Scottsdale Personal Injury Lawyer - Legal Malpractice

Arizona Supreme Court Holds Professional Negligence Against Insurance Agent is Assignable

Geoff Trachtenberg — Wed, 06 Feb 2008 09:16:33 GMT

Surprising result in Webb v. Gittlen, a new opinion from the Arizona Supreme Court which holds that a professional negligence claim against an insurance agent is assignable. Although a long overdue holding, it highlights the badly misunderstood law concerning assignments, including the scope and justification of anti-assignment law (see my earlier article on Assignments vs. Liens in the Personal Injury Context).

To be sure, how many modern opinions rely upon 400-year old case law from "Lord Coke"? This one does.

The opinion is a actually a good read in that the Supreme Court takes us through centuries of anti-assignment history and jurisprudence, neatly summarizing Arizona law on this issue as follows:

The current principles under Arizona law for determining if an unliquidated claim may be assigned can be summarized as follows: (1) claims generally are assignable except those involving personal injury; (2) the legislature may specify whether particular claims are assignable; and (3) absent legislative direction, public policy considerations should guide courts in determining whether to depart from the general rule.

The Court then turned to the case at issue and, without specifically saying so, seemed to accept that a claim against an insurance agent -- relating to a wrongful death claim -- does not "involve a personal injury." While I think this is clearly correct, it is surprising how often the issue gets ignored or taken for granted -- namely, what constitutes an unlawful assignment of a personal injury claim?

For example, is a medical lien an unlawful assignment of a personal injury claims? Why not? Since most personal injury attorneys encounter these every day, wouldn't it make sense to know whether they are valid and why? Well, this opinion may shed some light on the issue where Court stated as follows:

Arizona case law generally allows the assignment of unliquidated legal claims except those involving personal injury. This distinction reflects the evolution of the common law, which once held that "choses in action" could not be assigned, except to the crown. Welch v. Mandeville, 14 U.S. (1 Wheat.) 233, 237 n.a (1816). A legal claim is one type of "chose in action," but the concept also encompasses "debts of all kinds" and "rights to recover ownership or possession of real or personal property."

While not the focus of the opinion, the Court's discussion of the affirmative assignably of "legal claims" and "debts of all kinds" is important. For instance, even though a medical lien creates an interest in a person's bodily injury recovery, maybe it is a valid "legal claim" since it covers a "debt." But if you think this is a slam-dunk, consider what the same Court said in Allstate Ins. Co. v. Druke, 118 Ariz. 301, 576 P.2d 489 (1978):

Whatever the form, whatever the label, whatever the theory, the result is the same. The [documents] create an interest in any recovery against a third party for bodily injury. Such an arrangement, if made or contracted for prior to settlement or judgment, is the legal equivalent of an assignment and therefore unenforceable.

Id. at 304, 576 P.2d at 492; Lo Piano v. Hunter, 173 Ariz. 172, 175-76, 840 P.2d 1037, 1040-43 (App. 1992) (holding that reimbursement provision was an unenforceable assignment of a personal injury claim). So it is still up in the air whether such assignments are valid.

Anyway, the substantive thrust of the Court's holding was to explain the difference between assignments of legal malpractice claims and professional negligence claims against insurance agents. Without holding whether legal malpractice claims were assignable, the Court went on to "assume they are not" and distinguished the attorney-client relationship with the insurance agent-client relationship, essentially saying that the later was of a lesser duty (i.e., generally not a fiduciary, which was a bit of a surprise to me) and drawing on other differences (without saying why the differences made a difference by the way). The Court just concluded that the relationship with an insurance agent was not "uniquely personal" to justify making claims against an insurance agent non-assignable.

Next, the Court addressed public policy arguments. Surely, the best line in this section is the following refreshing dose of common sense to the argument that allowing such assignments would "commercialize" the insurer-client relationship: "Although the agent-client relationship has personal dimensions, it arises from a commercial transaction - the purchase of insurance. It is therefore odd to suggest that it should not be commercialized." This, of course, begs the question -- isn't the relationship between an attorney and client commercial? That is, it involves the commercial exchange of money for services, so why should it get any different treatment?

It is probably too much to hope for, namely -- the complete abolition of anti-assignment law -- and even though it sometimes helps our clients in the lien context, it has always seemed unnecessarily paternalistic and outdated to me, especially the nonsense about "trafficking in personal injury claims." Still, it was nice to see the Court tip its hat, in footnote 3, to commentators "who advocate allowing assignment of all tort claims."

In fact, the Court alluded to the inconsistent and strange genesis of the non-assignablity issue, noting that "[a]s courts became more accessible and litigation a more accepted means for resolving disputes, the prohibition on assignment gradually became the exception rather than the rule." The Court explained that the rationale behind the "exception" of prohibiting assignment of personal injury claims was basically tied to the idea that the claims were "personal" and did not survive death, therefore, they could not be assigned during the person's lifetime. But the Court observed:

This "survivability" test did not itself survive in Arizona after 1955, when the legislature enacted a [now amended] statute providing for the survival of most causes of action, including personal injury claims. Although this statute undermined one rationale for refusing to allow the assignment of personal injury claims, courts did not abolish the rule. Instead, they resurrected the common law public policy rationale - fear of vexatious litigation.

In other words, the reason we still have non-assignment law today is simply a function of judicial activism from 50 years ago. So it's possible that, one day, courts will see it differently -- afterall, who would have thought the Court would permit assignment of a claim against an insurance agent, but not a lawyer?

Originally posted at InjuryBoard by Geoff Trachtenberg

Failure to Plead Sufficient Facts - The New Legal Malpractice?

Geoff Trachtenberg — Sun, 21 Oct 2007 15:48:53 GMT

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 privately use a business vehicle. The vehicle was owned by the business, Sierrita Mining and Ranch Company, and had UIM coverage with Auto Owners. The named insured was the business, and there were no additional insureds.

Cullen was injured while riding in another vehicle and filed a UIM claim with Auto Owners. The insurer denied his UIM claim, he then filed suit and the trial court dismissed the action.

First, the Court of Appeals expressly adopted the Supreme Court's holding in Bell Atlantic Corp. v. Twombly, the case that overruled the familiar Conley v. Gibson standard for dismissal.

This is a significant move and one wonders how the Arizona Court of Appeals, which is bound to follow the Arizona Supreme Court on such matters, saw fit to disregard the Arizona Supreme Court and unilaterally adopt the United States Supreme Court's Twombly holding. In any event, doubt no further, the "notice pleading" landscape has changed in Arizona as follows:

"While a complaint attacked by a Rule 12(b)(6) . . . motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level."

The Court stated "when a complaint fails to recite at least the basic facts supporting a claim for relief, we cannot see how a defendant would have fair notice of the nature and basis of the claim." The Court then, turning its attention back to Cullen's case, stated it was limiting its review to the facts alleged in the complaint and the terms of the insurance contract.

Second, the Court went on to state that "[i]t is clear that the UIM provision of the policy Auto Owners issued to Sierrita does not provide Cullen with UIM coverage." This is pretty straight-forward since the only named insured was the business and Cullen was not injured while in the insured vehicle.

Third, the Court addressed the reasonable expectations argument. The Court explained that "[t]he [reasonable expectations] doctrine necessarily applies to the reasonable expectations of the contracting parties, not to the reasonable expectations of a hopeful insured, such as Cullen, who is a stranger to the insurance contract." The Court concluded that "the reasonable expectations doctrine d[oes] not apply to an injured party who 'had nothing to do with the purchase of the policy in question [and] never had an insurable interest or expectancy under the policy.'"

Then the Court gets cheeky. The Court stated that, despite Cullen's status as a "stranger" to the insurance contract, "Cullen's complaint is sufficient if the facts he alleged permit the inference Sierrita had a reasonable expectation Cullen would have portable UIM coverage under the policy it purchased from Auto Owners."

Ho-hum, what could they be thinking? How about this: "In his briefs to this court, Cullen describes several factual scenarios that arguably could prove one of the above situations applies to his claim. His complaint, however, contains none of them. Although Cullen's complaint conclusorily asserts he had a reasonable expectation of coverage, as we have explained, his expectations are not relevant here." So, the Court affirmed the trial court and denied the insurers' request for attorneys' fees.

Message: if you want to avoid being sued, forget notice pleading, you better allege facts, facts, facts to support your legal claims.

Originally posted at InjuryBoard by Geoff Trachtenberg

Legal Malpractice Statutes of Limitation - Tort and Contract

Geoff Trachtenberg — Thu, 18 Oct 2007 19:56:19 GMT

Interesting legal malpractice case from Division Two, Keonjian v. Olcott, dealing with the issue of when the statute of limitations begins to run and whether the tort or contract limitation period applies.

The essence of the alleged malpractice was that the plaintiff got bad advice from her attorney concerning the deeding of some land that she co-owned with another party. The trial court had granted summary judgment to the defendants, holding that the two-year tort limitation period applied and that the suit was time-barred.

The Court first examined, based upon the "discovery rule," when the plaintiff knew or should have known about her potential legal malpractice claim. The Court noted that "'[t]he discovery rule applies not only to the discovery of negligence, but also to discovery of causation and damage.' . . . Thus, for legal malpractice claims, the limitations period starts to run when the client has suffered harm and knows or should have known that the harm was a direct result of the attorney's negligence."

While the Court stated that, "[i]n the majority of malpractice cases, 'the damage or injury occurs contemporaneously with the malpractice,'" the Court also observed the limitations period can being to run at different times depending upon the circumstances. For example, cases show that the time period may be different where the negligence occurs "in the course of litigation" versus malpractice that occurs in a "transactional" context. Anyway, this was a "transactional" type case and the Court concluded that the damage or injury occurred "contemporaneously with the malpractice."

In this regard, it was quite obvious that the plaintiff actually knew of her legal malpractice claim well-before she elected to file her malpractice lawsuit when, in a deposition, she testified:

Q. Ms. Keonjian, are you aware, if you didn't think the lawyer did his job, you have the right to sue the lawyer for malpractice?

A. Yes, I probably will. You have no idea how many people are complaining about him.

Ouch.

The Court next addressed the argument that a longer contract limitations period ought to apply because, according to the plaintiff, the defendant breached his promise "to draft a deed that reflected her wishes and capital contributions and . . . to advise her as to the significance and potential effect of the Gift Letter." This is where, in my view, the case was most interesting.

As many practitioners know, very few legal malpractice actions fall under contract - i.e., in general, there has to be a "specific promise" that the lawyer breaches for there to be a legal malpractice action sounding in contract. The Court, however, highlighted the fact that, not only must there be a specific promise, but that the action only sounds in contract to the extent of nonperformance of the specific promise.

"The key word is 'nonperformance,' and the distinction to be drawn is that between nonfeasance and malfeasance." That is, legal malpractice subject to contract law is limited to situations were the attorney fails to perform specific promise, and not those situations where the attorneys does not "properly perform" a specific task. Accordingly, the Court of Appeals affirmed the trial court.

Originally posted at InjuryBoard by Geoff Trachtenberg

Experts Not Allowed to Testify to the Percentage of Fault

Geoff Trachtenberg — Thu, 06 Sep 2007 16:41:05 GMT

Division One just handed down Webb v. Omni Block, Inc., a clearly written opinion which decisively eliminates an expert's ability to testify as to the "percentage of fault" for any party or non-party.

In Webb, defendant, Omni Block, hired an expert who testified as to the specific percentage of fault (or lack thereof) for various parties and non-parties. Judge Jones allowed this testimony and the jury came back with an allocation that was very close to the allocation suggested by the defense expert. The Court of Appeals quickly dispatched the portion of the appeal challenging the expert's qualification and focused, instead, on the appropriateness of the testimony on the "ultimate issue" pursuant to Rule 704.

Rule 704 states that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The Court noted that a first-blush reading of Rule 704 "appears to support Omni's argument because it permits opinion testimony [about the percentages of fault] that encompasses an ultimate issue."

However, the Court observed, pursuant to "the comment to Rule 704, opinion testimony on an ultimate issue must still be helpful to the trier of fact and cannot be couched in legal conclusions that simply opine 'how juries should decide cases.'" Quoting McCormick on Evidence, the Court noted:

Undoubtedly some highly opinionated statements by the witness amount to nothing more than an expression of his general belief as to how the case should be decided or the amount of damages which would be just. All courts exclude such extreme, conclusory expressions. There is no necessity for this kind of evidence; its receipt would suggest that the judge and jury may shift responsibility for the decision to the witness. In any event, the opinion is worthless to the trier of fact.

"We therefore hold that [Omni's expert's] opinion apportioning of percentages of fault to the parties and non-parties constituted inadmissible legal conclusions under Rule 704 because he thereby told the jury how to decide the case. Once [Omni's expert] testified to the duties and responsibilities of the parties involved, the distribution of fault among the parties responsible was the jury's responsibility."

It's good to see the Court of Appeals finally adding teeth to the Comment to Rule 704. Many of us have used that Comment extensively to advocate for limitations to the substance for expert testimony, and so now that it was the basis of a published opinion, perhaps we will have greater success in getting judges to address the aggressive invasion of the jury's province by defense experts.

Originally posted at InjuryBoard by Geoff Trachtenberg

Bell Atlantic v. Twombly: The Day "Notice Pleading" Died (Sort Of)

Geoff Trachtenberg — Wed, 29 Aug 2007 14:20:02 GMT

On May 21, 2007, the U.S. Supreme Court handed down Bell Atlantic v. Twombly, 550 U.S. ___ (2007), announcing the "retirement" of the long-standing standard for dismissal of complaints articulated in Conley v. Gibson, 355 U.S. 41 (1957) - i.e., the standard that complaints should not be dismissed "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Bell Atlantic represents a sea change in "notice pleading" standards. As one law professor recently observed:

The question, though, is what that change will look like. What does Bell Atlantic really mean? Clearly, Conley's "no set of facts" language is dead, at least as to the meaning that was customarily ascribed to it. And, at least for the kinds of costly class action antitrust cases like the one initiated by Twombly, Bell Atlantic erects an additional "plausibility" requirement of fact pleading in its place, what I have called "notice-plus."

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

Lessons On What Not To Do When Prosecuting a Claim

Geoff Trachtenberg — Wed, 20 Jun 2007 22:35:59 GMT

It was hard for me not to grin when reading the comedy of errors in Harris dba Angel Team Home Care, LLC v. Cochise Health Systems. In my view, it is a recipe legal malpractice.

The suit arises from a dispute between a home health care company (Angel Team) and a division of the Cochise County Health and Social Services (CHS), and a CHS employee, Denise Pederson. Although the Court does not say what CHS's relationship is to AHCCCS, CHS apparently gets AHCCCS funds to pay for the services provided by Angel Team. Anyway, CHS allegedly failed to pay Angel Team and, from the sounds of it, did whatever they could to destroy Angel Team's business and ultimately terminated its contract with Angel Team.

So Angel Team filed suit.

The original complaint was for breach of contract, defamation and tortuous interference with contract. That suit was dismissed because Angel Team, contrary to its contention, did not follow the "grievance procedure mandated by the relevant statute, regulations and its contract with CHS." The trial court also dismissed Pederson as a defendant because Angel Team had failed to serve her with an individualized notice of claim, as required by A.R.S. Â§ 12-821.01(A). In particular, the court found that, because AHCCCS had primary jurisdiction over the breach of contract claim between the parties as well as any torts "inextricably intertwined" with contract claims, dismissal was required due to Angel Team's failure to satisfy the grievance procedure set forth by statute and in the AHCCCS Rules and Regulations (and, apparently, mandated by the CHS contract) prior to filing suit. Nevertheless, the trial court also granted Angel Team leave to amend its complaint to set forth "tort claims that are not related to the performance of the contract," or to clarify how those claims were not intertwined and dependent on the contract issues.

Does this sound like the Court was giving Angel Team "another chance to get it right"? Yeah, me too.

So Angel Team filed a First Amended Complaint, removing the breach of contract claim entirely and inserting a new tort claim for intentional/negligent infliction of emotional distress. CHS again moved to dismiss, arguing the amended complaint made "clear that all allegations of tortious conduct arise out of [CHS's] alleged decisions to withhold contract payments and/or to terminate the contract." The trial court again dismissed the claims with leave to amend, ordering Angel Team to "address with specificity, in separate counts, the claims of the individuals versus the claims of the entity."

Does this sound like the Court was giving Angel Team yet "another chance to get it right"? Yeah, me too.

So Angel Team filed a Second Amended Complaint. Reading between the lines, it is clear that this version of the complaint alleged negligent infliction of emotional distress, defamation and tortuous interference with contract. CHS moved to dismiss yet again. This time, however, the trial court only granted one-third of CHS's motion "as to the portion of the complaint alleging negligent infliction of emotional distress, denying the remainder of the motion" which left the defamation and tortuous interference with contract claims.

Anyway, in a very risky legal maneuver, Angel Team agreed to dismiss with prejudice all of the remaining claims. Then they appealed the trial court's dismissal of the original and second amended complaints.

At the outset, the Court of Appeals addressed, sua sponte, its lack of jurisdiction. After reviewing some divergent authority on the issue, the Court held that Angel Team could contest only those portions of the trial court's order that were "decided adverse to them," which does not include "any matters that were voluntarily dismissed." The Court held that Angel Team's decision to voluntarily dismiss its defamation and tortuous interference with contract claims (in exchange for the right to immediately appeal) resulted in their losing the opportunity to appeal any matters that were voluntarily dismissed.

Ouch.

So the only remaining issues that Angel Team was allowed to appeal was the trial court's dismissal of its contract claim and its claims against Pederson; however, Angel Team's troubles were far from over.

On appeal, Angel Team argued that it was not required to follow the grievance procedure mandated by the relevant statute, regulations and its contract with CHS. Instead, Angel Team argued the procedure was permissive and, therefore, the Court incorrectly dismissed the contract claim. The trouble was that "Angel Team expressly conceded to the trial court that the grievance procedure was mandatory," and so the Court of Appeals held that Angel Team had waived its arguments concerning the breach of contract appeal.

Doh!

So the only issue that remained was whether Angel Team gave proper notice to Pederson, the CHS employee, under the Notice of Claim statute. Angel Team claimed that it gave proper notice because she was named in notice as a "statutory agent" for CHS. CHS pointed out that the notice of claim did not refer "to her in the body of the Notice of Claim, and . . . [did not make] demand for money or settlement upon her."

Can you guess what happens next? Yep, the Court affirmed the trial court's dismissal of Pederson.

Oooo!

So are you keeping score? The case was botched from the trial court all the way to the Court of Appeals. Can things get worse? Yes, they can.

CHS was awarded its attorneys' fees.

Oops.

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