1. 3/2/2006Class 231 Class 23, Thursday, March 2 Announcements FridayEssay Midterm. 80 minutes. One fact pattern; one question. Today’s agenda Taylor v. State Farm Work on applying PER Nanakuli v. Shell Oil

2. 3/2/2006Class 232 Don’t Panic.

3. 3/2/2006Class 233 Some Midterm Instructions For bluebook users, use PEN only. Write on every other line, one side of the page only (in other words, on the front only of each page, not on the back). Please write legibly. For computer users, please double space. If you believe that there is an ambiguity or information missing, explain what you believe the ambiguity or missing information entails and explain how it affects your answer. Do not ask the proctors for any clarifications.

4. 3/2/2006Class 234 Visual Executed Writing PER may be likened to a semi-permeable membrane that surrounds an executed writing Extrinsic evidence Extrinsic evidence Extrinsic evidence

5. 3/2/2006Class 235 Different visual prelim.executory negotiationsperiod -------------------|-------------------------------------|------------------- t K formation performance due priorcontemp. oralsubsequentoral or writtencontemp.written written PER applies

6. 3/2/2006Class 236 4 corners approach Integration--turns on the intention of the parties with regard to the writing they execute. 4 corners rule, p. 385 Under this rule, where do you look to determine the intention of the parties? Under this rule, why isn’t parol evidence admissible to determine the intention of the parties with regard to the writing they have executed?

7. 3/2/2006Class 237 modern, contextual approach as with the 4 corners approach, integration depends on the intention of the parties under this rule, where do you look to determine the intention of the parties? under this approach, a writing cannot establish its own completeness court looks at the writing and the offered parol evidence and then makes a determination re: intention of the parties

8. 3/2/2006Class 238 4 corners v. modern contextual with each, court asks—when the parties have reduced their agreement to a signed writing, what inference are we to draw for two matters: (1) the finality of the terms contained therein; (2) the completeness of the writing—does it embody the complete agreement of the parties so that parol evidence is inadmissible

9. 3/2/2006Class 239 PER (1) parties execute a writing (2) one or both attempt to introduce extrinsic evidence interpret/explain admissibility turns on ambiguity difference in jurisdictional approach add to/vary admissibility turns on integration (1) is the writing integrated? [are the terms in the writing final?] (2) how integrated is it? [is the writing complete/exclusive?]

10. 3/2/2006Class 2310 add to/vary admissibility turns on integration (1) is the writing integrated? [are the terms in the writing final?] If no, then writing doesn’t bar extrinsic evidence; if yes, then contradictory evidence is excluded; if dealing with evidence of a consistent additional term, must ask the second integration question re: degree (2) how integrated is it? [is the writing complete/exclusive?]

11. 3/2/2006Class 2311 add to/vary (2) how integrated is it? [is the writing complete/exclusive?] 4 corners—does the writing appear complete on its face; merger/integration clause nearly dispositive modern contextual—factors—completeness of writing; merger/integration clause; transactional setting; parties

12. 3/2/2006Class 2312 Exceptions 1. Collateral agreement. Even a completely integrated writing does not exclude a collateral agreement. Key points are subject matter + consideration. 2. Evidence to show no valid agreement. Example--one party wants to introduce evidence that the writing was produced as a joke. Admissible because it is offered to show that there was no valid agreement. It doesn't mean that you will win. 3. Evidence that would allow one party to avoid the contract. Evidence to establish any of the policing doctrines from the previous chapter is admissible--fraud, misrepresentation, duress, etc. 4. Mistake, fraudulent misrepresentation. Although mistake under certain circumstances allows a party to avoid the contract, mistake here refers to where the parties, by mistake, fail to include a term in the contract. Evidence is admissible which may lead a court to reform the contract to reflect the intent of the parties. 5. Oral condition precedent. Written K might be subject to oral condition precedent not contained in writing.

13. 3/2/2006Class 2313 1. Collateral agreement. Even a completely integrated writing does not exclude a collateral agreement. Key points are subject matter + consideration.

14. 3/2/2006Class 2314 2. Evidence to show no valid agreement. Example--one party wants to introduce evidence that the writing was produced as a joke. Admissible because it is offered to show that there was no valid agreement. It doesn't mean that you will win.

15. 3/2/2006Class 2315 3. Evidence that would allow one party to avoid the contract. Evidence to establish any of the policing doctrines from the previous chapter is admissible--fraud, misrepresentation, duress, etc.

16. 3/2/2006Class 2316 4. Mistake, fraudulent misrepresentation. Although mistake under certain circumstances allows a party to avoid the contract, mistake here refers to where the parties, by mistake, fail to include a term in the contract. Evidence is admissible which may lead a court to reform the contract to reflect the intent of the parties.

17. 3/2/2006Class 2317 5. Oral condition precedent. Written K might be subject to oral condition precedent not contained in writing.

18. 3/2/2006Class 2318 Merger or integration clause e.g., Entire Agreement. This document constitutes the entire agreement of the parties and there are no representations, warranties, or agreements other than those contained in this document.

19. 3/2/2006Class 2319 Taylor v. State Farm Supreme Court of Arizona 175 Ariz. 148, 854 P.2d 1134 (1993)

20. 3/2/2006Class 2320 Who is suing whom? For what kind of damages? What is the subject matter of the transaction? What is the legal basis for the claim? What is the duty that P is claiming that D breached?

21. 3/2/2006Class 2321 What is the factual basis for the claim? Arguments/defenses? Who won at the trial court level? Appeal? This appeal?

22. 3/2/2006Class 2322 Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

23. 3/2/2006Class 2323 3 party accident Bobby Taylor Douglas Wistrom Anne Ring,driver James Rivers, passenger

24. 3/2/2006Class 2324 Taylor had two attorneys. One was retained by State Farm—Leroy Hofmann—to defend Taylor. Why did State Farm do this? Taylor hired an attorney, Norman Bruce Randall, to pursue a counterclaim against Ring for Taylor’s damages.

25. 3/2/2006Class 2325 Ring, her husband, and Rivers settled with Wistrom. The Rings and Rivers sued Taylor. As noted before, Taylor counterclaimed. Taylor lost the counterclaim. The Rings and Rivers obtained a judgment that, combined, was $2.5 million in excess of Taylor’s policy limits. These judgments were affirmed by the court of appeals. The Rings settled with State Farm. Taylor sued State Farm for the excess Rivers judgment.

26. 3/2/2006Class 2326 Taylor released “all contractual rights, claims, and causes of action he had or may have against State Farm under the policy of insurance in connection with the collision... and all subsequent matters.”

27. 3/2/2006Class 2327 is the express language reasonably susceptible to the meaning that Taylor is trying to establish? what is the meaning that Taylor is trying to establish? what extrinsic evidence supports Taylor’s meaning? what evidence supports State Farm’s meaning?

28. 3/2/2006Class 2328 Sherrodd, Inc. v. Morrison- Knudsen Co. Supreme Court of Montana 249 Mont. 282, 815 P.2d 1135 (1991)

29. 3/2/2006Class 2329 Who is suing whom? For what kind of damages? What is the subject matter of the transaction? What is the legal basis for the claim? What is the duty that P is claiming that D breached?

30. 3/2/2006Class 2330 What is the factual basis for the claim? Arguments/defenses? Who won at the trial court level? This appeal?

31. 3/2/2006Class 2331 Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

32. 3/2/2006Class 2332 Majority v. Dissent

33. 3/2/2006Class 2333 End of Class FridayEssay Midterm