ARIZONA SUPREME COURT

Desert Mountain Properties v. Liberty Mutual Fire Ins., CV-10-0339-PR, May 12, 2011.

Opinion of the Court of Appeals was affirmed without comment, concerning the scope of Commercial General Liability insurance coverage, and who is the prevailing party when the relief obtained is less than all of the relief requested.

ARIZONA COURT OF APPEALS

Berry v. 352 E. Virginia, LLC, CA-CV 09-0630, June 9, 2011.

Multiple issues were addressed in this appeal over the sale of an office building, which involved a claim and counterclaims. If the pleadings don't cite the contract terms as a basis for an attorneys fee award, fees may only be awarded under A.R.S. § 12-341.01, even if the contract contained an attorney fee provision. Prejudgment interest is properly awarded on a claim when the claimant provides a basis for precisely calculating the amount owed, even though the claim is not completely documented and the facts and basis for the claim are disputed. The trial court has discretion in determining who the prevailing party is.

During the litigation Berry offered to pay $8,625 but did not offer to pay accrued fees and costs. The jury later awarded 352 exactly $8,625. 352 was still the successful party (and entitled to recover attorney fees) because he was entitled at time of judgment to that amount plus prejudgment interest and costs. But where the trial judge also awarded Rule 68 sanctions based on the amount of the judgment (including attorney fees, costs and prejudgment interest), the decision was remanded to determine how much had accrued at the time of the Rule 68 offer.

Duncan v. Progressive, CV 10-0265, June 9, 2011.

A special administrator of an estate was appointed by a probate registrar via the informal appointment procedure in a probate proceeding; the special administrator accepted service of process of a tort complaint on the estate pursuant to the order appointing him. Neither the estate nor an intervenor on behalf of the estate may challenge in the tort case the propriety of the probate court's allowance of the informal versus formal appointment procedure.

WB v. El Destino, CV 10-0077, June 2, 2011.

The court (rather than a private arbitrator) has jurisdiction to determine the enforceability of an arbitration provision as well as the validity of the contract containing the provision, as long as the challenging party specifically challenged the arbitration provision itself and not just the validity of the contract. The same grounds for the challenge may apply to the arbitration provision as well as the contract as a whole. Where the undisputed evidence showed plaintiff lacked the necessary contractor's license, the arbitration provision and the contract were voidable by defendant. Attorney fees may not be awarded under A.R.S. § 12-341.01 for activity in arbitration, and in this case the arbitration work was not "intertwined" with the work in the court case for which fees were awardable. Costs are likewise recoverable in the court action but not in arbitration, absent agreement to the contrary.

Walsh v. Advanced, CV 09-0751, May 26, 2011.

The court upheld a zero damages award in a plaintiff's wrongful death verdict, distinguishing the statutory action for death from the common law claim of injury. In the latter, an additur would have been required. The case was remanded for consideration of the plaintiffs' Rule 59 motion for new trial, which the judge had refused to consider under the belief that it was waived because no Rule 49(c) motion was brought before the jury was discharged.

Cook v. Orkin/Rollins, CV 10-0313, May 19, 2011.

The court found no fiduciary relationship in the business relationship between homeowners and a pest control company retained to treat a termite infestation. In the absence of personal injury, the economic loss rule barred the homeowners' remaining tort claims for the company's alleged failure to eradicate the termites.

Awsienko v. Cohen, CV 10-0376, May 12, 2011.

Pursuant to A.R.S. § 12-2604(A)(1), an expert witness testifying against a board-certified specialist in a medical malpractice action need not be board-certified in the same specialty as the defendant at the time of the underlying incident, as long as the witness has attained board certification by the time of trial.

Slaughter v. Maricopa, CV 10-0146, May 5, 2011.

Service of a notice of claim on Maricopa County did not constitute effective service on the State of Arizona. Plaintiff was a security guard at the Superior Court suing for discrimination and hostile work environment. The county denied being the employer and claimed plaintiff was employed by the state (which was news to plaintiff, who had applied to the county for the job, and was hired and paid by the county). Plaintiff amended the complaint to join the state, but did not serve a notice of claim on the state. Dismissal of the state was upheld. Furthermore, the dismissal of the county for failure to prosecute was within the trial judge's discretion, and was affirmed.

Winterbottom/Perkins v. Ronan, SA 11-0101/SA 11-0105, May 26, 2011.

Victims Bill of Rights provides that "a victim of crime has a right . . . [t]o refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant." Ariz. Const. Art. 2, sec. 2.1(A)(5). But when the accused criminal sues his civil liability defense lawyer for malpractice, the civil defendant may require the crime victims' depositions.

Chavez v. Az School Risk Retention Trust, 2 CA-CV 2010-0112, May 18, 2011.

Students waiting in line to board a school bus while the bus is stopped to pick them up are covered by the bus's UIM policy when a vehicle collided with the bus and then the students.