Free Objection - District Court of Arizona - Arizona

1 IAw OFFICES
BROENING OBERG Woons & WILSON
2 PROFESSIONAL CORPORATION
1122 EAST JEFFERSON
3 POST OFFICE BOX 20527
PHOENIX, ARIZONA 85036
4 (602) 271-7700
James R. Broening, #004036
5 William R. Phillips, #019949
Attorneys for DCIJCIICIBHI
6
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE DISTRICT OF ARIZONA
9 JERRY SIMMS, a single man, NO.CIV-03-1415 PHX ROS
10 Plaintiff, DEFENDANT’S OBJECTION S TO
H PLAINTIFF’S PROPOSED JURY
vs. INSTRUCTIONS
12 STATE FARM FIRE AND CASUALTY
13 COMPANY, an Illinois corporation; ABC
CORPORATIONS I—X; JOHN DOES I-X,
14 Defendants.
15
16 Defendant submits the following objections to Plaintiffs Separate Proposed
17 Jury Instructions.
18 • Duty Of Good Faith And Faith Dealing
19 Plaintiffs proposed bad faith instruction is a standard RAJI with an additional
20 paragraph added. The additional paragraph is not an accurate statement of Arizona law. The
21 proposed instruction incorrectly indicates that an insurer breaches the duty of good faith
22 and fair dealing if it acts unreasonably in evaluating or processing a claim. The language
23 contradicts the content of the pattern instruction which tracks the elements of bad faith
24 under Noble v. National Am. Ly’e Ins. C0., 128 Ariz. 188, 624 P.2d 866, 868 (1981).
25 · Non-Delegable Duty Of Good Faith
26 This proposed instruction is not a fair and accurate statement of Arizona law,
Case 2:03-cv—01415—ROS Document 178 Filed 06/26/2006 Page 1 of 3

1 is not supported by substantial evidence and overemphasizes aspects of Plaintiff’ s
2 arguments herein.
3 Walter v. Simmons, 169 Ariz. 229, 818 P.2d 214 (App. 1991), involved an
4 insurer that hired an independent adjuster to handle its insured’s claims arising out of a car
5 accident. The adjuster disposed of the damaged truck and later refused to divulge such
6 disposition and, in fact, misrepresented the location of the truck to the insured. When the
7 insurer sought to escape liability for such claim handling conduct, the Walters Court found
8 that the carrier must be held liable for such claim handling activity.
9 Here, State Farm did not utilize any independent adjusters, nor has State Farm
10 sought to absolve itself of any good faith duties through its delegation to another entity.
11 Insurers are entitled to rely upon consultation by independent experts. Jurors may evaluate
12 such reliance in determining whether a carrier gave the claim fair consideration, including
13 whether the carrier conducted a reasonable investigation under the circumstances.
14 • Disclosure Obligations Re Real Property
15 On May 24, 2006, Plaintiff filed a request for judicial notice of disclosure
16 requirement, including a request for a jury instruction. Defendant is unaware of any such
1 7 proposed instruction.
18 An instruction on a seller’s obligations conceming the sale of real property
19 is not supported by substantial evidence and overemphasizes a portion of Plaintiffs damage
20 argument. Plaintiff is fully able to argue his damage claims under the standard, pattem
21 instructions involving breach of contract and bad faith damages.
22 / / /
23 i
24 / / /
25
26 2
Case 2:03-cv—01415—ROS Document 178 Filed 06/26/2006 Page 2 of 3

K.
1 DATED this Qé day of June, 2006.
2 BROENING OBE G O S & WILSON, P.C.
3 .
4 By
James R. Broening
5 William R. Phillips
1 122 East Jefferson
6 Post Office Box 2052
Phoenix, Arizona 85036
7 Attorneys for Defendant State Farm Fire and Casualty
Company
8
COP the foregoing electronically filed
9 this day of June, 2006, to:
10 Joseph C. Dolan, Esq.
1650 North 1s‘ Avenue
11 Phoenix, Arizona 85003
Attomey for Plaintiff
12
13 ` /\` _ .
14 y 1 4
S: ADFAI State Farm\Simrm\P1cadings\0Ijcctions to Plmfs Proposed JI.wpd
15
16
17
18
19
20
2 1
22
23
24
25
26
3
Case 2:03-cv—01415—ROS Document 178 Filed 06/26/2006 Page 3 of 3

Case 2:03-cv-01415-ROS

Document 178

Filed 06/26/2006

Page 1 of 3

Case 2:03-cv-01415-ROS

Document 178

Filed 06/26/2006

Page 2 of 3

Case 2:03-cv-01415-ROS

Document 178

Filed 06/26/2006

Page 3 of 3