AMCO Insurance Company v. Eureka Oxygen Company

Filing 129

ORDER DENYING AMCO'S MOTION TO EXCLUDE EUREKA'S AFFIRMATIVE DEFENSE OF CONTRIBUTORY NEGLIGENCE 111 . Signed by Judge Nathanael M. Cousins on 5/7/12. (nclc1, COURT STAFF) (Filed on 5/7/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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AMCO INSURANCE COMPANY,

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Plaintiff,
v.

Case No. 10-cv-01257 NC
ORDER DENYING AMCO’S MOTION TO
EXCLUDE EUREKA’S AFFIRMATIVE
DEFENSE OF CONTRIBUTORY
NEGLIGENCE

EUREKA OXYGEN COMPANY,
Re: Dkt. No. 111
Defendant.
Jury Trial: May 7, 2012

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AMCO moves to preclude Eureka from asserting at trial a defense of contributory

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negligence with respect to AMCO and from amending Eureka’s response to interrogatory 22, as

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the defense allegedly is untimely and Eureka’s discovery responses allegedly contain no facts to

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support the defense. Eureka opposes the motion, arguing that the motion is untimely and that

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fairness requires that Eureka be allowed to explore whether the owners of the building destroyed

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by the fire were negligent in maintaining the building. Eureka adds that it does not seek to amend

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its response to interrogatory 22. Because AMCO does not establish a basis for excluding

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Eureka’s contributory-negligence defense, and because Eureka does not seek to amend its

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response to interrogatory 22, AMCO’s motion is DENIED in its entirety.

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First, AMCO argues that Eureka’s assertion of a contributory-negligence defense is
untimely, because the “the first mention of [Eureka’s] contention concerning contributory
Case No. 10-cv-01257 NC
ORDER DENYING MOTION
TO EXCLUDE AFF. DEFENSE

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negligence” allegedly was made in the parties’ joint pretrial statement, which was filed on April

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25, 2012. AMCO’s Reply at 1, Dkt. No. 120. AMCO attaches to its reply Eureka’s interrogatory

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responses with respect to Eureka’s affirmative defenses. Id., Ex. A. Eureka’s response to

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interrogatory 10 shows that Eureka’s sixth affirmative defense is based on a contributory-

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negligence theory. Id. at 8 (“Plaintiffs were themselves negligent and careless in and about the

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matters complained of and such negligence and carelessness caused and/or contributed to

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plaintiffs’ claimed injuries and damages, if any. Plaintiffs’ recovery should be reduced by the

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percentage of fault attributable to plaintiffs.”). During oral argument on May 7, 2012, both

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parties stated that Eureka served its interrogatory responses early in the case in 2010. For this

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reason, the Court is unconvinced that AMCO first became aware of Eureka’s contributory-

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negligence defense when the parties filed their joint pretrial statement.

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Second, AMCO argues that Eureka’s contributory-negligence defense should be excluded

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because AMCO is “unaware of any facts upon which defendant Eureka bases its claim of

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contributory negligence.” AMCO’s Reply at 2. During oral argument on May 7, AMCO argued

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that Eureka’s response to interrogatory 10 shows that Eureka has failed to disclose the factual

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support for its contributory-negligence defense, because the only fact contained in that response is

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that “[Eureka] believes that the building does not have automatic sprinklers.” AMCO’s Reply,

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Ex. A at 8. AMCO also contended that it assumed that Eureka would amend its response to

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interrogatory 10 once Eureka obtained more facts to support its contributory-negligence defense,

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but Eureka never amended it.

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This argument also is unconvincing because Eureka satisfied its duties under Federal Rule

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of Civil Procedure 26(e), as Eureka claimed during oral argument that any additional facts

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supporting its contributory-negligence defense were disclosed to all parties during the discovery

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process. See FED. R. CIV. P. 26(e) (requiring a party who has responded to an interrogatory,

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request for production, or request for admission to supplement or correct its response in a timely

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manner if that party learns that in some material respect the response is incomplete or incorrect,

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and if the additional or corrective information has not otherwise been made known to the other

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parties during the discovery process or in writing; or as ordered by the court) (emphasis added).
Case No. 10-cv-01257 NC
ORDER DENYING MOTION
TO EXCLUDE AFF. DEFENSE

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Moreover, if AMCO needed further clarification with respect to the factual support for any of

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Eureka’s affirmative defenses, AMCO could have brought a motion in limine, but it did not do so.

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Accordingly, AMCO’s motion to preclude Eureka from asserting a defense of

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contributory negligence is DENIED. Eureka, however, must amend its response to interrogatory

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10 by today at 5:00 p.m. to include all facts on which it will base its contributory-negligence

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defense. Eureka must lodge a copy of its amended response with the Court.

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IT IS SO ORDERED.
Date: May 7, 2012

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_____________________
Nathanael M. Cousins
United States Magistrate Judge

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Case No. 10-cv-01257 NC
ORDER DENYING MOTION
TO EXCLUDE AFF. DEFENSE

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