Free Trial Brief - District Court of Arizona - Arizona

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Stephen Paul Forrest (No. 006341) HOLLOWAY ODEGARD FORREST KELLY & KASPAREK, P.C. 3101 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012 Phone: (602) 240-6670 Facsimile: (602) 240-6677 Dennis E. O'Connell BRYAN CAVE LLP 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102 Telephone: (314) 259-2000 Facsimile: (314) 259-2020 Margaret B. LaBianca (No. 019169) BRYAN CAVE LLP (No. 00145700) Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 Telephone: (602) 364-7000 Attorneys for Defendants Correctional Medical Services, Inc., Lorraine Lopez-Moreno, Trina Carrasco, and Jacqueline Cornwell IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Northland Insurance Company, a Minnesota Corporation, Plaintiff, vs. Correctional Medical Services, Inc., a Missouri Corporation, Dr. Antonio DiMaano, Dr. Reynaldo Figueroa, Nurse Lorraine Lopez-Moreno, Nurse Trina Carrasco, Nurse Jacqueline Cornwell, and ABC Insurance Company, Defendants. DEFENDANTS SUPPLEMENTAL TRIAL MEMORANDUM OF LAW The Honorable Frederick J. Martone

No. CV-04-347 PHX FJM

Pursuant to the Court's Rule 16 Scheduling Order of March 14, 2005, Defendants Correctional Medical Services, Inc. ("CMS") Nurse Lorraine LopezCase 2:04-cv-00347-FJM Document 154 Filed 03/02/2006 Page 1 of 9

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Moreno, Nurse Trina Carasco and Nurse Jackie Cornwell submit this Trial Memorandum of Law. I. FACTUAL BACKGROUND AS PERTAINS PEREZ PORTION OF CLAIM On July 9, 2001 the surviving spouse and statutory beneficiaries of Blas Casa Perez filed a wrongful death lawsuit in Maricopa County against the State of Arizona ("State"), County of Maricopa ("Maricopa"), Correctional Services Corporation ("CSC") Correctional Medical Services ("CMS") and various Jane Doe medical providers, prison security officers and prison communicators ("Perez suit"). Plaintiffs alleged negligence on the part of each of the Defendants with respect to their care, custody, control and medical care rendered to Blas Casa Perez while he was incarcerated at Phoenix West Correctional Facility. CSC and the State entered into a contract for operation of the Phoenix West correctional facility. CMS was contracted with CSC to provide medical services at the Phoenix West correctional facility where

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Mr. Perez was incarcerated. The case was removed to Federal District Court, District of Arizona. The case proceeded through the discovery phase. Trial was set before The Honorable Earl Carroll on October 28, 2003. Shortly before trial, the parties entered

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into various settlement negotiations. CMS settled its liability with the Plaintiff on October 7, 2003. It is unknown whether or not Maricopa County settled with the Plaintiff or if it was simply dismissed. On October 14, 2003 the State of Arizona and

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CSC settled the Perez lawsuit against them for $15,000.00. Northland claims that it paid the entire $15,000.00 settlement. On November 13, 2003, nearly a month after CSC settled with the Plaintiffs, Northland demanded indemnity from CMS. At the

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time the State and CSC settled the Perez lawsuit, there were allegations of active negligence against CSC with respect to the care, custody and control of Mr. Perez. II. LEGAL ANALYSIS A. Northland cannot prove breach of contract.

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Northland's Complaint asserts a breach contract claim based on 1) contractual indemnification (Count II) and breach of contact for failure to provide medical services to Mr. Perez (Count V). It is well established in an action based on breach of contract Plaintiff has the burden of proving 1) the existence of the contract, 2) breach

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of contract, and 3) resulting damages. Chartone Inc. v. Bernini, 207 Ariz. 162, 83 P.3d 1103 (App. 2004). As to the assertions of breach of contract, Northland cannot prove the necessary elements. 1. Northland cannot prove breach of contract with respect to contractual indemnification.

The contract between CSC and CMS applicable to Phoenix West contains no contractual indemnification provision. Therefore, CSC cannot prove the existence of a

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contract for indemnification. Assuming Northland is relying on an implied contractual indemnification; such implied contractual indemnification is subject to the defenses of common law claims

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for indemnity. Count VII of Plaintiff's Complaint asserts a claim for common law indemnity. Regardless of whether Northland asserts an implied contractual

indemnification or common law indemnification, Northland claims that Mr. Perez'
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death was caused entirely by the negligence of CMS' nurses failing to provide treatment to Mr. Perez and that the State and CSC are only vicariously liable for the damages to the Plaintiffs in the Perez action. Where a party has not actively participated in the negligence which is the cause

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of an injury, a party has the right to indemnity from the party who actively caused the injury. Busy Bee Buffet v. Ferrel, 82 Ariz. 192, 310 P.2d 817 (1957); Thornton v. Marsico, 5 Ariz. App. 292, 425 P.2d 869 (1967); Employers Mutual Liability Insurance Company of Wisconsin v. Advance Transformer Company, 15 Ariz. App. 1,

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485 P.2d 491 (1971); 7 Ariz. Law Review 59, 69 (1965). However, where the parties seeking indemnity is actively at fault, the indemnity is denied. Busy Bee Buffet, supra. Contracts for indemnity will not be construed to cover the losses to the indemnity caused by the parties own negligence unless the intention is expressed in clear and unequivocal terms. Sequoia Manufacturing Company Inc. v. Halec Construction Company, 117 Ariz. 570 P.2d 782 (App. 1977); Southern Pacific Company v. Gila River Ranch, Inc., 105 Ariz. 107, 460 P.2d 1 (1969); Anaconda Company v. Chapman-Deyer Steel Manufacturing Company, 117 Ariz. 254, 571 P.2d 1050 (App. 1977); Royal Properties Inc. v. Arizona Title Insurance and Trust Company, 13 Ariz. App. 376, 476 P.2d 897 (1970).

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The Plaintiffs in the Perez action alleged, among other things, that the State of Arizona and CSC were negligent in care, custody and control of Mr. Perez in failing to allow him a medical "lay in", in sending him out to work on a work crew, failing to

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allow him to avoid work details and physical labor, and failing to properly train its employees, etc. The Plaintiffs in the Perez action also allege active negligence on the part of CMS in failing to provide medical care when Mr. Perez allegedly appeared at the nurse's station seeking a work excuse. CSC/Northland cannot prove that the sole

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liability arose from the alleged negligence of CMS. Therefore, CSC cannot prove its claim for indemnity. 2. Northland Cannot Prove Breach of Contract for Failure to Provide Medical Care

Northland's Complaint alleges CMS breached its contract in failing to provide medical services to Mr. Perez. Northland further alleges that "CMS failed to provide care services to Mr. Perez in accordance with CSC's procedures and in compliance

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with existing community standards. There is a significant dispute of fact as to whether or not Mr. Perez ever appeared at the nurse's station seeking to be kept in from his work detail. Nurse Polen, the CMS Nurse on duty, as well as all medical records indicate that Mr. Perez never

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came to the nurse's station seeking medical attention prior to being sent out on a work detail. The Plaintiffs in the Perez action produced evidence from another prisoner stating that he saw Mr. Perez at the nurse's station. Nurse Polen testified that had Mr.

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Perez shown up at the nurse's station she would have told him to see his sergeant to request a medical "lay in". CSC had a policy and procedure specifying only those specific reasons that CMS could hold a prisoner from work detail.

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Northland cannot prove that Mr. Perez ever sought medical attention from Nurse Polen. Therefore, they cannot prove that Nurse Polen provided inadequate or negligent medical care. B. Northland's claim for indemnity and contribution against CMS for payments for damages to Mr. Perez must fail because Northland cannot prove the essential elements of either claim As stated above, a party seeking indemnity from another must be without active fault Busy Bee Buffet, supra. CSC had allegations of active negligence pending against it at the time it settled its claim with the Plaintiffs in the Perez action. CSC must prove

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that the total fault lay with CMS and that CSC was not actively at fault in any manner in order to recover under indemnity. Northland's claim for contribution is governed by A.R.S. §12-2501 et seq. A.R.S. §12-2501 states in pertinent part (b) the right of contribution exists only in favor of a tort feasor who has paid more than his correct share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tort feasor is compelled to make contribution beyond his pro rata share of the entire liability . *** (d) A tort feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort feasor who is liable for the injury or wrongful death is not extinguished by the settlement nor in any respect to any amount paid in settlement in excess of what was reasonable.

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CSC entered into a settlement with the Plaintiffs in the Perez action. CSC is not entitled to recover contribution from another tort feasor (CMS) whose liability for the injury or wrongful death is not extinguished by the settlement or in any respect to any

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amount paid in a settlement which is in excess of what is reasonable. Since CMS had already extinguished its liability through settlement with the Plaintiff and since that settlement resulted in a dismissal of CMS with prejudice, CSC could not be held vicariously liable for any of the action of CMS assuming the CSC's liability was

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purely vicarious. Torres v. Kennecott Copper Corporation, 15 Ariz. App. 72, 488 P.2d 477 (App. 1971) provides that where the master's liability is based solely on the knowledge and acts of its servant, a judgment in favor of the servant relieves the master of any liability. A dismissal with prejudice is a judgment on the merits and is

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therefore res judicata as to every issue reasonably framed by the pleadings. In Torres, the Plaintiffs dismissed a claim against the agent and were collaterally estopped from litigating the principles liability based on the negligence. Since CMS had been dismissed with prejudice, no liability could be imposed upon CSC for any alleged negligence of CMS. Therefore, the only claim remaining against CSC would have been for CSC's active negligence. Where there is

independent negligence on the part of the master, the master may be liable apart from his derivative liability for his servant's wrongful acts, Torres v. Kennecott Copper Corporation, supra, Krackel v. Allstate Insurance Company, 208 Ariz. 252, 92 P.3d 882 (App. 2004).

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Since CSC did not extinguish any liability on the part of CMS, it is precluded from seeking contribution from CMS. C. Northland cannot show any damages from any alleged breach of contract for indemnity, common law indemnity or contribution The damages recoverable in a contract action are those proximately caused by the alleged breach or within the contemplation of the parties. Thunderbird

Metallurgical Inc. v. Arizona Testing Laboratories, 5 Ariz. App. 48, 423 P.2d 124 (App. 1967). Northland cannot show that CMS failure to provide medical care to Mr. Perez proximately caused any damage to CSC. CSC had a separate and independent duty to provide appropriate care, custody and control of Mr. Perez. CMS' alleged failure to provide medical care to Mr. Perez did not affect CSC independent duty with respect to Mr. Perez. Therefore, Northland can show no damages were caused by any alleged failure of CMS to provide medical care. DATED this 2nd day of March, 2006. HOLLOWAY ODEGARD FORREST KELLY & KASPAREK, P.C.

By:___/s/_____________________________ Stephen Paul Forrest 3101 N. Central Avenue, Suite 1200 Phoenix, Arizona 85012 Attorneys for Defendant Correctional Medical Services, Inc., Lorraine LopezMoreno, Trina Carrasco, and Jacqueline Cornwell . . .
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ORIGINAL of the foregoing electronically filed this 2nd day of March, 2006, with: The Clerk of Court United States District Court 401 W. Washington Phoenix, AZ 85003 COPY of the foregoing hand-delivered this 2nd day of March 2006, to: The Honorable Frederick J. Martone United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street Phoenix, Arizona 85003 COPY of the foregoing mailed This 2nd day of March 2006, to: Karl M. Tilleman, Esq. Bruce Converse, Esq. Steptoe & Johnson, L.L.P. Collier Center 201 East Washington Street, Ste. 1600 Phoenix, Arizona 85004-2382 Attorneys for Plaintiff Northland

By

/s/ Tammy Carbajal

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