                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                ALMA HOLCOMB, et al., Plaintiffs/Appellants,

                                         v.

         AMERICAN VALET MEDICAL TRANSPORT LLC, et al.,
                     Defendants/Appellees.

                              No. 1 CA-CV 16-0406
                                FILED 4-5-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-054947
                  The Honorable John R. Hannah, Judge

                                   AFFIRMED


                                    COUNSEL

Scott M. Harris, P.C., Scottsdale
By Scott M. Harris
Co-Counsel for Plaintiffs/Appellants

Todd D. Weintraub, PLLC, Scottsdale
By Todd D. Weintraub
Co-Counsel for Plaintiffs/Appellants

Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By Kevin C. Nicholas, Shawn M. Petri, Robert C. Ashley
Counsel for Defendants/Appellees
                 HOLCOMB v. AMERICAN VALET, et al.
                       Decision of the Court



                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Kent E. Cattani joined.


H O W E, Judge:

¶1          Alma and Donald Holcomb appeal the trial court’s summary
judgment for American Valet Medical Transport, LLC, American Valet &
Limousine, Inc., Michael Leon Currie, and Patricia Currie (collectively,
“American Valet”) on their negligence claim. For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             American Valet contracted with Mayo Clinic to provide
transportation between its two Phoenix-area campuses for its employees
and patients.1 While riding in an American Valet shuttle traveling between
the Mayo Clinic locations, the Holcombs were injured when a third party
struck the shuttle. They filed this negligence action alleging that American
Valet owed them duties of care, including to act reasonably under the
circumstances, to provide safe transport, and to adhere to industry
standards and its own standards. They claimed that American Valet
breached its duties of care by failing to provide safe transport, seatbelts, and
a lack of seatbelts warning.

¶3             During discovery, the parties deposed Steven Bergstrom,
American Valet’s account manager for the 14-passenger shuttles used at
Mayo Clinic. His responsibilities included keeping the shuttles in
operational order, scheduling drivers for the shuttles, driving a shuttle, and
collecting fuel receipts for the billing report. He testified that at the time of
the incident, the Mayo Clinic account had shuttles 41, 44, and 46. When the
Holcombs were injured, however, they were riding in shuttle 12, which was
not a “regular backup” for the Mayo Clinic account. He took shuttle 12 from


1       The contract contained an integration clause, which stated that
“[t]his Agreement together with the Exhibits hereto constitutes the entire
agreement between the parties with respect to its subject matter and
supercedes [sic] all past and contemporaneous agreements, promises, and
understandings, whether oral or written, between the parties.”


                                       2
                 HOLCOMB v. AMERICAN VALET, et al.
                       Decision of the Court

another hospital’s account because a primary shuttle and backup shuttle for
the Mayo Clinic account were not functioning.

¶4            Bergstrom testified that he had “no idea” what the contractual
agreement between American Valet and Mayo Clinic stated nor had he seen
the agreement. He also stated that he did not have any direct
communication with Mayo Clinic about a seatbelt requirement for its
shuttles. Bergstrom did believe, however, that American Valet was
contractually required to equip all permanent shuttles used for the Mayo
Clinic account with seatbelts. He believed so because his “boss,” Brian
Lubbs, mentioned that American Valet was contractually obligated to have
seatbelts in Mayo Clinic’s shuttles. Bergstrom clarified that he had heard
about the obligation only through Lubbs and that he had never seen the
contract and had never been a party to any contractual negotiations
between American Valet and Mayo Clinic. He also clarified that he had
never discussed the issue with any other American Valet personnel,
including Mike Pendergraft, who was listed as the primary contact
regarding services under the Mayo Clinic agreement. During Bergstrom’s
deposition, he did not state Lubbs’s specific position with American Valet
or if Lubbs had seen the Mayo Clinic agreement or participated in
negotiating its terms.

¶5            American Valet moved for summary judgment, arguing that
it did not have a duty to provide seatbelts in the shuttle. The Holcombs
cross-moved for summary judgment, asserting that American Valet’s
contract with Mayo Clinic or its undertaking to provide shuttle services
established a duty of care to provide seatbelts in the shuttle. In their
respective responses and replies, the parties continued to state that the issue
was whether American Valet had a duty to provide seatbelts rather than a
general duty of care.

¶6            The trial court granted summary judgment for American
Valet, ruling that it “had no duty, under Arizona law, to install [seatbelts]
in its transport vehicles.” The court found that American Valet’s written
contract with Mayo Clinic did not require American Valet to provide
seatbelts. The court also found that because the contract included an
integration clause, extrinsic evidence was inadmissible to prove that the
parties intended to have a seatbelt requirement. The court further found
that Bergstrom did not have firsthand knowledge of the agreement or
negotiations between Mayo Clinic and American Valet. The Holcombs
timely appealed.




                                      3
                 HOLCOMB v. AMERICAN VALET, et al.
                       Decision of the Court

                               DISCUSSION

¶7              The Holcombs argue that American Valet breached its duty
to provide seatbelts in the shuttles it operated on behalf of Mayo Clinic, and
thus the trial court erred by granting summary judgment for American
Valet.2 This Court reviews entry of summary judgment de novo, viewing
the facts in the light most favorable to the party against whom the court
entered judgment. Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71 ¶ 11 (App.
2011). “We will affirm summary judgment only if there is no genuine issue
as to any material fact and the party seeking judgment is entitled to
judgment as a matter of law.” Id. We must determine whether the judgment
rather than the reasoning of the trial court was correct, Picaso v. Tucson
Unified Sch. Dist., 217 Ariz. 178, 181 ¶ 9 (2007), and will affirm a judgment
if the trial court was correct in its ruling for any reason, Gnatkiv v. Machkur,
239 Ariz. 486, 488 ¶ 1 (App. 2016).

¶8              To establish American Valet’s negligence, the Holcombs must
prove (1) the existence of a duty recognized by law requiring American
Valet to conform to a certain standard of care, (2) American Valet’s breach
of that standard, (3) a causal connection between American Valet’s conduct
and the Holcombs’ injury, and (4) actual damages. See Gipson v. Kasey, 214
Ariz. 141, 143 ¶ 9 (2007). Whether a duty exists is a question of law for the
court to decide, whereas the remaining three elements are generally issues
of fact for a jury. Id.

¶9             A duty is an “obligation, recognized by law, which requires
the defendant to conform to a particular standard of conduct in order to
protect others against unreasonable risks of harm.” Id. at ¶ 10. The standard
of care, in contrast, is the specific thing the defendant must do or not do to
satisfy its duty. Id. In determining whether a duty exists, a court examines
the parties’ relationship and public policy considerations. Quiroz v. ALCOA
Inc., 240 Ariz. 517, 519–20 ¶ 8 (App. 2016). “Duties of care may arise from



2       Although the trial court ruled that American Valet did not have a
duty to install seatbelts in the Mayo shuttles, it did not address whether
American Valet owed the Holcombs a duty of care, which was alleged in
their amended complaint. The Holcombs have not raised this issue in their
opening or reply briefs, however, and at oral argument they continued to
argue that the disputed issue was whether American Valet had a duty to
install seatbelts. As such, they have waived this issue on appeal, and we
will not address it. See Dawson v. Withycombe, 216 Ariz. 84, 100 n.11 ¶ 40
(App. 2007).


                                       4
                 HOLCOMB v. AMERICAN VALET, et al.
                       Decision of the Court

special relationships based on contract, family relations, or conduct
undertaken by the defendant.” Gipson, 214 Ariz. at 145 ¶ 18.

¶10            The Holcombs argue that American Valet’s agreement with
Mayo Clinic created a legal duty to equip Mayo Clinic’s shuttles with
seatbelts. The primary goal in interpreting the language of a contract is to
ascertain and give effect to the intent of the parties. Taylor v. State Farm Mut.
Auto. Ins. Co., 175 Ariz. 148, 152 (1993). “The parol evidence rule, as
traditionally stated, renders inadmissible any evidence [of] prior or
contemporaneous oral understandings and of prior written
understandings, which would contradict, vary or add to a written contract
which was intended as the final and complete statement or integration of
the parties’ agreement.” Pinnacle Peak Developers v. TRW Inv. Corp., 129 Ariz.
385, 389 (App. 1980). Parties may present parol evidence, however, to show
that a modification to the written contract subsequently took place. Ammer
v. Ariz. Water Co., 169 Ariz. 205, 212 (App. 1991). Additionally, the parol
evidence rule applies only when the parties to an action seek to enforce
obligations that arise from the contract. Id.

¶11           Here, the written contract between American Valet and Mayo
Clinic did not require the installation of seatbelts in Mayo Clinic’s shuttles,
and the contract included a clear integration clause. If the Holcombs were
attempting to introduce Bergstrom’s testimony to require American Valet
to equip the shuttles with seatbelts, then the parol evidence rule would
preclude Bergstrom’s testimony. The Holcombs, however, are not seeking
to enforce the alleged obligation and are instead attempting to show only
that a contractual duty existed. Additionally, the Holcombs are allowed to
present parol evidence to show that a modification to the written contract
occurred. As such, the parol evidence rule is inapplicable and the trial court
erred by finding that extrinsic evidence was inadmissible to prove that the
parties entered into an agreement requiring seatbelts.

¶12           Even if Bergstrom’s testimony is considered however, the
Holcombs still did not present sufficient evidence to support their claim.
Bergstrom’s testimony did not state that the contract, original or modified,
required seatbelts in all Mayo Clinic shuttles. Instead, he stated that he
believed that the contract required seatbelts only for Mayo Clinic’s
permanent shuttles. He made this distinction multiple times during his
deposition. Because the subject shuttle was not one of Mayo Clinic’s
permanent shuttles, Bergstrom’s testimony does not affect the outcome of
this case. Thus, the trial court did not err by finding that American Valet
did not have a contractual duty to provide seatbelts in the subject shuttle



                                       5
                 HOLCOMB v. AMERICAN VALET, et al.
                       Decision of the Court

even though we disagree with its reasoning. See Gnatkiv, 239 Ariz. at 488
¶ 1.

¶13             The Holcombs also argue that under Restatement (Second) of
Torts (“Restatement”) § 324A, American Valet’s conduct, practice, and
undertaking created a legal duty to equip Mayo Clinic shuttles with
seatbelts. If a person voluntarily undertakes an act, then that person must
perform the duty with due care and is liable for any lack of due care in
performing it. Steinberger v. McVey ex rel. Cty. of Maricopa, 234 Ariz. 125, 137
¶¶ 45–46 (App. 2014). A party who undertakes a duty to render services to
another, gratuitously or for consideration, is subject to liability to a third
person for harm resulting from a failure to exercise reasonable care if (a) the
failure to exercise reasonable care increases the risk of such harm, (b) the
party has undertaken to perform a duty owed by the other to the third
person, or (c) the harm is suffered because of reliance of the other or third
person upon the undertaking. Restatement § 324A(a)–(c); see also Collette v.
Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 366 ¶ 31 (App. 2002) (using
Restatement § 324A to determine whether a duty existed).

¶14           The Holcombs rely on Bergstrom’s testimony to show that
American Valet voluntarily undertook a duty to provide seatbelts in the
Mayo Clinic shuttles. Although Bergstrom did not have firsthand
knowledge of the contract, he was qualified to testify to American Valet’s
conduct that he observed. But Bergstrom asserted that only Mayo Clinic’s
permanent shuttles were required to have seatbelts. The shuttle at issue,
however, was not one of the permanent Mayo Clinic shuttles, and the
Holcombs have not presented evidence that Mayo Clinic or American Valet
undertook a duty to provide seatbelts in nonpermanent shuttles. Thus,
§ 324A(b) is inapplicable. The Holcombs also have not presented evidence
that they knew about the alleged undertaking to have seatbelts in the
subject shuttle or that they relied on the undertaking. Therefore, § 324A(c)
is also inapplicable. Regarding § 324A(a), American Valet did not increase
the Holcombs’ risk of harm. The general risk of harm in this case is injury
from a motor accident. American Valet did not undertake the duty of
providing seatbelts in the temporary shuttle, and thus its inaction did not
increase the risk of harm to the Holcombs. As such, the court correctly
determined that § 324A was inapplicable.3


3     Because we have affirmed the trial court’s ruling on other grounds,
we need not address American Valet’s argument that this Court should
nevertheless affirm the trial court’s summary judgment on the alternative



                                       6
                HOLCOMB v. AMERICAN VALET, et al.
                      Decision of the Court

                              CONCLUSION

¶15          For the foregoing reasons, we affirm. We will award costs to
American Valet upon its compliance with Arizona Rule of Civil Appellate
Procedure 21.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




basis that the Holcombs failed to demonstrate that the lack of seatbelts in
the shuttle caused or enhanced their injuries.



                                        7
