by Terri Jo Neff | Jul 8, 2021 | News
By Terri Jo Neff |
A jury can decide whether a Tucson business is vicariously liable for the 2018 death of a woman killed by one of the company’s employees, according to a recent decision by the Arizona Court of Appeals.
In May, the court unanimously overturned a 2020 decision by a Pima County judge who had ruled Casas Custom Floor Care was not responsible for the actions of its employee, Martin Montano, who caused the death of Samantha Jo Cravens after running a red light on his way to the company’s office.
According to court records, Montano left a job site at the end of his shift and headed to the Casas Custom office to fill out and correct his timesheet. During the drive Montano collided with a car driven by Cravens, 29, who suffered fatal injuries.
Michael Corey Cravens, Samantha’s husband, filed a wrongful death lawsuit against Montano and his employer in April 2019. Court records show Montano settled with Cravens in late 2019 but Casas Custom contended the company was not liable for its employee’s conduct.
In January 2020, the Humphrey & Petersen Law Firm filed a motion for summary judgment on behalf of Casas Custom to have the employer dismissed from Cravens’ lawsuit. The company argued Montano “was not acting within the course and scope of employment” and that there was an absence of an employer’s “right of control” over the employee.
The motion for summary judgment was granted in May 2020 by Judge Brenden Griffin of the Pima County Superior Court and Casas Custom was dismissed from the lawsuit.
Cravens, who is represented by the law office of Mesch, Clark, and Rothschild, appealed the grant of summary judgment. On May 25, Vice Chief Judge Christopher Staring of the Arizona Court of Appeals authored a unanimous decision reversing Griffin’s dismissal order.
Staring wrote that an employer can be found vicariously liable for an employee’s work-related conduct if the employee was “acting within the scope of their employment.” Scope of employment is defined by the court as an employee performing work “assigned by the employer or engaging in a course of conduct subject to the employer’s control.”
The Court of Appeals found there is a material factual dispute in Cravens’ lawsuit about whether Montano’s conduct was outside the scope of his employment. That makes Casas Custom’s liability a question for a jury, not a judge, Staring wrote.
Casas Custom Floor Care did not petition the Arizona Supreme Court for review of the appellate decision. The Pima County Superior Court will be mandated in a few weeks to conduct further proceedings in accordance to the decision.
Public records show Cravens’ case has been now reassigned to Judge D. Douglas Metcalf. In April, Metcalf was asked by Cincinnati Indemnity Company to grant a motion of summary judgment for dismissal of another part of Cravens’ lawsuit. One of the issues is whether a “Morris Agreement” entered into by Montano to settle the portion of the case against him is enforceable.
According to the Arizona Supreme Court, an insurer like Cincinnati Indemnity can accept defense of a claim while still reserving its right to contest coverage. The insured also has the option to independently enter into a settlement, provided the insured continues to cooperate with the insurer during the litigation.
The settlement, known as a Morris Agreement, “must be made fairly, with notice to the insurer, and without fraud or collusion on the insurer” in order to be valid. An insurer is not bound to a Morris Agreement unless it is reasonable and prudent, something Metcalf is expected to rule on this summer.
In the meantime, the judge will hear arguments on July 23 concerning other pending motions involving Cincinnati Indemnity and Cravens.
Montano, 32, was criminally charged in November 2018 with failure to stop for a red light and causing an accident which resulted in death or serious injury. The case was prosecuted as a misdemeanor and ended in a plea by Montano in 2019 of guilty or responsible.
Details as to what sentence was imposed on Montano were not available from the Pima Justice Court as of press time but the longest jail sentence allowed for a misdemeanor is one year.
by B. Hamilton | Jul 8, 2021 | News
By B. Hamilton |
Arizona, as part of a coalition of states is suing Google in an antitrust case challenging the company’s control over its Android app store.
Google is facing a series of major antitrust cases, including a suit that the Justice Department and 14 states filed in October, focused on Google’s efforts to dominate the mobile search market; one from 38 states and territories filed in December, also focused on search; and a third suit by 15 states and territories related to Google’s power over the advertising technology.
As Big Tech continues to flex its monopolistic powers regulators have attempted to rein in the search giant in Arizona. State Rep. Regina Cobb had hoped to help consumers save money and innovators compete in the tech market this past legislative session. Rep. Biasiucci had thrown his support behind Cobb’s bill, which would have allowed app developers to avoid what the two lawmakers call “devastating” fees imposed by big tech monopolies.
That bill died an untimely death.
The heart of the lawsuit centers on Google’s exclusionary conduct which substantially shuts out competing app distribution channels. Google requires that app developers, that offer their apps through the Google Play Store, use Google Billing as a middleman. This arrangement forces app consumers to pay Google’s commission— up to 30 percent— on in-app purchases of digital content. This commission is much higher than what consumers would pay if they could choose from one of Google‘s competitors instead. The lawsuit alleges that Google works to discourage or prevent competition, violating federal and state antitrust laws.
When Google launched its Android OS, it originally promised to keep it an “open source” platform. The lawsuit alleges Google did not keep that promise. By promising to keep Android open, Google successfully enticed manufacturers (such as Samsung) and operators (such as Verizon) to adopt Android, and more importantly, to forgo competing with Google’s Play Store at that time. Google then shut down the Android ecosystem and relevant Android App Distribution Market as soon as it was feasible to do so, effectively trapping consumers and app developers in that ecosystem and removing any effective competition by (among other things) requiring manufacturers and operators to enter into various contractual and other restraints.
Arizona also alleges that Google engaged in conduct in violation of consumer protection laws by falsely representing that it would keep Android “open” and by issuing misleading warnings to consumers– that directly downloading an app would lead to disastrous consequences for the user and their device which also enhanced and protected Google’s monopoly position.
The complaint was filed in the U.S. District Court for the Northern District of California.
by Terri Jo Neff | Jul 7, 2021 | Economy, Education, News
By Terri Jo Neff |
Chairman Larry E. Penley of the Arizona Board of Regents has high praise for the investment made by Gov. Doug Ducey and the State Legislature in the Fiscal Year 2022 budget passed last week which recognizes the role the state’s three public universities play in Arizona’s economic wellness.
“This spending plan invests in Arizona’s competitiveness by supporting public university instruction, research and development, especially in the key growth sectors of health care, the sciences, biomedicine and engineering,” Penley recently said. “State funding also will assist ongoing efforts by Arizona State University, Northern Arizona University and the University of Arizona to meet the needs of a growing number of Arizona students.”
The 12 members of the Arizona Board of Regents (ABOR) serve as the governing board for Arizona’s three public universities – Arizona State University, Northern Arizona University, and the University of Arizona. The board is tasked with providing policy guidance for nearly every aspect of the university system, including capital development plans, strategic plans, and legal affairs.
The regents also set policy related to financial and human resource programs; academic and student affairs; public outreach; and the all-important student tuition, fees, and financial aid programs.
The main Higher Education budget bill, SB1825, involved more than just funding appropriations. Among other things, it requires the UA cooperative extension office to establish an Agricultural Workforce Development Program to provide incentives to food-producing agricultural organizations to hire apprentices.
“As Arizona emerges from the COVID-19 pandemic, focus shifts toward ensuring our state is ready for the challenges of a New Economy increasingly built on the innovation, adaptability and skills of our workforce,” Penley said.
Another SB1825 provision allows the three state universities to offer pro bono assistance to claimants in the general stream adjudication of water rights if the claimants are small landowners and not represented by counsel.
The legislation also calls for ABOR to administer and implement a Promise Program to provide financial assistance to students in a baccalaureate degree who qualify for in-state student status, graduated from an Arizona high school with a qualifying grade point average, and meet eligibility criteria for the Federal Pell Grant.
“With the state’s initial investment in the board’s Arizona Promise Program scholarship, qualifying low-income Arizona students will have their tuition and fees paid in full to attend the Arizona public university of their choice,” Penley said. “The value of a university degree has never been higher, and this program represents our promise that cost won’t be a barrier to any deserving Arizona student.”
ABOR will take on yet another new responsibility thanks to the budget bill. On Jan. 1, 2022, the statutory duties of the Commission for Postsecondary Education and the e Arizona Teacher Student Loan Program will be transferred to ABOR.
State law designates the governor and the superintendent of public instruction -currently Kathy Hoffman- as ex-officio ABOR members along with two student regents who serve two-year terms. The other regents serve eight-year terms after being appointed by a governor and confirmed by a majority of the 30-member state senate.
In addition to Penley, the current regents are Fred DuVal, Kathryn Hackett King, Lyndel Manson, Cecilia Mata, Bill Ridenour, Ron Shoopman, and Karrin Taylor Robson. ASU student Nikhil Dave is serving as a student regent until 2022; the second student regent seat is currently vacant, according to the ABOR website.
Next up for the ABOR is a Sept. 9 meeting of the Finance, Capital and Resources Committee as well as the Academic Affairs and Educational Attainment Committee.
by AZ Free News | Jul 7, 2021 | News
Foodservice, retail, health-care and logistics jobs are now coming with an extra perk—signing bonuses, some as much as $1,000, the Wall Street Journal reports. Once the domain of professional athletes or some white-collar professions, hiring bonuses have exploded across all sectors this summer.
So far, 10 states, including Michigan, Connecticut, Arizona, Colorado and Kentucky, have gotten into the work bonus game to move people off unemployment.
Last month, close to 20% of all jobs listed on ZipRecruiter had a signing bonus, up from 2% of all jobs advertised on the online employment database in March. Such diverse industries as convenience stores, hotels, restaurants, warehouses, trucking, health-care and retail have jumped on the signing bonus bandwagon, with bonuses starting at $500 and ballooning up from there..
Now, $1,000 has fast become the benchmark for hourly worker recruitment.
Employers like cash signing bonuses because they don’t impact the hourly wage long term, according to Brad Hershbein, senior economist at the W.E. Upjohn Institute for Employment Research. “Businesses are jockeying for workers,” he said. “They are basically gambling they can hire workers for a one-time payment. They are going to try that first, and if it’s not enough, then they will have to do persistent wage increases.”
by Terri Jo Neff | Jul 6, 2021 | Education, News
By Terri Jo Neff |
The Fiscal Year 2022 K-12 Education bill signed last week by Gov. Doug Ducey contains several provisions which could vastly change school transportation options for students during the 2021-2022 school year, especially those who live in rural areas or outside a district’s boundaries.
House Bill 2898 contains In Lieu of Transportation Grants (ILT Grants) which among other things allows a school district to use a portion of the district’s transportation funding to provide ILT Grants to parents of students who attend the school district.
The grants, which require a plan submission to the Arizona Department of Education, also permit charter schools to use a portion of its Charter Additional Assistance funding for the same purpose.
Among the offerings which can be included in an ILT Grant plan is financial support for an individual parent or a neighborhood carpool which transports students to school. The legislation also includes a provision protecting a school district which seeks to offer ILT Grants for its students from having its transportation funding allocations reduced.
Charter schools which use CAA funding for transportation awards to parents must report such expenditures to the Department of Education.
HB2898 also establishes a Public School Transportation Modernization Grants Program (PSTMG Program) through the Arizona Department of Administration. The program, which would end in 2025, would select a third-party administrator to distribute grants to school districts, charter schools, or other eligible entities based on demand and the most innovative solutions.
The administrator, who would be permitted to retain up to five percent of the appropriations each year, must award at least 25 percent of the grants to rural and remote proposals if a sufficient number of qualified remote and rural proposals are submitted.
In another effort to ensure parents understand transportation options, HB2898 included language which now requires a school district to include transportation resource information in its open enrollment policies.
And for non-resident students with disabilities, a district will be required to provide transportation of no more than 30 miles (up from 20 miles) if the students’ individual education program specifies that transportation is necessary.
Meanwhile, school districts will have the option in 2021-2022 to provide transportation for nonresident students up to 30 miles if the student is deemed eligible for the Free or Reduced Price Lunch program. The current limit is 20 miles.
The school transportation legislation was signed by Ducey as districts across Arizona ramp up efforts to recruit drivers for the new school year. Some districts have reported needing to hire several dozen drivers, many who will be assigned to rural routes which often have only a handful of student riders.
by Terri Jo Neff | Jul 6, 2021 | News
By Terri Jo Neff |
A new committee tasked with reviewing Cyber Ninjas’ findings of the Senate’s ongoing audit of Maricopa County’s 2020 general election is one of the provisions signed into law last week when Gov. Doug Ducey put his signature on the Fiscal Year 2022 budget bills.
Formation of the Special Committee on the Election Audit was included by Senate President Karen Fann in an amendment to SB1819, one of the 11 budget bills. The committee will run through Jan. 1, 2022 and be made up of Democrats and Republicans who are members of the current Senate Government Committee.
The purpose of the committee, according to the new state law, is to recommend to the senate president “the appropriate legislative action based on the findings of the audit, including a call for a special session of the legislature to implement the special committee’s recommendations.”
The Fann amendment also provides leverage for pressuring Ducey to call a special session if it appears new election-related legislation is needed which cannot wait until next January’s regular session. Without an assured two-thirds vote margin in either chamber, the governor is the only option for calling lawmakers back into session to pass laws to take effect before the 2022 primary in August.
Ducey, however, has been reticent on the subject, leaving it to a spokesman to comment.
“We will wait and see what the committee recommends,” C.J. Karamargin said last month about the possibility of an election-related special session.
One reason a special session to address the election audit is so important to Republicans is that the majority of the election reform and election integrity bills introduced by GOP lawmakers during the regular session were either watered down or did not pass. And the main reason for that was the ongoing feud between Sens. Michelle Ugenti-Rita (R-LD23) and Kelly Townsend (R-LD16).
Ugenti-Rita chaired the influential Senate Committee on Government. She and Townsend butted heads throughout the session, often over the fact Ugenti-Rita refused to allow the committee to consider some of Townsend’s bills.
Then during the last week of the session, the women took turns voting against each other’s election bills, both of which contained reforms many Republican voters supported.
