Free Trial Brief - 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 TRIAL BRIEF

Pursuant to the Court's Rule 16 scheduling order dated February 23, 2004, plaintiff American Family Mutual Insurance Company ("American Family") submits its trial brief on evidentiary issues that may arise at trial. 1. Undisclosed Witnesses and Exhibits.

The court requires exact compliance with Rule 26 disclosure requirements. See Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 299 (D. Nev. 1998). Rule 37(c)(1) requires exclusion of any evidence that is not properly disclosed. Only two exceptions apply. "The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless." Yeti by Molly Ltd. v. Granville, 259 F.3d 1101, 1106 (9th Cir. 2001)(upholding the exclusion of evidence even though the

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plaintiffs did not violate an explicit court order). The party attempting to introduce the evidence has the burden of proving justification or harmlessness. See id. at 1107. 2. Request for Jury View of Subject Premises.

The trial court has discretion whether to permit the jury to view the premises that are the subject of litigation. See Hametner v. Villena, 361 F.2d 445 (9th Cir. 1966). In Hametner, the Ninth Circuit affirmed the district court's refusal to allow a jury view, finding that the ruling would not be disturbed in the "absence of a clear showing of sound judicial discretion." Id. at 445-46. The Court concluded that the trial judge might properly have found that a jury view, "with its attendant delay and inconvenience, was unnecessary and unwarranted" given the evidence included "photographs and a surveyor's diagram of the scene." Id.; see also American Nat. Bank v. Aetna Ins., 447 F.2d 680 (7th Cir. 1971) (affirming denial of jury view, even where plaintiff offered to pay expenses, finding evidence cumulative of diagrams and photographs); Skyway Aviation Corp. v. Minn. Northfield and Southern Railway Co., 326 F.2d 701 (8th Cir. 1964) (finding evidence cumulative of witness testimony); Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950 (5th Cir. 1979) (same). 3. Law of the Case.

The law of the case doctrine provides that when a court makes a decision on a rule of law, that decision should govern the same issue in subsequent stages of the same case. See Arizona v. California, 460 U.S. 605 at 618, 103 S.Ct. 1382 at 1391 (1983). The Supreme Court of the United States has noted that it is a "fundamental precept of 2
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common-law adjudication" that once a competent court has determined an issue, that determination is conclusive. See id. at 619. The Ninth Circuit recognizes that the law of the case doctrine generally precludes a court from reconsidering an issue previously decided by the same court or a higher court in the same case. See Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703 at 715 (9th Cir. 1990); see also Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597 at 601 (9th Cir. 1991). A court may depart from the doctrine only where: "1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result." U.S. v. Alexander, 106 F.3d 874 at 876 (9th Cir. 1997). Failure to apply the law of the case in the absence of one of those conditions constitutes an abuse of discretion. Id. Put another way, "the law of the case doctrine is a discretionary one created to maintain consistency and avoid reconsideration, during the course of a single continuing lawsuit, of those decisions that are intended to put a matter to rest." Pit River Home & Agricultural Coop. Assoc. v. U.S., 30 F.3d 1088 at 1097 (9th Cir. 1994). The doctrine applies to interlocutory orders that are not immediately appealable. See id.; see also Matthews v. NCAA, 179 F.Supp.2d 1209 at 1217 (E.D. Wash 2001) (the law of the case doctrine applies to all legal and factual issues already decided by the same court or a higher court, even prior to entry of a judgment). It also applies to summarily

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treated issues. See Leslie Salt Co. v. U.S., 55 F.3d 1388 at 1392 (9th Cir. 1995); see also U.S. v. Reagan, 35 F.Supp.2d 1151 at 1154 (D. Ariz. 1998). In ruling as it did on the issues raised in the motions for summary judgment, the Court narrowed the scope of the issues to be tried in this case. Rule 401, Fed. R. Evid., provides that, to be relevant, evidence must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Irrelevant evidence is not admissible. See Rule 402, Fed. R.Evid. Thus, any evidence that speaks only to the issues raised, and disposed of, on summary judgment should be excluded as irrelevant. 4. Comparative Fault.

The Arizona Uniform Contribution Among Tortfeasors Act ("UCATA," codified in 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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A.R.S. §§ 12-2501 et seq.) established a system of pure comparative fault in Arizona. The act states: The defense of contributory negligence or of assumption of the risk is in all cases a question of fact and shall at all times be left to the jury. If the jury applies either defense, the claimant's action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant's fault which is the proximate cause of the injury or death, if any. A.R.S. § 12-2505(A). The Act defines "fault" as follows: "Fault" means an actionable breach of a legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.

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A.R.S. § 12-2506(F)(2). As the text of the statute indicates, apportionment of fault is not limited to negligence cases. See Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 904 P.2d 861 (1995) (comparative fault statute applies in products liability case where defendant raised defense of misuse). Arizona courts have also upheld application of the statute to compare the fault of negligent and intentional tortfeasors. In Thomas v. First Interstate Bank of Arizona, 187 Ariz. 488, 930 P.2d 1002 (App. 1997), the plaintiff sued a bank for wrongful death after a security guard was killed during a robbery at the bank's ATM machine. The bank noticed the gunman as a non-party at fault, and the plaintiff argued that Arizona's comparative fault statute does not apply to intentional criminal conduct. The court rejected this

14 15 16 17 18 19 20 21 22 23 24 25 26 woman sued the City of Phoenix for negligently handling the woman's 911 call. The issue was whether liability should be apportioned based on the city's negligence and the 5
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argument, noting that intentional wrongdoing is not "different in kind" from negligence, but rather is only "different in degree." Id. at 490. The court stated, "Excluding the acts of an intentional tortfeasor would detract from the legislature's definition of fault." Id. The court also noted that limiting the application of the statute would frustrate the legislative intent of the statute, which was to ensure that each tortfeasor is responsible only for his or her percentage of fault and no more. Id. In Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449 (1998), the Supreme Court of Arizona followed the same rationale. In that case, the survivors of a murdered

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murder's intentional conduct. The court stated, "[N]o compelling authority has been cited for the proposition that intentional conduct must be given more weight than negligent conduct in the apportionment of fault." Id. at 54. The court held, "Based on the Arizona law, we conclude that a jury may apportion fault among defendants and nonparties, without distinguishing between intentional and negligent conduct or requiring that a minimum percentage of responsibility be assigned to the former." Id. 5. Impeachment Evidence.

Rule 26(a)(1) and (2), Fed. R. Civ. P., requires parties to disclose all relevant nonprivileged material. Issues may arise regarding the distinction between substantive evidence, which much be disclosed, and impeachment evidence, which need not be disclosed. Substantive evidence is "`that which is offered to establish the truth of a matter

14 15 16 17 18 19 20 21 22 23 24 25 26 additional damage to the residence and personal property, costs incurred in the appraisal, and their public adjuster's fee of ten percent of their recovery against American Family. 6
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to be determined by the trier of fact." Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir.1993). In contrast, impeachment evidence is " that which is offered to discredit a witness to reduce the effectiveness of [the witness's] testimony by bringing forth evidence which explains why the jury should not put faith in [the witness's] testimony." Id. 6. Consequential Damages.

The Dunns intend to claim consequential damages resulting from the alleged breach of contract, including the increased cost to repair the residence and personal property,

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American Family raised an objection to this claim in the joint proposed pretrial order on the grounds that the Dunns failed to disclose a computation of these categories of damages or documents supporting their claim. Additionally, the Dunns cannot recover these items as "consequential damages" under a breach of contract theory. Well-settled Arizona law provides that in an action for breach of contract, the injury party is entitled to those damages that arise naturally from the breach itself or that may reasonably be supposed to have been within the contemplation of the parties at the time they entered into the contract. See Jacob v. Minor, 67 Ariz. 109, 191 P.2d 734 (1948); Cole v. Atkins, 69 Ariz. 81, 209 P.2d 859 (1949); Higgins v. Ariz. Sav. And Loan Ass'n, 90 Ariz. 55, 365 P.2d 476 (1961); Valley Nat. Bank v. Brown, 110 Ariz. 260, 517 P.2d 1256 (1974); Seekings v. Jimmy GMC of Tucson, Inc.,

14 15 16 17 18 19 20 21 22 23 24 25 26 ORIGINAL electronically filed this 21st day of September, 2005, with: The Clerk of the Court United States District Court 7
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130 Ariz. 596, 638 P.2d 210 (1981); Thunderbird Metallurgical, Inc. v. Arizona Testing Laboratories, 5 Ariz. App. 48, 423 P.2d 124 (1967); Southern Ariz. School for Boys, Inc. v. Chery, 119 Ariz. 277, 580 P.2d 738 (App. 1978). DATED this 21st day of September, 2005. ALLEN & LEWIS, PLC

By s/ Lynn M. Allen Lynn M. Allen Amy N. Toppel Attorneys for Plaintiff/Counter Defendant

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COPY hand-delivered this 21st __ day of September, 2005 to: The Honorable Judge Susan R. Bolton United States District Court By: Laura Sakakibara

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