Plaintiff Evans & Sutherland (“E&S”) hired subcontractors Bowen Products, Inc. (“Bowen”) and Spitz, Inc. (“Spitz”) to perform work on a construction project. E&S later accused Bowen of causing damage during construction. Before litigation, Bowen hired expert Marc Sokol to investigate. He prepared a report in May 2009 opining that the damage was caused by Spitz. When E&S sued Bowen in July 2010, Bowen disclosed the May 2009 Sokol report with its initial disclosure statement. Shortly after that, Bowen filed a Notice of Non-Parties at Fault (“Notice”) identifying Spitz, but only cursorily describing the basis for Spitz’s liability. In September 2011, Bowen disclosed a supplemental report from Sokol and a report from another expert that further explained the basis for Spitz’s liability. In May 2012, E&S moved to strike Bowen’s Notice because it failed to disclose the factual basis of Spitz’s putative liability. The trial court granted the motion, and Bowen petitioned for special action relief.
The ArizonaAppeals Court accepted special action jurisdiction because the petition raised a purely legal question concerning the application of the Arizona Rules of Civil Procedure. The Court granted relief, finding that the trial court abused its discretion because it misinterpreted Ariz. R. Civ. P. 26(b)(5). That rule requires a party designing a nonparty at fault to provide the identity of the nonparty, its location, and the facts supporting the alleged liability. Although Bowen’s Notice itself did not disclose the basis for Spitz’s liability, Rule 26(b)(5) does not require notices to be read in a vacuum. Rather, the rule requires that notices be read with a party’s timely disclosures. The 1989 comment to the rule explains that the full universe of facts relating to a nonparty’s fault may not be available as early as the notice deadline, and thus a notice may be supplemented like other discovery. In this case, the Court held that Bowen’s Notice was valid as a matter of law because it identified Spitz, and Bowen’s other disclosures – both before and after the Notice was filed – contained specific facts that adequately put E&S on notice of Bowen’s theory.
The Court rejected E&S’s argument that Scottsdale Ins. Co. v. Cendejas, 220 Ariz. 281, 205 P.3d 1128 (App. 2009), compelled a different result, explaining that Cendejas involved a disclosure that was just as vague as the notice of nonparty at fault in that case (unlike the disclosures here).
Acting Presiding Judge Swann authored the opinion; Chief Judge Winthrop and Judge Thumma concurred.
Posted by: Sharad H. Desai