The law favors resolving cases on their merits. Sometimes defendants fail to timely answer a lawsuit. The insured may provide notice to the insurance carrier, but for some reason, there is delay and an answer is not timely filed. Rule 60(b) allows a defendant to later move to set aside...
In a recent Arizona Court of Appeals case involving the use of a canine to subdue a suspect, the Court discussed whether the intentional release of the canine was an intentional tort (battery) or was a consequence of a negligent act, i.e., a misperception of fact. The distinction was important...
Recognizing the earth is not flat, New York’s premises liability law holds: A property owner may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance as a consequence of which a pedestrian might merely stumble, stub his...
The irreparable injury rule is based on a body of cases where courts have denied injunctive relief when the complainant has an adequate legal remedy, i.e., monetary damages. In 1990, Douglas Laycock wrote a law review article entitled The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687 (1990)....
I have reviewed several of Judge Gorsuch’s opinions from the 10th Circuit Court of Appeals involving claims against public officials and governmental entities. The Supreme Court’s docket always includes several §1983 cases. Cases this term include: District of Columbia v. Wesby (Fourth Amendment claims against officers for citing partygoers for trespass); Manuel v. City...
The standard CGL policy includes a “your work” exclusion stating that the insurance does not apply to property damage to “your work” arising out of or in any part of it and included in the products completed operations hazard. This exclusion prevents a general liability policy from becoming a performance...
Qualified immunity is often the strongest defense in a civil rights lawsuit. In a case where an officer shot at a fleeing vehicle to try to disable it, but missed and hit the driver instead, the Supreme Court in Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) reiterated: The doctrine of qualified...
Recently, I was alerted to the continuing problem of plaintiffs’ attorneys who interfere with independent medical examinations (IMEs). When the mental or physical condition of a party is in controversy, the court may order that party to submit to a physical or mental examination by a physician or psychologist. Plaintiffs’...
The Arizona Supreme Court recognized fault can be allocated to a healthcare provider who commits malpractice while treating an accident victim in Cramer v. Mungia, decided July 18, 2016. Under common law, the original tortfeasor doctrine recognized that an original tortfeasor who causes injury will be held liable for any additional...
Construction defect litigation and insurance coverage is a quagmire. There are longstanding disputes over policy language and exclusions, public policy concerns, and in every individual case, significant questions regarding causation and damages. For the complete article, contact Humphrey & Petersen, P.C. at rdesk@humphreyandpetersen.com, or call (520) 795-1900.