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Benedict v. Total Transit, Inc. - 9/9/2021

Arizona Court of Appeals Division One holds that an ex-spouse has authority to sue on behalf of minor surviving children.


A cabdriver struck two pedestrians crossing a major Phoenix street at night outside a crosswalk.  One of the pedestrians, a father of two daughters, died.  His ex-wife sued the cabdriver and the cab company on behalf of the daughters, asserting authority under A.R.S. § 12-612(A).  The trial court allowed the ex-wife to maintain the suit, over the argument of the cabdriver and cab company that the ex-wife lacked authority because she was not the personal representative of the decedent’s estate.  The other pedestrian was severely injured, and her father sued these same defendants on her behalf.  The cases were consolidated.  At trial, the court allowed expert testimony over the cabdriver’s and cab company’s objections that the subject matter of the testimony was not adequately disclosed in discovery.  The trial court also gave jury instructions on apparent and actual authority for agency liability but declined to give a jury instruction on employment liability.  Two different sets of six jurors in the jury returned verdicts for both pedestrians, but in different amounts and with different allocations of fault for each.  The cabdriver and cab company objected to the verdicts as being inconsistent but did not request the case be returned to the jury.

The Court of Appeals affirmed.  The Court of Appeals first held that the plain language of A.R.S. § 12-612(A) allowed the ex-wife to maintain the lawsuit on behalf of her minor children even though the ex-wife was not the personal representative of the decedent’s estate.  As the Court of Appeals explained, nothing in A.R.S. § 12-612(A) requires wrongful death actions on behalf of minor children to be brought by the personal representative of the decedent’s estate.  Rather, because children are both statutory plaintiffs and beneficiaries under the statute, any appropriate representative may represent them in a wrongful death action for their parent. 

The Court of Appeals next held that the subject matter of the expert’s testimony had been adequately disclosed.  The Court of Appeals further held that the trial court properly gave the instruction on actual authority and properly declined to give the instruction on employment liability.  And while the Court of Appeals held the trial court erred in giving an instruction on apparent authority since no facts supported that instruction, the Court of Appeals held the error was harmless because there was evidence supporting liability under the theory of actual authority.  The Court of Appeals finally upheld the verdicts as supported by the record and as consistent with each other, given differences in the facts surrounding the two pedestrians.  And even if the verdicts could be considered inconsistent, the Court of Appeals held the cab driver and cab company waived the issue by failing to request the case be returned to the jury.

Judge Williams authored the opinion in which Judges Thumma and Weinzweig joined.

Posted by: Travis Hunt

Posted On: 11/3/2021