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Seatback Failures
Front occupant seatbacks play a vital safety role in rear-end crashes, similar to the purpose of airbags and seatbelts in frontal impacts. In a rear impact, a front seat should be designed to absorb energy and contain the occupant in the front seating space. Weak, defective front seats can fail, collapse and cause front occupants […]

Arizona Appellate Updates
[Any of the Court of Appeals cases listed may currently be on review or pending reconsideration.]
JTF Aviation Holdings, Inc. v. CliftonLarsonAllen, LLP. CV19-0209-PR (9/18/20)
Arizona Supreme Court held that the Court of Appeals erred by concluding that a contractual limitations provision can preclude nonparties to the contract from asserting tort claims that do not arise out of the contractual relationship.
Arizona has not adopted the “closely related party doctrine” so contractual provisions cannot preclude nonparties to the contract from asserting tort claims that do not arise out of the contractual relationship. The president and sole stockholder of the corporation was entitled to sue the defendant after the expiration of a contractual limitations period.
https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190209PR.pdf
Perdue v. La Rue, 1 CA-SA 19-0657 (9/3/20)
“Sham Affidavit” rule requires the trial court to disregard an affidavit filed in contradiction to deposition testimony, even if in a different legal proceeding, when deciding a motion for summary judgment.
Court of Appeals held that the trial judge correctly applied the “sham affidavit” rule and disregarded an affidavit by plaintiff in the civil case that asserted facts squarely contradicted by her deposition testimony in an earlier divorce proceeding. Summary judgment for the defendant in the civil case was affirmed.
https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV%2019-0657%20Perdue%20v.%20La%20Rue.pdf
Torres v. JAI Dining Services 1 CA-CV 19-0544 (9/10/20)
Arizona Court of Appeals vacated an $800K verdict against the Jaguar strip club and bar accused of overserving alcohol to a patron who later killed two people in an auto collision. The drunken patron had gone to his own home and gone to sleep. The drunken patron awakened and then got behind the wheel while still drunk. The Court of Appeals founds these facts constituted a superseding, intervening cause.
Clayton v. Hon. Kenworthy, et al. 1 CA-SA 20-0086 (9/15/20)
On a special action, Court to Appeals reversed the trial court for a abuse of discretion. Trial judge had granted a defense motion to prohibit a Rule 35 neuropsychological exam from being recorded based upon an objection by the examiner. The defense examiner claimed that third-party observers or recording devices would “alter and impact the scientific reliability of the assessment process.” Court of Appeals held that the plain language of Rule 35 entitles the examinee to record the exam.
Harianto v. State of Arizona 1 CA-CV 18-0446 (9/24/20)
Court of Appeals found that A.R.S. 12-820.02 gave DPS officers and the dispatcher qualified immunity. This case arises from the failure of DPS to stop a wrong-way driver on the freeway before he caused a crash. Harianto sued the State alleged the State was negligent in (1) failing to take appropriate measures including providing reasonable warnings to prevent wrong-way driving and related accidents, and (2) failing to adopt or implement any law enforcement standards to prevent such accidents. The trial judge granted the State’s motion for summary judgment based upon the State’s qualified immunity unless the State intended to cause injury or was grossly negligent.
Harianto’s argument was based on Hutcherson v. City of Phoenix, 188 Ariz. 183 (App. 1986). However, Court of Appeals stated the Arizona Supreme Court forbids considering vacated Hutcherson, even if it was vacated on unrelated grounds.
E.H. v. Slayton (State) CR-19-0118-PR (8/4/20)
“[P]lacing a cap on the amount of restitution a defendant may be liable for in a plea agreement, without the victim’s consent, violates the right to restitution.” The Arizona Supreme Court held that any prior cases to the contrary are overruled. The Court also held that “A lawyer representing a victim has a presumptive right to sit in front of the bar in the courtroom during a proceeding where the victim’s constitutional or statutory rights are at issue.”
https://law.lclark.edu/live/news/44155-eh-v-slayton-p3d-no-cr-19-0118-pr-2020-wl
Ibarra v. Gastelum 1 CA-CV 19-0597 (7/23/20)
Jury verdict for defendant in this premises case was affirmed. Arizona Court of Appeals held that it was not error to refuse a negligence per se instruction based on A.R.S. 33-1324(A)(2) which provides: “A landlord shall . . . [m]ake all repairs and do whatever is necessary to put and keep the premises in fit and habitable condition.” Court of Appeals held that the statute is not sufficiently specific to sustain a negligence per se jury instruction.
https://casetext.com/case/ibarra-v-gastelum
Heaphy v. Willow Canyon Healthcare DBA Pueblo Springs Rehab 2 CA-SA 2020-0001 (6/18/20)
Defendants sought medical records of the surviving statutory beneficiary in a wrongful death action. The trial judge ordered that the records had to be produced. Arizona’s Court of Appeals vacated the order, holding that the statutory beneficiaries had not placed their medical conditions at issue when bring their wrongful death lawsuit. Relevance is not sufficient to overcome privilege.
In re the Stephens Revocable Trust 2 CA-CV 2019-0102 (7/31/20)
Although the Arizona Adult Protective Service Act (“APSA”) requires an interested party to request the court’s permission to file a lawsuit for financial exploitation, the Arizona Court of Appeals held it was error for the trial court to deny that permission. The party was in fact an “interested party” under A.R.S. 46-456 and there was no competing interested party who might have been more appropriate to bring the claim.
The Insurance Industry Quick-Hit Settlement
If you’ve been in a collision and it was someone else’s fault, odds are very good that you will hear from the at-fault driver’s insurance company as soon as possible. It’s a tactic that is happening more and more in Arizona. This is done for a variety of reasons: (1) the insurance company would like to catch you off guard and when vulnerable following the collision; (2) most people are in shock following a collision and haven’t had time to determine the full extent of their injuries; and (3) the insurance company would like to get to you before you have had a chance to speak with a lawyer.
It’s very common for the insurance company to call you the same day and in some cases shortly after the collision. The adjuster will act friendly and attempt to build trust. Most people involved in a collision are vulnerable and feeling awful, both mentally and physically. It’s comforting to have an insurance company call you so quickly. Some will even say “we are admitting fault for the collision.”
But then, inevitably, you will be asked for a “recorded statement.” The adjuster will tell you that it is standard practice for anyone making a claim even if fault is admitted. Most people involved in a collision think it is an opportunity to tell “my side of the story to help my claim.” It’s NOT. I do NOT allow my clients to give recorded statements. And, I have never seen a recorded statement “help” a claim although I have seen plenty that hurt. If you are asked to give a recorded statement, you should politely decline.
Next, the insurance adjuster is going to request that you sign a medical authorization so that the insurance company can get your doctors paid. Again, this is a tactic. It will be a blanket authorization. It will be unlimited in time and scope. Do you really want to give an authorization to an insurance company so that it can obtain your medical records from any and every medical provider that you have ever seen in your life? I do NOT allow my clients to sign authorizations for the insurance company absent a confidentiality agreement or court order limiting the authorization to those records relevant to the injuries sustained in the collision. Again, if you are asked to sign blanket authorizations, you should politely decline.
This brings up what I consider the insurance company’s most egregious tactic. The insurance company, immediately following a collision, will offer a quick, nominal settlement in return for a signed or verbal release of your claim. Think about it – the insurance company offers you a quick $1,000 to $3,000 simply to walk away before you’ve even seen a doctor or received any treatment. Tempting? It’s very tempting and the insurance company knows that it is taking advantage of someone in a vulnerable position. Someone who has just been in a traumatic event can still be in shock and shouldn’t be making legal decisions like signing away their rights. Remember that most people involved in a collision usually do not realize the full extent of their injuries for days or longer.
Several years ago, before this quick settlement tactic fully developed, State Farm Insurance Company had a document called, “The Do’s And Don’ts Of A Minor Car Accident.” This document stated: “Don’t assume there aren’t injuries . . . Even low-impact collisions can cause injuries, some not appearing until days after the accident.” Of course, this great advice from State Farm disappeared about five years ago for some reason.
I am seeing a lot of this quick-hit settlement practice from most insurance companies here in Arizona. I’ll give you two examples of cases I have dealt with recently. The first case is the typical situation. Young man involved in a rear-end collision on Friday. He clearly had no fault for being rear-ended. He had never been in a collision before and had never made an insurance claim of any kind before. Geico called him soon after the collision. According to him, it was a nice adjuster who truly seemed to be concerned about his well-being. Geico’s adjuster spoke to him in length on the phone. She persuaded him to give a recorded statement. At the time she was speaking to him, he said he was experiencing pain between 6 to 8 on a scale of 1 to 10 with 10 being the most severe pain he had ever felt. He told her that he would follow up with his doctor the following week.
Soon thereafter, Geico’s adjuster ended the recorded statement. However, she did not end the conversation. In fact, this young man did not realize that she had stopped recording the phone call. The Geico adjuster indicated that she had run his expected treatment through her computer and the treatment would cost about $750.00. According the young man, the Geico adjuster then offered the $750.00 as an advance payment towards his future medical bills. The problem is that the Geico adjuster told him that he would need to give his permission for getting paid the “advance.” So, Geico turned the recorder back on and verbally stated a full and final release of ALL claims. The young man who had just been in a collision, knew nothing about insurance claims, and had no idea what was going on, simply affirmed the verbal, recorded release for $750.00.
The next day the young man could barely move because his injuries were so severe. His medical bills were going to be several thousand dollars. When he contacted Geico to pay the additional bills, Geico basically told him “so sad, too bad” because you released everything for $750.00.
Can an oral contract to release be valid? Sure. Is this “release” an adhesion contact? Yes. Is Geico’s conduct in inducing the settlement fraudulent? Probably, but it is difficult to prove because Geico did not record the entire conversation and argues that it honestly handled the young man’s personal injury claim. And, this is now no longer just a personal injury (tort) case. It is a contract case between Geico and the young man. In contact cases, attorneys’ fees can be awarded. Geico litigated a similar case in Texas a couple years ago. Not only did the Texas court uphold the release, it awarded Geico $10,000 for attorneys’ fees. So, there is an obvious risk when contesting these despicable quick-hit settlement releases.
My second case is much more unusual and also has a much happier ending. It involved another collision. Although my client had never been in a collision before and had never made a claim before, he was older and more experienced. The at-fault carrier (Allstate) called him the day of the collision. He refused to give a recorded statement. Allstate did not give up. Allstate eventually offered $1,600 to settle the claim. There was back pain, but it didn’t seem too bad at the time. My client was tempted, but discussed it with his wife. Thankfully, they decided to wait. No settlement check cashed. No release signed.
During the next few days, the back pain grew worse. It became excruciating. His legs started to go numb. His family doctor sent him to get an MRI. The MRI showed a herniation because of the collision. It was severe and required neurosurgery. He suffered permanent disability. Allstate unsuccessfully tried to get a quick-hit settlement for $1,600 on a claim that was eventually valued at over $600,000. Can you imagine how devastating it would have been to his family had he accepted Allstate’s quick-hit settlement offer?
Insurance companies are not on your side. Insurance companies are not good neighbors. Insurance companies don’t really care about you. The opposing insurance adjusters believe it is their job to settle claims as quickly and for as little as possible. No matter how nice or kind they sound, their loyalty is to their insurance employer not the injury victim. There is nothing fair about it. Please, even if you do not hire an attorney, do not give recorded statements to the opposing insurance company and absolutely do not sign personal injury releases without at least being checked by your family doctor. Of course, the best practice is to hire an attorney to look out for your interest and with the goal of protecting your rights.
Self-Representation in Insurance Cases is a Rough Road
One Portland woman is finding out, in the most difficult possible way, how hard it can be fighting for life insurance benefits without representation.
Jennifer Neumeyer, whose husband passed away due to pancreatic cancer back in 2011, found out only after his passing that his life insurance policy had been cancelled earlier when they had missed a single $9.60 payment. She had never received any warning messages or cancellation notices, which led her to think that the company deliberately withheld information from them knowing that they could use it to get out of paying the $120,000 premium.
Being caught in dire financial straits, she was having a hard time finding someone to help her fight. When she attempted to appeal the state’s decision to withhold payment on the life insurance policy, the hearing was postponed because she did not have legal representation. According to Neumeyer, it was highly recommended to her by the Maine Public Employees Retirement System that she obtain a lawyer.
Some insurance companies count on things like this, where individuals become discouraged or simply let it slide until it is too late. You absolutely cannot let that happen. There are almost always legal options out there. Similarly, there is almost always someone willing to fight for you if you have a legitimate claim as long as you get an attorney involved early on when the claim is initially denied.
If you or a loved one are being taken advantage of by insurance companies’ unfair business practices, please do not hesitate to get in touch with an experienced attorney immediately.
Source: http://www.pressherald.com/2014/07/21/augusta-woman-faces-setback-in-life-insurance-appeal/
Nationwide Fighting $18 Million Judgment in Bad Faith Case
Nationwide Mutual Insurance Co. was recently found guilty of insurance bad faith practices and ordered to pay $18 million in punitive damages.
The lawsuit, which took place over several years, involved a couple who was given an improperly-repaired Jeep Cherokee, which later on proved defective, causing an accident. There were no serious injuries or fatalities, but not only was the couple put into direct danger by the insurance company’s actions, but they Nationwide took extensive and repeated steps to hide evidence and facts.
Nationwide is appealing the decision, but in the initial ruling, the judge agreed with the plaintiffs that the insurance company’s actions were reprehensible and illegal by almost every definition.
Part of the reason that the judge awarded $18 million in damages is because of the excessive distance Nationwide went in order to fight the claim. The cost to replace the Jeep in the first place would have been just $25,000, but Nationwide pushed for the improperly-performed repairs, and then spent over $3 million delaying it in court. There were dozens of points along the road where Nationwide could have owned up and settled, but because they fought so aggressively, the judge took no pity on them.
According to the judge, Jeffrey K. Sprecher, “fortunately, no one was killed or injured; but Nationwide knew there could be a subsequent accident when it permitted the vehicle to be returned with hidden structural repair failures. This, by definition, is a reckless indifference to its insured. Nationwide was willing to risk the Bergs’ lives to save itself money on a collision claim.”
The entire point of insurance policies is to protect common citizens from expensive one-time accidents, and they serve a valid function, but when an insurance company specifically puts your family into harm’s way in order to save a small amount of money, is there any stone you wouldn’t turn to obtain justice?
Luckily, you always have legal recourse. With an experienced attorney on your side, you can make sure that every step is taken to protect the ones you love.
Source: http://www.insurancejournal.com/news/east/2014/07/14/334530.htm
How to Deal With Insurance Adjustors
Although bad faith lawsuits are extremley complex, the concept of insurance bad faith is a simple one: When you sign up for an insurance policy, there is a reasonable expectation that your insurance company will conduct itself with “good faith and fair dealing.” In Arizona, your insurance company is bound to refrain from any action which would impair the benefits to which its insured had a right to expect from the insurance policy.
One thing to keep in mind is that Arizona does not recognize true “third party” bad faith so you only have these protections against your own insurance company’s unfair claims handling.
While it is not unusual for individuals to disagree with adjustors about how much their claim is worth, bad faith only really comes into play when you notice that an adjustor is dodging any questions or concerns about why a claim is worth what they say, or if they are unexpectedly denying your claims without any reasonable basis. If your adjuster is ignoring evidence that should have been included in the proper, fair evaluation of the claim, this could be bad faith claims handling practicies.
When this happens, it is never a good idea to mention the term “bad faith” in conversation with the insurance agent or adjustor or to threaten bad faith. If you do so, the insurance company will argue that you “set it up” for bad faith even if that is absolutely false. Instead, you should simply make sure that you document and confirm every conversation in writing. Do not give the insurance company any excuses for its unfair claims handling and promptly respond to all reasonable requests from your insurance company.
If the unfair claims handling continues, you should immediately seek legal counsel. Your attorney will be able to go over all your legal options with you, as well as spur the insurance companies to action in most cases.
Insurance Claim Appeals See High Success Rates
For some lucky people, the insurance system is efficient, functional, and fair, but to many more, it is a complicated and frustrating quagmire. It can be all too easy to get bogged down in a system designed to refuse compensation by any means necessary, and for the many who find that they are treated guilty-until-proven-innocent, it can be hard to find a solution.
Luckily, even if your initial claim was denied, there are still options. When people find themselves in similar situations and file an appeal, they often find a surprising amount of success. In fact, numbers show that those who appeal their health care claims through a 3rd party win their appeal roughly half the time.
While it is natural for those who were initially wrongfully denied to see their denial as unfair business practices, reports on appeals also mention that clerical errors are common as well, making it sound as if simple human error is to blame for the initial hiccup. One such report by the Government Accountability Office (GOA) found that in certain situations, up to 40% of all initial claims were denied for reasons such as duplicate claims, incomplete forms/information, and billing errors.
So do not worry if you filed a claim and had it denied. There are still very successful options available to you.
Banks Holding Insurance Money Until Repairs are Done
Dealing with an insurance company can be a frustrating experience, even when everything runs smoothly. When a wrench gets thrown in the works, however, frustrating can turn to infuriating.
Some citizens around the country are learning that the hard way, after having their houses and businesses damaged by storms.
Normally, with an insurance claim, you would submit a claim, they would have someone come out to evaluate the extent of the damages, and then a short while later you would either receive a check or have an insurance-approved repair company fix the damage right away.
However, as some individuals are finding out, there are additional problems. One couple, who had their house and business both severely damaged, said that even following a successful insurance claim, the bank would not pay out any money until after all of the repairs were already completed. They were forced to take out a separate loan to pay for the repairs, which they repaid in full once they got their insurance money.
In addition, commonly in situations like these, people don’t realize what their policy actually covers until they go to file a claim. Many times, policy holders don’t know that their plan only covers market value instead of full purchase price. That little mistake could cost tens of thousands of dollars, and could be the difference between a fully-functional house at 100% and a house that has been barely patched up to functional.
Source: http://www.ketv.com/news/storm-victims-struggle-with-insurance-claims/26521024#ixzz355OMA1Cj
AIG to Pay Over $7 Million in Bad Faith Case
These days, everyone is familiar with insurance companies trying to do whatever they can, legally or illegally, in order to avoid or reduce benefit payouts.
Oftentimes, though, when the actual details of how insurance companies attempt to avoid paying are presented to a jury, they react with horror.
In one recent bad faith insurance lawsuit, which involves a disability claim that has been ongoing since 1998, an insurance consumer was awarded with more than $7 million (plus attorney fees and court costs) after receiving an initial $3.1 million disability verdict back in 2003.
The case in question involved an attorney who was hit by a bus back in 1998, and his multi-year battle with AIG, who not only lied and claimed that he was drunk and leaped out into traffic, but also coached the bus driver in how he should change his story about what really happened.
The disabled party ended up receiving a verdict of $3.1 million in benefits for his disability claim as a result of the lawsuit, which the jury reduced to $2.2 million for comparative fault because they agreed with AIG’s false version of events. However, the reduction was not enough for AIG, so it ended up appealing the case. AIG’s appeal successfully delayed the case for years. However, in 2008, the appeals court upheld the full $3.1 million verdict.
At that point, the insurance consumer filed a bad faith lawsuit against AIG for its underhanded tactics.
During the bad faith lawsuit, the judge found that AIG not only fabricated a completely false (but more believable) version of the accident, but also suppressed evidence that would have worked against them. In addition, AIG staged a mock deposition for the bus driver, training him in how he should respond with his modified testimony. “This is an egregious case,” the judge wrote. “The unfair claims settlement practices that AIGCS and AIGTS committed in their dealings with the Andersons were not mere oversights. They were deliberate or callously indifferent acts designed to conceal the truth, improperly skew the legal system and deprive the Andersons of fair compensation for their injuries for almost a decade.”
As a result of AIG’s underhanded attempt to avoid paying a legitimate disability claim, AIG ended up paying out well over 3 times what the initial disability benefits should have been.
Weight Affects Insurance Payout, Apparently
Almost everyone knows that insurance companies will try everything and anything they can to get out of paying legitimate insurance claims. So when an insurance consumer gets word back that their claim was accepted, it’s usually met with excitement and relief.
However, according to some recent information released, even upon accepting fault for a claim, insurance companies will still do everything they can to minimize the payout of owed benefits, including looking at a person’s weight.
According to one individual, who was hit by a red-light-runner, the claims adjuster for the insurance company was withholding thousands of dollars because “your client’s overweight” and “overweight people don’t heal as fast.”
This information was received with shock and disbelief by the injured party, as not only was there no medical evidence for this determination, but it also raises the question of how long the insurance company has been doing this and what else it will try to get away with reducing benefit payments on legitimate claims.
It is common practice for there to be a review an individual’s medical history related to the injuries sustained in the collision. However, it is not common practice to allow insurance company’s to go on fishing expeditions through an injured party’s unrelated medical records. The insurance benefit payents should be based solely on the injuries arising out of the accident.
It seems reprehensible, then, that an insurance company would willfully hold back money specifically because an individual is “heavier.” Indeed, most states including Arizona, follow the “thin-skull” or “egg-shell” rule. The rule states that the insurance company takes the innocent victim as it finds her and cannot excuse itself by saying it’s the innocent victim’s fault that she is suffering because she won’t try to lose some weight. Indeed, given the insurance claims adjuster’s comment that “overweight people don’t heal as fast,” it would seem like the payout amount should be higher for heavier people, if anything.
Source: http://www.ksat.com/news/defenders/defenders-weight-can-affect-insurance-settlement/25583606
Keep Tabs on Bad Faith Claims
Imagine the following scenario: You are in need of a serious medical procedure, and after checking with your insurance documentation and finding out the procedure will be covered, you go in for the operation, and it is a success. As you go over your mail later, recovering from your operation, you get a letter from your private health insurance company (or the hospital) stating that the operation was not covered, and you now owe tens of thousands of your own dollars.
You frantically study your insurance paperwork, and can’t find where the insurance company has any legal reason to deny coverage. You call the hospital and the insurance company, and get nowhere.
Unfortunately, this type of thing happens far too often. It can be Insurance Bad Faith, i.e., where an insurance company knowingly and willfully tries to get out of paying for an expensive medical procedure that should be covered. HUGE CAVAET – if this is an ERISA health insurance plan, Arizona’s bad faith law will not help you.
Even more unfortunate, the private health insurer will often get away with it because insurance consumers don’t know that the private health insurance carrier has a duty of good faith and fair dealing under Arizona law. The sad truth, however, is that most insurance companies only speak the language of money, so in order to make your point known, the only real recourse is suing for breach of contract and insurance bad faith.
Some of the more commonly denied conditions by private health insurance companies are fibromyalgia, chronic fatigue, and PTSD (post-traumatic stress disorder). All of these can be seriously limiting on one’s ability to perform work.
Some of the most common ways that private health insurance companies will try to avoid paying owed benefits are as follows:
- The private health insurer will refuse to acknowledge the condition exists;
- The private health insurer will require you to see a specialist picked by the insurance company (who is likely biased in their favor);
- If an individual does not see this specialist (even if they see 6 others), they will deny on grounds of not enough documentation or that the insured failed to cooperate with the insurer’s investigation; and
- The private health insurer will not accept how serious certain conditions can be, and refuse to acknowledge the impact on employment the condition may have.
If you have a talented Insurance Bad Faith attorney on your side, this process can be relatively smooth and less stressful than dealing with the insurance company on your own even if it does take an extremely long time. Either way, you will want to keep your eye on the insurance company’s claims handling at all times. As the years go by, insurance companies are getting trickier and trickier with how they refuse or delay payment on covered claims.

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