spring 2015 - Arizona Association Of Defense Counsel

Transcription

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 Phoenix to Tucson
Page 23-28
2014 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
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 Phoenix,
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 50th Anniversary AADC!
And what are we doing to
celebrate? Well, a 50th anniversary
1
Common Defense • Fall 2014
deserves a big party, so we are
headed to Las Vegas for our Annual
Meeting, June 5-7th. 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 20th
year anniversary, so please support
the cause this year so we can make
the 20th year of the tournament
an even bigger success than in
the past. If you have not played
for the last couple of years, a 20th
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 100th
Anniversary Party!
Holly Davies
President
Contents
President’s Message. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AADC Calendar of Events
The AADC Is Going Back To Las Vegas!.. . . . . . . . . . 3
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.. . . . . . . . . . . . . . . . . . . . . . 5 - 6
AADC Young Lawyers Division President’s
Message.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2014 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. . . . . . . . . . . . . . . . . . . . . 10
Self Defense and Intentional Torts
in Arizona .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
Law and Leadership Cowboy Style:
A Ranchers Daughter’s Perspective. . . . . . . . . . . 13-16
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. Email articles for submission to
Holly Davies at hdavies@lorberlaw.com. 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. #104-1025
Tempe, Arizona 85283
Phone: 480-609-3999
Fax: 480-609-3939
Email: admin@azadc.org
www.azadc.org
Let’s Hear It For The Defense. . . . . . . . . . . . . . . . . 17-19
The Talking Dead: A Brief Refresher On
Citing Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2014 Phoenix Holiday Judicial Reception.. . . . . . . . 23
The Honorable John C. Gemmill
AADC Judicial Excellence Award. . . . . . . . . . . . 24-25
2015 Tucson Holiday Judicial Reception. . . . . . . . . 26
The Honorable Ted B. Borek
AADC Judicial Excellence Award. . . . . . . . . . . . 27-28
2015-2016 Board of Directors. . . . . . . . . . . . . . . . . . . 29
Join AADC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2015 AADC CALENDAR OF EVENTS
SPECIAL EVENTS
ADVOCACY LUNCHEONS
YLD Lit. Basics CLE
Advocacy luncheons are held from 12 - 1pm at
Gust Rosenfeld, One E. Washington St., 15th Floor,
Phoenix
April 16, 2015
Gust Rosenfeld
One E. Washington St.,
15th Floor, Phoenix, AZ
1:30 - 5:00pm
20th Annual Barry
Fish Memorial Golf
Tournament
AADC Annual
Meeting
May 2, 2015
Camelback Golf Club
Scottsdale, AZ
June 5-6, 2015
The Wynn Resort and
Casino, Las Vegas
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
3
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!
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
Amanda Heitz
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
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.
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 Phoenix, 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.
In
addition
to
its
obvious
implications for tort plaintiffs
whose medical care was covered
under AHCCCS, this decision is also
4
Legal Update: EEOC Enforcement Activity Regarding the
Use of Criminal History in Employment Decisions
By Aaron D. Arnson, Esq., Lewis Roca Rothgerber LLP
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
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 1964.”2 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.
1See 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
http://www.eeoc.gov/laws/guidance/
upload/arrest_conviction.pdf.
2
5
Id. at 1.
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).
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 10.
5
Id.
6
Id.
9
Id. at 14 (citing Green v. Missouri
Pacific Railroad, 549 F.2d 1158 (8th Cir.
1977)).
7
Id.
10
Id. at 14, 18.
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.”12
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.
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 2015. 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.
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.15
11
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.
13
EEOC v. Peoplemark, 732 F.3d 584
(6th Cir. 2013).
12
EEOC v. Freeman, No. 13-2365,
2015 WL 728038 (4th Cir. Feb. 20, 2015).
15
Perhaps important for future
litigation, the Maryland district court in
14
See EEOC v. BMW Mfg. Co, No.
7:13-cv-01583-HMH-JDA (D.S.C. December
9, 2014), available at http://bit.ly/1wE53tF.
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 786.
16EEOC, Strategic Enforcement
Plan FY 2013–2016 (2012), available at
http://www.eeoc.gov/eeoc/plan/sep.cfm.
6
AADC Young Lawyers Division President’s Message
By Michael D. Morgan, Esq., Garrey Woner Hoffmaster & Peshek, PC
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 jgregory@jshfirm.com.
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
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 2015. 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
mmorgan@gwhplaw.com.
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
Fax
(480) 222-7072
(480) 222-7075
jgarrison@guardiansettlements.com
rgarrison@guardiansettlements.com
P. Gregg Curry, CPA/ABV/CFF
Managing Director
gcurry@navigantconsulting.com
602.528.8010 direct
www.navigantconsulting.com
Navigant Consulting, Inc. • Collier Center, Ste. 1700 • 201 E. Washington St. • Phoenix, AZ 85004
©2009 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 www.navigantconsulting.com/licensing for a
complete listing of private investigator licenses.
7
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 mmorgan@gwhplaw.com or
YLD Softball Committee Chair Erik Stone at estone@
jshfirm.com.
8
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
the learned
intermediary
doctrine
barred her
p r o d u c t
liability
claim. The
trial court
granted the
motion.
The
court
of appeals
reversed.
William F. Auther
Amanda Heitz
A f t e r
resolving
Division One of the Arizona Court
jurisdictional issues in Watts’s
of Appeals issued an opinion that
favor, the court turned first to
removes two major barriers to
the CFA. Rejecting Medicis’s
lawsuits against pharmaceutical
claim that pharmaceuticals
manufacturers: it recognized that
are not “merchandise,” and
state consumer fraud statutes
therefore, fall outside the scope
can be applied against these
of the CFS, the court noted that
defendants; and, under the
prescription drugs are “often
Uniform Contribution Among
advertised and sold to consumers
Tortfeasors Act, abolished the
in a manner similar to other
learned intermediary doctrine.
consumer goods, implicating
This opinion has the potential to
the need for the protection of
radically alter pharmaceutical
the CFA.” Because Watts had
and medical device litigation in
alleged that the Solodyn’s labeling
Arizona.
and promotional materials
had “affirmatively and falsely”
In Watts, the plaintiff, Amanda
misrepresented the drug’s safety
Watts,
sued
Medicis,
a
and that she relied on those
pharmaceutical manufacturer,
statements, the court found that
claiming that Solodyn, a
she had stated a claim.
prescription acne medication,
caused her lupus. She alleged
Perhaps the larger sea change
strict liability based on a failure to
came with the court’s rejection of
warn and also raised a claim under
the learned intermediary doctrine,
Arizona’s Consumer Fraud Act
which shields a manufacturer
(CFA), contending that Medicis
from liability for failure to warn
knowingly provided false and
when it provides a proper
misleading warning information.
warning to the specialized class
Medicis moved to dismiss the
of people who are authorized
claim, arguing that the Consumer
to sell, install, or provide the
Fraud Act does not apply to
product. Noting that the Arizona
pharmaceuticals and also that
9
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.
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.1 2014), the AADC
Amicus Committee filed an
Amicus Curiae Brief regarding
the issue of whether an offer
of UM/UIM coverage under
A.R.S. § 20-259.01 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 3608594 (Ariz.App.
Div.1 2014), 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
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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 (ccallahan@jshfirm.com,
602-263-7392).
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10
Self Defense and Intentional Torts in Arizona
By Shanks Leonhardt and Jasmina Richter, Sanders & Parks, P.C.
Shanks Leonhardt
Jasmina Richter
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?
if the resulting “bodily injury”
or “property damage”:
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:
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.
1. Expected or Intended Injury
“Bodily injury” or “property
damage” which is expected or
intended by an “insured” even
11
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.
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)
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”).
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. § 13807 (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.
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
12
Law and Leadership Cowboy Style: A Ranchers Daughter’s
Perspective
By Beth Fitch, Esq., Righi Law Group
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.”
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
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
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13
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.
Law and Leadership Cowboy Style (continued)
The law practice can also be the
daily grind. We are inundated
with billing codes, reporting
guidelines, and email 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
my father would tirelessly go out
and deliver calves. This required
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,
Resilience
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.
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
14
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
15
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 Phoenix 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. Phoenix 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
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.
16
Let’s Hear It For The Defense
Donald Myles, Michele Molinario,
and Gayathiri Shanmuganatha
Obtain Summary Judgment in
Fernandez v. City of Phoenix
Donald Myles, Michele Molinario,
and Gayathiri Shanmuganatha
of Jones, Skelton & Hochuli in
Arizona, obtained a win for the
City of Phoenix in the Superior
Court of Arizona.
Plaintiffs,
assignees of former Phoenix police
officer Richard Chrisman, brought
a declaratory action against the
City of Phoenix to enforce an
$8.5 Million dollar Morris type
agreement.
Defendant City of Phoenix 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
Phoenix 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
Phoenix 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 Phoenix 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
17
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
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
18
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 Phoenix, 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.
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
Proceeds to benefit
The ALS Association Arizona Chapter
FOR MORE INFORMATION GO TO:
www.azadc.org, email admin@azadc.org or call AADC
at 480-609-3999
Please mail check and this registration form to :
AADC Charity Golf Tournament
950 E. Baseline Rd. #104-1025
Tempe, AZ 85283
We are unable to participate as a sponsor, but
please accept our tax deductible corporate gift of
$_____________
___ $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
SPONSORSHIPS (DOES NOT INCLUDE GOLF)
___ $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)
___ $ 600 - Team registration (4 golfers)
___ $ 150 - Individual golfer
___________Total
PLAYER REGISTRATION & SPONSORSHIP
Foursome Players or Individual
_________________________________________
_________________________________________
_________________________________________
Phone #_______________Email:_____________
City:_____________ St.:_______ Zip:________
Address:________________________________
Firm: __________________________________
Name:__________________________________
Individual & Sponsor
Golf Registration Form
To register online go to www.azadc.org
(Cut along dotted line and mail with your check, to the AADC address at the bottom of the registration form.)
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.
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 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
•
•
•
•
•
•
•
•
The AADC . . . fighting ALS
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.
$1,500**There will be margaritas for all the golfers at the
Dos de Mayo Margarita Sponsor SOLD “Tres de Mayo Margarita Sponsor’ on all promotional
hole. Company name recognition as
materials and signs. A table on the 5th 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
•
•
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.
•
Sponsorship Opportunities
The Talking Dead: A Brief Refresher On Citing Cases
By Andrew Petersen
5)
“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.
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.
21
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.
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
Phoenix
(602) 271-7781
þ
Jerome Allan Landau
Scottsdale
(480) 585-3155
Shawn Aiken
Phoenix
(602) 248-8203
þ
Michelle T. Langan
Tucson
(520) 760-8663
þ
Hon. Rebecca Albrecht
Phoenix
(602) 643-2300
þ
Mark E. Lassiter
Tempe
(480) 218-4455
þ
Maureen Beyers
Phoenix
(602) 640-9305
þ
Amy L. Lieberman
Scottsdale
(480) 246-3366
þ
Gary L. Birnbaum
Phoenix
(602) 285-5009
Ken Mann
Scottsdale
(480) 789-1025
þ
Brice E. Buehler
Phoenix
(602) 234-1212
þ
Paul McGoldrick
Phoenix
(602) 230-5429
þ
Jonathan David Conant
Prescott
(855) 626-6268
þ
Hon. Bruce E. Meyerson
Phoenix
(602) 277-4585
þ
David J. Damron
Phoenix
(602) 476-1836
þ
Charles Muchmore
Phoenix
(602) 277-8228
þ
Joe Epstein
Scottsdale
(888) 355-2314
þ
Hon. Daniel Nastro
Phoenix
(602) 996-8312
þ
Hon. Kenneth Fields
Phoenix
(602) 542-2280
þ
Hon. Barry C. Schneider
Phoenix
(602) 308-7245
þ
Hon. Lawrence Fleischman
Tucson
(520) 326-6400
þ
Hon. Stephen H. Scott
Phoenix
(602) 277-8228
þ
Sherman D. Fogel
Phoenix
(602) 264-3330
þ
Hon. Christopher M. Skelly
Phoenix
(602) 277-8228
þ
William J. Friedl
Phoenix
(480) 595-5190
þ
Jeffrey R. Timbanard
Paradise Valley
(480) 991-6915
Richard A. Friedlander
Phoenix
(602) 285-5004
þ
Thomas Lee Toone
Phoenix
(602) 263-0900
þ
Alan Goldman
Phoenix
(602) 264-9307
þ
S. Jon Trachta
Tucson
(520) 321-1945
þ
Marc Kalish
Phoenix
(602) 956-3608
þ
Mark D. Zukowski
Phoenix
(602) 263-1759
þ
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
www.DRI.org/neutrals
For more info, watch video at www.NADN.org/about
2014 Phoenix Holiday Judicial Reception
By Johnny J. Sorenson
In a break from recent tradition, the AADC did
something bitter and twisted on December 4,
2014. The AADC hosted its annual Phoenix Judicial
Reception and Award Ceremony at a new location
tucked inside of Phoenix’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.
23
The 2014 Phoenix 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 Phoenix 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.
The Honorable John C. Gemmill
AADC Judicial Excellence Award
By Johnny Sorenson
the Court
Appeals.
At the AADC’s Phoenix 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
of
John is a native
A r i z o n a n
who grew up
northwest
of
Phoenix on a
cattle feedlot/
farm
known
as Circle One
L i v e s t o c k
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 2003-2006 and Chief
Judge for 2006-2008. 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
24
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 is the most important
lesson that you have learned
about practicing law?
Q: What do you enjoy the most
and least about being a judge?
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.
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 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
Street Address
City,State,Zip
Phone# & ext.
Fax #
Cell Phone #
Website
77 East Thomas Road, Suite 250
Phoenix, AZ 85012
(602) 508-8000, Ext. 203
(602) 508-9000
(602) 614-3322
www.cpxlegal.com
Jim Gackle
Senior Account Manager
jim.gackle@compexlegal.com
Record Retrieval * Deposition Reporting * Multi-Plaintiff Litigation * Medical Records Summarization
*** Please fill in all necessary blanks ***
25
Management Authorization
Early Data Assessment
Data Forensics & Investigations
ESI and Paper Processing
Hosting, Review & Production
2015 Tucson Holiday Judicial Reception
While the AADC decided to try something new
for the Phoenix 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.
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26
AADC Judicial Excellence Award
By Michele Thompson & Holly Davies
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 Phoenix with his family
in 1953. After graduation from
North Phoenix 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.
27
After graduation
from law school
Judge
Borek
clerked for The
Honorable C.A.
Muecke, a federal
district judge in
Phoenix.
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 2000. Judge Borek
was on the Civil Bench from July
2000. 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?
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
(continued)
increased productivity but
also resulted in less succinct
writing.
standard I was to apply and
identify facts to support the
standard.
Q: What is the most important
lesson that you have learned
about practicing law?
Q: What advice do you have for
lawyers about life outside the
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.
A: Find things you like to do for
the pure joy they give; make
time to do them.
Q: What advice can you give to
lawyers about practicing law?
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.
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
Q: If you were not a lawyer (or a
judge), what would you want
to be and why?
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
28
2014-2015 Board of Directors
Chris H. Begeman
Scott Day Freeman,
Barry M. Markson,
Josh Snell
Righi Law Group
President Elect
Immed. Past President
Jones, Skelton & Hochuli, P.L.C.
2111 E. Highland Ave. Ste. B440
Fennemore Craig, P.C.
Thomas, Thomas & Markson
2901 N. Central Avenue, Ste. 800
Phoenix, AZ 85016
2394 E. Camelback Rd. Ste. 600 2700 N. Central Avenue,
Phoenix, AZ 85012
602-365-6776
Phoenix, AZ 85016
Suite 800
602-263-1700
Fax: 602-385-6777
602-916-5000
Phoenix, AZ 85004
Fax: 602-263-1784
chris@righilaw.com
Fax: 602-916-5999
602-274-8289
jsnell@jshfirm.com
sfreeman@fclaw.com
Fax: 602-285-4482
Brian Bergin
bmarkson@ttmfirm.com
Johnny J. Sorenson
Broening, Oberg, Woods &
Craig McCarthy, Treasurer
950 W. Elliott Rd. Ste 226
4455 E, Camelback Rd.
Wilson
Gust Rosenfeld
Tempe, AZ 85226
Suite A-205
1122 E. Jefferson St.
One E. Washington, Ste. 1600
480-839-9500
Phoenix AZ 85018
Phoenix, AZ 85034
Phoenix, AZ 85004
Fax: 480-839-9508
602-888-7857
602-271-7790
602-257-7974
johnny@sorensonlaw.net
bbergin@bfsolaw.com
Fax: 602-252-4197
Fax: 602-254-4878
bwp@bowwlaw.com
mccarthy@gustlaw.com
Michele Thompson
Bill King
Melanie Pate
4801 E. Broadway Blvd, Ste. 400
Bonnett, Fairbourn, Friedman &
Lewis Roca Rothgerber, LLP
Tucson, AZ 85711
Balint, P.C.
201 E. Washington St. Ste. 1200
520-623-4353
2325 E. Camelback Rd. Ste. 300
Phoenix, AZ 85004
Fax: 520-792-3426
602-262-5318
mthompson@udalllaw.com
Bergin, Frakes, Smalley &
Megan Gailey
Oberholtzer
Lee Blake
blakelaw@outlook.com
Charles Callahan, Secretary
Jones, Skelton & Hochuli, P.L.C.
2901 N. Central Avenue, Ste. 800 Phoenix, AZ 85016
Phoenix, AZ 85012
602-274-1100
602-263-1700
Fax: 602-263-1784
ccallahan@jshfirm.com
Matthew L. Cates
Jennings Strouss & Salmon
One E. Washington St.
Suite 1900
Phoenix, AZ 85004
602-262-5802
Fax: 602-495-2613
mcates@jsslaw.com
Alison Christian
Christian Dichter & Sluga
2700 N. Central Ave. Ste. 1200
Phoenix, AZ 85004
602-792-1706
Fax: 602-792-1710
achristian@cdslawfirm.com
Holly P. Davies, President
Lorber, Greenfield & Polito
950 W. Elliot Rd. Ste. 110.
Tempe, AZ 85284
602-437-4177
Fax: 602-437-4180
hdavies@lorberlaw.com
29
Fax: 602-734-3785
The Sorenson Law Firm, LLC
Udall Law Firm
mpate@lrrlaw.com
Ryan P. Toftoy
Jasmina Richter
3101 N. Central Ave.
Kara Klima
Sanders & Parks, P.C.
Phoenix, AZ 85012
Farley Seletos & Choate
3030 N. 3rd Street, Suite 1300
602-308-0115
2400 W. Dunlap Ave., Ste. 305
Phoenix, AZ 85012
Fax: 602-240-6677
Phoenix, AZ 85021
602-532-5600
rtoftoy@hoklaw.com
602-395-2050
Fax: 602-532-5700
kara.klima@farmersinsurance.
Jasmina.richter@sandersparks.
com
com
City of Phoenix
Adam E. Lang
James Robles
Phoenix, AZ 85003
Snell & Wilmer
Perry, Childers, Hanlon
602-262-6761
Once Arizona Center,
& Hudson PLC
Fax: 602-534-2487
400 E. Van Buren
722 E. Osborn #100
Les.tuskai@phoenix.gov
Phoenix, AZ 85004
Phoenix, AZ 85014
602-382-6522
602-266-0392
Fax: 602-382-6070
Fax: 602-266-0691
alang@swlaw.com
jarobles@pchhlaw.com
Paul Lee
Brian Rubin
Bowman and Brooke
Thomas, Thomas and Markson
2901 N. Central Ave. Suite 1600
2700 N. Central Ave. Ste. 800
Phoenix, AZ 85012
Phoenix, AZ 85004
602-643-2300
602-604-7509
Fax: 602-248-0947
Fax: 602-285-4482
Paul.lee@bowmanandbrooke.
brubin@ttmfirm.com
Fax: 602-274-1199
bking@bffb.com
com
Holloway Odegard & Kelly, PC
Les Tuskai
200 E. Washington St., Ste. 1300
950 E. Baseline Road, #104-1025, Tempe, Arizona 85283, Phone: (480) 609-3999
www.azadc.org
Fax (480) 609-3939, admin@azadc.org
Membership Application
Membership in AADC is open to any attorney who has been admitted to the practice of law in Arizona and who practices a
substantial amount of defense litigation. The Association’s purpose is to provide a forum for discussion and education, and to
further professionalism of the defense bar. Please return the application with your membership dues of $200.00 per attorney, $100.00
per in house counsel or public sector attorney, $3,300.00 for law firms with 20 or more members, $1,700.00 for law firms with 10-19
members or $850.00 for law firms with 5 - 9 members and $50.00 for retired members. You can also renew and pay online at
www.azadc.org. FREE MEMBERSHIP TO ATTORNEYS PRACTICING 1 YEAR or LESS.
Name: ___________________________________________________________
Firm*: __________________________________________________________
 New Membership
 Renewal
Firm web address: _________________________________________________
Address: _______________________________________________ City: ______________ State: _________ Zip: _____________
Telephone: ___________________________
Fax: _________________ E-mail: ________________________________
Referred by AADC member:_________________________________________
Choose up to five from the Primary Practice Areas listed below:
_____Yes, I would like to serve on a committee and/or substantive law section.
___Commercial Law
___Construction Liability
___Insurance Coverage
___Negligence and Insurance
___Products Liability
___Professional Liability
___Worker’s Compensation
___Employment Law
_____No, I do want to serve on a committee or substantive law section at this time
Committees
Substantive Law Sections
___Legislative
___Construction Liability
___Amicus
___Government Liability
___Programs and Membership
___Negligence and Insurance
___Publications
___Professional Liability
*Firm memberships should provide a list of the
names’ of the attorneys at the firm who are interested in receiving information about events and activities of the
AADC.
DRI Free Membership Offer - Upon receiving your AADC individual membership application and payment, AADC
will sign you up for a free one-year membership with the Defense Research Institute. If you do NOT want the free oneyear membership, please check this box.
AADC estimates that 15% of your dues
payment may not be deductible as a business expense because of AADC’s
lobbying activities on behalf of its members.
Method of Payment:
Check or Credit Card (Visa, MC, Discover or American Express)
Credit card number: ________________________________ Exp. Date: ___________ Security Code (CVV): __________
Address where statement is mailed:________________
Authorized Signature: _____________________________________________
I HEREBY APPLY FOR MEMBERSHIP AND CERTIFY:
That I am actively engaged in the practice of law in Arizona, devoting
1 a substantial amount of my litigation -related time to the defense
of civil litigation.
______________________________________
Signature
_________________________
Date
Arizona Association
of Defense Counsel
950 E. Baseline Rd. #104-1025
Tempe, Arizona 85283
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spring 2015 - Arizona Association Of Defense Counsel

Transcription

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