Napier v. Bertram
| Decision Date | 27 February 1998 |
| Docket Number | No. CV-96-0619-PR,CV-96-0619-PR |
| Citation | 191 Ariz. 238,954 P.2d 1389 |
| Parties | , 264 Ariz. Adv. Rep. 3 Gary NAPIER, Plaintiff-Appellant, v. Daniel BERTRAM, aka Daniel Berthram; Charles Meese; A & N Insurance Services, Inc., an Arizona Corporation, Defendants-Appellees. |
| Court | Arizona Supreme Court |
¶1 We granted review in this case to examine a court of appeals opinion holding that a taxicab passenger who was injured in an accident caused by the negligence of an uninsured motorist could maintain an action against (1) the taxicab's owner/lessor for failure to obtain statutorily mandated uninsured motorist coverage, and (2) the owner's insurance agent for negligent failure to procure that insurance. We have jurisdiction pursuant to A.R.S. § 12-120.24. We view the facts in favor of the party against whom summary judgment and judgment on the pleadings were granted. Thompson v. Better-Bilt Aluminum Prod. Co., Inc., 171 Ariz. 550, 558, 832 P.2d 203, 211 (1992).
¶2 On May 5, 1992, Gary Napier was a passenger in a taxicab driven by Lawrence Weathers and owned by Daniel Bertram, president of Fairway Taxi Co., Inc. Bertram leased the cab to Fairway, which subleased it to Weathers. Napier was injured when the taxi collided with a motor vehicle negligently driven by an uninsured motorist.
¶3 Before the accident, Fairway contacted Charles Meese, an agent for A & N Insurance Services, Inc., to obtain uninsured motorist insurance coverage for its taxicabs. Meese obtained coverage from St. Louis Fire & Marine Insurance, Inc. 1 After the accident, St. Louis either failed to provide or denied coverage. The record before us suggests that St. Louis is either insolvent, unable to do business in Arizona, or a fictitious entity altogether.
¶4 On May 2, 1994, Napier filed a complaint against Bertram, Meese, and A & N (), alleging that because they negligently failed to obtain uninsured motorist coverage for the taxi, they were liable in tort for financial losses Napier incurred as a result of the accident. The trial judge granted Bertram's motion for summary judgment and a motion for judgment on the pleadings filed by Meese and A & N (collectively "Meese"), holding that Napier had no cause of action. Napier appealed.
¶5 The court of appeals held that Napier's actions against Bertram and Meese should not have been dismissed, basing its analysis of Napier's claims on an amalgamation of third party beneficiary contract and tort negligence principles. Napier v. Bertram, 188 Ariz. 410, 937 P.2d 332 (App.1996). Meese and Bertram filed petitions for review.
¶6 On appeal and before this court, Napier argues that he may maintain actions under both negligence theories and as a third party beneficiary to the Bertram/Meese contract. Reviewing Napier's complaint and the motion papers filed in the trial court, we find that he failed to allege rights as a third party beneficiary to any contract. Ordinarily, courts should not consider new factual theories raised for the first time on appeal from summary judgment or judgment on the pleadings. See Schoenfelder v. Arizona Bank, 165 Ariz. 79, 90 & n. 8, 796 P.2d 881, 892 & n. 8 (1990). In reviewing dismissal of the case, therefore, we only consider whether Napier's claims were supported under the law of negligence, the only theory advanced in the complaint or motion papers.
¶7 In his complaint and in both the court of appeals and this court, Napier alleged negligence claims against both Bertram and Meese. All defendants assert essentially the same response--they owed no legally recognized duty to Napier. The question of duty is therefore the dispositive issue. Whether a duty is recognized "depends on whether the defendant is under any obligation for the benefit of the particular plaintiff." W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 53, at 356 (5th ed.1984). "The question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff." Markowitz v. Arizona Parks Board, 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985), superseded by A.R.S. § 33-1551. The issue of duty is usually one for the court as a matter of law. Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1319 (1983).
¶8 Bertram owned the taxicab in which Napier was a passenger when injured and does not dispute that he was subject to the motor carrier financial responsibility provisions of A.R.S. §§ 28-1231 to 28-1238. 2 Section 28-1233(A) provided:
Every person subject to the requirements of this article shall maintain motor vehicle combined single limit liability insurance as follows:
* * *
2. For the transportation of passengers:
* * *
(c) In a motor vehicle which provides taxi cab service ... minimum coverage in the amount of three hundred thousand dollars and uninsured motorist coverage in the amount of at least three hundred thousand dollars.
Section 28-1233(B) states:
If a motor vehicle is leased or rented, the lessor shall ensure that the lessee is covered under the lessor's liability insurance as provided by this section or the lessor shall require that the lessee meet the financial responsibility requirements of this section.
(Emphasis added.) Given that § 28-1233 applies to Bertram as both owner and lessor of the taxi, the question is whether a passenger such as Napier may maintain a negligence action against Bertram for either failing to acquire and maintain the coverage or failing to ensure that his lessee acquired the requisite insurance.
¶9 The legislation is silent on whether a private party may bring a cause of action for failure to obtain the insurance coverage required by § 28-1233. Bertram argues that this legislative silence precludes recognition of a cause of action. We disagree. A statute's silence on whether a cause of action is conferred by the statute or should be recognized as a result of the statute is not dispositive. See Hayes v. Continental Ins. Co., 178 Ariz. 264, 273, 872 P.2d 668, 677 (1994) ( ). As the RESTATEMENT (SECOND) OF TORTS indicates, the legislature's silence begins, rather than ends, our inquiry.
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
RESTATEMENT (SECOND) OF TORTS 3 § 874A. Therefore, in determining whether Napier may maintain an action under § 28-1233, we consider "the context of the statutes, the language used, the subject matter, the effects and consequences, and the spirit and purpose of the law." Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974).
¶10 Our court of appeals has explained the legislative purpose of the Financial Responsibility Act, of which § 28-1233 is a part.
The Financial Responsibility Act was enacted in response to social and economic problems arising from the increasing casualty rate on Arizona streets and highways. Its primary purpose is the protection of the traveling public from financial hardship resulting from the operation of motor vehicles by financially irresponsible persons.
Midland Risk Management Co. v. Watford, 179 Ariz. 168, 171-72, 876 P.2d 1203, 1206-07 (App.1994) (citations omitted). Section 28-1233 appears in Article 7 of the Act, entitled "Motor Carrier Financial Responsibility," and is specifically directed at owners and lessors of commercial vehicles "as a means of providing some degree of financial protection for potential accident victims." Schwab v. State Farm Fire & Cas. Co., 27 Ariz.App. 747, 749, 558 P.2d 942, 944 (1976).
¶11 Taxicab passengers are, of course, part of the public protected by the Act. However, the section applicable to taxicabs provides for even greater protection for such passengers than for ordinary motorists by requiring that taxicab owners and lessors carry both liability and uninsured motorist ("UM") coverage. 4 Moreover, § 28-1233 requires more coverage than the statutory minimum for personal policies. 5 Thus § 28-1233 evidences a legislative intent to both require UM coverage for taxi passengers and ensure greater protection ($300,000) than the minimum available to ordinary motorists.
¶12 Although § 28-1233 requires that a cab owner and lessor have and ensure such coverage, the statute does not accomplish these ends on its own. The only enforcement provision is found in § 28-1237, which imposes class 1 and class 3 misdemeanor criminal sanctions for violations of § 28-1233. 6 We do not think the legislature intended to limit enforcement of § 28-1233 to these criminal sanctions, however, because imposing criminal penalties does nothing to protect a passenger against a financially irresponsible uninsured...
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