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"Strict" Products Liability Dead in Arizona?
Abuse and neglect is still rampant in nursing homes
Architect Can Be Liable for Economic Loss Caused by Negligence
Arizona Court of Appeals Holds Crop Dusting is Still an Inherently Dangerous Activity
Arizona Court of Appeals Rules Excessive Punitive Damages Unconstitutional
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Arizona Preliminary Med Mal Expert Affidavit Requirement Constitutional
Arizona Statute Update
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Arizona Supreme Court Brings Reason to Notice of Claim Requirements
Arizona does not recognize a first or third party claim for spoilation of evidence
Asserting 5th Amendment in Civil Action Creates Inference of Guilt
Asserting 5th Amendment in Civil Action Creates Inference of Guilt
Attorney Can Be Liable for Malicious Prosecution & Aiding and Abetting
Attorney Malpractice Claim Requires Proving Case Within a Case
Attorneys' Fees Properly Awarded After Voluntary Dismissal
Bar Owner's Responsibility for Drunk Drivers
Bizzare and Dangerous Side Effects of Anti-Nausea Drug
Burns and Burn Injuries
Bush Administration Policies Show Disdain for Consumer Safety - Pre-Emption
Business Interruption Insurance Where Expansion of Business Collapses
Car Dealer's Insurance Policy Doesn't Cover "Customers"
Causation Expert Can Opine on Standard of Care says New Court of Appeals Case
Charter School not State Actor in Employment Matters
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Children face greater harm from medical mistakes
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Confession to Clergyman Priviliged Even if Wife Present
Constitutional Comparisons with Japan
Consumer Safety -- Toys
Court Interpreter Qualifications For Trial Judge To Determine
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Damron/Morris Agreements May Apply to Non-Insurance Contracts to Indemnify
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Employer's Liability for Acts of Employee
Employer's Liability for Acts of Employee--Part II Scope of Employment
Employer's Responsibility for Acts of Employee Part II
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Evidence of Signs Posted After Accident Inadmissible
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Failure to Attend Arbitration Grounds for Dismissing Appeal
Failure to Warn and Federal Preemption
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IME Doctor Can be Liable for Negligent Diagnosis
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Insurance Bad Faith
Interest on Judgment Against State
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LED Lights Safer for Bike Riders and Pedestrians
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Medical Malpractice
Medical Malpractice Statute Requiring Affidavit Constitutional
Medical Negligence--Informed Consent
Medical Negligence--The Standard of Care
Negligence--failure to use reasonable care
New 9th Circuit Case--Tribal Immunity bars dram shop & negligence claims
New Arizona Case - Expert Affidavit
New Arizona Case - Expert Witness Qualification
New Arizona Case - Governmental Immunity
New Arizona Case - Insurance Reservation of Rights
New Arizona Case - Notice of Claim
New Arizona Case - Notice of Claim
New Arizona Case - Pleadings
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New Arizona Case - Taxable Costs
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Our Results
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Pool Filters Can Explode and Maim and Kill
Private Arbitration Rules Strictly Enforced
Products Liability
Qualified Immunity from Defamation Claim when Reporting Medical Misconduct
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School Board Must be Served with Notice of Claim
Scope of Discovery of Expert Bias
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State Tort Claims Not Preempted by Manufacturer's Voluntary Product Replacement
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State of Arizona can Assert Lien Rights for Medical Expenses Paid State Employee against Tort Recovery
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Attorney Malpractice Claim Requires Proving Case Within a Case

Torts—Attorney Malpractice—Equitable Estoppel

 

Beynon v. Trezza, 554 Ariz. Adv. Rep. 15 (App. Div. II, April 13, 2009)(        Justice Plelander)

 

ATTY MALPRACTICE DEFENDANT WINS EVEN WHERE ATTY MISSES SOL WHERE PLAINTIFF WOULD NOT HAVE PREVAILED IN UNDERLYING CASE

 

It is undisputed that defendant attorney failed to bring suit on behalf of his clients the plaintiffs in this action within the one year statute of limitations (ARS 12-821) for actions against the state.  Nonetheless the trial court dismissed plaintiffs’ claim on summary judgment because of their failure to file an appropriate notice of claim within 180 days and before hiring the defendant. The Court of Appeals affirms.

 

After being injured in an automobile accident allegedly caused by a state employee the plaintiff Daniel Boyan completed a form notice of claim with the assistance of an adjuster for the state risk management and later another notice of claim with the assistance of his chiropractor.  Daniel’s wife was not named on either notice and the only facts given were the dollar amounts of $10,000 and $50,000 respectively and “[the state employee] did a u[-]turn in front of me.  She was talking on her phone & looking at maps[, w]hich caused me to collide [sic] with her.” Ten months later defendant attorney was hired who failed to file suit within the one year statute.

 

The Court of Appeals first pointed out that a plaintiff in a legal malpractice case must prove the “case within a case,” i.e., he would have prevailed in the underlying case against the state but for the attorney’s negligence.  If as a matter of law the plaintiff could not have prevailed, summary judgment for the defendant in the malpractice action is appropriate.

 

Here, because plaintiffs’ notices of claim “provid[ed] absolutely no facts supporting the amount demanded” and was not properly served on the attorney general it was fatally deficient and summary judgment for the defendant was appropriate.

 

Finally, the plaintiffs argued the state was equitably stopped to deny the claim on the basis of the deficient notice of claim because the adjuster assisted in the preparation of the first notice of claim and later took the position in writing that the only reason plaintiffs’ claims were being denied was the failure to sue within the one year statute.  Despite this the court found that “the government ordinarily is neither estopped by the casual acts, advice, or instructions issued by nonsupervisory employees nor stopped ‘from correcting a mistake of law.” Here the court found the adjuster to be just such a nonsupervisory employee and found that this employee never “formally” took actions to support an estoppel claim in any event.

If you believe you or a loved one has been harmed by the failure of an attorney to act timely on your behalf, give us a call we may be able to help.