Arizona Personal Injury Blog

Four Dead in Pickup Truck Accident Carrying Illegal Immigrants

Jenny Albano — Mon, 28 Apr 2008 02:22:35 GMT

A pickup truck crashed Sunday morning, April 27, killing four of its passengers. The vehicle was carrying as many as 60 people when it rolled over in a remote part of Arizona.

Investigators believe that the people in the pickup truck were illegal immigrants. The truck was driving from 50 to 60 people and 20 to 30 people fled the scene of the accident into the desert. So far none of the passengers who fled have been found.

So far there have not been any arrests made, but police officers are looking for the driver of the vehicle who fled the scene as well.

Helicopters flew 18 injured passengers to area hospitals in Phoenix and Tucson and nine were ground transported to Phoenix and Tucson hospitals, White said. The four who died were all males. The investigation is on going, but it is believed that speed was the ultimate factor in the rollover and alcohol could have been a factor.

The accident occurred at around 5:30 a.m. Sunday morning near Arizona city, which is 60 miles south of Phoenix.

Tractor-Trailer Crashes Into Chicago Rail Station, 2 Dead

Jenny Albano — Mon, 28 Apr 2008 02:09:17 GMT

On Saturday, April 26 a tractor-trailer exiting an expressway during rush hour crashed into the Chicago Transit Authority train station and a bus shelter, killing 2 women at the scene and injuring 21 others. The truck ended up stuck inside a stairwell that leads from the street-level station to the train's platform.

The Chicago Police Department are investigating the crash at the Cermak-Chinatown Red Line station. That truck driver was questioned and was taken away in handcuffs after being treated at a hospital. He tested negative for blood alcohol but refused to take a urinalysis test. His name has not been released and he has not been charged with anything yet.

Most of those injured were in the bus shelter or the train station stairwell, said fire department spokeswoman Eve Rodriguez. The truck didn't appear to slow down before the impact, witnesses said.

All twenty-one injured were taken to local hospitals. Eleven people were in critical condition, four of them are children. People who work near the station said the intersection the accident occurred at is very dangerous because the traffic lights change quickly.

According to engineers, the only damage to the station was to the stairs that led to the overhead platform. As of now trains on the Red Line will not stop at the scene until further notice.

FDA Warns of Salmonella Risk in Cantaloupes

Jenny Albano — Sat, 22 Mar 2008 14:38:19 GMT

The FDA has put an import alert on cantaloupes from Agropecuaria Montelibano, a Honduran grower and packer, because the fruit may be associated with a Salmonella Litchfield outbreak in the United States and Canada. Cantaloupes shipped to the United States from this company are to be detained. Also, grocers and food providers are to remove the cantaloupes from this company from their stock.

Consumers who have recently purchased cantaloupes should check to see who the grower and packer are. if the cantaloupes are from Agropecuaria Montelibano then they should be thrown away.

So far there have been 50 reports of illness in 16 different states and 9 confirmed illnesses in Canada that have been linked to the consumption of cantaloupes. There have not been any deaths but 14 people have had to be hospitalized.

The FDA is taking this preventive measure while the agency continues to investigate this outbreak in cooperation with the Centers for Disease Control and Prevention and state partners. Such intervention is a key component of FDA's Food Protection Plan.

To learn more about Salmonella and its symptoms click here.

Mandatory Closing Provisions Strictly Enforced in Real Estate Purchase Contracts

Geoff Trachtenberg — Tue, 11 Mar 2008 12:41:19 GMT

That hissing sound you hear is not just air coming out of the real estate bubble, it's the folks at Mining Investment Group, LLC ("MIG") who today learned the importance of a mandatory closing date where a contract specifies that "time is of the essence." The case, Mining Investment Group, LLC v. Roberts, shows just how strictly the courts will interpret real estate purchase contracts - indeed, what a difference a (business) day makes - where the contract includes a specific date for closing, a term that is currently quite common in many real estate purchase contracts.

The short story: MIG contracted with Roberts to buy some land for $126,000. MIG deposited $10,000 in earnest money into escrow, promised another $30,000 at closing and a note for the rest. The closing date was ultimately set on a Friday and MIG failed to deposit the $30,000 into escrow. Roberts then faxed the escrow company a cancellation after the close of business on the date of the closing, withdrawing the property from escrow. The next business day, however, MIG wired the $30,000 to the escrow company (the escrow company was closed over the weekend). Roberts refused to close and MIG sued Roberts for specific performance. Roberts countersued MIG for filing a groundless lis pendens against the property.

The trial court granted Roberts' motion for summary judgment that, in light of the "time of the essence" clause in the contract, the failure to close on the specific date was a material breach. The trail court enforced the liquidated damages clause of the contract, awarding the $10,000 earnest money to the Roberts, awarded attorneys' fees to Roberts pursuant to the contract and ordered the lis pendens to be released (although it did not find it was groundless). Both parties appealed and the Court of Appeals affirmed the trial court on all counts.

MIG relied upon one the Supreme Court's decision in Foundation Development Corp. v. Loehmann's, Inc., 163 Ariz. 438, 788 P.2d 1189 (1990), to support its argument that, notwithstanding the "time is of the essence" term of the contract, there must be a material breach to work a forfeiture of an equitable property interest, and that the "materiality" of a breach was a question of fact. Loehmann's involved a tenant in a commercial lease who was subject to a forcible detainer action after it was three days late paying an assessment for common areas. In Loehmann's the Supreme Court held that a "time of the essence" clause was not dispositive in determining the materiality of a breach, that "[t]he mere incantation that 'time is of the essence' works no magic to transform trivial untimeliness into a material breach; rather, the same factors . . . in determining general materiality apply to evaluating the effect of a particular 'time of the essence' provision."

At first blush, Loehmann's seems to support MIG, but the Court of Appeals saw it differently. The Court distinguished an "executory contract for the purchase of real estate" from leasehold contracts. The Court found an "equitable interest" in land under a purchase contract was sui generis to a "possessory interest" in land under a leasehold, with the possessory interest apparently enjoying more protection from "inequitable forfeiture" as described in Loehmann's. The Court was also troubled by having to "ignore the express terms that the parties contracted for and essentially rewrite the contract." Not surprisingly then, the Court affirmed the trial court's award of the $10,000 earnest money and attorneys' fees, also pursuant to the express terms of the contract. The Court also agreed with the trial Court's determination that the lis pendens was not groundless.

This case is a big deal, and I have to wonder whether it will withstand further review. There are many reasons why real estate deals do not close on a specific dates, which are usually agreed to weeks or months in advance. Bank delays in wiring money, lender or broker delays of all kinds and simple press of business sometimes makes a precise closing impossible. Further, in my view, it is grossly unfair and bizarre to enforce the "time is of the essence" provision in one type of real estate contract (a lease) but not in others (a purchase) under some legal fiction that one is possessory and the other is "merely equitable."

For now, at least, if you are buying property in Arizona, you better make sure you build in sufficient room for delaying closing because the slightest delay may result in a substantial forfeiture.

No Personal Jurisdiction Over Across-the-Border Bar That Overserves Patron Killing Arizona Pedestrian

Geoff Trachtenberg — Fri, 29 Feb 2008 12:34:51 GMT

Interesting and disappointing personal jurisdiction memo opinion from Division One, Womack v. KC Arena. In short, KC operates a bar on the Nevada side of the Arizona-Nevada border, over served a patron who then drove across the state line and killed an Arizona pedestrian. Moreover, plaintiffs asserted that KC employees knew the patron lived in Bullhead City and that he would return there after he left the facility.

KC filed a motion to dismiss based upon a lack of personal jurisdiction. The plaintiffs opposed the motion, asserted general and specific personal jurisdiction, and (smartly) requested the opportunity to conduct discovery on the issue of personal jurisdiction. The trial court, however, granted KC's motion and Division One affirmed!

General personal jurisdiction over any claim against a defendant arises when the defendant has "substantial" or "continuous and systematic" contacts with the state. Though the record contained evidence that KC (1) advertises on television broadcasts in Arizona; (2) lists its establishment in various Arizona telephone directories; (3) employs Arizona residents; and (4) maintained an interactive website that has a "chat room" and solicits email, the Court of Appeals determined that these contacts were insufficient for general personal jurisdiction (they claimed to ignore the website since it was not, apparently, raised in the trial court).

Specific personal jurisdiction over a related claim against a defendant arises when (1) the defendant performed some act or consummated some transaction with the state by which it "purposefully availed" itself of the privilege of conducting activities in the forum state; (2) the claim "arises out of or relates to" the defendant's forum-related activities; and (3) the exercise of jurisdiction would be reasonable. KC argued that there was not a sufficient nexus between the plaintiffs' claim and KC's contacts with Arizona - namely, its local television advertising and telephone directory listings - to support the exercise of specific jurisdiction because those contacts are unrelated to the events giving rise to the plaintiffs' claims. The Court essentially agreed, focusing particularly on the fact that the events giving rise to the liability occurred in Nevada and that the location of the "injury causing event" in Arizona was irrelevant.

The Court also affirmed the trial court's exercise of discretion in denying the plaintiffs an opportunity to conduct discovery because, in essence, the Court concluded that the additional discovery would not have made a difference in the analysis. Don't you love that kind of logic - speculating on the outcome of the appeal based upon discovery that was not allowed?

Personally, Judge Barker's concurrence makes the most sense to me:

KC runs a bar that is immediately across the river from Arizona. Certainly, the business of the bar, and plaintiffs' claim, "relate[] to" the steady stream of patrons that come to the bar from Arizona and re-enter Arizona after frequenting the bar's premises. KC chose to locate its bar in that location. It initiated those contacts. It should not be jurisdictionally immune from the impact that it is having on Arizona residents when it sends intoxicated drivers onto Arizona highways.

But, alas, it is so immune.

Arizona Supreme Court Holds Professional Negligence Against Insurance Agent is Assignable

Geoff Trachtenberg — Wed, 06 Feb 2008 09:16:33 GMT

Surprising result in Webb v. Gittlen, a new opinion from the Arizona Supreme Court which holds that a professional negligence claim against an insurance agent is assignable. Although a long overdue holding, it highlights the badly misunderstood law concerning assignments, including the scope and justification of anti-assignment law (see my earlier article on Assignments vs. Liens in the Personal Injury Context).

To be sure, how many modern opinions rely upon 400-year old case law from "Lord Coke"? This one does.

The opinion is a actually a good read in that the Supreme Court takes us through centuries of anti-assignment history and jurisprudence, neatly summarizing Arizona law on this issue as follows:

The current principles under Arizona law for determining if an unliquidated claim may be assigned can be summarized as follows: (1) claims generally are assignable except those involving personal injury; (2) the legislature may specify whether particular claims are assignable; and (3) absent legislative direction, public policy considerations should guide courts in determining whether to depart from the general rule.

The Court then turned to the case at issue and, without specifically saying so, seemed to accept that a claim against an insurance agent -- relating to a wrongful death claim -- does not "involve a personal injury." While I think this is clearly correct, it is surprising how often the issue gets ignored or taken for granted -- namely, what constitutes an unlawful assignment of a personal injury claim?

For example, is a medical lien an unlawful assignment of a personal injury claims? Why not? Since most personal injury attorneys encounter these every day, wouldn't it make sense to know whether they are valid and why? Well, this opinion may shed some light on the issue where Court stated as follows:

Arizona case law generally allows the assignment of unliquidated legal claims except those involving personal injury. This distinction reflects the evolution of the common law, which once held that "choses in action" could not be assigned, except to the crown. Welch v. Mandeville, 14 U.S. (1 Wheat.) 233, 237 n.a (1816). A legal claim is one type of "chose in action," but the concept also encompasses "debts of all kinds" and "rights to recover ownership or possession of real or personal property."

While not the focus of the opinion, the Court's discussion of the affirmative assignably of "legal claims" and "debts of all kinds" is important. For instance, even though a medical lien creates an interest in a person's bodily injury recovery, maybe it is a valid "legal claim" since it covers a "debt." But if you think this is a slam-dunk, consider what the same Court said in Allstate Ins. Co. v. Druke, 118 Ariz. 301, 576 P.2d 489 (1978):

Whatever the form, whatever the label, whatever the theory, the result is the same. The [documents] create an interest in any recovery against a third party for bodily injury. Such an arrangement, if made or contracted for prior to settlement or judgment, is the legal equivalent of an assignment and therefore unenforceable.

Id. at 304, 576 P.2d at 492; Lo Piano v. Hunter, 173 Ariz. 172, 175-76, 840 P.2d 1037, 1040-43 (App. 1992) (holding that reimbursement provision was an unenforceable assignment of a personal injury claim). So it is still up in the air whether such assignments are valid.

Anyway, the substantive thrust of the Court's holding was to explain the difference between assignments of legal malpractice claims and professional negligence claims against insurance agents. Without holding whether legal malpractice claims were assignable, the Court went on to "assume they are not" and distinguished the attorney-client relationship with the insurance agent-client relationship, essentially saying that the later was of a lesser duty (i.e., generally not a fiduciary, which was a bit of a surprise to me) and drawing on other differences (without saying why the differences made a difference by the way). The Court just concluded that the relationship with an insurance agent was not "uniquely personal" to justify making claims against an insurance agent non-assignable.

Next, the Court addressed public policy arguments. Surely, the best line in this section is the following refreshing dose of common sense to the argument that allowing such assignments would "commercialize" the insurer-client relationship: "Although the agent-client relationship has personal dimensions, it arises from a commercial transaction - the purchase of insurance. It is therefore odd to suggest that it should not be commercialized." This, of course, begs the question -- isn't the relationship between an attorney and client commercial? That is, it involves the commercial exchange of money for services, so why should it get any different treatment?

It is probably too much to hope for, namely -- the complete abolition of anti-assignment law -- and even though it sometimes helps our clients in the lien context, it has always seemed unnecessarily paternalistic and outdated to me, especially the nonsense about "trafficking in personal injury claims." Still, it was nice to see the Court tip its hat, in footnote 3, to commentators "who advocate allowing assignment of all tort claims."

In fact, the Court alluded to the inconsistent and strange genesis of the non-assignablity issue, noting that "[a]s courts became more accessible and litigation a more accepted means for resolving disputes, the prohibition on assignment gradually became the exception rather than the rule." The Court explained that the rationale behind the "exception" of prohibiting assignment of personal injury claims was basically tied to the idea that the claims were "personal" and did not survive death, therefore, they could not be assigned during the person's lifetime. But the Court observed:

This "survivability" test did not itself survive in Arizona after 1955, when the legislature enacted a [now amended] statute providing for the survival of most causes of action, including personal injury claims. Although this statute undermined one rationale for refusing to allow the assignment of personal injury claims, courts did not abolish the rule. Instead, they resurrected the common law public policy rationale - fear of vexatious litigation.

In other words, the reason we still have non-assignment law today is simply a function of judicial activism from 50 years ago. So it's possible that, one day, courts will see it differently -- afterall, who would have thought the Court would permit assignment of a claim against an insurance agent, but not a lawyer?

Domega International Ltd. Recalls Zebra Brand Sweetened Lotus Root Seed and Zebra Brand Sweetened Coconut

Jenny Albano — Sun, 27 Jan 2008 20:18:50 GMT

Domega international Ltd., in conjunction with the FDA, is recalling Zebra brand sweetened lotus root seed and Zebra brand sweetened coconut because it contains undeclared sulfites. People who are sensitive to sulfites may risk serious or life-threatening reactions if they consume these products.

The recalled Zebra brand sweetened lotus root seed is sold in 6 oz. un-coded plastic bags and is a product of China, packed by Hong Kong Ever Time Food & Grocery Co. Ltd. The product was sold nationwide. The recalled Zebra brand sweetened coconut is sold in 6 oz. un-coded plastic bags and is a product of China, packed by Hong Kong Ever Time Food & Grocery Co. Ltd. The product was sold nationwide.

The problem was found after a routine sampling completed by the New York State Department of Agriculture and Markets Food Inspectors. The Food Laboratory analysis revealed that there were undeclared sulfites in the recalled products. Sulfites were not listed as an ingredient on the labeling.

For people who have asthma, consuming 10 or more milligrams of sulfites per serving can result in severe reactions. Anaphylactic shock can occur for people who are sensitive to sulfites if they consume these Zebra brand products. So far, no illnesses have been reported to Domega International.

For more information on this subject, please refer to our section on Defective and Dangerous Products.

Arizona Supreme Court Finds No Workers' Compensation Offset for Underinsured Motorist Coverage

Geoff Trachtenberg — Thu, 10 Jan 2008 16:04:22 GMT

Today the Arizona Supreme Court issued an opinion in Cundiff v. State Farm Mutual Automobile Ins. Co. which dealt with workers' compensation offsets in underinsured motorist (UIM) claims.

Pima County Deputy Sheriff Jean Cundiff was injured by a third-party while on the job, in her patrol car. Although she was paid certain workers' compensation benefits, the third-party only carried $15,000 in liability coverage. So, after accepting these minimal limits, Ms. Cundiff made a UIM claim with her insurer, State Farm.

State Farm, however, had a term in its policy that provided for an offset against any UIM coverage based upon benefits received from a workers' compensation carrier. The provision stated that: "Any amount payable under [UIM] coverage shall be reduced by any amount paid or payable to or for the insured under any worker[s'] compensation, disability benefits, or similar law. This does not reduce the limits of liability required by law for this coverage."

The claim went to arbitration and Ms. Cundiff prevailed. Nevertheless, relying upon the foregoing provision, State Farm was only willing to pay a reduced amount of the arbitration award, i.e., an amount offset based upon the benefits Ms. Cundiff received from her workers' compensation carrier. So Ms. Cundiff sued State Farm for the full amount she was due pursuant to the arbitration award, without application of any offset.

The trial court and Court of Appeals (in a published decision) sided with State Farm, but the Arizona Supreme Court reversed these decisions. Based on the terms of the UIM statute, which override the terms of the State Farm policy, the Supreme Court explained that only "liability insurance" can be deducted from the full value of an insured's loss to reduce the amount of the claim -- that is, only proceeds received from a liability policy will be offset against the full value of an insured's claim. The Court explained that, since workers' compensation does not constitute "liability insurance," workers' compensation benefits cannot be offset against an insured's claim.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

FDA Sued for Stronger Warnings on Certain Antibiotics

Jenny Albano — Sun, 06 Jan 2008 00:36:04 GMT

On Thursday, December 3, a consumer group called Public Citizen sued the FDA, saying that the agency has ignored pleas for stronger warnings on antibiotics that can cause tendon injuries.

The labels on drugs such as Cipro and Levaquin, drugs in the fluoroquinolone family of antibiotics, do have warnings for tendon injuries, but they are listed among many other side effects are not emphasized. Public Citizen wants the tendon injury warnings to be upgraded to a black-box warning, the FDA's most severe warning. Also the consumer group wants patients who take this drug to recieve a pamphlet with their medication that explains the risks.

Public Citizen thinks that not very many patients who take this family of antibiotics knows they are supposed to discontinue use of their the medication if they experience pain or inflammation, before the tendon actually ruptures.

Public Citizen filed a petition seeking the stronger warning in August 2006. The state of Illinois had filed a similar petition the previous year. The FDA is violating its own statutes and putting patients at risk in taking so long to settle the issue, Public Citizen said in the suit filed in U.S. District Court for the District of Columbia.

When Public Citizen first filed this petition there were 262 reported incidents of ruptured tendons from November 1997 to December 2005, and there were a few hundred reports of other tendon problems in patients who took these kind of antibiotics. Since the end of 2005 the FDA has recieved 74 more reports of tendon ruptures. These numbers probably do not account for most of the tendon problems because only a fraction of drug side effects are typically reported to the FDA.

For more information on this subject, please refer to our section on FDA and Prescription Drugs.

Peak Oil: A Crude Awakening

Geoff Trachtenberg — Sun, 30 Dec 2007 15:39:46 GMT

Ask most people, and they'll probably tell you global warming is our greatest global obstacle. Some will even say something like terrorism or illegal immigration. Frankly, I thought I was pretty damn clever spotting the global credit bubble, and believed it to be the greatest global crisis we'd face in our lifetimes (i.e., something on order of five times larger than the S&L crisis). Even if I'm right about that number, I'm far from being right about the significance of the event.

I rented a movie this weekend, A Crude Awakening (2006), from Netflix. You have to see it; it changed my thinking in 90 minutes.

I had previously read about "Peak Oil," but nothing put it together as persuasively as this movie. The magnitude and consequences of a global oil crisis are staggering, imminent and unavoidable.

For anyone who does watch it or who has seen it, I'd really like to know your thoughts on the following: When the world can no longer fulfill our global oil demand (sometime between now and 10 years from now), do we get massive price inflation or deflation of assets and commodities (or will it be different for one versus the other)?

Don't be too quick to answer; it's trickier than you might think. While the law of supply and demand dictates dramatically higher prices (for commodities anyway), global asset and commodity prices during the Great Depression sank almost 50%, and there's reason to believe that long-term effects of a real global oil crisis (unlike the temporary and politically-induced "oil shock" of the 70s) would not necessarily lead to higher prices if it disrupted economic activity for any appreciable amount of time. Simply put, if economic activity slowed or stopped, there'd be massive unemployment, less money and, consequently, less demand for everything (with the exception of things like guns, ammo, food and water, in my opinion).

So, think $100 per barrel is expensive? What if oil cost $1,000 per barrel or $50/gal of gasoline? How much does bread, clothing or heating cost then? Will people be able to afford it? Will they have a job under such conditions? What about American cities, like ours, that are spread out and utterly dependent upon personal transportation? What will happen to economic activity in a place like Phoenix or, more broadly, the "American way of life"?