Results

Righi Fitch prevailed on an appeal to Division One of the Arizona Court of Appeals on a motion for summary judgment on behalf of a church for claims of negligence and negligence per se for failing to report an incident of sexual abuse. Plaintiff alleged that her stepfather sexually abused her while a teenager. The complaint alleged that Plaintiff’s mother had informed the church pastor and three members of the church leadership of sexual abuse and all four failed to report the sexual abuse pursuant to Arizona’s mandatory reporting statute A.R.S. § 13-3620.

During discovery, Plaintiff admitted that nobody from the church knew of the abuse and that she never discussed the abuse with her mother or with the church leaders. Plaintiff cited one occasion where the church could have been alerted of the abuse by her mother. Plaintiff admitted that she was not present during the discussion between her mother and the church elders. Plaintiff’s mother testified that she was not aware of the sexual abuse and as a result could not have discussed the abuse with any of the church leaders. She testified that she had only sought a recommendation for a family counselor.

The superior court concluded that there was insufficient evidence to support the Plaintiff’s claim that the church had notice of the abuse and, therefore, had no duty to report under A.R.S. § 13-3620. The Court of Appeals agreed with the superior court, finding that Plaintiff was solely relying on speculation that her mother told the church leaders about the abuse. The Court of Appeals held that speculation is insufficient to defeat summary judgment, and affirmed the trial court’s grant of summary judgment.

Rick Righi and Beth Fitch prevail on motion for summary judgment on behalf of their wholesale insurance broker client in a New Mexico complex professional malpractice case where plaintiff was seeking $150,000,000 in damages. Plaintiff suffered catastrophic injuries in a shooting at an Elks Lodge in New Mexico. He asserted a negligence action against the Elks Lodge which in turn tendered the claim to its insurance carrier. The insurance carrier filed a declaratory relief action requesting the NM federal court to find that coverage was not afforded to the Elks Lodge based on the assault and battery and firearm exclusion. Following the federal court’s granting the declaratory relief in the insurers favor, the plaintiff and the Lodge entered into an agreement whereby the Lodge stipulated to a judgment and then assigned its rights against the retail insurance broker, the wholesale insurance broker, and the insurer.

Plaintiff filed suit against the retail broker, wholesale insurance broker, and insurer. Plaintiff claimed that he was stepping into the shoes of the Lodge, that the Lodge did not have notice of the exclusions before the shooting, and that the whole insurance carrier had failed to properly procure insurance. Plaintiff asserted claims for negligent misrepresentation, Violation of New Mexico’s Unfair Practices Act, breach of contract and breach of fiduciary duty. Plaintiff’s counsel made the tactical concession that the retail broker was the Lodge’s agent in order to bolster his claim against the retail broker. This concession was critical to prevailing on the motion for summary judgment that resulted in all claims being dismissed against RFLG client. The motion for summary judgment requested the court to find as a matter of law that (1) the Lodge had notice of the exclusions because RFLG client delivered the policy to the retail broker before the shooting; (2) the insurance policy exclusions are enforceable and exclude coverage for the shooting; and (3) because a finding of coverage is a condition precedent to the recovery under all the claims asserted, all claims should be dismissed with prejudice.”

Rick Righi and Beth Fitch prevail on motion for summary judgment on behalf of their wholesale insurance broker client in a New Mexico complex professional malpractice case where plaintiff was seeking $150,000,000 in damages. Plaintiff suffered catastrophic injuries in a shooting at an Elks Lodge in New Mexico. He asserted a negligence action against the Elks Lodge which in turn tendered the claim to its insurance carrier. The insurance carrier filed a declaratory relief action requesting the NM federal court to find that coverage was not afforded to the Elks Lodge based on the assault and battery and firearm exclusion. Following the federal court’s granting the declaratory relief in the insurers favor, the plaintiff and the Lodge entered into an agreement whereby the Lodge stipulated to a judgment and then assigned its rights against the retail insurance broker, the wholesale insurance broker, and the insurer.

Plaintiff filed suit against the retail broker, wholesale insurance broker, and insurer. Plaintiff claimed that he was stepping into the shoes of the Lodge, that the Lodge did not have notice of the exclusions before the shooting, and that the whole insurance carrier had failed to properly procure insurance. Plaintiff asserted claims for negligent misrepresentation, Violation of New Mexico’s Unfair Practices Act, breach of contract and breach of fiduciary duty. Plaintiff’s counsel made the tactical concession that the retail broker was the Lodge’s agent in order to bolster his claim against the retail broker. This concession was critical to prevailing on the motion for summary judgment that resulted in all claims being dismissed against RFLG client. The motion for summary judgment requested the court to find as a matter of law that (1) the Lodge had notice of the exclusions because RFLG client delivered the policy to the retail broker before the shooting; (2) the insurance policy exclusions are enforceable and exclude coverage for the shooting; and (3) because a finding of coverage is a condition precedent to the recovery under all the claims asserted, all claims should be dismissed with prejudice.

Chris Begeman and Beth Fitch prevailed on motion for summary judgment in a New Mexico electrocution case. RFLG’s client rented a compressor used for its gas lift operations from Plaintiff’s employer. The rental contract required Plaintiff’s employer to maintain the compressor. When the compressor malfunctioned, Plaintiff’s employer sent the Plaintiff to the job site to troubleshoot and make repairs. Plaintiff received an electrical shock when he opened the electrical panel and began troubleshooting. Plaintiff alleges that RFLG’s client failed to make the breaker and its electrical components safe and failed to properly warn of the dangers associated with the panel. Discovery revealed that the plaintiff was not an authorized employee to perform the electrical work, and he did not have the proper training or PPE. Chris and Beth file the motion for summary judgment arguing that expert testimony was required to establish a prima facie case of negligence against RFLG client. The court agreed and held that an electrocution or the presence of an electrical arc is not sufficient to establish negligence and that expert testimony from an electrician was required because work performed by an electrician is not within the common understanding of a jury.

Righi Fitch prevailed on a motion for summary judgment on behalf of a church against claims of negligence and negligence per se for failing to report an incident of sexual abuse. Plaintiff alleged that her stepfather sexually abused her between the ages of 13 and 17. During these years she was a member and her stepfather was a church leader. The lawsuit alleged that her mother had informed the church pastor and three members of the church leadership of sexual abuse and all four failed to report the sexual abuse pursuant to Arizona’s mandatory reporting statute A.R.S. § 13-3620.

During discovery, Plaintiff admitted the sexual abuse did not take place at the church’s premises or during any church-sponsored events. While she claims that her mother told the church leadership about her stepfather's abuse, Plaintiff admitted that she was not present during any meetings with church elders. Plaintiff’s mother admitted under cross-examination that she did not witness any meeting with the church elders regarding sexual abuse. She testified that she was seeking a recommendation for a counsel but did not report any incidents between her husband and daughter with the pastor.

The court concluded that there was insufficient evidence to support the plaintiff’s claim that the church had notice of the abuse and, therefore, had no duty to report under ARX 13-3620. The court agreed with Beth Fitch’s argument that because all claims were predicated on the failure to report, summary judgment should be granted on all claims and the case dismissed.

Beth Fitch and Partner Benjamin Hodgson prevail at the Maricopa Arizona County Superior Court and then at the Arizona Court of Appeals on behalf of their clients, three commercial litigators at a national law firm. The lawyers were defending a company in complex litigation between a noteholder and the company. After two years of highly contentious litigations, the case was settled. Following the settlement, the Noteholder file a motion for sanctions against our clients. Plaintiffs were seeking sanctions against our clients under Arizona Rules of Civil Procedure, Rule 11 and A.R.S. §12-349. Plaintiffs filed their sanction motion 18 months after a sanctions motion filed against the company. The basis for Plaintiffs’ Motion for Sanctions against our clients pursuant to Rule 11 and A.R.S. § 12-349 was the same as the basis for sanctions they sought against the company 18 months earlier. The court trial denied the Motion for Sanctions and addressed the merits of each specific sanction allegation. The trial court specifically found no violations of Rule 11 or A.R.S. § 12-349 concerning allegations of false misrepresentations to the court, obstructive litigation practice, and improper disclosures.

Plaintiffs appealed the trial court’s denial of sanctions to Division One of the Arizona Court of Appeals (1-CA-CV- 22-0332). The Arizona Court of Appeals affirmed the trial courts ruling 27, 30. The Court of Appeals held that the motion was filed so late in the proceedings as to defeat the interest of judicial economy and efficiency that Rule 11 and A.R.S. § 12-349 were meant to promote. 30. Plaintiffs' delay in bringing their sanctions motion was excessive on its face. 26. The Court of Appeals also made clear by Plaintiffs waiting 18 months to file their sanctions motion, Plaintiffs forced the superior court to address the same issues twice. In doing so, the Plaintiffs wasted judicial resources and unnecessarily expanded the proceedings in contravention of the central purpose of Rule 11 and A.R.S. § 12-349. 27. The Court also noted that courts disapprove a party’s use of Rule 11 or the ethical rules as combative tools and will not tolerate attempts to use them in ways that are contrary to the very spirit of the rules. Id.

Partners Beth Fitch and Chris Begeman obtained a defense award for their clients in a multi-home construction defect arbitration in New Mexico. Beth and Chris represented the target subcontractors being sued by the developer and general contractor for allegedly performing defective work. Homeowners of a high end residential development asserted claims against a regional homebuilder for alleged construction defects. The homeowners were claiming personal injuries from mold exposure and myriad of construction defects and seeking millions in damages. The homebuilder in turn asserted claims against its subcontractors for contractual indemnity. All of these claims were litigated in a two week arbitration.

During the two week arbitration, Beth and Chris successfully cross examined experts for both the homeowners and the developer/general contractor to obtain critical admissions that the work performed by the subcontractors complied with the plans, contract documents, and manufacturers specifications. With these admissions, Beth and Chris successfully argued in closing that the developer and general contractor failed to establish contractual indemnity for any required repairs that arose out of the subcontractors’ scope of work. The arbitrator agreed with the arguments and found in favor of Beth and Chris’ clients.

Linda Tivorsak Bird secured a defense verdict in an unpaid wages/ breach of contract case. Plaintiff alleged that he had entered into a contract of employment in which he would provide services in exchange for weekly wages. Plaintiff alleged that he provided services to the organization for ten months and the organization failed to pay him. He claimed this violated Arizona Wage Law, A.R.S. §23-350 et. seq., and he was entitled to recover treble damages (three times the wages) pursuant to A.R.S. §23-355. Linda successfully argued that a valid contract did not exist and that the company did not owe any wages to Plaintiff.