Duff v. Lee[1]

In October 2017, the Arizona Supreme Court adopted a pilot program in the Pima County Superior Court called the Fast Trial and Alternative Resolution Program (“FASTAR”) by administrative order. This program effectively eliminated compulsory arbitration under A.R.S. section 12-133 by lowering the monetary limit to the threshold of the superior court’s original jurisdiction in the local court’s rules, and plaintiffs with claims valued between that threshold and $50,000 could instead choose between a fast trial or binding alternative dispute resolution without right of appeal or de novo trial (which would remain available to the defendant).  Consistent with the pilot program, the Pima County Superior Court’s presiding judge filed a petition for a local rule change in October, 2017 to conform Pima County’s local rules to the Administrative Order.  The Supreme Court granted the petition.

Plaintiff Claudia Duff filed a complaint in May 2018, and certified the amount in controversy was less than $50,000. Plaintiff’s case was subject to compulsory arbitration rather than FASTAR because the local rule change was not yet effective.  Plaintiff also filed an objection restating this argument and arguing that FASTAR unconstitutionally denied her substantive rights to arbitration, trial de novo, and direct appeal.  The responding judge overruled the objection and determined Plaintiff was not entitled to a section 12-133 arbitration, and that her constitutional rights were not violated because she could opt for a fast trial instead of alternative dispute resolution.  Plaintiff filed a petition for special action and the Court of Appeals accepted jurisdiction.

The Court of Appeals affirmed.  The Court first determined that while A.R.S. section 12-133 provides a substantive right to appeal, it does not provide a substantive right to arbitration and was essentially procedural, as was the lowering of the jurisdictional limit and the implementation of FASTAR.  A rule prevails over a procedural statute in the event of conflict.  The Court held that since A.R.S. section 12-133 mandated an arbitration program, lowering the jurisdiction limit by rule so as to eliminate compulsory arbitration was such a conflict, but the change was procedural and within the Supreme Court’s authority.  The Court also rejected Plaintiff’s argument that FASTAR was not effective until the local rule change was approved despite the administrative order’s earlier effective date and identical lowering of the jurisdictional threshold for arbitration.  The Supreme Court, unlike lower courts, can issue rule changes by administrative order, and thus, the administrative order’s effective date was the operative one.

Gibson v. Theut[2]

A minor who participated in the killing of his father was sued for wrongful death by his paternal grandparents.  The probate commissioner appointed a guardian ad litem and an attorney to the minor in connection with the wrongful death lawsuit.  The paternal grandparents obtained a $50,010,000 default judgment against the co-defendants and tendered a $5,000,000 offer of judgment.  The minor was not informed, pleaded guilty to second degree murder of his father and his paternal grandparents filed and obtained summary judgment and sanctions against the minor for failure to obtain a more favorable judgment than the lapsed offer of judgment.  The minor then asserted negligence claims against the guardian ad litem and his attorney, claiming they failed to properly defend against the wrongful death lawsuit, and against the county and state for failing to ascertain whether the guardian ad litem and his attorney were properly qualified prior to placing them on a list of pre-qualified attorneys.  The superior court granted all of the defendants’ motions to dismiss, holding that the guardian ad litem and attorney had absolute judicial immunity and the vicarious liability and negligence claims against the state were likewise barred.

On appeal, the Court of Appeals reversed in part, affirmed in part, and remanded to the superior court.  Addressing the guardian ad litem’s judicial immunity defense, the Court of Appeals held the guardian ad litem could not assert judicial immunity because he was not performing a court function, but rather acting as an active participant in the litigation.  Turning to the attorney, addressing an issue of first impression, the Court of Appeals reversed the superior court, finding an attorney representing a minor in litigation is not shielded from malpractice.  The Court of Appeals also concluded that the attorney, like the guardian ad litem, was not judicially immune from claims of malpractice because his function was that of an advocate and not a judicial officer.  Finally, addressing the claims against the county and state, the Court of Appeals concluded the minor’s vicarious liability claims were barred as a matter of law because the government had no right to supervise or direct the guardian ad litem or attorney.  The Court of Appeals held the minor may have stated a claim for negligent hiring in alleging that the guardian ad litem and attorney were not sufficiently qualified to handle a complex civil case.

Pitts v. Indus. Comm’n of Arizona[3]

The Arizona Court of Appeals recently held that a worker’s compensation claim for PTSD is timely if the claim is filed within one year of diagnosis and there is no evidence that a diagnosis could have been made earlier.

A police officer engaged in a gunfight in May, 2013.  Afterward, he had problems such as difficulty sleeping, anxiety, and social withdrawal.  The problems worsened over time.  In December of 2015, he visited a primary care doctor to get sleep medication, and the doctor noted “[p]robable PTSD.”  In January 2016, the officer saw a trauma psychologist who diagnosed PTSD. In October 2016, the officer filed a workers’ compensation claim.  An administrative law judge (“ALJ”) held a hearing, considered testimony from the officer and his fiancée, and found the claim untimely under A.R.S. section 23-1061(A).

On special action review, the Court of Appeals set aside the ALJ’s finding for lack of evidence.  Under A.R.S. section 23-1061(A), a workers’ compensation claim must be filed within one year of “when the injury becomes manifest or when the claimant knows or in the exercise of reasonable diligence should know that the claimant has sustained a compensable injury.”  A party asserting untimeliness must raise the issue as an affirmative defense and bears the burden of production.

Here, the parties asserting untimeliness (the employer and the insurance carrier) failed to submit evidence demonstrating the officer’s injury became “manifest” or that he should have known he sustained a “compensable injury” one year before he filed his claim.  PTSD is difficult to diagnose because its symptoms are varied and often delayed.  The only formal diagnosis in this case was made in the same year the claim was filed.  The record does not show that, before that diagnosis, the officer’s symptoms had progressed to the point that a diagnosis would have been possible.  Expert testimony is generally required to make such a showing, and no experts testified here.

[1] Duff v. Lee, Case No. 2 CA0SA 2018-0058, Arizona Court of Appeals, Division 2

[2] Gibson v. Theut, Case No. 1 CA-CV 17-0562, Arizona Court of Appeals, Division 1

[3] Pitts v. Indus. Comm’n of Arizona, Case No. 1 CA-IC 18-0005, Arizona Court of Appeals, Division 1

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