Scottsdale Personal Injury Lawyer - Medical Malpractice

Assignments vs. Liens In the Personal Injury Context

Geoff Trachtenberg — Sun, 09 Dec 2007 08:41:24 GMT

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 cannot ever assign more rights or property than it holds, it can assign less than all of the rights or property subject to the assignment.

An assignment is bears the hallmarks of ownership. That is, an assignee steps into the assignor's shoes and has the ability to control the rights or property subject to the assignment. This means that the assignee can further assign the rights or property, can sell them, donate them, pledge them as collateral or simply enjoy the rights or property as though they were his or her own; subject, of course, to restrictions in the assignment agreement.

Here is where it will get tricky: an assignment can, in effect, extinguish an obligation to one party by transferring the obligation to another party.

Take, for example, a debt. Assume you owe a friend $10,000 for a car that you bought from him, and you agree to pay it of at a rate of $1,000 a year for 10 years. After two years, however, your friend decides that he really needs money and so he assigns the remaining $8,000 debt to me for $5,000 immediate cash. The debt to your friend is now, in effect, extinguished and transferred to me - that is, you owe me the $8,000.

You may not realize it, but a personal injury claim is a bundle of property rights, and to make matters a little more confusing, some states prohibit assignment of personal injury claims. Now, understand, this is a seemingly narrow restriction and assignment of other rights (such as debts) and property (such as cars) are fully assignable in every state.

What this anti-assignment law in the personal injury context means is that you cannot assign to someone a claim for bodily injury to a third-party. Remember, you can still assign the part of the case that corresponds to property damage, such as damage to your vehicle or personal belongings, and you can still assign any non-bodily injury claims, such as breach of contract or bad-faith.

Now keep that all in mind. What is a lien?

A lien is "[a] charge or encumbrance upon property to secure the payment or performance of a debt, duty or other obligation," and it "is distinct from the obligation which it secures." Matlow v. Matlow, 89 Ariz. 293, 297-98, 361 P.2d 648, 651 (1961) (citing 53 C.J.S. Liens Â§ 1, at 826). In Arizona, a lien can be created by statute, but an equitable lien may also arise from an express contract if the parties indicate an attempt to charge particular property as security for an obligation. Kalmanoff v. Weitz, 8 Ariz.App. 171, 172, 444 P.2d 728 (1968).

Unlike assignments, there is no prohibition on liens against personal injury cases, but this subject matter creates a great deal of confusion. Admittedly, what has contributed to the confusion is that the law has undergone centuries of perversion and that it is sometimes hard to tell the difference between an assignment versus a lien on a personal injury claim.

The courts examining this issue have often overlooked the distinction and, typically, have incorrectly deemed simple liens to be prohibited assignments without examining the real character of the transaction. To be sure, there are decisions that uphold standard (non-statutory) medical liens between a doctor and patient for services, and opinions which preclude insurance companies from recouping payment made to those same doctors as being impermissible assignments. These decisions are irreconcilable and fail to appreciate the difference between an assignment versus a lien on a personal injury claim.

Simply put, such arrangements - e.g., where someone is due money for services rendered - are permissible liens on a personal injury claims. That is, where an injured person owes money to a third-party and agrees to secure the debt with an encumbrance upon proceeds in a personal injury claim, the third-party does not own or control the personal injury claim (as they would had there been an assignment) and the personal injury claim remains "distinct from the obligation which it secures." The third-party has no say in how the claim is handled, does not need to assent to the settlement of the claim and will not be a party to signing a release of such a claim, which would be hallmarks of an assignment. To the contrary, if the injured party loses the personal injury suit, the "distinct . . . obligation" remains and must still be satisfied (absent an agreement making the debt or obligation contingent upon an event, such as prevailing in a personal injury action). In contrast, assignment of a losing claim would always result in an assignee receiving nothing (with the obligation having been extinguished upon the assignment).

Due to the anti-assignment case law, which is inconsistently applied, this causes confusion in personal injury cases. Although we are not going to ever resolve the issue here, it helps to remember the reason for anti-assignment law in the personal injury context is to prevent "trafficking in personal injury claims." That is, the courts long ago decided that it was not acceptable for people to market in buying and selling personal injury actions, ostensibly because of the unsavory possibilities of having injured people victimized by those wishing to purchase such rights. In reality, it has more to do with the image of justice and the likelihood that it would encourage fraudulent personal injury claims.

Ironically, the quiet exception to the rule prohibiting assignment of personal injury claims is that attorneys are permitted to take contingency fees on personal injury claims, which (if you believe what you read about other so-called impermissible assignment arrangements) is nothing more than an assignment of a personal injury claim. It used to be that such arrangements were considered impermissible, but after many years the courts relented an allowed contingency fee arrangements in all but criminal and divorce proceedings. In those cases, courts still felt that there was too must risk to allowing contingency fees -- that contingency fees would encourage unethical or unsavory conduct in criminal and divorce cases.

The reason contingency fees are allowed to attorneys, however, is to open the door to parties who would not otherwise be able to afford paying for attorneys on an hourly basis. And, most often, the same reason underlies lien arrangements for injured persons, whether it be health insurance liens, contractual doctors liens, liens for pharmaceutical expenses, liens for rental cars or liens for cash advanced to pay bills. Accordingly, although courts have long misunderstood and confused the difference between impermissible assignments and permissible liens, the simple fact is that such liens are a necessary element in modern personal injury practice to provide immediate care and compensation to impecunious injured parties who cannot afford to battle for years with an insurer for a tortfeasor. Such arrangements to not give rise to the concerns underlying the old anti-assignment laws and, in fact, do not reveal ownership characteristics of assignments.

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

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

Three Trial Courts Hold Medical Malpractice Statute Unconstitutional

Geoff Trachtenberg — Fri, 31 Aug 2007 08:54:14 GMT

In last few years, many states adopted protectionist legislation in favor of the medical industry. The legislation essentially puts up various barriers to bringing medical malpractice cases by, among other things, attempting to impose expensive and burdensome constraints on the way these types of cases are litigated.

The medical lobbyists, of course, claim that the legislation is necessary to protect medical professionals against "frivolous lawsuits." So, at the outset, let me state my whole-hearted agreement that "frivolous lawsuits," where they exist, should not be allowed and the parties should be punished for bringing them.

With that out of the way, let me state my other belief that the predominance of such lawsuits are a carefully orchestrated insurance-industry fiction designed to sway public opinion. Simply put, these types of lawsuits are far to complex and expensive for attorneys to waste time and money on unless they are believed to be meritorious. Indeed, these types of lawsuits almost always require experts in the medical field to testify about the standard of care (i.e., what "should have been done" in a particular situation) and the need for, and cost of, such testimony is itself a significant barrier to prosecuting these types of cases unless they are worthy.

Anyway, back to the case at hand. Arizona has a legislative scheme on this subject and one of those statutes, A.R.S. Â§ 12-2604, purports to control the requirements for expert testimony in medical malpractice cases. The trouble with this type of statute is that it imposes special burdens on medical malpractice victims that are not imposed on the rest of the world of plaintiffs. In particular, it purports to designate who may testify as an expert witness, usurping the role of the court pursuant to Rule 702 of the Arizona Rules of Evidence. As a result, many courts around the country are holding that these statutes are unconstitutional and now several Arizona trial judges have agreed that Arizona's version is improper.

While not explaining his ruling, this week Judge Robert E. Miles summarily held the medical malpractice statute, purporting to limit expert testimony, was unconstitutional. This is the third trial court to find the statute violates fundamental rights. Earlier this year, Judges Anna Baca and Paul Katz also held that the medical malpractice statute was unconstitutional.

Although the debate about whether there is really a crisis in the medical malpractice arena is an important one with widely divergent views, it is good to see that judges are not afraid to strike down unfair statutes that favor one group over another. For more informaion on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.

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

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