Free Response to Motion - 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 FIRST MOTIONS IN LIMINE CV-03-1415-PHX-ROS

Plaintiff Jerry Simms hereby responds to defendant's motions in limine in the order in which they are presented in defendant's November 29, 2005 motion. a. Reference to defendant's financial condition. Plaintiff does not object to the relief requested by defendant in this subsection. b. Testimony of Richard Andrews Preliminarily, it should be noted that plaintiff has attempted to contact Mr. Andrews to obtain a copy of his file so that it can be produced to defense counsel. Richard Andrews has moved away to the state of Georgia and has never produced his file of materials to present counsel. Present counsel has contacted Mr. Andrews to attempt to obtain a copy of his file and has not yet received a phone call in response from Mr. Andrews. When Mr. Andrews was deposed in this matter, his deposition was taken telephonically. He was not subpoenaed to produce his file prior to the deposition. (Deposition of Andrews, Exhibit 1, p. 4, ll. 6-8) Although plaintiff's counsel wishes to assist defense counsel in obtaining a copy of the file, present counsel cannot accept responsibility for the non-

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production of the Andrews file. Nonetheless, plaintiff will continue his efforts to obtain a copy of the file from Mr. Andrews. Mr. Andrews is an experienced roofing consultant. He has actually worked as a roofer and has consulted for years with various institutions and private parties concerning roofing issues. See attached resume of Richard Andrews, Exhibit 2. He has been to plaintiff's residence on four occasions. (p. 6, ll. 3-6) On the first visit he reviewed the circumstances surrounding the leaks inside the house and the guesthouse. He tried to formulate a plan on how to get access to the roof. (p. 7, ll. 8-25) His first visit occurred in September of 2004. (p. 7, ll. 7-10) His next visit occurred in October of 2004. (p. 8, ll. 11-13) On this second visit, Mr. Andrews arranged to have a lift on hand so that he could get on the roof of the guesthouse. They performed a water test on the roof of the guesthouse to attempt to isolate the cause of the leakage. They determined that there was a problem with the interior roof drain and other problems of the flat portions of the guesthouse roof. (p. 9, ll. 10-21) At that visit Andrews also removed some tiles from the guesthouse roof and observed the condition of the roofing materials underneath the tile. On that visit he also obtained a ladder and climbed up on the roof of the main house and removed some tiles from over the area where demonstrable interior leakage was occurring in the main house. (pp. 9-10) In Mr. Andrews' opinion, the flashings around the vent pipe (soil pipe) in the area of the valley gutter had been heat damaged and had lost its water proofing integrity. (p. 10, ll. 11-15) He removed roof tiles from around the vent pipe to observe the condition of the base of the vent pipe. (p. 10, ll. 11-13) Based upon his experience, and his examination of the valley of the roof in the area of the vent pipe Mr. Andrews felt that it was more likely that the leakage would have occurred as the result of a leak at the valley as opposed to the vent pipe. He formed this conclusion because of the amount of water that was apparently leaking into the interior space below. (p. 11, ll. 2-13)

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Mr. Andrews did not photograph the damage to the vent pipe because he felt that the amount of leakage was not consistent with the fire damage to the vent pipe. It would have to be consistent with the damage to the valley gutter. (p. 12, ll. 8-23) Mr. Andrews took the tile apart from around the valley area that he suspected was heat damaged. He observed that the mastic asphalt that was used in connection with the installation had actually melted and formed "a glob that actually backed up right at the valley joint...and the joint itself... had been distorted by the heat." (p. 13, ll. 3-11) Mr. Andrews' third visit to the property occurred in roughly November or December of 2004. On the third visit, roof tile was removed from the south side of the guesthouse roof. An opening was cut in the roof deck in order to gain access to the roof drain. The drain pipe was removed to attempt to determine the source of drainage difficulties. The main focus of the third visit was the guesthouse drain pipe. (pp. 14-15, ll. 13-2) The final visit occurred in approximately March of 2005. (p. 15, ll. 17-25) The purpose of the final visit was to investigate additional roof leaks in the guesthouse and continued leakage over the exercise room. (p. 15, ll. 17-23) In March of 2005 he went on the roof of the main house and once again investigated the leaks in the exercise room. He re-examined the valley and the vent pipe. (p. 16, ll. 14-18) He found the same conditions as before. (p. 16, ll. 19-22) Mr. Andrews inspected the vent pipe by taking the tile away from the base of the pipe. He presumed that there was leakage at that area because there was no "flashing jack" around the base of the vent pipe. (p. 19, ll. 11-18) He agrees that the vent pipe was not installed correctly at the time of construction. (p. 20, ll. 13-17) From his last visit to the property in March of 2005 Mr. Andrews examined the 90 pound rolled on roofing which serves as the underlayment under the tile. He removed samples of the 90 pound roofing underlayment at that time. (p. 25, ll. 11-18) He took three or four samples of the 90 pound underlayment. (p. 26, ll. 8-13)

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According to his examination of the "valley gutter" Mr. Andrews concluded that the components of the valley gutter had been subjected to extreme radiant heat and had distorted the metal to the point where it opened a void in a part of the valley gutter. (pp. 29-30, ll. 20-5) It appeared that this would act as a stop for any water that would run down the valley gutter. (p. 30, ll. 1-5) Exhibits 1 and 2 to his deposition are his two reports dated March 30, 2005 and May 31, 2005. (p. 32, ll. 12-21) See Exhibit 2 hereto. Mr. Andrews concluded that the 90 pound underlayment suffered radiant heat damage at the time of the fire in question herein. (p. 33, ll. 14-20) Mr. Andrews' investigation was to examine the 90 pound roofing material to attempt to find typical things that are consistent with materials that are exposed to accelerated heat agent. That was the basis for his opinions concerning the heat damage to the 90 pound material. The material has a "punky odor to it once it's been overheated." (p. 35, ll. 12-20) Mr. Andrews explained that when the underlayment material is overheated the roofing material will have a burnt odor and an odor of coke. These samples exhibited that odor. (p. 35, ll. 23-25) Mr. Andrews followed a "typical methodology" in the manner in which he evaluated the 90 pound material based upon its smell. (p. 36, ll. 11-16) Mr. Andrews was of the opinion that the temperatures at the time of the fire were so extreme that they would have deteriorated the roof system of the guesthouse as well. (p. 40, ll. 14-18) In expressing this opinion Mr. Andrews relies not only upon his own observations but upon his review of the videotapes of the fire that have been produced in the present case. (p. 41, ll. 4-13) Mr. Andrews also bases his opinions concerning the damage to the roof based upon the history that there was an absence of any leakage incidents prior to the fire. (pp. 41-42, ll. 18-4) Mr. Andrews also felt that on the center deck roof of the guesthouse leakage was occurring as a result heat damaged, heat-warped base flashing. (pp. 42-43, ll. 25-5) It was visually self evident at the time of his examination. (p. 43, ll. 11-12) As best as Mr. Andrews could tell from his visual observation, the Z bar and base flashing had been installed consistent with good construction practices. (p. 46, ll. 2-5)

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Based upon his examination there was no other explanation for the warped base flashing. (p. 46, ll. 15-24) Mr. Andrews owned a sheet metal shop for 20 years and he knows from his own experience that it does not take "a lot of heat" to distort light-gauge sheet metal. (p. 47, ll. 6-20) The area of scupper leakage at the south east corner of the guesthouse was in an area that was directly damaged by fire. According to the videotapes, that portion of the guesthouse was actually on fire. (p. 59, ll. 8-12) Mr. Andrews saw moisture with his own eyes inside the wall at the location of the scupper in question. (p. 59, ll. 13-25) With regard to the valley gutter on the main house, although he did not actually see water leaking out of the valley gutter structure, the valley gutter is still "the most likely place in that particular area." The area of interior damage inside the exercise room was directly below the valley gutter. (p. 60, ll. 8-13) Mr. Andrews compared the appearance of the 90 pound roofing material on the south side of the main house to the 90 pound material on the north side of the main house. Comparing the north side to the south, the north side of the main house material was virtually undamaged. (p. 61, ll. 2-13) Mr. Andrews stands by the reports and the opinions expressed in the reports that are Exhibits 1 and 2 to his deposition. (p. 57, ll. 10-18) Mr. Andrews was a roofing contractor in the state of Iowa for almost 20 years. He owned and operated a roofing and sheet metal shop where he did a lot of metal work. (pp. 57-58, ll. 19-1) His opinions in this case are based upon his personal experience and his background having worked as a roofer. (p. 58, ll. 8-17) He does not believe that the 90 pound roofing material that he sampled and examined needs to be tested in order to determine whether or not the material has been damaged by heat. (p. 58, ll. 14-18) He can tell by smelling it that the water proofing material has been removed from the material as the result of the heat damage. (pp. 58-59, ll. 20-4) Obviously, defendant's arguments go to the weight, not the admissibility of Mr. Andrews testimony. Defendant argues that Mr. Andrews "simply articulates no rational and reliable basis for concluding that the valley over the exercise room has ever been a source of water intrusion." (p. 5,

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ll. 13-14) Defendant ignores the following: 1) Mr. Andrews worked as a roofer for 20 plus years; 2) Mr. Andrews has extensive experience as a roofing consultant; 3) Mr. Andrews was at plaintiff's residence and inspected the relevant areas of the roof on four separate occasions; 4) Mr. Andrews noted conditions in the valley gutter that would be conducive to leakage; 5) In the exercise room, the area of interior damage was directly below the valley gutter in question; 6) based upon his experience with the degree of interior damage, that amount of water could not enter through the cracks surrounding the vent pipe. Obviously, the location of the interior leakage and Mr. Andrews' experience, coupled with his four visits to the property should serve as adequate foundation to admit his testimony. Defendant can argue the weight to be given his testimony at the time of trial. With regard to Mr. Andrews' opinions that the 90 pound roofing paper was heat damaged, the record above demonstrates the admissibility of his opinions. Mr. Andrews has extensive experience working as a roofer and explained that the smell of the 90 pound paper demonstrated that the water proofing material had been basically removed from the underlayment as a result of the extreme temperatures of this fire. It should be noted at this point that defendant's own fire expert, Mr. Pat Andler, admitted that it would take at least 400 degrees of radiant heat temperatures to start the charring and combustion of wood materials found at various places of plaintiff's residence. Photographs demonstrate that the palm trees immediately next to the roof of several portions of the main house were charred as a result of radiant heat having its effect upon plaintiff's residence at the time of this fire. (Pat Andler, Exhibit 3, pp. 14-19) Photographs and videotapes taken at the time of the fire show that portions of the guesthouse were actually on fire and portions of the main house to this date demonstrate signs of heat damage. Defendant's expert however admitted that the underlayment will begin experiencing deterioration as a result of heat at temperatures approximating 392 degrees Fahrenheit. (See report of William Welbes attached to defendant's First Motions in Limine, Exhibit E, p. 4.) Taken in its totality, the evidence of Richard Andrews is admissible. Defendant can argue weight at the time of trial.

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Defendant makes a point of mentioning the VAC Environmental records. See motions in limine, p. 4, ll. 8-13. It should be noted that the photograph upon which defendant relies shows water stainage around the vent pipe but extending beyond into areas that are obscured by the photographs. As the Court can see, the photograph does not show that the water stainage is isolated to the immediate area around the vent pipe. See Exhibit 4 hereto. As the Court can further see, the vent pipe is in an area not far away from the valley gutter in question. The photographs, as such, do not conclusively establish that waster is coming in only through the vent pipe and not also through the valley gutter. Defendant never deposed the VAC Environmental personnel who wrote the notes in question. This Court does not have any sworn, competent evidence at least where the notes of VAC Environmental and the photograph in question are concerned and plaintiff would object to the Court ruling on this motion in limine on the basis of inferences drawn from an inconclusive photograph and an unsworn document. Suffice it to say, these are all questions of fact that the jury needs to hear and take into account in weighing the various items of evidence. c. Jonathan Higgins Testimony It is true that plaintiff disclosed Jonathan Higgins for the first time on August 5, 2005. His later disclosure, however, is reasonable under the circumstances. Rather "late in the game" State Farm had agreed that the area was heat damaged and issued an advance toward the repair work. This advance was paid in March of 2005. (Exhibit 5) On April 15, 2005, present counsel wrote to defendant expressing the difficulty he was experiencing in getting a final assessment of the damages to plaintiff's residence. One of the constant holdups was in trying to coordinate with all counsel and their experts before inspection or repair work could proceed. (Exhibit 6) Defense counsel assured plaintiff on May 11 and June 16, 2005 that State Farm that State Farm remained willing to "reconsider new evidence" or "evaluate additional damage claims." (Exhibit 7) This letter was written after the Court ordered "deadline" for disclosure of experts' identities. Plaintiff had previously sought the opinion of Dave Smith, from Associate Fire Consultants, to determine whether Mr. Smith could offer opinions concerning the degree of radiant heat that affected plaintiff's residence at the time of this fire. Plaintiff's counsel consulted with Mr. Smith's office and

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Mr. Smith's office was unwilling to venture an opinion as to a range of temperatures when first consulted. Upon later consultation, in a private conference between Mr. Smith and Mr. Dolan, Mr. Smith agreed that the temperatures would have had to have been at least 400 degrees Fahrenheit to cause charring to the various trees and wood members associated with plaintiff's residence. This information was not provided to plaintiff's counsel until the very first part of August of 2005. (Exhibit 8) With that information, present counsel revisited the issues surrounding the exterior dryvit coating on the east side of the main house of plaintiff's residence. He asked Mr. Higgins to accompany him to plaintiff's residence on August 3, 2005. During that visit, several areas not before seen on the east side of the residence demonstrated signs of heat damage. These are areas immediately below the area of heat damage fascia that State Farm had agreed to pay for. Upon closer inspection, Mr. Higgins agreed that these were areas of heat damage and his report was, admittedly, created for the first time. The difficulty that lead to the late disclosure of Mr. Higgins' testimony stems largely from the difficulty that present counsel experienced in obtaining expert information from the fire consultant concerning the range of radiant heat temperatures that would have been affecting plaintiff's residence at the time of the fire. It should be noted that plaintiff attempted to obtain this information in early January, prior to the January 2005 disclosure and was unable to receive this information. Present counsel made defense counsel aware of this difficulty. In summary, Higgins opines only that the heat damage to plaintiff's residence extends to the same area of the building already acknowledged by State Farm to have heat damage. He does not raise a new issue. He only elaborates that the damage is more extensive upon actual inspection. d. Expert opinions by James McDonald Plaintiff agrees that the Court has previously ruled that James McDonald DDS cannot offer expert testimony. James McDonald will only testify as a lay witness as to what he saw and will lay foundation for his photographs. He is a lay witness who has experienced previous fires to his own residences. He knows what the soot from fire looks like and smells like. He can testify that he carefully examined plaintiff's residence and virtually examined every room and crawl space in the

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house. He can testify that the house was saturated with soot and with smell from the fire even weeks after the fire. He also took photographs that he will lay foundation for. These are not expert opinions. e. Steven Clark Plaintiff has not refused to produce relevant information concerning Mr. Clark's testimonial background. Plaintiff has requested Mr. Clark to produce a listing of all information required under Rule 26(a)(2) (B). That rule requires that the expert disclose his opinions, the basis for his opinions and also "a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Mr. Clark has done so. (Exhibit 9) There is no rule which requires him to be stricken as a witness because he did not identify the state or court where the testimony was delivered. Mr. Clark was asked to produce the information required under Rule 26(a)(2)(B) and he did so. Defendant had the option of deposing Mr. Clark and finding out what specific information was still lacking from the disclosures. It should be noted that if Mr. Clark's disclosures are deficient, so are defendant's experts. See resume and report of William Welbes and Cheryl Sykora, Exhibit 10 and report of Howard Droz, Exhibit 11. Mr. Clark's report discloses the same type of information disclosed by defendant's experts (names of cases, but not city, county, state of jurisdiction). f. Opinions of Robert Hutzel Robert Hutzel has been completely disclosed. See attached Exhibit 12 which reflects the disclosures plaintiff has made. The deficiencies, if any, are harmless. See Rule 37(c)(i). g. Opinions of Darrel Obert See attached Exhibit 9 and 13. Plaintiff has made full disclosure of Mr. Obert's opinions. The deficiencies, if any, are harmless. h. Testimony by David Smith David Smith has refused to offer any testimony in this case because it involves State Farm, a principal client of Mr. Smith. This information was not brought to the attention of present counsel until August 5. Mr. Smith had previously agreed to testify in this case but was under the impression

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that the case only involved litigation against the third party defendants who started the fire in question. This is explained in the August 5, 2005 letter from Mr. Smith attached hereto as Exhibit 8. Plaintiff may seek leave of the Court to supplement his disclosures with the identity of another fire expert to serve in the same limited role that would have been served as described in the previous disclosed opinions of Mr. Smith. i. Testimony of Ron McDonald Defendant seeks to preclude the "undisclosed testimony of Ron McDonald." It should be noted that Ron McDonald is a contractor who has actually worked on the stucco in plaintiff's residence and has been paid by State Farm for this work. He also supplied the estimate for the heat damage to the fascia which has not yet been repaired. This is not a "retained expert." This is a stucco contractor who has intimate familiarity with the problems at plaintiff's residence as a result of his work on the house. Directly contrary to the allegations of defendant in his motion in limine, it was disclosed long ago to defendant that Ron McDonald would testify concerning heat damage to the main house of plaintiff's residence which has not yet been repaired. The disclosure supplied by plaintiff in this matter on February 4, 2005 placed defendant on clear notice of that fact. The disclosure stated, "Mr. McDonald has examined dryvit damage to the plaintiff's residence and has concluded that the Simms residence still displays damage related to the fire which has not been repaired... Mr. McDonald is a professional stucco contractor and is qualified to express opinions concerning the apparent cause of damage to the stucco." (Exhibit 9)

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Defendant cannot point to any disclosure violation on plaintiff's part. Mr. McDonald was not 22 a retained expert as to whom a Rule 26(a)(2)(B) report must be supplied. Defendant cannot argue for 23 preclusion of Mr. McDonald's testimony under any legal rule or principle. See discussion below re: 24 Ron Cope re: case law. 25 26 27

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j. Opinions of Mitchell Payes Plaintiff has no objection to the relief requested by defendant. Mitchell Payes has been completely disclosed. Plaintiff objects, however, to defendant's statement that "plaintiff partially complied with his Rule 26(a)(2)(B) obligations." Plaintiff provided a two page signed report from Mr. Payes and a resume which is attached hereto which not only details Mr. Payes' professional background but gives a very detailed description of his past testimony. (Exhibit 14) k. Any opinions by Ron Cope. Defendant is sorely mistaken as to its reading of the rules. Ron Cope has never been employed by plaintiff to act as a litigation expert. Ron Cope is the company representative for Dryvit Systems, the manufacturer of the product that coats the plaintiff's residence. Ron Cope has not been retained to examine the facts of this case and to render expert opinions. He has been disclosed to testify concerning his knowledge of the heat tolerances and heat withstanding characteristics of Dryvit. This is a product that he is intimately familiar with and understands the product's performance. He has not been asked to review materials to provide expert opinions in this case. Under Rule 26(a)(2)(B), a report is not required from him. Plaintiff's disclosures have been completely adequate. He was properly disclosed under Rule 26(a)(1)(J) as a person who has discoverable knowledge that may be used to support plaintiff's claims. Plaintiff has properly disclosed him under that portion of Rule 26. Defendant is dead wrong about the requirement of Rule 26(a)(2)(B) disclosure. See Fisher v Ford Motor Co., 178 F.R.D. 195, 197 (N. D. Ohio 1998); Mohney v USA Hockey, Inc., 300 F. Supp. 2d 556 (2003). These cases hold that even treating doctors are not required to be disclosed under the requirements of Rule 26(a)(2)(B). l. Litigation related opinions of Todd Willis The same reasoning addressed by plaintiff in the immediately preceding subsection applies to the testimony of Todd Willis. He was not a specially retained expert but is a roofer who has knowledge of the conditions affecting plaintiff's residence. He knows the problems with the roof. He is a roofer by trade. He will be asked to express his observations about the condition of the roof and the apparent cause of different problems associated with plaintiff's residence. Since he is not a

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retained expert there is no rule precluding plaintiff from asking him to express his opinions concerning the apparent cause of various roof leakages. It is true that plaintiff will not likely be allowed to illicit opinions from two retained experts on the same topic. However, Mr. Willis is not a retained expert and will be testifying as a result of a background of many hours of work including the original installation of the roof. Since he has a different background and different fund of information, his testimony will not be duplicative to that of Mr. Andrews. m. Opinions of Marc Beckerman Marc Beckerman will qualify as an expert on the industry standards governing proper claim handling. He has vast experience in the adjustment and settlement of first party property claims. He has qualified as an expert in many occasions and many courts. He will testify that the standard of care includes the State Farm operation guides which have been supplied to him and which he has reviewed. His understanding of the standard of care is also bolstered by State Farm's admitted reliance upon the Arizona Unfair Claims Settlement Practices Regulations. Since State Farm admits that they must adhere to the Arizona Unfair Claims Settlement Practices Regulations, the standards form the basis of Mr. Beckerman's testimony concerning the "standard of care." Defendant misreads Mr. Beckerman's report or attempts to mislead the Court as to Mr. Beckerman's reports. Throughout his report he makes it clear that his criticism of State Farm has to do with its failure to act "in accordance with established industry claims handling standards practices and procedures for claims of this specific type in this jurisdiction. See report dated March 27, 2005, Exhibit M to defendant's Motions in Limine. Since Mr. Beckerman will be offered to testify that State Farm breached well established industry standards, including State Farm's own recognized standards, his testimony will not be couched in terms of the ultimate issue, "Did State Farm commit bad faith?," but rather, Mr. Beckerman's testimony will establish the numerous instances in which State Farm's conduct breached recognized industry standards. The jury will then be asked to conclude whether or not this pattern demonstrates a conscious disregard

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n. Claims of health effects In his initial disclosure statement, plaintiff disclosed the report of Suresh Anand, M.D. This report dated August 3, 2001, attached hereto as Exhibit 15, was also used in defeating State Farm's motion for summary judgment on the issue of whether the property was "uninhabitable." Judge Broomfield ruled that a question of fact existed as to whether the property was "uninhabitable." Dr. Anand's report states, "I feel that even though he may have very minimal underlying allergic reactions the major symptoms at this time have been aggravated due to the exposure to the fire and building materials." (Exhibit 15) Plaintiff has adequate medical foundation to support his claim. Defendant has apparently overlooked this foundation. o. Allegations of hidden or possible damages Plaintiff will establish through competent evidence including the admissions of State Farm's own representatives and Marc Beckerman that it was a duty of State Farm to completely and thoroughly investigate the fire damage to plaintiff's home. This is also the thrust of the jury instruction on "bad faith" as it regards the insurer's duty to investigate plaintiff's claims. Plaintiff will show that State Farm did not investigate the claims surrounding the fire damage to his house in a reasonably thorough fashion. As a result, plaintiff is left with a home that has many damages that have been unrepaired, many areas of probable damage and areas where it can be inferred that there is probable damage the full extent is unknown. Plaintiff's lay witnesses, including Ron McDonald and Rob Burttram, knowledgeable about stucco, will testify that there is stucco damage to the east side of the main residence and possibly to the east side of the guesthouse. They will testify that there are definite signs which would give rise to this inference. Further testimony will establish that the only way to completely and definitively determine the degree of damage is to extensively "skin" the residence of its exterior cladding to investigate beneath the surface. Had State Farm done its job, a sufficient amount of investigation would have been done that the probable fire damage would have been detected and defined. State Farm did not do that

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degree of investigation. It is already acknowledged that it failed to pay for fire damage until March of 2005 (almost four years after the loss). Plaintiff will establish that there is more damage that the defendants have not detected. Much of the damage will fall in the realm of "probable damage." Some of it may fall into the realm of "possible" damage. The jury will be able to make that determination. The point is, to a reasonable degree of probability, State Farm did not perform a reasonably thorough investigation of the nature and extent of damage to this residence and that is why it has acted in bad faith. Resultingly, that is why plaintiff is entitled to damages not only for the damage to his structure but for the damage to the value of the structure resulting from the obligation to disclose the probability and likelihood of unseen damage to any subsequent purchasers. This will have a detrimental effect upon the value of his property. This is centrally important to the anxiety and mental distress claims of plaintiff in addition to his claims for compensatory damages concerning damage to the value of the structure. RESPECTFULLY SUBMITTED this 14th day of December, 2005.

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 December 14, 2005, 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 December 14, 2005 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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