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Isbell v. State8/31/2000
VACATED
This is a wrongful death action brought by Isbell against the State of Arizona for the death of her husband, who was killed when the truck he was driving collided with a train at a crossing in Chandler. The case was here before. Southern Pac. Transp. Co. v. Yarnell, 181 Ariz. 316, 890 P.2d 611 (1995). Since then, Southern Pacific settled. The case against Maricopa County is resolved by separate opinion. We here address only the claim against the State.
In Yarnell, we held "that the documents exempt from discovery and excluded from evidence under [23 U.S.C.] § 409 are precisely the documents described and prepared under the authority of §§ 130, 144, and 152, and no others." 181 Ariz. at 319, 890 P.2d at 614. On remand, the trial court admitted into evidence an order of the Arizona Corporation Commission, filed four years before the accident, which required improvements at the crossing. The jury returned a verdict in favor of Isbell and against the State. The court of appeals reversed, holding, among other things, that the order of the Commission was inadmissible under 23 U.S.C. § 409. Believing that this ruling was inconsistent with our opinion in Yarnell, we granted review. Rule 23(c)(3), Ariz. R. Civ. App. P.
I.
In 1995, Congress amended 23 U.S.C. § 409 to add the words "or collected" after the words "data compiled." The amendment was designed to ensure that "raw data collected prior to being made part of any formal or bound report" is also within the scope of the statute. H.R. Rep. No. 104-246, at 59 (1995), reprinted in 1995 U.S.C.C.A.N. 522, 551. This makes it clear that if data is either compiled or collected pursuant to 23 U.S.C. § 130, then the rule of exclusion under § 409 applies.
The court of appeals believed that this amendment made a difference here. Isbell v. State of Arizona, 1 CA-CV 98-0209, slip op. at 7-8 (App. filed May 13, 1999). It believed that the order of the Commission was a "report" within the meaning of § 409, but that even if it was not, it contained protected "collected" data. Id. at 9. We disagree.
The Commission order is not a document described and prepared under the authority of 23 U.S.C. § 130. Yarnell, 181 Ariz. at 319, 890 P.2d at 614. 23 U.S.C. § 130(d) requires states to conduct "a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." The order of the Commission is neither a survey nor a schedule within the meaning of this statute. Nor was it prepared under its authority. Instead, the Commission prepared the order in this case under the authority of A.R.S. §§ 40-337 and 40-337.01, Arizona's own statutory scheme for regulating railroads. The Commission was authorized and obligated to issue such orders long before there was any federal program. Its order quotes § 40-337(C) and was entered because A.R.S. § 40-337.01(B) requires the Commission to issue such an order whenever it determines that a crossing is sufficiently hazardous to warrant automatic gates. This obligation existed with or without federal funding. That the order acknowledged the existence of federal funding did not relieve the Commission of its requirement to enter such an order under Arizona law. In addition, the State does not controvert Isbell's contention that any federal funding here was approved before the order was entered.
There is yet another reason why the order is not within the scope of 23 U.S.C. § 409. Those documents excluded from evidence under 23 U.S.C. § 409 are also exempt from discovery. And yet orders of the Commission are matters of public
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