A Magazine for Arizona Defense Attorneys. 1st Annual Judicial Excellence Awards from Phoenix to Tucson Page 23-28

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1 The Arizona Association of Defense Counsel Common SPRING 2015 Defense A Magazine for Arizona Defense Attorneys HOLIDAY JUDICIAL RECEPTIONS 1st Annual Judicial Excellence Awards from to Tucson Page Annual Softball Tournament at Tempe Sports Complex The AADC is Going Back to Las Vegas! Young Lawyers Division of the AADC hosted its Annual Charity Softball Tournament at Tempe Sports Complex Page 8 Please join us for the Arizona Association of Defense Counsel s 2015 Annual Meeting, June 5-7 at the Wynn Resort and Casino. Page 3

2 President s Message The year is 1965, and I ve Got You Babe, Help Me Rhonda, You ve Lost that L o v i n Feelin and Ticket to Ride are playing on the radio. Bonanza and I Dream of Jeannie were on the television, and In Harm s Way starring John Wayne and The Sound of Music were playing in the theaters. The game Operation made its debut and Poptarts were created. UCLA was the NCAA basketball champion and Vonda Van Dyke of, AZ, was Miss America. A first class stamp was $.05, and Peter Jennings (26) became anchor of ABC s World News Tonight. But most importantly, in April of that year, AADC was started. Happy 50 th Anniversary AADC! And what are we doing to celebrate? Well, a 50 th anniversary deserves a big party, so we are headed to Las Vegas for our Annual Meeting, June 5-7 th. Join us at the Wynn for some CLE, good food, and good times in the city that never sleeps. In addition, AADC is once again putting on the Barry Fish Memorial Golf Tournament, which is celebrating its own 20 th year anniversary, so please support the cause this year so we can make the 20 th year of the tournament an even bigger success than in the past. If you have not played for the last couple of years, a 20 th anniversary is a good reason to come out and play this year. We will be taking the tournament to a new venue this year Camelback Golf Club. In its 50 th year, the AADC is updating its image with new efforts into social media, beginning with the AADC LinkedIn Group as a new platform for members to share information and stay abreast of topics of interest to the defense practice. The AADC is also working on a system to have all of its CLE programs broadcast via the web to make participation at CLE programs more flexible, and ensure all members take advantage of the free luncheon CLE programs. Additionally, the AADC is getting a facelift, via an updated website. We are making a concentrated effort to expand membership and recruit young lawyers to get involved in committees to bring new ideas into the events and programs we plan. Help us celebrate AADC s 50 th year in 2015 by joining us at our events, providing us feedback and giving suggestions for how we can ensure AADC is around for its 100 th Anniversary Party! Holly Davies President 1 Common Defense Fall 2014

3 Contents President s Message AADC Calendar of Events The AADC Is Going Back To Las Vegas! Federal Law Preempts State Law Liens Against Medicaid Patients Tort Recovery, May Bring Additional Clarity to Settlement Discussions....4 Legal Update: EEOC Enforcement Activity Regarding the Use of Criminal History in Employment Decisions AADC Young Lawyers Division President s Message Annual Softball Tournament at Tempe Sports Complex....8 Watts v. Medicis: The Arizona Court of Appeals Strikes Down the Learned Intermediary Doctrine and Permits Consumer Fraud Action Against Pharmaceutical Manufacturer....9 Amicus Committee Update Self Defense and Intentional Torts in Arizona All views, opinions, and conclusions expressed in articles of this magazine are those of the authors and are not necessarily that of the Arizona Association of Defense Counsel, and/ or the Board of Directors. Correspondence and articles are welcome and should be sent to the Editor. articles for submission to Holly Davies at The right is reserved to select materials to be published. Material accepted for publication becomes property of the Arizona Association of Defense Counsel. AADC 950 E. Baseline Rd. # Tempe, Arizona Phone: Fax: Law and Leadership Cowboy Style: A Ranchers Daughter s Perspective Let s Hear It For The Defense The Talking Dead: A Brief Refresher On Citing Cases Holiday Judicial Reception The Honorable John C. Gemmill AADC Judicial Excellence Award Tucson Holiday Judicial Reception The Honorable Ted B. Borek AADC Judicial Excellence Award Board of Directors Join AADC

4 2015 AADC CALENDAR OF EVENTS SPECIAL EVENTS YLD Lit. Basics CLE 20th Annual Barry Fish Memorial Golf Tournament AADC Annual Meeting April 16, 2015 Gust Rosenfeld One E. Washington St., 15th Floor,, AZ 1:30-5:00pm May 2, 2015 Camelback Golf Club Scottsdale, AZ June 5-6, 2015 The Wynn Resort and Casino, Las Vegas ADVOCACY LUNCHEONS Advocacy luncheons are held from 12-1pm at Gust Rosenfeld, One E. Washington St., 15th Floor, April 8, 2015 May 13, 2015 Leveraging Digital Forensics - Recent Case Studies Speaker: Karl Epps, Epps-Tech Consulting How to Keep Your Professional Pants and Skirts Clean? Update on the Rules of Professional Conduct and Cases of Interest Relating to The Ethical Rules and Discipline Speaker: Mark I. Harrison, Esq. Osborn Maledon The AADC is Going Back to Las Vegas! Please join us for the Arizona Association of Defense Counsel s 2015 Annual Meeting, June 5-7 at the Wynn Resort and Casino. The Annual Meeting provides a once a year opportunity to socialize and network with the defense bar, experience incredible CLE programs with speakers from Arizona and around the country, and take part in activities only available in Las Vegas. The weekend will begin on Friday late afternoon with a wonderful CLE program followed by a welcome cocktail reception. You are welcome to explore all that Las Vegas has to offer Friday night. Saturday, we will begin our CLE program late morning to allow afternoon time for the spa, the pool or to join AADC in a fun, group activity. Saturday night we will get together for dinner at one of Las Vegas top restaurants. The Wynn Resort and Casino is one of the best hotels in Las Vegas offering luxurious surroundings, incredible restaurants, and situated in the heart of the Las Vegas strip. The Wynn is offering AADC members a very low room rate of $209 per night, and no mandatory resort fee. This is a very attractive rate, so please book your room early before our room block is exhausted. Registration and hotel information will be sent to members soon. Please join us in Las Vegas! 3 Common Defense Fall 2014

5 Federal Law Preempts State Law Liens Against Medicaid Patients Tort Recovery, May Bring Additional Clarity to Settlement Discussions By William F. Auther and Amanda Heitz William F. Auther As a precondition to participating in the Arizona Health Care Cost Containment System (AHCCCS), Arizona s Medicaid program, health care providers execute an agreement that they will comply with federal law. Federal law provides that Medicaid providers must accept the Medicaid payment as payment in full for all services rendered. Nevertheless Arizona statutes entitle AHCCCS providers to liens and the ability to collect from third-parties for customary charges for services. In the case of patients whose injuries resulted from a tort, Arizona statutes permitted AHCCCS providers to make up any difference between the Medicaid paid amount and their customary charges by a lien against the patient s tort recovery. AHCCCS patients challenged the legality of this system in a class action lawsuit. The patients, some of whom had executed accord and satisfaction agreements to release the AHCCCS liens for a reduced amount, sought declaratory relief that the liens were invalid and Amanda Heitz unenforceable and an order requiring the hospitals to return any funds paid to release the liens. The superior court granted the hospital s motion to dismiss the claim. A unanimous panel of the Arizona Court of Appeals, in Abbott v. Banner, reversed on federal preemption grounds. Recognizing that federal courts have uniformly interpreted [] federal statute and regulation as precluding a provider from balance-billing a patient for the difference between what the provider normally charges for services and what the provider is paid through Medicaid, the Court held that this prohibition applies equally to liens on settlement funds from a personal injury lawsuit. 13. Accordingly, it concluded that the Arizona statutes providing such liens in favor of AHCCCS providers are preempted. In addition to its obvious implications for tort plaintiffs whose medical care was covered under AHCCCS, this decision is also likely to have a significant impact in settlement negotiations. At least in the case of AHCCCS plaintiffs, the parties will have the ability to discuss hard medical damages as a sum certain rather than a variable amount. As a practical matter, both plaintiffs and defendants understand that medical liens can be settled for less than face value and take this into account as they negotiate (indeed, many plaintiffs in Abbott did negotiate their liens). But the existence of a medical lien introduces uncertainty. When the parties are not sure whether a $1,000,000 lien can be settled for 10 cents on the dollar or 75 cents on the dollar, they may miss a realistic opportunity for settlement for fear of paying too much or not receiving enough. Likewise, eliminating liens removes the possibility of gamesmanship where one party knows the amount necessary to settle the lien, but tries to persuade the other party that the amount is higher or lower as a bargaining tactic to secure a higher or lower settlement amount. William F. Auther is the managing partner of the, Arizona office of Bowman and Brooke, LLP, where he has an active trial practice in product liability and business litigation. Amanda Heitz is an associate at Bowman and Brooke. Common Defense Fall

6 Legal Update: EEOC Enforcement Activity Regarding the Use of Criminal History in Employment Decisions By Aaron D. Arnson, Esq., Lewis Roca Rothgerber LLP Aaron D. Arnson This April will mark three years since the Equal Employment Opportunity Commission (EEOC) issued its updated enforcement guidance on the use of arrest and conviction records in employment decisions. 1 In that Guidance, the EEOC concluded that [a]n employer s use of an individual s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of This article discusses how the EEOC s enforcement activity in this area has progressed thus far and what that activity may mean for employers going forward. 1 See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012) [hereinafter Guidance ], available at upload/arrest_conviction.pdf. 2 Id. at 1. Basic Legal Framework & EEOC Guidance Stated generally, Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal for most employers to discriminate against an individual on the basis of race, color, religion, sex, or national origin. 3 The U.S. Supreme Court has long recognized two primary theories of discrimination under Title VII: disparate treatment and disparate impact. 4 Disparate treatment, the most easily understood form of discrimination, occurs when an employer treats someone less favorably than others because of race, color, religion, sex, or national origin. Disparate treatment claims require some proof of discriminatory motive. 5 Disparate impact, on the other hand, concerns employment practices that (1) are neutral on their face but in fact impact one group more harshly than another; and (2) are not job-related and consistent with business necessity. 6 Because the employment practices underlying disparate impact claims are facially neutral, such claims do not require proof of discriminatory motive. 7 Rather, complainants generally prove disparate impact claims by offering competent statistical evidence showing a 3 42 U.S.C. 2000e-2. 4 See Int l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). 5 Id. 6 Id. 7 Id. pattern of discrimination. Relying on this legal framework, the EEOC on April 25, 2012, released its updated Guidance. According to the EEOC, [n]ational data... supports a finding that criminal record exclusions have a disparate impact based on race and national origin, giving the EEOC a basis to further investigate such disparate impact charges. 8 The Guidance advises employers to develop a targeted screen, considering the nature and gravity of the offense or conduct, the time that has elapsed since the offense or conduct and/ or completion of the sentence, and the nature of the job held or sought. 9 It also emphasizes that, after conducting the targeted screen, employers should afford people excluded by the screen an opportunity for an individualized assessment to determine whether the exclusion policy as applied is job-related and consistent with business necessity, based on a number of factors. 10 EEOC Enforcement Activities and Developments The EEOC has not hesitated to bring claims against employers on grounds that their use of applicants and employees criminal history amounted to discrimination. In the years immediately before and after releasing its Guidance, the EEOC sued a number of companies, 8 Guidance at Id. at 14 (citing Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). 10 Id. at 14, Common Defense Fall 2014

7 Legal Update: EEOC Enforcement Activity (continued) including well-known corporations like BMW and Dollar General, on behalf of aggrieved employees. The EEOC, however, has had little luck in the federal courts. In 2009, the EEOC sued Freeman, an eventplanning company, alleging that the company s use of criminal history had a disparate impact on male, African-American, and Hispanic job applicants. 11 After granting a series of defense motions to narrow the class of individuals allegedly affected by Freeman s employment practice, the district court granted summary judgment for the company. The court cited numerous examples of material errors and unexplained discrepancies in the database upon which the EEOC s expert relied, including one egregious example of scientific dishonesty in which the expert cherrypicked certain individuals from the discovery materials to inflate statistics in the EEOC s favor. Moreover, the court found that national statistics alone were insufficient to support the EEOC s disparate impact claim, as those statistics were not representative of the relevant applicant pool. The court thus concluded the EEOC s claims could not withstand scrutiny, characterizing the lawsuit as a theory in search of facts to support it. The Fourth Circuit recently affirmed, with the concurrence writing separately to address the EEOC s disappointing litigation conduct EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013). The EEOC also alleged that Freeman discriminated against African-American job applicants by using poor credit history as a hiring criterion. Id. 12 EEOC v. Freeman, No , 2015 WL (4th Cir. Feb. 20, 2015). In another case stemming from an employer s alleged improper use of criminal history, the Sixth Circuit affirmed a $750,000 award of fees and costs against the EEOC. 13 During the EEOC s investigation of Peoplemark, a temporary-employment agency, one of the company s senior officers incorrectly informed the EEOC that Peoplemark had a company-wide policy of denying employment to felon applicants. Even after receiving documentation proving this to be incorrect, the EEOC continued to investigate and prosecute the claim on that basis. The district court awarded Peoplemark its fees and costs, which a split panel of the Sixth Circuit affirmed on review. Finally, the EEOC recently suffered a setback in its still-ongoing litigation against BMW, in which the district court ordered the EEOC to turn over information about its own background check policies and practices. 14 The EEOC had objected to one of BMW s requests for production, which demanded all documents regarding any EEOC policy, guideline, standard, or practice used to assess the criminal conviction record of applicants for employment with the EEOC. The district court set aside the magistrate judge s order denying BMW s motion to compel production, reasoning that the federal rules permit broad discovery, production would not be burdensome, and no harm would befall the EEOC as a result EEOC v. Peoplemark, 732 F.3d 584 (6th Cir. 2013). 14 See EEOC v. BMW Mfg. Co, No. 7:13-cv HMH-JDA (D.S.C. December 9, 2014), available at 15 Perhaps important for future litigation, the Maryland district court in Conclusion Despite the EEOC s lack of success, employers are not out of the woods yet. Litigation against BMW and Dollar General is ongoing and will likely continue throughout the remainder of Moreover, the EEOC s Strategic Enforcement Plan specifically states that the EEOC will target class-based intentional recruitment and hiring discrimination and facially neutral recruitment and hiring practices that adversely impact particular groups as part of its effort to eliminat[e] barriers in recruitment and hiring. 16 Whether the EEOC will continue to pursue such actions, or whether it will focus its limited resources elsewhere, remains to be seen. Freeman also required production of these documents, and noted in its final opinion that even the EEOC conducts criminal background investigations as a condition of employment for all employees. Freeman, 961 F. Supp. 2d at EEOC, Strategic Enforcement Plan FY (2012), available at Common Defense Fall

8 AADC Young Lawyers Division President s Message By Michael D. Morgan, Esq., Garrey Woner Hoffmaster & Peshek, PC The Young Lawyers Division has often played a role as a laboratory for innovation and advancement. This year has been no different. We are pleased to report that we have officially launched the Arizona Association of Defense Counsel Young Lawyers Division Linkedin account. We are excited about the potential for further collaboration, networking, and CLE opportunities through this new platform. If you have not already linked with this account, please contact the YLD Social Media Committee Chair John Gregory at In addition, the Young Lawyers Division in collaboration with the Arizona Association of Defense Counsel has developed an AADC Mentor Program which launches in March Some of Arizona s finest attorneys have graciously offered their time to serve as Mentors to the next generation of leaders in our profession. There are a few spots still remaining for young lawyers to serve as Mentees. If you are interested in this outstanding opportunity, please contract me directly at In the coming year, the Young Lawyers Division will host Happy Hours, our Annual Spring CLE which is set for April 16, 2015 (mark your calendars), Annual Fall CLE, hold Young Lawyers Division elections and continue our efforts to bolster the connection and service provided to our members and the public at large. We invite you to join us as we move forward. Feel free to contact me to learn more. Best Wishes, Michael D. Morgan YLD President James P. Garrison ryan J. Garrison Phone (480) Fax (480) P. Gregg Curry, CPA/ABV/CFF Managing Director direct Navigant Consulting, Inc. Collier Center, Ste E. Washington St., AZ Navigant Consulting, Inc. All rights reserved. Navigant Consulting is not a certified public accounting firm and does not provide audit, attest, or public accounting services. NAVIGANT is a service mark of Navigant International, Inc. Navigant Consulting, Inc. (NCI) is not affiliated, associated, or in any way connected with Navigant International, Inc., and NCI s use of NAVIGANT is made under license from Navigant International, Inc. See for a complete listing of private investigator licenses. 7 Common Defense Fall 2014

9 2014 Annual Softball Tournament at Tempe Sports Complex On February 21, 2015, the Young Lawyers Division of the AADC hosted its Annual Charity Softball Tournament at Tempe Sports Complex. The Tournament was held on a warm, sunny day and was attended by nearly 300 individuals. Ten teams participated and after playing nearly all day, the team from Jones, Skelton & Hochuli, P.L.C. took home the Championship for the second year in a row. But more importantly, the Tournament raised nearly $10,000 for a very worthy cause. The Tournament benefited Arizonans For Children ( AFC ), a local non-profit that serves Arizona children in foster care. AFC s mission is to provide effective solutions to alleviate hardships and improve the fragile lives of the abused, abandoned, and neglected children in foster care. The money raised at the Tournament will go directly toward AFC s programs to help fulfill its mission. A special thanks goes out to AFC and its volunteers who co-hosted the Tournament and supplied breakfast, lunch, and beverages to all of the participants. In addition, the AADC-YLD would like to thank the Tournament s Presenting Sponsor, The Klingler Group, as well as all of the other teams and sponsors that participated, including, Christian, Dichter & Sluga, P.C.; Jennings, Strouss & Salmon; Jones, Skelton & Hochuli; O Connor & Campbell, P.C.; Resnick & Louis, P.C.; Righi Law Group; Snell & Wilmer, L.L.P.; Steptoe & Johnson, LLP; Exponent Consulting; ASU Law School; Rimkus Consulting Group, Inc.; Augspurger Komm Engineering, Inc.; Integrated Medical Evaluations; The Ward Group; Seymour Reporting Services; Esquire Deposition Solutions; and Epps Forensic Consulting. We look forward to hosting this special event again next year in early Spring. If you would like to get involved or learn more about the Annual Charity Softball Tournament, please contact YLD President Michael D. Morgan at or YLD Softball Committee Chair Erik Stone at jshfirm.com. Common Defense Fall

10 Watts v. Medicis: The Arizona Court of Appeals Strikes Down the Learned Intermediary Doctrine and Permits Consumer Fraud Action Against Pharmaceutical Manufacturer By William F. Auther and Amanda Heitz 9 William F. Auther Division One of the Arizona Court of Appeals issued an opinion that removes two major barriers to lawsuits against pharmaceutical manufacturers: it recognized that state consumer fraud statutes can be applied against these defendants; and, under the Uniform Contribution Among Tortfeasors Act, abolished the learned intermediary doctrine. This opinion has the potential to radically alter pharmaceutical and medical device litigation in Arizona. In Watts, the plaintiff, Amanda Watts, sued Medicis, a pharmaceutical manufacturer, claiming that Solodyn, a prescription acne medication, caused her lupus. She alleged strict liability based on a failure to warn and also raised a claim under Arizona s Consumer Fraud Act (CFA), contending that Medicis knowingly provided false and misleading warning information. Medicis moved to dismiss the claim, arguing that the Consumer Fraud Act does not apply to pharmaceuticals and also that Common Defense Fall 2014 the learned intermediary doctrine barred her product liability claim. The trial court granted the motion. The court of appeals Amanda Heitz reversed. A f t e r resolving jurisdictional issues in Watts s favor, the court turned first to the CFA. Rejecting Medicis s claim that pharmaceuticals are not merchandise, and therefore, fall outside the scope of the CFS, the court noted that prescription drugs are often advertised and sold to consumers in a manner similar to other consumer goods, implicating the need for the protection of the CFA. Because Watts had alleged that the Solodyn s labeling and promotional materials had affirmatively and falsely misrepresented the drug s safety and that she relied on those statements, the court found that she had stated a claim. Perhaps the larger sea change came with the court s rejection of the learned intermediary doctrine, which shields a manufacturer from liability for failure to warn when it provides a proper warning to the specialized class of people who are authorized to sell, install, or provide the product. Noting that the Arizona Supreme Court has never formally adopted the learned intermediary doctrine, the court analyzed it in the context of the Uniform Contribution Among Tortfeasors Act (UCATA). It concluded that UCATA, which abolishes joint and several liability, is inconsistent with the learned intermediary doctrine. Looking to the Arizona Supreme Court s State Farm Ins. Co. v. Premier Manufactured Systems, 217 Ariz. 222, 172 P.3d 410 (2007), which reiterated that Arizona law prevents a partially responsible defendant from being held liable for the damages by his co-defendant, the court rejected the learned intermediary doctrine. It concluded that protecting a prescription drug manufacturer from possible liability for its own actions in distributing a product, simply because another participant in the chain of distribution is also expected to act, is inconsistent with UCATA. Importantly, the learned intermediary doctrine is abolished in whole, not just with respect to pharmaceuticals. The practical consequences of the Watts decision are still unknown. Juries may well re-affirm what the learned intermediary doctrine always assumed that doctors and other learned intermediaries alone must be responsible for failing to communicate the warnings that they receive or they could open a new avenue of liability for manufacturers who can no longer rely on doctors and other intermediaries duties to warn consumers.

11 Amicus Committee Update As part the AADC s mission to educate its members and the judiciary, the AADC is committed to advocating in support of important legal issues affecting the Defense Bar. Because of the importance that Arizona s common law plays in all of our practices, the AADC Amicus Committee is always looking for opportunities to advance the interests of the Defense Bar in Arizona s appellate courts through filing amicus curiae briefs. Recently, for example: After the Supreme Court accepted review in Newman v. Cornerstone Nat l Ins. Co., 234 Ariz. 377, 322 P.3d 194 (App.Div ), the AADC Amicus Committee filed an Amicus Curiae Brief regarding the issue of whether an offer of UM/UIM coverage under A.R.S required a premium quote. The AADC argued that the plain language of the statute dictates that no such premium-quote requirement could be imposed by the courts, and that doing so would only further proliferate litigation in this already litigation-saturated area of the law. In Midtown Medical Group, Inc. v. Farmers Ins. Group, 2014 WL (Ariz.App. Div ), the settlement check included the medical lienholder as a payee, but the bank cashed the check without the lienholder s endorsement. The Court of Appeals held that the insurer could be nevertheless held liable to the lienholder for payment of the lien (again). Because of the potential far-reaching ramifications, the AADC Committee filed an Amicus Curiae Brief requesting the Supreme Court to reverse the Court of Appeals. If any of you have an important legal issue before the Court of Appeals or Supreme Court that you believe would benefit from amicus curiae support, please contact the Chair of AADC s Amicus Committee, Charlie Callahan ). Daniel G. Perez North 7th St, Suite 100, Arizona O: F: As Arizona s finest bilingual investigative agency serving attorneys, insurance companies and businesses, we investigate personal injury & wrongful death events; property, casualty, liquor liability & Worker s Compensation claims; pre-employment & vendor backgrounds; corporate fraud/employee theft; drug trafficking; corporate due diligence; hidden assets; missing heirs; trademark & intellectual property infringement; computer-generated crime and industrial espionage in both English and Spanish. Engineering and Scientific Consulting North 19 th Ave, AZ Toll-free Common Defense Fall

12 Self Defense and Intentional Torts in Arizona By Shanks Leonhardt and Jasmina Richter, Sanders & Parks, P.C. 11 Shanks Leonhardt One of the most common coverage questions an insurer faces is whether it has a duty to defend a claim arising from an intentional act. For example, what if there is a civil suit arising out of injuries suffered in fight? Does it matter who started the fight? What if the defendant was acting in self-defense when he intentionally struck the plaintiff? Most homeowners policies and general liability policies will only cover injuries caused by an occurrence and will also expressly exclude injuries that are expected or intended by the insured. These two provisions govern the treatment of coverage for claims arising from an intentional act. The provisions address the general public policy against enforcing contracts indemnifying a person against loss from willful wrongdoing. Typical intentional act exclusions state: 1. Expected or Intended Injury Bodily injury or property damage which is expected or intended by an insured even Common Defense Fall 2014 Jasmina Richter if the resulting bodily injury or property damage : a. Is of a different kind, quality or degree than initially expected or intended. b. Is sustained by a different person, entity, real or personal property, than initially expected or intended. More modern versions of this exclusion will include an additional sentence providing an exception to the exclusion, stating [t] his exclusion does not apply to bodily injury resulting from the use of reasonable force by an insured to protect persons or property. In other words, policies with this exception will cover intentional acts if they are done with reasonable force to protect persons or property, i.e., acts committed in self-defense. In determining whether a certain situation qualifies as an occurrence, courts generally evaluate whether the precipitating conduct was accidental. Unfortunately, Arizona courts typically do not separately analyze potentially intentional claims under the definition of occurrence. Instead, the seminal authorities all analyze coverage in self-defense cases by attempting to determine whether the defendant s conduct was intentional. This practice can be troubling for insurers because the insurer bears the burden of proving the application of an exclusion (in this instance, an intentional act) whereas the insured bears the burden of proving there was an occurrence or accident. Assuming the act in question was volitional, courts determine the insured s intent in committing that volitional act by examining: (1) the insured s subjective desire to cause harm; and (2) whether harm was substantially certain to result from the insured s actions. Intent to harm will be presumed, as a matter of law, where the act of the insured is virtually certain to cause some harm. For certain kinds of cases, the insured cannot avoid the presumption of the intent to harm regardless of their subjective intent (e.g., cases involving sexual misconduct/harassment and firstdegree murder). For all other cases, an insured can only avoid the presumption of an intent to harm if he can establish that he was provoked or otherwise justified in acting, or lacked the requisite mental capacity. Arizona courts have recognized rebuttals to the presumption in the following circumstances, among others: (a) a defendant whose elbow struck the plaintiff in a heated basketball game; (b) a defendant who was so intoxicated he lacked mental capacity; and (c)

13 Self Defense and Intentional Torts in Arizona (continued) a defendant who assaulted the plaintiff in self-defense. In all of these situations, courts held the defendant had done enough to present the issue of intent to the jury. The Arizona Supreme Court has specifically analyzed the intentional acts exclusion in the context of self-defense claims in two cases it decided simultaneously. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 356, 694 P.2d 181, 186 (1984); Fire Ins. Exch. v. Berray, 143 Ariz. 361, 364, 694 P.2d 191, 194 (1984). Both cases involved fights occurring outside of a bar/tavern. The Court held in both cases that the claim of self-defense was sufficient to create a question of fact on the issue of whether the assaults were intentional acts. Meere includes the more detailed analysis of the two decisions. In that case, the plaintiff alleged that Meere struck him in a bar fight. Meere asserted that he was acting in self-defense. Meere s homeowners insurance carrier denied coverage based on the intentional acts exclusion. In finding a question of fact as to Meere s intent, the Court reasoned that [a]lthough his act was intentional, and its natural consequence was to cause injury, his basic desire or purpose may not have been to injure. Id. at 358; 694 P.2d at 188. Thus, the proper analysis of the intentional acts exclusion should only exclude coverage when the insured intentionally acts wrongfully with a purpose to injure. Id. at 359; 694 P.2d at 189. (emphasis in original); see also Berray 143 Ariz. at 364, 694 P.2d at 194 (holding defendant s intent cannot be supplied by focusing only upon the single act of the insured in firing the pistol but must be found by examining the totality of the circumstances surrounding that act ). It is interesting to note that the Court reached its conclusion in these cases despite the fact that neither the intentional act exclusion nor the definition of occurrence contained any reference to wrongful or malicious conduct. There have been no significant self-defense decisions modifying the rule of Meere and Berray. Thus, the common law in Arizona still holds that a homeowners insurance policy covers the negligent or improper use of excessive force in self-defense. It is unclear whether a case like Meere and Berray would be decided the same way today. The Court s reasoning in those cases was that an insured acting in selfdefense does not act intentionally. Thus, even if the insured is found to have used unreasonable force, he could still argue that it was not an intentional act falling within the exclusion. However, it appears perspectives on this issue may be changing. See, e.g., Delgado v. Interinsurance Exch. of Auto. Club of S. California, 47 Cal. 4th 302, 317, 211 P.3d 1083, 1092 (2009) (holding the insured s unreasonable belief in the need for self-defense does not turn the resulting purposeful and intentional act of assault and battery into an accident within the policy s coverage clause ). There is one final and related issue to note when evaluating the intentional act exclusion and a claim of self-defense. These civil cases will often involve a related criminal proceeding. It is important to review these criminal cases because the outcome of a criminal proceeding can have a binding effect on whether the insured can even assert a defense of self-defense in the civil case. If an insured pleads guilty or is found guilty of a crime involving an intentional act and the court rejects the defense of selfdefense, the insured is precluded from arguing self-defense in the civil proceeding. See A.R.S (2015); Republic Ins. Co. v. Feidler, 178 Ariz. 528, 875 P.2d 187 (1994). In sum, it is always important to evaluate: (1) whether a selfdefense argument will apply when defending a claim alleging intentional torts; and, if so, (2) whether a related criminal proceeding has foreclosed such a defense in the civil case. This analysis not only provides a potential avenue for a defendant to escape liability but it also may play a key role in determining whether a particular claim is covered by insurance. Common Defense Fall

14 Law and Leadership Cowboy Style: A Ranchers Daughter s Perspective By Beth Fitch, Esq., Righi Law Group Beth Fitch, Esq. Success and self determination starts with leadership. In contrast to the institutional industries that defense lawyers serve, law school curricula do not include formal leadership classes. Leadership is not typically found within law firm vernacular and/or is widely misunderstood. Contrary to popular belief, leadership is not analogous to law firm management. What is leadership? Ken Blanchard, a global leader in leadership training, defines leadership as the process of influencing the activities of an individual or a group in efforts toward goal achievement in a given situation. According to Business Coach Lynn Moran, Leadership is comprised of personal and professional attributes that an individual possesses which enables him/ her to provide inspiring visions, high performance business/ professional strategies supported by a skill for attracting and developing high caliber human talent for an organization. Understanding one s own attributes and character traits is critical to being an effective firm, industry, and community leader. Yet, continuing legal education courses rarely, if ever, focus on leadership development. In the absence of CLE, one is forced to draw upon his or her own experience. Fortunately for me, I have a family legacy of strong leadership that propelled me forward and sustained me throughout my career. In the wake of my father s recent death, I have spent time reflecting on my father: cowboy, rancher, and leader of leaders. As a ranchers daughter I had the privilege of spending my childhood around cowboys. The leadership lessons learned from my father and cowboys like him are timeless and universal. The power of the story: That reminds me of Whenever those four little words were heard by those around my father, we knew that a story was forthcoming. Rather than groaning and looking for a quick escape most would stop with baited breath. My father was a master story teller. He could coin a phrase and tell a yarn like no other. Drawing on his experiences as an Italian immigrant in the wild wild west, my dad could conjure up powerful imagery. Sitting around the campfire after a long hard gritty day in the saddle, a story served to release the tension and entertain. My father s storytelling had two natural effects. These stories solidified my father as the leader. But more importantly, as my father understood so well, a story served to bring clarity to connect purpose and meaning to the daily grind of herding cattle. DAWN L COOK RN, LNCP-C, CLCP, CLNC Life Care Planner, Testifying Expert Dawn Cook Consulting LLC Phone efax Sky Pointe Dr. # Las Vegas, NV Common Defense Fall 2014

15 Law and Leadership Cowboy Style (continued) The law practice can also be the daily grind. We are inundated with billing codes, reporting guidelines, and traffic that have commoditized lawyers. The amount of information one lawyer receives and puts out every day is overwhelming. As Daniel Pink aptly puts it in A Whole New Mind: When facts become so widely available and instantly accessible, each one becomes less valuable. What begins to matter more is the ability to place these facts in context and to deliver them with emotional impact. Trial lawyers certainly understand the value of story for jury persuasion but ironically this has not translated to leading their younger lawyers or staff. Story can be a vital tool to connect a young lawyer s daily grind to the bigger picture of career and law firm sustainability and build loyalty to the firm. Tenacity Movies and music have glamorized the cowboys life. Whenever, I mention that my father was a cowboy, people want to hear about the exciting life on the range. They even voice jealousy at the privilege of living such a life and invariably say Cowboys are special. Well, indeed cowboys are special. Willie Nelson s lyrics hit the nail on the head: Cowboys are special--they have their own breed of misery. No truer words every sung. Ranching is hard work under harsh conditions. Mother nature is a cruel mistress. Drought and blizzards are often her calling cards in Northern Arizona. In the summer, the grueling work of hauling water day after day, sometimes week after week, is part of the rancher s rhythm of life. February is calving season. With freezing cold temperatures, whipping winds, and snow drifts, my father would tirelessly go out and deliver calves. This required tenacity. Tenacity serves lawyers well in the practice of law. Tenacity tends to be in the DNA of litigators. I don t need to talk about the importance of tenacity in arguing points of law. However, this type of tenacity has not always transcended into law firm leadership. Many practice areas are tied to the economy and can be cyclical. Clients are more demanding and less loyal; even fickle at times. The lawyer s reaction to both is critical. Compare the lawyers who respond with anxiety and fear to those who respond by tenaciously pursue new practice areas or clients. The recent bankruptcy of Dewey & Lebouf, one of the largest firms in the country, is evidence that the times have changed and lawyers need to have the courage and tenacity to change with the times. Resilience The hardships come always and sometimes in unexpected ways. For my father, this meant the tragic loss of his 11 month old son. My parents lived on the JCJ ranch, a piece of unfriendly dirt 30 miles from the little town of Prescott. My father and mother spent their days raising a few head of cows and harvesting alfalfa. My dad would leave the ranch house at dawn and would not return to dusk. Milking cows, irrigating crops, and repairing fences is grueling and exhausting work. But, when their son became listless and feverish, they loaded him up in the truck and hauled him to the tiny little hospital. The country doctors were baffled but assured my parents that intravenous antibiotics would fix up whatever ailed their precious child and sent them back home. The dreaded phone call came several hours later. Viral meningitis killed their son. My parents grieved when they buried their son and for a lifetime thereafter but they were also resilient. Despite this devastating loss, they carried on. The crops were harvested that year and the cattle were sold at auction. So when my father would say gruffly pull yourself up by your bootstrap and move on, he was speaking with integrity for he modeled that resilient spirit. The law practice is also full of hardships and fraught with stress. Litigators are subjected to a daily barrage of negative messages from opposing counsel s constant subtext that you are wrong and perhaps stupid to adverse court rulings to third party billing audits. Couple this with law firm politics, angry clients, or a bad trial result, lawyers regularly turn to alcohol, drugs, or worse. According to the Lawyer Assistance Program lawyers are nearly twice as likely to struggle with alcoholism and depression as compared to other profession. Anecdotal evidence suggests that resilience is the defining factor between those lawyers who withstand the stress and hardships and those who tank. Integrity Two phrases: I shook on it and Take the high road. Trite as they are, these two catch phrases are a powerful road map. My father lived them out every day in every way. The most important value to my father was integrity. He understood what so few lawyers understand: Reputation is everything and doing the right thing is rarely the easy thing. Last week was a poignant reminder of the power of reputation. Two Common Defense Fall

16 Law and Leadership Cowboy Style (continued) lawyers arguing a summary judgment motion. The movant was represented by an experienced lawyer with a reputation for being a lawyer of integrity. The respondent was represented by a younger lawyer who is arrogant and cocky. The pleadings reflected their personalities. The movants pleadings were well written and persuasive but more importantly did include personal attacks against the other lawyer. In contrast, the respondents pleadings were full of vitriolic rhetoric and claimed that the movant s position was disingenuous. The court granted the motion from the bench. As soon as the judge left the courtroom, the younger lawyer red faced and angry started yelling at his opponent that he is short sighted (subtext stupid) and that the impact of the ruling hurts both clients. Hmmm. He just loses a motion and attacks the other lawyer??? The more reasoned and experienced lawyer did not respond in kind but reminds the younger lawyer that he attempted to work out a deal with him before the hearing and despite the dismissal of claims against his client, will still consider a reasonable proposal. The younger lawyer stormed out. Walking to our cars with the experienced lawyer, he made the observation that this young lawyer has a reputation for being an asshole and has deservedly earned it. This young lawyer s attitude and behavior have not only undermined his reputation but also cost his client. Having operated in the same legal sub culture as this young lawyer, this is not the first time his client has paid the price for his arrogance and disrespectful behaviors. He regularly accuses other lawyers of being disingenuous (subtext lying). This invariably causes the opposition to respond in kind and in turn causes acrimony and protracted litigation. Despite being the sixth largest city in the United States, there is no anonymity in the practice. One may think what one does or says to opposing cocounsel means very little in the grand scheme of things. Quite the contrary is true. is a small legal community. Lawyers operate in sub-cultures, whether its construction defect, medical malpractice, bankruptcy, or the various other areas of practice. We run into the same lawyers time and time again. Lawyers have long memories. A reputation for gamesmanship spreads like a virus. Think twice before taking advantage of an opponent s naivete or mistakes. The short term tactical advantage (if any) rarely if ever pays off in the long run. Taking the high road gives an opponent the opportunity to rectify the mistake and save face. You will have made a friend for at least the duration of the case if not for your career. And when you make a mistake which you will your attitudes and behaviors toward others will either save or undermine you. Humility A good cowboy knows that herding cattle is done from the back at a very slow pace. The best practice is to travel at the pace of the slowest calf and never never leave behind one for the sake of expediency. My father even went so far as to pick up a newborn calf and carry it with him on his horse. The lesson learned a good shepherd never leaves behind any of his herd. My dad understood that this basic herding principle applied not only to calves but also to leading ranch hands. My dad never needed to be in the limelight or be acknowledged publicly but there was no doubt in the wranglers mind that he was the boss. Round up requires the coordination of many tasks herding the cattle from the range into the pens, separating bulls, heifers and calves, branding, inoculating, and pregnancy testing to name just a few. For this complex operation to proceed smoothly every wrangler needs to do her part competently, timely, and efficiently. The stench and smoke from burning calf flesh from branding coupled with whipping dust devils and the deafening sound of bawling new born calves who have been separated from their mothers sets the stage of chaos where cattle become unpredictable animals. The heifers separated from their new born calves become agitated. Calves likewise become stressed and will bolt at any chance they get. Bulls challenge and charge. When things go awry, confusion can occur and a strong leader must step in and take charge. My dad would sit in the middle of the pen on his horse quietly watching and observing. All would look to him for his calming influence: A finger point, a shrug of shoulder, or head nod is all my father needed to do to lead. In the book Good to Great, Jim Collins, talks about Level V leaders. These are the CEOs whose Fortune 500 companies experienced unprecedented growth and success under the leadership, yet the CEO rarely makes public 15 Common Defense Fall 2014

17 Law and Leadership Cowboy Style (continued) appearance or is even known. Collins book explains that Level V leaders channel their ego away from themselves and into the larger goal of building a great company they are incredibly ambitious but their ambition is first and foremost for the institution not themselves. Collins then hones in on the key character trait: an individual who blends extreme humility with intense professional will. The same should hold true for law firm leadership. Although intense professional will is a common characteristic among lawyers, we could learn a lot from cowboys and CEO s about humility. Always asking the question why are we doing what we are doing is a powerful tool to teach humility. Simplicity Money and the need for prestige is the anathema of the cowboy way. Ranching is a very profitable business and most of the ranchers I know are wealthy. Despite this wealth, the cowboys I know live simply. A horse, a saddle, and a few head of cattle is all that is needed. The modern cowboys have creature comforts such as pick up trucks and cell phones. But the excessive consumerism that pervades the American culture is not to be found in the cowboy culture. Cowboys understand what scientific studies now supports: Less is more. Positive psychology is an emerging field that is devoted to measuring individual happiness (Argyle 8). Positive psychological empirical data support the paradox of happiness--that people s happiness levels do not increase as income rises after a certain point and that work satisfaction has a large influence over total happiness. Research psychologist David Argyle observes in The Psychology of Happiness that individuals who believe that their work is purposeful and relevant are significantly happier than those who do not. While money can lend purpose to work, it has been shown that true engagement in work has very little to do with happiness. More is better, is the essential economic assumption that has permeated law firm management. Many lawyers are on the hedonic treadmill that creates both waste and life dissatisfaction. Billable hour requirements have steadily increased while job satisfaction has steadily declined. Lawyers are leaving private practice in droves. A large percentage of those who remain in private practice are miserable. Yet, the answer boils down to a basic formula: Simplify equals liberation. Passionate Pursuit of Your Dream La dolce vita, la doce morte. That Italian phrase sums up my father and his legacy: A good life-a good death. At the age of 87 my father succumbed to congestive heart failure. His death embodied his life. The last week of his life he spent in and out of consciousness in the ICU at Yavapai Community Hospital. While my sisters and I held a 24 hour vigil we had the privilege of watching scores of visitors come to pay their respects. Because he was hooked up to monitors we could watch his heart rate and blood pressure. The blips on the monitors revealed the secret of his good life and good death. Every time the conversation would turn to cattle, his heart rate would increase and blood pressure rise. His passion for ranching began at age 14 and never dissipated until the moment his heart stopped beating. He loved his life despite the hardships because he discovered early on the key to true personal satisfaction: find your passion and pursue it relentlessly. Ranching was a way of life for my father but in his early years, he also had a vocation to support his family. He owned a retail store. Selling feed and tack was not his passion but he had a long term vision that kept him energized and focused. He cultivated a corporate cowboy culture that embodied his values and vision so that he enthusiastically went to work day after day and week after week while pursuing his dream of ranching on the weekends. Law firms have unique corporate cultures and are shaped by those who are in leadership. Firm cultures that are intentionally designed to empower individual lawyers to pursue rewarding careers paths and personal passions not only improve long term stability but also long term sustainability. Conclusion: Lawyers used to share the same public perception as Cowboys. Both were glamorized. This continues to be true for the cowboys but the public perception of lawyers is disturbing and based on the behavior of a few. To turn the tide of public perception requires leaders with admirable character traits to step up and be noticed. Cowboys never shy away from a challenge. And lawyers typically don t either. Take the cowboy challenge: Lead with tenacity, resilience, simplicity and integrity. Common Defense Fall

18 Let s Hear It For The Defense Donald Myles, Michele Molinario, and Gayathiri Shanmuganatha Obtain Summary Judgment in Fernandez v. City of Donald Myles, Michele Molinario, and Gayathiri Shanmuganatha of Jones, Skelton & Hochuli in Arizona, obtained a win for the City of in the Superior Court of Arizona. Plaintiffs, assignees of former police officer Richard Chrisman, brought a declaratory action against the City of to enforce an $8.5 Million dollar Morris type agreement. Defendant City of moved for summary judgment arguing that Plaintiffs claims were barred by the statute of limitations, res judicata, collateral estoppel or judicial estoppel, and that the City Codes either barred Plaintiff s claims or limited their damages to the costs of defense in the underlying Federal Court case. The Court agreed with Defendant City. The court determined that its obligations to Mr. Chrisman, and therefore Plaintiffs, cannot extend beyond the limits set by the City Codes. The Court, therefore, granted the City s Cross Motion for Summary Judgment and held that, if the jury finds that the City of wrongly denied Mr. Chrisman indemnity, Plaintiffs are only entitled to recover reimbursement for reasonable fees and expenses and not the $8.5 Million dollar settlement. Court of Appeals Affirms Summary Judgment for Defense in Tavilla v. Blue Cross Blue Shield of Arizona The Arizona Court of Appeals (Div. 1) recently upheld summary judgment in favor of the Defendant, represented by Donald L. Myles, Jr., Jeff Collins and Jennifer Anderson of Jones, Skelton & Hochuli. Plaintiff was insured under a Blue Cross Blue Shield of Arizona ( BCBSAZ ) health insurance contract and was prescribed the drug ACTIQ by his treating physician. Pursuant to the terms of the insurance contract, ACTIQ was not eligible as a covered benefit but, nevertheless, BCBSAZ paid for the prescriptions during the relevant period of time. Plaintiff claimed he sustained dental damage due to the ACTIQ which was in the form of a sugar lozenges and, therefore, sought contract benefits for the dental work his dentist recommended. BCBSAZ denied those services as they were not covered under Plaintiff s medical insurance contract, which provided limited dental benefits, as distinguished from a dental contract which Defendant did not provide to Plaintiff. As a result, Plaintiff filed his Complaint alleging breach of contract and insurance bad faith claiming BCBSAZ should have paid for the dental work and that BCBSAZ breached the contract by paying for ACTIQ when it could have denied the benefit which allegedly caused him harm due to adverse effects of the drug. The Court of Appeals affirmed summary judgment on all counts. First, while the contract requires BCBSAZ to pay for covered benefits, there is no converse obligation not to pay for ineligible benefits. Second, the Court held that the limited dental services under the medical contract did not apply because Plaintiff s tooth decay, allegedly caused by the drug, was not the result of accidental injury or integral to a medical procedure under the contract Plaintiff also claimed that BCBSAZ had an obligation to, in effect, monitor Plaintiff s healthcare by the manner in which it administered benefits. The Court held that BCBSAZ did not act in bad faith in allegedly failing to monitor Plaintiff s healthcare decisions and declining to pay for ACTIQ as it could have. Mike Hensley and Jeff Collins Save Carrier $1 Million Mike Hensley and Jeff Collins prevailed by summary judgment in a declaratory judgment/coverage litigation involving the choice of law (Minnesota or Arizona) and the stacking of Uninsured or Underinsured motorist coverage (UM/UIM) under Minnesota law (the law the Court held applied to the case). The net effect of this victory was to save the carrier over a million dollars in additional UM/UIM benefits. A summary of the case is as follows. Plaintiffs traveled to Arizona, from Minnesota, and were involved in a car/motorcycle collision. Plaintiff husband was driving the motorcycle with Plaintiff wife as his passenger. As they went through an intersection, a car turned in front of them causing the accident. Both Plaintiffs suffered severe injuries with the combined medical expenses exceeding one million dollars. The at fault driver had the statutory minimum coverage. Plaintiffs motorcycle insurer paid out $100,000 in UIM coverage for each Plaintiff. Plaintiffs sought to stack additional UM/UIM coverage from policies they had 17 Common Defense Fall 2014

19 Let s Hear It For The Defense (continued) on other cars and motorhomes they owned on to what they had already received from the motorcycle insurer. The insurance companies denied they owed any UM/UIM coverage, contending that Minnesota law applied and that under Minnesota law they did not owe UM/UIM coverage on top of what was already covered. Plaintiffs then sued the carriers who insured their motorhome and auto seeking $250,000 for each Plaintiff under each of the two polices, for a total of $1 million. They asked the Court to declare that Arizona law applied and that Arizona law allowed them to stack the multiple UM/UIM coverages under policies insuring a variety of vehicles. One of the major issues to be decided by the Court was the choice of law. Did Minnesota or Arizona law apply? Plaintiffs argued that staying in their motorhome for multiple months made them Arizona residents so Arizona law should apply. Lawyers for the insurers argued the Plaintiffs were not residents of Arizona and that the choice of law analysis dictated that Minnesota law should apply in the stacking analysis. The Court agreed with the insurers position based upon the relevant facts in the context of the controlling Arizona case of Beckler v. State Farm. Additionally, the insurers argued that applying Minnesota law, which limited stacking of UM/UIM coverage for multiple vehicles, meant their clients did not owe the $1 million in additional UM/ UIM coverage. The Court denied Plaintiffs Motion for Summary Judgment and granted the insurers Cross-Motion for Summary Judgment finding the Plaintiffs were not entitled to stack the UM/UIM coverage from their other vehicles on top of the UIM coverage they already recovered under the policy insuring the motorcycle. The end result? A victory that saved the insurers one million dollars in additional UM/ UIM payments. Lynn Allen and J.P. Harrington Bisceglia Obtain A Unanimous Defense Verdict in Bad Faith Case Lynn Allen and J.P. Harrington Bisceglia of the Allen Law Group obtained a unanimous defense verdict in a bad faith case filed against American Family. Plaintiff filed suit against American Family alleging breach of contract, breach of covenant of good faith and fair dealing, negligence, civil conspiracy, fraud, negligent misrepresentation, negligent infliction of emotional distress, and intentional infliction of emotional distress. Plaintiff claimed American Family failed to investigate and diagnose the cause of interior water leaks arising after a 2008 storm and again after a 2010 storm which also caused additional hail damage to the roof. Plaintiff asserted that American Family s failure to investigate and diagnose resulted in water damage and mold in her home. Plaintiff also claimed American Family failed to pay for repairs to the roof and the interior water damage. American Family denied liability and advanced the defense that it paid the reasonable amount to repair the damage that was caused by the 2008 and 2010 storms. American Family argued the roof was not damaged by the storms and its repair was not a covered loss. Plaintiff sought damages for the emotional trauma, anxiety, humiliation, property damage, lost business inventory, lost business profits, loss of business goodwill, and punitive damages. After discovery and the filing of dispositive motions Plaintiff stipulated to the dismissal of the fraud, negligent misrepresentation, and intentional infliction of emotional distress claims. The court granted summary judgment on the civil conspiracy claim. Plaintiff later agreed to not Common Defense Fall

20 Let s Hear It For The Defense (continued) pursue her negligence claims and the court dismissed same. The matter proceeded to a jury trial on the breach of contract and bad faith claims. After a six-day trial, plaintiff s counsel asked the jury to award $4,000 for property damage; $700,000 for lost business inventory; $643,390 in lost profits; $43,000 for lost business goodwill; $115,500 for emotional trauma, anxiety and humiliation; and $6 million in punitive damages. The jury returned a unanimous defense verdict. responded by claiming that public policy supported imposing a duty of care on everyone to avoid creating situations that pose an unreasonable risk of harm to others. The trial court disagreed and granted the motion to dismiss on behalf of Defendants. Michael Ludwig and Jennifer Anderson Obtain Dismissal of Catastrophic Injury and Wrongful Death Case Michael Ludwig and Jennifer Anderson of Jones Skelton & Hochuli in, recently obtained the complete dismissal of their clients from a catastrophic injury and wrongful death claim. The six Plaintiffs two adults and four children were involved in a two-car accident that killed one passenger, caused traumatic brain injury to another, and significantly injured the remaining passengers. The Plaintiffs vehicle was struck by a car driven by a man who was allegedly under the influence of drugs and who, hours earlier, had stolen the car from a valet service by claiming to be the owner. Proceeds to benefit The ALS Association Arizona Chapter The plaintiffs sued the valet company, the hotel at which it operated, and the driver of the stolen car. Defendants filed a motion to dismiss all claims against the hotel and valet company, arguing that neither owed a duty of care to the Plaintiffs because no special relationship existed between them. The Plaintiffs 19 Common Defense Fall 2014

21 Sponsorship Opportunities Corporate Sponsor - $1000 ***** Company name will be included on the sponsor board, printed in the event program & displayed at a designated hole* Complimentary golf in the tournament for up to 4 golfers, including a special sponsor favor. Also includes a rolling banner ad on every golf cart. Greens Fees Underwriting Sponsor- $5, 000** *Company name recognition as Exclusive Sponsor on all promotional materials and signs * Complimentary golf in the tournament for up to 8 golfers, including a special sponsor favor. Also includes a rolling banner ad on every golf cart. Shirt Sponsor - $4,000 ** Company name recognition as Shirt Sponsor on all promotional materials and signs * Complimentary golf in the tournament for up to 4 golfers, including a special sponsor favor. Includes company logo on shirts given to all golfers. Also includes a rolling banner ad on every golf cart. Awards Luncheon - $1,500 ** Company name recognition as Awards Luncheon Sponsor on all promotional materials and signs * Complimentary golf in the tournament for up to 4 golfers, including a special sponsor favor. Also includes a rolling banner ad on every golf cart. Hole in One Sponsor - $1,500** -There will be hole- in- one prizes on all par 3 holes. Company name recognition as Hole in Prize Sponsor on all promotional materials and signs * Complimentary golf in the tournament for up to 4 golfers, including a special sponsor favor. Also includes a rolling banner ad on every golf cart. Dos de Mayo Margarita Sponsor - $1,500**There will be margaritas for all the golfers at the hole. Company name recognition as Tres de Mayo Margarita Sponsor on all promotional materials and signs. A table on the 5 th hole for display and distribution of company materials. Sponsor listing in event program. Continental Breakfast Sponsor - $500 ** Company name on a sign at bagel and coffee booth* Sponsor listing in event program* Mention at awards banquet. Also includes a rolling banner ad on every golf cart. Beverage Sponsor - $500 ** Company name on the tickets that will be given to golfers to use in exchange for libations * Sponsor listing in event program * Mention at awards banquet. Also includes a rolling banner ad on every golf cart. Cigar Sponsor - $500 ** There will be a table at a hole with the cigar roller where you can display and distribute company materials. Company name recognition as Cigar Sponsor on all promotional materials and signs.* Sponsor listing in event program * Mention at awards banquet. Also includes a rolling banner ad on every golf cart. Closest to the Pin Sponsor - $300 ** Company name on a hole sponsor sign as Closest to the Pin Sponsor * Sponsor listing in event program * Mention at awards banquet. 4 Available Longest Drive Sponsor - $300 ** Company name on a hole sponsor sign as Longest Drive Sponsor * Sponsor listing in event program * Mention at awards banquet. 1 Available The AADC... fighting ALS The Arizona Association of Defense Counsel (AADC) is a nonprofit organization comprised of defense attorneys who practice primarily in the area of civil defense litigation. Annually, the AADC has organized the Barry Fish Memorial Golf Tournament to raise money to fight Amyotrophic Lateral Sclerosis (ALS), also known as Lou Gehrig s Disease Barry Fish was a colleague of AADC and a victim of ALS. Since there is no cure for ALS, money raised from the golf tournament will help fight the disease, in memory of Barry, our colleague and friend. All tournament proceeds will benefit the ALS Association - Arizona Chapter The ALS Association is the only nonprofit volunteer-driven health organization dedicated solely to the fight against ALS, through patient and family support services, equipment, public awareness and funding for cutting-edge research for our community in our community. (Cut along dotted line and mail with your check, to the AADC address at the bottom of the registration form.) Individual & Sponsor Golf Registration Form To register online go to Name: Firm: Address: City: St.: Zip: Phone # Foursome Players or Individual PLAYER REGISTRATION & SPONSORSHIP $5,000 - Greens fee sponsor (8 golfers) $4,000 - Shirt sponsor (4 golfers) $1,500 - Awards luncheon (4 golfers) $1,500 - Hole in One Sponsor (4 golfers) $1,500 - Tres de Mayo Margarita Sponsor (4 golfers) $1,000 - Corporate Sponsorship (4 golfers) $ Team registration (4 golfers) $ Individual golfer Total SPONSORSHIPS (DOES NOT INCLUDE GOLF) $500 - Continental Breakfast sponsor $500 - Beverage sponsor $500 - Cigar Sponsor $300 - Closest to the pin sponsor (4) $300 - Longest drive sponsor (2) $250 - Hole sponsor Total Total Player Registration & Sponsorships We are unable to participate as a sponsor, but please accept our tax deductible corporate gift of $ Please mail check and this registration form to : AADC Charity Golf Tournament 950 E. Baseline Rd. # Tempe, AZ FOR MORE INFORMATION GO TO: or call AADC at SOLD

22 The Talking Dead: A Brief Refresher On Citing Cases By Andrew Petersen 21 Andrew Petersen 1) You no longer need to provide parallel citations. Cite to the official Arizona reporter. 2) Do not personify cases. Do not write: Rawlings v. Apodaca discussed the implied covenant of good faith and fair dealing. Neither the case nor its name ever reasoned, discussed, concluded, or said anything. The court did. Write: The court in Rawlings v. Apocada discussed the implied covenant of good faith and fair dealing. 3) It is commonplace, however, when discussing only the holding of a case to use the phrase: Rawlings v. Apodaca held that tort damages are available for breach of the implied warranty of good faith. 4) Courts do not feel, believe, or argue anything. Common Defense Fall ) Held is a court s decision about the law as is concluded. Found is a court or jury s decision about facts. 6) Read the cases you cite, and cite the cases accurately. Recognize the difference between holdings and dicta. 7) After the first citation to a case, a case s short name is usually the first party except when the first party name is common or confusing in which case you use both names (i.e., never only the second). 8) Use the past tense when discussing the facts or the outcome of a case. Do not write: The court in Rawlings v. Apodaca discusses the implied covenant of good faith and fair dealing. Use: discussed. Any discussion from the court was almost 30 years ago. 9) Use the present tense when discussing rules, statutes, the restatements, and the common or current law. The court held (past tense) that tort damages are (present tense) available for a breach of the covenant of good faith and fair dealing. Or: Rawlings provides (present tense) a helpful discussion on the covenant of good faith and fair dealing. 10) Use the present tense when discussing literature even if the author is dead (literary present tense - - the talking dead). Use past tense if discussing the author himself or his life. For a similar reason, a contract is a living document so use the present tense when discussing what a contract states. A law review article and a law treatise are both living documents. Again, use present tense. For example: Professor Dobbs argues (present tense) that beginning in the 1970s, courts began to impose tort liability for bad faith breach of contract. 11) Be selective in direct quotes and point to a specific page and paragraph (if available) in the decision - - not headnotes. Do not quote or cite portions of a case that summarize the parties positions or arguments that were made to the court. 12) Capitalize court only when referring to the United States Supreme Court or to the full name of a court. Do not write: The Court of Appeals said... Rather, the court of appeals said or the court said. Exception: when you refer to federal circuit courts, e.g., Ninth Circuit. 13) Italicize case signals before a citation such as see, contra, cf., e.g., etc. See means the case supports your position but not directly; contra is when the authority contradicts what you just said; cf. means the case provides a helpful analogy, but cf. clarifies a point by using a contradictory or divergent example. 14) When including a parenthetical explanation following a citation, it is usual to include either a quote from the case or begin the parenthetical explanation with a present participle, such as recognizing, concluding, allowing, or affirming. Parentheticals are not the place to make your arguments.

23 ARIZONA CHAPTER The following attorneys are recognized for Excellence in the field of Alternative Dispute Resolution NAME BASED IN PHONE NAME BASED IN PHONE Kevin T. Ahern (602) Jerome Allan Landau Scottsdale (480) Shawn Aiken (602) Michelle T. Langan Tucson (520) Hon. Rebecca Albrecht (602) Mark E. Lassiter Tempe (480) Maureen Beyers (602) Amy L. Lieberman Scottsdale (480) Gary L. Birnbaum (602) Ken Mann Scottsdale (480) Brice E. Buehler (602) Paul McGoldrick (602) Jonathan David Conant Prescott (855) Hon. Bruce E. Meyerson (602) David J. Damron (602) Charles Muchmore (602) Joe Epstein Scottsdale (888) Hon. Daniel Nastro (602) Hon. Kenneth Fields (602) Hon. Barry C. Schneider (602) Hon. Lawrence Fleischman Tucson (520) Hon. Stephen H. Scott (602) Sherman D. Fogel (602) Hon. Christopher M. Skelly (602) William J. Friedl (480) Jeffrey R. Timbanard Paradise Valley (480) Richard A. Friedlander (602) Thomas Lee Toone (602) Alan Goldman (602) S. Jon Trachta Tucson (520) Marc Kalish (602) Mark D. Zukowski (602) CALENDAR CALENDAR Check preferred available dates or schedule appointments online directly with Arizona s top neutrals. Free web service funded by the above members NADN is proud creator of the DRI Neutrals Database For more info, watch video at

24 2014 Holiday Judicial Reception By Johnny J. Sorenson In a break from recent tradition, the AADC did something bitter and twisted on December 4, The AADC hosted its annual Judicial Reception and Award Ceremony at a new location tucked inside of s historic Luhrs Building. Housed in the same building as the former prohibition headquarters of Arizona, the event was held at the Bitter and Twisted Cocktail Parlour, and it involved world-class cocktails and drinks of all sorts, a clever menu of tasty chef inspired hors d oeuvres, and a private lounge dedicated to our group. The 2014 Judicial Reception was highly attended by lawyers and judges alike, and it was a crazy fun time for all. Laughs, good times, and networking opportunities were enjoyed by all. Also, the AADC presented The Honorable John C. Gemmill with its first annual Judicial Excellence Award, and there is a separate article telling his story. If you missed the 2014 Holiday Reception, don t worry because you can catch our future events! Given the excitement and positive feedback garnered by this new location, the AADC may make more bitter and twisted decisions for our future events. 23 Common Defense Fall 2014

25 The Honorable John C. Gemmill AADC Judicial Excellence Award By Johnny Sorenson At the AADC s Judicial Reception, the AADC was proud to honor and hear from the Honorable John C. Gemmill, one of our finest former members. The AADC recognized Judge Gemmill with its first annual Judicial Excellence Award for his contributions to the judiciary and legal system in general. I was especially grateful to have a chance to talk to Judge Gemmill because he was my assigned mentor almost twenty years ago when I was a brand new associate at the firm then known as Teilborg, Sanders & Parks. Judge Gemmill who prefers being called John when not in a judicial setting emphasized that he is very honored and grateful to receive this outstanding award from AADC. And the award is particularly satisfying to John because of the quality of attorneys in AADC and his former membership in our organization. In addition to expressing his gratitude to AADC, John is also thankful for his 40-year mentor and friend, Jim Teilborg, and his co-workers at the law firm and the Court of Appeals. John is a native A r i z o n a n who grew up northwest of on a cattle feedlot/ farm known as Circle One Livestock Company at Lizard Acres. As a kid, he wanted to be a cowboy, train engineer, heavy equipment operator, United States Senator, Naval Officer, geophysicist, farmer/rancher, and comedian. He worked as a cowboy and served as a Naval Officer, but these other career interests became subordinated to the practice of law and his service as a judge. John graduated with highest distinction from the University of Arizona College of Agriculture with double majors in Animal Science and Agricultural Economics. He was President of Bobcats, the local senior men s honorary; a member of Blue Key National Honor Society; a member of the University of Arizona Intercollegiate Livestock Judging Team; and recipient of the Freeman Medal as an outstanding graduate. Following active duty with the United States Navy, he returned to the University of Arizona College of Law and received the Juris Doctor degree with highest distinction, graduating second in his class. John practiced law for many years with the firm now known as Sanders & Parks, concentrating in litigation and trial work involving personal injury, wrongful death, product liability, insurance, and commercial disputes. John was appointed in 2001 to the Arizona Court of Appeals and his colleagues later elected him Vice Chief Judge of Division One for and Chief Judge for In 2007, he received a U of A College of Law Distinguished Alumnus Award, and in 2008, he received an Alumni Achievement Award from the College of Agriculture and Life Sciences. He and his wife are active in their church and have two grown daughters, two sonsin-law, and three grandchildren. John likes his job and likes fishing, too. Eager to learn from my former mentor, I had a chance to ask Judge Gemmill a few questions about his career: Q: What did you enjoy the most and least about the practice of law before you became a judge? A: I especially enjoyed the following: the people I worked with in the law firm and many of the lawyers I worked with from outside our firm; many of our clients; the challenge of formulating legal and factual strategy for each case; the opportunities to help our clients; the satisfaction of successfully completing a case by trial, motion, or settlement; and working with expert witnesses. Looking back, I don t miss recording my time, reviewing bills, and the process of billing and collections generally but it s obviously important. And Common Defense Fall

26 The Honorable John C. Gemmill (continued) I don t miss the seasons of fast pace and high stress that often characterized our lives. Q: What do you enjoy the most and least about being a judge? A: I enjoy the opportunity to work on challenging cases and issues and to hopefully serve our State and judicial system as best I can. I still enjoy legal research and analysis (fortunately!). And my relationships with coworkers and friends here at the court are important and enjoyable. I m not sure what I like the least. There isn t much in that category. I am very grateful for this position. Q: What significant changes have you noticed to the practice of law in your career and are these changes good or bad? A: The practice of law inevitably changes as our culture changes. This is not necessarily good or bad it just is. I am confident there are many lawyers I would still enjoy working with. Thinking about changes in the procedural aspects of litigation, it seems there are more rules now, resulting in more requirements, more deadlines, and more pitfalls. The rules are well-intentioned, but too many rules may really be too many. Q: What is the most important lesson that you have learned about practicing law? A: For me at least, it is difficult to isolate just one important lesson. Perhaps that is because I had so many lessons I needed to learn. (And I still do.) The capability to be smart in the law but not lose the common touch in dealing with people is very important. Q: What advice can you give to lawyers about practicing law? A: Work hard. Be a strong advocate but also be just. Pick your role models wisely. Learn from others. Learn from your mistakes. Maintain a teachable spirit, as a life-long learner. Be courteous to everyone. And be honest and fair in the practice and in life. Q: What advice do you have for lawyers about life outside the law? A: Make sure you have a life outside the law! Don t sell your soul to your work, to the detriment of the rest of your life. The practice of law is a necessary priority for every practicing lawyer. But what about your spiritual, family, and social life? What about God? Family? Friends? What about helping others in the world? As a personal suggestion, I encourage you to consider the promise of eternal life found in the Bible. Consider your priorities and what will matter most over time, and make any needed adjustments. Along the way, don t forget your health, recreation, and relaxation, as well. Q: If you were not a lawyer (or a judge), what would you want to be and why? A: This is an interesting question and I don t have an answer. There are many careers that I believe would have been satisfying and rewarding. As already mentioned, our relationships are important and can be a very satisfying part of our work, no matter what our particular career or position. Therefore I encourage the cultivation and maintenance of our friendships. Anyone who has the pleasure of meeting, working with, or even just knowing Judge Gemmill will be moved by his calm confidence, kindness, knowledge, honesty, and leadership. He is an outstanding judge, former defense lawyer, loving husband, community leader, and wonderful human being. We are proud to recognize him with the AADC s first annual Judicial Excellence Award. Business Card Order Form Jim Gackle Senior Account Manager Street Address 77 East Thomas Road, Suite 250 City,State,Zip, AZ Phone# & ext. (602) , Ext. 203 Fax # (602) Cell Phone # (602) Website Early Data Assessment Data Forensics & Investigations ESI and Paper Processing Hosting, Review & Production Record Retrieval * Deposition Reporting * Multi-Plaintiff Litigation * Medical Records Summarization 25 *** Please fill in all necessary blanks *** Management Authorization Common Defense Fall 2014

27 2015 Tucson Holiday Judicial Reception While the AADC decided to try something new for the Holiday Judicial Reception, we decided not to mess with a good thing for the Tucson reception. On December 11, 2014 the AADC and the Tucson Defense Bar held the Holiday Judicial Reception at the Arizona Inn. It is a great venue and always well attended by the bench and bar in Pima County. The AADC and TDB presented Honorable Ted B. Borek with the first Annual Judicial Excellence Award and there is a separate article providing more information on Judge Borek s accomplishments. Janet Nilsen Cell: INTEGRATED MEDICAL EVALUATIONS, INC E. Jumping Cholla Drive Gold Canyon, AZ Toll Free: Phone: Fax: Web: CONSTRUCTION CONSULTING SOLUTIONS When you need responsive, reliable construction consultants. SPECIALTY SERVICES INCLUDE: Construction Forensic Testing & Analysis Litigation or Non-Litigation Expert Witness Damages Quantification Analysis for Construction Claims TUCSON PHOENIX Common Defense Fall

28 The Honorable Ted B. Borek AADC Judicial Excellence Award By Michele Thompson & Holly Davies 27 At the Tucson Judicial Reception, the AADC and the Tucson Defense Bar honored Honorable Ted B. Borek with the first annual Judicial Excellence Award. Judge Borek was very humble in accepting the award and is a great example of what the Award represents. Judge Borek extended to the AADC members his heartfelt gratitude for the recognition of receiving the Judicial Excellence Award. He hopes somehow the AADC recognition will help highlight the value of a system that brings good lawyers to the bench. Judge Borek was born in Pittsburgh, Pennsylvania. He moved to with his family in After graduation from North High School he entered the United States Military Academy, West Point, N.Y. Commissioned in the Army Signal Corps, he had assignments in Georgia, New Jersey, and Korea. From 1969 to 1972 he attended the University of Arizona College of Law, Tucson, and received his J.D. degree. Common Defense Fall 2014 After graduation from law school Judge Borek clerked for The Honorable C.A. Muecke, a federal district judge in. From 1973 until 1990 he was a lawyer in the Army Judge Advocate General s Corps. He practiced in fields including c r i m i n a l prosecution and defense, civil litigation, administrative law, claims adjudication, legal assistance, criminal appellate, contracts, international law, and labor law. Assigned principally in Germany and Washington, D.C., his assignments included being a Military Judge, and being the Staff Judge Advocate for both the 1st Armored Division and the Military District of Washington, D.C. His final military position was Director of Legislation and Legal Policy, Office of the Assistant Secretary of Defense for Force Management and Personnel. In 1990, Judge Borek joined the Office of the United States Attorney, Tucson, where he was a prosecutor and civil litigation attorney. His practice included defense of tort, medical malpractice, employment discrimination, and injunctive cases. He was appointed to the bench by Governor Hull and took office in July Judge Borek was on the Civil Bench from July In January 2004, he was appointed as one of two Pima County trial court judges to the Supreme Court Commission on Judicial Performance Review. In addition to judicial duties, Judge Borek has been active in community organizations including Parent Teacher Associations, St. Phillips Vestry, past Mediator and Board President of Our Town Family Center, West Point Society of Southern Arizona, Tucson Catalina Rotary, College of Law Mentor Program, and State Bar Committees on Continuing Legal Education and Professionalism. He was the first President of the Tucson Chapter of the Federal Bar Association and in 1996, received the Federal Bar Association s highest distinction for leadership, the Earl M. Kintner Award. Let us share a little more of what we learned from Judge Borek: Q: What did you enjoy the most and least about the practice of law before you became a judge? A: My greatest joys came in the variety of legal issues I addressed and the experiences of living in Germany as an Army lawyer, including managing offices there. I became a lawyer because I thought there always would be something new to learn, and that is still true. Though rare, getting crosswise with another lawyer is never enjoyable to me. Q: What do you enjoy the most and least about being a judge?

29 The Honorable Ted B. Borek (continued) A: What I have enjoyed most in life is working with others to solve a problem or accomplish a goal. Being a judge provided one avenue for doing this even in an adversary system. Every day I felt like I was working on a puzzle and wanted the parts to fit correctly or, otherwise said, to make the best decision I could. The days were busy, challenging, exciting, fun. The thing I enjoyed least was not necessarily discovery motions but rather having to address issues involving the credibility or disciplining of attorneys. Q: What significant changes have you noticed to the practice of law in your career and are these changes good or bad? A: I remember carbon paper, typewriters, and mimeographs. Not even copying machines. Word processors have increased productivity but also resulted in less succinct writing. Q: What is the most important lesson that you have learned about practicing law? A: Listen. Whether to a client s problem, a witness s testimony, a judge or juror s question, or a party s statements in a mediation, to be effective it is important to demonstrate you have heard the speaker. Q: What advice can you give to lawyers about practicing law? A: Less is more, or as E. B. White has said, Omit needless words. A judge reads volumes of material, and a short, concise document stands out and can be very persuasive. On the bench I found it most helpful if a motion would state the standard I was to apply and identify facts to support the standard. Q: What advice do you have for lawyers about life outside the law? A: Find things you like to do for the pure joy they give; make time to do them. Q: If you were not a lawyer (or a judge), what would you want to be and why? A: Since professional skiing was never in the cards, I d like to study philosophy because I enjoy discussing significant issues about the meaning of life and how to live it. Common Defense Fall

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