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Bergeson v. West Frontier Condominiums HOA, Inc.

Court of Appeals of Arizona, Second Division

December 24, 2013

Christopher Bo Bergeson, on behalf of himself and Amy Lynn Bergeson, his sister, a minor child, and the children of Lynn Renee Bergeson, deceased, Plaintiff/Appellant,
West Frontier Condominiums HOA, Inc., an Arizona corporation, Defendant/Appellee.

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Gila County No. CV20080002 The Honorable R. Douglas Holt, Judge

Lloyd & Robinson, P.L.L.C., Payson By Arthur E. Lloyd and Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson By Stanley G. Feldman Counsel for Plaintiff/Appellant

Allen Law Group, P.L.C., Phoenix By Lynn M. Allen and J.P. Harrington Bisceglia Counsel for Defendant/Appellee

Chief Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Miller concurred.


HOWARD, Chief Judge:

¶1 Appellants Christopher and Amy Bergeson ("the Bergesons") appeal from the trial court's grant of summary judgment in favor of appellee West Frontier Condominiums HOA, Inc. ("West Frontier"). On appeal, they argue the trial court erred by ruling issue preclusion prevented their negligence claims against West Frontier from proceeding. Because we conclude the court erred in granting summary judgment, we reverse and remand.

Factual and Procedural Background

¶2 "We view the facts and reasonable inferences in the light most favorable to [the Bergesons], against whom summary judgment was entered." Lowe v. Pima County, 217 Ariz. 642, 3, 177 P.3d 1214, 1215 (App. 2008). West Frontier is the unit owners' association for the Frontier Condominiums. See A.R.S. § 33-1241. In October 2005, Lynn Bergeson began renting a unit in the Frontier Condominiums from David and Joan Levengood ("the Levengoods"). The following summer, Lynn, with the Levengoods' approval, had a friend replace a light fixture that was installed in the living room with a ceiling fan. On June 26, 2007, Lynn was found dead in her unit. An autopsy revealed Lynn died from carbon monoxide poisoning. The parties do not dispute that faulty wiring caused the ceiling insulation to smolder and produce lethal amounts of carbon monoxide.

¶3 The Bergesons filed a wrongful death action against the Levengoods and West Frontier. American Family Insurance Group ("American Family") insured West Frontier, and the policy also provided coverage for individual unit owners for any liability arising out of their "ownership, maintenance, or repair of that portion of the premises which is not reserved for that unit-owner's exclusive use or occupancy." The Levengoods filed a claim with American Family for defense and indemnity under the policy, but American Family denied the claim contending the Levengoods were not insured under the policy for the allegations in the complaint. The Levengoods and Bergesons then stipulated to a judgment against the Levengoods, but agreed the Bergesons would not execute on that judgment. Instead, the Levengoods assigned to the Bergesons their bad faith claim against American Family.

¶4 American Family learned of the Levengoods' assignment and subsequently sought and received a declaratory judgment in federal district court stating the Levengoods' liability did not arise from a common area, and therefore any claim based on their liability was not covered by the insurance policy, and it had no duty to defend the Levengoods. The court found that the ceiling fan and its wiring were under the exclusive control of the Levengoods, and they therefore did not qualify for coverage under the insurance policy. Am. Family Ins. Group v. Bergeson (Bergeson I), No. CV09-0360 PHX DGC, *3-4, 2010 WL 3705344 (D. Ariz. Sept. 14, 2010). The Ninth Circuit affirmed the district court's ruling. Am. Family Ins. Co. v. Bergeson (Bergeson II), 472 F.App'x 604, 605 (9th Cir. 2012).

¶5 Following the Ninth Circuit's ruling, West Frontier moved for summary judgment. West Frontier argued the doctrine of issue preclusion prohibited the Bergesons from arguing West Frontier had control over the faulty wiring because the federal court determined the ceiling fan and its wiring were in the Levengoods' exclusive control. The court granted West Frontier's motion. We have jurisdiction over the Bergesons' appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Standard of Review

¶6 On appeal from summary judgment, we determine de novo whether the trial court correctly applied the law and whether there are any genuine disputes as to any material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 712 (App. 2012). The trial court should grant summary judgment when "the moving party shows that there is no genuine dispute as to any material fact and ...

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