United States District Court, D. Arizona

Parra v. Pacificare of Arizona, Inc., 2011 WL 1119761, February 4, 2011.

A Medicare Advantage (MA) HMO is not entitled to repayment from a wrongful death tort recovery for benefits paid for the decedent's medical care for injuries that led to his death. The court found the Congress did not provide either an express or implied right of action to MA contractors. In the absence of a federal right of action, the court had no jurisdiction. [Presumably, in the absence of a federal right, the MA contractor will be barred from asserting a state law claim due to Arizona's anti-subrogation law. Ed]

ARIZONA SUPREME COURT

Preston v. Kindred Hospitals, CV-11-0292-PR, 3/24/11.

Wrongful death claim filed by family after decedent had declared bankruptcy while alive. Defendant argued BK trustee owned the claim and requested dismissal under ARCP Rule 17(a). Family requested time to amend complaint to substitute BK trustee as plaintiff, but case dismissed. Supreme Court reversed, holding that Rule 17(a) does not require a plaintiff to show that an initial failure to name the real party in interest resulted from an understandable mistake or difficulty in identifying the proper party.

Young v. Beck, No. CV-10-0230-PR, 4/5/11.

The Court affirmed the continued vitality of the family purpose doctrine in Arizona law. A "head of household who furnishes or maintains a vehicle for the use, pleasure, and convenience of the family is liable for the negligence of family members who have the general authority to drive the vehicle while it is used for family purposes." The passage of neither the Financial Responsibility Act nor UCATA was intended by the Legislature to overrule the family purpose doctrine. Furthermore, although minor driver violated parents' instruction to just go to his friend's house and then come home, the minor was still a permissive user of the car and pursuing a family purpose. (However, the court refused to adopt the "Hell or High Water Rule" regarding exceeding the scope of authorized use. See Footnote 7.)

ARIZONA COURT OF APPEALS

Southwest Fiduciary & Flynn v. AHCCCS, CV 10-0300 & CV 10-0301, 3/10/11.

Following Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), a state Medicaid plan which has paid medical expenses for a victim who subsequently settles with a tortfeasor for less than the full amount of her overall damages may recover no more than the portion of the victim's settlement that represents recovery of the plan's payments on behalf of the victim, less a deduction for litigation expenses. The court rejected AHCCCS's claim that the calculation of its reimbursement should be made based on the total covered billed medical charges, rather than on the amount AHCCCS actually paid.

Governale v. Lieberman, CV 10-0195, March 10, 2011.

A.R.S. § 12-2604 does not violate the Arizona Constitution by its restriction upon a party's choice of an expert witness in a medical malpractice case. The Supreme Court previously held that the statute does not violate the separation of powers doctrine. In this case the Court of Appeals held that the statute does not violate the equal protection, due process, anti-abrogation, special legislation, and jury trial provisions of the Arizona Constitution.

Blevins v. GEICO, CV 10-0272, March 24, 2011.

A.R.S. § 20-259.01 does not require the insured to sign a form rejecting UIM coverage; the statute only requires that the carrier offer the coverage in writing.

Neeme v. Spectrum, CV 10-0149, March 24, 2011.

A party seeking entry of default must provide a copy of the application to known counsel representing the defaulting party in a different lawsuit that involves identical parties and the same contractual dispute per ARCP 55(a)(1)(ii). It was insufficient to provide copies to the defaulting party's statutory agent, principal place of business in California and Utah office, because the identity of the party's Utah attorney was known.

Pompeneo v. Verde Valley, CV 09-0723, March 24, 2011.

Medical malpractice plaintiff pled guilty to murder and was sentenced to life in prison. His case for medical malpractice against the clinic where he saw a therapist earlier on the day of the murder was thrown out on summary judgment. Plaintiff's claim for his unsuccessful suicide attempt after the murder was disallowed because plaintiff provided no evidence that his suicide attempt was not volitional, and therefore not proximately caused by defendant's negligence (superceding intervening cause). The same reasoning barred his claim that defendant was a legal cause of the murder.

Nolan v. Kenner, CV 10-0355, March 31, 2011.

Open representation by a foreign (non-Arizona) attorney is not the type of undue means permitting a court to vacate an arbitration award pursuant to A.R.S. § 12-1512 (A)(1). Trial court's order confirming the arbitration award was affirmed.

Cosper v. Hon. Rea/Mora, SA 10-0266, March 3, 2011.

It was error for the trial court to strike an expert witness in an appeal from compulsory arbitration because defendant had not identified him in her list of witnesses at the time she filed her Appeal from Arbitration. When a party makes seasonable, good faith disclosure of new evidence during the discovery period allowed by ARCP Rule 77(g)(3), preclusion is not warranted absent a showing of prejudice that cannot be cured by less drastic means.