Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Richard T. Treon (No. 002064) 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 (No. 014911) Douglas G. Shook (No. 005950) Stephen E. Silverman (No. 016757) TREON & SHOOK, P.L.L.C. 2700 N. Central Avenue, Suite 1000 Phoenix, Arizona 85004-1133 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorneys for Defendants/Counterclaimants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA AMERICAN FAMILY INSURANCE COMPANY, Plaintiff/Counterclaim Defendant, v. ROBERT and JOY DUNN, NO. CV2003-1277 PHX SRB

RESPONSE TO MOTION IN LIMINE RE OTHER CLAIMS

23 24 25 26 27

Defendants/Counterclaimants.

The Dunns propose two modest and appropriate uses of "other claim" evidence for use at trial. First, Mr. Miller intends to offer opinions that American Family's

28 -1-

Case 2:03-cv-01277-SRB

Document 207

Filed 09/21/2005

Page 1 of 5

1 2 3 4 5

actions in other cases provide evidence of intent in this case. "Intent" is an element of the bad faith tort, and can be proven by circumstantial evidence. In this case, American Family intends to offer testimony that even if it acted wrongfully, it acted mistakenly and not intentionally. "Other act" evidence is relevant to show the absence

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

of mistake. Rule 404(b). The "other act" evidence to be offered by Miller actually satisfies the test quoted by American Family and set out in Duran v. City of Maywood, 221, F.3d 1127, 1132-33 (9th Cir.): · the "other acts" will be established by the documents of American Family, indisputably showing it committed the acts; · the acts occurred within the same general time frame, sometimes with with the same insurance company adjuster, and the same geotechnical engineering firm, and the same structural engineering firm; · · the issue to be proven ­ intent ­ is a material issue in this case; the acts are similar, showing American Family's practice of denying claims based on an inadequate investigation and underpaying claims. Likewise, the engineering reports from American Family's engineers in the

23 24 25 26 27 28

Madjanski matter are relevant because the Dunns' geotechnical engineer will testify consistent with his deposition that the data from Majdanski and Dunn was similar, but the engineer and insurer reached very different conclusions. [Dunns' June 30, 2005 Statement of Facts (Dunn SOF), § 158] If American Family's engineering reports are

Case 2:03-cv-01277-SRB

Document 207

-2-

Filed 09/21/2005

Page 2 of 5

1 2 3 4 5

scientific and admissible (as they contend they are), they ought to withstand the scrutiny of impeachment with reports issued in other cases. It is not enough to simply say, "they are different." Evidence rules 702-05 require considerably more in the way of foundation for scientific and technical evidence. If there is a scientific basis for the

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

difference in the interpretation of the data between Madjanski and Dunn, it certainly has not been provided so far. Here, American Family wants to exclude Mr. Starling's reports and Ninyo & Moore's reports in Madjanski because they assert opposite assertions about the basic science of soil movement, and may cast considerable doubt on the validity of the reports with the jury. For example, Mr. Starling testified in this case that he rules out the bathtub leak as the cause of the earth movement because after the repair of the leak, the cracks are getting larger, not smaller, and his testimony in Dunn is that once the water source is removed and the soil begins to dry, contraction of the soils will cause cracks to get smaller, not larger. [Dunn SOF, Exhibit 46, at 24-25] But in his Madjanski report, he adopted the opposite position, and indicated that after the repair of the leak, the cracks were getting larger, and therefore appeared to be the result of earth movement.

23 24 25 26 27 28

[Exhibit 1] Contrary to his deposition testimony in this case, his report in Madjanski states: "It is common for earth movement from under slab water leaks to occur slowly over an extended period of time. Ms. Majdanski reported that the cracking and movement has been steadily getting worse since the plumbing was repaired."

Case 2:03-cv-01277-SRB

Document 207

-3-

Filed 09/21/2005

Page 3 of 5

1 2 3 4 5 6 7 8 9 10

This evidence is relevant to the issues to be decided at trial. The Dunns respectfully request that the Court deny the motion in limine. DATED this 21st day of September, 2005. TREON, AGUIRRE & NEWMAN, P.A. By: s/Richard T. Treon Richard T. Treon, Esq. 2700 North Central Avenue, Suite 1400 Phoenix, Arizona 85004 and

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TREON & SHOOK, P.L.L.C. By: s/Stephen E. Silverman Daniel B. Treon Douglas Shook Stephen E. Silverman 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Attorneys for Defendants/Counterclaimants ORIGINAL of the foregoing electronically filed this 21st day of September, 2005, with: U.S. District Court Clerk

COPY hand delivered this 21st day of September, 2005, to:
Case 2:03-cv-01277-SRB Document 207
-4-

Filed 09/21/2005

Page 4 of 5

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

The Honorable Susan R. Bolton United States District Court By: s/Barbara Bopp

Case 2:03-cv-01277-SRB

Document 207

-5-

Filed 09/21/2005

Page 5 of 5