Free Report re: Rule 26(f) Planning Meeting - District Court of Arizona - Arizona

1 Kurt M. Zitzer, Arizona Bar No. 014110 John C. Hendricks, Arizona Bar No. 019493
2 Kathleen L. Beiermeister, Arizona Bar No. 020989

Neil Singh, Arizona Bar No. 021327

3 MEAGHER & GEER, P.L.L.P.
4 Scottsdale, AZ 85258

8800 North Gainey Center Drive, Suite 261

(480) 607-9719 5 Attorneys for Scottsdale Insurance Company
6 7
8

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

10
11

9 Scottsdale Insurance Company, an Ohio corporation,
Plaintiff,
vs.

No. CV 04-118-PHX-SMM

JOINT CASE MANAGEMENT PLAN
(Assigned to the Honorable Stephen M McNamee)

12 Market Finders Insurance Corporation, a Kentucky corporation;
13

14
15

Defendant.

Counsel for plaintiff and defendant have conferred and submit the following as their Joint

16 Case Management Report in this action.

17 1.
18

NATURE OF THE CASE; FACTUAL AND LEGAL BASIS OF CLAIMS AND DEFENSES
A. Plaintiff's Contentions
The Defendant in this case, Market Finders, is an excess and surplus lines insurance

19

20

21 broker "specializing in unusual and hard-to-place insurance products," including medical

22 professional liability insurance ("MPLI") for medical professionals such as anesthesiologists. In

23 approximately 1994-1995, Market Finders approached the Plaintiff, Scottsdale Insurance
24 Company ("SIC") through its then President, Vicki Kartchner, in an effort to convince her that
25 SIC should provide the paper for Market Finders' existing MPLI program. Specifically, Market

26 Finders held itself out to SIC as an expert in MPLI programs and, since SIC had no prior

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1 experience with such programs, offered to put the whole program together for sic. Market

2 Finders' motivation for approaching sic was two-fold - other insurers that had been

3 underwriting Market Finders' MPLI program had gotten out of the business, and sic had a

4 reputation as a high-quality insurer with an excellent rating and reputation.
5

In May, 1995, sic entered into a general agency agreement with Market Finders

6 (hereinafter the "Agreement"). Pursuant to the Agreement, Market Finders had full binding
7 authority to issue MPLI policies on sic "paper" covering oral/maxillofacial surgeons. In July,

8 1999 the scope of the Agreement was expanded to include MPLI policies issued to
9 anesthesiologists and related medical professionals.

10

In entering into that relationship with Market Finders, sic relied entirely on Market

11 Finders' expertise in the MPLI arena, and on the marketing materials provided by Market
12 Finders.

Those materials included all of the pertinent information about Market Finders'

13 existing program (e.g., claim history) and all of the related documents needed by sic and

14 prepared by Market Finders - right down to the application form to be completed by prospective
15 insureds. In short, SIC's role was merely to replace Evanston as the provider of "the paper" for

16 Market Finders' existing MPLI program.
17

By its own design, Market Finders continued to be responsible for all marketing and

18 primary underwriting of its MPLI program and that, although sic did agree to the agency
19 relationship with Market Finders for that purpose, sic had no primary underwriting

20 responsibilities whatsoever.

Indeed, pursuant to its agreement with Market Finders, sic

21 typically (and in this case) did not even see the underwriting materials collected by Market

22 Finders, or the MPLI policies bound and issued by Market Finders, until months after the
23 policies were issued - i.e., after any underwriting mistakes had already been made by Market
24 Finders and could not be corrected vis-à-vis the insureds.
25

The scope of SIC's agency relationship with Market Finders and SIC's limited role in the

26 underwriting process is critical to this case because it explains why Market Finders is solely
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1 responsible for the consequences of the breach of its Agreement and duties to sic. Specifically,
2 Market Finders was admittedly and solely responsible for the entire primary underwriting
3 process. That level of responsibility was expressly contemplated by both Market Finders and

4 sic when they entered into the Agreement. The primary underwriting process at issue in this

5 case had concluded between Market Finders and the insured months before sic was provided
6 with any information pertinent to the Policy or the related issues giving rise to this dispute.
7

As noted, after establishing its relationship with sic in the MPLI arena, Market Finders

8 expanded that relationship to include a specialized area of MPLI providing coverage to
9 anesthesiologists and nurse anesthetists. Market Finders worked with a retail agent, Health
10 Insurance Services ("HIS"), to market that portion of the program to anesthesiology practices

11 and their professional employees. One such practice was Anesthesiology Consultants of Toledo

12 ("ACT") - which employed Dr. Dinius and Nurse Anesthetist, Natividad Buyoc.
13

As SIC's agent, Market Finders solicited ACT's business through HIS and submitted a

14 proposal for the MPLI policy it proposed to issue to ACT, Dinius, Buyoc and others in their
15 practice.
One of the issues expressly addressed in that proposal was Market Finders'

16 responsibility for emolling eligible prospective insureds in the Fund. Specifically, the proposal
17 states that "the insured to advise HIS of any entities that require emollment in the Indiana

18 Patient Compensation Fund." Market Finders also agreed to pay the premiums associated with
19 emolling eligible insureds in the Fund.
20

HIS/ACT accepted Market Finder's proposal and, pursuant to Market Finders' authority

21 from sic pursuant to the general agency agreement, a policy (the "Policy") was bound and

22 issued effective August 31, 1999, covering Dinius, ACT, Buyoc and others. At the time the
23 Policy was issued, Dr. Dinius was licensed to practice in Indiana and had practiced in Indiana
24 during the prior year. Thus, at the time the Policy was issued, Dr. Dinius faced exposure for any

25 actual or potential medical malpractice claims arising out of that practice.

26
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1

In issuing the Policy, Market Finders breached the Agreement with SIC and failed to

2 follow its own practice and accepted industr standards, by (1) failing to enroll Dr. Dinius in the

3 Indiana Patient Compensation Fund. Had Dr. Dinius properly been emolled in the Fund, his
4 liability for medical malpractice claims arising from his former practice in Indiana, but asserted

5 during the SIC policy period, would have been capped at $250,000; and (2) by failing to
6 otherwise limit Dr. Dinius' available coverage under the SIC policy. For example, Market
7 Finders could have set Dr. Dinius' policy limit for Indiana claims at the $250,000 Fund cap
8 amount.

9

Indeed, Market Finders initially included Dr. Dinius on a Policy endorsement did just
the Policy was issued December 06, 1999 and effective at

10 that. Specifically, Endorsement 13 of

11 the Policy's inception. Endorsement 13 was applicable to all anesthesiologists in the insured

12 practice who were to be emolled in the Fund, and capped each of their Policy limits at a
13 $250,000 sub

limit applicable to Indiana claims. For reasons discussed in more detail below,

14 that endorsement was amended shortly thereafter to exclude Dr. Dinius.
15

Making sure that all eligible professionals were emolled in the Fund was an absolutely

16 essential part of the insurance program that Market Finders sold to SIC. Without the Fund,
17 medical malpractice insurance had become unavailable in Indiana at an affordable price. See,
18 McCarty v. Sanders, 805 N.E.2d 894, 899 (Ind. App. 2004) (citations omitted). Like most other

19 insurers, SIC was not interested in providing coverage for Indiana malpractice claims against
20 professionals who were not emolled in the Fund. At a bare minimum, SIC could not have

21 provided such coverage at the premiums that medical professionals were willing to pay and that
22 Market Finders wanted to charge.
23

Ultimately, a significant and meritorious claim against Dr. Dinius was filed in Indiana

24 during the SIC Policy period (hereinafter the "Conyers Claim"), and SIC was forced to pay
25 $1,377235.00 to the settle the claim, rather than the $250,000 Fund cap that should have applied

26 to claim. Market Finders' breach of its Agreement with Scottsdale and its standard of care in
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1 connection with the issuance of the Policy, and SIC's resulting liability for the Conyers
2 settlement, is the subject of this lawsuit.
3

As noted above, as of its effective date, the Policy included Endorsement 13, limiting
limit of $250,000.

4 Dr. Dinius' coverage to the Fund cap sub

That endorsement was later

5 amended by Endorsement 23, which removed Dr. Dinius from the list of Indiana doctors to
6 whom the $250,000 sub

limit applied.

7

It is undisputed that Market Finders did not receive the applications of any of the medical

8 professionals insured under the Policy, including Dr. Dinius, until weeks after the Policy had
9 been issued. Dr. Dinius' application, for example, is dated September 16, 1999 - more than two

10 weeks after the Policy incepted. The applications are critical in this case because they provide
11 two pieces of information about each individual insured that is directly relevant to the issues.
12

First, they indicate whether the medical professional is licensed to practice in Indiana - a

13 fact which determines whether he or she is eligible for emollment in the Fund. Dr. Dinius'
14 application indicates that he is licensed in both Indiana and Ohio.
15

Second, the application includes a series of questions about actual or potential medical

16 malpractice claims against the insured professional - including whether the doctor is aware of
17 any "unexpected or untoward anesthesia incidents" that took place in the five years prior to his

18 or her application. The answers to those questions are relevant to this case because Dr. Dinius
19 and his nurse anesthetist, Natividad Buyoc, allegedly committed malpractice in connection with

20 the Conyers claim - a claim for serious injuries allegedly caused by the negligent administration
21 and monitoring of anesthesia to Anita Conyers in April of 1999 -- approximately five months

22 before Dinius and Buyoc' s applications were submitted to Market Finders. While Dr. Dinius'
23 application does not mention the Conyers claim, Nurse Buyoc' s application clearly does.
24

Further, it appears that, in or about October 1999, Market Finders received additional

25 information about the Conyers claim in the form of Notice of Subrogation Lien to Dr. Dinius.
26
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1 Yet Market Finders still did nothing to investigate the claim, nor to limit the exposure of Dr.
2 Dinius or sic.
3

Finally, it appears that in December 1999, copies of the Policy and supporting

4 underwriting documentation was provided to sic for the first time. As noted, at that time the
5 Policy was endorsed to limit Dr. Dinius' coverage to the $250,000 sub

limit.

6

In failing to ensure that Dr. Dinius was properly emolled in the Fund and/or by failing to

7 otherwise limit or exclude coverage under the Policy for the Conyers claim, Defendant breached
8 the standard of care for insurance agents.

9

As a direct and proximate result of Defendant's breach, sic was damaged in the amount

10 of $1, 137,235.00, plus its related costs, fees and expenses.
11

There also was an express and implied contract between Scottsdale and Market Finders.

12 Market Finders was obligated under the terms of that contract to, among other things, ensure

13 that insured medical professionals subject to claims for services performed in the State of
14 Indiana were properly emolled in the Fund; that the coverage provided by Scottsdale with

15 respect to each such medical professional was limited to $250,000 per claim; and/or that the

16 coverage available under the Policy with respect to such claims was otherwise limited or
17 excluded.

18

Market Finders breached the terms of its contract with sic by failing to ensure that

19 insured medical professionals subject to claims for services performed in the State of Indiana

20 were properly emolled in the Fund; that the coverage provided by Scottsdale with respect to

21 each such medical professional was limited to $250,000 per claim; and/or that the coverage
22 available under the Policy with respect to such claims was otherwise limited or excluded.
23

As a direct and proximate result of Market Finder's breach, sic was damaged in the

24 amount of $1, 137,235.00, plus its related costs, fees and expenses.
25

sic is entitled to its attorney fees pursuant to A.R.S. § 12-341.01, and costs pursuant to

26 A.R.S. § 12-341.

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1

sic is entitled to prejudgment interest on its damages, which are liquidated. Trus Joist

2 Corp. v. Safeco Ins. Co. of America, 153 Ariz. 95, 109, 735 P.2d 125, 139 (Ct. App. 1986).
3

The Agreement between Scottsdale and Market Finders provides as follows:

4
5

The Agent agrees to indeinify and hold the Company harmless for any damages

resulting directly or indirectly from any violations of any insurance law or
Insurance Department regulation and/or breach of Agent's obligations under this Agreement.

6 7

As a direct and proximate result of Defendant's failure to ensure that Dr. Dinius was

8 properly emolled in the Fund, that the coverage provided by sic with respect to Dr. Dinius was

9 limited to $250,000 per claim, and/or that the coverage available under the Policy with respect

10 to such claims was otherwise limited or excluded, Scottsdale was damaged in the amount of
11 $1,137,235.00 -- which is the difference between $250,000.00 and the amount that Scottsdale
12 was required to pay in settlement of the claim against Dr. Dinius.
13

sic did not cause, contribute to, or compound the damage incurred.

14

sic also asserts its right to common law indeinity from Market Finders because
Market Finder's negligence and breach of contract.

15 Scottsdale, which is without independent fault, was forced to pay a settlement to resolve liability
16 against it as a result of

17

At all relevant times, Market Finders was SIC's general agent and, in that capacity, was

18 obligated to, among other things, act in good faith, confine its acts and conduct to the scope of

19 its actual authority, obey Scottsdale's instrctions and use due care and reasonable diligence in
20 transacting the business entrsted to it by Scottsdale.
21

By failing to properly emoll Dr. Dinius in the Fund, issuing the Policy with limits in

22 excess of those required by Indiana law and/or failing to ensure that the coverage available
23 under the Policy for the Conyers claim was otherwise limited or excluded, Market Finders

24 breached its duties to sic.
25

Market Finders' breach of its duties to Scottsdale directly and proximately resulted in

26 liability and damage to Scottsdale, as described above.
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1

B.

Defendant's Defenses

2

Defendant Market Finders denies that it breached any duty owed to Plaintiff Scottsdale

3 Insurance Company ("SIC"). Further, Defendant Market Finders denies any negligent conduct

4 and that it caused or contributed to the cause of the "damages" alleged by SIC. Defendant
5 Market Finders disputes SIC's version of the facts and asserts that SIC's claims are fatally
6 flawed, both legally and factually.
7

Defendant Market Finders asserts that SIC's claims are essentially for the alleged failure

8 to perform professional duties, sound in tort, and are barred by the applicable statute of
9 limitations, A.R.S. § 12-542.

10

Defendant Market Finders owed no duty to emoll Dr. Dinius in the Indiana Patient

11 Compensation Fund ("IPCF"), a voluntary fund established in the State of Indiana for the
12 purpose of providing healthcare providers practicing in Indiana with liability coverage that

13 otherwise became unaffordable for some.

The Agency Agreement, which governed the

14 relationship between SIC and Market Finders, did not obligate Market Finders to emoll Dr.
15 Dinius in the IPCF. Neither Arizona law nor Indiana law required Market Finders to emoll Dr.

16 Dinius in the IPCF. There was no request made upon Market Finders to emoll Dr. Dinius in the
17 IPCF.

18

In June 1999, Healthcare Insurance Services, Inc. ("HIS"), submitted to Market Finders

19 and others a new business submission on behalf of its client Anesthesiologist Consultants of

20 Toledo, Inc. ("ACT"), Dr. Dinius's insurer. HIS agreed with ACT to emoll five (5) physicians
21 in the IPCF. These physicians did not include Dr. Dinius. ACT instrcted HIS that Dr. Dinius

22 was not to be emolled in the IPCF.
23

Dr. Dinius did not provide information to Market Finders to indicate (or even suggest),

24 for the period to be covered by the SIC professional liability policy that was to be issued to

25 ACT, that he practiced in Indiana. In fact, Dr. Dinius informed Market Finders that he practiced

26 100% of his time in Ohio. Further, Dr. Dinius and ACT certified that Dr. Dinius was not
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1 subject to potential claims or lawsuits (although ACT was apparently aware of the underlying
2 Conyers incident "on or around 4-9-1999).
3

Market Finders was not expected and owed no duty to emoll Dr. Dinius in the IPCF.

4

SiC was not "damaged" as alleged, because SiC accepted the risk of claims against the

5 coverages it provided to its insureds, including ACT and Dr. Dinius, and accepted a premium
6 for that risk. Furthermore, SIC's "damages," if any, resulted from its own conduct and its
7 response to the Conyers claim.

8 2.
9
10
11

ELEMENTS OF PROOF
A.

Plaintiff's Claims

(1) Breach of Contract

It is undisputed that the Plaintiff and Defendant entered into the written contract
at issue in this case. Disputes such as this one, arising from that contract, are governed

12
13

by Arizona law. Under Arizona law, Plaintiff has the burden of proving that Defendant

14
15

breached the contract and that the breach resulted in damage. The factual support for
Under Arizona law, SiC properly delegated the primary underwriting of its MPLI
policies to its agent for that purpose -- Market Finders. While Market Finders was free to
further delegate that responsibility to its own agent (here, HIS), Market Finders is

16 17
18

responsible to sic for the performance of the duties so delegated. See, e.g., Milers Nat.
Ins. Co. v. Taylor Freeman Ins., 161 Ariz. 490, 779 P.2d 365 (Ct. App. 1989).

19

20
21

Plaintiffs proof as to each element of Defendant's breach of contract is set forth in
Section 1 A. above.

22
23

(2) Negligence

Plaintiff generally agrees with Defendant's statement of the elements of proof on
Plaintiff s professional negligence claim, except contends that it is not necessary that the
standard of care be proved by plaintiffs own witnesses or expert. The standard of care be

24
25

26
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1

proven by expert testimony, but may also be proved by the testimony of defendants itself.
Kreisman, infra., 12 Ariz.App. at 220,469 P.2nd 107 at 112.

2
3

Also, as to causation, Plaintiff must show only that there is some reasonable
connection between the act or omission of the defendant and the damage which the
plaintiff has suffered; that there is a reasonable basis for the conclusion that it is more
likely than not that the conduct of the defendant was a substantial factor in bringing about

4
5

6 7
8

the result. The Plaintiff is not required to prove its case beyond a reasonable doubt and
he need not negate entirely the possibility that defendant's conduct was not a cause. All

9
10
11

that is required in negligence cases is for the plaintiff to present probable facts from
which negligence and causal relations may be reasonably inferred.
Zimbelman, 18 Ariz.App. 75, 82, 500 P.2d 335, 342 (Ct. App. 1972).
The factual support for Plaintiffs proof as to each element of Defendant's

Purcell v.

12
13

negligence is set forth in Section 1 A. above.

14
15

(3) Indemnity and Contribution
The Plaintiff has the burden of proving that the conduct of Defendant was a cause

16 17
18

of the injury, but if Defendant seeks to limit its liability on the ground that the harm is
capable of apportionment, the burden of proof as to the apportionment is Defendant's.

Piner v. Superior Court of Ariz., 192 Ariz. 182, 962 P.2d 909 (1998); RESTATEMENT

19

(SECOND) OF TORTS § 433B.
Once the settling part introduces proof of the settlement and the amount thereof,

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21

the burden shifts to the part challenging the settlement to "show that the amount paid by

22
23

the claimant in settlement was not paid in good faith. . ." Arizona law does not require

that the settling part to prove good faith and does not presume that parties to an
agreement acted collusively. We presume that they acted in good faith and require the
challenging part to prove a lack thereof. Barmat v. John & Jane Doe Partners A-D, 165
Ariz. 205, 209-210, 797 P.2d 1223, 1227-1228 (Ct. App. 1990).
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The factual support for Plaintiffs proof as to each element of Defendant's

1

2
3

negligence is set forth in Section 1 A. above.

(4) Breach of Fiduciary Duty

4
5

Plaintiff must prove that Defendant owed a fiduciary duty to Plaintiff; that the
duty was breached; that the breach caused Plaintiffs damages; and Plaintiffs damages

6 7
8

The factual support for Plaintiffs proof as to each element of Defendant's negligence is
set forth in Section 1 A. above.
B.

Damages

9
10
11

(1) Breach of Contract

Plaintiff must prove the amount of damages with "reasonable certainty" which
does not require certainty in amount, but merely some basis for estimating the loss. The

12
13

evidence must make an approximately accurate estimate possible. An award of damages

cannot be based on conjecture or speculation: the plaintiff in every case should supply

14
15

some reasonable basis for computing the amount of damage and must do so with such
precision as, from the nature of his claim and the available evidence, is possible. Walter
v. Simmons, 169 Ariz. 229,236, 818 P.2d 214,221 (Ct. App. 1991).
The measure of damages for Defendant's breach of fiduciary duty is Plaintiffs loss

16 17
18

of money or other propert and/or the profits or proceeds that Plaintiff would have
received had Defendant performed its duties.

19

20
21

(4) Pre-Judgment Interest and Attorneys' Fees
Under Arizona law, sic is entitled to prejudgment interest at the rate of 10% per annum

22 from the date that the claim became liquidated. Trus Joist Corp. v. Safeco Ins. Co. of America,
23 153 Ariz. 95, 109, 735 P.2d 125, 139 (Ct. App. 1986). SIC's claim became liquidated in the

24 amount of the settlement of the Conyers claim on the date of that settlement.
25

SiC is entitled to recover its costs, fees and expenses in prosecuting this action for breach

26 of contract against Market Finders. A.R.S. §§ 12-341, 12-341.01.
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1

B.

Defendant's Positon
1.

2
3

Liabilty
Damages

See, Defendant's Defenses, section I(B) above.
2.

4
5

Defendant Market Finders disputes SIC's alleged damages.

6

The underlying Conyers case was settled on July 9, 2002 for $1,377,235.00. In its

7 Complaint, SIC alleged that it was "damaged in the amount of $1,137,235.00, which is the
8 difference between $250,000.00 and the amount Scottsdale was required to pay in settlement of
9 the claim against Dr. Dinius." However, the Conyers case was brought not only against Dr.

10 Dinius, but also against SIC insureds Natividad Buyoc, CRNA and CIA (ACT's affiliate).

11 CRNA Buyoc and CIA remained defendants in the Conyers matter through the time of
12 settlement. Neither were emolled in the IPCF at the time of incident giving rise to the Conyers

13 lawsuit and, as such, were not entitled to capped liability under the Indiana Medical Malpractice

14 Act (or to receive benefits from the IPCF). The liability of CRNA Buyoc and CIA for the
15 Conyers claims was unaffected by the Act. IND. CODE §§ 34-18-3.

16 3.
17
18

FACTUAL AND LEGAL ISSUES GENUINELY IN DISPUTE AND WHETHER THEY CAN BE NARROWED BY STIPULATION OR MOTION
A.

Plaintiff's Statement of Issues
(i)

19

the amount of actual damages, if any, SIC is entitled to recover from
Market Finders;

20
21

(ii)

the amount of attorneys' costs, fees and expenses, if any, recoverable by the
prevailing part in this action;

22
23

B.

Defendant's Statement of Issues
(i)

24
25

Plaintiff s claims sound in tort and are barred by the applicable statute of
limitations, A.R.S. § 12-542.

26

(ii)

Defendant Market Finders owed no duty to emoll Dr. Dinius in the IPCF.
12

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1

(iii)

The Agency Agreement did not obligate Market Finders to emoll Dr.
Dinius in the IPCF.

2
3

(iv)

Neither Arizona law nor Indiana law obligated Market Finders to emoll Dr.
Dinius in the IPCF.

4
5

(v)

The conduct of Market Finders did not cause or contribute to the cause of
Plaintiff s alleged damages.

6 7
8

(vi)

Plaintiff s own conduct caused or contributed to Plaintiff s alleged
damages.

9
10
11

(vii)

The nature and extent of Plaintiff s alleged damages is in dispute.

(viii) Plaintiffs alleged damages are not of a liquidated nature entitling Plaintiff
to recover prejudgment interest.
(ix)

12
13

Plaintiff s claims sound in tort and, as such, Plaintiff is not entitled to
recover attorneys' fees pursuant to A.R.S. § 12-341.

14
15

(x)

Plaintiff may not be the proper part to pursue the claim for damages it has
alleged.

16 4.
17

JURISDICTIONAL BASIS OF CASE
The Court has jurisdiction over the claims asserted in this action pursuant to 17 U.S.C.

18 §101 et~.

19 5.
20

PARTIES NOT YET SERVED
None.

21 6.
22

PARTIES NOT SUBJECT TO THE COURT'S JURISDICTION
None.

23 7.
24
25

DISPOSITIVE OR P ARTIALL Y DISPOSITIVE ISSUES TO BE DECIDED BY PRETRIAL MOTIONS
Defendant Market Finders recently filed with the court a summary judgment motion for

26 issues it believes are appropriate for disposition prior to triaL.
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1 8.
2
3

WHETHER THE CASE is SUITABLE FOR REFERENCE TO ARBITRATION OR TO A MAGISTRATE JUDGE FOR TRIAL
No.

4 9. STATUS OF RELATED CASED PENDING BEFORE THIS OR OTHER
5 COURTS
6 7
8

Not applicable.
10.

SUGGESTED CHANGES IN THE TIMING, FORM OR REQUIREMENT FOR
DISCLOSURE UNDER RULE 26(A), FED. R. CIV. P.
None.

9
10
11 11.

PROPOSED DEADLINES
Dispositive motion deadline: November 30,2007

12
13

Motions in limine: 60 days before trial
Joint Proposed Pretrial Order: 10 days before Final Pretrial Conference

14
15

Trial date: The earliest date convenient for the court after April 30, 2007

16 12. 17

SCOPE AND CONDUCT OF DISCOVERY
Defendant Market Finders has agreed to produce its former employee Mathilda

18 McCommon for a second deposition (first deposition was August 10, 2006), which Plaintiff has
19 agreed will be limited in time and in scope (deposition will not seek testimony or cover material
20 already covered in the last deposition). With the exception of the completion of the deposition

21 of Mathilda McCommon, all fact and expert discovery has been completed.
22 13.

SUGGESTED CHANGES IN DISCOVERY LIMITATIONS
None.

23
24 14.

ESTIMATED TIME FOR TRIAL; ANTICIPATED LENGTH OF TRIAL
7 Days.

25

26
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1 15.

WHETHER A JURY TRIAL HAS BEEN REQUESTED
Yes

2
3 16.

PROSPECTS FOR SETTLEMENT
The court-ordered private mediation conducted in September, 2007 was unsuccessful,

4

5 and sic does not believe that the prospects for settlement have changed since then, particularly

6 since Market Finders has filed a dispositive motion.
7 17.

8

OTHER MATTERS WHICH MAY AID THE COURT'S JUST, SPEEDY AND INEXPENSIVE RESOLUTION OF THE CASE
None at this time.
October, 2007.

9
10

DATED this 22nd day of

11

12
13

MEAGHER & GEER, P.L.L.P.

14
15

By slN eil Singh Kurt M. Zitzer
John C. Hendricks

16 17
18

Kathleen L. Beiermeister Neil Singh Attorneys for Scottsdale Insurance Company
DOYLE BERMAN MURDY, P.C.

19

20
21

By s/Gary L. Popham, Jr. William H. Doyle Gary L. Popham, Jr.

CERTIFICATE OF SERVICE 22 I hereby certify that on this 22nd day of October, 2007, electronically transmitted the attached
23 documents to the clerk's office using the CM/ECF system for filing and transmittal of a notice

of electric filing to the following CM/ECF registrants:
Gary L. Popham, Jr., Esq.

24

25 Doyle, Berman & Murdy, P.C.

3300 N. Central, Ste. 1600

26 Phoenix, AZ 85012 Attorneys for defendants
15
78167

Case 2:04-cv-00118-SMM

Document 130

Filed 10/22/2007

Page 15 of 16

MEAGHER
& GEER, P.L.L.P.

1

2 I hereby certify that on this 22nd day of October, 2007, I served the attached document by handdelivery on the following:
3

Honorable Stephen M. McNamee 4 United States District Judge
5

U.s. District Court, District of Arizona 401 West Washington Street Phoenix, Arizona 85003

6 7
8

s/ Judy Mannino

9
10
11

12
13

14
15

16 17
18

19

20
21

22
23

24
25

26
16
78167

Case 2:04-cv-00118-SMM

Document 130

Filed 10/22/2007

Page 16 of 16