[00:00:00] Speaker 04: Thank you, Your Honor. [00:00:02] Speaker 04: May it please the Court, my name is Mick Levine. [00:00:04] Speaker 04: I represent the estate of Arlene Mattis. [00:00:08] Speaker 04: I want to just take a moment and thank you for bringing me here. [00:00:12] Speaker 04: When I left Arizona, it was a balmy 110 degrees. [00:00:16] Speaker 04: When I arrived here, it was 50 degrees cooler, so I appreciate getting me out of the heat. [00:00:23] Speaker 04: This is our version of the Valley of the Sun. [00:00:25] Speaker 04: And it's beautiful, Your Honor. [00:00:27] Speaker 04: Indeed. [00:00:29] Speaker 04: I think the question in this case really boils down to what would the Arizona Supreme Court do? [00:00:35] Speaker 04: We have a statute, 143110. [00:00:37] Speaker 04: 143110 sets out [00:00:42] Speaker 04: what the estate of somebody who is deceased may bring as claims. [00:00:47] Speaker 04: That statute isn't restricted for loss of future income to the estate. [00:00:54] Speaker 02: So, counsel, let's say that I were to hypothetically agree with you that if I were deciding what the statute meant de novo, [00:01:06] Speaker 02: that the plain meaning of the statute as the Arizona Intermediate Court said going the other way is as you say it is. [00:01:16] Speaker 02: Let's say hypothetically I were to say that. [00:01:20] Speaker 02: How does this fit within the certification statute 12-1861? [00:01:26] Speaker 02: It seems like there is controlling precedent in the intermediate appellate courts of Arizona. [00:01:36] Speaker 02: And it doesn't really seem to me that this is an issue that would come up very often simply because normally there would be somebody else who would be able to get this, would be able to bring this claim under the other statute. [00:01:53] Speaker 02: But assume for the moment that, again, that I think the plain language of the statute, although not the restatement, supports your view. [00:02:03] Speaker 02: How do we fit this in 12-1861? [00:02:06] Speaker 04: Sure, Your Honor, and I want to attack some of the precepts that you put in there. [00:02:11] Speaker 04: First, I don't believe that this is a very rare occurrence. [00:02:15] Speaker 04: 12.6.12 is our wrongful death statute. [00:02:18] Speaker 04: It specifically indicates who can get a benefit from filing a lawsuit. [00:02:26] Speaker 04: The statutory beneficiaries are very limited. [00:02:30] Speaker 04: It's only the spouse, the parents, and the children. [00:02:32] Speaker 04: But as the court in Manion pointed out, the federal district court in Arizona pointed out, when somebody such as a child dies, or in that particular case it was an adult who passed away, sometimes these loss of future income claims come up. [00:02:50] Speaker 04: And I think based upon both the Mannion case, the Popple case, the Rodriguez case, all cases that have occurred within the last six or so years, this is an issue of recurring importance. [00:03:04] Speaker 02: It keeps on coming up as to whether or not statutory... But I mean, as the intermediate court in Arizona said, [00:03:13] Speaker 02: This seems to have been the law for a long time, and I will readily admit that I'm not familiar with the criteria that the Arizona Supreme Court uses to review decisions of the intermediate court. [00:03:29] Speaker 02: But they have decided not to review the decisions of the Arizona Intermediate Court that go the other way. [00:03:38] Speaker 02: So, again, I'm still having some trouble figuring out how this fits into the certification statute. [00:03:47] Speaker 04: Sure. [00:03:49] Speaker 04: One of the other things that you mentioned there, the Berrigan case, what the Intermediate Court of Appeals relied upon recently. [00:03:57] Speaker 04: Berrigan made a general statement as to what survival statutes are for. [00:04:02] Speaker 04: It didn't directly address this issue regarding loss of future income to an estate. [00:04:08] Speaker 03: But Mr. Levine, if the state courts of Arizona feel bound by Berrigan, why shouldn't we? [00:04:12] Speaker 04: The state courts of Arizona and two unpublished opinions said that they felt bound by Berrigan. [00:04:20] Speaker 04: Now, unpublished decisions do not have precedential value in Arizona. [00:04:24] Speaker 01: But counsel, if I understand correctly, the Arizona Supreme Court was expressly asked to review Rodriguez and Popal, which admittedly were not published, but turn them down. [00:04:37] Speaker 04: That's correct. [00:04:37] Speaker 01: What should we read into that, if anything? [00:04:40] Speaker 04: I don't know that you can, Your Honor, and the reason why I say that is both of those cases are not published decisions. [00:04:47] Speaker 01: They don't have any precedent. [00:04:48] Speaker 01: The Arizona Supreme Court knew what it was about. [00:04:50] Speaker 01: I'm sorry? [00:04:51] Speaker 01: The Arizona Supreme Court knew what they were about. [00:04:53] Speaker 01: Those specific cases, the parties asked the Arizona Supreme Court to take the issue. [00:04:59] Speaker 01: Yes. [00:04:59] Speaker 01: They're asking us to do that with this case. [00:05:01] Speaker 01: And those cases, they said, no, we're not taking it. [00:05:04] Speaker 04: Yes, and they both in those cases said that they weren't taking them. [00:05:10] Speaker 04: I assume that one of the reasons that the Arizona Supreme Court looks at in order to determine whether or not to take cases is whether or not it's a precedential value and both of those cases weren't. [00:05:22] Speaker 01: Why would that necessarily matter? [00:05:25] Speaker 01: We have the U.S. [00:05:26] Speaker 01: Supreme Court taking our mem dispos, which are not published either. [00:05:29] Speaker 01: We get quite a few of those, actually. [00:05:31] Speaker 01: So why should we, why should the published or non-published aspect of this make any difference? [00:05:37] Speaker 01: Arizona's, you know, they look at this. [00:05:41] Speaker 01: They decided not to take it. [00:05:43] Speaker 01: They made a determination. [00:05:45] Speaker 01: And as far as I know, I don't know any, any you could refer to that would say because it was not published, that's why they didn't take it. [00:05:52] Speaker 04: I can't say that I know why the Arizona Supreme Court didn't take it, but one of the things that they do look at is the precedential value of the case below. [00:06:00] Speaker 04: And since both of these cases were not published decisions, they only have persuasive, not precedential values. [00:06:06] Speaker 04: So this issue can continue to reoccur to the Court of Appeals, and the Court of Appeals doesn't have to take either one of these cases. [00:06:15] Speaker 01: What role, if any, does the Arizona District Court's decision play in our analysis? [00:06:21] Speaker 04: I believe that the Arizona District Court is just one more data point, Your Honor, for how someone would interpret what the Arizona Supreme Court would do with this particular case. [00:06:31] Speaker 01: It's not presidential. [00:06:33] Speaker 01: It's not binding on us in any way, right? [00:06:35] Speaker 04: No, of course not, Your Honor. [00:06:36] Speaker 04: Arizona District Courts aren't even presidential or binding on other Arizona District Courts. [00:06:42] Speaker 02: Well, we know that from this case. [00:06:44] Speaker 04: Yes, we do, Your Honor. [00:06:46] Speaker 04: Just as a similar [00:06:49] Speaker 04: kind of a way to explain this. [00:06:52] Speaker 04: There was a case, Doe versus Arizona Board of Regents. [00:06:55] Speaker 04: It was a non-published decision in Arizona. [00:06:58] Speaker 04: It was not mentioned in our briefing because the later case didn't come along until afterwards. [00:07:04] Speaker 04: In that particular case, it was dealing with statute of limitations and whether or not the statute of limitations [00:07:11] Speaker 04: was exceeded in that particular case. [00:07:15] Speaker 04: In a same type of case, a different division of the Arizona Court of Appeals found a different way. [00:07:23] Speaker 04: And so the idea here is that a non-published decision can be overturned by another division of the Arizona Court of Appeals, and it can be overturned by the Arizona Supreme Court. [00:07:35] Speaker 01: Let me answer this. [00:07:36] Speaker 01: Let's assume, just arguing, if we didn't certify this to the Arizona Supreme Court, [00:07:43] Speaker 01: What is your best argument that we could, under our precedent of how we interpret the rulings of an intermediate state court, what's your best argument that you win? [00:08:00] Speaker 04: I don't know whether you're looking at specifically these issues or whether you're looking at how it is that the federal courts treat state appellate courts. [00:08:14] Speaker 01: In our case law, we're told that we can [00:08:17] Speaker 01: if there are intermediate Arizona courts in this case who ruled in a particular way, and we believe that's what the Arizona Supreme Court would do in this case because they didn't take it, that we could in fact rule the way they did relying upon those intermediate courts. [00:08:33] Speaker 01: So my question to you is, with that in mind, if we decided not to certify this to the Arizona Supreme Court, what's your best argument that notwithstanding Rodriguez, Popal, and the one other case, that we could do that? [00:08:47] Speaker 04: I think my best argument is that you look at the data points, and that's relatively clear from Ninth Circuit precedent. [00:08:54] Speaker 01: Data points? [00:08:55] Speaker 04: Yes, the data points. [00:08:56] Speaker 04: What data points can you look at in order to interpret how the Arizona Supreme Court would decide? [00:09:02] Speaker 01: How would you delineate or list the data points that we should look at? [00:09:07] Speaker 04: Certainly, one of the data points is the statute itself. [00:09:10] Speaker 04: Another data point is how the Arizona Supreme Court looks at statutes and interprets statutes in other cases. [00:09:17] Speaker 04: Another data point is the Quintero v. Rogers case, which was looking at whether a state can bring a claim for punitive damages. [00:09:25] Speaker 04: In that particular case, they said because it wasn't accepted in 1431.10, they could bring a claim for punitive damages. [00:09:34] Speaker 03: Mr. Levine, I guess on that, and to turn to the merits of the statute. [00:09:40] Speaker 03: Thank you. [00:09:40] Speaker 03: We yield Expresso Unius, the canon here. [00:09:43] Speaker 03: I have questions about what is the Unius and what would be the Altarius under that. [00:09:50] Speaker 03: Why isn't it a fair reading of the statute to believe that the unius, the subject of the statute that's being expressed, are simply causes of action that arise during one's life, so that the altarius of the lost wage damages would not be included? [00:10:09] Speaker 04: And I get lost in the Latin, but I think I can. [00:10:12] Speaker 03: Right. [00:10:13] Speaker 03: I mean, in other words, if you everything that the statute refers to are causes of action that arise during one's life, you're bringing a cause of action that arises afterwards. [00:10:23] Speaker 03: Why would that be? [00:10:25] Speaker 03: Why would the statute tell us anything about that cause of action? [00:10:28] Speaker 04: Sure. [00:10:29] Speaker 04: And what the statute says is that every cause of action, except for a limited few, may survive. [00:10:36] Speaker 04: But it also talks about a portion of a cause of action, that of pain and suffering. [00:10:41] Speaker 04: And it says that pain and suffering damages do not survive. [00:10:45] Speaker 04: And so it's talking about damages. [00:10:47] Speaker 03: Arizona law but those are damages that are only available. [00:10:51] Speaker 03: Are there any other damages you're trying to say that this should this should be viewed as speaking somehow to the availability of post death damages. [00:10:59] Speaker 03: Are there any other damages the statute speaks to that which should suggest it's addressed to the cat the different category of damages that you're seeking here. [00:11:07] Speaker 04: I don't think that the statute differentiates between pre-death and post-death damages. [00:11:12] Speaker 03: Well, where does the statute seem to address anything, any cause of action that would arise after a decedent's death? [00:11:22] Speaker 04: I don't think a person has pain and suffering after their death. [00:11:26] Speaker 04: That's a rather esoteric argument. [00:11:28] Speaker 03: But I think that by- But promise to Mary, seduction, libel, all of these are categorically different than the claim you're bringing. [00:11:37] Speaker 04: I think that those are causes of action, yes, but it does also speak to the damages available on a personal injury case. [00:11:46] Speaker 01: In the way that I read the statute... What role, if any, does the restatement, second of tort, section 926A, play in this? [00:11:55] Speaker 04: And Your Honor, I think that the restatement would actually speak to this if there wasn't a statute that already did. [00:12:03] Speaker 04: Arizona looks to the restatement in the absence of an Arizona statute that applies. [00:12:09] Speaker 04: So the restatement could apply if we didn't already have a statute that talks to survival actions. [00:12:16] Speaker 01: And I understand that. [00:12:17] Speaker 01: But I mean, to the degree we're looking at data points, as you refer to them, that one's not helpful to you, is it? [00:12:23] Speaker 04: I believe you're right, Your Honor, that that would not be helpful, but as Arizona has recognized time after time, if we have law that applies to the particular subject, we don't look to the restatement. [00:12:37] Speaker 01: We only look to the restatement if we don't have law. [00:12:39] Speaker 04: I'm sorry? [00:12:40] Speaker 01: If you have clear law, the question here, of course, is we're trying to decide what this means, and that's why I ask what role, if any, the restatement should play in our analysis. [00:12:50] Speaker 04: Well, I think 1431.10 is clear law as to what actions survive when a person dies and what damages do, and by exclusion, what damages don't. [00:13:02] Speaker 02: This next series of questions may be a little unfair, and I apologize for that, but as far as I can tell, in one of the unpublished Arizona cases, Rodriguez V. Lytle, you were the counsel for plaintiff. [00:13:15] Speaker 04: I was. [00:13:16] Speaker 02: Are there any arguments [00:13:18] Speaker 02: that you have made today as to why we should give this to the Arizona Supreme Court that you didn't make to the Arizona Supreme Court in asking them to grant certiorari or whatever the procedure is in Arizona in that case? [00:13:35] Speaker 04: I think we have more data points now than we did at that particular time. [00:13:39] Speaker 04: For instance, we have the Papel v. Beck decision that came out after the Rodriguez v. Lytle decision. [00:13:44] Speaker 04: And at least one of those members of that court said if we didn't have Berrigan, which I felt wasn't good law, he would have found the same way that the Mannion court did. [00:13:54] Speaker 04: By the way, I was counsel of record in Mannion as well. [00:13:58] Speaker 04: So I do think that we have additional data points. [00:14:00] Speaker 04: I do think that we have additional information for this court to consider. [00:14:06] Speaker 04: The other fact that we have, as far as that goes, is I don't believe that the Quintero versus Rogers case was argued in the Rodriguez v. Lytle case. [00:14:19] Speaker 04: I think that one was something that was overlooked. [00:14:22] Speaker 04: Plus, as I see that my time is running out, I do want to talk about it. [00:14:26] Speaker 01: Want to save any of your time? [00:14:27] Speaker 01: It's up to you. [00:14:28] Speaker 04: I want to talk about one case real quick. [00:14:31] Speaker 04: Henry Riggins, 544 P. [00:14:32] Speaker 04: 3rd, 64. [00:14:35] Speaker 04: It's a 2024 case that just came out. [00:14:38] Speaker 04: The Arizona Supreme Court there upheld expressius unius est exclusio alterius, saying that it's appropriate when the unius can reasonably be thought to be an expression of all that shares in the grant or prohibition involved. [00:14:54] Speaker 04: Here, I believe that by excluding pain and suffering damages and not excluding a loss of future income, which is available and a personal injury action, this is an appropriate application of that. [00:15:11] Speaker 04: Thank you. [00:15:11] Speaker 01: Okay, thank you very much. [00:15:13] Speaker 01: Do either of my colleagues have additional questions? [00:15:15] Speaker 01: Very well, thanks very much. [00:15:16] Speaker 01: All right, so we're going to hear from Ms. [00:15:21] Speaker 01: Allen. [00:15:25] Speaker 00: Good morning. [00:15:27] Speaker 00: May I please record my name is Lynn Allen and I represent the defendant Custom U.S. [00:15:33] Speaker 00: Our position is that the district court's decision was correct based on existing Arizona law as well as, and it must be affirmed on appeal. [00:15:45] Speaker 00: It is consistent with a published Arizona court of appeals decision and to unpublished court of appeals decisions. [00:15:52] Speaker 00: And I want to touch on that briefly. [00:15:55] Speaker 00: We acknowledge that unpublished memorandum decisions of the court of appeals are not binding precedent. [00:16:02] Speaker 00: But the Arizona Supreme Court rule 111 allows us to cite those to any court. [00:16:09] Speaker 00: for their persuasive value. [00:16:11] Speaker 00: So they are useful as a data point pursuant to the Supreme Court rule that says they can be persuasive. [00:16:18] Speaker 00: Ms. [00:16:18] Speaker 03: Allen, could you speak to, I guess, your view of any Arizona practice or rule that would allow us to read anything into the denial of the Supreme Court's review of these cases? [00:16:29] Speaker 03: Does that mean anything, or have they disclaimed any meaning? [00:16:33] Speaker 00: I would say that there's nothing that says that we can read anything into it. [00:16:39] Speaker 00: I think there may even be a rule that says you can't. [00:16:41] Speaker 00: But I think it is important to this panel on the issue of whether you certify the issue to the Arizona Supreme Court. [00:16:49] Speaker 00: There is a Ninth Circuit case we cited in our brief that says that the court can consider, the court can consider where there are no conflicting Arizona state court [00:17:02] Speaker 00: of appeals decisions, and we do not have any here, and that the state Supreme Court has recently denied a petition for review on the same issue, it was unnecessary to certify the question. [00:17:12] Speaker 02: And that's the Herrera versus Zumi's case. [00:17:18] Speaker 02: I'm not discounting this as harm, but the only harm that would come from our certifying this question to the Arizona Supreme Court would be some delay and some expense. [00:17:32] Speaker 02: Is there any other harm that would come were we to do that? [00:17:36] Speaker 02: And again, I'm not discounting that delay and expense are relevant and can be important, but in terms of other potential harms, is there anything else that would come from our certifying this question? [00:17:50] Speaker 00: I can't think of any off the top of my head, but I would pause it out there. [00:17:53] Speaker 00: It's not just the delay in you certifying the question and then the Supreme Court issuing a decision. [00:17:58] Speaker 00: The Arizona Supreme Court could turn it down. [00:18:00] Speaker 00: They could decline to answer the certified question. [00:18:03] Speaker 00: Then we're back here with you asking you to make a decision. [00:18:06] Speaker 01: And how do we factor in your friend's actual appeal to the Arizona Supreme Court in the Rodriguez case, which was unpublished? [00:18:16] Speaker 01: dealing with an identical issue, really, as far as I can tell, and the Supreme Court said no. [00:18:21] Speaker 01: Do we factor that into our decision whether to certify the question to the Supreme Court? [00:18:26] Speaker 00: Yes, absolutely, under the Zumi's case. [00:18:29] Speaker 00: And by the way, I was defense counsel in that case. [00:18:32] Speaker 00: So Mr. Libby and I. Oh, you were on the other side. [00:18:34] Speaker 01: Well, I was. [00:18:35] Speaker 01: I know. [00:18:36] Speaker 01: You two should go out and have a drink afterwards. [00:18:37] Speaker 00: That's perfect. [00:18:39] Speaker 00: We may do that. [00:18:43] Speaker 03: On the statute itself, Ms. [00:18:46] Speaker 03: Allen, what's your best merits argument in response to Judge Bennett's hypothetical plain reading of the statute? [00:18:56] Speaker 03: Where do you view it as excluding this action? [00:19:01] Speaker 00: Well, in my view, this really isn't an issue of statutory interpretation, by the way. [00:19:06] Speaker 00: We're talking about whether the survival statute is what it is. [00:19:13] Speaker 00: If the decedent had a claim before her death, in common law, that would be abated upon her death. [00:19:23] Speaker 00: Her estate would not be able to bring any claim whatsoever. [00:19:27] Speaker 00: The statute allows her estate to bring the claim, if she had a claim, that existed before her death. [00:19:36] Speaker 00: So when we talk about the statute and about what's excluded from the statute, [00:19:42] Speaker 00: What's excluded is from that pre-death cause of action and pain and suffering is expressly excluded because Arizona does not allow the estate to recover. [00:19:52] Speaker 00: the decedent's pain and suffering sustained prior to death. [00:19:55] Speaker 02: Pain and suffering is expressly excluded, but nothing else is expressly excluded, yes? [00:20:01] Speaker 00: That is true. [00:20:02] Speaker 02: So every cause of action, except a cause of action, et cetera, et cetera, et cetera, may be asserted, except upon the death, damages for pain and suffering should not be. [00:20:15] Speaker 02: And I'm not going to try my Latin, but I [00:20:21] Speaker 02: it seems to me that that fits right in with that Latin maxima. [00:20:27] Speaker 02: I mean, that doesn't go to, and when I look at the Rodriguez case, which you're obviously familiar with, the argument was [00:20:36] Speaker 02: This rule is contrary to the plain language, and the appellate court didn't say, no, no, you're wrong by quoting a Latin maxim or some other maxim. [00:20:47] Speaker 02: It said, no, no, you're wrong because we've already said you're wrong, not that you're wrong about the plain language. [00:20:55] Speaker 00: The Court of Appeals bringing it back to what a survival action is. [00:20:59] Speaker 00: A survival action is not [00:21:01] Speaker 00: a cause of action that the estate in its capacity as an estate has. [00:21:06] Speaker 00: So Mr. Levine spoke to, well, the estate has been damaged because she died and the estate is sustained damage. [00:21:14] Speaker 02: But similar to that, damages for pain and suffering is not a cause of action. [00:21:19] Speaker 00: It's not, but let me give you a hypothetical. [00:21:22] Speaker 00: Let's say that Ms. [00:21:23] Speaker 00: Mattis had survived the accident. [00:21:26] Speaker 00: Let's say she survived for two weeks. [00:21:29] Speaker 00: She would have had pain and suffering, right? [00:21:31] Speaker 00: She would have lived and sustained and suffered pain and suffering. [00:21:35] Speaker 00: And then had she then died two weeks later, [00:21:38] Speaker 00: Her estate could bring her personal injury claim, but the statute says they can't recover that pain and suffering, but they could recover any other damages that she sustained up until the time of her death. [00:21:49] Speaker 02: But do you still agree with me that damages for pain and suffering is not a cause of action? [00:21:54] Speaker 00: It is not. [00:21:55] Speaker 00: It is not. [00:21:56] Speaker 00: It is a type of damage. [00:21:57] Speaker 00: But again, a type of damage that the decedent could have suffered prior to her death and that without that language, the estate could bring that claim. [00:22:08] Speaker 01: When you and your friend were dealing with the appeal to the Arizona Supreme Court of Rodriguez, what arguments did either one of you make, if you recall, to the Arizona Supreme Court in his attempt to get them to take it and your attempt to tell them not to take it? [00:22:26] Speaker 00: I did not go back and review the briefs, but I know that my arguments are the same as I have here, although probably dove a little more deeply into Mannion and why. [00:22:37] Speaker 01: You deal with the Latin maxim that my colleague has referred to. [00:22:41] Speaker 01: He speaks in Latin a great deal in our conference, and so we have the following brief. [00:22:45] Speaker 01: Exclusively Latin, actually. [00:22:47] Speaker 03: He flourished. [00:22:49] Speaker 00: I believe that Mr. Lean was making the argument about the statutory interpretation. [00:22:54] Speaker 00: Our argument goes back to what a survival statute is and what it is it revives or does not allow that cause of action to be abated. [00:23:04] Speaker 00: And then going back to Barragán when we talk about what cause of action survived. [00:23:09] Speaker 00: a cause of action for negligence and damages, according to Berrigon, damages that the decedent sustained before their death, economic damages. [00:23:19] Speaker 03: So if we're talking here about the scope of the statute as being about survival actions, does loss of future wages survive the death or does it only arise upon the creation of the estate at death? [00:23:38] Speaker 00: Well, there's no loss of future earnings unless, let me back up. [00:23:42] Speaker 03: So there's no claim there to survive, is your point. [00:23:46] Speaker 00: Yes, that is my point. [00:23:47] Speaker 00: The decedent died instantaneously. [00:23:51] Speaker 00: She did not sustain that harm. [00:23:54] Speaker 00: It's not that the estate sustained the harm, it's whether the decedent sustained the harm. [00:23:59] Speaker 00: And so just hypothetically, Berrigon is a really good example. [00:24:03] Speaker 00: Mr. Berrigon had been injured severely in an accident. [00:24:08] Speaker 00: He lived for two years and then died from complications. [00:24:13] Speaker 00: And during that two year period of time, he had economic loss in the form of medical bills, loss of earnings, as well as that pain and suffering which didn't survive. [00:24:22] Speaker 00: He had filed a lawsuit while he was still alive against the tortfeasor and then he died and then his father, who was a wrongful death beneficiary as well as the representative of his state, wanted to bring that cause of action on behalf of the estate for the pre-death damages of medical bills and loss of earnings. [00:24:42] Speaker 00: The court of appeals initially said, no, you can only have one. [00:24:44] Speaker 00: You can either have a wrongful death case or you can have the survival action. [00:24:48] Speaker 00: And the Court of Appeals in Barragán said, no, no, no, those are two separate harms. [00:24:52] Speaker 00: The first is the harm to the individual, why they were living, that survives their death and can be brought. [00:24:58] Speaker 00: And then there's the claim of the wrongful death beneficiaries, which also can be brought. [00:25:03] Speaker 00: So they're not mutually exclusive. [00:25:05] Speaker 00: But the key point to that decision, which is not dictated because it was central to the court's holding, [00:25:10] Speaker 00: was that the survival action only applies to the damages that the decedent sustained before their death. [00:25:18] Speaker 00: And so that ties in squarely with our district court's decision, which was that Ms. [00:25:24] Speaker 00: Mattis had died instantaneously, she did not sustain any damages while she was still alive, and that the estate could only bring the claim for the funeral expenses. [00:25:35] Speaker 03: If there were heirs who were eligible to bring a wrongful death action here, would that create the possibility of double recovery? [00:25:44] Speaker 00: If the court were to, if her loss of future earnings claim survived her death and could be brought, I would say yes. [00:25:52] Speaker 02: Correct. [00:25:52] Speaker 02: Well, it would be yes unless the Arizona Supreme Court said one or the other, right? [00:25:58] Speaker 00: That could be one result. [00:26:01] Speaker 02: It would be unlikely, don't you think, that the Arizona Supreme Court would create a remedy where the exact same damage could be obtained by two separate individuals? [00:26:12] Speaker 00: I think that's highly unlikely. [00:26:13] Speaker 03: And I think your argument is that Berrigan basically said just that. [00:26:17] Speaker 00: Exactly. [00:26:18] Speaker 03: That it's one or the other. [00:26:18] Speaker 02: Except here, it's recovered by nobody. [00:26:21] Speaker 00: It is, because she didn't have any wrongful death and officiaries. [00:26:24] Speaker 00: Right. [00:26:24] Speaker 02: So there is an enrichment from that to your client. [00:26:32] Speaker 02: I mean, whether it's unjust or whether it's provided by the statute or not are different questions. [00:26:37] Speaker 02: But your client here has a benefit because of the lack of the statutory heirs. [00:26:44] Speaker 00: I'm glad that you brought that up, because I did want to address that. [00:26:49] Speaker 00: a benefit to the defendant, I would say no. [00:26:55] Speaker 00: Damages in a tort case are there to compensate the victim, right? [00:26:59] Speaker 00: It's compensation, it's not punishment, it's not just or not just. [00:27:04] Speaker 00: So we're looking at damages that are recoverable and not whether the defendant benefits from same. [00:27:10] Speaker 00: The defendant would benefit from same if Ms. [00:27:12] Speaker 00: Mattis had been unemployed or had been a senior and did not have a law. [00:27:17] Speaker 00: It depends on the plaintiff and you take them as you find them. [00:27:19] Speaker 00: So, it's not necessarily any benefit to the defendant that she lost her life, but rather that there are no damages for which the law allows compensation. [00:27:33] Speaker 01: Has your client paid damages based on any other cause of action arising out of this accident? [00:27:42] Speaker 00: No. [00:27:43] Speaker 00: This is the only claim that's been made. [00:27:46] Speaker 00: You asked a question about the duplicative damages. [00:27:49] Speaker 00: I will say in the Rodriguez case, they were teenagers. [00:27:54] Speaker 00: They were survived by their parents. [00:27:57] Speaker 00: The parents brought the claim under the state of their children as opposed to their own wrongful death claim. [00:28:04] Speaker 00: We can't speak to why that happened, but they did make that election, presumably because of Mannion. [00:28:10] Speaker 00: And Mannion really focused on the fact that there was no chance for duplicative damages. [00:28:16] Speaker 00: which, you know, is kind of misguided when really the nature of a survival action as set forth in the restatement, I know one of you brought that up, but the restatement talks about [00:28:32] Speaker 00: survival or revival of tort actions, the damages for a tort not involving death for which the tort visa is responsible are not affected by the death of either party. [00:28:42] Speaker 00: And then it says that it limits recovery for harms suffered before death. [00:28:49] Speaker 00: And that is not inconsistent with Arizona law. [00:28:52] Speaker 00: In fact, it's entirely consistent with Arizona law. [00:28:56] Speaker 00: So when we talk about those data points, [00:28:58] Speaker 00: The data points that the Arizona Supreme Court would consider is the Baragon case, maybe to a lesser degree Rodriguez and Popol, but it's highly unlikely the court would look to the Mannion case, which is not even binding on the same judge that issued the decision. [00:29:14] Speaker 00: So it's our position that this court can predict what the Arizona Supreme Court would decide. [00:29:21] Speaker 00: It would decide and follow Baragon for lack of any other precedent and two opportunities to take the issue up. [00:29:29] Speaker 00: And would find that the answer to the question is the estates damages are limited to those sustained by the decedent before her death. [00:29:40] Speaker 00: I have about less than a minute left. [00:29:42] Speaker 00: Are there any other questions? [00:29:43] Speaker 01: Other questions? [00:29:44] Speaker 00: Thank you very much for the opportunity. [00:29:46] Speaker 01: Thank you very much to both counsel for your argument in this case. [00:29:49] Speaker 01: The case just argued is submitted and we thank you both.