United States District Court, D. Arizona
Marc A. Wichansky, Plaintiff,
David T. Zowine, et al., Defendants.
G. Campbell United States District Judge
Wichansky has provided a proposed form of judgment (Doc.
507), Defendants have objected and proposed their own form
(Doc. 517), and Plaintiff has responded (Doc. 519). A few
issues require further briefing.
Joint and Several Liability.
jury found $11, 000, 000 in compensatory damages for breach
of fiduciary duty, and allocated fault among some Defendants.
Doc. 500. Plaintiff’s form of judgment would appear to
permit him to recover $11, 000, 000 from Defendant Zowine,
$1, 100 from the Ilardo Defendants, $550, 000 from Defendant
Johnson, $110, 000 from Defendant Leon, and $27, 500 from the
Shanahan Defendants. Doc. 507-1. In his response, Plaintiff
acknowledges that he can recover no more than $11, 000, 000.
Doc. 519. Without citing any authority, Arizona or otherwise,
Plaintiff argues that he may recover all of the $11, 000, 000
from Defendant Zowine, or may recover amounts in accordance
with the jury’s allocation of fault, or may recover
something in between. Id. at 2-3. But this is
possible only if Defendants are jointly and severally liable
for the $11, 000, 000 in total damages. Plaintiff fails to
address the fact that Arizona has abolished joint and several
liability in most cases:
In an action for personal injury, property damage or wrongful
death, the liability of each defendant for damages is several
only and is not joint, except as otherwise provided in this
section. Each defendant is liable only for the amount of
damages allocated to that defendant in direct proportion to
that defendant’s percentage of fault, and a separate
judgment shall be entered against the defendant for that
amount. To determine the amount of judgment to be entered
against each defendant, the trier of fact shall multiply the
total amount of damages recoverable by the plaintiff by the
percentage of each defendant’s fault, and that amount
is the maximum recoverable against the defendant.
A.R.S. § 12-2506(A). As the Arizona Supreme Court has
explained, “The 1987 amendment, codified at A.R.S.
§ 12-2506, establishes a system of comparative fault,
making ‘each tortfeasor responsible for paying his or
her percentage of fault and no more.’
Dietz v. Gen. Elec. Co., 169 Ariz. 505, 510, 821
P.2d 166, 171 (1991). Under this system of several-only
liability, plaintiffs, not defendants, bear the risk of
insolvent joint tortfeasors.” State Farm Ins. Cos.
v. Premier Manufactured Sys., Inc., 172 P.3d 410, 413
(Ariz. 2007) (emphasis in Deitz).
statute recognizes three exceptions to this rule, two of
which are potentially applicable to this case: where Zowine
and the other Defendants were “acting in concert,
” and where the other Defendants were acting as
“an agent or servant” of Zowine. A.R.S. §
12-2506(D)(1) & (2). The phrase “acting in
concert” is specifically defined in the statute.
See § 12-2506(F)(1). The parties do not address
whether either of these exceptions applies.
even if one or both of these sections could apply, the jury
was not asked to decide whether Defendants were acting in
concert of were agents of one another within the meaning of
A.R.S. § 12-2506. The parties do not address this fact.
argue that the jury awarded a total of $14, 375, 000 in
punitive damages, and that this amount must be allocated
among the Defendants found at fault. Doc. 517 at 2. The Court
does not agree. The verdict form was clear. The $14, 375, 000
constituted the amount of “punitive damages . . .
assessed against Defendant Zowine.” Doc. 500 at 2. The
punitive damages assigned to Defendants Johnson, Leon, and
Shanahan were “the amount of punitive damages that
should be assessed against that Defendant.”
Id. at 5.
Judgments of Acquittal.
concedes that judgments of acquittal should be entered
against Defendants Costello, Knowlton, Mayo, and Narducci,
whom the jury found not liable, but fails to acknowledge that
the Court granted judgment in favor of Defendants Grant,
Gonzales, and Sarah Shanahan for their allegedly tortious
conduct. Doc. 478. All of these Defendants will be included
in the final judgment.
does not dispute “the rule in Arizona that prejudgment
interest may not be awarded unless the claim for payment is
liquidated prior to judgment.” Fairway Builders,
Inc. v. Malouf Towers Rental Co., 603 P.2d 513, 535
(Ariz.Ct.App. 1979). Relying on Fairway Builders,
Plaintiff argues that the amount at issue in this case was
liquidated. The Court does not agree. Fairway
Builders found the amount to be liquidated because the
contract at issue called for “compensation at cost plus
ten percent.” Id. No similar formula existed
here. Plaintiff asked the jury to compensate him for damages
caused by Defendant Zowine’s breach of fiduciary duty,
which were not subject to precise calculation. See Pueblo
Santa Fe Townhomes Owners’ Ass’n v. Transcon.
Ins. Co., 178 P.3d 485, 496 (Ariz.Ct.App. 2008)
(“Damages are liquidated if the evidence of damages
furnishes data which, if believed, makes it possible to
compute the amount of damages with exactness, without relying
upon opinion or discretion. Thus, prejudgment interest ...