Reported Cases

Mr. Berry has represented parties in numerous cases, some of which resulted in reported appellate decisions. Among those cases reported are the following:

• Olson v. Walker, 162 Ariz. 174, 781 P.2d 1015, 12 A.L.R. 5th 1020 (App. 1989). Landmark punitive damage case where court sustained punitive damage award against drunk driver because of the existence of “something more” than voluntary intoxication.
• Prieto vs. Provident Life & Accident Insurance Co., U.S. Court of Appeals for the Ninth Circuit. Judgment in favor of physicians for own occupation income disability benefits sustained on appeal including benefits not waived by physician prior to litigation.
• Services Holding Co. vs. Transamerica Occidental Life Insurance Company, 180 Ariz 189, 883 P.2d 435 (App. 1994). Insured’s claim for $1,000,000 life insurance death benefits upheld by court because insurer waived provision found in the fine print of the conditional receipt limiting benefits to $100,000 when insurance company’s calculation of the unearned premium refund was based upon a $1,000,000 death benefits and once such a waiver takes place, it cannot be unwaived.
• Fidelity Security Life Insurance Company vs. Department of Insurance, 191 Ariz. 222, 954 P.2d 580 (1998). Arizona Supreme Court held that the state of Arizona was not entitled to absolute immunity for an administrative decision where Arizona Insurance Department failed to follow provision of state insurance code mandating that insurance director “revoke or suspend” an insurer’s certificate of authority if that insurance company was insolvent; Another insurance company who was damaged when doing business with an insolvent insurance company may maintain a cause of action against the Arizona Insurance Department to recover damages caused thereby.
• Great Southwest Fire, Ins. Co. vs. Triple “I” Ins. Services, 151, Ariz. 283, 727 P.2d 336 (1986). Arizona Supreme Court held that final judgment entered in insurance company’s lawsuit against insurance producer was violation of the automatic stay provision of the United States Bankruptcy Code and violated the supremacy clause of the United States Constitution.
• Radkowsky v. Provident Life & Accident Ins. Co., 196 Ariz. 110, 993 P.2d 1074 (App. 1999). “The interpretation of an insurance contract is a question of law reviewed by us de novo.”; In an income disability claim, courts focus on the uniqueness and specific tasks of the insured’s occupation to determine whether he can no longer engage in his profession in the usual or customary way.
• Principle Casualty Ins. Co. vs. Progressive Casualty Ins. Co., 172 Ariz. 545, 838 P.2d 1306 (App. 1992). Insurance company’s policy exclusion for underage drivers violated Arizona’s financial responsibility laws requiring minimum liability insurance.
• Haldiman vs. Goznell Development Corp., 155 Ariz. 585, 748 P.2d 1209 (App. 1988). Recovery or attorneys fees against real estate agent for malpractice not allowed because cause of action did not “arise out of a contract” as required by A.R.S. § 12-341.01.
• Gardner vs. Arizona Department of Economic Security, 127 Ariz. 603, 623, P.2d 33 (App. 1980) (opinion by Sandra Day O’Connor). Arizona Court of Appeals “does not sit as a triar of fact and will not substitute its views of the facts for that found by the administrative agency…”
• Russell vs. Royal Maccabees Ins. Co., 193 Ariz. 464, 974 P.2d 443 (App. 1998). Summary Judgment in favor of insurance company under income disability policy was improper because there was a question of material fact whether the individual’s response on an insurance application that he had not been convicted of a felony was an expression of fact or an opinion.
• Ryder Truck Rental vs. Rodriquez, 191 Ariz. 138, 953 P.2d 178 (App. 1998). Summary Judgment in favor of insurance company was reversed because of the existence of disputed facts concerning coverage for driver where renter wrote a bad check but may still be an insured renter. Issue remained as to whether rental company made reasonable efforts to cancel the rental contract.
• Bustos v. W.M. Grace Dev., 192 Ariz. 396, 966 P.2d 1000 (App. 1997). Under Arizona law, insurance medical payments paid to an injured party from the Defendant’s insurance carrier may be credited against the Defendant’s tort liability coverage.
• Alber’s vs. Edelson Tech. Partners, L.P., 201 Ariz. 47, 31 P.3rd 821. Dismissal of certain allegations of the Complaint concerning corporate voting power, stock options, salary and employment contracts were reversed because they were not derivative actions.
• Brenter vs. Gallinger [Director of Insurance], 173 Ariz. 75, 839 P.2d 1120 (App. 1992). Administrative Hearing Officer at Arizona Insurance Department has broad discretion in considering admissibility of evidence in disciplinary proceeding against licensee
• Herstam [Director of Insurance] vs. Deloite & Touche, LLP, 186 Ariz. 110, 119 P.2d 1381 (App. 1996). Settlement on behalf of directors of life insurance company in receivership was affirmed because joint and several liability statute conferring benefit on the insurance company receiver could be waived.
• Boston Mutual Insurance vs. Murphee, U.S. Court of Appeals for the Ninth Circuit