AZAPP Blog

Jones v. Weston (4/22/2009): Arizona Court of Appeals Division Two Holds That Time For Renewal of Judgment Under Arizona Statute Is Tolled For Period During Which Judgment Is Vacated by an Amended Judgment Before Reinstatement on Appeal

 A judgment creditor (“Creditor”) filed applications for writs of garnishment against a judgment debtor (“Debtor”).  Over the course of previous years, the judgment had been vacated by an amended judgment, stayed by the filing of a bankruptcy petition, and later re-instated on appeal.  The trial court, however, quashed the writ, finding that the judgment had lapsed under A.R.S. § 12-1551(B), because it was not timely renewed or acted upon within five years from the date of its original entry.  Creditor appealed.

The Arizona Court of Appeals reversed and remanded.  The Court agreed that the time for filing a renewal of a judgment under Arizona law is not stayed by the pendency of a bankruptcy case.  In re Smith, 209 Ariz. 343 ¶¶ 13-15 (2004).  The Court also agreed that Creditor’s initiation of garnishment proceedings did not constitute an “action brought on” the judgment for purposes of renewal under A.R.S. § 12-1551, because the garnishment proceeding is “merely ancillary to the action that gave rise to the underlying judgment.”

The Court reversed the trial court’s finding, however, that the time for renewal dated back to the entry of the original judgment.  Because the original judgment had been vacated, it could not be renewed within the 90 day period prior to its expiration, as required by A.R.S. § 12-1612(B).  The reinstatement of the judgment on appeal did not reinstate the original date for renewal, because the time for renewal was tolled during the period when Creditor was precluded from renewing the judgment or bringing action to enforce the judgment because the judgment had been vacated by the entry of the amended judgment.  Because the time to renew the judgment was tolled for this period, the judgment had not yet lapsed, and the trial court erred by quashing the writs of garnishment.

Judge Vásquez wrote the opinion; Judges Eckerstrom and Brammer concurred.           

In Re MH 2008-000028 (4/21/2009):   Arizona Court of Appeals Division One Holds that an Order Entered Pursuant to A.R.S. § 13-4517 Requiring Criminal Defendant to Undergo Mental Health Treatment Obviates the Need for Strict Compliance with Civil Commitment Procedures in A.R.S. § 36-523.

Appellant was arrested for aggravated assault, but the court found him not competent to stand trial and non-restorable.  Pursuant to A.R.S. § 13-4517(1), the court ordered Appellant to be taken into custody and transported to the Desert Vista Behavioral Health Center for civil commitment.  The State filed an “Application for Involuntary Evaluation” to initiate the civil commitment process that included copies of the police report and written reports of six doctors who had examined Appellant.  However, the State did not file a “Petition for Court-Ordered Evaluation,” which is normally required by A.R.S. §§ 36-520, 521 and 523 to initiate the civil commitment process.  The court accepted the State’s “Application for Involuntary Treatment” and ordered Appellant to undergo involuntary treatment.  Appellant then appealed, arguing the “Application for Involuntary Treatment” did not give the court authority to order his involuntary treatment.

The Court of Appeals affirmed.  The Court explained that in the normal civil commitment context A.R.S. §§ 520, 521, and 523 require a “Petition for Court Ordered Evaluation” to begin the civil commitment process.  However, when a criminal defendant has been found incompetent to stand trial and non-restorable, A.R.S. § 13-4517(1) gives the court authority to remand the defendant to the department of health services for civil commitment proceedings without submitting the required “Petition for Court-Ordered Evaluation.”  The Court found that the State’s “Application for Involuntary Evaluation” was the functional equivalent of the required “Petition for Court-Ordered Evaluation.”  The Court also noted that the purpose of the “Petition for Court-Ordered Evaluation” is to determine whether justification exists to order involuntary treatment, and in this case that determination had already been made by the criminal court.  The Court also affirmed trial court rulings on waiver, mootness, and subject matter jurisdiction.

Judge Swann authored the opinion, with Presiding Judge Orozco and Judge Irvine concurring.

Indus. Comm’n of Ariz. v. Word (4/21/2009): Arizona Court of Appeals Division One Holds that Pursuant to A.R.S. § 23-907(E) An Award Against an Employer Who Lacked Worker’s Compensation Insurance Must Be Filed with Clerk and Executed on Within Eight Years.  

In 1991, one of Tommy Word’s employees was injured while on the job.  Word did not have workers’ compensation insurance.  Therefore, pursuant to A.R.S. 23-907(B), in lieu of proceeding against Word in a civil action, the employee opted to apply for benefits through the statutorily established “Special Fund” administered by the Industrial Commission of Arizona.  In 1992, the Commission issued an award against Word and for the employee for medical and other benefits.  Periodically thereafter, the Commission would issue “continuing award[s]” as it made benefit payments to the employee.  In 2000, the Commission issued a document captioned “Final Award,” which listed the total amount that Word owed to the Commission.  The Commission filed this “Final Award” with the clerk of the superior court and recorded it with the county recorder in 2001.  Almost six years later, in 2007, the Commission obtained and served several writs of garnishment in an attempt to collect on the Final Award from Word.  In response, Word filed a motion for relief from judgment pursuant to Rule 60(c) of the Arizona Rules of Civil Procedure. He argued that the Commission had no valid judgment to enforce because the eight-year limitations period set forth in A.R.S. § 23-907(E) had lapsed.  The superior court denied Word’s motion, finding that the limitations period began to run when the “Final Award” was issued in 2000.  Word appealed.       

The Arizona Appeals Court reversed and remanded with instructions to grant Word’s motion.  The Court noted that the resolution of the case turned solely on the language of A.R.S. § 23-907(E), which required the Commission to file “the award” with the superior court clerk.  The award, when entered in the civil order book and judgment docket, becomes “a lien for eight years from the date of the award upon the property of the employer.” Execution on that lien may issue “within eight years in the same manner and with like effect as if the award were a judgment of the superior court.”  The Commission conceded below that, “[a]n Original Award was issued . . . on April 10, 1992.”  Yet, the only document the Commission filed with the superior court clerk was the “Final Award” in 2000.  The Court concluded that notwithstanding its caption, this document was not an “award.”  A.R.S. §  23-901(1) defines “Award” as “the finding or decision of an administrative law judge or the commission as to the amount of compensation or benefit due an injured employee.”  That occurred in 1992, but the Commission never filed the award.  Therefore, the Commission had no valid judgment against Word.  Pursuant to A.R.S. § 12-348, the Court also awarded Word its costs and attorneys’ fees on appeal.                          

Judge Downie authored the opinion; Judges Thompson and Kessler concurred. 

Beynon v. Trezza (4/13/2009) – Arizona Court of Appeals Division Two Holds, in the Context of a Legal Malpractice Claim, that a Legal Claim Against the State is Legally Barred Where the Claimant’s Notice of Claim Provides No Facts Whatsoever to Explain or Justify a Particular Damage Claim.

Daniel Beynon (“Beynon”) was driving a vehicle when it collided with another vehicle driven by a state employee.  A state adjuster went to Beynon’s residence where the adjuster provided Beynon with a notice of claim form, which he assisted Beynon in filling out.  On March 25, 2002, Beynon visited  a chiropractor where he claimed to have realized that the costs for his treatment would be greater than he previously realized, and so he filled out a new notice of claim form.  On the claim form, Beynon requested $50,000, but indicated only that the state employee did a u-turn in front of him which caused him to collide with her.  Beynon provided no facts explaining how he arrived at his $50,000 settlement figure. Thereafter, Beynon retained attorney Thrush to represent him on his claim against the State.  Although Thrush spoke to the adjuster prior to expiration of the one-year statute of limitations period, Thrush did not file an action against the State on Beynon’s behalf.  As a result, Beynon filed a legal malpractice claim against Thrush.  Thrush moved for summary judgment, arguing that Beynon’s notice of claim was insufficient as a matter of law, and thus that Thrush’s failure to file caused Beynon no prejudice.  The trial court granted Thrush’s motion and this appeal followed.

The Arizona Appeals Court first concluded that the Arizona Supreme Court’s recent decision in Backus v. State, 2009 WL 703269 ( Ariz. Mar. 19, 2009), did not change the basic requirement that a claimaint must at least furnish some facts to support the amount claimed in a notice of claim.  Because Beynon failed to describe his injury or even claim to be injured, his notice of claim was insufficient, and thus Thrush’s alleged malpractice could not have prejudiced Beynon’s claim.  The Arizona Appeals Court next rejected Beynon’s argument that the State actually accepted Beynon’s notice of claim, reasoning that there was no evidence in the record that the adjuster approved or validated Beynon’s notice or that the adjuster even possessed the authority to do so.  The Appeals Court also pointed out that Beynon’s notice of claim was procedurally flawed because he failed to serve a copy on the Attorney General. 

Chief Judge Pelander authored the opinion; Judges Howard and Espinosa concurred.

Calpine Construction Finance Co. v. Arizona Department of Revenue, (4/16/09): Arizona Court of Appeals Division One Holds That Tribe’s Tenant Owned Improvements Made on Leased Land and Therefore Improvements Are Subject to Taxation.

Calpine Construction Finance Co. (“Calpine”) entered into a long-term lease with the Fort Mojave Indian Tribe under which Calpine leased raw trust land from the Tribe in order to build an electric power plant.  Under the lease, all improvements made to the land were Calpine’s property, and the lease authorized Calpine to remove inventory and personal property when the lease terminated.  Furthermore, in the event of condemnation, the lease provided that Calpine would receive compensation for the improvements.  The Arizona Department of Revenue (“ADOR”) assessed property taxes on the improvements and personal property, and alleged that all its valuations included only Calpine’s property.  Calpine sued ADOR and the County in Arizona Tax Court to receive a refund of the taxes already collected.  After cross-motions for summary judgment, the tax court denied Calpine’s motion and granted ADOR’s.  Calpine appealed on the question whether the improvements and personal property are subject to taxation.  In addition, Calpine also appealed the tax court’s decisions to strike the citation of two unpublished decisions and to strike the admission of a photograph of the power plant.

Judge Irvine, writing for a unanimous court, upheld the tax court’s finding that the personal property and improvements were subject to taxation.  According to the Court, the “central issue” was “whether Calpine or the Tribe owns the improvements,” because ADOR could not tax the improvements if the Tribe owned them.  The Court explained that the general rule is that when a tenant builds permanent structures on real property, the structures become property of the land owner.  Arizona law, however, allows parties to agree to depart from the general rule by expressly agreeing that the tenant owns any improvements.  Turning to the terms of Calpine’s lease, the Court concluded that Calpine owns the improvements.  First, the Court noted that the lease expressly stated that the improvements were Calpine’s property.  Indeed, the lease stated that Calpine would receive the value of the improvements in the event the land was condemned.  Moreover, Calpine did not pay rent for the improvements.  Second, after a modification, the lease granted Calpine power to remove or replace improvements during the lease.  Although improvements were to stay on the land when the lease terminated, the Court held that this level of control meant that Calpine owned the improvements.  Finally, the Court rejected Calpine’s argument that because the Tribe would keep the improvements after the lease ended, the Tribe was the true owner of the improvements.  The Court held that Calpine could be taxed because Calpine maintained present ownership under the lease.

The Court next upheld the tax court’s decision to strike its citation to unpublished tax court opinions.  First, the Court explained the general rule that unpublished decisions should not be cited.  If collateral estoppel applies, however, the court may rely on the unpublished decision.  The Court held that collateral estoppel did not apply because (1) the same issues were not litigated in either of the unpublished decisions, and (2) “offensive” collateral estoppel may not be used against the government.  Finally, the Court upheld the decision to strike the power plant photograph because Calpine waived the issue by not responding to ADOR’s motion to remove admission of the photograph.

Judge Irvine authored the opinion; judges Winthrop and Hall concurred.

Dowling v. Stapley (4/16/2009): Arizona Court of Appeals Division One Holds That Public Official Displaced by Receivership Lacks Standing to Assert Rights in Her Official Capacity

The Maricopa County Regional School District Superintendent was named as a party to litigation concerning alleged mismanagement of the District.  After court-ordered receivers assumed management of the District, the Superior Court dismissed the Superintendent as a party.  The remaining parties then agreed to a settlement including, among other terms, a stipulated judgment against the District for funds owed to Maricopa County and an agreement to close the District’s financially challenged schools for homeless children.  The Superior Court approved the stipulation and entered judgment over the objection of the Superintendent, who then appealed.

The Superintendent argued on appeal that the Superior Court erred by appointing the receivers, whose actions (including approval of the settlement) she claimed were therefore void.  She argued further, among other issues, that the Superior Court erred by (1) granting a motion to strike motions by the Superintendent to dissolve the receivership and to review certain actions of the receivers, (2) denying the Superintendent’s motion to intervene, and (3) approving the settlement and stipulated judgment.

The Court of Appeals held that it lacked jurisdiction over the Superior Court’s order appointing the receivers because the order had not been timely appealed.  The time to appeal had not been tolled by the Superintendent’s filing of a motion to alter or amend the order, because the Superintendent had abandoned that motion without asking for a ruling on it, and had failed to appeal a subsequent order which replaced two of the receivers and thus necessarily denied the motion to alter or amend the prior order.  In addition, the Superintendent had previously accepted the benefits of the receivership order and was therefore estopped from appealing it.

The Superior Court did not abuse its discretion by granting the Motion to Strike because the Superintendent was no longer a party to the litigation, and had agreed to recuse herself from the District Board.  A person for whom a receiver is appointed does not retain the right to move to dissolve the receivership.  The appointment and termination of a receivership is governed by principles of equity.  Rule 66(c)(4), Ariz. R. Civ. P.  Once the receivers were appointed, they stood in the Superintendent’s shoes with all rights, causes and remedies which had been available to her, including the right to bring or defend claims for the District.  The Superintendent was not an indispensable party.

Because the receivers stood in the Superintendent’s shoes, the Superior Court did not err by concluding that the Superintendent did not have a substantial right to intervene in her official capacity.  Nor did the court abuse its discretion by disallowing the intervention on a permissive basis.  Because of the receivers’ appointment, the Superintendent lacked standing to oppose the settlement agreement on behalf of the District or on behalf of her view of the interests of the District’s students.  Permitting intervention against the wishes of the District receivership board would have resulted in undue delay or prejudice to the parties’ rights.

In view of its other determinations, and because the Superintendent did not have a direct, substantial and immediate right that was prejudiced by the judgment, the Court concluded that the Superintendent did not have standing to challenge the settlement.  The Court therefore declined to consider the request to reverse the Superior Court’s approval of the settlement.

Judge Kessler wrote the opinion, joined by Judges Norris and Gemmill.

Bailey-Null v. ValueOptions (4/7/09):  Arizona Court of Appeals Division One Holds That Exhaustion of Remedies Doctrine Does Not Apply to Patient’s Civil Action Seeking Money Damages Against State Contractor Providing Behavioral Health Services

Plaintiff Mikayla Bailey-Null received psychiatric treatment from ValueOptions, a “Regional Behavioral Health Authority” that contracted with the Arizona Department of Health Services (“the Department”) to provide behavioral health services to Maricopa County residents. She filed a grievance against ValueOptions in October 2004 alleging that she was improperly chemically restrained and that her right to treatment on a voluntary basis, her right to privacy, and other civil rights pertaining to behavioral health services were violated. 

ValueOptions issued a decision, finding most of Bailey-Null’s allegations unsubstantiated.  She appealed this decision to the Arizona Department of Health Services, Division of Behavioral Health Services (“the Division”).  Her appeal was denied, and Bailey-Null then requested an administrative hearing with the Division.  The Administrative Law Judge issued an extensive ruling in July 2006.  The ALJ found that Bailey-Null’s civil and privacy rights were violated, but found that there was “not sufficient evidence to fashion a good remedy” and noted that the violations had been “confirmed” and made part of ValueOption’s records – the main remedy Bailey-Null sought.  On August 30, 2006, the ALJ’s decision was certified as a final administrative decision.  On September 28, 2006, Bailey-Null filed a motion for rehearing or review of the ALJ’s decision.  On October 30, 2006, the Division declined review of the ALJ’s decision and affirmed it. 

On September 11, 2006, Bailey-Null commenced a civil action against ValueOptions in Superior Court, asserting four causes of action:  (1) abuse/neglect of a vulnerable adult; (2) violations of the Arizona Civil Rights Act and discrimination under the Arizonans with Disabilities Act; (3) assault and battery; and (4) medical malpractice.  ValueOptions moved to dismiss for failure to exhaust administrative remedies.  The court granted the motion, and Bailey-Null appealed.

The Arizona Appeals Court reversed and remanded.  The Court noted that to determine whether a litigant is required to exhaust her administrative remedies, “a court must first decide whether an administrative agency has original jurisdiction over the subject matter of the claims.”  An agency has original jurisdiction if it is “specifically empowered to act by the Legislature.”  In the absence of original jurisdiction, the exhaustion of remedies doctrine does not apply. 

The Court examined the authority of the Department, which is directed by statute (A.R.S. § 36-3413) to require service providers such as ValueOptions to implement a grievance and appeal process for individuals who receive services.  Pursuant to the statutory mandate, the Department adopted Title 9, Chapter 21 of the Arizona Administrative Code (“the regulations”), which sets forth that process.  The court found “nothing in Chapter 21 to suggest that the legislature intended to vest the Department with jurisdiction to entertain civil damage claims.”  The Court then considered each of Bailey-Null’s four civil causes of action, and found in each instance that neither § 36-3413 nor the regulations give the Department the authority to award money damages, “the only remedy Bailey-Null seeks for the alleged [violations].”  As such, the Department lacked original jurisdiction over those claims and the exhaustion of remedies doctrine did not apply to them.

Judge Swann authored the opinion; Judge Orozco and Judge Irvine concurred.

Brethauer v. General Motors Corp. (3/31/09): Arizona Court of Appeals Division One Holds Strict Liability, “Consumer Expectation Test” Instruction Is Not Limited to Where Consumers Have Detailed Knowledge of Product’s Design.

During a single car accident, Jeff Brethauer was ejected from his Chevrolet pick-up and suffered a paralyzing injury.  He sued General Motors on products-liability grounds for either a manufacturing defect or a design defect in his car’s seat belt.  On Brethauer’s manufacturing defect claim, the trial court instructed the jury on  the “consumer expectations test,” which creates liability if the product fails to perform as an ordinary consumer would expect.  For Brethauer’s design defect claim, the trial court only instructed the jury on the “risk/benefit” analysis test, which creates liability if the benefits of a design outweigh the risks inherent in the design.  Brethauer appealed, inter alia, the trial court’s refusal to give the “consumer expectation test” instruction for his design defect claim.

The Court of Appeals held it was error for the trial court to refuse to give the “consumer expectation test” instruction on the design defect claim.  The Court noted that although the “consumer expectation test” is not required where “the consumer would not know what to expect, because he would have no idea how safe the product could be made,” in close cases, the court may deem it necessary to instruct the jury on both the consumer expectation test and the risk/benefit analysis.  Dart v. Wiebe Manufacturing., Inc., 147 Ariz. 242, 244, 709 P.2d 876, 878 (1985).  While GM argued that most consumers do not know how a seat belt should function in a variety of particular circumstances, the Court noted that most consumers have developed an expectation of how safely seatbelts can be made due to their frequent use of seatbelts.  It further explained that if the “consumer expectation test” only applied where consumers were familiar with a product’s intricate design details, then the test would almost never be applicable.  Therefore, the Court found the trial court erred by failing to give the “consumer expectation test” instruction.

The Court did not, however, order a new trial.  To secure a new trial due to the trial court’s failure to give a requested instruction, the party requesting the instruction must show the error prejudiced the party’s substantial rights.  Here, the court still gave a form of a “strict liability” instruction that left Brethauer free to argue consumers’ expectations.  The Court also noted that it was highly likely the jury found that Brethauer was not even wearing his seatbelt at the time of the accident, so they were unlikely to reach a different conclusion even if they were properly instructed.

In addition to the instructional error, the Court considered and rejected a number of arguments directed at discretionary trial court rulings, including evidentiary rulings regarding whether Brethauer was wearing a seatbelt at the time of the accident, GM’s previous recall of trucks based on faulty seatbelt design, and a videotape montage of various seatbelt malfunctions.  It also deemed the arguments directed to a new trial on punitive damages moot.

Judge Timmer authored the opinion, with Vice Chief Judge Irvine and Judge Brown concurring.

Staples v. Concord Equities, L.L.C. (3/31/2009): Arizona Court of Appeals Division One Holds that When the Value of Real Property Is Set After an Administrative Appeal to the Arizona Tax Court the Value Rolls Over to the Next Tax Year Pursuant to A.R.S. § 42-16002(B). 

Concord Equities, L.L.C. owns a large parcel of land in Pima County that is used for a 248-unit apartment complex,.  Pima County Assessor Bill Staples mailed a notice of property valuation to Concord for tax year 2006.  The Assessor had set the full cash value at $7,867,800 and the limited property value at $7,201,920.  Concord disputed these amounts and therefore instituted an appeal by filing a petition with the Assessor pursuant to A.R.S. § 42-16051 (2003).  When the Assessor recommended no change, Concord appealed to the State Equalization Board under A.R.S. § 42-16157 (2001).  The Board determined that A.R.S. § 42-16002 required the full cash and limited property values for the 2005 tax year to roll over for tax year 2006. The 2005 value was based upon a full cash value of $6,696,000 to which the parties had stipulated in tax court, a reduction from the Assessor’s previous determination of full cash value.  The Board reduced the full cash value to the tax year 2005 level, and the limited cash value accordingly dropped pursuant to A.R.S. § 42-13301 (1999).  The Assessor and Pima County then appealed to the tax court pursuant to A.R.S. §§ 42-16168(A) (1999), 42-16203 (2001), 42-16207 (1999), and 12-163 (2003).  The tax court granted Concord’s cross-motion for summary judgment, denied the Assessor and Pima County’s motion, and awarded Concord its costs.  The Assessor and County appealed.       

The Arizona Appeals Court affirmed.  The Court concluded that Concord was entitled to roll over treatment because A.R.S. § 42-16002(B) provides (in pertinent part) that “[i]f a review or administrative appeal pursuant to article 2, 3 or 4 of this chapter [16] results in a reduction of the valuation or a change in the classification of property, in the next year the valuation or classification of property shall be the valuation or classification that was determined by the review or appeal . . . .”   This roll-over provision clearly applied because Concord had pursued an appeal to the Board and tax court under statutes in Articles 2 and 4 of chapter 16, and that appeal ultimately resulted in a reduction of the valuation.  The Court awarded Concord its costs and attorneys’ fees on appeal as well.                           

Judge Kessler authored the opinion; Judges Thompson and Downie concurred. 

In re MH 2008-000097 (3/31/2009):  Arizona Court of Appeals Division One Holds That Psychiatrists Conducting Court-Ordered Mental Health Evaluations Pursuant to A.R.S. § 36-501(12)(a) May Jointly Interview a Patient if They Act Independently in Their Overall Evaluation of the Patient.

In January 2008, the superior court held a hearing on a petition for court-ordered mental health treatment for Appellant A.M.  The petition was supported by psychiatric evaluations from two physicians – Dr. Cyriac and Dr. Sadr.  Dr. Cyriac encountered A.M. three times before preparing his affidavit concluding that A.M. was mentally ill.  Dr. Sadr – a resident under the direction of another physician, Dr. Torio – also encountered A.M. several times before preparing his affidavit concluding that she was mentally ill.  Dr. Sadr was present during Dr. Cyriac’s third visit with A.M., and both doctors jointly interviewed A.M. at that time.  In addition to visiting A.M., both doctors reviewed other information about A.M. to complete their evaluations, which slightly differed with respect to the specific mental illness suffered by A.M.  A.M. objected to the evaluations, arguing that they were not completed independently because Dr. Sadr and Dr. Cyriac jointly interviewed her, and because Dr. Sadr was a resident under Dr. Cyriac.  The superior court rejected A.M.’s arguments and ordered treatment.  A.M. timely appealed.     

The Arizona Appeals Court affirmed.  The Court began its analysis by reviewing the language of A.R.S. § 36-501(12)(a), which requires two psychiatrists to complete their evaluations after analyzing the patient’s “identity, biography and medical, psychological and social conditions” and also requires them to “examine and report their findings independently.”  The Court explained that the requirement of independence does not require physical separation; it only requires that the physicians act impartially and be free from each other’s influence.  Thus, joint interviews are permissible if the physicians evaluate the patient using their individual observations, diagnoses, and examinations and do not consult with or influence each other. 

The Court then examined the record and determined that Dr. Cyriac and Dr. Sadr acted independently, noting that the joint interview was only one part of each doctor’s evaluation, and that they reached different conclusions.  The Court rejected A.M.’s argument that Dr. Sadr was not independent because he was a resident under Dr. Cyriac, explaining that for purposes of A.M.’s evaluation, Dr. Sadr was supervised by and consulted with Dr. Torio, not Dr. Cyriac.

Judge Gemmill authored the opinion; Presiding Judges Weisberg and Judge Barker concurred.

 Devries v. State, (3/31/09): Arizona Court of Appeals Division One Holds That the Qualified Immunity Provided in A.R.S. § 12-820.02(A)(7) Is Constitutional.

Devries lost control of his vehicle and crashed into a highway median.  He was killed in the crash.  An autopsy revealed that his vitreous and blood alcohol levels were at levels sufficient to show he was driving under the influence of intoxicating liquor.  The surviving parent sued the State for negligent highway design and wrongful death.  The State claimed qualified immunity under A.R.S. § 12-820.02(A)(7), which provides for qualified immunity if the accident was “attributable to” the violation of certain drunk-driving laws and if the State did not act intentionally or with gross negligence.  After a jury trial, the jury returned a verdict in favor of the state.  Plaintiff appealed, contending that the statute granting qualified immunity is unconstitutional, and arguing that the trial court erroneously instructed the jury to resolve the legal question of whether the State had qualified immunity.

Judge Gemmil, writing for a unanimous court, held that A.R.S. § 12-820.02(A)(7) was a constitutional exercise of the legislature’s power to grant specific, limited immunity.  Relying on the holding in Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001),  the Court of Appeals held that A.R.S. § 12-820.02(A) did not exceed the authority granted by article IV, part 2, section 18 of the Arizona Constitution, which gives power to the legislature to direct “what manner and in what courts suits may be brought against the State.”  

The Court distinguished City of Tucson v. Fahringer, 164 Ariz. 599, 795 P.2d 819 (1990), on the grounds that Fahringer did not address the legislature’s constitutional authority to grant limited immunity.  Relying on Clouse, the Court would not second guess the legislature’s determination that section 12-820.02(A)(7) was an appropriate extension of qualified immunity.  The Court further held that the statute does not “diminish or destroy” the government’s duty to take reasonable care in designing and maintaining highways because it only denied negligence claims in the limited circumstances when a person was injured as a result of driving under the influence.  Finally, the Court rejected the plaintiff’s argument that “attribute to” as used section 12-820.02(A)(7) is unconstitutionally vague.  The Court relied on dictionary definitions to conclude that the words put a driver on notice that the statute may apply when driving under the influence “is a cause or source” of injury to the driver.

Turning to the jury instruction issue, the Court held that the trial court properly instructed the jury to determine whether the necessary facts existed to allow the State to assert qualified immunity.  Because the trial court determined the legal question of whether qualified immunity was available, it was appropriate to instruct the jury to resolve whether the statutorily required facts supported an assertion of qualified immunity.

Judge Gemmil authored the opinion; Judges Norris and Kessler concurred.