Davis v. Marquardt

• Decision Date: 28 August 1973
• Docket Number: No. 1,CA-CIV,1
• Parties: Kathleen Elizabeth DAVIS and Frederick Davis, her husband, Petitioners, v. Philip W. MARQUARDT, Judge of the Superior Court of the State of Arizona, Maricopa County; and Carol Ann Ledbetter, Respondents. 2440.
• Court: Arizona Court of Appeals

Page 379

513 P.2d 379

20 Ariz.App. 372

Kathleen Elizabeth DAVIS and Frederick Davis, her husband, Petitioners, v. Philip W. MARQUARDT, Judge of the Superior Court of the State of Arizona, Maricopa County; and Carol Ann Ledbetter, Respondents.

No. 1 CA-CIV 2440.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 28, 1973.

Cavness, DeRose, Senner & Rood, by John W. Rood, by George Sorenson, Jr., Phoenix, for petitioners.

Rosen & McGroder, Ltd., by David Neal Rosen, Phoenix, for respondents.

OGG, Acting Presiding Judge.

This is a special action in which the petitioners (defendants) Kathleen Elizabeth Davis and Frederick Davis, husband and wife, are seeking relief from an order of the trial court which denied their motion to separate the trial of an issue involving the validity of an insurance company release from the remaining issues in an automobile negligence case.

A brief summary of the facts is necessary to show the present posture of this case. Carol Ann Ledbetter and Kathleen Elizabeth Davis--while driving their respective vehicles--were involved in an accident. Later, Carol Ann Ledbetter (allegedly for good consideration), executed a printed form release furnished by an insurance adjuster which purportedly released Kathleen E. Davis, Frederick Davis and her insurance carrier, Dairyland Mutual Insurance Company, from all further liability arising from the accident. Miss Ledbetter, as plaintiff, later brought a negligence action seeking $150,000.00 damages. The Davis family answered, denying negligence; they alleged contributory negligence with a counter-claim and by way of a separate affirmative defense also pled the release as a complete bar to recovery on the plaintiff's complaint. The validity of the release is questioned by Carol Ann Ledbetter and this matter as well as all negligence issues are set for trial before a jury in the near future.

Under the provisions of Rule 42(b), Arizona Rules of Civil Procedure, 16 A.R.S., the defendants Davis filed their motion to separate the issue of the release from the negligence issues. Rule 42(b) reads as follows:

'42(b) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury.'

The court denied the motion and entered the following order:

'* * * It is further ordered that the court will determine during the course of the trial whether or not the issue of insurance which will be injected in this cause as a result of the release issue is such as to create or has created prejudice of such a nature and to such an extent that the defendants cannot obtain a fair and impartial trial, and should the court so determine, the court can then within its discretion, declare a mistrial.'

The great practical problem presented by this order is that it requires the expenditure of the time and expense of a jury trial before a determination can be made...