Scottsdale Insurance v. Cendejas

205 P.3d 1128, 220 Ariz. 281, 551 Ariz. Adv. Rep. 17, 2009 Ariz. App. LEXIS 26
CourtCourt of Appeals of Arizona
DecidedMarch 3, 2009
Docket1 CA-CV 08-0001
StatusPublished
Cited by18 cases

This text of 205 P.3d 1128 (Scottsdale Insurance v. Cendejas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scottsdale Insurance v. Cendejas, 205 P.3d 1128, 220 Ariz. 281, 551 Ariz. Adv. Rep. 17, 2009 Ariz. App. LEXIS 26 (Ark. Ct. App. 2009).

Opinion

OPINION

WEISBERG, Judge.

¶ 1 Anthony Cendejas, Pamela Sue Cende-jas, and Topa, Inc. (collectively “Appellants”) appeal from the superior court’s grant of summary judgment to Scottsdale Insurance Company (“SIC”) after the court found that Appellants had not timely complied with the requirements of Arizona Rule of Civil Procedure Rule 26(b)(5) regarding their notice of nonparty at fault. Appellants also challenge the court’s calculation of prejudgment interest. For the reasons that follow, we affirm the ruling regarding the notice of a nonparty at fault and thus SIC’s entitlement to summary judgment, but we reverse the ruling with respect to the date that prejudgment interest began to accrue. We remand for recalculation of interest.

BACKGROUND

¶ 2 On June 23, 2003, as Anthony Cendejas was sawing into a wall in the home of Todd Andrews, he struck something that caused a spark and a resulting fire. Andrews’ home and personal property suffered extensive damage. Andrews’ insurer, SIC, paid Andrews $256,500, based upon the $259,000 policy limit less a $2,500 deductible.

¶ 3 On February 18, 2004, SIC demanded reimbursement of $259,000 from Appellants’ insurer, Auto Owners Insurance Company (“Auto Owners”). Auto Owners’ adjuster, Bruce Thomson, calculated that it owed only $218,702.45 and refused to pay any more than that amount. 1

¶ 4 On January 7, 2005, SIC filed suit against Appellants, for “no less than $259,000,” plus prejudgment interest. Appellants answered on November 14, 2005, which set the 150-day deadline for filing their notice of nonparty at fault on April 13, 2006. 2

*284 ¶ 5 On February 2, 2006, Appellants filed a Notice of Non-Party at Fault. The notice included the following:

Oxley Construction Company, L.L.C.
To the extent that the above named entity performed any work on the subject property as part of the original construction of the subject property in such a way as to cause or contribute to the condition of the subject property, if any, which may have caused or contributed to the fire at the subject property, Defendants herein name this entity as a non-party at fault.
2. Any subcontractor retained by Oxley Construction, not named specifically herein, revealed through discovery, who performed any work on the subject property as part of the original construction of the subject property in such a way as to cause or contribute to the condition of the subject property, if any, which may have caused or contributed to the fire at the subject property, Defendants reserve the right to name these entities as a non-party at fault.
3. Building Inspector
Mohave County Planning & Zoning Department
Any building inspector; not specifically named herein, who inspected the original construction to the extent that such inspection failed to determine an inappropriately installed building component to the extent such components are determined to have caused or contributed to the fire at the subject property giving rise to this claim, Defendants herein named |siej these indi-viduales) as a non-party at fault.

(Emphasis added.)

¶ 6 On June 28, 2006, the parties deposed Appellants’ expert, Joe Sesniak, who testified that the attic insulation in Andrews’ home had been installed backwards, which “rapidly accelerated” the fire’s development. If the insulation had been installed correctly, he opined, the fire would have been much more contained.

¶ 7 On July 11, 2006, SIC asked the court to set new pretrial deadlines and a new, later trial date. SIC cited discovery delays and explained that “[wjithin the past few weeks, one of the defense 'witnesses was deposed and suggested a completely new defense that ivas previously not known to Plaintiff.’’ (Emphasis added.) The court granted a continuance.

¶ 8 Soon after, SIC filed a motion asking the court to find that Appellants had failed to properly or timely designate nonparties at fault. It argued that the February 2006 notice failed to reveal a factual basis indicating how any of the designated parties caused or contributed to the fire or resulting damage. SIC also asserted that Appellants had disclosed for the first time at Sesniak’s deposition a defense of improper insulation installation. SIC pointed out that the disclosure came after SIC had completed its examination and during examination by Appellants’ counsel, suggesting that Appellants had prior knowledge of the defense. SIC further argued that Sesniak had completed his investigation in July 2003 so that Appellants had had ample time to develop and disclose the defense. Finally, SIC noted that Appellants still had not identified an allegedly negligent insulation installer.

¶ 9 Appellants responded that the notice of nonparties was sufficient to inform SIC that other potential parties may have contributed to the loss. They also argued that, given the continuance, SIC had sufficient time before trial to address the potential liability of a nonparty.

¶ 10 The court granted SIC’s motion to strike the notice of nonparties at fault. Ap *285 pellants moved for reconsideration, but the court declined to do so.

¶ 11 SIC then moved for summary judgment, seeking $259,000 plus prejudgment interest. Appellants responded that a question of fact existed as to the fire’s cause because even if Anthony had started the fire, the improperly installed insulation had allowed it to spread and cause much greater damage. Appellants contended that the improperly installed insulation thereby constituted an intervening, superseding cause of the damages.

¶ 12 The court granted SIC’s motion for summary judgment. It reasoned that even if it accepted the proposition that the insulation had been installed backwards, that error was not “an independent supervening cause of the fire.” Rather, “two parties Lcould be] liable for causing the same damages.” Furthermore, if Appellants’ Notice of Nonparty at Fault had been timely, a jury could have apportioned liability between the parties. But because the notice was untimely, if the case went to trial, the court would not allow Appellants to introduce evidence about the insulation “because that would be pointing to a nonparty at fault” who was not in the case. Thus, there was no need for a trial, and no facts were in dispute once the nonparty at fault had been eliminated.

¶ 13 SIC also sought an award of sanctions under Arizona Rule of Civil Procedure 68 for the expert witness fees it had incurred, double taxable costs, and prejudgment interest on the liquidated amount of $259,000 from February 18, 2004, the date of SIC’s demand letter to Auto Owners. Appellants objected to the imposition of prejudgment interest because the demand letter did not itemize the claim, was directed only to the insurance carrier, and sought damages that were unliq-uidated. Appellants also argued that SIC had improperly asked for costs related to Mike Scutt, who was not one of SIC’s listed experts.

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Cite This Page — Counsel Stack

Bluebook (online)
205 P.3d 1128, 220 Ariz. 281, 551 Ariz. Adv. Rep. 17, 2009 Ariz. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scottsdale-insurance-v-cendejas-arizctapp-2009.