Noguero v. American Family
1 CA-CV 15-0364
| Ariz. Ct. App. | Oct 20, 2016Background
- After 2008 and 2010 storms, plaintiff Elena Noguero repeatedly reported water damage; her insurer, American Family, inspected and denied coverage finding damage not storm-related.
- Noguero sued in 2011 for breach of contract and breach of the covenant of good faith and fair dealing, alleging delayed/insufficient adjustment and consequential mold and business inventory losses.
- Court scheduling order set non‑expert disclosure deadline; Noguero disclosed a neighbor witness late (Nov. 21, 2013); American Family moved to preclude the witness and the court granted the motion.
- At trial the court admitted: (1) construction‑expert’s report and photographs (expert relied on photos taken by an assistant); (2) limited lay testimony from an industrial hygienist about observed staining (not causation); and (3) testimony from an American Family claims manager about his decision to deny coverage. The court excluded post‑move lease agreements as hearsay.
- The jury found for American Family on all counts. Noguero filed a post‑verdict “judgment notwithstanding the verdict” motion; the court denied it. Noguero appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusion of late‑disclosed neighbor witness | Late disclosure was harmless or excusable; exclusion unfairly prejudiced Noguero | Disclosure violated scheduling order; Noguero didn't seek leave or show good cause | Trial court did not abuse discretion in excluding witness for untimely disclosure under Rule 26.1/37(c)(2) |
| Admission of photos via construction expert who didn’t take them | Photos lacked foundation because expert neither took photos nor inspected house | Expert relied on assistant’s photos and authenticated them sufficiently; Rule 703 permits reliance evidence | Admission proper: expert gave adequate foundation and photos were admissible to show basis of expert opinion |
| Lay testimony on causation / duplicative expert testimony | Hygienist/manager impermissibly opined on ultimate causation and duplicated expert testimony | Testimony was lay opinion based on perception or was testimony about claim decision, not technical causation requiring expert | Court properly limited testimony; lay opinions allowed under Rule 701 and did not violate expert‑disclosure rules |
| Post‑verdict motion for judgment as a matter of law | Post‑verdict motion should be treated as Rule 59 new‑trial motion (preserved) | Noguero failed to move for judgment as a matter of law before submission and thus waived JML; she also failed to seek new trial properly | Denial affirmed: Noguero waived Rule 50(a) JML by not moving pre‑verdict and did not preserve sufficiency arguments under Rule 59 |
Key Cases Cited
- Brown v. U.S. Fidelity and Guar. Co., 194 Ariz. 85 (trial court has wide discretion on evidentiary rulings)
- Jaynes v. McConnell, 238 Ariz. 211 (appellate review of evidentiary rulings and prejudice standard)
- State v. Woody, 173 Ariz. 561 (definition of abuse of discretion)
- Allstate Ins. Co. v. O’Toole, 182 Ariz. 284 (factors for evaluating good cause/prejudice for late disclosures)
- Zimmerman v. Shakman, 204 Ariz. 231 (trial court latitude on late disclosure sanctions)
- Lohmeier v. Hammer, 214 Ariz. 57 (foundation/authentication for photographs and role of expert testimony)
- Rimondi v. Briggs, 124 Ariz. 561 (distinguishing lay observations from expert causation testimony)
- John Munic Ents., Inc. v. Laos, 235 Ariz. 12 (foundation required for testimony about another’s property/conditions)
- Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6 (directed verdict/JML preservation principles)
- Dawson v. Withycombe, 216 Ariz. 84 (prejudice and preservation: post‑verdict sufficiency arguments require prior directed‑verdict motion)