Free Objection - District Court of Arizona - Arizona

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Lynn M. Allen, State Bar Number 012612 Amy N. Toppel, State Bar Number 022106 ALLEN & LEWIS, PLC 4835 East Cactus Road, Suite 340 Scottsdale, AZ 85254 Telephone: (602) 443-0402 Facsimile: (602) 443-0403 Attorneys for Plaintiff/Counter Defendant

UNITED STATES DISTRICT COURT 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 PLAINTIFF'S OBJECTIONS TO DEFENDANTS' PROPOSED JURY INSTRUCTION

Plaintiff submits its objections to defendants' proposed jury instructions, as follows. Defendants' Requested Jury Instruction No. 1--Claims and Defenses The defendants' requested jury instruction improperly proposes to instruct the jury, at the outset of the case, all nuances of their claims against the plaintiff. Although is it roughly based on Ninth Circuit Model Instruction No. 1.2, it should not be given. The purpose of the model instruction is to provide the jury with a general summary of the nature of the claims and defenses. The defendants' proposed instruction goes too far. Defense counsel can certainly expand on the nature of the defendants' claims during his opening statement.

Case 2:03-cv-01277-SRB

Document 214

Filed 09/26/2005

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Defendants' requested jury instruction may mislead the jury, cause the jury to attach undue significance by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) 1 (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression that the judge feels a certain way about an issue); Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988) (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them). Furthermore, defendants' requested jury instruction refers to claims that are no longer part of the case due to the court's summary judgment ruling and/or claims that were

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not adequately disclosed. See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Specifically, defendants cannot argue that plaintiff acted wrongfully by not investigating or paying their mold damage claim, that plaintiff wrongfully refused to pay them all damages set forth in the appraisal award, and that plaintiff's conduct caused further damage to the home. Plaintiff requests that the court instruct the jury as set forth in plaintiff's requested jury instruction no. 1, because it provides a more even handed statement of the claims and defenses.

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"In diversity actions, since state law is applied, it controls the substantive content of jury instructions." In re Hawaii Federal Asbestos Cases v. Raymark Indus., Inc., 960 F.2d 806, 814 (9th Cir. 1992).

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Defendants' Requested Jury Instruction No. 2--Court Rulings The first paragraph of defendants' proposed instruction relating to a breach of contract claim for failing to investigate and pay the mold damage claim should not be given, because this claim has been resolved in plaintiff's favor on summary judgment. Defendants are wrongfully attempting to circumvent the court's ruling by calling the same allegations a breach of contract rather than a breach of the implied covenant of good faith and fair dealing. However, prior to the Arizona Court of Appeals' June 28, 2002 decision in Liristis v. American Family, mold damage was not covered under the American Family homeowners insurance policy, and this court has ruled that it was not unreasonable for American Family to interpret its policy in this manner. Within sixty (60) days of the appellate decision, American Family paid the appraisal award for mold remediation.

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The defendants failed to give notice they would be claiming a breach of contract damages for failure to investigate and pay for mold. The only contract damages they identified in their disclosure statements and interrogatory responses are the unpaid line items in the appraisal award. Within sixty (60) days of the appellate decision, American Family paid the appraisal award for mold remediation. Because defendants have not identified any breach of contract damages relating to a prior failure to pay for mold damage, this claim is not part of the case, and the instruction should not be given. See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975) (the court should not instruct on issues and theories that are not part of the case).

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In the same way, the second paragraph of the defendants' requested instruction improperly attempts to circumvent the court's ruling that plaintiff did not breach the implied covenant of good faith and fair dealing by denying the defendants' claim for the slab cracks. Wrongful and intentional acts or omissions in the investigation, evaluation and/or payment of an insurance claim constitute a breach of the implied covenant of good faith and fair dealing, which would entitle an insured to tort damages, not contract damages. Not only is defendants' instruction and incorrect statement of the law, it would be extremely confusing and misleading to the jury to instruct it that these same acts or omissions could constitute a breach of contract but not a breach of the implied covenant of good faith and fair dealing. Defendants will have to ability to argue that the slab cracks were caused by the covered water leaks and that the jury should award the cost to repair

14 15 16 17 18 19 20 21 22 23 24 25 26 defense counsel in argument and unfairly expands on concepts already covered by other instructions. 4
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those cracks as set by the appraisal award without the court giving this incorrect instruction. Defendants' Requested Jury Instruction No. 3--Bad Faith 1 Defendants' requested jury instruction is not found in the Revised Arizona Jury Instructions (Civil) 4th for first party bad faith. The concept and definition of bad faith under Arizona law is adequately set forth in those instructions, which have been submitted to the court as stipulated non-model instructions and plaintiff's requested instruction no. 6. The defendants' requested instruction is much too expansive and is crafted solely to aid

ALLEN & LEWIS, PLC

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The purpose of jury instructions is to inform the jury of the applicable law in a way that the jury can readily understand. See Noland v. Wootan, 102 Ariz. 192, 194, 427 P.2d 143, 145 (1967). The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982). Furthermore, the court is not required to instruct on every refinement of law suggested by counsel, particularly where the legal concept is adequately conveyed in other instructions. See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury. Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d

Furthermore, the requested instruction is drawn from explanatory dicta in the Zilisch case. It is not proper to instruct the jury based on explanatory dicta in reported cases because it can be confusing and misleading to the jury. See Gaston v. Hunter, 121 Ariz. 33, 55-56, 588 P.2d 326, 348-49 (App. 1978). Finally, defendants' requested jury instructions on bad faith, taken as a whole, may mislead the jury, cause the jury to attach undue significance to them by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando 5
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v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression that the judge feels a certain way about an issue); Bell, 157 Ariz. at 196, 755 P.2d at 1184 (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them). Defendants' Requested Jury Instruction No. 4--Bad Faith 2 In this instruction, the defendants' modification to the paragraph one of the Revised Arizona Jury Instructions (Civil) 4th, Bad Faith 1 (First Party) is improper. The Court should instead give plaintiff's requested jury instruction no. 6, which is the RAJI (Civil) 4th Bad Faith 1 without modification. It would be improper to give the defendants' expansive and more factually detailed instruction. The purpose of jury instructions is to inform the jury of the applicable law in a way that the jury can readily understand. See Noland v. Wootan, 102 Ariz. 192, 194, 427 P.2d 143, 145 (1967). The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982). Furthermore, the court is not required to instruct on every refinement of law suggested by counsel, particularly where the legal concept is adequately conveyed in other instructions.

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See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury. Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d at 327. Finally, defendants' requested jury instruction may mislead the jury, cause the jury to attach undue significance to them by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression

14 15 16 17 18 Defendants' Requested Jury Instruction No. 5--Bad Faith 3 19 20 21 22 23 24 25 26 It would be improper to give the defendants' expansive and more factually detailed instruction. The purpose of jury instructions is to inform the jury of the applicable law in a 7
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that the judge feels a certain way about an issue); Bell, 157 Ariz. at 196, 755 P.2d at 1184 (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them).

In this instruction, the defendants' modification to the Revised Arizona Jury Instructions (Civil) 4th, Bad Faith 2 (First Party) is improper. The Court should instead give the parties' stipulated jury instruction on "adequacy of investigation," which is the RAJI (Civil) 4th Bad Faith 2 without modification.

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way that the jury can readily understand. See Noland v. Wootan, 102 Ariz. 192, 194, 427 P.2d 143, 145 (1967). The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982). Furthermore, the court is not required to instruct on every refinement of law suggested by counsel, particularly where the legal concept is adequately conveyed in other instructions. See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury. Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d at 327. Finally, defendants' requested jury instruction may mislead the jury, cause the jury to attach undue significance to them by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression that the judge feels a certain way about an issue); Bell, 157 Ariz. at 196, 755 P.2d at 1184 (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them). 8
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Defendants' Requested Jury Instruction No. 6--Bad Faith 4 Defendants' requested jury instruction is not found in the Revised Arizona Jury Instructions (Civil) 4th for first party bad faith. The concept and definition of bad faith under Arizona law is adequately set forth in those instructions, which have been submitted to the court as stipulated non-model instructions and plaintiff's requested instruction no. 6. The defendants' requested instruction is much too expansive and is crafted solely to aid defense counsel in argument and unfairly expands on concepts already covered by other instructions. The purpose of jury instructions is to inform the jury of the applicable law in a way that the jury can readily understand. See Noland v. Wootan, 102 Ariz. 192, 194, 427 P.2d 143, 145 (1967). The court should refuse to give requested instructions when the concepts

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contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982). Furthermore, the court is not required to instruct on every refinement of law suggested by counsel, particularly where the legal concept is adequately conveyed in other instructions. See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury.

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Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d at 327. Furthermore, the requested instruction is drawn from explanatory dicta in the Zilisch case. It is not proper to instruct the jury based on explanatory dicta in reported cases because it can be confusing and misleading to the jury. See Gaston v. Hunter, 121 Ariz. 33, 55-56, 588 P.2d 326, 348-49 (App. 1978). Finally, defendants' requested jury instructions on bad faith, taken as a whole, may mislead the jury, cause the jury to attach undue significance to them by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the

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jury and create the impression that the judge feels a certain way about an issue); Bell, 157 Ariz. at 196, 755 P.2d at 1184 (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them). Defendants' Requested Jury Instruction No. 7--Bad Faith 5 Defendants' requested jury instruction is not found in the Revised Arizona Jury Instructions (Civil) 4th for first party bad faith. The concept and definition of bad faith under Arizona law is adequately set forth in those instructions, which have been submitted to the court as stipulated non-model instructions and plaintiff's requested instruction no. 6.

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None of the cases cited by defendants as support for this jury instruction support the concept that an insurer's duty of good faith and fair deadline is a continuing duty that does not stop after all or part of the claim is paid or after a lawsuit has been filed. The court should not give an instruction that is not a correct statement of the law. See Orlando v. Northcutt, 103 Ariz. 298, 300, 441 P.2d 58, 60 (1968); Gosewisch v. American Honda Motor Co., Inc., 153 Ariz. 389, 392, 737 P.2d 365, 368 (App. 1985). The defendants' requested instruction interjects an issue of post-litigation bad faith into the case, without disclosure of any witnesses, exhibits or damages relating to any alleged conduct by American Family after the declaratory judgment action was filed. See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975) (the court should not instruct on issues and theories that are not part of the case).

14 15 16 17 18 19 20 21 22 23 24 25 26 forth in the instruction based upon RAJI (Civil) 4th, Bad Faith 1 (see plaintiff's Requested Jury Instruction No. 6). 11
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Defendants' Requested Jury Instruction No. 8--Bad Faith 6 Plaintiff objects to the language in the instruction as being confusing, misleading, and one-sided. See Gosewisch v. American Honda Motor Co., Inc., 153 Ariz. 389, 392, 737 P.2d 365, 368 (App. 1985); Yellow Cab Co. v. Green, 16 Ariz. App. 485, 487, 494 P.2d 385, 387 (App. 1972). The purpose of jury instructions is to inform the jury of the applicable law in a way that the jury can readily understand. See Noland v. Wootan, 102 Ariz. 192, 194, 427 P.2d 143, 145 (1967). Furthermore, the concepts embodied in the requested instruction are adequately set

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In the event the court determines it is appropriate to instruct on the non-delegable duty, American Family proposes the following instruction, which is neutral and accurately states the law: An insurance company may seek assistance from others by delegating tasks such as performing investigations, preparing estimates, and other functions. However, the insurance company remains ultimately responsible for handling the claim in a manner consistent with the implied duty of good faith and fair dealing. Source: Walter v. Simmons, 169 Ariz. 229, 818 P.2d 214 (App. 1991). Defendants' Requested Jury Instruction No. 9--Bad Faith 7 Defendants' requested jury instruction is not found in the Revised Arizona Jury Instructions (Civil) 4th for first party bad faith. The concept and definition of bad faith under Arizona law is adequately set forth in those instructions, which have been submitted to the court as stipulated non-model instructions and plaintiff's requested instruction no. 6.

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The defendants' requested instruction is much too expansive and is crafted solely to aid defense counsel in argument and unfairly expands on concepts already covered by other instructions. The purpose of jury instructions is to inform the jury of the applicable law in a way that the jury can readily understand. See Noland v. Wootan, 102 Ariz. 192, 194, 427 P.2d 143, 145 (1967). The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied

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particularly where the legal concept is adequately conveyed in other instructions. See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury. Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d at 327. Furthermore, the requested instruction is drawn from explanatory dicta in the Zilisch case. It is not proper to instruct the jury based on explanatory dicta in reported cases because it can be confusing and misleading to the jury. See Gaston v. Hunter, 121 Ariz. 33, 55-56, 588 P.2d 326, 348-49 (App. 1978).

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Finally, defendants' requested jury instructions on bad faith, taken as a whole, may mislead the jury, cause the jury to attach undue significance to them by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression that the judge feels a certain way about an issue); Bell, 157 Ariz. at 196, 755 P.2d at 1184 (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them).

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Defendants' Requested Jury Instruction No. 10--Bad Faith 8 Although this requested instruction is loosely based on Revised Arizona Jury Instructions (Civil) 4th, Bad Faith 7 (First Party), it lists categories of damages that are not recoverable in this case--namely, "damage to property, loss of use of property, and damage to credit reputation." See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975) (the court should not instruct on issues and theories that are not part of the case). The defendants did not properly disclose these elements of damages 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 defendants disclosed they were seeking the amount of the appraisal award

14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff also objects to category number 1 in the instruction--"unpaid benefits of the policy." This category is duplicative of the damages that the jury could award for 14
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less what plaintiff had already paid. In their first supplemental disclosure statement, the defendants disclosed they were seeking emotional distress damages for their "ordeal." In response to interrogatories, the defendants 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 defendants indicated they would supplement, but they never did. The defendants have never disclosed that they would seek damages for loss of use or damage to credit reputation.

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breach of contract and, therefore, it would be confusing and misleading to instruct the jury that these damages could be awarded on both claims. Defendants' Requested Jury Instruction No. 11--Liability for Employees or Agents The content of this instruction is already adequately conveyed in stipulated Ninth Circuit Model Jury Instruction No. 6.2. The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982). Furthermore, the court is not required to instruct on every refinement of law suggested by counsel, particularly where the legal concept is adequately conveyed in other instructions. See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d

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1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975). Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury. Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d at 327. Furthermore, the requested instruction is drawn from explanatory dicta in the cited cases. It is not proper to instruct the jury based on explanatory dicta in reported cases because it can be confusing and misleading to the jury. See Gaston v. Hunter, 121 Ariz. 33, 55-56, 588 P.2d 326, 348-49 (App. 1978).

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Finally, defendants' requested jury instruction may mislead the jury, cause the jury to attach undue significance by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441 P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression that the judge feels a certain way about an issue); Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988) (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them). Defendants' Requested Jury Instruction No. 12--Non-Economic Damages The content of this instruction is already adequately conveyed in the Revised

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Arizona Jury Instruction (Civil) 4th, Bad Faith 7 (First Party). The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982). Furthermore, the court is not required to instruct on every refinement of law suggested by counsel, particularly where the legal concept is adequately conveyed in other instructions. See Anderson v. Nissei ASB Machine Co., 197 Ariz. 168, 178, 3 P.3d 1088, 1098 (App. 1999); Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975).

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Instructions are not given to aid one side or the other in jury argument. Once the court defines in understandable language the legal principles applicable to a controversy, it is the obligation of counsel, in argument, to discuss the evidence and the applicability of the legal principles to the ultimate facts found by the jury. Porterie, 111 Ariz. At 458, 532 P.2d at 520; see also Hallmark, 132 Ariz. at 442, 646 P.2d at 327. Furthermore, the requested instruction is drawn from explanatory dicta in the cited cases. It is not proper to instruct the jury based on explanatory dicta in reported cases because it can be confusing and misleading to the jury. See Gaston v. Hunter, 121 Ariz. 33, 55-56, 588 P.2d 326, 348-49 (App. 1978). Finally, defendants' requested jury instruction may mislead the jury, cause the jury to attach undue significance by overemphasizing the claim, or create the impression that the judge favors defendants' claims. See Orlando v. Northcutt, 103 Ariz. 298, 303, 441

14 15 16 17 18 19 20 21 22 23 24 25 26 breach of contract issue. The concept of timely payment is a bad faith issue, as set forth in the Revised Arizona Jury Instructions (Civil) 4th, Bad Faith 1. American Family cannot be 17
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P.2d 58, 63 (1968) (the court should not give repetitious, overemphasized, and redundant instructions, because they may mislead the jury and create the impression that the judge feels a certain way about an issue); Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988) (the court should not single out particular factual aspects of a case for special instructions because it may cause the jury to attach undue significance to them). Defendants' Requested Jury Instruction No. 13--Contract Claims and Damages This instruction erroneously instructs that jury that timely payment of the claim is a

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liable for delay in payment unless its conduct was both objectively and subjectively unreasonable. This instruction also omits plaintiff's claim that the defendants breached the contract by failing to mitigate their damages and the burden of proof on each claim. Plaintiff requests that the court instruct the jury as set forth in its proposed jury instruction no. 4, which is an accurate and neutral statement of the law. Defendants' Requested Jury Instruction No. 14--Material Breach of Contract The defendants are attempting to interject a new issue in this case on the eve of trial. The defendants' counterclaim does not allege that plaintiff's breach of contract excused their own performance under the contract. See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975) (the court should not instruct on issues and theories that are not part of the case).

14 15 16 17 18 19 20 21 22 23 24 25 26 The defendants did not properly disclose these elements of damages as required by Rule 26(a)(1)(C), which requires the party to disclose the computation of any category of 18
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Defendants' Requested Jury Instruction No. 15--Measure of Direct Damage Although this requested instruction is loosely based on Revised Arizona Jury Instructions (Civil) 4th, Contract 17, it lists categories of damages that are not recoverable in this case--namely, repair costs in excess of what is set forth in the appraisal award, replacement of personal property, additional living expenses, and the increase in costs of structure repairs and contents handling since the date of the estimates and/or appraisal award. See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975) (the court should not instruct on issues and theories that are not part of the case).

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damages and the documents on which the computation is based. In their initial disclosure statement, the defendants disclosed they were seeking the amount of the appraisal award less what plaintiff had already paid. In their first supplemental disclosure statement, the defendants disclosed they were seeking emotional distress damages for their "ordeal." In response to interrogatories, the defendants 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 defendants indicated they would supplement, but they never did. Defendants did provide an estimate for contents handling and cleaning, but never disclosed that any property that required replacement or the cost of such replacement. Defendants' Requested Jury Instruction No. 15--Consequential Damages2 Although this requested instruction is loosely based on Revised Arizona Jury Instructions (Civil) 4th, Contract 2, it lists categories of damages that are not recoverable in this case--namely, loss of use of home, loss of use of personal property, and additional damage to the home and personal property. See Porterie v. Peters, 111 Ariz. 452, 458, 532 P.2d 514, 520 (1975) (the court should not instruct on issues and theories that are not part of the case). /// ///

2

Defendants submitted two proposed jury instructions numbered 15.

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The defendants did not properly disclose these elements of damages 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 defendants disclosed they were seeking the amount of the appraisal award less what plaintiff had already paid. In their first supplemental disclosure statement, the defendants disclosed they were seeking emotional distress damages for their "ordeal." In response to interrogatories, the defendants 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 defendants indicated they would supplement, but they never did. Defendants did not disclose that they would seek damages for loss of use of their home, loss of use of personal

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property, or additional damage to the home and contents resulting from plaintiff's alleged breach of contract. Defendants' Requested Jury Instruction No. 16--Burden of Proof The content of this instruction is already adequately conveyed in stipulated Ninth Circuit Model Jury Instruction No. 1.13. The court should refuse to give requested instructions when the concepts contained therein are adequately conveyed in other instructions. See Bell v. Maricopa Medical Center, 157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988); Hallmark v. Allied Products Corp., 132 Ariz. 434, 443, 646 P.2d 319, 328 (App. 1982).

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Defendants' Requested Jury Instruction No. 17--Non-Delegable Duty This proposed instruction covers the same subject as defendants' requested jury instruction no. 11 and is objectionable for the same reasons. DATED this 26th day of September, 2005. ALLEN & LEWIS, PLC

By s/ Lynn M. Allen Lynn M. Allen Amy N. Toppel Attorneys for Plaintiff/Counter Defendant ORIGINAL electronically filed this 26th day of September, 2005, with: The Clerk of the Court United States District Court COPY hand-delivered this 26th day of September, 2005, to: Honorable Judge Susan R. Bolton United States District Court 401 W. Washington Phoenix, AZ 85003 By: Laura Sakakibara

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