Continental Cas. v. Superior Court, In and For Maricopa County, 15442

• Decision Date: 01 October 1981
• Docket Number: No. 15442,15442
• Citation: 130 Ariz. 189,635 P.2d 174
• Parties: CONTINENTAL CASUALTY, an Illinois Corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Rufus C. Coulter, Robert Szalkowski and Marcia Szalkowski, his wife, Respondents.
• Court: Arizona Supreme Court

Page 174

635 P.2d 174

130 Ariz. 189

CONTINENTAL CASUALTY, an Illinois Corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Rufus C. Coulter, Robert Szalkowski and Marcia Szalkowski, his wife, Respondents.

No. 15442.

Supreme Court of Arizona, In Banc.

Oct. 1, 1981.

Jennings, Strouss & Salmon by William T. Birmingham and John A. Micheaels, Phoenix, for petitioner.

Law Offices of Charles M. Brewer by Stuart J. Reilly, Phoenix, for respondent.

HAYS, Justice.

A Petition for Special Action was brought by Continental Casualty (hereinafter "petitioner") against Respondent Superior Court Judge, the Honorable Rufus C. Coulter, and Respondents-Real Parties In Interest, Szalkowski. We accepted jurisdiction pursuant to Arizona Constitution, article 6, § 5, and 17A A.R.S. Rules of Procedure for Special Actions, rule 3. Relief granted.

Respondent Robert Szalkowski, a forklift operator for O'Malley Lumber Company, was injured in the course of his employment when he fell from a pallet supported by a forklift while attempting to empty trash into a container. Szalkowski thereafter brought an action against O'Malley, his co-employees, the compensation carrier insurance agency, and petitioner. Petitioner had issued a comprehensive general and automobile insurance policy to O'Malley which provided coverage against liability property damage or bodily injury sustained by members of the public. The policy did not provide coverage to O'Malley employees for injuries sustained in the course of employment. Szalkowski asserted, however, that petitioner and the compensation carrier had assumed a duty to inspect the premises in order to discover unsafe and hazardous conditions. This duty allegedly arose because petitioner had conducted inspections of the premises for the purposes of risk evaluation and policy premium determination. An additional purpose of the inspections was to minimize the potential for O'Malley's liability to members of the public due to careless or unsafe practices of its employees.

On December 13, 1979, petitioner filed a motion to dismiss or, in the alternative, a motion for summary judgment. Petitioner contended that the mere fact that it had issued a liability insurance policy to O'Malley did not impose upon petitioner any duty to take affirmative action to discover unsafe and hazardous conditions on the premises of the insured for the benefit of O'Malley employees. The trial court granted Continental's motion and also granted motions for summary judgment filed by O'Malley and the compensation carrier. After these motions were granted, the only remaining defendants in the lawsuit were Szalkowski's co-employees.

Pursuant to the trial court's order granting summary judgment in its favor, petitioner submitted a form of judgment containing Rule 54(b) language, Rules of Civil Procedure, 16 A.R.S. Before any objection to the form of judgment had been filed, the trial court sua sponte declined to sign and enter the judgment because it contained the Rule 54(b) language. One week later, respondents Szalkowski filed an objection to the form of judgment, contending that certification for immediate appeal would result in the type of piecemeal litigation which the Rules of Civil Procedure sought to avoid. Following arguments, the trial court entered an order sustaining Szalkowski's Objection to Judgment. The order prompted petitioner to bring this special action.

The case now before us is in an unusual posture. After petitioner filed its Petition for Special Action, counsel for petitioner was advised by counsel for Szalkowski that respondents did not wish to oppose the Petition for Special Action. Further, respondents stipulated that a judgment containing 54(b) language be entered against respondents and in favor of petitioner. This stipulation was submitted to the trial judge; however, the judge refused to sign and enter judgment. Petitioner asks us to take jurisdiction and order the trial court to sign and enter the judgment containing the 54(b) language.

Rule 54(b) provides:

Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208 (1961), we observed that,

"(r)ule 54(b) is designed to make an accommodation between the policy against piecemeal appeals, (citations omitted), and the problems that have arisen under the liberalized joinder of claims, counterclaims, cross-claims, and third-party claims in one suit permitted by our rules of procedure.

"The rule comes into play when it is ascertained that the action embraces multiple claims for relief of which at least one claim but not all has been adjudicated by the trial court." Id. at 44, 365 P.2d at 209.

"For the purpose of rule 54(b), multiple claims exist if the factual basis for recovery states a number of different claims that could have been enforced separately." Title Insurance Co. of Minnesota v. Acumen Trading Co., 121 Ariz. 525, 526, 591 P.2d 1302, 1303 (1979). In discussing Federal Rules of Civil Procedure, rule 54(b), the United States Supreme Court has repudiated the notion that a separate claim for purposes of Rule 54(b) is one that must be entirely distinct from all the other claims in the action and must arise from a different occurrence or transaction. See Sears, Roebuck Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed.2d 1297 (1956); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956); see also 10 Wright & Miller, Federal Practice and Procedure, § 2657 at 50. Rather, a claim is separable from others remaining to be adjudicated when the nature of the claim already determined is "such that no appellate court would have to decide the same issues more than once even if there are subsequent appeals." Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, ...