COURTS TACKLE HOCKEY FAN FIGHTS

I am admitted to the bar in two great states, Arizona and New York.

I have enjoyed hockey since my youth. I well remember listening to Marv Albert call Rangers’ games on our small radio. There were only six teams in the league, New York being the southern-most. That I would one day attend NHL games in Glendale, AZ, was beyond all imagination.

So as I often do when I am not diligently pursuing my clients’ matters, I was amusing myself by reading the output of appellate courts (I admit it: I’m sick). I discovered that, on the same day, courts in both states issued opinions about hockey fan fights.

A youth hockey tournament of 13-year-old players took place in Rome, New York, a/k/a the “Copper City”. The spectators were mostly relatives of the players. The game was marked by on-ice fisticuffs and ejection of one of the coaches.

After the game, two female spectators got into a fight. Although the opinion does not tell us their relationship to the on-ice combatants, it does bring to mind Sara Palin’s speech about hockey moms and pit bulls with lipstick. In the ensuing melee, the plaintiff tried to break up the fight only to get clocked by one woman’s brother.

The plaintiff sued the youth hockey association for failing to maintain order and to enforce its “zero tolerance” policy. New York’s high court held that the criminal conduct of the adults was not a foreseeable consequence of the league’s failure to eject any particular spectator, and so the league was off the hook.

Pink v Rome Youth Hockey Assn (Oct. 25, 2016).

Meanwhile, back in the “Copper State” of Arizona, a Mr. Franklin was intoxicated at a hockey game and began to direct insults and profanities as some of the other spectators. One Blanchard felt a “thud” on his head, and turned to see Franklin making obscene gestures and otherwise acting in a disordered manner. Blanchard punched Franklin in the head, Franklin then spit on Clemett, and Clemett responded by punching Franklin twice in the head.

Franklin then sued Blanchard and Clemett (in New York they call that “chutzpah”). Blanchard and Clemett raised the defense of Franklin’s drunkenness. By Arizona statute (A.R.S. § 12-711), you can’t collect anything for your injury if you are at least half at fault due to intoxication. The judge instructed the jury on this law and Franklin got zilch.

Franklin told the Arizona Court of Appeals that the jury instructions violated a provision in the Arizona constitution that requires questions of contributory negligence to be decided by a jury. The Court of Appeals found that there was “ample evidence Franklin was under the influence of an intoxicating liquor”, and that the jury properly applied the intoxication defense. So, for now, Franklin still gets zilch, and owes appeal costs to boot.

Franklin v Clemett (Oct. 25, 2016).

So in the Empire State and the Copper State, from the Copper City to the Valley of the Sun, players play their hockey, fans get out of hand, and justice is dispensed. It makes me feel somehow whole and connected.

AZ APP 1 : HOA BOARD CANNOT BAN DISSENTING DIRECTOR FROM EXECUTIVE SESSIONS

 

How very good and pleasant it is, when kindred live together in unity! (Psalm 133:1 [NRSV]).

And how nasty it can get when HOA board members can’t get along!

An HOA board member sided with a former association employee who alleged misconduct by the association’s general manager. The allegations were contained in emails that the board reviewed in executive session. The board voted, in executive session, to disavow the email. The dissenting director then proceeded to read the email aloud during public session, prompting an abrupt adjournment. The association’s attorney recommended that the association exclude the dissenting director from future executive sessions, and the board approved a motion to that effect.

After the dissenting director was reelected, the board offered to permit the dissenting director to attend executive sessions if she would agree to keep the discussions confidential. The dissenting director refused, and contended that the offer required that she admit to wrongdoing.

The dissenting director went to court and asked for a preliminary injunction requiring the board to allow her into executive sessions. The Superior Court declined to issue the preliminary injunction, but today the Arizona Court of Appeals reversed.

The appeals court said that the association did not have the authority to blanket ban a director from executive sessions. By doing so it prevented her from participating in management of the association’s affairs as required by statute. The board argued that the board, minus the dissenting director, was simply a special committee, which is allowed by law. The court did not buy that argument. The court noted there was no evidence that any special committee was formed, and that it would be improper to form a committee for the sole purpose of excluding a single director from the board’s deliberations.

The court also noted that the only procedure provided by the association’s governing documents for removal of a director was a recall election. Arizona statutes would have allowed the association to provide other or additional removal procedures.

The court did say that, in other cases, limited exclusion of a director from executive session might be allowed to address the director’s conflict of interest, or alleged misconduct, or litigation involving the director.

The cost of all this to the association is yet to be determined. The Court of Appeals awarded attorneys’ fees to the dissenting director for the appeal only. Whether fees will be awarded for the entire case is to be decided at a later date.

McNally v Sun Lakes (Oct. 13, 2016).

NYAD 2 : INSURER’S DISCLAIMER INVALID BECAUSE IT FAILED SPECIFY THAT NOTICE OF SUIT BY INJURED PARTY WAS LATE

The insurance company for the snow removal contractor was notified of the occurrence when the plaintiff slipped and fell. The claim was not resolved and the plaintiff sued the contractor. The contractor did not respond to the lawsuit and did not send the lawsuit papers to the insurer.

A few months later, before asking for a default judgment against the contractor, the plaintiff forwarded the suit papers to the insurer, together with medical information and authorizations for medical records. The insurer responded with a disclaimer, citing the contractor’s failure to give timely notice of the suit.

The underlying case went to trial and the plaintiff got a $3 million + judgment against the contractor. When the judgment went unsatisfied, the plaintiff sued the insurer as provided by New York statute.

The court held that the disclaimer was ineffective because it did not specify that the notice of lawsuit given by the injured party, as opposed to the policyholder, was untimely:

Where the required notice of suit is not provided by the insured, but rather by the injured party, the insurer’s notice of disclaimer must address with specificity the grounds for disclaiming coverage applicable to the injured party as well as the insured . . .

The opinion does not discuss the presence or lack of prejudice to the insurer at the time of the late notice.

Pollack v Scottsdale Ins. Co. (Oct. 12, 2016)

AZ APP 2: LESBIAN SPOUSE EQUAL TO MAN AS PRESUMPTIVE PARENT OF CHILD BORN DURING MARRIAGE

A same-sex couple got married in California. They made a written agreement to have a child by artificial insemination and to be equal parents. After pregnancy was achieved, the couple moved to Arizona. After the child was born, the biological mother returned to work while her spouse stayed home to care for him. Two years later, while Obergefell was still pending in the federal courts, the couple split and petitions for dissolution and parenting were filed in Arizona state courts.

After Obergefell was decided, the Superior Court ruled on a preliminary question of parental rights. Recognizing the importance of the questions, the Court of Appeals, Division Two, accepted special action jurisdiction and issued its opinion today.

A.R.S. § 25-814 states that “a man is presumed to be the father of a child” if the child is born during the marriage. The statute goes on the provide that the presumption “shall be rebutted by clear and convincing evidence”.

The three judge panel ruled that under Obergefell, the only way to constitutionally apply the statute is to apply it in a gender-neutral way. The court also found that that the biological mother was estopped from attempting to rebut the presumption of parenthood. The court found that it would not be equitable to entertain any attempt at rebuttal in light of the couple’s written agreement, written commitment to seek second parent adoption (which was not then available in Arizona), wills recognizing the child as beneficiary, and the fact that the spouse stayed home to care for the child.

The court also concluded that “having two parents to love and support” him was in the child’s best interest.

McLaughlin v Jones (October 11, 2016).

AZ APP 1: BAD FAITH DOES NOT REQUIRE AN EVIL MIND

A motorcyclist was injured in a collision with a car that he claimed stopped short in front of him. The driver of the car had no insurance, so the biker put the claim to his own carrier under his uninsured motorist coverage. The policy limit was $100K. The injuries included an open comminuted tib-fib fracture, a clavicle fracture, and a rotator cuff tear. Medical expenses were $115,667.

Claims staff denied the claim, viewing the motorcyclist as 100% at fault. This does not seem surprising in a rear-end collision case, but the biker’s attorney submitted witness statements indicating that the car was driven erratically and that some fault rested with the car’s driver. Claims staff never interviewed the driver of the car, nor did they interview the other witnesses.

The motorcyclist sued the carrier. An arbitrator found that the damages were $950K, that the car driver was 40% at fault, and that the motorcyclist was entitled to the policy limits.

A jury trial of the motorcyclist’s bad faith claim ensued. The jury awarded $500K as compensatory damages on the bad faith claim and an additional $1 million in punitive damages.

The Court of Appeals, Division One, upheld the bad faith claim but vacated the punitive damages award. The court held that bad faith is not enough to trigger punitive damages. The court noted precedents limiting punitive damages to the most egregious cases where there is proof that the defendant engaged in reprehensible conduct with an evil mind.

The court reviewed the practices of the of the motorcyclist’s insurer, which urged its claims staff “manage the gap” by “paying what we owe” through “quality file handling techniques” while emphasizing “customer satisfaction”. There was no clear and convincing evidence that that insurer had the requisite “evil mind”.

Sobieski v AM Standard (9/29/16)

To see what an evil mind is like, read  Nardelli v Metropolitan (5/1/2012).