United States District Court, D. Arizona
G. MURRAY SNOW, District Judge.
Pending before this Court is Plaintiff's Motion to Strike Defendant On Call International's Designations of Non-Party Tortfeasors or Alternatively, Motion for Leave To Amend Complaint and Vacate Existing Deadlines (Doc. 84). For the reasons set forth below the Motion to Strike is granted to the extent that the non-party designation of David Sippe is stricken. The balance of the Motion to Strike is denied. The Alternate Motion for Leave to Amend and to Vacate Existing Deadlines is granted in light of Defendants' non-opposition to it.
In this case, Plaintiffs sue three companies who were involved in an alleged joint venture to provide travel medical insurance. The initial Complaint alleges that after securing the travel policy, and while on vacation in Paros Island in Greece, Dr. Sippe slipped from his bunk and sustained a subdural hematoma. He began suffering hallucinations and engaging in combative behavior. Plaintiffs contacted Defendant On Call and Dr. Sippe was transferred to Athens Medical Center. Evaluations immediately provided to Defendant On Call from the physicians at Athens Medical Center attributed the seizure to a recent increase in Dr. Sippe's medication. The Athens physicians were in contact with Dr. Sippe's physicians in Phoenix and thus were aware that Dr. Sippe was being treated for his Parkinson's Disease with a medication called Stalevo. The dosage of Stalevo was increased by his treating neurologist, Dr. Darry Johnson, just prior to his trip. The initial Complaint alleges that although the doctors in Athens diagnosed Dr. Sippe with a subdural hematoma, they did not believe that it required treatment and could not correctly diagnose the reason for his hallucinations and combativeness which they apparently incorrectly believed resulted from the Stalevo medication or from a separate condition.
The initial Complaint further alleges that during the care received in Athens, Plaintiffs were in consultation with Dr. Sippe's neurologists in Phoenix including Dr. Johnson and Dr. Ralph Pagano "who recommended that Larry be returned home to the U.S. (Phoenix) immediately." Doc. 1-1 at ¶ 17. Mrs. Sippe apparently sought from On Call Dr. Sippe's early return to the United States, and the complaint alleges, On Call advised her that it would send a doctor to escort Dr. Sippe back to the United States, and that it had arranged for transportation on a commercial flight. On Call, however, according to the initial Complaint, failed to carry through on this promise, and further declined to provide such transportation for an additional week because On Call stated that Dr. Sippe's Greek physicians recommended that he stay in Athens. During this time, Ms. Sippe, in association with David Sippe, Dr. Sippe's son, independently hired supplemental nursing care to be provided to Dr. Sippe.
Plaintiffs' initial Complaint further alleges that during this period of alleged delay, Dr. Sippe again fell out of his hospital bed on May 27, and thereafter remained unconscious until after his eventual surgery in Phoenix. Mrs. Sippe alleges that she and Dr. Sippe's son had to arrange for his transportation on a commercial carrier and carry it out on their own without any assistance from On Call. The initial Complaint further alleges that On Call refused to assist in the discharge of Dr. Sippe from Athens General which required the payment of his fees there. Upon his arrival in Phoenix, Dr. Sippe's U.S. doctors determined that Dr. Sippe had a bleeding subdural hematoma that needed immediate brain surgery. As a result of these alleged delays in returning Dr. Sippe's to the U.S., Plaintiffs allege that Dr. Sippe's subdural hematoma was allowed to grow in size and, as a result, he suffered "severe and permanent brain injury that has affected him "cognitively, physically and emotionally."
Based on the above factual allegations of delay in transportation, the initial Complaint sets forth five substantive counts-breach of contract, bad faith (tort), breach of fiduciary duty, negligence, and negligent or intentional misrepresentation. Plaintiffs filed this suit in Maricopa County Superior Court on April 30, 2013. Defendants removed the initial Complaint to this Court and On Call subsequently filed its initial answer on June 12, 2013.
Plaintiffs, within the time period allowed by this Court's Case Management Order filed a Motion to Amend the Complaint. The First Amended Complaint ("FAC") adds two claims to the claims set forth in the previous complaint: (1) In the event that any Defendant alleged that Travel Assistance and Concierge Services coverage was not included in the insurance coverage purchased by the Sippes, the Sippes added an alternative claim for statutory misrepresentation in connection with the sale of the travel insurance policy under A.R.S. § 20-443, and, (2), the Sippes added a claim for promissory estoppel that is based on the same factual allegations as the Plaintiffs' claim for negligent or intentional misrepresentation.
Plaintiffs also revised the factual allegations of the initial Complaint in a subtle but important way. Paragraph 34 of the FAC subtly expands the theory of ¶ 34 of the initial Complaint. In the initial Complaint, ¶ 34 alleged that the delay in returning Dr. Sippe to the U.S. allowed Dr. Sippe's subdural hematoma to grow in size resulting in injury. In ¶ 34 of the FAC, however, Plaintiffs abandon any specification that the damage arose as a result of the growth of the subdural hematoma during the delay and instead allege that the delay prevented Dr. Sippe from receiving proper medical care and treatment for his medical conditions which led to and/or resulted in him sustaining injury. Similarly, in ¶ 16, the initial Complaint stated that the Greek physicians diagnosed the subdural hematoma but recommended no treatment for it, and could not correctly diagnose the cause of the continuing symptoms. In the FAC, the amended paragraph more broadly alleges that the Greek hospital and physicians were unable to provide Dr. Sippe proper treatment for his medical condition. Plaintiffs have further revised ¶ 17 of their FAC to suggest that Drs. Pagano and Johnson informed Plaintiffs that Dr. Sippe needed to be returned home to receive proper medical care and treatment and On Call was or should have been aware of this advice.
Plaintiffs' motion to amend their complaint was filed on September 24, 2013. After considering the responses in opposition, the Court granted the motion to amend on November 22, 2013. Defendant On Call filed its Answer to the FAC on December 10, 2013. On January 21, 2014, On Call filed its non-party at fault designations, 209 days after it had filed its initial answer and forty-two days after it filed its answer to the FAC.
The Arizona Rules of Civil Procedure specify that:
Any party who alleges... that a person or entity not currently or formerly named as a party was wholly or partially at fault in causing any personal injury... shall provide the identity location and the facts supporting the claimed liability of such nonparty... within one hundred fifty (150) days after the filing of the party's answer.... The trier of fact shall not be permitted to allocate or apportion any percentage of fault to any nonparty whose identity is not disclosed... except upon written agreement of the parties or upon motion establishing good cause, reasonable diligence, and lack of unfair prejudice to other parties.
Ariz. R. Civ. P. 26(b)(5). Because this 150 day limit is inextricably intertwined with Arizona substantive law, it applies in federal court. Wester v. Crown Controls ...