneficiary for some reason, which is not the case here). Yet the Court of Appeals expressly rejected this, holding that "none of the authorities on which Burkhamer relies precludes a trial court in a wrongful death case from disposing of all claims made by a person, whether as a statutory plaintiff or as a nonplaintiff, statutory beneficiary, via a separate, but final, appealable judgment that applies only to that particular claimant." Such a conclusion, however, makes no practical sense and violates the one plaintiff, one judgment rule.

As already noted, the Court's decision was two to one and I obviously side with the dissent, but I also think this case (regardless of whether the Supreme Court accepts review of this opinion) is not over for Mr. Burkhamer. Frankly, notwithstanding the Court of Appeal's opinion, I think his ex-wife had (and still has) a fiduciary duty under Wilmot to pursue and protect Mr. Burkhamer's claims and that she may have already abdicated her fiduciary duty by failing to properly preserve and protect his claims. She may also have problems because she was hostile to his appeal (e.g., like the State, she also raised the timeliness issue, Â¶ 6, Note 2).

Anyway, this is a mess of a case and the outcome is about as arbitrary as I have ever seen.

Originally posted at InjuryBoard by Geoff Trachtenberg

Circumstances of Death Are Admissible in Wrongful Death Actions To The Extent They Impact on Shock, Grief and Emotional Distress of Statutory Survivors

Geoff Trachtenberg — Sat, 26 May 2007 15:43:08 GMT

Division 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 casket funeral, and such were admissible to the extent they impacted on the shock, grief and emotional distress of the surviving father. The Court explained:

In light of the remedial purpose of the Wrongful Death Act, the statute permits a recovery not just for the fact of the decedent's death, but also for the manner in which the decedent dies to the extent the manner of death makes the experience more difficult for the survivor.

I was not particularly surprised by the result (it's common sense, frankly), but apparently the trial court did not see it the same way and needed to be reversed. So, unfortunately, these poor people will have to endure another trial going into the grizzly details of the death of their loved one.

One thing that is notable is that the plaintiff did not bring a survival action. Arguably, one could recover for the "experience of death" in such an action, but that matter is not settled in Arizona.

Originally posted at InjuryBoard by Geoff Trachtenberg