Taft et al v. American Family Mutual Insurance Company et al, No. 2:2011cv02599 - Document 64 (D. Ariz. 2013)
Court Description: AMENDED MEMORANDUM OF DECISION AND ORDER - IT IS HEREBY ORDERED granting in part and denying in part Defendant's motion to strike undisclosed exhibits and legal theories. (Doc. 59 .) IT IS FURTHER ORDERED granting in part and denying in part Defendant's motion for partial summary judgment. (Doc. 47 .) IT IS FURTHER ORDERED setting this case for a Final Pretrial Conference on November 18, 2013 at 2:30 p.m. This matter appearing ready for trial, a Final Pretrial Conference shall b e held in Courtroom 605, Sandra Day O'Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. IT IS FURTHER ORDERED that, if this case shall be tried to a jury, the attorneys who will be responsible for the trial of the lawsuit shall prepare and sign a Proposed Pretrial Order and submit it to the Court on Friday, October 25, 2013. (See document for full details). Signed by Senior Judge Stephen M McNamee on 10/1/13. (LAD)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Taft, et al., 10 Plaintiffs, 11 v. 12 American Family Mut. Ins. Co., Defendant. 13 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-11-2599-PHX-SMM AMENDED MEMORANDUM OF DECISION AND ORDER 15 Pending before the Court is Defendant s Motion to Strike Undisclosed Exhibits and 16 Legal Theories (Doc. 59) and Defendant s Motion for Partial Summary Judgment (Doc. 47). 17 Both matters are now fully briefed. (Docs. 48, 52-53, 56-58, 60-62.) After reviewing the 18 briefs and having determined that oral argument is unnecessary,1 the Court will grant in part 19 and deny in part Defendant s Motion to Strike Undisclosed Exhibits and Legal Theories, and 20 will grant in part and deny in part Defendant s Motion for Partial Summary Judgment. RELEVANT FACTUAL BACKGROUND 21 22 On July 27, 2010 Plaintiff Benjamin Taft ( Ben Taft or Taft ) was operating a 23 motor vehicle headed West on Bell Road in Surprise, Arizona when a motor vehicle traveling 24 South on Grand Avenue ran a red light at an excessive speed and, from the wrong lane, 25 turned left in front of Taft s vehicle causing a collision. (Doc. 53-1 at 2-9.) The driver of 26 27 28 1 The parties request for oral argument is denied because the parties have had an adequate opportunity to present their written arguments, and oral argument will not aid the Court s decision. See Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 the other vehicle, Jacqueline Cox, was cited in the police reports as being at fault. (Id.) Taft 2 was taken to the hospital for emergency treatment and evaluation, including x-rays. (Doc. 3 53-3 at 2-12.) Immediately after the collision, Taft indicated that he felt pain in his neck, 4 shoulders, back, hips, and left lower extremities. (Doc. 53-2 at 2-3.) At the time of the 5 collision Taft further indicated that he felt a popping sensation in his left knee and believed 6 he had broken his left ankle. (Id.) 7 continued medical treatment for his injuries with Dr. Robert Fauer, his family physician. 8 (Doc. 53-4 at 2-20.) Following Taft s discharge from the hospital, he 9 Two days after the accident, Dr. Fauer noted extensive bruising and tenderness and 10 diagnosed soft tissue traumas including neck, thorax, lumbar spine, and upper extremities and 11 knee bruising. (Doc. 53-4 at 2-3.) Dr. Fauer prescribed medication and physical therapy. 12 (Id. at 2.) Taft complied with his doctor s orders and followed through with physical therapy 13 treatment. (Doc. 53-5 at 2-57.) Taft continued in physical therapy from August 5, 2010 until 14 discharge from treatment on January 17, 2011. (Id.) Taft continued his doctor s visits with 15 Dr. Fauer mainly for his left knee, but also for problems with his left ankle. (Doc. 53-4 at 16 2-20.) Dr. Fauer also referred Taft to an orthopedic specialist, Dr. Theodore Hofstedt, for 17 an evaluation. (Doc. 53-7 at 2-9.) Dr. Fauer, Dr. Hofstedt, and MRI records support that 18 Taft suffered from a left knee patella injury, specifically grade 2 chondromalacia, and a 19 possible anterior cruciate ligament sprain. (Docs 53-4, 53-6 and 53-7.) 20 At the time of the accident, Taft was a 30-year-old executive chef employed by Fox 21 Restaurant Concepts at North Restaurant in Scottsdale earning $44,000 a year plus bonuses 22 and benefits. (Doc. 53-10 at 2-7.) On July 28, 2010, one day after the collision, Taft s 23 position at North was terminated because the restaurant closed. (Doc. 53-2 at 2.) However, 24 in an affidavit, Taft states that he subsequently received a call from his District Manager at 25 Fox indicating that Fox had purchased an airline ticket for him to fly to California to help a 26 restaurant open in Newport Beach. (Id.) However, due to his injuries, Taft stated that he was 27 not able to pursue the job opening. (Id.) District Manager John Steen stated that [Taft] was 28 told that had [Taft] been physically able to accept it at that time, employment would have -2- 1 been found at a Fox restaurant, pending permanent placement. Said employment would have 2 been at the same pay and benefit scale that [Taft] had been receiving at North restaurant. 3 (Doc. 56-1 at 2.) 4 Taft s medical file following the accident shows notes from both Dr. Fauer and Dr. 5 Hofstedt taking him off work. (See, e.g., Dr. Fauer s notes, Doc. 53-4 at 2 ( Patient to be off 6 work for the next two weeks . . . ); Doc. 53-4 at 4 (noting that Taft would continue to be off 7 work for four weeks. ); Dr. Hofstedt s notes, Doc. 53-7 at 6 (stating that Taft is in a no work 8 status for two weeks)). In November 2010, Taft returned to work for Fox restaurants. (Doc. 9 53-10.) Taft indicated that the pain in his left knee was too much and had to leave work after 10 three days and go back for medical treatment; he was then terminated by Fox. (Doc. 53-2; 11 Doc. 53-10.) In January 2011, Taft went to work for Fireside Grill as a chef, but allowed him 12 to leave when in pain. At Fireside, Taft disclosed that he made $1,200 a month less than he 13 made with Fox. (Doc. 53-16 at 8, Doc. 57-1 at 35, Doc. 60-3 at 3 citing Doc. 60-1 at 8, Doc. 14 60-3 at 8-10, Doc. 60-12 at 7.) Taft now works for Amuse Bouche. (Id.) 15 Ultimately, Plaintiffs settled with Jacqueline Cox for her policy limits, $50,000. (Doc. 16 48-1 at 10.) In August 2011, claiming injury loss above $50,000, Plaintiffs filed a claim with 17 their insurer, Defendant American Family Mutual Insurance Company for underinsured 18 motorist ( UIM ) benefits. (Doc. 53-16.) Defendant investigated Plaintiffs claims which 19 included a medical review by Registered Nurse Karen Van Belle. (Doc. 53-14.) Nurse Van 20 Belle testified that her responsibilities were to respond to the adjuster s questions and provide 21 information that would assist him in settling the claim. (Id.) Nurse Van Belle opined that 22 Taft had patellar tendonitis and chondromalacia. (Id. at 6-7.) She further opined that she 23 understood Taft to be symptom free at the time of her evaluation. (Id. at 3, 8.) She stated 24 that she was not aware of and did not consider Dr. Fauer s opinion that Taft was not 25 symptom free and would have expenses for future medical care. (Id. at 3.) On November 26 22, 2011, in a one paragraph letter, Defendant informed Plaintiffs that the $50,000 policy 27 limits paid by Cox s insurance company adequately compensated Taft for his injuries. (Doc. 28 48-1 at 10.) This litigation ensued. -3- 1 STANDARD OF REVIEW 2 I. Motion to Strike 3 Federal Rule of Civil Procedure 37(c)(1), provides that [i]f a party fails to provide 4 information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to 5 use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless 6 the failure is substantially justified or harmless. Rule 37(c)(1) also provides additional 7 sanctions that a court may impose on a party in addition to or instead of striking the 8 witness. Fed. R. Civ. P 37(c)(1)(A)-(C). The 1993 Advisory Committee Notes to Rule 37 9 state that sanctions under Rule 37(c)(1) are automatic, and provide strong inducement for 10 disclosure of material. Fed.R.Civ.P. 37 advisory committee s note (1993). 11 The Ninth Circuit Court of Appeals has observed that we give particularly wide 12 latitude to the district court s discretion to issue sanctions under Rule 37(c)(1). Yeti by 13 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). As the rule 14 provides, however, sanctions will not be imposed if the failure to disclose was substantially 15 justified or harmless. Fed. R. Civ. P 37(c)(1). Implicit in Rule 37(c)(1) is that the burden is 16 on the party facing sanctions to prove harmlessness. Yeti by Molly, Ltd., 259 F.3d at 1106. 17 For purposes of Rule 37(c)(1), a party s failure to disclose is substantially justified 18 where the non-moving party has a reasonable basis in law and fact, and where there exists 19 a genuine dispute concerning compliance. See Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. 20 Kan. 1995)). Failure to comply with the mandate of the Rule is harmless when there is no 21 prejudice to the party entitled to the disclosure. Id. 22 II. Partial Summary Judgment 23 Upon motion at any time, a party defending against a claim may move for partial 24 summary judgment, that is, summary judgment in the party s favor as to . . . any part 25 thereof. Fed. R. Civ. P. 56(b). A court must grant summary judgment if the pleadings and 26 supporting documents, viewed in the light most favorable to the nonmoving party, show that 27 there is no genuine issue as to any material fact and that the moving party is entitled to 28 judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. -4- 1 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 2 1994). Substantive law determines which facts are material. See Anderson v. Liberty 3 Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. Only disputes over 4 facts that might affect the outcome of the suit under the governing law will properly preclude 5 the entry of summary judgment. Anderson, 477 U.S. at 248. The dispute must also be 6 genuine, that is, the evidence must be such that a reasonable jury could return a verdict for 7 the nonmoving party. Id.; see Jesinger, 24 F.3d at 1130. 8 A principal purpose of summary judgment is to isolate and dispose of factually 9 unsupported claims. Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 10 against a party who fails to make a showing sufficient to establish the existence of an 11 element essential to that party's case, and on which that party will bear the burden of proof 12 at trial. Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 13 1994). The moving party need not disprove matters on which the opponent has the burden 14 of proof at trial. See Celotex, 477 U.S. at 317. The party opposing summary judgment may 15 not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth 16 specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); see 17 Matsushita Elec. Indus. Co. v.Zenith Radio, 475 U.S. 574, 585-88 (1986); Brinson v. Linda 18 Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). 19 III. Breach of Contract 20 A federal court sitting in diversity applies state substantive law. See Hambleton Bros. 21 Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1227 (9th Cir. 2005). Thus, this 22 Court applies Arizona law to the interpretation of the insurance contract at issue. See 23 Benevides v. Arizona Prop. & Cas. Ins. Guar. Fund, 184 Ariz. 610, 613, 911 P.2d 616, 619 24 (App. 1995). In an action for breach of contract, the plaintiff has the burden of proving the 25 existence of a contract, breach of the contract, and resulting damages. Chartone, Inc. v. 26 Bernini, 207 Ariz. 162, 170, 83 P.3d 1103, 1112 (App. 2004) (citing Thunderbird 27 Metallurgical, Inc. v. Ariz. Testing Lab., 5 Ariz.App. 48, 423 P.2d 124 (1976)). 28 Provisions of insurance contracts should be construed according to their plain and -5- 1 ordinary meaning. National Bank v. St. Paul Fire & Marine Ins. Co., 193 Ariz. 581, 584, 975 2 P.2d 711, 714 (App. 1999). The interpretation of an insurance contract is a question of law, 3 as is the question of whether the contract s terms are ambiguous. Id. In Arizona, courts must 4 construe a clause which is subject to differing interpretations by examining the language of 5 the clause, public policy considerations, and the purpose of the transaction as a whole. State 6 Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 257, 782 P.2d 727, 733 (1989). 7 IV. Bad Faith 8 An insurance contract is not an ordinary commercial bargain; implicit in the contract 9 and the relationship is the insurer s obligation to play fairly with its insured. Zilisch v. State 10 Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 237, 995 P.2d 276, 279 (2000) (further quotation 11 omitted). Although insurers do not owe fiduciary duties to their insureds, they do owe some 12 duties of a fiduciary nature including equal consideration, fairness and honesty. Id. The 13 insurer is obligated to conduct a prompt and adequate investigation, to act reasonably in 14 evaluating the insured s claim, and to promptly pay a legitimate claim. Id. at 238, 995 P.2d 15 at 280. 16 An insurer acts in bad faith when it unreasonably investigates, evaluates, or processes 17 a claim (an objective test), and either knows it is acting unreasonably or acts with such 18 reckless disregard that such knowledge may be imputed to it (a subjective test). Nardelli 19 v. Metro. Group Prop. & Cas. Ins. Co., 230 Ariz. 592, 597-98, 277 P.3d 789, 794-95 (App. 20 2012) (citing Zilisch, 196 Ariz. at 238, 995 P.2d at 280). The objective and subjective 21 elements of bad faith are applied to both the insurer s evaluation of the claim and the 22 insurer s claims handling process. Id. 23 The insurer may challenge claims which are fairly debatable. To determine fair 24 debatability, the Court first looks to whether the insurer s actions were objectively 25 reasonable, which is based upon a simple negligence standard whether the insurance 26 company acted in a manner consistent with the way a reasonable insurer would be expected 27 to act under the circumstances. Trus Joist Corp. v. Safeco Ins. Co. of Am., 153 Ariz. 95, 104, 28 735 P.2d 125, 134 (App. 1986). If the insurer acted objectively unreasonably, then the Court -6- 1 moves to the subjective inquiry and determines if the insurer knew or was conscious that its 2 conduct was unreasonable. Id. Generally, the insurer s belief in fair debatability is a 3 question of fact to be determined by the jury. Zilisch, 196 Ariz. at 280, 995 P.2d at 279 4 (citing Sparks v. Republic Nat l Life Ins. Co., 132 Ariz. 529, 539, 647 P.2d 1127, 1137 5 (1982). However, if the insured offers no significantly probative evidence that calls into 6 question the insurer s subjective belief in fair debatability, the court may rule on the issue as 7 matter of law. See Knoell v. Metropolitan Life Ins. Co., 163 F. Supp.2d 1072, 1076 (D. Ariz. 8 2001). Thus, an insurance company can be liable for bad faith for either unreasonably 9 denying a claim that was not fairly debatable or for acting unreasonably in how it processed 10 a claim whether the claim was fairly debatable or not. DISCUSSION 11 12 I. Motion to Strike Legal Theories 13 Lost Earning Capacity 14 Defendant contends that Plaintiffs Complaint did not include allegations of lost 15 earning capacity and that Plaintiffs never disclosed this item of damages. (Doc. 59 at 6.) 16 According to Defendant, Plaintiffs did not allege lost earning capacity damages until their 17 response to Defendant s motion for partial summary judgment. (Id.) Defendant does not 18 dispute that Plaintiffs timely disclosed lost wages damages, but it does dispute that by 19 disclosing lost wages damages Plaintiffs also disclosed lost earning capacity. (Doc. 62 at 2.) 20 Plaintiffs argue that they did properly disclose lost earnings capacity damages to 21 Defendant, citing their initial demand letter, supplemental disclosure statement, and answers 22 to interrogatories. (Doc. 60 at 3.) According to Plaintiffs, these documents disclose that due 23 to pain and debilitating injury from the accident, Taft was not able to work the hours 24 necessary to continue in his former position as an executive chef, and that he loses $1,200 25 in income every month as a result of injuries from the accident. (Doc. 60-3 at 3 citing Doc. 26 60-1 at 8, Doc. 60-3 at 8-10, and Doc. 60-12 at 7.) 27 In a personal injury action, Arizona allows unlimited recovery for actual damages, 28 expenses for past and prospective medical care, past and prospective pain and suffering, lost -7- 1 earnings, and diminished earning capacity. Wendelken v. Superior Court in and for Pima 2 County, 137 Ariz. 455, 458, 671 P.2d 896, 899 (1983). Thus, in a personal injury action, 3 there is recovery for a decrease in earning capacity as distinct from lost wages. Mandelbaum 4 v. Knutson, 11 Ariz. App. 148, 149, 462 P.2d 841, 842 (1969). [I]mpairment of earning 5 capacity is an item of general damage, permitting recovery for loss or diminution of the 6 power to earn in the future and is based upon such factors as plaintiff s age, life expectancy, 7 health, habits, occupation, talents, skills, experience, training and industry. Id. at 149-50, 8 462 P.2d at 842-43. To sustain such an award, the injured person must establish the fact of 9 diminished capacity and the fact that it is permanent. Id. at 150, 462 P.2d at 842. 10 Based upon the Court s review of the discovery documents cited by Plaintiffs, the 11 Court finds sufficient disclosure of Taft s claim for lost earnings capacity damages. 12 Although Defendant claims that Taft has not offered sufficient evidence that he suffers from 13 a permanent impairment (Doc. 62 at 2-3), a motion to strike tests insufficient disclosure, not 14 insufficient proof. Therefore, the Court will not strike Plaintiffs damage claim for lost 15 earnings capacity. 16 Institutional Bad Faith/Hidden or Secret Requirements for UIM Benefits 17 Although Defendant concedes that Plaintiffs disclosed a bad faith claim based on the 18 manner in which Defendant handled Taft s individual claim (Doc. 62 at 3-5), Defendant 19 contends that Plaintiffs failed to properly disclose the facts they rely on in support of their 20 new, previously undisclosed claim that Defendant engaged in institutional bad faith. (Doc. 21 59 at 6.) Defendant contends that Plaintiffs failed to disclose allegations that Defendant has 22 hidden or secret requirements to obtain UIM benefits. (Doc. 62 at 3-5.) The gist of these 23 new allegations is that Defendant had a policy that required actual contemporaneous 24 off-work slips and that an after-the-fact doctor s affirmation would not suffice. (Id.) 25 Defendant contends that if it had known that Plaintiffs were pursuing an institutional bad 26 faith claim, it would have engaged Plaintiffs in additional discovery, which cannot now be 27 completed unless discovery is reopened. (Id.) Defendant further contends that it would have 28 hired an expert to testify regarding the institutional bad faith claim and the hidden or secret -8- 1 requirements for UIM benefits. (Doc. 59 at 7.) 2 Plaintiffs argue that they are not raising institutional bad faith arguments or new facts 3 in support of bad faith, and that their bad faith claim is limited to Defendant s improper 4 evaluation of Taft s UIM benefits claim. In support, Plaintiffs state that their response to 5 Defendant s motion for partial summary judgment only stated facts disclosed by the 6 Defendant s representatives during depositions to the effect that Defendant had a policy of 7 only accepting a loss of earnings statement if the doctor contemporaneously made a record 8 taking the plaintiff off work. It would not accept an after-the-fact affirmation by the doctor. 9 Plaintiffs argue that this does not raise a new theory of the case or disclose new facts. 10 The Court finds that institutional bad faith is not a commonly recognized and 11 accepted legal claim. Although Defendant contends that Plaintiffs have raised a claim of 12 institutional bad faith as if it were so, Defendant did not provide the Court with any 13 controlling authority in support of this legal theory. Furthermore, the Court finds no 14 controlling authority in Arizona establishing institutional bad faith as a claim. Absent such 15 authority, the Court will not grant Defendant s motion to strike on this basis. Moreover, 16 Plaintiffs concede that they are not attempting to raise institutional allegations and that they 17 limit their bad faith claim to allegations that Defendant improperly evaluated Taft s UIM 18 claim. Further, the Court finds that Plaintiffs raised no new allegations regarding hidden or 19 secret requirements to obtain UIM benefits when they referenced statements made by 20 Defendant s representatives in their response to Defendant s motion for summary judgment. 21 The Court construes those references to be in support of Plaintiffs allegations that Defendant 22 improperly evaluated Taft s UIM claim. Therefore, Plaintiffs bad faith claim is limited to 23 allegations that Defendant improperly evaluated Taft s UIM claim, and the Court will not 24 strike Plaintiffs factual assertions based on statements made by Defendant s representatives 25 during their depositions. 26 Emotional Damages 27 Defendant concedes that Plaintiffs disclosed a bad faith claim and that Plaintiffs can 28 attempt to seek emotional distress damages related to Defendant s handling of Taft s UIM -9- 1 claim. (Doc. 62 at 6.) However, Defendant contends that Plaintiffs alleged emotional 2 damages claim for the lost equity in their home is not logically related to the administration 3 of Taft s UIM claim and was not timely disclosed. (Id.) By not receiving timely disclosure 4 of the lost equity claim, Defendant contends that it was prevented from submitting discovery 5 requests on the topic and from asking relevant deposition questions. (Id.) 6 Plaintiffs agree that they did not lose any equity in their house. (See Doc. 52 at 8 7 ( The resultant statement of lost equity is just wrong. ).) According to Plaintiffs, they have 8 submitted no new claim for emotional distress damages. (Doc. 60 at 4.) 9 To the extent that Plaintiffs assert a claim for emotional distress damages related to 10 lost equity in their home, the Court will strike this claim. Plaintiffs did not lose any equity 11 in their home. Plaintiffs claim for emotional distress is therefore limited to those damages 12 related to Defendant s administration or handling of Taft s UIM claim. See Farr v. 13 Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 7, 699 P.2d 376, 382 (App. 1984); see 14 also Kaufman v. Langhofer, 223 Ariz. 249, 253, 222 P.3d 272, 276 (App. 2009). 15 II. Motion to Strike Exhibits 16 Dr. Fauer s Medical Report 17 Defendant moves to strike Dr. Fauer s October 15, 2012 medical report regarding Ben 18 Taft because it was not timely disclosed. (Doc. 59 at 3.) Plaintiffs state that Dr. Fauer 19 testified at his October 17, 2012 deposition about this particular appointment with Taft and 20 stated that his report of Taft s visit had not yet been finalized in writing but would be within 21 the week. (Doc. 60-8 at 2-4.) Subsequently, counsel for Plaintiffs sent an email to 22 Defendant stating that he had received a copy of Dr. Fauer s report and checking to ensure 23 that Defendant had also received a copy. (Doc. 60-9 at 2.) Defendant indicated that he had 24 not as yet but would be looking for it in the mail. (Id.) Defendant does not state when they 25 received Dr. Fauers report; it moves to strike because the document was untimely disclosed. 26 (Doc. 62 at 7-8.) 27 Although Defendant acknowledges that the discovery cut-off deadline in this case was 28 October 19, 2012, it moves to strike a document that Dr. Fauer created post discovery cut-off - 10 - 1 because it was untimely disclosed. The Court will deny Defendant s motion. It is undisputed 2 that Defendant questioned Dr. Fauer about this particular visit during the deposition. (Doc. 3 60-8 at 2-4.) On this record, the Court finds that any delayed disclosure of Dr. Fauer s 4 October 15, 2012 medical report regarding Taft was harmless and thus the Court will not 5 strike the report. 6 December 6, 2010 Report of Illness or Physical Disability 7 Defendant has withdrawn its request to strike this document. (Doc. 62 at 8.) 8 December 9, 2012 Ben Taft Declaration 9 Defendant seeks to strike certain information contained in Taft s declaration as being 10 untimely disclosed. (Doc. 59 at 3-4.) Defendant moves to strike Taft s declaration to the 11 extent that it asserts that Taft had emotional distress related to his house going into 12 foreclosure due to Defendant s bad faith administration of his claim for UIM benefits. (Doc. 13 62 at 8-9.) Defendant argues that Plaintiffs did not disclose their allegation that this item of 14 distress damage was connected with his bad faith claim. (Id.) Plaintiffs respond that this 15 assertion was disclosed. (Doc. 60 at 6-8.) 16 The Court finds that Plaintiffs did disclose the following: 17 19 The financial impact on Ben and his wife has been devastating. Their house was in foreclosure and was only recently saved to give them a chance to make a short sale. Due to the financial losses suffered as a result of this collision, Ben and his wife lost what, at one point, had been a quarter of a million dollar house, at a foreclosure auction where it sold for $55,000. 20 (Doc. 60-1 at 8; see also Doc. 60-3 at 10.) The Court finds that Plaintiffs disclosure did not 21 connect allegations of bad faith administration of Taft s claim for UIM benefits with 22 emotional distress damages related to their home going into foreclosure. Rather, as the 23 disclosed statement indicates, the financial losses suffered by Plaintiffs were the result of 24 Taft s car collision and the injuries he suffered. Thus, the Court will strike from Taft s 25 declaration his assertion that the emotional distress he suffered from their home going into 26 foreclosure was a consequence of Defendant s bad faith administration of his claim for UIM 27 benefits. 28 /// 18 - 11 - 1 III. Defendant s Motion for Partial Summary Judgment 2 Breach of Contract UIM Damages Due to Lost Equity in the Home 3 Defendant moves for partial summary judgment on Plaintiffs claim for breach of 4 contract contending that its car insurance contract with Plaintiffs for alleged UIM benefits 5 does not include damages related to lost home equity. (Doc. 47 at 4.) Defendant argues that 6 under its insuring provisions for UIM coverage, Defendant is obligated to pay Taft 7 compensatory damages for bodily injury only. (Doc. 48-1 at 41.) Under the policy, UIM is 8 defined as: 10 [A] land motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the amount an insured is legally entitled to recover. 11 (Id.) Based on these provisions, Defendant argues that it only owes Taft UIM compensatory 12 damages for which Taft is legally entitled to recover that are in excess of the $50,000 he 13 already received. (Id.) Defendant argues that any loss of equity in Plaintiffs home is not 14 damage that naturally arises from the contract or was in contemplation of the parties when 15 the auto policy contract was entered. (Doc. 47 at 5.) Moreover, Defendant argues that even 16 if Plaintiffs had presented a factual connection between the UIM provisions and lost home 17 equity damages, Plaintiffs have not shown that they suffered lost home equity damages. (Id.) 18 Plaintiffs respond that their lost home equity claim is not a contract damages claim 19 but an emotional distress claim for damages arising from their claim for insurance bad faith. 20 (Doc. 52 at 8.) Therefore, this issue is undisputed. Defendant s car insurance contract with 21 Plaintiffs for alleged UIM benefits does not include Plaintiffs lost home equity as part of a 22 contract damages claim. Therefore, the Court will grant Defendant s motion for partial 23 summary judgment on this issue. Specifically, Defendant did not breach its car insurance 24 contract with Plaintiffs for alleged UIM benefits because the insurance contract does not 25 include lost home equity as part of a contract damages claim. 9 26 Insurance Bad Faith 27 Plaintiffs assert that Defendant unreasonably evaluated and processed their claim for 28 UIM benefits with reckless disregard as to whether it conducted itself unreasonably. (Doc. - 12 - 1 52 at 4-7.) First, Plaintiffs argue that Taft had undisputed medical bills in excess of $28,000. 2 (Doc. 53-15 at 3.) Taft also asserts future medical bills of $1,200 a year for exacerbations 3 related to his injuries and $200 a year for continuing office visits and medication. (Docs. 53- 4 11 at 3.) Second, it is undisputed that Plaintiffs received $50,000 from the at-fault driver in 5 the accident. Plaintiffs conclude that Defendant unreasonably denied their UIM claim in bad 6 faith because in addition to Taft s medical bills, Taft s claim for lost wages and lost earning 7 capacity totaled more than $28,000. Defendant challenges Taft s lost wages/earnings 8 damages and the sufficiency of Taft s doctors notes taking him off work. Ultimately, 9 Defendant determined that the $50,000 Plaintiffs received adequately compensated them and 10 thus that they were not entitled to UIM benefits. (Doc. 48-1 at 10.) 11 The Court first looks to whether the insurer s actions were objectively reasonable, 12 which is based upon a simple negligence standard whether the insurance company acted in 13 a manner consistent with the way a reasonable insurer would be expected to act under the 14 circumstances. Trus Joist Corp., 153 Ariz. at 104, 735 P.2d at 134. Thus, the Court will first 15 turn to Taft s lost wages and lost earning capacity claims and Defendant s evaluation and 16 justification for denying this claim. 17 On the day of the collision Taft was employed by Fox Restaurant Concepts as a chef 18 at North Restaurant in Scottsdale earning $44,000 a year plus bonuses and benefits. (Doc. 19 53-10 at 2-7.) After the collision, Dr. Fauer stated that Taft would be off work for at least 20 two weeks. (Doc. 53-4 at 2.) On July 28, 2010, one day after the collision, Taft s position 21 at North was terminated because that restaurant closed. (Doc. 53-2 at 2.) However, in an 22 affidavit, Taft states that he subsequently received a call from his District Manager at Fox 23 indicating that Fox had purchased an airline ticket for him to fly to California to help a 24 restaurant open in Newport Beach. (Id.) However, due to his injuries, Taft stated that he was 25 not able to pursue the job opening. (Id.) District Manager John Steen indicated that [Taft] 26 was told that had [Taft] been physically able to accept it at that time, employment would 27 have been found at a Fox restaurant, pending permanent placement. [] employment would 28 have been at the same pay and benefit scale that [Taft] had been receiving at North - 13 - 1 restaurant. (Doc. 56-1 at 2.) 2 Defendant argues that Steen lacked authority to offer Taft a job, that his declaration 3 only expresses a sentiment to employ Taft, that it does not prove Taft actually had a job and 4 a paycheck after the accident, and that it does not constitute material evidence sufficient to 5 prevent summary judgment on Plaintiffs bad faith claim. (Doc. 57 at 11-12.) 6 The Court disagrees with Defendant s assessment of the evidence. Viewing Steen s 7 declaration in the light most favorable to the nonmoving party, there is a genuine issue of 8 material fact regarding Plaintiffs claim for lost wages and lost earnings capacity. Steen s 9 declaration raises a material question of fact as to whether Taft had a reasonable expectation 10 of receiving wages after the accident. The appropriate question is whether there is sufficient 11 evidence from which reasonable jurors could conclude that in the investigation and 12 evaluation of the claim, the insurer acted unreasonably and either knew or was conscious of 13 the fact that its conduct was unreasonable. 14 Regarding lost earnings or diminished earnings capacity, the Court has already 15 discussed that Taft disclosed his assertion that due to pain and debilitating injury from the 16 accident he was not able to work the hours necessary to continue in his former position as 17 an executive chef, and that he loses $1,200 in income every month as a result of injuries from 18 the accident. (Doc. 60-3 at 3 citing Doc. 60-1 at 8, Doc. 60-3 at 8-10, and Doc. 60-12 at 7.) 19 Therefore, at issue is whether the insurer acted in bad faith in failing to consider and 20 evaluate his lost earnings evidence given that it had already determined that Taft had not 21 proven that he would have had a job with Fox but for the accident and his injuries. The 22 Court finds that this evidence is such that a reasonable jury could return a verdict on this 23 issue for the nonmoving party. See Anderson, 477 U.S. at 248. 24 Next, the Court has reviewed Taft s medical file and the notes from Dr. Fauer and Dr. 25 Hofstedt taking Taft off work for a period of time after the accident. (See, e.g., Dr. Fauer s 26 notes, Doc. 53-4 at 2 ( Patient to be off work for the next two weeks . . . ); Doc. 53-4 at 4 27 (noting that Taft would continue to be off work for four weeks. ); Dr. Hofstedt s notes, 28 Doc. 53-7 at 6 (stating that Taft is in a no work status for two weeks). At deposition, - 14 - 1 Defendant s adjuster Barry Friedman testified that he interpreted Taft continuing off work 2 as a statement of historical fact because of the closing of the restaurant, not a doctor s order 3 taking Taft off work. 4 misinterpreted these doctor s notes because the notes clearly state that Taft should be off- 5 work for a period of time due to his injuries. (Doc. 52 at 6-7.) The claims supervisor, 6 Marshall Westbrook, also took the position that the doctor s notes were insufficient. He 7 testified that there was no documentation to support that Taft was physically unable to 8 perform his job. (Doc. 53-15 at 6.) (Doc. 53-14.) Plaintiffs argue that Defendant conveniently 9 An insurance contract is not an ordinary commercial bargain; implicit in the contract 10 and the relationship is the insurer s obligation to play fairly with its insured. Zilisch, 196 11 Ariz. at 237, 995 P.2d at 279. Although insurers do not owe fiduciary duties to their 12 insureds, they do owe some duties of a fiduciary nature including equal consideration, 13 fairness and honesty. Id. The insurer is obligated to conduct a prompt and adequate 14 investigation, to act reasonably in evaluating the insured s claim, and to promptly pay a 15 legitimate claim. Id. at 238, 995 P.2d at 280. The question is whether reasonable jurors 16 could conclude that in the investigation and evaluation of these doctor s notes, Defendant 17 acted unreasonably and either knew or was conscious of the fact that its conduct was 18 unreasonable. The Court finds that from this evidence a reasonable jury could return a 19 verdict on this issue for the nonmoving party. See Anderson, 477 U.S. at 248. 20 Therefore, because the jury must decide the question of whether Defendant knowingly 21 acted unreasonably toward Plaintiffs in its investigation and handling of this claim, and 22 because Plaintiffs have presented reasonably competent evidence, this Court must deny 23 Defendant s motion for summary judgment as to the bad faith claim. 24 IV. Punitive Damages 25 Defendant moves for summary judgment against Plaintiffs claim for punitive 26 damages, citing insufficient evidence. (Doc. 47 at 7-8.) 27 In a bad faith tort case against an insurance company, punitive damages may only be 28 awarded if the evidence reflects something more than the conduct necessary to establish - 15 - 1 the tort. Rawlings v. Apodaca, 151 Ariz. 149, 160, 726 P.2d 565, 576 (1986). In Rawlings, 2 the Arizona Supreme Court explained the parameters of punitive damages as follows: 3 6 We restrict [the availability of punitive damages] to those cases in which the defendant s wrongful conduct was guided by evil motives. Thus, to obtain punitive damages, plaintiff must prove that defendant s evil hand was guided by an evil mind. . . . [P]unitive damages will be awarded on proof from which the jury may find that the defendant was aware of and consciously disregard[ed] a substantial and unjustifiable risk that significant harm would occur. 7 151 Ariz. at 162, 726 P.2d at 578 (citations omitted). Summary judgment on the issue of 8 punitive damages must be denied if a reasonable jury could find the requisite evil mind by 9 clear and convincing evidence; summary judgment should be granted if no reasonable jury 10 could find the requisite evil mind by clear and convincing evidence. Thompson v. Better-Bilt 11 Aluminum Prod. Co., 171 Ariz. 550, 558, 832 P.2d 203, 211 (1992). The court construes the 12 evidence and all reasonable inferences drawn from the evidence in a light most favorable to 13 the non-moving party. Id. 4 5 14 Plaintiffs argue that they have submitted sufficient evidence in support of punitive 15 damages to avoid summary judgment. Plaintiffs contend that Defendant knew that Taft was 16 destitute and physically and emotionally vulnerable, yet pursued a course of action in 17 disregard of his interests. (Doc 52 at 11.) Plaintiffs also cite the lack of explanation they 18 received from Defendant on the claim, Adjuster Friedman s multiple misinterpretations of 19 Taft s doctor s orders taking him off work, and Supervisor Westbrook s unfair requirement 20 regarding the precise timing and wording of Doctor s notes needed in order to substantiate 21 Taft being unable to work, and Nurse Van Belle s alleged mistaken conclusion that Taft was 22 symptom free when he returned to work. (Id. at 11-13.) Plaintiffs argue that the evil mind 23 required to support punitive damages by clear and convincing evidence can be inferred from 24 the testimony of Supervisor Westbrook. (Id. at 13.) Westbrook testified that Taft had been 25 fully compensated by the $50,000 he already received; he did not testify that Defendant 26 placed a value higher than that on the claim. (Id.) 27 Despite the parties bona fide dispute as to the amount of Plaintiffs UIM claim, and 28 despite that Plaintiffs have presented sufficient evidence to support their claim of insurance - 16 - 1 bad faith, such facts do not automatically give rise to a claim of punitive damages. The 2 evidence must establish something more than the conduct necessary to establish the tort 3 of insurance bad faith. Rawlings, 151 Ariz. at 160, 726 P.2d at 576. To establish a claim for 4 punitive damages, the evidence must support a showing that Defendant (1) intended to cause 5 injury; (2) engaged in wrongful conduct motivated by spite or ill will; or (3) acted to serve 6 its own interests, having reason to know and consciously disregarding a substantial risk that 7 its conduct might significantly injure the rights of others, even though defendant had neither 8 desire nor motive to injure. See Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 9 422, 758 P.2d 1313, 1324 (1988). 10 Here, at the this stage of the litigation, taking all of the evidence and considering it in 11 the light most favorable to the Plaintiffs, Plaintiffs have presented sufficient evidence by 12 which a jury could find that Defendant acted with the requisite evil mind. Defendant acted 13 to serve its own interests, having reason to know and consciously disregarding a substantial 14 risk that its conduct might significantly injure the rights of Plaintiffs, even though Defendant 15 had neither desire nor motive to injure. Therefore, the Court will deny Defendant s motion 16 for partial summary judgment as to punitive damages. 17 CONCLUSION 18 Accordingly, on the basis of the foregoing, 19 IT IS HEREBY ORDERED granting in part and denying in part Defendant s motion 20 to strike undisclosed exhibits and legal theories. (Doc. 59.) 21 IT IS FURTHER ORDERED denying Defendant s motion to strike Plaintiffs claim 22 for lost earning capacity and institutional bad faith, and denying the motion to strike Dr. 23 Fauer s October 15, 2012 and December 6, 2010 reports. 24 IT IS FURTHER ORDERED granting Defendant s motion to strike to the extent 25 that Plaintiffs assert a claim for emotional distress damages related to lost equity in their 26 home, and striking from Taft s declaration his assertion that emotional distress from their 27 home going into foreclosure was related to Defendant s alleged bad faith administration of 28 his claim for UIM benefits. - 17 - 1 2 IT IS FURTHER ORDERED granting in part and denying in part Defendant s motion for partial summary judgment. (Doc. 47.) 3 IT IS FURTHER ORDERED granting Defendant s motion for partial summary 4 judgment as to Plaintiffs breach of contract claim on the issue of lost home equity damages. 5 Defendant did not breach its insurance contract by denying UIM benefits for lost home 6 equity. 7 8 9 10 IT IS FURTHER ORDERED denying Defendant s motion for partial summary judgment as to Plaintiffs claim of insurance bad faith. IT IS FURTHER ORDERED denying Defendant s motion for partial summary judgment against Plaintiffs claim for punitive damages. 11 IT IS FURTHER ORDERED setting this case for a Final Pretrial Conference on 12 November 18, 2013 at 2:30 p.m. This matter appearing ready for trial, a Final Pretrial 13 Conference shall be held in Courtroom 605, Sandra Day O Connor U.S. Federal Courthouse, 14 401 W. Washington St., Phoenix, Arizona 85003. The attorneys who will be responsible for 15 the trial of the case shall attend the Final Pretrial Conference. Counsel shall bring their 16 calendars so that trial scheduling can be discussed. 17 IT IS FURTHER ORDERED that, if this case shall be tried to a jury, the attorneys 18 who will be responsible for the trial of the lawsuit shall prepare and sign a Proposed Pretrial 19 Order and submit it to the Court on Friday, October 25, 2013. 20 IT IS FURTHER ORDERED that the content of the Proposed Pretrial Order shall 21 include, but not be limited to, that prescribed in the Form of Pretrial Order attached hereto. 22 Statements made shall not be in the form of a question, but should be a concise narrative 23 statement of each party s contention as to each uncontested and contested issue. 24 IT IS FURTHER ORDERED pursuant to Federal Rule of Civil Procedure 37(c) that 25 the Court will not allow the parties to offer any exhibits, witnesses, or other information that 26 were not previously disclosed in accordance with the provisions of this Order and/or the 27 Federal Rules of Civil Procedure and/or not listed in the Proposed Pretrial Order, except for 28 good cause. - 18 - IT IS FURTHER ORDERED directing the parties to exchange drafts of the 1 2 Proposed Pretrial Order no later than seven (7) days before the submission deadline. 3 IT IS FURTHER ORDERED that the parties shall file and serve all motions in 4 limine no later than Friday, October 25, 2013. Each motion in limine shall include the legal 5 basis supporting it. Responses to motions in limine are due Friday, November 1, 2013. No 6 replies will be permitted. The attorneys for all parties shall come to the Final Pretrial 7 Conference prepared to address the merits of all such motions. 8 IT IS FURTHER ORDERED directing the parties to complete the following tasks 9 by the time of the filing of the Proposed Pretrial Order if they intend to try the case before 10 a jury: 11 (1) The parties shall jointly file a description of the case to be read to the jury. 12 (2) The parties shall jointly file a proposed set of voir dire questions. The voir 13 dire questions shall be drafted in a neutral manner. To the extent possible, the parties 14 shall stipulate to the proposed voir dire questions. 15 disagreement about a particular question, the party or parties objecting shall state the 16 reason for their objection below the question. 17 (3) 18 instructions shall be accompanied by citations to legal authority. If a party believes 19 that a proposed instruction is a correct statement of the law, but the facts will not 20 warrant the giving of the instructions, the party shall so state. The party who believes 21 that the facts will not warrant the particular instruction shall provide an alternative 22 instruction with appropriate citations to legal authority. 23 (4) 24 the trial. 25 IT IS FURTHER ORDERED directing the parties to submit their proposed joint 26 statement of the case, joint voir dire questions, stipulated jury instructions, and verdict forms. 27 IT IS FURTHER ORDERED that if the case will be tried to the Court, rather than 28 to a jury, instead of filing a Proposed Pretrial Order, each party shall submit proposed If the parties have any The parties shall file a proposed set of stipulated jury instructions. The Each party shall submit a form of verdict to be given to the jury at the end of - 19 - 1 findings of fact and conclusions of law by the same date the Proposed Pretrial Order is due. 2 IT IS FURTHER ORDERED that the parties shall keep the Court apprised of the 3 possibility of settlement and should settlement be reached, the parties shall file a Notice of 4 Settlement with the Clerk of the Court. 5 IT IS FURTHER ORDERED that this Court views compliance with the provisions 6 of this Order as critical to its case management responsibilities and the responsibilities of the 7 parties under Rule 1 of the Federal Rules of Civil Procedure. 8 DATED this 1st day of October, 2013. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 - 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Plaintiff, 10 11 ) ) ) ) ) ) ) ) ) ) ) ) , vs. 12 , 13 Defendant. 14 No. CV -PHX-SMM PROPOSED ORDER PRETRIAL FORM OF 15 Pursuant to the Scheduling Order, the following is the joint Proposed Final Pretrial 16 17 Order to be considered at the Final 18 ___________________________, _________ . 19 Pretrial Conference A. COUNSEL FOR THE PARTIES 20 Plaintiff(s): 22 for (Include mailing address, office phone and fax numbers). 21 set Defendant(s): 23 B. STATEMENT OF JURISDICTION. 24 Cite the statute(s) which gives this Court jurisdiction. 25 (e.g., Jurisdiction in this case is based on diversity of citizenship under Title 28 26 U.S.C. ยง1332.) 27 Jurisdiction (is/is not) disputed. 28 1 (If jurisdiction is disputed, the party contesting jurisdiction shall set forth with 2 specificity the bases for the objection.) 3 C. NATURE OF ACTION. 4 Provide a concise statement of the type of case, the cause of the action, and the 5 relief sought. 6 (e.g., - This is a products liability case wherein the plaintiff seeks damages for 7 personal injuries sustained when he fell from the driver's seat of a forklift. The 8 plaintiff contends that the forklift was defectively designed and manufactured by 9 the defendant and that the defects were a producing cause of his injuries 10 11 and damages.) D. CONTENTIONS OF THE PARTIES. 12 With respect to each count of the complaint, counterclaim or cross-claim, and to 13 any defense, affirmative defense, or the rebuttal of a presumption where the 14 burden of proof has shifted, the party having the burden of proof shall list the 15 elements or standards that must be proved in order for the party to prevail on that 16 claim or defense. Citation to relevant legal authority is required. 17 (e.g., In order to prevail on this products liability case, the plaintiff must prove 18 the following elements . . . . 19 In order to defeat this products liability claim based on the statute of repose, the 20 defendant must prove the following elements . . . .) 21 E. STIPULATIONS AND UNCONTESTED FACTS 22 1. The following facts are admitted by the parties and require no proof: 23 2. The following facts, although not admitted, will not be contested at trial by 24 evidence to the contrary: 25 26 27 28 -2- 1 F. CONTESTED ISSUES OF FACT AND LAW 2 1. The following are the issues of fact to be tried and decided: (Each issue of fact 3 must be stated separately and in specific terms. Each parties contention as to 4 each issue must be set forth with respect to each and every issue of fact). E.g., 5 Issue # 1: Whether Plaintiff used due care. 6 Plaintiff Contends: Plaintiff looked both ways before stepping into the 7 street . . . . 8 Defendant Contends: Plaintiff was chasing a ball and darted out into the 9 street without looking . . . . 10 2. The following are the issues of law to be tried and determined: (Each issue of 11 law must be stated separately and in specific terms. Each parties' contention as 12 to each issue must be set forth with respect to each and every issue of law). E.g., 13 Issue # 1: Whether Plaintiff's suit is barred by the doctrine of laches. 14 Plaintiff Contends: . . . 15 Defendant Contends: . . . 16 G. LIST OF WITNESSES. 17 A jointly prepared list of witnesses and their respective addresses, identifying 18 each as either plaintiff s or defendant s, and indicating whether a fact or expert 19 witness, must accompany this proposed order. If a witness address is unknown, 20 it should be so stated. A brief statement as to the testimony of each witness must 21 also be included. Additionally, the parties shall designate which witnesses (1) 22 shall be called at trial, (2) may be called at trial, and (3) are unlikely to be called 23 at trial. 24 Additionally, the parties shall include the following text in this portion of the 25 Proposed Pretrial Order: 26 The parties understand that the Court has put them on notice that they are 27 responsible for ensuring that the witnesses they want to put on the stand to testify 28 -3- 1 are subpoenaed to testify, regardless of whether the intended witness is listed as 2 a witness for the plaintiff(s) or the defendant(s). Simply because a party lists a 3 witness does not mean that the witness will be called. Therefore, a party should 4 not rely on the listing of a witness by the opposing party as an indication that the 5 witness will be called. To the extent possible, the parties shall stipulate to the 6 witnesses who will be called to testify. 7 H. LIST OF EXHIBITS. 8 1. The following exhibits are admissible in evidence and may be marked in 9 evidence by the Clerk: 10 a. Plaintiff s Exhibits: 11 b. Defendant s Exhibits: 12 2. As to the following exhibits, the parties have reached the following 13 stipulations: 14 a. Plaintiff s Exhibits: 15 b. Defendant s Exhibits: 16 3. As to the following exhibits, the party against whom the exhibit is to be 17 offered objects to the admission of the exhibit and offers the objection stated 18 beneath: 19 a. Plaintiff s Exhibits: 20 (E.g., City Hospital records of Plaintiff from March 6, 1985 through March 22, 21 1985. Defendant objects for lack of foundation because . . . . (the objection must 22 specify why there is a lack of foundation)). 23 b. Defendant s Exhibits: 24 (E.g., Payroll records of Plaintiff s employer which evidences payment of 25 Plaintiff s salary during hospitalization and recovery. Plaintiff objects on the 26 ground of relevance and materiality because (the objection must specify why 27 there is a relevancy or materiality problem)). 28 -4- 1 I. DEPOSITIONS TO BE OFFERED. 2 The parties shall list the depositions to be used at trial. The portions to be read 3 at trial shall be identified by page and line number. Counsel should note 4 objections to deposition testimony by writing the objection in the margins of that 5 portion of the text of the deposition to which the objection is made. Moreover, 6 these objections shall be explained in this portion of the Proposed Pretrial Order. 7 As is the Court's practice at trial, it is not sufficient for an objecting party to 8 simply state perfunctory grounds for an objection (e.g., hearsay or lack of 9 foundation ) contained in the Proposed Pretrial Order. Each party must explain 10 the basis for each perfunctory objection (e.g., why it is hearsay, why it lacks 11 foundation, why it is irrelevant). 12 J. MOTIONS IN LIMINE. Motions in limine shall be served, filed, and responded 13 to in accordance with the instructions contained in the Order Setting Final Pretrial 14 Conference. 15 K. LIST OF ANY PENDING MOTIONS 16 L. PROBABLE LENGTH OF TRIAL 17 M. JURY DEMAND - A jury trial (has) (has not) been requested. If a jury trial was 18 requested, (indicate the appropriate selection): 19 1. the parties stipulate the request was timely and properly made; 20 2. the (Plaintiff or Defendant) contends the request was untimely made because: 21 (explain why request was untimely); or 22 3. the (Plaintiff or Defendant contends that although the request for trial by jury 23 was timely, the request is improper as a matter of law because: (indicate the legal 24 basis why a jury trial would be improper). 25 For a Bench Trial 26 N-1. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW shall 27 be filed and served by each party in accordance with the instructions contained 28 -5- 1 in the Order Setting Final Pretrial Conference. 2 For a Jury Trial 3 N-2.STIPULATED JURY INSTRUCTIONS, PROPOSED VOIR DIRE 4 QUESTIONS, AND PROPOSED FORMS OF VERDICT shall be filed in 5 accordance with the instructions contained in the Order Setting Final Pretrial 6 Conference. 7 O. CERTIFICATIONS. The undersigned counsel for each of the parties in this 8 action do hereby certify and acknowledge the following: 9 1. All discovery has been completed. 10 2. The identity of each witness has been disclosed to opposing counsel. 11 3. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been 12 disclosed and shown to opposing counsel. 13 4. The parties have complied in all respects with the mandates of the Court's Rule 14 16 Order and Order Setting Final Pretrial Conference. 15 5. [Unless otherwise previously ordered to the contrary], the parties have made 16 all of the disclosures required by the Federal Rules of Civil Procedure. 17 APPROVED AS TO FORM AND CONTENT: 18 __________________________________ _________________________________ 19 Attorney for Plaintiff Attorney for Defendant 20 Based on the foregoing, 21 IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties 22 is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court. 23 DATED this ______ day of ______________________, _________. 24 25 _________________________ 26 Stephen M. McNamee Senior United States District Judge 27 28 -6-
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