Free Response - District Court of Arizona - Arizona

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JOSEPH C. DOLAN, ESQ. (007376) 1650 North 1st Avenue Phoenix, Arizona 85003 (602) 266-7667 Fax (602) 277-9839 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT IN AND FOR DISTRICT OF ARIZONA JERRY SIMMS, a single man, Plaintiff, vs STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; ABC CORPORATIONS I-X; JOHN DOES I-X, Defendants. RESPONSE TO DEFENDANT'S MOTION TO AMEND JUDGMENT CV-03-1415-PHX-ROS

Plaintiff hereby responds to defendant's motion to amend judgment and asks that the Court enter its order denying the motion. The motion must be denied because State Farm has ignored the applicable Federal Rules of Evidence and case authorities. Rule 606(b), F.R.E. specifically precludes what State Farm is attempting to do in its present "motion to amend." Furthermore, a tradition of case law directly prohibits State Farm's arguments. This case law includes law from this very district. See TIG Ins. Co. v Liberty Mut. Ins. Co., 250 F. Supp. 2d 1197 (Dist. Ariz. 2003). The foregoing is more fully explained in the accompanying Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES In essence, State Farm's motion argues that the jurors considered "extraneous prejudicial information" in arriving at their verdict. This argument does not withstand even the most cursory consideration. There is no evidence to suggest that any "extraneous information" was brought to the attention of the jury or considered. "Extraneous information" means information that is brought in

Case 2:03-cv-01415-ROS

Document 213

Filed 08/23/2006

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from the outside. Rahmig v Mosley Machinery Co., 226 Neb. 423, 455, 412 N. W. 2d 56, 77 (1987). There is no indication that is what occurred in this matter. As set forth in the accompanying motion to strike these exhibits, these affidavits cannot even be considered by the Court. They directly violate 606(b), FRE. See Hard v Burlington N.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989). This issue has been directly considered and resolved by this Court in the matter of TIG Ins. Co. v Liberty Mut. Ins. Co., 250 F. Supp. 2d 1197 (Dist. Ariz. 2003). State Farm has apparently ignored this case law and the applicable rule of evidence. See also McDonald v Pless, 238 U.S. 264, 59 L. Ed. 1300, 35 S. Ct. 783 (1915); Taylor v Southern Pac. Transp. Co., 130 Ariz. 516, 521, 637 P.2d 726, 731 (1981). Moreover, the defendant bears the burden of showing that the verdict would have been different but for the presence of "external influence" assuming there is one. "Where a losing party in a civil case seeks to impeach a jury verdict, it must be shown by a preponderance of the evidence that the outcome would have been different." Hard v Burlington N.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989). Defendant has not even attempted to make that showing. State Farm also suggests without considering applicable case law that, "it is inconsistent with common sense to conclude that, after five hours of deliberations, the jury reconsidered for ten minutes and it determined that plaintiff's emotional distress, humiliation, inconvenience, and anxiety was compensable in an amount ten times higher than determined in their original five hours of deliberations." State Farm, it is supposed, argues that the end result was "manifestly unjust..." The irony inherent in its arguments is striking. State Farm is urging the Court to adopt and reinstate the first verdict rendered by the jury under circumstances which demonstrate that the jury was not correctly following the approved damage instructions. State Farm also overlooks well entrenched case law in making these arguments. These are not novel legal principles. Firstly, after a verdict has been returned, there is a strong presumption that the verdict was based upon the evidence and the instructions. There has been no argument by defense

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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counsel in this motion that the verdict was based upon improperly admitted evidence or improper jury instructions. Defendant cites only two cases discussing the elements of a Rule 59 motion. At page 3, defendant cites Circuit City Stores, Inc. v Mantor, 417 F. 3d 1060, 1063 N. 1 (9th Cir. 2005). The Circuit City case does not have to do with a jury's verdict. It has nothing to do with the situation in the present case. The Circuit City case has to do with a renewed motion to compel arbitration after a previous ruling on a motion filed by Circuit City to compel arbitration. Circuit City claimed in its "renewed petition" that intervening case law had conflicted with the earlier Ninth Circuit decision on the arbitration issue. Id. 417 F. 3d at 1063. There is nothing in the Circuit City decision that provides persuasive authority for State Farm's argument. The other case cited by defendant is Sch. Dist. No. 1, IJ, Multnomah County v. ACandS, Inc., 5 F. 3d 1255, 1263 (9th Cir. 1993). That case also has nothing to do with the issue in the present motion. That case also has to do with a Rule 59 motion for relief from a court ruling on summary judgment. It had nothing to do with a jury verdict rendered after being properly instructed on the evidence. See Sch. Dist. No. 1, supra, 5 F. 3d at 1262. Fed. R. Civ. P. 52(b) permits the parties to request that the court amend its findings or make additional findings or make additional findings or amend the judgment accordingly. Rule 59(e) also permits the parties to request that the Court alter or amend the judgment. These rules exist so that a party may move to amend the judgment based on harmful error, or to certify issues for appeal. It is also appropriate for the presentation of newly-discovered evidence. A motion under Fed. R. Civ. P. 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law. McDowell v Calderon, 197 F. 3d 1253, 1255 (9th Cir. 1999); (quoting 389 Orange Street Partners v Arnold, 179 F. 3d 656, 665 (9th Cir. 1999); see also Fed. R. Civ. P. 60(b). Herbst v Cook, 260 F. 3d 1039, 1044 (9th Cir. 2001)." It is apparent that State Farm recognizes that it has no basis to seek an amendment of the judgment in light of FRE 606(b) and the case law construing it including this Court's decision in TIG

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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v Liberty Mutual, supra. State Farm, for this reason, appears to make an alternate argument without really articulating the basis. State Farm refers to a Rule 59(e), "Motion to Amend the Judgment." The case law cited by State Farm certainly does not support State Farm's right to "amend" the judgment. State Farm has shown none of the grounds recognized by the courts as a basis to amend the judgment. State Farm's "alternate" argument is really a motion for remittitur. State Farm is not entitled to a remittitur in this matter. The jury award was not against the "weight of the evidence." Under Rule 59(a) the court may grant a motion for a remittitur only if it finds that the jury award was "against the weight of the evidence." See Vigilant Ins. Co. v Sunbeam Corp., 231 FRD 582 (U.S. Dist. Ariz. 2005). See also Byrd v Blue Ridge Rural Elec. Coop., Inc., 356 U. S. 525, 540, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958). State Farm does not even attempt to argue that the verdict was against the weight of the evidence. For this reason alone, State Farm's motion must be denied. This Court will recall that State Farm moved for a directed verdict on the bad faith issues in this matter and the Court found sufficient evidence to go to the jury. The jury obviously found sufficient evidence to enter a verdict and to find damages. The jury could easily infer that plaintiff had sustained the types of damages to be considered under the bad faith instruction. They were instructed to consider his emotional distress, inconvenience, anxiety experienced and reasonably probable to be experienced in the future. There was ample evidence for the jury to conclude that plaintiff had experienced $100,000 worth of mental distress and anxiety. His guesthouse is two different colors and has been for several years. State Farm obstinately has refused to pay for the guesthouse condition to be corrected. The main house was significantly heat damaged and State Farm only mailed a small check that would not address the full problems associated with heat damage. State Farm continued in its closing argument to obstinately insist that no damages whatsoever were owed for these problems. State Farm's adjuster, Mr. Ridolfi, refused to pay for painting of portions of the interior of the residence based upon his position that the insurance policy did not require him to "color match" throughout the house. Mr. Ridolfi's attitude seemed consistent with State Farm's continuing insistence that it would not pay

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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for the color matching problems on the exterior of the guesthouse or the heat damage to the guesthouse. This is just the tip of the iceberg. The Court heard all of the testimony concerning what plaintiff had been through. The jury would have been justified in awarding much more than $100,000 if it had chosen to. State Farm has the burden of proving that the verdict was against the weight of the evidence. See Vigliant, supra; Byrd v Blue Ridge, supra. State Farm has obviously failed in its burden Nor can State Farm suggest that the jury's verdict was the result of error in the manner in which the trial was conducted. The Court properly instructed the jury. State Farm cannot complain about the instructions. After the initial form was sent back, the Court repeated to the jury that they could not consider attorneys fees in their verdict. The Court properly instructed the jury that they could not include attorneys fees in their award and that they must reconsider their verdict. Given this record, it is impossible for State Farm to suggest that the verdict was the result of an improper instruction or that they were confused or mislead by the proceedings. For the foregoing reasons, it is respectfully submitted that the Court deny State Farm's motion. RESPECTFULLY SUBMITTED this 23rd day of August, 2006.

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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By

s/Joseph C. Dolan 007376 JOSEPH C. DOLAN, ESQ. 1650 North 1st Avenue Phoenix, Arizona 85003 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 23, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: William Phillips, Esq. BROENING OBERG WOODS & WILSON 1122 East Jefferson Phoenix, Arizona 85036 Attorneys for State Farm

I HEREBY CERTIFY that on August 23, 2006 I served the attached document by mailing a copy of the following: Hon. Roslyn Silver United States District Court, Suite 624 401 W. Washington Street Phoenix, Arizona 85003-2158

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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s/Joseph C. Dolan, Esq. 007376 Attorney

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