Sempra Energy v. Marsh United States, Inc. , 390 F. App'x 754 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SEMPRA ENERGY, Nos. 09-55022, 09-55290
Plaintiff-Appellee and Cross- D.C. No. 2:07 CV-5431-SJO (SS)
Appellant,
v. MEMORANDUM *
MARSH USA, INC.,
Defendant-Appellant and
Cross-Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted June 8, 2010
Pasadena, California
Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, **
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
Marsh USA, Inc. (“Marsh”) appeals from a final judgment entered in favor
of Sempra Energy (“Sempra”) after a jury issued a verdict in Sempra’s favor and
awarded damages. We affirm.
First, the district court properly submitted the statute of limitations issue to
the jury, and the jury’s conclusion that Marsh did not prove its statute of
limitations defense was not against the overwhelming weight of the evidence at
trial. A reasonable juror could have concluded that a reasonable person in
Sempra’s position would have understood that even a “gold standard” policy could
not cover all potential losses. A reasonable juror reaching that conclusion could
have similarly found that a reasonable person in Sempra’s position, reading the
statement of defense with that understanding in mind, would not have discovered
that Marsh’s negligence may have been a cause of Sempra’s injury. See Cal. Civ.
Proc. Code § 339, subd. 1; Jolly v. Eli Lilly & Co., 751 P.2d 923, 927 (Cal. 1988);
see also Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc., 10 Cal.
Rptr. 3d 582, 597-98 (Cal. Ct. App. 2004); Butcher v. Truck Ins. Exch., 92 Cal.
Rptr. 2d 521, 541-42 (Cal. Ct. App. 2000).
Second, the district court did not err in allowing Sempra to advance an
alternative theory of causation. The arbitration panel’s ruling left open the
possibility that Sempra’s losses had more than one cause, and the district court
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barred Sempra from disputing the cause that the panel had identified. Moreover, as
Marsh concedes, Sempra informed Marsh that it wanted the broadest coverage
possible.
Third, the district court did not abuse its discretion in its evidentiary rulings
related to the availability of alternative coverage. The district court did not abuse
its discretion in admitting the expert testimony of Winifred Baker. See Fed. R.
Evid. 702. The district court also did not abuse its discretion in concluding that
Marsh’s failure to timely designate Miles Wright was not substantially justified
and that Sempra would suffer harm from the late disclosure. See Fed. R. Civ. P.
37. With respect to Gustavo de Lucio, the district court did not abuse its discretion
in concluding that Marsh adopted his statements, Fed. R. Evid. 801(d)(2)(B), or in
limiting his lay witness testimony, Fed. R. Evid. 701. Substantial evidence
supported the jury’s finding that Marsh could have obtained alternative coverage
for Sempra.
Fourth, although the district court may have erred in instructing the jury as
to the elements of breach of contract, see US Ecology, Inc. v. State, 28 Cal. Rptr.
3d 894, 910 (Cal. Ct. App. 2005), Marsh did not submit a proper instruction or
clearly identify the error to the court, and therefore the court did not abuse its
discretion in refusing to give the instruction that Marsh requested. Voohries-
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Larson v. Cessna Aircraft Co., 241 F.3d 707, 714 (9th Cir. 2001); Glover v. BIC
Corp., 6 F.3d 1318, 1327 (9th Cir. 1993). Moreover, any error was harmless. See
Counts v. Burlington N. R.R. Co., 952 F.2d 1136, 1140 (9th Cir. 1991).
For the foregoing reasons, we AFFIRM the judgment of the district court.
We therefore dismiss Sempra’s cross-appeal as moot. See Golden W. Refining Co.
v. SunTrust Bank, 538 F.3d 1233, 1243 (9th Cir. 2008); Abromson v. Am. Pac.
Corp., 114 F.3d 898, 904 (9th Cir. 1997).
AFFIRMED in 09-55022
DISMISSED as moot in 09-55290
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