Free Trial Brief - 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. CV-03-1415-PHX-ROS OPPOSITION TO DEFENDANT STATE FARM'S FIRST SUPPLEMENTAL JURY INSTRUCTIONS

Plaintiff Jerry Simms hereby opposes defendant's request for a RAJI (Civil) Fourth Instruction, No. 9, titled "Material Breach." The Court should refuse to give this instruction because the instruction is inapplicable to any claim or defense in this matter. It should also be noted that defendant has omitted the language from the RAJI Fourth Instruction which clarifies its limited purpose. The full "material breach" instruction is attached hereto. The instruction is called "Failure of Consideration" (Material Breach). As the instruction explains, a material breach, like failure of consideration, by one party excuses performance by the other party to the contract. See attached instruction. This instruction is appropriate when one party claims that the other party has committed a material breach of the contract and, therefore, the party who did not commit the material breach is excused from performance by the other party to the contract. This is made clear by the last sentence of the

Case 2:03-cv-01415-ROS

Document 176

Filed 06/26/2006

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instruction itself. "[Failure of consideration] [material breach] by one party excuses performance by the other party to the contract." This is entirely inapplicable to the present case. Plaintiff has never claimed that he was excused from performance of the terms of this insuring agreement. There is simply nothing in the issues or the evidence to justify giving this instruction. The comment to the jury instruction states, "Failure of consideration and material breach express similar concepts and have similar elements." See Restatement (Second) of Contracts, §237 (1981). The comment cites the Restatement of Contracts §241 in setting forth the circumstances to determine whether a material breach has occurred. It is clear from a review of the circumstances to be considered that the concept of "material breach" considered in this instruction has to do with a remedy beyond and above a damages remedy. Quoting from the comments to the instruction, "The Restatement cites the following circumstances to determine whether a material breach has occurred: 1. The extent to which the injured party will be deprived of the benefit reasonably expected; 2. The extent to which the injured party can be adequately compensated for the part of that benefit which will be deprived; 3. The extent to which the party failing to perform or to offer to perform will suffer forfeiture; 4. The likelihood that the party failing to perform or to offer to perform will cure the failure, taking account of all the circumstances including any reasonable assurances; and 5. The extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." Restatement Second of Contract §241 (1981). The comment states,

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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"Material breach excuses performance by the non breaching party. Non material breach does not excuse performance by the other party but may permit a claim for damages. See Contract 10, substantial performance." It should be abundantly clear from the criteria set forth in Restatement of Contract §241 that this entire issue has to do with something above and beyond a claim for simple contract damages. This instruction would only be given if plaintiff was claiming that he did not have to perform any condition or obligation under the policy. He is not making that claim. The comment even clarifies, "non-material breach does not excuse performance by the other party, but may permit a claim for damages." A review of case law clarifies that the concept of "material breach" is only considered when one party is claiming that he is excused from performing. In Misco, Inc. v United States Steel Corp., 784 F.2d 198, 203, (6th Cir. 1985) the court stated, "Due to our disposition of this issue, we need not decide whether these two actions would constitute a material breach of contract, hence discharging Alside's duty to perform. See W. F. Holt Co. v A & E Electric Co., 665 S. W. 2d 722, 730 (Tenn. Ct. App. 1983); Restatement (Second) of Contracts, §237, 241 (1979)." See also First Interstate Bank v Small Business Administration, 868 F.2d 340, 344, 9th Cir. 1989). "The nature of this contract required that the bank perform first. [citations omitted] Pursuant to Restatement §237 and the SBA regulations [citations omitted] a material failure of the bank to perform its side of the bargain operated as the non-occurrence of a condition, which excused performance by the SBA." Id. (9th Cir. 1989) p. 244 The parties previously jointly submitted jury instructions. They correctly submitted Contract Instructions Nos. 2 and 17. The Court should also note that the defendant's requested instruction based upon the "material breach" language would conflict with the basic contract 2 instruction entitled "Claims and Elements." Contract 2 is a simple straightforward statement of the law. It states, "On this claim, plaintiff must prove that there was a contract with defendant and defendant breached the contract." There is no language in this instruction that includes the word "material."

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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Obviously, the "material" concept is entirely misplaced. See Contract 2, attached hereto. See also Graham v Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975).

RESPECTFULLY SUBMITTED this 26th day of June, 2006.

By

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

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 26, 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 June 26, 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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