Free Motion in Limine - District Court of Arizona - Arizona

EXHIBIT 1, MOTION IN LIMINE #2

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 1 of 22

rNSURED: INSURER: LOSS LOCATION:

DATE OF LOSS: TYPE OF LOSS: CLAIM A'ITMBER

Robert & Joy Dunn American Family Insurance Company 12412 N. 66" Avenue Glendale, Arizona 85304 02/02!00 Water Damage 181-208173-700

TO THE PARTIES OF INTEREST:

We, the appraisers and, if necessary, the umpire, without bias or personal interst, have investisated, considered and examined all facts, infomation and evideqce submitted io us and in accordance'with our appointment havz made the following detemnatidn:

+

1. The Replacement Cost Vaiue and Actual Cash Value for the losses sustained as a result of the water damage as of the date of this Award are as follows:

4

A. Dwelling

$79,516.92

$69,974.89

B. In addition to the Dwelling amounts listed above, t3e Apprais21 Panel allocated the
fol!owing Dwelling-related losses: 1. .Mold Rernediation: 2. Foundation Repairs: 3. Rear Patio Repairs: 4. Exterior Wall Repairs: 5. Garage Repairs: 6. Roof Repairs: 554,580.27 $1 12,633.44 $1,073.43 $9,08 1.07 $1564.54 $1 2,563.25

Total Dwelling

5271,012.92 S6,196.86

%238,491.38 $5,453.24

C. Other Structures

This Appraisal Award excludes any emergency services, contents and additional living of expense costs. Additionally, this Appraisal Award is made without consideratio~l any deductibles, any payments or any coverage limitations.

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 2 of 22

The-len,&

of time necessary to complete the required repairs as a result of the.water damage is three and onths. This is for the repair period only and does not take into account any additional - .

4 -/A'&&
Date

&.-/a07
Barry Lorenz Date
b

,
b

4

k -/k-o z
Date

Umpire NOTE: AT LEAST TWO SIGNATURES ARE REQUIRED. ALL EXECUTED COPIES SHALL BE CONSlDERED AS COUNTERPART ORIGINALS.
1025700

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 3 of 22

EXHIBIT 2, MOTION IN LIMINE #2

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 4 of 22

londenseIt !
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1 2
t

February 2,20

UNITED STATES DISTRICT COI DISTRICT OF ARIZONA

I(
SRB

American Family Mutual Insurance

I NO.

1

DEPOSmON OF GARY hiASTFlWAN, witress herein, was 1 2 taken upon oral examination by the paties through their
3 respective attorneys before DEBORAH I. BOYETIE, RPR, a 4 Certified Court Reporter in the State of Ariwna, at t e law h 5 officcs of ALLEN &LEWIS, PLC. 4835 East Cactus Road,Suite
6 340,Swttsdale, Arizona, on the 2nd day of February,2005,

(

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t
6
7
0 vs. \

Plaintiff/Counterdetendant,

)

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Robert D. Dunn and Joy Lynn Dunn,

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) ) )

Defendants/Counterclaimants.

1

7 commencing at 1:05 p.m. of said day. Further, this deposition
8 was taken pursuant to the Arimna Rules of Civil Procedure.

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10 COUNSEL APPEARING: 11 12 L ~ M Allen, Esq. M.
ALLEN &LEWIS. PLC

DEPOSITION O F GARY MASTERI.

Scottedale, Arizona February 2, 2005 1:05 o'clock p.m.

13 14

4835 East Cactus Road Suite 340 Swttsdale, Arizona 85254 Attorneys for PlaintiffICounterdefendant Stephen E. Silverman, Esq.
TREON &SHOOK. P.L.L.C.

I15
Prepared by: DEBORRH J. BOYETTE. RPR Cel ourt NO

2700 North Central Avenue Suite lo00 Phoenix, Ariwna 85004 Attorneys for DefendanUCounterclaimmts

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18 19 20 21 22 23
COPY Drcpkin and Associates Certified Court Reporters 7600 North 16th Street Suite 216 Phoenix, Arizona 85020 Telephone: (602) 997-8066

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25
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Page 2

Pagc
1 GARY MASTERMAN, 2 having been first duly sworn upon his oath by the Notary

VDE.

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1

WlTNESS: GARY M A S T E W N

4 EXAMINATION BY:

PAGE

4

7
EXHIBITS MARKED

9 Exhibits No. 12 No. 2 No. No. 4 No. 18 No. 6 19 20 21 22 23 24 25 Report Notes

Descriotion

Paee

. Vitae

1 15

Cooies of ohotos John 1

82

The California Geotechnical E h g h r s Association, 2004-2005,seminar 125

1

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[ DROPKIN AND ASSOCIATES
Case 2:03-cv-01277-SRB Document 197-3

3 Public to speak the truth and nothing but the truth, was 4 examined and testified as follows: 5 6 EXAMINATION 7 BY MS. ALLEN: 8 Q Please state your full name. 9 A Gary C. Masterman. 10 Q What does the C. stand for? 11 A Clyde. 12 Q What is your current address? 13 A 2303 Clear Canyon Road, k b e c , Le-be-C, 14 California. 15 Q My name is Lynn Allen. I represent American Family 16 in a lawsuit brought by American Family against the Dunns for 17 a declaratory judgment, as well as a counterclaim brought by 18 the Dunns for breach of contract and bad faith. Are you represented by counsel today? l9 20 A That's a good question. THE WITNESS: Am I? 21 MR. SILVERMAN: I ' I ~ here for the Dunns. 22 23 THE WITNESS: SOno. 24 BY MS. ALLEN: Q k t ' s start by talking about your cv. 125

Page 1 - Pagc Filed 09/12/2005 Page 5 of 22

Deposition of GARY MASTERMAN
1 2 3 4 5 6

CondenseIt!TM
Page 113
1 2 3 4 5 6

February 2,2005
Page 115

The only area that I saw that looked like it would collect water is where I put the star. And you notice, looking at the manometer map again, instead of it lifting, it's going down.
BY MS. ALLEN:

exhibit. (Exhibit No. 5 was marked.)
BY MS. ALLEN:

7

Q What landscaping report are you looking for? A Serous (phonetic).

7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q The one provided to you on July 3rd, 2005? 8 9 A That's correct. Q That was not available to you at the time you &d 10 1 1 your report? 12 A That is correct. Q You're assuming the individual who provided that 13 14 information was referring to the planters? 15 A That'swhatIassume. Q And you've assumed that person is qualified to

20 21 22 23 24 25

render those opinions? A Yes. Q And you've never heard of Serous before you received the January '05 fax from Mr. Silvennan? A Correct. Q And you don't know anythng about this individual, correct? A Correct. Q Under your recommendations, you state that you're

Q What I've handed you is what I will represent to you to be Mr. Hall's estimate, dated June 3rd of 2002, Pages 3 through 63. On Page 1, under "room," it says "fractured grouting," and then it has some units and prices. A IdonlthaveaPagel. Q I'm sorry. Page 3. It's Page 1 of the exhibit. A Okay. Q Do you see that in the middle of the page? A Yes. Q Can you tell me if that reference to fractured grouting is what you recommended and mentioned as lense grouting? A Yes, these are the people that told me about lense. Q Under Pressure Grout Company, Inc., it's your understanding that that is the entity that provided the pricing to Mr. Hall? A I suppose that's them. They're the ones that would do that. Q They're the ones that told you that lense grouting is a copyrighted phrase? A Yes.

Page 114

Page 116

(

1 recommending that the existing residence's foundations and 2 interior slab should be stabilized using the lense -- am I 3 pronouncing that right? 4 A Yes. 5 Q -- grouting method. 6 You go on to explain through Page 9 your

7
8 9 110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q Going on, down to the bottom of Page 3 and on to 1 2 Page 4 of the estimate. there is a description for crack 3 repair. Do you see that? 4 AYes. Q And that would be the repair of the cracks in the 5 6 slab itself, c o m t ? recommendations for lense grouting, correct? 7 A I believe so, yes. A Correct. 8 Q You recommended, in May or June of 2002, whenever it 9 was, before it was finally issued, that the water supply line Q Is that a manner of stabilizing the soil under the slab? 10 should be verified to determine tbere were no leaks; is that A In a word, yes, because what it does is it reduces 11 correct? the ability for moisture to migrate through the soil. And by 12 A Yes. reducing the migration of water, it reduces the ability for 13 Q Do you know if that was ever done? the soils to expand. It also would have the added bonus that 14 A I understood that later on, it was done, yes. we could bring the house a little closer to level. 15 Q Do you have an understanding what the result was? 16 A My understanding was that everything was tight. Q Did you review Mr. Hall's estimate that was provided in the appraisal? 17 There were no leaks. I believe it was the water and sewer A No. Just found out I never got invited. 18 lines that were checked. Q Apparently not. Q Under No. 3, you say: The exterior drainage should 19 Are there other terms in the industry used to 20 be modified to maintain positive drainage away from the describe this lense grouting method? 21 residence. A Some call it mud jacking. Some call it fracture 22 Do you see that? grouting. The word "lense" is evidently a copyrighted word, 23 A Yes. and you're not supposed to use it. Q You made that recommendation because at the time you 24 MS. ALLEN: I ' m going to mark this as the next 25 were out there, you observed areas of negative drainage?

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DROPKIN AND ASSOCIATES
Case 2:03-cv-01277-SRB Document 197-3 Filed 09/12/2005

Page 113 - Page 116
Page 6 of 22

John A. Hall
Bob & Joy Dunn

EMERGENCY REPAIRS

Room: E m e r g e n c y S e r v i c e s
DESCRIPTION

----------------------------------------------------------------------------------------1 EA
0

mITS

REMOVE

REPLACE

TOT

Emergency services

Exc lud

......................................................................................... ----------------------------------------------------------------------------------------Area Total: EMERGENCY REPAIRS

-----------------------------------------------------------------------------------------

FOUNDATION

Room: F r a c t u r e G r o u t i n g
DESCRIPTION

---------------------------------------------------------------------------------------1EA
@

UNITS

REMOVE

=PLACE

TO:

Mobilzation-demobilzation costs (Historical costs)
Fracture grouting (Pressure Grout Co., Inc. )

4,500.00=

4,500

3,107 CF

@

---------------------------------------------------------------------------------------Room Total: Fracture Grouting 82,175

Room: C r a c k R e p a i r
DESCRIPTION ENTRY :

---------------------------------------------------------------------------------------30.83 LF 56.21 SF
@ @

UNITS

REXOVE

=PLACE

TC

Concrete floor sawing - 4 " slab Remove Concrete slab on grade 4"

Epoxy dowel slab (24" o.c.1

16 EA

@

2 - 2-0sCase 2:03-cv-01277-SRB Document 197-3 Filed 09/12/2005
Deborah Page 7 of 22Boyette

John A . Hall

Bob

&

Joy Dunn Continued - Crack Repair UNITS REMOVE
5 6 . 2 1 LF
@

06/03/2002

Page:4

DESCRIPTION

..........................................................................................
0.46=

REPLACE

TOTA
25.6

Steel rebar - # 4 ( 1 / 2 " ) Concrete slab on grade finished in place

-

4" -

SOUTH TO NORTH CRACK REPAIR BEGINNING AT GARAGE/UTILITY ROOM WALL RUNNING NORTH TO THE EXTERIOR WALL LIN6 AT BEDROOM #2:

Concrete floor sawing - 4 " slab Remove Concrete slab on grade 4"

13-8 L F 1 3 8 SF

e
@

Epoxy dowel slab

(24"

0.c.)

6 9 EA 1 3 8 LF 1 3 8 SF

8
@
@

15.001 0.46=

1,035. 63 ..

Steel rebar - # 4 ( 1 / 2 " ) Concrete slab on grade - 4 " finished in place .

EAST TO WEST CRACK REPAIR BEGINNING AT ENTRY/LIVING ROOM WALL LINE RUNNING WEST TO LIVING ROOM EXTERIOR WALL LINE:

Concrete floor sawing - 4 " slab Remove Concrete slab on grade 4"

4 6 LF 4 6 SF

@
@

5.40=

248.

Epoxy dowel slab ( 2 4 " o.c.1 Steel rebar - # 4 (1/2") Concrete slab on grade - 4 " finished in place
GENERAL:

2 3 EA

@,

15.00= 0.46..

34 5

69 LF
4 6 SF

@,
@

31

Concrete pump truck (per hour) Hauling Labor - to dumpster

2HR 16 H R

0 0

207.26= 22.26=

41 4 356

---------------------------------------------------------------------------------------Room Total: Crack Repair 4,606

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 8 of 22

John A. Hall
Bob
&

Joy Dunn

Room: C o n c r e t e Slab
DESCRIPTION

...........................................................................................
GARAGE FLOOR:

UNITS

REMOVE

REPLACE

TOTAL

R&R Concrete slab on grade - 4 " - finished in place Concrete slab reinforcement 6 " x 6 " , #10 wire mesh Room Total: Concrete Slab Area ,Tot 1 : FOUNDATION a

465 SF

@

465 SF

@

..........................................................................................

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------88,687.7

1,906.5

BUILDING INTERIOR

Room: E n t r y M i s s i n g Wall: M i s s i n g Wall: M i s s i n g Wall:

1
1 2

-

LxWxH : 9'6" x 10'0" 3'0" x 6'8" 2'6" x 6'0"
57 SF Ceiling 7 SY Flooring 6 0 SF Short Wall UNITS

9'6" x

5'1lW x

10IOn

-

O p e n s Into E O p e n s Into E O p e n s Into E

G o e s to Ploor/Ceilin G o e s to Floor

164 SF Walls 57 SF Floor 95 SF Long Wall
DESCRIPTION

221 SF Walls & Ceiling 18 LF Floor Perimeter

----------------------------------------------------MOLD RELATED ITEMS:

REMOVE

21 LF Ceil. Perimeter REPLACE

TOTi

Remove mold contaminated tile floor Remove mold contaminated baseboard - 2 1/4" Remove mold contaminated drywall ( 2 ' perimeter per OEHA Page 7) Clean mold contaminated interior wall framing cavity (2' perimeter per OEHA Page 7 )

5 7 SF

@

36 SF

6 3

36 SF

@

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 9 of 22

EXHIBIT 3, MOTION IN LIMINE #3

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 10 of 22

P. 0. BOX668. HOLBROOK, ARIZONA 86025

MELVIN R. BOWERS, JR.
County Attorney

Fax 524-4244 (928) 524-4026 Robert F. Edwards Deputy County Attorney

Charles Gregory Arizona Department of lnsurance Fraud Unit 2929 N. 44th Street, Suite 410 Phoenix, AZ 85018 Russ Davis Arizona Department of lnsurance Fraud Unit 2910 N. 44th Street, Suite 210 Phoenix, AZ 85018 RE: Investigation of James 07001e December 1,2003 Dear Gentlemen: Having reviewed the investigative materials describing the most compelling cases against Mr. 07001e, I respectfully decline to file criminal charges. I have conferred with Ms. Roberts, the other charging attorney in this ofice, who independently reviewed certain of the investigative materials. We feel that the evidence against Mr. 07001e is insfl~cient sustain convictions at trial. to Specific concerns include, but are not limited to the following: 1) Few who live in Navajo County were not affected adversely in one way or another by the Rodeo-Chediski Fire. As you know, a suffocating blanket of smoke reached corr~munities from the fire itself. A jury composed of residents of this county far is one which is likely to share it's sympathies with those whose properties were damaged, and not with insurance companies perceived or portrayed as reacting slowly and perhaps stingily to them. Irrespective of the fire, some jurors are not likely to be sympathetic to insurance companies. 2) The fact that there is no standardized method for assessing smoke damage caused by wildfires greatly diminishes our capacity to prove that 07001es damage estimates were objectively false.
3) As I understand it, no insurance company is automatically stuck with O'Toole's damage estimates. When the parties cannot reach consensus as to the magnitude of
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Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 11 of 22

damage, the matter may be submitted to an umpire consisting of former superior court judges. The umpire hears evidence from both sides and renders judgment. Presumably, if the umpire doesn't find evidence in support of O'Toole's estimates, it doesn't award the amounts sought by him on behalf of insureds. The existence of the umpire attenuates the strength of any criminal case against O'Toole.

4) As an intuitive matter, insureds and insurance companies may have a difference of opinion as to the magnitude of damages suffered. Insureds may view damages more expansively than insurance companies. Interestingly, the brochure entitled 'What To Do After A Fire" published by the Arizona Department of Health Services cautions insureds against settling insurance claims too quickly. It advises insureds that the extent of damage due to smoke may not be readily apparent. The attorney representing 07001e has informed us of various matters in which umpires have rendered judgment in accordance with 07001e's estimates, awarding insureds much greater sums than those offered by insurance companies. To the extent that this office chooses to prosecute somebody for submitting damage estimates found by a tribunal to be inaccurate, whom do we pursue: an insurance company for submitting a low estimate, or 07001e for submitting a high one? In the absence of falsified evidence or something akin to it which screams "crime!", I don't think we have the basis to pursue either. 5) 1 reviewed the TNT Hardware case with particular skepticism that gravel could be damaged by smoke or fire. For what it's worth, the Department of Health Service's publication, "Public Health Assessment, Rodeo-Chediski Fire," speaks on page 10 of the removal of ash containing potentially hazardous chemicals. It appears that 07001e may have a plausible argument for the removal of the gravel if it contained suspect ash. If 07001e's claim as to the gravel is unsupported, the umpire will presumably shoot it down.
You have obviously invested a great deal of time and energy in these cases. Thank you for your investigative efforts. We decline criminal prosecution not because of a shortfall on your part, but out of a belief that criminal charges are not warranted on the basis of the available evidence,.
. ..

The materials which you provided to us will be available for retrieval at your convenience.

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Sincerely, Robert F. Edwards Deputy County Attorney Charging Division

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 12 of 22

EXHIBIT 4, MOTION IN LIMINE #3

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 13 of 22

3 THE. VIDEOGRAPHER: This is the
UNITED S T A T E S DISTRICT COURT DISTRICT OF ARIZONA C A S E NO. CV2003-1277 P H X S R B 4 AMERICAN FAMILY M U T U A L INSURANCE COMPANY, 5
6

2 3 4

videotaped deposition o f David Polson taken by the Plaintiff's Attorney in the matter o f American Family versus Dunn, Arizona Case Number CV2003-1277 PHX SRB. Today's date is December 15th, 2004. My name is Kevin Hamlll, the Reporter is Amanda Scott, both from Verbatim c o u r t Reporters. We are going o n the record a t 4:51. Counsel will now state their

Plaintiff/Counterclaim Defendant. vs. ROBERT 0. DuNN and J o y LYNN DvNN, Defendants/Counterclairn Plaintiffs. / VIDEOTAPED DEPOSITION OF: DATE: TIME:

1519:55

5
6

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7 8 9 10 11 12 -13

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D A V I D POLSON December 15, 2 0 0 4 4:00 p.m. Verbatim Court Reporters. Inc. 527 East University Avenue Gainesville, FL 32601

appearance for the record, please. MR. SILVERMAN: Stephen Silverman o f Treon & Shook for the Dunns. MS. ALLEN: Lynn Allen for Defendant. WHEREUPON : DAVID POLSON, was called as a witness and after having been duly sworn was examined and testlfied as follows: DIRECT EXAMINATION BY MR. SILVERMAN:
Q.

PLACE: 14 15 REPORTED BY:
16

AMANDA E. SCOTT Verbatim Court Reporters, Inc.

17 A P P E A R A N C E S : 18 19 20
21

ALLEN & LEWIS, PLC, (4835 East C a c t u s Road, Suite 340, Scottsdale. AZ 052541. by: MS. LYNN ALLEN, appeared on b e h a l f o f t h e Plalntiff/Counterclaim Defendant; TREON & SHOOK, PLLC, 12700 North C e n t r a l Avenue, Suite 1000 Phoenix. AZ 850041, by: MR. STEPHEN E. SILVERMIUI. appeared on b e h a l f o f the Defendants/Counterclaim Plaintiffs.

22 23

Can you state your name, please? David Polson. And where do you reside?
I reside a t 580 Preserve Boulevard,

A
Q.

I

? .
I.

1 .

1

1
?f

23 24
16:W49

A

25

Norwood Young America, Minnesota, 55397. Q. Where are you currently employed?
4

2
1

WITNESS INDEX 2
3
A

WITNESS DAVID POLSON .By Mr. Silverman By Ms. Lynn EXHIBITS

EXAMINATION 3 93

1 2 3

A.

.

I ' m currently employed by KatCo.

Enterprises, Incorporated.
Q.

What is KatCo.? I t ' s an independent adjusting firm. How long have you been employed by

I1

,

5

A .
Q.

6
7
8

9
10 1 12 13

NUMBER MARKED FOR I D Defendants' Exhibit No. I* 21 (Appraisal Awards) Defendants' Exhibit No. 2* 22 (Letter) Defendants' Exhibit No. 3 26 (Claim File Documents) Defendants' Exhibit No. 4 34 (Geotechnical Evaluation) Defendants' Exhibit No. 5 48 (Authorization for Geotechnical Testing) Defendants' Exhibit No. 6 51 (Telephone Information Log) Defendants' Exhibit No. 7 61 (Letter)

KatCo.?
A
Q.

Since September. Before t h a t where were you employed? I was employed with American Family. And how long were you employed with

A
Q.

Amerlcan Family?

A .
Q.

From probably April the 7th, 2 0 0 2 to

September the 21st, 2004. What did you do before you were

employed b y American Family?

A.
Q.

I worked for NCA Group, Incorporated,

an independent adjusting firm. How long dld you work for them? Since April of about '93. And was that

A
Q.

-- was your employment

with NCA Group, was there an employment, was there

a gap between NCA Group, Inc. and American Family
in your employment?
23 *Exhibits n o t retained b y Court Reporter. 24 25 Case 2:03-cv-01277-SRB Document 197-3 1of 33 sheets Page 1

A.
Q.

No. Okay. And prior to 1993, what did you Page 14 of 22 01/06/2005 03:49:39

Filed 09/12/2005

89

1 2
3
19:07:45

BY MR. SILVERMAN:
Q.

1 BY MR. SILVERMAN: 2
3
19:lO:M

Are mold claims any different than MS. ALLEN: Form.

Q.

Okay. And then the last question I

I

other loss claims? BY THE WITNESS:
A.

want t o ask you is a follow-up on something you

4 5 6
7 8 9

Well, a claim is a claim to me. I

4 told m e a t the very beginning of the deposition, 5 and so let m e ask the question this way. You 6 independently recalled that James F. O'Toole was
7 8 9
involved i n this claim; correct?
A. Q.
YOU

don't see a difference, frankly.
BY MR. SILVERMAN:
Q.

Before you joined American Family in
1:0 7 8 : 11

Yeah. How many claims with Mr. O'Toole have

1o.w:~

10 2002, you had not had any training in mold claims; 11 correct?

10 11

handled over the years? A. Oh, Idon't know. Probably four or

12 MS. ALLEN: Form. 13 BY THE WITNESS: 14 A. Ihad had no formal training, that's 19:08.11 I 5 correct. 16 BY MR. SILVERMAN: 17 Q. What was the extent o f your informal 18 training?
19 19:0~-20 20
A.

12 five perhaps. 13 Q. How many o f those did you handle when 14 employed a t American Family? 19:10:27 15 A. Oh, probably, Ithink Ihandled one
16
prior to my employment with American Family with

17 Mr. O'Toole. 18 Q. What was Mr. O'To01e's reputation a t
19:10.46

about the

-- about mold.

Having reviewed extensive web sites
When did you do that?

u

21 22 23 24 25 1 2
3

Q.
A.

19 American Famlly when you joined American Family In 20 2002? 21 MS. ALLEN: Form, foundation.

Oh, probably 2001, 2000.
What do you recall reading about mold MS. ALLEN: Form.
90

Q.

from your informal research on t h e internet?

22 BY M E WITNESS: 23 A. Idon't recall. 24 BY MR. SILVERMAN: 1 9 . ~ 0 :25 ~ Q. Do you recall Mr. O'Toole ever being
92

BY THE WITNESS: A.

As to what? It's a very vast subject.
As t o potential health hazards. MS. ALLEN: Form.
t :i w 9 i:

1 the subject o f discussion a t American Family? 2 MS. ALLEN: Form.
3
B Y M E WITNESS:

BY MR. SILVERMAN:

lS:OB.51

4 5
6

Q.

BY THE WITNESS:

7 A. My understanding is that there are 8 forms of mold, specifically Ican't rememberthe 9 Latin name of it now, it's black mold. 19:m:m 10 BY MR. SILVERMAN: I1 Q. (Inaudible) -- as t o remediation 12 concerns.

--

19:~-

4 A Not specifically, no, Idon't. 5 BY M R SILVERMAN: 6 Q. Do you recall public adjusters in 7 general ever belng a subject of discussion? 8 MS. ALLEN: Form. 9 BY THE WITNESS: I0 A. Not specifically, no. 11 THE VIDEOGRAPHER: We have five 12 13
minutes t o tape change. THE WlTNESS: We have five minutes to

13 14
1ose:r

A.
Q.

Well, I rely on experts to tell me
When you handled mold claims for State

what the remediation is to be.
19:11:16

Case 23 of 33 sheets

15 16 17 18 19 ."-mil 20 21 22 23 24 19:D3:46 25

14 tape change, by the way. 15 MR. SILVERMAN: Okay. Thank you.
16 17
We'll be done before then, I promise. BY MR. SILVERMAN:
Q.

Farm -- did you ever handle mold claims for State Farm or Farmers?
A.

I t was not an issue back in those
When do you recall it becoming an MS. ALLEN: Form.

days.

Q.
issue?

18 19 19.11.25 20 21

How many

-- what was your -- how would

you describe your experlence adjusting claims with Mr. O'Toole? A. Mr. O'Toole was a consummate

BY THE WITNESS:
A. Iwas in California at the time. I t

was probably about '99 or 2000.

2:03-cv-01277-SRB

Document Page 89 to 92 of 98 09/12/2005 197-3 Filed

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22 23 24
19.11-M

professional and is very knowledgeable in the insurance business. Q. Do you have any criticisms o f the
manner in which Mr. O'Toole interacted with you on

25

Page 15 of 2201/06/200503:49:39

EXHIBIT 5, MOTION IN LIMINE #4

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 16 of 22

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

AMERICAN FAMILY MUTUAL INSURANCE
COMPANY,

)

1

) Case No. : ~laintiff/Counterclaim Defendant, )CV2003-1277 PHX SRB 1 VS . 1 1 ROBERT D. DUNN and JOY LYNN DUNN, ) 1 ) Defendants/Counterclaim Plaintiffs.)
)

Phoenix, Arizona August 27, 2004 10:OO a.m.

DEPOSITION OF STEVE GREAVES

PREPARED BY:
Rosina Seymour, RPR Certified Court Reporter Certificate No. 5 0 2 1 2

PREPARED FOR: Stephen E. Silverman, Esq.
( Condensed

Certified Court Reporters 2702 North 3* Street, Suite 3050 Phoenix, Arizona 85004 (602) 230-1030 Fax (602) 230-1080

Copy/1ndex)

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 17 of 22

Deposition of Stel Greaves - 08/27/04

33 1 I logs, you did not find any other logs of telephone 2 conversations you made in connection with adjusting the 3 Dunn file; correct? 4 MS. ALLEN: I'm going to object to the form 5 of that question. 6 THE WITNESS: It's been four years. I 7 don't remember evg I've wrote in this file. 8 Q. BY MR. SILVERMAN: I'm just askmg, at least in 9 connection with what has been produced to me as being the 10 claim file, the only information entries that you were 11 able to find during the break were the two separate 12 documents that you read into the record a moment ago; 13 correct? 14 MS. ALLEN: I'm going to object to the form 15 of that question. You only told hun to find a couple. So 16 the question is really unfair. 17 But go ahead and answer it, Steve. MR SILVERMAN: That's fair, and 1'11 18 19 withdraw the question. 20 MS. ALLEN: If you want him to go through 21 the whole file, page-by-page, that's one thing, but you 22 told hun to find a couple, and he did. MR. SILVERMAN: You're right. 23 24 MS. ALLEN: And, for the record, the other 25 one he -- the other one he found, I hnk it's the Bates 34 1 number of the one we sent you a better copy of, and it was 2 22 -- 2261. 3 Q. BY MR. SILVERMAN: Can I ask you a question 4 about the document that's Bates No. 2261? Can you look at 5 the bottom of that document and -- in the center and tell 6 me what words you see? 7 A. Right there? 8 Q. Yeah. 9 A. Distribution original, claim fie,yellow, 10 adjuster. 11 Q. Was it your experience at American Family that 12 you kept a separate file while you were adjusting a claim? 13 A. On larger fies, yes. 14 Q. What would go into your separate file? 15 A. Your latest information, receipts, bills, 16 estimates, phone notes. 17 Q. What would you do with that file? 18 A. You would match it, as best you could, to the 19 I guess you'd call it the master fie. 20 Q. Did you keep a separate file in the Dunn case? 21 A. Idon't recall. 22 Q. If you did, what would you have done with it 23 when you left American Family? 24 MS. ALLEN: Form. 25 THE WITNESS: I don't know.

35 1 Q. BY MR SILVERMAN: What was your practice with 2 respect to keeping -- can I call it an adjuster file? 3 MS. ALLEN: Form. 4 THE WITNESS: Yes. 5 Q. BY MR SILVERMAN: What would you do with your 6 adjuster file at the conclusion of the claim under 7 ordinary circumstances? 8 k Generally you would match the estimates and the 9 bills and receipts and documents to the master fie. 10 Q. And once you had done that and the file had -11 the file was closed, what would you do with the adjuster 12 file at that point? 13 MS. ALLEN: Form. THE WITNESS: If I knew there were 14 15 duplicates Iwould get rid of them. 16 Q. BY MR. SILVERMAN: Would you do that pursuant to 17 any type of policy or direction of American Family? 18 MS. ALLEN: Form. 19 THE WITNESS: No. 20 Q. BY MR SILVERMAN: Were you ever given any 21 training with respect to the manner in which the adjuster 22 file was to be thrown away or closed or handled? 23 MS. ALLEN: F o m THE WITNESS: I don't know of a procedure 24 25 on that.
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36 1 Q. BY MR S I L V E W Did you ever ask any of your 2 supervisors about what you should do with your own 3 adjuster file? 4 MS. ALLEN: Form. THE WITNESS: On th~s file? 5 6 Q. BY MR SILVERMAN: Any file? 7 A. I don't see anywhere in the file where they're 8 asking for something that they wanted and never got. They 9 got all the estimates. They got all the reports. They 10 got all my evaluations. They got all the photos. I don't 11 see where they're asking for anything more from me. 12 Q. Would it be possible that notes or notes that 13 might be written on a Post-it, for example, could have 14 been in your adjuster file and not made it into the claim 15 file? 16 MS. ALLEN: F o m THE WITNESS: I'm not going to speculate. 17 18 Q. BY MR. SILVERMAN: Do you think it's possible 19 that could have happened? 20 MS. ALLEN: Form. 21 THE WITNESS: I'm not going to speculate. 22 Q. BY MR SILVERMAN: I'd like an answer to that 23 question. 24 MS. ALLEN: You got an answer to that 25 question.
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Deposition of Steve Greaves - 08/27/04

37 1 MR. SILVERMAN: I asked whether he thought 2 it was possible. 3 MS. ALLEN: You got an answer to that 4 question. 5 Fom THE WITNESS: I don't think Post-its were 6 7 used at that time. No. I'll say no. 8 Q. BY MR SILVERMAN: Did you follow any kind of a 9 checklist in connection with throwing away your adjuster 10 file? 11 A. No. 12 MS. ALLEN: F o m 13 Q. BY MR. SILVERMAN: If there was mformation you 14 did not want to put into the claim file, would you keep it 15 in your adjuster file? 16 MS. ALLEN: F o m 17 THE WITNESS: No. 18 MS. ALLEN: And foundation. 19 Q. BY MR. S I L V E W . When you left American Family 20 in April of 2002, or thereabouts, do you recall throwing 21 any of your adjuster files away? 22 MS. ALLEN: Form 23 THE WITNESS: No. 24 Q. BY MR. SILVERMAN: If you kept any adjuster 25 files they would have been left in your office? 38 MS. ALLEN: F o m THE WITNESS: I had a home office. Q. BY MR. SILVERMAN: You worked out of your house? A. Correct. Q. Have you thrown away any of your adjuster files from American Family -MS. ALLEN: F o m 8 Q. BY MR. SILVERMAN: -- at any point in time after 9 you left? 10 A. We moved, so a lot of things got thrown out. 11 That may have been part of it. 12 Q. When did you move? 13 A. July of 2003. 14 Q. In connection with moving do you recall throwing 15 away documents that were generated in connection with 16 adjusting American Family claims? 17 A. I would say a lot of paper got thrown out. I 18 don't know if there were documents or not. 19 Q. Do you recall seeing any paper that wasfiom 20 American Farmly? 21 A. No. 22 Q. Do you know if -- do you have any firsthand 23 experience or knowledge about whether other adjusters keep 24 a separate file? 25 A. No. 1 2 3 4 5 6 7

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39 1 Q. While you were at American Family did you ever 2 feel that you had too much work? 3 A. Everybody does. 4 Q. On average about how many claims would you guess 5 you were adjusting at any point in time? 6 MS. ALLEN: Form. 7 THE WITNESS: I don't recall. 8 Q. BY MR. SILVERMAN: Can you give me an estimate? 9 A. No. 10 Q. Did you ever talk to anyone, any of your 11 superiors or any of your co-workers, about the fact that 12 you felt you had too much work? 13 MS. ALLEN: F o m THE WITNESS: Everybody complains about too 14 15 much work. 16 Q. BY MR. SILVERMAN: Did you ever talk to any 17 supervisor about that? 18 A. No. 19 Q. Do you know what a reserve is? 20 A. Yes. 21 Q. What is a reserve? 22 A. It's - the company, insurance company with 23 will hold a certain amount of money in reserve to cover 24 their claims, over and above their operating expenses, and 25 I'm not an accountant, but basically it's to reserve a 40 1 certain amount for each loss. They're required to by the 2 State. 3 Q. Did you set or recommend reserves when you were 4 adjusting claims at American Family? 5 A. Yes. 6 Q. How would you do that? 7 MS. ALLEN: F o m THE WITNESS: I thmk you ask a supervisor 8 9 to do it. 10 Q. BY MR. SILVERMAN: In this case it would have 11 either been Eric hxon or Oscar Simental who set the 12 reserves? 13 A. Oneofthem. 14 Q. And did you ever set a reserve? 15 MS. ALLEN: F o m 16 THE WITNESS: I recommended reserves 17 because I was aware of the estimates. 18 Q. BY MR. SILVERUAN: And how would you go about 19 recommending a reserve? 20 MS. ALLEN: Form 21 THE WITNESS: I would advise them on 22 building and how much on contents and how much on 23 additional living expense. 24 Q. BY MR. SILVERMAN: Was any portion of your 25 recommendation informed by your guess as to whether a

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EXHIBIT 6, MOTION IN LIMINE #4

Case 2:03-cv-01277-SRB

Document 197-3

Filed 09/12/2005

Page 20 of 22

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff/Counterclaim Defendant, vs . ROBERT D. DUNN and JOY LYNN DUNN, Defendants/Counterclaim Plaintiffs.

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CV2003-1277 PHX SRB

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DEPOSITION OF OSCAR SIMENTAL

Phoenix, Arizona August 30, 2004 10:09 o'clock a.m.

~ R-Court I S eporting W E R ~ O
MARY I:. MANNING, R.P.R. Certified Court Reporter No. 50444
Condensed Copy Prepared For: Stephen C. Silverman, Esq.
Case 2:03-cv-01277-SRB Document 197-3 Filed 09/12/2005 Page 21 of 22
Certified Court Reporters 2702 North 3rdStreet, Suite 3050 Phoenix, Arizona 85004 (602) 230-1030 Fax (602) 230-1080

Deposition of Oscar Sirnental- 08130104

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OSCAR SIMENTAL - 08/30/04 THE WITNESS: I mean, that would be completely up to the adjusters themselves, if they felt it was necessary to write it in there. I mean, do you write every little thing in the file? I don't know. It's up to that adjuster thinking this is something that should be in the file. Maybe they don't think it's something. Maybe it's something that theylre working through. Q. BY MR SILVERMAN: Do field adjusters keep their own file? A. No. There's only one fde. Q. What are field adjusters taught with respect to maintaining t er notes for the claim file? hi A. Documentation-wise? What do they document? Q. Yes. What do they document and how do they make sure that documentation gets into the claim file? A, They would document whatever they felt was necessary to be documented. If it's a phone d l , they talk to the insured about a certain aspect of the claim, for example, and then that piece of paper would then be placed in the fde. Q. Is there supposed to be only one claim file? A. Yes, there's only one cIaim file. Q. Would you expect to see at least some telephone notes from a field representative in a claim that takes ten months to make the initial settlement offer on?

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51 OSCAR SIMENTAL - 08/30/04 the parties who were present, would you expect all that information to be documented in the claim file? MS. ALLEN: Form and foundation. THEWITNESS: If the file had already been documented by setting up an appointment, probably not. Q. BY MR. SILVERMAN: If it hadn't? MS. ALLEN: Same objection. THE WITNESS: It just depends, again, what the adjuster felt they needed to indicate in the file. Q. BY MR SILVERMAN: If Mr. Greaves did not document any telephone calls or any visits to the insured from March of 2000 forward, would that lack of documentationbe consistent with your expectations or file documentation as a former claims manager? MS. ALLEN: Form and foundation. THE WITNESS: During that period of time, how many t i i was Greaves at the residence? Maybe it was one time that he was at the residence initialy, and now the other work is being done with engineers that are going out there, then I'd say, no. If he was out there 100 times) maybe he should have documented that he may have had to go many times to the home. It depends. Q. BY MR SILVERMAN: If you have telephone calls logged in the file, would you also expect at least on some of those that Steve Greaves would have had telephone calls

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52 50 OSCAR SIMENTAL - 08/30/04 OSCAR SIMENTAL - 08130104 MS. ALLEN: Form. Foundation. 1 loggedinthe file? 2 THE WITNESS: If they're talking on the phone, MS. ALLEN: Form and foundation. then it's possible that there were some notes while they THE WITNESS: I can answer for myself. It's very 3 were talking. There may have been meetings with the 4 hard to answer for Steve, because Steve is Steve and I'm insureds during this entire time, so it wouldn't be any 5 myself. If I make a phone call and I talk to someone, I phone notes on there. 6 probably would have written it down. That's the best I can Q. BY MR. SILVERMAN: If you would have called Eric 7 answer it. I would have written it down. As far as Steve, Dixon, would you expect to find both the telephone 8 that's difficult to answer. It's just difficult to answer. information log entry fiom you and fiom Eric Lhxon in the 9 I don't know. claim file? 10 Q. BY MR S I L V E W Why do you keep a claim file? MS. ALLEN: Form and foundation. 11 A. Why do you keep a claim fde? Well, if we had no THE WITNESS: That's almost impossibleto answer, 12 claim file, I'd have nothing to read right now. because I don't know what I was calling Eric Dixon for. 13 Q. What's the purpose of having something to read, Q. BY MR. SILVERMAN: Would you expect a field 14 in your opinion? representativeto note in the claim file dates that he 15 MS. ALLEN: Form and foundation. visited an insured's residence? 16 THE WITNESS: You're just keeping documents as MS. ALLEN: Form. Foundation. 17 you go through the file. THE WITNESS: Not necessarily. It would be up to 18 Q. BY MR SILVERMAN: As a former manager and as a the adjuster if they were out. They could have been out 19 former claims handler, why is it important to keep a record there just to, you know, "I forgot my camera here." I 20 of what happened in the file? don't hnk they would note that. 21 MS. ALLEN: Form and foundation. Q. BY MR. SILVERMAN: If they were conducting an 22 THE WITNESS: You need to show what you paid for. Inspection and they had an enweer and a contractor with 23 If there was just a bunch of payments out there with them, would you expect the fact that the insureds' 24 nothing to show, how can you ever see what it is that residence was visited and the date that it was visited and 25 you're paying for?

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