AZAPP Blog

Rowland v. Kellogg Brown and Root, Inc.: Division Two Holds that Informal Letter Summarizing Claim was Sufficient “Complaint” for Purposes of Statute of Limitations

A few days before the two-year limitations period on his claim expired, James Rowland sent a letter to the Clerk of the Cochise County Superior Court stating: “On September 28th 2001, James D Rowland was injured by a forklift operator employed by Brown and Root. Accident took place at Fort Huachuca Arizona. Law suite [sic] would be for Liability damages, bodily injuries, down time, and medical expenses, in the amount of Five million dollars. Please call me with any questions.” The letter included Rowland’s typed name but no signature. Rowland enclosed the $130 filing fee with the letter. The Clerk refused to file the letter, deeming it insufficient to qualify as a “complaint.” After the limitations period had run, Rowland retained counsel who filed and served a proper complaint. Kellogg Brown and Root filed a motion for summary judgment on limitations grounds, which was granted. The Court of Appeals reversed, holding that Rowland’s letter was “marginally” adequate to constitute a complaint. A.R.S. § 12-542 requires a plaintiff to commence an “action” within the limitations period, the Court noted, and Ariz. R. Civ. P. 3 specifies that an “action” is commenced by the filing of a “complaint.” The Court reasoned that Rowland’s letter “adequately fulfilled the requirements of notice pleading” to qualify as a “complaint.” The Court noted that the letter identified the factual basis for the claim, the legal basis for recovery, and the monetary relief sought. The Court rejected the argument that the letter was insufficient under Ariz. R. Civ. P. 11(a) because it was not signed, noting that the Rule allows a person to sign a pleading after the omission of a signature is brought to his attention, and here there was no indication that Rowland had been informed of him omission and still refused to sign.

The opinion was authored by Judge Espinosa and joined by Judges Pelander and Flórez.

Arizona Property and Casualty Insurance Guaranty Fund v. Bunny Martin: Division Two Panel Holds that a Morris Agreement Does Not Preclude Litigating Specific Policy Exclusions.

Bunny Martin, an employee of First Chiropractic, received chiropractic adjustments as a benefit of her employment. After being injured by two such adjustments, she sued First Chiropractic and the offending chiropractors. First Chiropractic's insurer assumed the defense under a reservation of rights. Among the exclusions contained in First Chiropractic's insurance policy was an exclusion for injury to employees occurring in the course of employment or injuries covered by Arizona's Worker's Compensation Statute, A.R.S. § 23-1022(A). After the insurer became insolvent, the Arizona Property and Casualty Insurance Guaranty Fund took over the defense and filed a declaratory relief action. In the DRA, the Fund sought a ruling that coverage was excluded by the policy because, among other things, Martin was hurt during the course of her employment. Shortly thereafter, First Chiropractic and one of the doctors entered into a Morris Agreement. See United Servs. Auto. Ass'n v. Morris, 154 Ariz. 113, 741 P.2d 246 (1987) (permitting insureds to protect themselves from the "sharp thrust of personal liability" by stipulating to an entry of default against them). The trial court granted the Fund's motion for summary judgment on the issue of coverage, and Martin appealed.

Martin argued that the factual and legal issues raised by the Fund in its summary judgment motion were not permitted in the coverage phase because they had been subsumed by the Morris agreement, a tactic barred by Associated Aviation Underwriters v. Wood, 209 Ariz. 137, 98 P.3d 572 (App. 2004) (rejecting insurer's attempt to re-litigation issues that were subsumed in the consent judgment entered pursuant to a Morris agreement). The court of appeals disagreed, finding this case more like Morris, in which the coverage issued was unresolved by the underlying agreement. Because the Fund was not seeking to re-litigate liability, but rather seeking to enforce specific policy exclusions, to hold otherwise would permit the insured to "obtain coverage they did not purchase," in this case coverage for injured employees.

Chief Judge Pelander authored the decision, with Presiding Judge Florez and Judge Espinosa concurring.

Article: Bet Here Is New Court Won't Be Southpaws

An editorial by columnist Robert Robb of the Arizona Republic says, with the appointment of Scott Bales, Arizona has a state Supreme Court that will likely be with us quite awhile.


Article: Clean Elections Law Tested Today

An Arizona Republic article reports that lawmaker fights to hold on to seat.


Article: Clean Elections Attorneys Fire Salvos to Oust Smith

An article in the Arizona Republic reports that attorneys for the Citizens for Clean Elections Commission, think Rep. David Burnell Smith should be removed from office.

Opinion: Courting Competence

An Arizona Republic editorial defends Bales' appointment to the state Supreme Court and discusses the changing make-up of the court.


Opinion: Democracy Needs Judges Free of Politics

The State Bar of Arizona applauds the selection of Bales to the Arizona Supreme Court in this opinion piece. State Bar President Helen Perry Grimwood decries criticisms of the selection from "one high-profile special interest group" as unfair.

Opinion: Gay-Marriage Ban Bad Vehicle for Testing Separate Amendment Rule

In a recent column, Rob Robb writes that the proposed gay-marriage ban would be a bad vehicle for testing the "Separate Amendment Rule"--more commonly referred to as the "Single Subject Rule." The rule provides that "[i]f more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately." Robb suggests that if the Court were to strike the proposed amendment because it violated the rule, the two justices up for retention election in 2006, McGregor and Hurwitz, could find themselves subject to anti-retention campaigns by social conservatives.

In 2004, two trial court judges were targeted in unsuccessful anti-retention campaigns led by conservative interests. Such campaigns have not been typical of retention elections since merit selection began.

Additional Coverage of Governor's Appointment of Scott Bales to the Supreme Court

• The Business Journal
• East Valley Tribune
• Arizona Capitol Times
• KVOA (AP Story)

More on Selection of Bales to High Court: Candidate Lauded as "Fine Legal Mind"

Here is a link to the Governor's press release regarding the selection of Scott Bales to the Arizona Supreme Court.

Article: Napolitano Picks Longtime Ally for State's High Court

An Arizona Republic article posted on azcentral.com reports that Gov. Janet Napolitano has picked Scott Bales for the Arizona Supreme Court.

Article: Reprimands of Judges to be Revealed

An article appearing on tucsoncitizen.com says reprimands of Arizona judges won't be kept secret anymore. Prosecutors say it will help voters when deciding whether to keep judges in office.

Article: High Court Nominee May Spark Fuss

An article appearing on tucsoncitizen.com reports that some social conservatives are voicing concern about Gov. Janet Napolitano's upcoming appointment to the State Supreme Court.

Article: 2 state court nominees have roots in Tucson

An article appearing on the tucsoncitizen.com site discusses 2 of 3 final nominees for Supreme Court Justice.

Article: 3 Nominees for Arizona Supreme Court Vacancy Sent to Governor

An article appearing in azdailysun.com discusses the 3 nominees for the Arizona Supreme Court vacancy.

Nominating Commission Sends Bales, Campbell, and Timmer's Names to Governor

The Commission on Appellate Court Appointments has sent the Governor three names to select from to fill the seat on the Supreme Court soon to be vacated by Chief Justice Charles Jones who is retiring. The Commission recommended Scott Bales, Judge Colin Campbell, and Judge Ann Timmer. Under Arizona's merit selection process, the Governor will appoint the next Justice from this list.

Click below to view candidate applications:

Scott Bales
Judge Colin Campbell
Judge Ann Timmer

Ziemak v. Schnakenberg: Division Two Holds that Prejudgment Interest, but not Jury Fees Must be Considered Part of the Judgment Under ARS § 12-133 and Under Rule 76(f).

Ziemak appealed the superior court's award of attorney's fees and costs in favor of Schnakenberg claiming that the trial court erred by denying her motion for additur and by declining to consider jury fees and prejudgment interest part of her trial judgment. ARS § 12-133(I) provides that if, on appeal from arbitration, the judgment at a trial de novo is not at least 25% more favorable" than the monetary award obtained in arbitration, the appellant must pay the appellee's taxable costs and attorney's fees. In Ziemak's case, the judgment at the trial following arbitration, without including prejudgment interest and jury fees, fell 95 dollars short of the 25% threshold, making her responsible for the fees and costs of her opponent.

The Court of Appeals noted that whether or not a judgment entered following a jury trial includes jury fees for the purposes of ARS § 12-133 and Rule 76(f) is an issue of first impression. On the issue of jury fees, the Court held that because jury fees are paid to the court and not to the prevailing party, those fees do not contribute to the judgment being "more favorable" to that party. The Court affirmed the trial judge's decision to exclude these fees from his calculation of the 25% threshold imposed by § 12-133.

In contrast, the Court of Appeals held that the trial judge's exclusion of prejudgment interest from his calculation was error. The Court first held that the trial judge's refusal to consider Ziemak's timely-though-procedurally flawed request for interest was an abuse of discretion. On the merits of the request, the Court confirmed prior precedent that "prejudgment interest on a liquidated claim is a matter of right." Citing La Paz Cty. v. Yuma Cty., 735 P.2d 772 (Ariz. 1987). The Court went on to hold that prejudgment interest should be considered as part of the judgment because the obligation to pay is part of the final court decree fixing the rights of the parties--a decree from which an appeal lies. Citing Vega v. Sullivan, 19 P.3d 645 (App. 2001) and Wolf Corp. v. Louis, 464 P.2d 672, 675 (Ariz 1970). Thus, the Court held that Ziemak's trial judgment exceeded the arbitral award by more than 25%


Regarding the denial of the additur motion, the Court ruled that because the jury's damages award to Ziemak closely tracked the evidence, and because the Supreme Court has previously established that a trial court's decision on additur is nearly always upheld, Creamer v. Troiano, 503 P.2d 794, 797-98 (Ariz. 1972), there was no error in the superior court's decision denying Ziemak's additur motion.

The decision was penned by Judge Eckerstrom, joined by Judges Howard and Espinosa.