AADC Summer Common Defense Newsletter

Summer 2023

Defense COMMON

The Arizona Association of Defense Counsel Newsletter

INSIDE THIS ISSUE AADC 2023 Annual Meeting & Fall Kickoff Message From The President Respondeat Superior Claims

Connect

Save The Date 2023 Annual Meeting & Fall Kickoff Reception September 22, 2023

Collaborate

Succeed

INDEX

SUMMER 2023 NEWSLETTER Page 2 - Message From the President

Page 9 - Check Your Spelling

Page 4 - Respondeat Superior Claims

Page 10 - YLD Update

Page 5 - Upcoming Events

Page 12 - ASU Oplinger Blake Competiton

Page 6 - From the Bench

Page 13 - For the Defense

Page 8 - Sidebar

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COMMON DEFENSE | Summer 2023 | azadc.org

A Message From the President Farewell, But Not Goodbye Thank you to all the members of the Arizona Association of Defense Counsel for recommitting and reengaging with me over the past year in this incredible organization. It has been a great year!

We had a blast returning to in-person events and connecting with our defense colleagues at the Annual Meeting & Fall Kickoff, Phoenix Judicial Reception, and Tucson Judicial Reception. The Young Lawyers Division Charity Softball Tournament’s roaring comeback raised money for Southwest Human Development through friendly competition and fun. Then, we rounded out the year celebrating our dedicated sponsors with a night of bowling and camaraderie.

As I wrap up my year as President and look back at my time with the AADC, I am beyond grateful. I began participating in the AADC while I was still in law school, spent years in the Young Lawyers Division, then was thrilled when the opportunity arose to serve on the Board. Fostering the AADC’s evolution and growth has been such a privilege. Our continued focus on meaningful collaborations and connections, as well as diversity, equity, and inclusion initiatives makes me so excited about the future of the AADC and its membership. I encourage members to get involved in one of the AADC’s committees or consider serving on the Board. It’s been a rewarding experience that allowed me to develop connections and friendships within the defense community and beyond.

Thank you for your membership and support.

I look forward to seeing you all at future AADC events and meetings!

Micalann Pepe, Jaburg Wilk AADC President 2022-2023

2 COMMON DEFENSE | Summer 2023 | azadc.org

I (May) Survive: A RESPONDEAT SUPERIOR CLAIM MAY SURVIVE DESPITE DISMISSAL OF A C L A I M A G A I N S T A N E M P L O Y E E

By: Maria R. Kupillas, Esq. Tyson Mendes Plaintiffs alleged the employee’s negligent driving caused the accident, and the driver was in the course and scope of his employment at the time of the accident. As such, plaintiffs alleged SRP was negligent under the theory of respondeat superior.

Marial R. Kupillas is Senior at Tyson Mendes’ Scottsdale, AZ office. Ms. Kupillas has extensive litigation experience working in-house at several large insurance companies handling both personal and commercial lines. Ms. Kupillas’ practice includes defending homeowners’ associations, handling construction defect matters, representing parties before the EEOC and Attorney General in discrimination matters, and representing insurance companies in subrogation cases.

When a tort claim against an employee is dismissed, can a claim against the employer for respondeat superior be maintained? This is the question the Supreme Court of Arizona recently addressed in Laurence v. Salt River Project Agricultural Improvement & Power District.[1] The answer is, it depends.

In Laurence, the Arizona Supreme Court held dismissing a claim against an employee with prejudice, for reasons unrelated to the merits of that claim, does not require the dismissal of the respondeat superior claim against the employer. This decision overturned a 1945 decision to the contrary.

Background Jacob Laurence and his minor son were injured in a motor vehicle accident involving a truck owned by Salt River Project (“SRP”) and driven by its employee.

Because SRP is a political subdivision of the State of Arizona, a claim against SRP must be filed within one hundred and eight (180) days.[2] Plaintiffs timely filed a claim against SRP but did not file a claim against the employee driver until almost fifteen (15) months postaccident. The superior court granted the employee driver’s motion for summary judgment against Laurence due to failure to timely file the claim.[3] SRP then filed a motion for summary judgment, arguing since the claim against its employee was dismissed, SRP could not be held vicariously liable for the employee driver’s negligence. In making its arguments, SRP relied on DeGraff[4]. The plaintiffs responded that since summary judgment was granted for reasons unrelated to the merits, SRP could still be found vicariously liable.

In DeGraff, the Court held dismissing a claim against an employee with prejudice for any reason exonerates the employee from negligence and simultaneously adjudicates the claim against the employer.[5] The superior court agreed with SRP and the Court of Appeals affirmed.

Under DeGraff, the claims against SRP were properly dismissed, however, the plaintiffs asked the superior court be reversed and the precedent overturned, urging the Supreme Court to conclude dismissal of a claim against an employee for reasons not related to the case’s merits does not foreclose a respondeat superior claim against the employer.

I (May) Survive continued on page 11

4 COMMON DEFENSE | Summer 2023 | azadc.org

Webinar: Loss of Earnings Capacity and Future Medical Care Cost Analyses August 30, 2023 at 12pm Register

Reconnect with friends and colleagues at the 2023 AADC Annual Meeting and Fall Kickoff Reception on September 22, 2023!

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COMMON DEFENSE | Summer 2023 | azadc.org

From The Bench INTERVIEW OF HON. DAVID B. GASS Arizona Court of Appeals (Division 1)

1. In oral argument, what is one thing lawyers who appear in front of you should always do?

Answer every question directly. If a question calls for a yes or no answer, respond with a yes or no and then explain. If you cannot answer yes or no, say so and explain. Once you answer the question, then pivot back to your argument.

2. Is there anything lawyers should avoid during oral argument?

Do not guess at an answer. Prepare so you never have to say, “I don’t know.” But it will happen. We understand. And we prefer candor over creativity.

Apologize, offer to provide supplemental briefing, and move on. You have not lost the argument. You just did not know the answer to a question.

3. What is your biggest pet peeve in written motions?

Not asking for specific relief and not getting to the point. Do not bury the lead.

4. If you were to recommend one book to a young lawyer (fiction or non-fiction) regarding the legal profession, which would it be?

As lawyers, we must accept our limitations. We cannot control what has brought someone to our offices. Rarely is it a happy event. But we can control how we respond. Though the book titles reference males, the books discuss universal concepts of value to all humanity.

With that, I offer two books: A law clerk (J. William VanDehei) gave me a copy of The Little Prince by Antoine de Saint-Exupéry. I recommend it as a short but insightful journey. Many of our clients feel they are little princes. And many lawyers do too. We all need perspective.

I also recommend Man’s Search for Meaning by Viktor Frankl. It explores the effects of trauma, helps us reflect on our own lives, and lets us see how we can be there for others.

5. Who is your favorite Supreme Court Justice and why?

I cannot answer that question with one name (see Answer 1) because my answer depends on why a Justice is my favorite—best writer (Kagan), most direct effect on my life (O’Connor and McGregor—you did not specify which Supreme Court), most inspirational story (Sotomayor). I will go with inspiration for the moment. I have used Justice Sotomayor’s books about her life to inspire young people to pursue their dreams, particularly if they are considering a career in the law.

On the juvenile bench, I gave copies to young people, many of whom had never been given a book. One of those young people recently attended a Legal Futures event put on by the Arizona Supreme Court’s Commission on Diversity, Equality, and Justice. She won a signed copy of the book, and she hopes to pursue a legal career.

When Justice O’Connor was appointed, she did the same for so many young people, particularly women. I remember her appointment, but I had no idea it would directly affect my life. She hired Ruth V. McGregor as her first law clerk. And after her appointment to the bench, Judge McGregor hired me as her law clerk. I also appreciate the keen insight and focus both Justice O’Connor and Justice McGregor brought to the bench.

And Justice O’Connor quoted a Broadway musical in an opinion.

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COMMON DEFENSE | Summer 2023 | azadc.org

SIDEBAR By: James D. Smith, Esq. Osborn Maledon “May I offer you some advice?” Often, someone asking that question leads to eyerolls because it is about to lead to an insult or a threat. But this was a sincere question, and I was happy to accept.

A high school-age girl who is a great swimmer is another regular at the pool. You see the same faces there and everyone is friendly, so it isn’t as if a total stranger posed the question. She saw a flaw with my head position during butterfly and offered some advice. I’m 53 years old. In my best days in high school my stroke wasn’t as smooth as hers, so I was happy to accept her input. And she was gracious to spend a few minutes coaching.

We lawyers—and I mean the older folks like me, in particular —need to be better about accepting advice at times. We can’t assume that we know everything about how a case or argument will sound to a judge or jury simply because we’ve been living with the case for months or years. After all, your jury won’t have your same experience—they’re coming to the case fresh, too. Take the input from your colleague, spouse, or friend. Maybe they’ll help you think of ways to better reach your audience.

When we’re living with a case, we can lose the neutral perspective that an outsider brings. When I’m swimming, I certainly *think* I know what my stroke looks like. No matter how certain I am, however, someone viewing from the deck or another lane sees other aspects that I’ll never see. That view can be invaluable.

And just as that high schooler at the pool had valuable insight, don’t think that only grizzled veteran has something to share. Lately, I’ve been astonished at the perceptiveness and intellect of young lawyers I’m encountering. I doubt I made the same contributions at their age.

Last, use every mistake as a learning opportunity. I’d been making the same mistake with my head position for a long time. Now I can fix it, though, and have a better stroke. Life as a lawyer can be similar. Trust me—we all identify questions blown at trial, ways we could’ve improved a deposition, or arguments in briefs we should’ve rephrased.

You don’t want to dwell on them forever, but they’re often the most powerful and important lessons we can learn to improve our practice.

8 COMMON DEFENSE | Summer 2023 | azadc.org

Check Your Spelling YOUNG LAWYERS DIVISION

By: Seraphim D. Sparrow, Esq. Jones,Skelton & Hochuli There is a lot of legal advice on the internet. Experienced lawyers take to LinkedIn or their own blogs to post advice to the younger generation of attorneys. While these experts do not always agree on the pathway to a successful legal career, all seem to agree a young lawyer’s work product is crucial. Unless you start your own law firm right out of law school, the chances are high that a supervising attorney will be reviewing your work. And this supervising attorney should be checking your work for issues you don’t have the experience to know yet— how a local jury might value the case, whether experts are necessary, whether a specific judge might grant your motion, etc.

But you, as the young attorney, already have all the tools you need to spell words correctly, use the correct grammar, and to eliminate formatting errors. When I was a law student, I thought I understood this concept. I thought it was important to do good work for good work’s sake. To stand out, even. And while this is true, I didn’t realize that there was more to this idea.

Remember that, at the end of the day, you and the supervising lawyer will be charging a client for your work. Not only is the supervising attorney’s time wasted on correcting basic mistakes like spelling, but the client should not have to pay for this. When your supervisor has to correct these errors, it adds time and money to the client’s bill.

Additionally, each written project you submit to your supervisor represents an opportunity to make a good impression. When you take care of the little things, your supervisor will trust you more. And this increased trust will lead to bigger assignments and more responsibility. So if you wouldn’t trust someone who recommends suing the “Untied States of America,” neither will your supervisor trust you when you write a memorandum about the “Govenor’s power to regulate local businesses.”

With this in mind, I have provided a few tips that I follow when proofreading my work: Finish your work the day before it is due and proofread it the next morning with a fresh set of eyes.

Print your work out and proofread a physical copy. You might be surprised to see what errors you missed when you were reading on your computer.

Don’t rely on spellcheck. In the above examples, spellcheck did not catch the word “Untied” because it is a real word.

When you have spent countless hours on a long project, proofread it backwards.

Start with the last sentence and work your way backwards until you reach the beginning. Our brains start to skip words when we are used to reading something, and this trick will force your brain to read your sentences in a new way.

Check your word processor’s settings to ensure spellcheck is enabled for capitalized words. This is particularly important for briefs with capitalized headers.

The Young Lawyer’s Division is happy to announce the return of the AADC/YLD Softball Tournament on April 1, 2023 was a success! The YLD raised $5,000 to support early childhood development services offered by Southwest Human Development in Arizona. Eight firms fielded teams including Burch & Cracchiolo; Carpenter Hazlewood; The Cavanagh Law Firm; Gordon Rees; Jaburg Wilk; Jones, Skelton & Hochuli; Sanders & Parks and Snell & Wilmer.

Competition was fierce throughout the tournament, but the Sanders & Parks team prevailed taking home the 2023 tournament trophy with the Jaburg Wilk team taking Second Place. Special thanks to all the firms who participated and helped support this great cause. The Softball Tournament will be back again next spring, so keep an eye out for details and start recruiting your team!

The YLD will also host multiple CLE events this coming year. More details will be provided in the fall. We look forward to seeing everyone at these upcoming events!

10 COMMON DEFENSE | Summer 2023 | azadc.org

I (May) Survive continued...

The Ruling The Supreme Court of Arizona found several compelling reasons to overturn DeGraff. First, the Supreme Court found the ruling in DeGraff to be “clearly erroneous or manifestly wrong.”[6] The DeGraff majority correctly treated the dismissal of the claim against the employee with prejudice as an “adjudication on the merits”[7] but, according to the majority in Laurence, it failed to explain why that meant the employee had “been adjudged as not guilty of any negligence”[8] so as to preclude a respondeat superior claim against the employer.

In Laurence, the Supreme Court ruled that a dismissal with prejudice does nothing more than bar refiling the same claim in the same court, no matter the basis for the dismissal. The dismissal does not bar a separate claim against another party.

Second, the Court had already previously abrogated DeGraff in part, severely undercutting the efficacy of what remained. In Kopp, the Court “disavow[ed] [their] holding in DeGraff insofar as that case and its progeny conclude that a stipulated dismissal with prejudice operates as an adjudication that the dismissed party was not negligent in the treatment of the plaintiff.”[9] The Court reasoned that “[c]ontinuing to apply DeGraff to respondeat superior claims while carving out a different meaning for issue preclusion purposes would be confusing and unnecessary.”[10] Third, the Court found that DeGraff conflicts with Arizona statute and case law which provide that, under the doctrine of respondeat superior, an employer is vicariously liable for its employees’ tortious acts, not adjudicated liability.[11] Fourth, the Court found DeGraff in opposition to the recognition that employers sued under respondeat superior cannot assert defenses that are personal to the employee. The respondeat superior claim, the Court explains, is “freestanding.”[12] When a plaintiff violates an employee’s procedural rights, that defense is personal to the employee and cannot be asserted by the employer.

Fifth, the Court found that public policy does not support upholding DeGraff. Unless the finder of fact finds the employee did not commit a tort, or possibly that plaintiff released the employee from liability, it is fair to allow the respondeat superior claim to proceed.[13]

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COMMON DEFENSE | Summer 2023 | azadc.org

For these reasons, the Arizona Supreme Court overturned DeGraff and held the superior court incorrectly entered summary judgment in favor of SRP since the claim was dismissed solely because plaintiff failed to timely file the claim.

ASU Oplinger Blake Competiton

MATTHEW STORY - 1ST PLACE

MCKENNA HUNTER - 2ND PLACE

ADAM BIXBY - 3RD PLACE

The ASU Oplinger-Black Closing Argument Competition was held April 3-6, 2023 at Sandra Day O’Connor School of Law. Volunteer judges representing the AADC included Retired Judge James Smith (Osborn Maledon), J.P. Harrington Bisceglia (Christian, Dichter & Sluga), David Schmidt (Clark Hill), and Steven Crocchi (Gordon Rees). The AADC provided students with a fact pattern, evidence, and jury instructions for the competition.

According to Matthew Story, the 1st place winner, timing was by far the most challenging aspect of this competition. Competitors had 10 minutes total for closing argument, and the plaintiff's side could reserve a portion of that time for rebuttal. “Briefly, I had to legitimize my clumsy plaintiff's injuries and simultaneously paint the corporate defendant as careless and apathetic. Brevity was our ally as we forcefully reduced complex arguments into palatable, bite-size forms. Still, it was difficult to balance brevity against clarity while also threading a common theme throughout all of it. Juries are a finicky bunch, a jury of lawyers is no different. I was fortunate to have a captivated jury that appreciated my argument. I am grateful for the opportunity to improve my advocacy skills against such great competitors and to receive in-person feedback from experienced litigators.”

The AADC provided monetary awards for the top three winners: Matthew Story (1st place), McKenna Hunter (2nd place), and Adam Bixby (3rd place). Congratulations to the winners and the competitors on a job well done! We’re excited for Arizona’s future litigators!

12 COMMON DEFENSE | Summer 2023 | azadc.org

For the Defense Gordon Rees Partner Matthew Kleiner and Associate Steven D. Crocchi prevailed on a motion to dismiss and a motion for summary judgment in a breach of contract and insurance fraud case. A small house fire caused minor damage to the plaintiff’s living room wall, carpet, piano, and odds and ends. Plaintiff sued insurer for breach of contract, insurance fraud, consumer fraud, and requested punitive damages. The plaintiff stipulated to dismiss the consumer fraud claim and the Gordon Rees team successfully moved to dismiss the insurance fraud claim based on a statute of limitations defense and on the plaintiff’s punitive damage request. The court found plaintiff lacked evidence proving she was underpaid for her loss.

Gordon Rees Co-Managing Partner Kira N. Barrett and Associate Steven D. Crocchi prevailed on a motion to dismiss on behalf of a social worker in a $15 million § 1983 case. The plaintiffs, a mother and her minor child, were involved in a dependency action in the

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COMMON DEFENSE | Summer 2023 | azadc.org

juvenile court that was resolved in the mother’s favor. Thereafter, the mother, individually and on behalf of her minor child, sued all involved in the dependency, including the social worker, and alleged a conspiracy amongst all of the participants to violate her constitutional rights. The Gordon Rees team moved to dismiss the complaint arguing that the plaintiffs failed to state a claim against the social worker. The District Court dismissed the complaint as to all defendants finding that the plaintiffs’ claims were not plausible.

Gordon Rees Co-Managing Partner Kira N. Barrett and Associate Steven D. Crocchi prevailed on a motion to dismiss on behalf of a court-appointed guardian ad litem in a $16 million § 1983 case. The plaintiffs, a father and his minor children, were involved in a dependency action where the minor children were removed from father’s care. After the dependency was dismissed, the plaintiffs sued various defendants, including the court-appointed GAL, asserting causes of action for malicious prosecution and violation of the plaintiffs’ constitutional rights under § 1983. The Gordon Rees team successfully obtained a dismissal with prejudice after the Court found that the GAL was absolutely immune from suit.

Eadie Rudder, Carpenter Hazlewood

Dan Coumides, Gust Rosenfeld

Maria McKee, Carpenter Hazlewood

Steven Crocchi, Gordon Rees

Doreen Myles, AADC Executive Director

THANK YOU FOR YOUR SUPPORT We extend our heartfelt gratitude for this groups outstanding efforts in curating our Common Defense newsletter. Your dedication to providing valuable insights to our members is truly commendable and greatly appreciated. Thank you for contributing to the success of our organization.

The Arizona Association of Defense Counsel 6711 E. Camelback Road, Suite 64, Scottsdale, AZ 85251 602-743-3700 | admin@azadc.org