Coronel v. GEICO Insurance Agency Incorporated

Filing 253

** AMENDED BY DOC. 255 ** ORDER granting in part and denying in part 222 Motion for Summary Judgment; granting 252 Motion to Seal: GEICO's motion for summary judgment regarding breach of contract and punitive damages is granted. GEICO� 39;s motion for summary judgment regarding insurance bad faith is denied. GEICO's motion to seal is granted. GEICO shall file on the public record, by 10/16/2015, a redacted version of Exhibit 18. Final Pretrial Conference is set for 12/7/2015 a t 2:00 p.m. Joint Proposed Pretrial Order is due 11/20/2015. Motions in limine are due 10/30/2015; responses are due 11/13/2015. See order for additional details. Signed by Senior Judge Stephen M McNamee on 9/24/2015.(LMR) Modified on 9/24/2015 (LMR).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Katherine Coronel, et al.,

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Plaintiffs,

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vs.

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GEICO Ins. Agency Inc.,

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Defendant.

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No. CV-12-795-PHX-SMM

MEMORANDUM OF DECISION
AND ORDER

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Pending before the Court is Defendant Government Employees Insurance Company’s

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(“GEICO”) motion for summary judgment, which is fully briefed. (Docs. 222-23, 235-36,

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240, 247-48.) After reviewing and considering1 the briefs, the Court will grant GEICO’s

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motion for summary judgment.

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FACTUAL BACKGROUND

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The following facts are undisputed. During the early morning hours of October 28,

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2007, Eduardo Mediavilla and Plaintiff Katherine Coronel (“Coronel”), the fiancée of

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Eduardo, were traveling South on Interstate 17 just North of the Phoenix metro area. (Doc.

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235-14.) Mr. Mediavilla was driving a 2003 Volkswagen Jetta that was owned by his father

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Eduardo Mediavilla. Eduardo and Coronel’s minor children, A.M. (3years old) and V.M.

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After reviewing the briefs and having determined that oral argument is unnecessary,
the request for oral argument is denied because the parties have had an adequate opportunity
to present their written arguments; 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).

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(19 months old) were buckled in their car seats in the rear of the Jetta. Coronel was pregnant

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with their third child, then unborn E.M. (Doc. 54.) While driving on I-17 the Jetta had a flat

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on the driver rear tire. (Id.) Mr. Mediavilla pulled over to the shoulder in front of another

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motorist who was also having car trouble. (Doc. 235-5.) The other motorist, Donald Crowe,

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was attempting to help Mr. Mediavilla change his tire, however, one of the lug nuts could not

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be removed. (Id.) Crowe and Mr. Mediavilla had decided that Mediavilla needed to drive

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the Jetta to a service station for assistance. (Id.) As Crowe was putting up his tools and

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facing away from Mr. Mediavilla, Mr. Mediavilla was seated in front of the Jetta’s flat tire

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when he was struck by another car that had veered off the road. (Id., Doc. 54.) Mr.

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Mediavilla was struck by the vehicle and thrown from the rear of the car into the Jetta’s front

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wheel well, killing him. (Doc. 54.) The vehicle which struck Mr. Mediavilla did not return

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to the scene of the accident, and the driver responsible for the accident has never been

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located. (Id.)

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The Jetta was owned by Mr. Mediavilla’s father and was insured by GEICO. The

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policy on the Jetta was entered into in New York by decedent’s father and contained

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uninsured/underinsured policy limits of $100,000 per person and $300,000 per occurrence.

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(Doc. 54.) The policy contains a choice-of-law provision, which states that “the policy . . .

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[is] to be interpreted pursuant to the laws of the state of New York.” (Doc 223-1 at 59.)

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Between the time of the accident and December 17, 2009, GEICO investigated,

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processed, and then paid $100,000, in uninsured motorist coverage for Mr. Mediavilla’s

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wrongful death. (Doc. 235-13.) The proceeds of the wrongful death payment were split

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between his parents ($15,000) and Mr. Mediavilla’s three minor children ($85,000). (Id. at

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24.)

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Coronel continued to pursue a claim under the policy on behalf of herself and her

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children alleging that due to the accident they suffered negligent infliction of emotional

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distress (“NIED”) injuries. (Doc. 54 at 5.) Regarding Plaintiffs’ claims to GEICO for NIED

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damages arising out of the accident, the material facts are set forth in the Court’s discussion

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of their claims for bystander NIED damages and direct duty NIED damages.

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On March 11, 2011, Plaintiffs retained counsel to represent them in the claim. (Doc.

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223-1 at 85.) On April 20, 2011, Plaintiffs’ counsel made a global settlement offer. (Id. at

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87-91.) GEICO acknowledges that included with the Plaintiffs’ demand letter were medical

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records for all Plaintiffs other than E.M. (Id.) On October 11, 2011, GEICO responded.

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(Doc. 223-1 at 93-94.) Based on New York law, GEICO stated that it did not believe Coronel

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was eligible for NIED damages. (Id.) GEICO further stated that it did not believe that A.M.

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or V.M were eligible for NIED damages, but offered payment of $5,000 each for both A.M.

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and V.M. (Id.) The parties then decided to settle the claims of A.M. and V.M. for $7,500

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each. (Doc. 223-1 at 96.) Plaintiffs then sought court approval of the settlement involving

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A.M. and V.M. (Doc. 223-1 at 98-102.) Subsequently, on December 27, 2011, Plaintiffs

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withdrew the Petition for Approval of Settlement and Order and filed a Complaint against

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GEICO for breach of contract, bad faith, and punitive damages. (Doc. 223-1 at 104, 106-

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110.)

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STANDARD OF REVIEW

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Summary Judgment

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“A party may move for summary judgment, identifying each claim or defense . . . on

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which summary judgment is sought.” Fed. R. Civ. P. 56(a). “The court shall grant summary

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judgment if the movant shows that there is no genuine issue as to any material fact and the

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movant is entitled to judgment as a matter of law.” Id.; see Celotex Corp. v. Catrett, 477 U.S.

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317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.

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1994). Substantive law determines which facts are material. See Anderson v. Liberty

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Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over

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facts that might affect the outcome of the suit under the governing law will properly preclude

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the entry of summary judgment.” Anderson, 477 U.S. at 248. The dispute must also be

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genuine, that is, the evidence must be “such that a reasonable jury could return a verdict for

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the nonmoving party.” Id.; see Jesinger, 24 F.3d at 1130.

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A principal purpose of summary judgment is “to isolate and dispose of factually

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unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate

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against a party who “fails to make a showing sufficient to establish the existence of an

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element essential to that party’s case, and on which that party will bear the burden of proof

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at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.

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1994). The moving party need not disprove matters on which the opponent has the burden

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of proof at trial. See Celotex, 477 U.S. at 323. The party opposing summary judgment may

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not rest upon the mere allegations or denials of the party’s pleadings, but must set forth

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specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co.

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v. Zenith Radio, 475 U.S. 574, 587 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d

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1044, 1049 (9th Cir. 1995).

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DISCUSSION

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I. Breach of Contract

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Under New York law, “in the context of insurance contracts, a ‘breach’ [of contract]

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does not occur until an insured party makes demand upon the insurer and the insurer refuses

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to pay.” Continental Cas. Co. v. Stronghold Ins. Co., 866 F. Supp. 143, 145 (S.D.N.Y. 1994)

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(citing Niagara Frontier Transp. Auth. v. Encon Underwriting Agency, Inc., 185 A.D.2d 642

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(N.Y. App. Div. 1994) (stating that the “breach . . . occurred when the insurer denied liability

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under the contract.”) “It is only when an insurer declines to pay a covered loss for which the

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insured has requested payment that the insurer has breached the insurance agreement by

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failing to perform its contractual obligations.” Niagara Frontier, 185 A.D.2d at 642.

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A. Bystander NIED

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Regarding breach of the insurance contract, the first issue is whether Coronel, and/or

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the minor children, were entitled to bystander NIED benefits arising out of the accident.

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Under New York law, in order to recover emotional distress damages proximately caused by

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the accident, Coronel and/or the minor children must establish each of the following four

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elements: (1) the plaintiff is contemporaneously aware of or witnesses; (2) serious physical

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injury or death; (3) to an immediate family member; (4) while in the zone of danger created

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by the hit-and-run motorist. See Bovsun v. Sanperi, 461 N.E.2d 843, 844 (N.Y. 1984).

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Bystander recovery for NIED in New York is a narrow avenue. See Trombetta v. Conkling,

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626 N.E.2d 653, 654 (N.Y. 1993). As applied to the facts of this case, it requires that the hit-

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and-run driver breached a duty owed to each Plaintiff by exposing them to an unreasonable

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and negligent risk of bodily injury or death, entitling them to recover all damages sustained

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as a result of the defendant’s breach, including mental and physical injuries resulting from

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witnessing death or serious bodily to a member of the immediate family. See id. at 654-55

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(citing Bovsun, 461 N.E.2d at 844).

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Immediate Family Member

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GEICO contends that it is entitled to summary judgment because Coronel as a fiancée

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of the deceased, was not an immediate family member. (Doc. 222 at 6-7.) GEICO argues

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that an immediate family member is limited to “a party who was “married or related in the

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first degree of consanguinity.” (Id. at 6.) GEICO contends that Coronel was neither married

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nor had a blood relationship with the decedent. (Id. at 6-7.)

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Coronel contends that even though no New York case holds that she is eligible as an

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immediate family member, if presented with the issue, New York would permit her to assert

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a bystander NIED claim. (Doc. 235 at 8.) Coronel surmises this because other neighboring

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states allow for unmarried cohabitants to recover for bystander NIED. (Id.) Regarding the

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children, Coronel alleges that there is no observation requirement for bystander NIED and

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that the children were contemporaneously aware of their father’s death. (Id. at 8-10.)

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The Court finds that Coronel is not an immediate family member. In Bovsun, the

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court limited bystander NIED to immediate family members, which it determined as:

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“married or related in the first degree of consanguinity to the injured or deceased person . .

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. ” 461 N.E.2d at 850 n.13. In Trombetta, the New York Court of Appeals refused to expand

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the immediate family requirement to those who could demonstrate a blood relationship

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coupled with significant emotional attachment or the equivalent of an intimate, immediate

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familial bond. 626 N.E.2d at 655 (stating that the availability of recovery is limited to the

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strictly and objectively defined class of bystanders).

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Coronel was neither married to nor had the required blood relationship with the

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decedent. Because she was not an immediate family member of the decedent, the Court finds

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that she is not eligible for bystander NIED. See Trombetta, 626 N.E.2d at 655-56 (rejecting

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significant emotional attachment or the equivalent of an intimate, immediate familial bond

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as meeting the test for a decedent’s immediate family; the availability of recovery is limited

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to a strictly and objectively defined class of bystanders); Santana v. Salmeron, 79 A.D.3d

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1122, 1123 (N.Y. App. Div. 2010) (stating that a boyfriend was not an injured girlfriend’s

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immediate family member); see also Thompson v Dhaiti, 103 A.D.3d 711, 712-13 (N.Y.

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App. Div. 2013) (finding that “stepchildren are not immediate family members”); Jun Chi

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Guan v. Tuscan Dairy Farms, 24 A.D.3d 725, 726 (N.Y. App. Div. 2005) (holding that a

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grandmother was not an immediate family member of her deceased grandson). Having found

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that Coronel was not an immediate family member under New York law, she has not met a

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required element and was thus not entitled to bystander NIED.

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Awareness of Injury/Death and Zone of Danger

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GEICO contends that the minor children have not established their claim to bystander

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NIED because: 1) New York law requires that the minor children must have witnessed or

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observed their father being hit in the accident, and 2) they were not in the zone of danger.

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Coronel, on behalf of the minor children, contends that there is no such observation

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requirement; the children only must be contemporaneously aware of their father’s death. The

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minor children further contend that they were in the zone of danger.

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Regarding A.M. and V.M, the deceased’s children who were in the back seat of the

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car, the Court rejects GEICO’s argument that the A.M. and V.M. were required to have

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witnessed or observed their father being hit in the accident. The Court finds that there is no

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observation requirement for bystander NIED. See Bovsun, 461 N.E.2d at 850 (stating that

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“[a]lthough plaintiffs in Bovsun did not actually see their husband and father being injured,

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they do assert their instantaneous awareness that he had been injured as well as their

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observation of him immediately after he was struck by defendants’ automobile.”)

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The Court further finds that A.M. and V.M. were contemporaneously aware of their

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father’s death and therefore met this requirement. A non-party witness on the scene of the

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accident, Donald Crowe, testified that immediately after the accident he heard A.M. and

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V.M. in the car hysterically crying; he also testified that they were scared. (Doc. 235-5 at 5.)

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However, in-utero E.M. could not have witnessed or been contemporaneously aware of

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his/her father’s death and therefore could not meet this requirement.

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Next, at issue is whether A.M. and V.M. were in the zone of danger created by the hit-

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and-run driver. A.M. and V.M. were in the back seat of the Jetta, strapped into their car

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seats. A.M. was 3 and V.M. was 19 months. GEICO argues that the children in the car were

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not in the zone of danger because they were not threatened with bodily harm as a

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consequence of the hit-and-run motorist’s negligence. (Doc. 222 at 7-8.)

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Coronel relies on Bovsun arguing that the factual similarities from that case to the

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facts here demonstrate that the children were in the zone of danger. Coronel recites the

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Bovsun facts as involving the family vehicle parked on the side of the road when the father

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was seriously injured by a passing vehicle as he was standing outside the vehicle opening a

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tailgate window. (Doc. 235 at 9, citing 461 N.E.2d at 844.)

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The Court finds that the children were not threatened with bodily harm as a

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consequence of the hit-and-run motorist’s negligence, as the hit-and-run driver’s negligence

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did not cause a collision with the Jetta. Thus, as this Court construes New York law, the

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children were not in the zone of danger. For instance, in Feng v. Metro. Transp. Auth., 285

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A.D.2d 447, 447-48 (N.Y. App. Div. 2001), a mother took her son to a train station. Id.

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While waiting for the train to arrive, the mother sat on a bottom step near the approaching

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train tracks, and the son stood approximately five feet away facing his mother with his back

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to the tracks and the oncoming trains. Id. An approaching train struck the son, pushing him

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onto his mother. Id. The court held that the mother was not in the zone of danger or that she

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was even aware the train was approaching prior to the accident. Id. at 448; see also Zea v.

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Kolb, 204 A.D.2d 1019, 1019 (N.Y. App. Div. 1994) (holding that mother who was twelve

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to fifteen feet away from defendant’s vehicle when it struck and killed her daughter was not

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in the zone of danger because “she herself was never threatened with bodily harm in

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consequence of defendant’s negligence”); Gonzalez v. N.Y.C. Hous. Auth., 181 A.D.2d 440,

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440 (N.Y. App. Div. 1992) (holding that mother who was held back by another passenger

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in the rear of the elevator when her daughter was killed by elevator doors was not in the zone

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of danger).

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Here, Coronel testified that at the time of the accident she was on the right side (the

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passenger side) of the vehicle and had her hand on the vehicle. (Doc. 235-2 at 6.) She

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stated that when the accident occurred, there was a loud noise and the car violently shook,

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and moved. (Id.) However, the accident report concluded that the Jetta only had dents on

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the left side on the rocker panel in the lower part of the car and that such dents were caused

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by the body of the decedent after he was hit and thrust into the car. (Doc. 235-14 at 7.)

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Although there was also damage to the driver’s side mirror, after talking with all of the

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witnesses, it was undetermined by the accident report whether the hit-and-run vehicle caused

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this damage or whether it was caused by the decedent. (Id.) No one witnessed the decedent

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being struck by the hit-and-run driver. There is no expert testimony that would establish

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proof that the driver-side mirror was struck by the hit-and-run vehicle. Based on this lack

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of evidence, the Court finds that neither A.M., V.M., nor in-utero E.M., were in the zone of

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danger.

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The case relied on by Coronel, Bovsun, is distinguished by its facts. In Bovsun, the

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father was outside the vehicle working on the rear tailgate when the back of his vehicle was

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struck by the negligent driver, seriously injuring the father. 461 N.E.2d at 844. Due to the

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force of the impact of the vehicles colliding, pinning the father, the mother and daughter were

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thrown about their vehicle although not seriously injured. Id. Thus, the mother and daughter

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who were in the car had bystander NIED claims; they were in the zone of danger based on

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the collision and were contemporaneously aware of the father’s serious injuries.

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B. Direct Duty NIED

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Under New York law, Coronel contends that she, A.M., and V.M. have two ways to

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establish a NIED claim: the bystander theory or the direct duty theory. (Doc. 235 at 10.)

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According to Coronel, under the direct duty theory, a plaintiff has a cause of action for an

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NIED claim if he or she “suffers emotional distress caused by ‘defendant’s breach of a duty

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which unreasonably endangered [plaintiff’s] own physical safety.’”2 (Id., citing Baker v.

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Dorfman, 239 F.3d 415, 421 (2nd Cir. 2000) (applying New York law)). Coronel further

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contends that the “direct duty” owed to she, A.M., and V.M. would include generalized

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duties that one would owe to the public such as operating his or her vehicle safety, prudently,

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and in accordance with traffic laws. (Doc. 235 at 10.)

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GEICO responds that under the direct duty NIED theory, the duty “must be specific

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to the plaintiff, and not some amorphous, free-floating duty to society.” (Doc. 247 at 5

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(quoting Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996) (citing Johnson v.

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Jamaica Hosp., 467 N.E.2d 502 (N.Y. 1984))).)

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The Court finds the following. In accordance with New York law, “the definition of

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the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden

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declaration reserved for Judges to make prior to submitting anything to fact-finding or jury

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consideration.” Palka v. Servicemaster Mgmt. Services Corp., 634 N.E.2d 189, 192 (N.Y.

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1994). New York law narrowly defines the scope of an alleged tortfeasor’s duty in order to

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ensure that the legal consequences of wrongs are limited to a controllable degree. See Waters

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v. New York City Housing, 505 N.E.2d 922, 924 (N.Y. 1987) (further citation and quotation

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omitted).

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Thus, the Court first must determine the scope of the duty, that is, whether the hit-and-

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run driver owed a direct duty to Coronel, A.M., and V.M. See In re Air Crash Disaster at

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Cove Neck, Long Island, N.Y. on Jan. 25, 1990, 885 F. Supp. 434, 439 (E.D.N.Y. 1995)

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(stating that a prerequisite to recovering for a claim of emotional injury is the existence of

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a duty owed directly to the plaintiffs); Kelly v. Chase Manhattan Bank, 717 F. Supp. 227,

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235 (S.D.N.Y. 1989) (“recovery for [direct duty] negligent infliction of emotional distress

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‘is circumscribed to unique facts where a special duty is owed.’”) (quoting Rubinstein v.

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New York Post Corp., 488 N.Y.S.2d 331, 334 (N.Y. Sup. Ct. 1985)). Next, if the hit-and-run

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The Court finds that in-utero E.M. could not be put into emotional fright at the time
of the accident, and thus does not have a potential cause of action for direct duty NIED.
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driver owed Coronel, A.M., and V.M. a direct duty, the Court then determines whether the

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driver breached that duty and unreasonably endangered their physical safety.

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“The gravamen of [a direct duty NIED] claim is whether plaintiffs can prove the

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defendant owed them a specific duty, rather than a general duty to society.” See Cove Neck

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Air Crash Disaster, 885 F. Supp. at 439 (citing Jamaica Hosp., 467 N.E.2d at 503-04). In

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Battalla v. State of New York, 176 N.E.2d 729 (N.Y. 1961), New York first recognized

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direct duty NIED claims. In that case, an infant plaintiff recovered emotional distress

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damages against a state-owned ski resort because a negligent employee placed the child

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plaintiff in a chair lift without securing the child’s safety belt and the child suffered

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emotional trauma. Id. at 730. However, in Jamaica Hosp., 467 N.E.2d at 503-04, the parent

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plaintiffs were denied emotional distress damages when their 4-month-old infant was

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kidnapped from the defendant hospital, the New York Court of Appeals finding that the

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hospital’s specific duty ran to the kidnapped infant, not the parents. In Cove Neck Air Crash

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Disaster, 885 F. Supp. at 439, when a plane crashed into a residential neighborhood, the

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district court found that the airline’s duty ran to its passengers on the plane, denying

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emotional distress damages to those on the ground who happened to be in the wrong place

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at the wrong time. Similarly, in Mortise, when the Mortises, who were out 4-wheeling and

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accidentally ran into a national guard exercise suffering emotional distress damages, the

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Second Circuit denied damages to the Mortises finding that the Guard only had a generalized

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duty to prevent unreasonable risks of harm to passers-by, and that this duty was not specific

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to the Mortises. 102 F.3d at 696.

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Based on the above principles, the Court rejects Coronel’s argument that the hit-and-

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run driver owed a “direct duty” to she, A.M., and V.M. because the hit-and-run driver also

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owed generalized duties to the public such as operating his or her vehicle safety, prudently,

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and in accordance with traffic laws. The Court finds that the hit-and-run driver’s duty was

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not specific to Coronel, A.M. or V.M. Therefore, Coronel, A.M. and V.M. would not be

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entitled to emotional distress damages under the legal theory of direct duty NIED.

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II. Arizona Bad Faith

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Under Arizona law, Plaintiffs establish bad faith by an insurer by showing that the

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insurer acted unreasonably. The test for reasonableness contains two elements. Plaintiffs

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must show that (1) the insurer acted unreasonably and (2) either knew or was conscious of

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the fact that its conduct was unreasonable. See Deese v. State Farm Mut. Auto. Ins. Co., 172

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Ariz. 504, 507, 838 P.2d 1265, 1268 (1992). The first prong of the test for bad faith is an

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objective test based on reasonableness. The second prong is a subjective test, requiring the

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plaintiff to show that the insurer committed consciously unreasonable conduct. See Trus

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Joist Corp. v. Safeco Ins. Co. of Am., 153 Ariz. 95, 104, 735 P.2d 125, 134 (App. 1986)).

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First, GEICO moves for summary judgment on Plaintiffs’ Arizona bad faith allegation

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that GEICO unreasonably applied New York law to their NIED tort claims against the

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hit-and-run driver. (Doc. 222 at 12-14 (citing Doc. 54, First Amended Complaint, at 6-7.)

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GEICO is entitled to summary judgment on Plaintiffs’ allegation. Based on the

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decedent’s GEICO Uninsured Motorist coverage, the Court has already found that New York

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law applies to Plaintiffs’ NIED tort claims against the hit-and-run driver. (Doc. 116.)

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Next, GEICO moves for summary judgment on Plaintiffs’ Arizona bad faith allegation

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that GEICO unreasonably denied insurance coverage to Coronel, A.M., and V.M. for their

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NIED tort claims against the hit-and-run driver. (Doc. 222 at 12-14.)

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Based on the Court’s foregoing discussion applying New York law to Plaintiffs’

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NIED allegations, GEICO is entitled to summary judgment on this allegation. See Lasma

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Corp. v. Monarch Ins. Co. of Ohio, 159 Ariz. 59, 63, 764 P.2d 1118, 1122 (1988) (stating

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that where the insurance company has a reasonable basis for denying a claim, or where the

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claim is fairly debatable, a cause of action for bad faith will not lie); see also Noble v. Nat’l

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Am. Life Ins. Co., 128 Ariz. 188, 189, 624 P.2d 866, 867 (1981) (stating that in order to

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support a claim of bad faith, Arizona law requires plaintiffs to set forth facts which indicate

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that defendant lacked a reasonable basis for denying plaintiffs’ claims). The Court has

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evaluated the undisputed facts, evaluated the disputed material facts in favor of Plaintiffs, the

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non-movant, and applied those facts to controlling New York law finding that none of the

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Plaintiffs have stated a cause of action for either bystander NIED or direct duty NIED

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damages.

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Finally, Coronel argues that even if the Court finds that neither she nor the minor

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children are entitled to coverage for bystander NIED or direct duty NIED, GEICO is still

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liable for bad faith because it unreasonably processed and handled their NIED claim. (Doc.

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235 at 12 (citing Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 238, 995 P.2d 276,

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280 (2000) (finding that an insurer can be liable for bad faith regarding its investigation,

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evaluation and processing of the claim)).)

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Regarding proof of bad faith as applied to an insurer’s claims handling process, the

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reasonableness test is applied to a consideration of how the insurer allegedly mishandled the

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claim. See Zilisch, 196 Ariz. at 238, 995 P.2d at 280 (stating that “[t]he appropriate inquiry

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is whether there is sufficient evidence from which reasonable jurors could conclude that in

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the investigation, evaluation, and processing of the claim, the insurer acted unreasonably and

14

either knew or was conscious of the fact that its conduct was unreasonable.”)

15

Plaintiffs first allege that GEICO’s Claims Code of Conduct and its Claims Manual

16

establish requirements and procedures for its claims personnel, the violation of which

17

presents evidence of unreasonable claims handling. (Doc. 235 at 3-4.)

18

The Court rejects Plaintiffs’ argument that GEICO’s Claims Code of Conduct or its

19

Claims Manual creates a standard of conduct the violation of which presents evidence of

20

unreasonable claims handling. See Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (stating

21

that evidence that claims personnel failed to follow the procedures stated in the Agency’s

22

claims manual was not the same as a failure to follow a regulation; finding that the claims

23

manual had no legal force and did not bind the Agency); Tonnemacher v. Sasak, 155 F.R.D.

24

193, 194 (D. Ariz. 1994) (finding that internal manuals do not define industry standards).

25

The Court finds that any deviation by GEICO claims personnel from the GEICO’s claims

26

code or claims manual is not a per se breach of the duty of good faith. The proper inquiry

27

before this Court is whether the insurer acted unreasonably and either knew or was conscious

28

of the fact that its conduct was unreasonable. See Deese, 172 Ariz. at 507, 838 P.2d at 1268.

- 12 -

1

It is undisputed that the time period between the accident and December 17, 2009,

2

GEICO investigated, processed, and paid $100,000 to the insured based on uninsured

3

motorist coverage for the wrongful death of the Eduardo Mediavilla. (See Claim File, Doc.

4

235-13.) The wrongful death claim was settled for the $100,000 policy limits with $28,333

5

to A.M., $28,333 to V.M., and $28,333 to E.M. (Id. at 24.) In addition, decendent’s mother,

6

Luz Mediavilla, received $7,500, and the father, Eduardo Mediavilla, received $7,501. (Id.)

7

Plaintiffs do not raise bad faith allegations regarding GEICO’s investigation,

8

processing and payment of wrongful death benefits; Plaintiffs allege that GEICO

9

unreasonably handled their claim for NIED injuries arising out of the accident. Plaintiffs

10

raise the following allegations: GEICO personnel never informed Coronel about possible

11

coverages of the policy applicable to the accident regarding claims that she or her children

12

may have; Adjuster Greg Ybarra told Coronel that she had no claim she could make for the

13

accident; that Ybarra was improperly trained; that GEICO wrongfully concluded that Coronel

14

did not have a valid bystander NIED claim; that Don Truitt advised GEICO claims personnel

15

not to inform Coronel of the December 5, 2007 coverage decision; that GEICO claims

16

personnel informed Coronel that A.M. and V.M. had valid bystander NIED claims and that

17

Coronel needed to provide required damages information for evaluation and settlement

18

purposes; that GEICO was estopped from subsequently changing its coverage decision that

19

A.M. and V.M. did not have valid bystander NIED claims; GEICO improperly researched

20

Coronel’s private media in order to conclude that the children were asleep when the accident

21

happened; and that GEICO claims personnel improperly concluded that Coronel had not

22

provided sufficient information about whether the children were asleep when the accident

23

happened. (Doc. 235 at 5-7.)

24

GEICO contends that the evidence offered by Plaintiffs is, at worst, errors in the

25

claims handling process, and at best, components of a reasonable investigation aimed at

26

determining the proper law under which to analyze the claims and the facts of the incident.

27

(Doc. 247 at 8.) GEICO further contends that in light of the disputed facts and the nature of

28

the claim, its actions were reasonable. (Id.) During its evaluation and processing, GEICO

- 13 -

1

argues that it was neither estopped nor waived its opportunity to deny NIED coverage to the

2

Plaintiffs. (Id. at 9-10.)

3

Plaintiffs’ Estoppel/Waiver Arguments

4

The Court first considers Plaintiffs’ estoppel/waiver arguments. At issue is whether

5

GEICO changed its coverage position regarding NIED damages for A.M. and V.M., and if

6

so whether estoppel or waiver apply to its change in position. (Doc. 235 at 4-6, 14.)

7

Assuming that GEICO did change its coverage position, Plaintiffs further argue that such a

8

change was not only subject to estoppel and waiver but was unreasonably taken in bad faith.

9

(Id.)

10

First, as to whether GEICO changed its coverage position during the processing of this

11

claim, Plaintiffs argue that even if GEICO did not expressly inform Coronel of its claims and

12

coverage decisions regarding A.M. and V.M., GEICO’s conduct caused its claim personnel

13

in Arizona to understand that it did not contest the validity of A.M.’s and V.M.’s bystander

14

NIED claims under New York law, and that it only needed sufficient documentation of the

15

children’s injuries to pay and settle their claims. (Doc. 235 at 14.) In further support of

16

GEICO’s change in position, Plaintiffs contend that GEICO directed its attorney handling

17

the settlement of the wrongful death claim to confirm its position regarding A.M.’s and

18

V.M.’s bystander NIED claims to the “Best Interests Attorney” appointed by the court to

19

protect the interests of the minor children. (Doc. 240-1.) Consequently, Plaintiffs contend

20

that GEICO was both estopped from changing its coverage position and that GEICO’s

21

conduct waived its coverage defenses. (Doc. 235 at 15.)

22

Although GEICO maintains that it never definitively informed Coronel that A.M. and

23

V.M were entitled to bystander NIED damages, it nevertheless contends that Plaintiffs have

24

not identified how they were prejudiced by any change in GEICO’s coverage position. (Doc.

25

247 at 9.) GEICO maintains that Plaintiffs cannot establish prejudice because they were still

26

able to bring this lawsuit and argue to the Court that A.M. and V.M have claims for

27

bystander NIED and direct duty NIED. (Id. at 9, (citing Merchants Mut. Ins. Grp. v.

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Travelers Ins. Co., 24 A.D.3d 1179, 1182-83 (N.Y. App. Div. 2005) (stating that under New

- 14 -

1

York law the insured must show the element of prejudice in order to establish a claim of

2

estoppel)).)

3

Regarding waiver, GEICO contends that it does not apply. (Doc. 247 at 9.) Under

4

New York law, waiver “is the voluntary and intentional relinquishment or abandonment of

5

a known existing legal right” with or without any prejudice to the opposing party. (Id.,

6

(citing Waldman v. Cohen, 125 A.D.2d 116, 122 (N.Y. App. Div. 1987)).) GEICO argues

7

that there is no evidence that it intentionally relinquished any right during the course of its

8

processing and evaluation of A.M.’s and V.M.’s NIED claims.

9

The Court has previously held that New York law applies to the contractual aspects

10

of the insurance coverage issues involved in this case. (Doc. 116.) Likewise, New York law

11

also applies to whether GEICO is precluded from asserting coverage defenses regarding

12

Plaintiffs’ breach of contract theory. (Doc. 223-1 at 59.) As to estoppel, the Court agrees

13

with GEICO that even if GEICO changed its coverage position regarding A.M. and V.M.,

14

Plaintiffs cannot establish the required element of prejudice because they were still able to

15

bring this lawsuit and argue to the Court that A.M. and V.M have claims for bystander NIED

16

and direct duty NIED. See Merchants Mut., 24 A.D.3d at 1182-83 (stating that the insured

17

must show the element of prejudice in order to establish a claim of estoppel). Similarly,

18

Plaintiffs cannot establish that GEICO waived its rights because there is no evidence of

19

GEICO intentionally relinquishing any coverage defense during the course of its processing

20

and evaluation of A.M.’s and V.M.’s NIED claims.

21

Absent any application of estoppel or waiver to GEICO’s change in coverage position,

22

the Court further finds that GEICO is not subject to bad faith liability. See Noble, 128 Ariz.

23

at 189, 624 P.2d at 867 (stating that in order to support a claim of bad faith, Arizona law

24

requires plaintiffs to set forth facts which indicate that defendant lacked a reasonable basis

25

for denying plaintiffs’ claims); see also Knoell v. Metropolitan Life Insurance Co., 163 F.

26

Supp.2d 1072, 1076 (D. Ariz. 2001) (stating that insurance companies can challenge claims

27

that are fairly debatable without having acted in bad faith). There is no evidence that GEICO

28

changed its position in bad faith such as, for example, with the intent of willfully interfering

- 15 -

1

with what it believed to be A.M.’s and V.M.’s entitlement to coverage. GEICO took a

2

justifiable position that under New York law, A.M. and V.M were excluded from NIED

3

coverage, and the record reflects no bad faith in GEICO taking this position.

4

Plaintiffs’ Other Bad Faith Allegations

5

As to Plaintiffs’ other allegations of bad faith, on some points, Plaintiffs allege that

6

they were not informed about possible coverage arising out of the accident, and on other

7

points, Plaintiffs acknowledge being informed by GEICO that A.M. and V.M. had possible

8

bystander NIED claims and that Coronel needed to provide required damages information

9

for evaluation and settlement purposes. This is not evidence of bad faith; it is GEICO claims

10

personnel in the midst of evaluating and making a coverage decision regarding A.M.’s and

11

V.M.’s bystander NIED claims. Adjuster Ybarra’s statement to Coronel that she did not have

12

a bystander NIED claim is not evidence of bad faith, as this Court has already found.

13

Next, regarding GEICO’s investigation and evaluation of the A.M.’s and V.M.’s

14

bystander NIED claim, including whether the children were asleep at the time of the

15

accident, the Court has already found in Plaintiffs’ favor that there is no observation

16

requirement for bystander NIED in New York. Whether the children were asleep is not

17

dispositive, as the Court has already ruled.

18

Next, the Court considers GEICO’s delayed 4-year investigation and its mid-stream

19

change in its coverage position. Although GEICO was not legally estopped from changing

20

its coverage position, it is part of the Court’s evaluation as to whether the insurer’s delayed

21

handling of the claim and its change in position constitutes a jury question on the issue of bad

22

faith or whether the Plaintiffs have failed to come forward with sufficient evidence from

23

which reasonable jurors could conclude that GEICO: (1) acted unreasonably; and (2) knew

24

or was conscious of the fact that its conduct was unreasonable.

25

First, the Court finds that GEICO’s delayed 4-year investigation and evaluation could

26

be found unreasonable by a jury. Regardless of the concurrent wrongful death claim and the

27

choice of law issues, such an extended time frame to adjust a claim may be found negligent

28

and objectively unreasonable. See Zilisch, 196 Ariz. at 238, 995 P.2d at 280 (stating that the

- 16 -

1

“carrier has an obligation to immediately conduct an adequate investigation, act reasonably

2

in evaluating the claim, and act promptly in paying [or denying] a legitimate claim). As to

3

whether Plaintiffs have come forward with sufficient evidence from which reasonable jurors

4

could conclude that GEICO knew or was conscious of the fact that its conduct was

5

unreasonable, that issue is a close one and open to a jury determination. Thus, the Court will

6

deny GEICO’s motion for summary judgment on bad faith.

7

III. Punitive Damages

8

GEICO argues that it is entitled to summary judgment as to Plaintiffs’ punitive

9

damages claim because Plaintiffs are unable to establish that it acted with the requisite ill

10

intent to support punitive damages. (Doc. 222 at 14-15.) GEICO contends that its conduct

11

in this case is insufficient for an award of punitive damages. (Id.)

12

Plaintiffs contend that the evidence submitted and discussed strongly supports a jury’s

13

decision that GEICO’s investigation and evaluation of the claim was wrong and that its

14

October 5, 2011 Claim Denial letter misrepresented the evidence in the file. (Doc. 235 at

15

15.) Therefore, GEICO acted to serve its own interests, having reason to know and

16

consciously disregarding a substantial risk that its conduct might significantly injure the

17

rights of others. (Id. at 15-16.)

18

In a bad faith tort case against an insurance company, punitive damages may only be

19

awarded if the evidence reflects “something more” than the conduct necessary to establish

20

the tort. Rawlings v. Apodaca, 151 Ariz. 149, 160, 726 P.2d 565, 576 (1986). In Rawlings,

21

the Arizona Supreme Court explained the parameters of punitive damages as follows:

22

25

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.

26

151 Ariz. at 162, 726 P.2d at 578 (citations omitted). Summary judgment on the issue of

27

punitive damages must be denied if a reasonable jury could find the requisite evil mind by

28

clear and convincing evidence; summary judgment should be granted if no reasonable jury

23
24

- 17 -

1

could find the requisite evil mind by clear and convincing evidence. Thompson v. Better-Bilt

2

Aluminum Prod. Co., 171 Ariz. 550, 558, 832 P.2d 203, 211 (1992). The court construes the

3

evidence and all reasonable inferences drawn from the evidence in a light most favorable to

4

the non-moving party. Id.

5

Even though Plaintiffs point to GEICO’s investigation regarding whether A.M. and

6

V.M. were asleep when the accident happened as if a dispositive issue, the Court has already

7

determined that this issue is largely irrelevant. Therefore, such evidence does not support

8

clear and convincing evidence of evil mind regarding GEICO’s investigation of the claim.

9

Rather, the Court finds that Plaintiffs have failed to come forward with the “something more”

10

evidence that would support an award of punitive damages. Therefore, the Court will grant

11

GEICO’s motion for summary judgment on the issue of punitive damages.

12

IV. GEICO’s Motion to Seal

13

GEICO moves the Court to seal Exhibits 16, 17, and 18, which are now lodged with

14

the Court under seal. (Doc. 252.) Originally, GEICO produced these documents to Plaintiffs

15

as confidential documents subject to a Protective Order. Plaintiffs sought to file them under

16

seal as part of their Separate Statement of Facts in Support of their Response to Defendant’s

17

Motion for Summary Judgment. (Doc. 234.) The Court denied Plaintiffs’ motion without

18

prejudice because they had not followed the District’s Local Rules for filing documents

19

under seal. (Doc. 249.) The Court reiterated that a party seeking to seal documents attached

20

to a dispositive motion “must ‘articulate compelling reasons supported by specific factual

21

findings’” that are sufficient to outweigh the “strong presumption in favor of [public] access”

22

to court documents. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178-79 (9th

23

Cir. 2006) (alteration omitted) (quoting Folz v. State Farm Mut. Auto. Ins. Co., 331 F.3d

24

1122, 1135 (9th Cir. 2003).

25

GEICO moves to seal the documents as proprietary information that is a trade secret.

26

(Doc. 252.) The documents at issue are its Claim Manual (Ex. 16), its Code of Conduct (Ex.

27

17), and the deposition of its expert, Tony Cannon, in which he references the protected

28

materials (Ex. 18). (Id.) In support, GEICO states that these documents are the means by

- 18 -

1

which it adjusts its files, and constitutes an office management procedure that is confidential.

2

GEICO further states that the insurance industry is very competitive and that these materials

3

are the key to its business and the method by which it delivers competitive customer service

4

to its customers. (Id.) If such information is revealed to the public, GEICO claims it will lose

5

its claim to trade secret status in future matters, some of which may be

6

commercial/contractual and unrelated to this case or other bad faith claims. (Id.)

7

The Court finds that GEICO has articulated compelling reasons supported by specific

8

factual findings that are sufficient to outweigh the strong presumption in favor of public

9

access to court documents. GEICO’s motion to seal will be granted.

10

CONCLUSION

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Accordingly, on the basis of the foregoing,

12

IT IS HEREBY ORDERED granting GEICO’s motion for summary judgment

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14
15

regarding breach of contract and punitive damages. (Doc. 222.)
IT IS FURTHER ORDERED denying GEICO’s motion for summary judgment
regarding insurance bad faith. (Doc. 222.)

16

IT IS FURTHER ORDERED granting GEICO’s motion to seal. (Doc. 252.) The

17

Clerk of Court shall file under seal Doc. 251, Exhibits 16, 17, and 18, that were lodged under

18

seal in Plaintiffs’ Response to GEICO’s motion for summary judgment.

19
20

IT IS FURTHER ORDERED that by Friday, October 16, 2015, GEICO shall file
on the public record a redacted version of Exhibit 18.

21

IT IS FURTHER ORDERED setting the Final Pretrial Conference for Monday,

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December 7, 2015, at 2:00 p.m. in Courtroom 401, on the fourth floor of the Sandra Day

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O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. The

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attorneys who will be responsible for the trial of the case shall attend the Final Pretrial

25

Conference. Counsel shall bring their calendars so that trial scheduling can be discussed.

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IT IS FURTHER ORDERED that, if this case shall be tried to a jury, the attorneys

27

who will be responsible for the trial of the lawsuit shall prepare and sign a joint Proposed

28

Pretrial Order and file it by Friday, November 20, 2015.

- 19 -

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IT IS FURTHER ORDERED that the content of the Proposed Pretrial Order shall

2

include, but not be limited to, that prescribed in the Form of Pretrial Order attached hereto.

3

Statements made shall not be in the form of a question, but should be a concise narrative

4

statement of each party’s contention as to each uncontested and contested issue. The parties

5

shall also email the joint Proposed Pretrial Order to the Chambers mailbox at

6

[e-mail] in either Word Perfect or Word format.

7

IT IS FURTHER ORDERED pursuant to Federal Rule of Civil Procedure 37(c) that

8

the Court will not allow the parties to offer any exhibits, witnesses, or other information that

9

were not previously disclosed in accordance with the provisions of this Order and/or the

10

Federal Rules of Civil Procedure and/or not listed in the Proposed Pretrial Order, except for

11

good cause.

12

IT IS FURTHER ORDERED directing the parties to exchange drafts of the

13

Proposed Pretrial Order no later than seven (7) days before the submission deadline. In

14

addition, the parties shall exchange marked copies of all exhibits to be used at trial. While

15

meeting to exchange exhibits, the parties shall eliminate any duplicate exhibits. The

16

numbering of the exhibits as listed in the joint Proposed Pretrial Order shall correspond to

17

the numbering of the exhibits at trial.

18

IT IS FURTHER ORDERED that the parties shall file and serve all motions in

19

limine no later than Friday, October 30, 2015. Responses to motions in limine are due

20

Friday, November 13, 2015. The motions and responses must be concise and shall not

21

exceed three (3) pages in length. No replies will be permitted. Each motion in limine shall

22

include the legal basis supporting it and the proposed language for the order in limine being

23

sought from the Court. Counsel shall be prepared to address the merits of all motions in

24

limine at the Final Pretrial Conference.

25

IT IS FURTHER ORDERED directing the parties to complete the following tasks

26

by the time of the filing of the Proposed Pretrial Order if they intend to try the case before

27

a jury:

28

(1)

The parties shall jointly file a short description of the case to be read to the

- 20 -

1

jury.

2

(2)

3

questions shall be drafted in a neutral manner. To the extent possible, the parties shall

4

stipulate to the proposed voir dire questions. If the parties have any disagreement

5

about a particular question, the party or parties objecting shall state the reason for

6

their objection below the question.

7

(3)

8

instructions shall be accompanied by citations to legal authority. If a party believes

9

that a proposed instruction is a correct statement of the law, but the facts will not

10

warrant the giving of the instructions, the party shall so state. The party who believes

11

that the facts will not warrant the particular instruction shall provide an alternative

12

instruction with appropriate citations to legal authority.

13

(4)

14

the end of the trial.

15

IT IS FURTHER ORDERED directing the parties to submit their proposed joint

16

statement of the case, joint voir dire questions and stipulated jury instructions in .pdf format,

17

and their proposed form of verdict in Word Perfect or Word format to the Chambers mailbox,

18

at [e-mail].

The parties shall jointly file a proposed set of voir dire questions. The voir dire

The parties shall file a proposed set of stipulated jury instructions. The

Each party shall submit a proposed form of verdict to be given to the jury at

19

IT IS FURTHER ORDERED that if the case will be tried to the Court, rather than

20

to a jury, instead of filing a Proposed Pretrial Order, each party shall submit proposed

21

findings of fact and conclusions of law by the same date that the Proposed Pretrial Order is

22

due.

23

IT IS FURTHER ORDERED that the parties shall keep the Court apprised of the

24

possibility of settlement and should settlement be reached, the parties shall file a Notice of

25

Settlement.

26

IT IS FURTHER ORDERED that this Court views compliance with the provisions

27

of this Order as critical to its case management responsibilities and the responsibilities of the

28

///

- 21 -

1
2

parties under Rule 1 of the Federal Rules of Civil Procedure.
DATED this 24th day of September, 2015.

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- 22 -

1
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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 PRETRIAL FORM
OF ORDER

15
16

Pursuant to the Scheduling Order, the following is the joint Proposed Pretrial Order

17

to be considered at the Final Pretrial Conference set for ________________________ at

18

_________ before Judge McNamee.

19

A. TRIAL COUNSEL FOR THE PARTIES.

20

(Include mailing address, office phone, fax number, and email address).

21

Plaintiff(s):

22

Defendant(s):

23

B. STATEMENT OF JURISDICTION/VENUE.

24

Cite the statute(s) or rule(s) which gives this Court jurisdiction and venue.

25

(e.g., Jurisdiction in this case is based on diversity of citizenship under Title 28

26

U.S.C. § 1332.)

27
28

C. NATURE OF ACTION.
Provide a concise statement (no more than one page) of the type of case, the

1

cause of the action, and the relief sought.

2

(e.g., - This is a products liability case wherein the plaintiff seeks damages for

3

personal injuries sustained when he fell from the driver’s seat of a forklift. The

4

plaintiff contends that the forklift was defectively designed and manufactured by

5

the defendant and that the defects were a producing cause of his injuries and

6

damages.)

7

D. CONTENTIONS OF THE PARTIES.

8

With respect to each count of the complaint, counterclaim or cross-claim, and to

9

any defense, affirmative defense, or the rebuttal of a presumption where the

10

burden of proof has shifted, the party having the burden of proof shall list the

11

elements or standards that must be proved in order for the party to prevail on that

12

claim or defense. Citation to relevant legal authority is required.

13

(e.g., To prevail on this products liability case, the plaintiff must prove the

14

following elements . . . .)

15

(e.g., To defeat this products liability claim based on the statute of repose, the

16

defendant must prove the following elements . . . .)

17

E. STIPULATIONS AND UNDISPUTED FACTS AND LAW.

18

1. The following facts are admitted by the parties and require no proof:

19

2. The following facts, although not admitted, will not be contested at trial by

20

evidence to the contrary:

21

3. The following issues of law are uncontested and stipulated to by the parties:

22

F. CONTESTED ISSUES OF FACT.

23

The following are the issues of fact to be tried and decided: (Each issue of fact

24

must be stated separately and in specific terms. Each parties’ contention as to

25

each issue must be set forth with respect to each and every issue of fact).

26

E.g., Issue # 1: Whether Plaintiff used due care.

27

Plaintiff Contends: Plaintiff looked both ways before stepping into the street ...

28

Defendant Contends: Plaintiff was chasing a ball and darted out into the street
-2-

1
2

without looking . . .
G. ISSUES OF LAW IN CONTROVERSY.

3

List briefly any points of law (substantive, evidentiary, or procedural) concerning

4

the measure and kind of relief requested that is or may be reasonably expected

5

to be in controversy.

6

H. LIST OF WITNESSES.

7

Provide a separate list for each party of all witnesses whom the party will call or

8

may call in person or through deposition, except witnesses who may be called

9

only for impeachment or rebuttal. A brief statement as to the testimony of each

10

witness must also be included. Additionally, the parties shall designate which

11

witnesses (1) will be called at trial, (2) may be called at trial, and (3) are unlikely

12

to be called at trial. If any additional witnesses come to the attention of counsel

13

prior to the trial, a supplemental list and summary must be prepared and filed

14

with the Court. This supplemental list must include the reason why the witness’

15

name was not set forth in the Proposed Pretrial Order. If a witness will appear

16

by deposition only, the party calling the witness will give notice of the pages to

17

be read on the date the Proposed Pretrial Order is filed with the Court. (Do not

18

include deposition pages in the Proposed Pretrial Order.)

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I.

LIST OF EXHIBITS.

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1. The following exhibits are admissible in evidence and may be marked in

21

evidence by the Clerk:

22

a. Plaintiff’s Exhibits:

23

b. Defendant’s Exhibits:

24

2. As to the following exhibits, the parties have reached the following

25

stipulations:

26

a. Plaintiff’s Exhibits:

27

b. Defendant’s Exhibits:

28

3. As to the following exhibits, the party against whom the exhibit is to be
-3-

1

offered objects to the admission of the exhibit and offers the objection stated

2

beneath:

3

a. Plaintiff’s Exhibits:

4

(E.g., City Hospital records of Plaintiff from March 6, 1985 through March 22,

5

1985. Defendant objects for lack of foundation because . . . . (the objection must

6

specify why there is a lack of foundation)).

7

b. Defendant’s Exhibits:

8

(E.g., Payroll records of Plaintiff’s employer which evidences payment of

9

Plaintiff’s salary during hospitalization and recovery. Plaintiff objects on the

10

ground of relevance and materiality because (the objection must specify why

11

there is a relevancy or materiality problem)).

12

J.

13

K. JURY DEMAND.

PROBABLE LENGTH OF TRIAL.

14

State whether any party has demanded a jury trial of all or any of the issues and,

15

if so, whether each adversary accepts or contests the demand for jury trial.

16

For a Bench Trial

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1. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

18

shall be filed and served by each party in accordance with the instructions

19

contained in the Order Setting Final Pretrial Conference.
For a Jury Trial

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21

2. STIPULATED JURY INSTRUCTIONS, PROPOSED VOIR DIRE

22

QUESTIONS, AND PROPOSED FORMS OF VERDICT shall be filed in

23

accordance with the instructions contained in the Order Setting Final Pretrial

24

Conference.

25

M. CERTIFICATIONS. The undersigned counsel for each of the parties in this

26

action do hereby certify and acknowledge the following:

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1. All discovery has been completed.

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2. The identity of each witness has been disclosed to opposing counsel.
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3. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been

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disclosed and shown to opposing counsel.

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4. The parties have complied in all respects with the mandates of the Court’s Rule

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16 Order and Order Setting Final Pretrial Conference.

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5. Unless otherwise previously ordered to the contrary, the parties have made all

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of the disclosures required by the Federal Rules of Civil Procedure.

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APPROVED AS TO FORM AND CONTENT:

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__________________________________ _________________________________
Attorney for Plaintiff
Attorney for Defendant

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Based on the foregoing,
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IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties
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is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court.
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DATED this ______ day of __________, ____.
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____________________________
Stephen M. McNamee
Senior United States District Judge

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