Free Memorandum - District Court of Arizona - Arizona

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Stephen G. Montoya
MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Monica Ortega-Guerin, plaintiff, vs. No. CV 04-0289-PHX-MHM

Plainttiff's Memorandum regarding the City of Phoenix, Frank Favela, and Frank City's duty to Indemnify Defendants Peralta and Favela Peralta, defendants. Counsel for the Defendants asserted today on the record and in open court that the individual defendants were not entitled to be indemnified by the City for any liability for punitive damages incurred in this action. This assertion­which no doubt shocked and frightened the individual defendants­is refuted by the Municipal Code of the City of Phoenix, which expressly entitles all City employees to defense and indemnification for all conduct performed within the course and scope of their employment with the City and does not distinguish between liability for compensatory and punitive damages. Chapter 42 of the Phoenix City Code establishes the City's duty to indemnify its employees for liability for awards of money damages (punitive or otherwise) incurred by its employees for actions performed within the course and scope of their employment with the City of Phoenix.

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Pursuant to Section 42-1(C) of the Code, a "covered individual" includes (among other things) "any employee of the City . . . carried on the City payroll and subject to City Personnel Rules, whether full-time, part-time, permanent or temporary . . . ." Section 42-10 of the Code, entitled "Representation and indemnification of the City, City employees, covered corporations, covered City entities and other persons, corporations or entities," provides (in pertinent part) that: A. The City shall provide legal defense and indemnification for any covered individual subject to a civil litigation claim in which a colorable claim is made that the civil liability of such individual arises from acts or omissions of such individual acting in the course and scope of employment or duties performed on behalf of the City. The City shall not provide defense in any litigation for or on behalf of any such individual against whom a claim is directed where the actual activities of such individual giving rise to the claim were outside the course and scope of employment of such an individual as an employee, or beyond the duties of such an individual as an officer of the City. .... If at any time during the course of such litigation, after the defense of such litigation has been undertaken by the City, it appears to the satisfaction of the City Attorney that the acts, omissions or activities of any of the parties to whom the City has been providing a defense, were in fact outside the course and scope of the employment, duties or responsibilities of such individuals as covered individuals, or beyond the authority of covered corporations, covered City entities or other defended entities, or their respective officers, directors or corporate employees alleged to have been acting for or on behalf of the City; and that by reason thereof a conflict of interest exists between the City and any of said persons or entities for whom a defense has been previously provided; the City Attorney shall take such appropriate steps as are consistent with the provisions of law and legal ethics to withdraw from the representation of such individuals or entities and to advise them of the necessity that they obtain independent legal counsel to continue their representation in such litigation at their own expense. If during the course of representing one or more defendants in the course of litigation, the City Attorney determines that a conflict may exist between defendants, even though all defendants have or colorably may be claimed to have incurred liability in the course and scope of their employment -2-

D.

E.

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as covered employees or their positions as officers or directors of legal entities acting on behalf of the City of Phoenix, or as covered entities or other entities acting on behalf of the City, the City Attorney shall resolve such conflict by retaining appropriate other counsel to represent conflicting defendants as may be consistent with the provisions of legal ethics and the rules of procedure of the courts of the State of Arizona. In this case, the City of Phoenix and both of the individual defendants are represented by the same attorney, who was retained by the City of Phoenix and is compensated exclusively by the City of Phoenix. Pursuant to Section 42.10(A) of the Phoenix City Code, this singular fact conclusively establishes that the conduct of the individual defendants giving rise to this action was within the "course and scope" their employment with the City of Phoenix and they are consequently entitled to indemnification by the City of Phoenix for any liability arising from this action. RESPECTFULLY SUBMITTED this 8th day of December 2005. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on December 8, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David F. Gaona Gaona Law Firm 3101 North Central Avenue, Suite 720 Phoenix, Arizona 85012 Attorney for Defendants I further certify that on December 8, 2005, the attached document was hand-delivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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