In Wilshire Ins. Co. v. S.A., the Arizona Court of Appeals was faced with an insurance coverage dispute where the insured policyholder had sexually assaulted a 15 year old while locked in the company’s basement.  The insured pled guilty to sexual assault, among other things.

The insurance policy provided that there was no coverage for conduct “arising out of a criminal act committed by or at the direction of any insured.”  Based on that clause and the public policy that insurance should not protect those who intentionally cause injury, the Court affirmed the trial court’s determination that there was no coverage for the assault.  The Court noted that this was not a case where the insured acted intentionally, but unintentionally caused injury.

Notices of trustee’s sales give at least a 90 day notice of the date, time and place of the trustee’s sale, which is the foreclosure sale under a deed of trust.

After doing extensive investigation, the clients, John and Margaret Durma, signed a contract to buy The Curve on Peoria bar and restaurant for $375,000. The records provided by the seller appeared valid and confirmed that the business was making $160,000 in profit per year.  But, after taking over the operations of the business, it had losses each month. The Durmas suspected the seller of wrongdoing and investigated further. After filing their lawsuit, the Durmas discovered that the seller had created a second (false) set of financial records and that the business actually had losses each year that the seller owned it, all contrary to the seller’s repeated representations before the sale.

 At trial, Kent Berk, on behalf of the Durmas, presented claims for fraud, consumer fraud, bad faith, negligent misrepresentation and breach of contract.  Before the case went to the jury, the Judge granted the Durmas judgment as a matter of law on their breach of contract and negligent misrepresentation claims, and found that the seller was prohibited from pursuing any claims for the balance of the purchase price.

 The jury unanimously found in favor of the Durmas on their remaining claims – fraud, consumer fraud and bad faith, and unanimously awarded the Durmas $241,000 in economic damages, $196,500 in emotional distress damages and $475,000 in punitive damages.

At least for the time-being, the current anti-deficiency statutes will stay in effect.  We have drafted a simple summary of the current law.

Berk & Moskowitz defended the Hortons’ claims on behalf of the owners.  The Navajo County, Arizona Superior Court ruled in favor of the owners and found that short-term vacation leasing was allowed.  The Hortons appealed.  The Arizona Court of Appeals affirmed the trial court’s ruling.  The Court of Appeals concluded that the covenants were clear and unambiguous and that short-term vacation leasing was allowed in Rainbow Cove.

Read the Rainbow Cove Decision.

In its Unanimous Decision issued April 30, 2009, the Court focused on the reality that the buyer would likely never hire a separate appraiser.  For that and several other reasons, the appraiser owes a legal duty of care to the buyer/borrower.  Daphne Reaume of Berk & Moskowitz, P.C. argued the appeal for the buyer/borrower.

The case opens the door for buyers to sue appraisers even when the appraiser was hired by the lender.  Visit our separate website, AppraiserNegligence.com for more information.

Berk & Moskowitz, P.C. represented the seller of a home under an option to purchase given to the tenant/buyer. The trial court found in favor of the seller, finding that option contracts are strictly construed and that the buyer did not timely and properly exercise the option contract.  The buyer appealed. The Arizona Court of Appeals affirmed the trial court decision for the sellers. 

Read the Court’s Memorandum Decision.