Free Pretrial Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA American Family Mutual Insurance Company, Plaintiff/Counter Defendant, vs. Robert D. Dunn and Joy Lynn Dunn, Defendants/Counterclaimants.

) ) No. CV2003-1277 PHX SRB ) ) ) ) JOINT PROPOSED PRETRIAL ORDER ) ) ) ) ) )

Pursuant to the Scheduling Order previously entered, the following is the Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for September 26, 2005, at 9:30 a.m., before Judge Bolton. A. TRIAL COUNSEL FOR THE PARTIES

Plaintiff: Lynn M. Allen ([email protected]) Michael E. Gottfried ([email protected]) Allen & Lewis, PLC 4835 E. Cactus Road, Suite 340 Scottsdale, AZ 85254 602-443-0402 (phone)

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602-443-0403 (fax) Defendants: Richard T. Treon ([email protected]) TREON, AGUIRRE & NEWMAN, P.A. 2700 N. Central Avenue, Suite 1400 Phoenix, Arizona 85004-1133 Telephone: (602) 285-4400 Facsimile: (602) 285-4483 Daniel B. Treon ([email protected]) Stephen E. Silverman ([email protected]) TREON & SHOOK, P.L.L.C. 2700 N. Central Avenue, Suite 1000 Phoenix, Arizona 85004-1133 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 B. STATEMENT OF JURISDICTION/VENUE

Jurisdiction in this case is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. Venue is proper under 28 U.S.C. § 1391 because defendants reside in the District of Arizona. C. NATURE OF ACTION

This is a declaratory judgment action arising from a claim under an American Family homeowner's insurance policy. The insurance claim arises from two plumbing leaks that occurred at the Dunns' residence in 1999. The Dunns contend that one or both of the plumbing leaks discharged water into the underlying soils, causing earth movement resulting in slab cracks. American Family contends that there is no causal relationship between the plumbing leaks and the earth movement. American Family seeks a declaration that there is no coverage for the slab cracks. The Dunns filed a counterclaim for breach of contract and insurance bad faith. The Dunns assert that American Family acted in bad faith in its investigation, evaluation, and
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settlement of their claims. Specifically, they allege inadequate and biased investigation, making "lowball" offers, and delay in claims settlement. American Family contends that its investigation was timely, unbiased, and appropriate and its actions were reasonable and supported by the opinions of qualified consultants. D. JURY/NON-JURY

The Dunns demanded a jury trial in their answer. American Family does not contest that demand. E. CONTENTIONS OF THE PARTIES (a) 1. Plaintiff's contentions:

In order to prevail on the declaratory judgment complaint, the Dunns must prove

that the slab cracks were caused by a covered cause of loss. See Pacific Indemnity Co. v. Kohlhase, 9 Ariz. App. 595, 455 P.2d 277, 278 (1969) (insured must provide coverage exists under the insuring clause of the policy). 2. In order to prevail on the counterclaim for breach of contract, the Dunns must

prove that there was a contract between the parties and that American Family breached the contract or a term thereof. See Deese v. State Farm, 172 Ariz. 504, 838 P2d 1265 (App. 1992). 3. In order to prevail on the counterclaim for insurance bad faith, the Dunns must

prove (a) American Family intentionally denied, failed to pay, or delayed payment of the claim without a reasonable basis for such action; and (b) American Family knew that it acted without a reasonable basis, or American Family failed to perform an investigation or evaluation adequate to determine whether its action was supported by a reasonable basis. See Rawlings v. Apodaca, 151 Ariz. 149, 160, 726 P.2d 565, 576 (1986).
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4.

In order to prevail on its affirmative defense of breach of contract, American

Family must prove that the Dunns failed to take reasonable steps to protect the property from further damage following the 1999 plumbing leaks. See Hudnell v. Allstate Ins. Co., 190 Ariz. 52, 54, 945 P.2d 363, 365 (App. 1997) (the insurer has the burden of proving that a policy exclusion applies or that its insured breached a condition of the policy). 5. In order to prevail on its affirmative defense of comparative fault, American

Family must prove that the Dunns' negligent or intentional conduct caused or contributed to their damages. See A.R.S. § 12-2506 (b) 1. Defendants' contentions:

In order to prevail on the declaratory judgment complaint that the land-earth

stabilization provision applies, American Family must prove that damage caused by a covered cause of loss is excluded under the policy. See Pacific Indemnity Co. v. Kohlhase, 9 Ariz. App. 595, 455 P.2d 277 (1969) (insurer must prove exclusion applies to claim arising out of covered cause of loss). 2. 3. The Dunns agree with paragraphs 2 and 3 of American Family's contentions. The Dunns contend that American Family has disclosed no evidence to support

the affirmative defenses listed in paragraph 4 and 5. F. STIPULATIONS AND UNDISPUTED FACTS

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1.

American Family issued a homeowner's insurance policy to the Dunns, which

was in effect at the time of the losses in May 1999. 2. American Family issued a homeowner's insurance policy to the Dunns, which

was in effect through the first part of 2000. 3. On and before May of 1999, the Dunns suffered two water losses. The first was

from a bathtub leak in a bathroom used by the Dunns' children. The second was from a water line to a refrigerator in the Dunns' kitchen. G. 1. PLAINTIFF'S CONTENTIONS OF DISPUTED FACT Whether the slab cracks resulted from earth movement caused by a covered

plumbing leak. 2. Whether the Dunns' personal property sustained direct physical loss from mold

caused by a covered plumbing leak. 3. If the personal property was damaged by mold spores caused by a covered

plumbing leak, the extent and cost of necessary remediation. 4. Whether American Family American Family acted in bad faith in its

investigation, evaluation, and settlement of the Dunns' claims by conducting an inadequate and biased investigation, making "lowball" offers, and delaying claim payments. 5. Whether the acts or omissions of the Dunns and/or their agents caused or

contributed to their damages. 6. Whether the Dunns failed to use reasonable means to protect their property from

further damage after the losses.

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7.

Whether as a result of the court's rulings on the parties' motions for partial

summary judgment, the Dunns' recovery for structure repairs under the appraisal award is limited to $30,458.44 RCV, $26,803.43 ACV, which is the amount attributable to repair of the slab cracks. H. 1. DEFENDANT'S CONTENTIONS OF DISPUTED FACT The damage to the Dunns' foundation was caused by earth movement caused by

a covered cause of loss. American Family owes for the unpaid portion of the Appraisal Award that pertains to foundation repairs. American Family owes the full amount, because it has no evidence to support its position that a portion of the Award is barred by a policy exclusion. 2. American Family prejudged the claim before conducting any investigation, and

sought information to provide a pretext to deny and delay the claim, and ignored evidence from its experts and consultants that indicated the significant damage to the Dunns' residence was caused by a covered loss. 3. American Family knew that it needed to get a structural engineer to the Dunns'

residence promptly, but delayed doing so in order to provide its structural engineer a pretextual basis to rely upon unfounded and unqualified opinions from its geotechnical engineering firm. Specifically, no later than July of 2000, American Family knew from its contractor/consultant, Robert Burttram, that the damage to the Dunns' residence was more likely than not caused by earth movement, and knew that it needed a structural engineer to inspect the Dunn residence. American Family also knew that Mr. Burttram's experience with water damage claims and restoration was significantly more extensive than its geotechnical engineers, who had no experience or qualifications with structural damage of the type suffered by the Dunns and
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expressly told American Family this information. 4. American Family promised the Dunns that it would find the cause of damage to

the residence, and not terminate its investigation until the cause was determined, whether or not the cause was covered under the insurance policy. American Family broke this promise, and refused to follow up on recommendations from its geotechnical engineers. American Family confirmed this promise to the Arizona Department of Insurance. 5. American Family abdicated its responsibility to investigate and evaluate the

claim, and turned it over to engineers who were not provided with accurate information and/or assisted American Family in conducting a biased and one-sided investigation. 6. American Family's front-line claims adjuster, Steve Greaves, was not qualified to

investigate claims involving water damage and earth movement, and American Family knew he was not qualified because Mr. Greaves had told this to at least one of his supervisors. 7. 8. American Family should have promptly investigated the Dunns' claim. American Family should have promptly accepted the Dunns' demand to submit

the claim to appraisal in October of 2000. 9. American Family should have provided its consultants/experts/engineers with all

pertinent information regarding the circumstances of the loss. Instead, American Family concealed information to avoid developing evidence to support paying the claim. 10. American Family failed to investigate whether water from the bathtub leak

entered the soil through a planter that was adjacent to the bathtub and directly over grade, despite having been provided with this information by the Dunns.

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11.

American Family failed to follow up on additional investigation requested by its

geotechnical consulting firm. 12. American Family and its geotechnical consulting firm hid information from the

Dunns and American Family's structural engineer that ruled out irrigation leaks as a potential cause of the damage to the Dunns' residence. American Family paid for the investigation, but the results of the investigation were never formally reported by American Family and its geotechnical consulting firm. 13. American Family and its consultants/experts/engineers, on the basis of the same

data, reached opposite conclusions on a similar claim. In this case, American Family concludes that the Dunn residence did not suffer sub-surface earth movement based on moisture tests and out-of-tolerance manometer readings. In another case, American Family concluded the residence suffered sub-surface earth movement based on moisture tests (with lower moisture readings) and out-of tolerance manometer readings. 14. American Family disregarded its own expert's payment of the amount necessary

for pack-in/pack-out, and arbitrarily reduced its undisputed funds payment by $10,000. 15. American Family's conduct has caused the Dunns significant emotional distress,

humiliation, inconvenience, and anxiety, causing them to live like prisoners in their own residence. I. 1. actions. 2. The Dunns contend that American Family has not disclosed evidence to warrant
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ISSUES OF LAW IN CONTROVERSY The parties agree on the legal standards for the breach of contract and bad faith

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jury instructions on claims that the Dunns failed to mitigate damages or the Dunns are comparatively at fault. American Family contends that witnesses, expert opinions, and exhibits on these affirmative defenses have been disclosed. 3. Whether the Dunns can recover costs of the appraisal and the 10% public adjuster

fee as contract damages. 4. Whether the Dunns can recover consequential damages resulting from breach of

contract, such as loss of use of the home and personal property and additional damage to the home and personal property. J. SEPARATE TRIAL OF ISSUES

The parties do not believe that a separate trial of the issues is advisable and feasible. K. WITNESSES (a) 1. Plaintiff:

Steven A. Greaves (shall be called at trial). Mr. Greaves is expected to testify

regarding the investigation, evaluation, and payment of the Dunns' claim, as well as conversations and correspondence with the Dunns and their representatives. 2. Dave Polson (shall be called at trial). Mr. Polson is expected to testify regarding

the investigation, evaluation, and payment of the appraisal award. 3. Oscar Simental (shall be called at trial). Mr. Simental is expected to testify

regarding his activities in connection with the Dunns' claims, decisions with respect to appraisal and coverage issues, and his communications with the Dunns' representatives. 4. Robert Vancil (may be called at trial). Mr. Vancil is expected to testify regarding

his activities in connection with the appraisal of the Dunns' claim.
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5.

Charles Bushman (shall be called at trial). Mr. Bushman is expected to testify

regarding the investigation, evaluation and payment of the Dunns' claim for content pack-out, cleaning, storage and pack-back. 6. Bob McMichael (shall be called at trial). Mr. McMichael is expected to testify

about his investigation, evaluation, and opinions regarding the causation of damage at the Dunn residence and recommendations for repair. 7. Curt Peterson (may be called at trial). Mr. Peterson is expected to testify about

his investigation, evaluation, and opinions regarding the causation of damage at the Dunn residence and recommendations for repair. 8. Steven D. Nowaczyk (shall be called at trial). Mr. Nowaczyk is expected to

testify about his investigation, evaluation, and opinions regarding the causation of damage at the Dunn residence and recommendations for repair. 9. Avram Ninyo (may be called at trial). Mr. Ninyo is expected to testify about his

investigation, evaluation, and opinions regarding the causation of damage at the Dunn residence and recommendations for repair. 10. Hans van de Vrugt (may be called at trial). Mr. van de Vrugt is expected to

testify about his investigation, evaluation, and opinions regarding the causation of damage at the Dunn residence and recommendations for repair. 11. Ron A. Starling (shall be called at trial). Mr. Starling is expected to testify about

his investigation, evaluation, and opinions regarding the causation of damage at the Dunn residence and recommendations for repair. 12. Rob Burttram (shall be called at trial). Mr. Burttram is expected to testify about
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his estimate for repair of the Dunns' residence and his communications with American Family and the Dunns. 13. Marshall Krotenberg (shall be called at trial). Mr. Krotenberg is expected to

testify regarding his investigation, evaluation, and opinions on alleged mold contamination of the Dunns' personal property and recommendations for cleaning. 14. Steve Vyrostek (shall be called at trial). Mr. Vyrostek is expected to testify

regarding his estimate for the pack-out, storage, cleaning and pack-in of the contents of the Dunn residence. 15. Barry C. Lorenz (shall be called at trial). Mr. Lorenz is expected to testify about

his appraisal of the damage to the Dunn residence, the events leading up to and occurring at the appraisal meeting, and the basis for the appraisal panel's award. 16. Steve Plitt (shall be called at trial). Mr. Plitt is expected to testify regarding his

opinions on claims handling and bad faith issues. 17. Jennifer K. Thomason (unlikely to be called at trial). Ms. Thomason is expected

to testify regarding microbial collection, testing and assessment at the Dunn residence. 18. Jim Biddle (unlikely to be called at trial). Mr. Biddle is expected to testify

regarding microbial collection, testing and assessment at the Dunn residence.

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19.

Chris Boyles or designated representative of Environmental Response, Inc/Spray

Systems Environmental (unlikely to be called at trial). Mr. Boyles is expected to testify regarding his estimates for mold remediation at the Dunn residence. 20. Paul Leon (may be called at trial). Mr. Leon is expected to testify regarding his

inspection of the irrigation system at the Dunn residence. 21. Ryan Johnson (unlikely to be called at trial). Mr. Johnson is expected to testify

regarding his inspection of the Dunn residence and the condition of the structure. 22. Janet Neary (may be called at trial). Ms. Neary is expected to testify about her

response to the Dunns' complaint to the Arizona Department of Insurance. 23. Brent Bowen (may be called at trial). Mr. Bowen is expected to testify regarding

his activities in connection with the Dunns' claim. 24. George Farra (unlikely be called at trial). Mr. Farra is expected to testify about

his review of the soils engineering reports and data and his communication of opinions regarding the cause of those cracks and recommended repairs to the Dunns' representatives. 25. Plaintiff reserves the right to call all witnesses that defendants have named. (b) 1. Defendants:

Brent Bowen (shall be called). Mr. Bowen is expected to testify about his

investigation and evaluation of defendants' claim, his conversations with defendants and their representatives, and defendants' insurance coverage. 2. Rob Burttram (shall be called). Mr. Burttram is a fact witness who will also be

offering opinion testimony. Mr. Burttram is expected to testify about his recommendations and estimates for general repairs to the residence, and his conversations with defendants.
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3.

Steve Greaves (shall be called). Steve Greaves is expected to testify about his

investigation and evaluation of defendants' claims, American Family's payments to or on behalf of defendants, his conversations with plaintiffs and their representatives, and plaintiffs and their representatives, and defendants' insurance coverage. 4. Steve Nowaczyk (shall be called). Mr. Nowaczyk is expected to testify regarding

the work he was hired by American Family to perform. 5. David Polson (shall be called). Mr. Polson is expected to testify about his

investigation and evaluation of defendants' claims, American Family's payments to or on behalf of defendants, and defendants' insurance coverage. 6. Oscar Simental (shall be called). Mr. Simental is expected to testify about his

investigation and evaluation of defendants claim, his conversations with defendants and their representatives, and defendants' insurance coverage. 7. Paul Leon (shall be called). Mr. Leon is expected to testify

regarding the investigation he was hired by American Family and Ninyo & Moore to conduct, and to testify regarding his conclusions. 8. Robert Vancil (shall be called). Mr. Vancil is expected to testify regarding his

involvement in the claim. 9. Eric Dixon (shall be called). Mr. Dixon's deposition testimony addressing

American Family's interpretation of its insurance coverage for earth movement will be presented at trial. 10. Hans van de Vrugt (shall be called). Mr. van de Vrugt will testify via deposition

regarding his activities in connection with investigating the cause of the damage to the Dunns'
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residence. 11. Joy Lynn Dunn (shall be called). Joy Dunn is expected to testify about all issues

relevant to this claim. 12. Robert Dunn (shall be called). Robert Dunn is expected to testify about all issues

relevant to this claim. 13. Mitchell L. Payes, Occupational & Environtmental Hygiene Associates (may be

called). Mr. Payes is expected to testify regarding the microbiological evaluation on the Dunn Residence and comparisons of the reports prepared by Ninyo & Moore and Rimkus consulting. 14. Gary Masterman (shall be called). Mr. Masterman will testify regarding his

investigation, and will also testify as to the reasonableness of American Family's investigation. 15. Gerald Nelson (shall be called). Mr. Nelson will testify regarding his

investigation, and will also testify as to the reasonableness of American Family's investigation. 16. Charles Miller (shall be called). Mr. Miller will testify regarding American

Family's handling of the Dunns' claim. 17. James F. O'Toole (shall be called). Mr. O'Toole will testify regarding his work

on behalf of the Dunns in connection with their claim. 18. William Bentley (shall be called). Mr. Bentley will testify regarding his estimate

for pack-in/pack out. 19. Richard Madjanski (may be called). Mr. Madjanski will testify regarding his

experience with American Family in adjusting his water damage claim. 20. Barbara Madjanski (may be called). Mrs. Madjanski will testify regarding her

experience with American Family in adjusting her water damage claim.
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21.

Thomas O'Brien (may be called). Mr. O'Brien will testify regarding his

experience with American Family in adjusting his water damage claim. 22. L. Defendant reserves the right to call all witnesses that Plaintiff has named. EXPERTS (a) 1. Plaintiff:

Robert McMichael, P.E. Mr. McMichael is a registered civil engineer in the

states of Arizona, Indiana, Michigan, Ohio, Wisconsin, and New Mexico. He earned a Bachelor of Science degree in civil engineering and a Master of Science degree in geotechnical engineering. He is currently employed by Ninyo & Moore as Chief Geotechnical Engineer. Mr. McMichael is expected to testify regarding his opinions that: o Differential soil movement occurred beneath the home and resulted in damage o There is no cause and effect relationship between the 1999 water losses and the damage to the home o The soils underlying the home are clayey and prone to moisture-induced volume change o Soil movement has occurred in the clayey soils for reasons that are likely unrelated to the water losses o The level of distress observed in 2000 and the maximum floor level differential were within normal construction tolerances o Planters, turf, sprinklers, poor drainage, and roof runoff are conditions that could introduce water adjacent to the foundation
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2.

Ron A. Starling. Mr. Starling is a registered civil engineer in the states of

Arizona, California, Nevada, and Utah. He has earned Bachelor of Science and Master of Science degrees in Civil Engineering. Mr. Starling is the principal partner and president of Starling & Associates, Inc. Mr. Starling is expected to testify regarding his opinions that: o The slab, wall and ceiling cracking are consistent with minor earth movement in the supporting soils o There is also evidence of post construction movement due to lumber shrinkage and twisting, moisture swelling and long term creep deflection in the framing o It is not likely that the 1999 water losses caused the differential earth movement o It is not likely that the 1999 water losses could be causing the ongoing damage to the house 3. Steve Plitt, Esq. Mr. Plitt is an attorney licensed to practice law in Arizona since

1983. He specializes in insurance law and is the author of Arizona Liability Insurance Law and the senior author for the treatise Couch on Insurance 3D. Mr. Plitt also is a professor of insurance law teaching at Arizona State University's College of Law. Mr. Plitt is expected to testify regarding his opinions that: o American Family complied with acceptable industry practices and standards in the investigation, evaluation, and payment of the claim o The difference between the appraisal award and what was offered by American Family is not particularly significant in that overlapping
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coverage issues explained the overall differential o It is not uncommon to have appraisal awards differing substantially from the positions asserted by both the insurance company and the policyholder o American Family's refusal to accept the initial demands of the public adjuster for appraisal was within industry standards 4. Marshall Krotenberg. Mr. Krotenberg holds a bachelor of scheience degree in

soil and water science and a Master of Science degree in Toxicology. He is a Certified Industrial Hygienist with over 20 years of diverse environmental, safety, and health experience. He is a senior consultant with Rimkus Consulting Group, Inc. Mr. Krotenberg is expected to testify regarding his opinions that there was minor elevation of mold spore settlement on the contents in only three rooms of the residence that require cleaning. 5. Steve Vyrostek, CR, WLS, CMRS. Mr. Vyrostek is a principal of C&E Services,

Inc., which provides water damage restoration and inventory and packout services, among other things. Mr. Vyrostek holds the following certifications: Certified Microbial Remediation Supervisor through the American Indoor Air Quality Council, Certified Restorer through the Association of Specialists in Cleaning and Restoration, and Water Loss Specialist through the Water Loss Institute. Mr. Vyrostek is expected to testify regarding his opinion of the estimated cost for pack-out, storage, cleaning, and pack-in for contents at the Dunns residence. (b) 1. Defendants:

Gary Masterman. Mr. Masterman is a geotechnical engineer. He is licensed as a

registered engineer in Arizona, California, Hawaii, Nevada and New Mexico (inactive). He has a Masters and a Bachelors in Science in Civil Engineering from California Polytechnic
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University, Pamona. He will testify regarding his investigation of the Dunn residence. Mr. Masterman's opinions are that the damage to the Dunns' residence was and continues to be caused by earth movement resulting from the water loss. He will also testify regarding the unreasonableness of the Ninyo & Moore investigation, including the fact that Ninyo & Moore and American Family reached a "no coverage" position in this case when, in the Madjanski case, it reached a "coverage" position based on substantially similar data. 2. Gerald Nelson. Mr. Nelson is a Structural Engineer. He has a Masters in Science

from the University of Minnesota in Civil Engineering, and an undergraduate degree from the University of Illinois. He has been a registered engineer in Arizona since 1965, and is also a registered land surveyor. He has more than 50 years of work experience in various engineering capacities. He will testify that the damage to the Dunn residence was and continues to be caused by earth movement resulting from the water loss. He will testify that the structural integrity of the Dunn's residence is, in some parts, of significant concern. He will also testify that Ninyo & Moore's and Ron Starling's opinions are predicated on erroneous assumptions regarding the Dunn's residence, particularly with respect to the planter area adjacent to the bathtub leak. 3. Charles M. Miller is an insurance claims expert. He worked as an insurance

claims professional from 1973-1990 for Fireman's Fund, including managing the company's Major Claims Unit from 1986-1990. He then obtained a Juris Doctor from the University of San Francisco. He also has an Associate in Claims, from the Insurance Institute of America. He will testify that American Family's actions in connection with its investigation and evaluation of the Dunns' claim was unreasonable. He will testify that American Family failed to comply with the accepted practices and standards in the insurance industry for the handling of claims in that American Family failed to thoroughly and timely investigate, evaluate, and accurately pay the Dunn's claim, and failed to abide by the Appraisal Award entered on behalf of the Dunns.
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M.

EXHIBITS AND DEPOSITIONS (a) Plaintiff:

1.

American Family Mutual Insurance Company policy 02PA-5385-01-52-PHGS-

AZ (AF/Dunn 000321-AF/Dunn 000345). Objection: American Family's affirmative use of its claims file is subject to a motion in limine by the Dunns. American Family refuses to make its original claims file available for inspection, to compare it to the proposed trial exhibit. In light of serious concerns regarding the completeness of the claims file, the Dunns have filed a motion in limine to preclude American Family from using a possibly suspect copy of the claim file as a trial exhibit. 2. 002641). Objection: American Family's affirmative use of its claims file is subject to a motion in limine by the Dunns. American Family refuses to make its original claims file available for inspection, to compare it to the proposed trial exhibit. In light of serious concerns regarding the completeness of the claims file, the Dunns have filed a motion in limine to preclude American Family from using a possibly suspect copy of the claim file as a trial exhibit. 3. 002685). Objection: American Family's affirmative use of its claims file is subject to a motion in limine by the Dunns. American Family refuses to make its original claims file available for inspection, to compare it to the proposed trial exhibit. In light of serious concerns regarding the completeness of the claims file, the Dunns have filed a motion in limine to preclude American Family from using a possibly suspect copy of the claim file as a trial exhibit. 4. American Family's file for claim number 181-192864 (AF/Dunn 002688-002726. American Family's file for claim number 181-192411 (AF/Dunn 002643American Family's file for claim number 181-208173(AF/Dunn 001744 -

Objection: American Family's affirmative use of its claims file is subject to a motion in limine by the Dunns. American Family refuses to make its original claims file available for inspection, to compare it to the proposed trial exhibit. In light of serious concerns regarding
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the completeness of the claims file, the Dunns have filed a motion in limine to preclude American Family from using a possibly suspect copy of the claim file as a trial exhibit. 5. claims file. Objection: foundation. 6. 7. 8. 9. 10. Soilutions report from James O'Toole file (AF/Dunn 000620-000625). Ninyo & Moore records (AF/Dunn 003034-003149). Ninyo & Moore records (AF/Dunn 03759 ­ 04214). Starling & Associates records (AF/Dunn 004229-004289). Dusty Creek Builders, Inc. file (AF/Dunn 03738 ­ 03758). Original photographs and photograph mounting sheets from American Family's

Objection: completeness. 11. 12. American Leak Detection file (AF/Dunn 03525 ­ 03528). Soilutions, Inc. file (AF/Dunn 03529 ­ 03581).

Objection: foundation and hearsay. 13. Records of City of Glendale, attached (AF/Dunn 04616 ­ 04696).

Objection: hearsay, relevance and cumulative. 14. 05754). 15. 16. 004521). Objection: relevance, hearsay, foundation. 17. Records from State Farm Insurance (AF/Dunn 005364). American Family payment record (AF/Dunn 005749). Washington Mutual master loan approval summary dated 4/17/03 (Af/Dunn C&E Services, Inc. estimate (AF/Dunn 05710 ­ 05717 and AF/Dunn 05750 -

Objection: relevance, hearsay, foundation. 18. Records from Allstate Insurance (AF/Dunn 050 704).

Objection: relevance, hearsay, foundation. 19. Gerald Nelson time sheet (AF/Dunn 002909).
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20.

Email from Gerald Nelson to John Hall dated 11/12/01 (AF/Dunn 002916).

Objection: foundation and hearsay. 21. Fax from Gerald Nelson to John Hall dated 11/28/01 plus attachments (AF/Dunn

002917-002921). 22. Letter from Gerald Nelson to O'Toole dated 11/7/01 (AF/Dunn 002965-002967).

Objection: foundation and hearsay. 23. California State University Northridge affidavit of no records (AF/Dunn 005755).

Objection: relevance, hearsay, foundation, unfairly prejudicial and misleading impeachment. 24. 006144). Objection: relevance, hearsay, foundation, unfairly prejudicial and misleading impeachment. 25. 006145). Objection: relevance, hearsay, foundation, unfairly prejudicial and misleading impeachment. 26. 27. O'Toole fee agreement dated 9/12/00 (Dunn 0752). Deposition of George Farra, April 2, 2005: 5: 8-11 7: 4-15 8: 10 ­ 11: 22 12: 1-5 13: 14-16 17: 19 ­ 18:3 19:4-12 19: 18-22 19: 24 - 20: 10 20: 12 20: 17-25 21: 14-17 21: 19 25: 8-12 25: 14 ­ 26:4 27: 7-8
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California Real Estate Inspection Association records (AF/Dunn 006143-

California State Polytechnic University, Pomona letter dated 3/14/05 (AF/Dunn

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

27: 10-14 27: 16 ­ 28: 4 30: 3 ­ 31: 1 28. Deposition of Eric Dixon, Madjanski v. American Family, CV01-0420 PHX JAT,

March 18, 2003. If the Court allows defendants to use the deposition transcript at trial over plaintiff's objections, plaintiff will use the following excerpts in rebuttal: 5: 5-6: 2 6: 13-7: 25 10:8-14 10:22-11:4 11:12-25 24: 21- 25: 22 64: 12-16 29. Plaintiff reserves the right to use all exhibits listed by defendants. (b)
1.

Defendants:

CD disk containing relevant home photos of the Dunn's home, excluding

photographs of the roof, patio and garage. (DUNN 1ST SUPP 0001). Objection: Lacks foundation, authentification, and irrelevant photos of unrelated damage per court's order on motion for partial summary judgment. 2. VHS tape containing footage of Dunn's home and damages thereto from

December 19, 1992 through May 7, 2000 (DUNN 1ST SUPP 0002). Objection: Lacks foundation, authentification, and irrelevant photos of unrelated damage per court's order on motion for partial summary judgment. 3. VHS tape containing footage of Dunn's home for dates July 21, 2000, July 23,

2000, and July 25, 2000 (DUNN 1ST SUPP 0003). Objection: Lacks foundation, authentification, and irrelevant photos of unrelated damage per court's order on motion for partial summary judgment.
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4.

July 21, 2000 audio and video recording of American Family Inspection

("Inspection Video") (Excerpt of Dunn 1st Supp 0003). Objection: Lacks foundation, authentification, and irrelevant photos of unrelated damage per court's order on motion for partial summary judgment. 5. Transcript of July 21, 2000 inspection ("Inspection Transcript").

Objection: Lacks foundation, authentification, irrelevant photos of unrelated damage per court's order on motion for partial summary judgment dated 8/23/05, contains inadmissible hearsay, cumulative 6. November 12, 2001 Report of Gerald H. Nelson.

Objection: contains inadmissible hearsay, cumulative 7. Reports of Gerald Masterman dated 5/ 30/02.

Objection: contains inadmissible hearsay, cumulative 8. June 18, 2002 Appraisal Award Bates Nos. AF/Dunn 001753-54.

Objection: contains irrelevant information per court's order on motion for partial summary judgment dated 8/23/05 9. Notice of Non-Parties at Fault.

Objection: irrelevant, prejudicial and misleading under Rule 403 (this document are the subject of American Family's motion in limine re other claims) 10. 05330). 11. 04709).
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Rimkus Consulting Group=s entire file obtained by subpoena (Dunn 04712-

Bob McMichael=s file from Ninyo & Moore obtained by subpoena (Dunn 04125-

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12.

Cereus Irrigation, Inc.=s brochure (Dunn 04710-04711).

Objection: inadmissible hearsay, irrelevant 13. Plaintiffs handwritten notes of items presently in the house dated October 15,

2004 (DUNN 1218-1259). Objection: inadmissible hearsay, irrelevant 14. 15. 16. 03965). Objections: a. 03421-03421, 03425-03435, 03437-03448, 03496-03500--inadmissible opinion Starling & Associates, Inc, records. (DUNN 1050-1259). Entire file of Ninyo & Moore as produced to Defendants (DUNN 1260-1771). Steven Plitt's entire file materials as subpoenaed by Defendants (DUNN 03420-

evidence, irrelevant because it contains opinions regarding issues decided in American Family's favor on the motion for partial summary judgment (certain of these documents are the subject of American Family's motions in limine re legal opinions and conclusions, the unfair claims settlement practices act, and other claims) b. 03502-03579, 03712-03791--deposition digests and depositions contain

inadmissible hearsay and irrelevant information c. d. e. f. 03580-03597, 03591-03594, 03598, 03614, 03638-69--irrelevant 03641-03660--the Dunns' notes are inadmissible hearsay 03669-03685, 03707, 03708, 03710--inadmissible hearsay, lacks foundation 03809-03911--court pleadings are irrelevant, prejudicial, confusing, and

misleading under Rule 403
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g.

03912-03915, 03947-03956--correspondence, subpoenas and the like regarding

discovery requests and objections are irrelevant, prejudicial, confusing, and misleading under Rule 403 17. Cereus Irrigation, Inc.=s file obtained by subpoena (DUNN 03966-03968).

Objection: inadmissible hearsay, expert opinion lacks foundation (these documents are the subject of American Family's motion in limine re unqualified expert testimony) 18. 19. 04124). Objection: inadmissible hearsay, deposition digests and depositions contain inadmissible hearsay and irrelevant information, contains inadmissible opinion evidence, irrelevant because it contains opinions regarding issues decided in American Family's favor on the motion for partial summary judgment (certain of these documents are the subject of American Family's motions in limine re legal opinions and conclusions, the unfair claims settlement practices act, and other claims) 20. Medical records from Alvin Burstein. (DUNN 1000-1021). The Locator, Inc.=s file obtained by subpoena (DUNN 03969-03981). Charles Miller=s file subpoenaed by American Family (Bates stamp nos. 03982-

Objection: lacks foundation, inadmissible hearsay 21. Exhibits 4 to 7 of Steven Nowaczyk's February 16, 2005 deposition.

Objection: irrelevant, lacks foundation, prejudicial, confusing, and misleading under Rule 403 (these documents are the subject of American Family's motion in limine re other claims) 22. American Family Mission Statement. (AF/Dunn 003157).
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Objection: lacks foundation, irrelevant 23. 003159-60). Objection: lacks foundation, irrelevant 24. Corporate Code of Ethics. (AF/Dunn 003161-62). American Family Corporate Claim Philosophy and Guidelines. (AF/Dunn

Objection: lacks foundation, irrelevant 25. Claims Division document. (AF/Dunn 003163).

Objection: lacks foundation, irrelevant 26. Company Claims Bulletin #614 ­ Initialing and Dating of File Material.

(AF/Dunn 003164). Objection: lacks foundation, irrelevant 27. 003166-67). Objection: lacks foundation, irrelevant 28. Property Claim Report guidelines. (AF/Dunn 3170-73). Mountain Region Water Damage Claims Adjusting Techniques. (AF/Dunn

Objection: lacks foundation, irrelevant 29. 003174-77). Objection: lacks foundation, irrelevant 30. Best Practices for Property Files. (AF/Dunn 003180-85). 9 Point Personal Lines Property Investigation Report and guidelines. (AF/Dunn

Objection: lacks foundation, irrelevant 31. Photographs of the Dunn residence. (AF/Dunn 2982).
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Objection: lacks foundation, authentification, irrelevant photos of unrelated damage per court's order on motion for partial summary judgment 32. Complete file of Dusty Creek Builders. (Dunn 0939-0999).

Objection: lacks foundation, hearsay, cumulative 33. 34. deposition). Objection: lacks foundation for certain opinions regarding health risks, unduly prejudicial (this report is the subject of American Family's motion in limine re mold). 35. Deposition of Eric Dixon, Madjanski v. American Family, CV01-0420 PHX JAT, Billing record from James O'Toole. (AF/Dunn 00429). Report of Mitchell Payes. (AF/Dunn 03689 and Ex. 2 to Payes' January 28, 2005

March 18, 2003: American Family's general objections: irrelevant, lacks foundation, prejudicial, confusing, and misleading under Rule 403 (the subject of this deposition is the subject of American Family's motion in limine re other claims). Specific objections to the testimony are set forth below: 4: 11-25 5: 1-4 12: 1-11 30: 19-25 31: 1-3 36: 6-25

37: 1-25

objection: incomplete hypothetical, calls for speculation objection: incomplete hypothetical, calls for speculation objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403
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38: 1-25

objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403 39: 1-25 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403 40: 1-9 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403 45: 16-25 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403, irrelevant 46: 1-23 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403, irrelevant 61: 19-25 objection: lacks foundation regarding similarity of factual circumstances 62: 1-4 objection: lacks foundation regarding similarity of factual circumstances 64: 5-11 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403 65: 9-18 objection: lacks foundation regarding similarity of factual circumstances, duplicative of testimony of other witnesses, references to other claim unduly prejudicial and confusing under Rule 403 and Exhibits 1, 2, 5, 7, 12 . Objection: lacks foundation, not relevant, references to other claim unduly prejudicial and confusing under Rule 403 35. Deposition of George Farra, April 1, 2005: 7: 20-25 objection: irrelevant 8: 1-9 objection: irrelevant 12: 9-25 13: 2 14:17 ­ 15:7, 22-25 objection to 14: 7-15: 7, irrelevant
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16: 1-12 18: 21 ­ 19: 4 objection: incomplete, response to question omitted 22: 3-14 27: 1-3, 5-6 objection: irrelevant 28: 6-10 29: 3-5, 10-15 36. N. Defendants reserve the right to use all exhibits listed by Plaintiff. MOTIONS IN LIMINE AND REQUESTED EVIDENTIARY RULINGS (a) Plaintiff:

Plaintiff has filed eight motions in limine on the following issues:
o

Admissibility of defendants' experts' opinions No principal-agent relationship between American Family and consultants or contractors

o

o O O O o O

Mold Legal opinions and conclusions Unfair claims settlement practices Other American Family claims Non-renewal of policy Corporate incentive program

These motions are scheduled to be ruled upon at the final pretrial conference. Plaintiff raises the additional following evidentiary objections: 1. After the motion in limine deadline passed, the Dunns provided American Family

with proposed jury instructions referencing claims for additional living expenses, the increased cost of structure repairs and contents handling since the date the appraisal award was issued,
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loss of use of their home, loss of use of personal property, and additional damage to the home and personal property since the appraisal award was issued. These alleged damages were not disclosed as required by Rule 26(a)(1)(C), which requires the party to disclose the computation of any category of damages and the documents on which the computation is based. In their initial disclosure statement, the Dunns disclosed they were seeking the amount of the appraisal award less what American Family had already paid. In their first supplemental disclosure statement, the Dunns disclosed they were seeking emotional distress damages for their "ordeal." In response to interrogatories, the Dunns stated they would seek an award for additional damage to the structure since the appraisal award, but they failed to provide a computation of damage or documents supporting these alleged "additional damages." Instead, the Dunns indicated they would supplement, but they never did. 2. After the motion in limine deadline passed, the Dunns provided American Family

with proposed jury instructions indicating that they will argue that American Family breached the contract by failing to investigate their home for mold contamination after the water leak and then failing to timely pay for repair and remediation of the home and personal property damaged by the mold. The Dunns should be precluded from making these arguments, because the Court has ruled that American Family did not act in bad faith in denying the claim for mold prior to the Arizona Court of Appeals' decision in Liristis v. American Family (8/23/05 Order, pp. 20-21). The Court's ruling established the law of the case, and any evidence or argument not consistent with those findings should be excluded as irrelevant and unfairly prejudicial to American Family. 3. After the motion in limine deadline passed, the Dunns provided American Family
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with proposed jury instructions indicating that they will argue that American Family acted in bad faith by abdicating responsibility for evaluating the claim to biased engineering firms. However, the Court has ruled that American Family did not act in bad faith in denying coverage for the slab cracks by relying on the opinions of the engineers that the cracks were unrelated to the covered water leaks (8/23/05 Order, p. 21). The Court's ruling established the law of the case, and any evidence or argument not consistent with those findings should be excluded as irrelevant and unfairly prejudicial to American Family. 4. The Dunns have listed John Hall as a witness they expect to call at trial.

American Family objects, because the Dunns' counsel informed American Family's attorney in a attorney in a letter dated October 27, 2004 that he did not intend to call Mr. Hall as a witness. In reliance on that statement, American Family did not take Mr. Hall's deposition. The Dunns should not be permitted to call Mr. Hall as witness, because it would be unfair and prejudicial to American Family. (b) Defendants:

Defendants have filed four motions in limine:
1.

Plaintiff's claims expert, Steven Plitt, should not be permitted to testify because his opinions violate Rule 403 and 701.

2.

Speculative and inadmissible evidence to support American Family's contention that the land-stabilization exclusion bars a portion of the Appraisal Award's line item for foundation repairs.

3.

Records pertaining to James F. O'Toole are inadmissible (this appears to be moot, as American Family apparently has withdrawn the records as

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exhibits). 4. American Family should be precluded from introducing the claim file because it refuses to produce the original file for inspection per Rule 1002.

These motions are scheduled to be ruled upon at the final pretrial conference. O. PROBABLE LENGTH OF TRIAL

The parties estimate the trial will last twelve (12) days. P. TRIAL DATE

The Court has scheduled trial to begin on October 11, 2005. Q. STIPULATED PROPOSED STATEMENT OF THE CASE, JURY INSTRUCTIONS, VOIR DIRE QUESTIONS, JUROR QUESTIONNAIRES, IF ANY, FORMS OF VERDICT AND TRIAL MEMORANDUM OF LAW Stipulated proposed statement of the case, attached as Exhibit Q1. Stipulated proposed jury instructions, attached as Exhibit Q2. Stipulated proposed voir dire questions, attached as Exhibit Q3. Stipulated proposed forms of verdict, attached as Exhibit Q4.

1. 2. 3. 4.

The parties will file separate trial memoranda of law and additional jury instructions. R. 1. MISCELLANEOUS The Dunns request that the Court authorize an inspection of their residence by the

jury. The Court should also participate, so it and the jury can see the extensive damage to the structure. Much of the damage, in particular the foundation cracks, cannot be appreciated fully absent a personal inspection. For example, the major crack next to the bathtub and planter is relevant not only for its size, but for the difference in elevation on either side of the crack. This important feature of the distress at the Dunns' home can only fairly be appreciated

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if viewed in person. Additionally, "expert testimony" alone is not sufficient, because another important feature, the doming effect in the hall adjacent to the bedroom and bathroom caused

by the subsurface movement, cannot be photographed or videotaped, but is readily apparent simply by walking over it. Despite its prominence, American Family contended that the change in elevation was the result of typical post-construction settlement. The distress features of the Dunns' residence are critical to rebutting this position. American Family objects, for the following reasons: (a) It will not provide probative evidence on any fact at issue in this case. The jury will not be deciding the scope or cost of repairs, as that has been set by the appraisal award and/or the court's coverage decisions. It is not necessary for the jury to have a first-hand look at the structure to determine the causation of the slab cracks, which is largely an issue of expert opinion. (b) The probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, and misleading the jury (Rule 403). (c) The probative value is substantially outweighed by danger of undue delay, waste of time, and needless presentation of cumulative evidence (Rule 403). 2. The Dunns may request that the jury be instructed on punitive damages after the

presentation of the evidence. The evidence introduced at trial may show that American Family consciously disregarded information from the Dunns and American Family's own experts that the damage to the Dunns' residence was caused by earth movement resulting from a covered loss. It may also establish that American Family knew and intended to wrongfully deny and delay the claim, knowing that its conduct was likely to cause unjustified, significant damage to the insureds. In the event the evidence would support such a conclusion by the jury,
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a punitive damage instruction may be warranted. For example, two witnesses originally retained by American Family ­ Robert Burttram of Dusty Creek and Paul Leon of Cereus Irrigation ­ may provide evidence upon which a jury could conclude that American Family consciously set out to injure the Dunns and knowingly and wrongfully protracted and denied the claim. American Family disagrees, because the Dunns presented their best case to the court in response to the motion for partial summary judgment, including the evidence described above, and the court found that it could not meet the standard for the imposition of punitive damages. That ruling is law of the case, and no evidence will be presented at trial to disturb that ruling. S. MODIFICATION OF ORDER

In the event American Family is unable to secure the voluntary appearance of Hans van de Vrugt and David Polson, who both reside outside the District of Arizona, the parties agree to submit deposition designations and to jointly request a modification of the Order. APPROVED AS TO FORM AND CONTENT:

________________________________________

________________________________________

Lynn M. Allen, Esq.

Attorney for Plaintiff/Counterdefendant

Stephen Silverman, Esq. Attorney for Defendants/ Counterclaimants

THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED ON THIS 26th day of September, 2005.

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EXHIBIT Q1 JOINT STIPULATED STATEMENT OF THE CASE

This is a declaratory judgment action arising from a claim under an American Family homeowner's insurance policy. The insurance claim arises from two plumbing leaks that occurred at the Dunns' residence in 1999. The Dunns contend that one or both of the plumbing leaks discharged water into the underlying soils, causing earth movement resulting in damage to the foundation of their home. American Family contends that there is no causal relationship between the plumbing leaks and the earth movement. American Family seeks a declaration that there is no coverage for the damage to the foundation of the home. The Dunns filed a counterclaim for breach of contract and insurance bad faith. The Dunns assert that American Family acted in bad faith in its investigation, evaluation, and settlement of their claims. Specifically, they allege American Family promised to find the cause of damage to their home without regard to liability, and then broke that promise; unreasonably delayed its adjustment of the claim; paid an unreasonably low amount after a delayed and inadequate investigation; hid evidence favorable to finding coverage; and relied on biased and unreasonable opinions from its consultants to avoid paying the Dunns what they are owed under the insurance policy. American Family denies these allegations and contend that it has paid the Dunns

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everything that is owed under the insurance policy. American Family also contends that its investigation was timely, unbiased, and appropriate and its actions were reasonable and supported by the opinions of qualified independent consultants. American Family also contends that the Dunns failed to mitigate their damages.

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EXHIBIT Q2 STIPULATED JURY INSTRUCTIONS

1

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Section I: Ninth Circuit Model Civil Jury Instructions

2

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1.1 DUTY OF JURY Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

3

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1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

4

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1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of the attorneys; (2) questions and objections of the attorneys; (3) testimony that I instruct you to disregard; and (4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

5

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1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

6

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1.7 RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

7

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1.8 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

8

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1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] [matron] to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

9

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1.10 NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

10

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1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

11

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1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. American Family will then present evidence, and counsel for the Dunns may cross-examine. Then the Dunns may present evidence, and counsel for American Family may cross-examine. After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing arguments and I will instruct you on the law that applies to the case]. After that, you will go to the jur