A party here pays the price for skirting the rules in what it probably thought was a clever way.
The defendants filed a Notice of Non-Parties at fault that was broad, vague, and that had the effect of hiding their defense rather than disclosing it. The trial court struck the defense and entered summary judgment for the plaintiff.
Cendejas negligently started a fire that burned down the house of Scottsdale’s insured. Scottsdale, after paying the claim, sued Cendejas. Cendejas named, as non-parties at fault, a contractor “to the extent that it performed any work . . . which may have caused or contributed to the fire,” “any subcontractor” on the same basis, and “any building inspector” “to the extent that . . .[inspection’] failed to determine [sic] an inappropriately installed building component to the extent such components are determined to have caused or contributed to the fire.”
After the deadline for non-party-at-fault notices had expired, defendant’s expert (Joe Sesniak – a crackerjack witness, by the way) opined that the fire spread because the attic installation had been installed backwards. Sesniak had done his investigation – and had presumably come to this conclusion – years before. This had not been disclosed, so the court granted Scottsdale’s motion to strike it.
Rule 26(b)(5) requires that the notice “provide the identity, location, and the facts supporting the claimed liability” of the no-party at fault. Although not entirely grammatical, the rule is pretty clear.
The justifications that the defense tried to offer for its Notice mirror those that lawyers presumably have in their minds when they file such things. The court pointed out what should go without saying but obviously doesn’t. No, the notice isn’t good enough simply because it does describe, more or less, what turns out later to the be defense. No, it isn’t good enough because the other side could eventually have found the defense by doing discovery into all the people and subcontractors who “may have contributed” to the fire because of a problem with some “building component.” No, the non-party-at-fault statute doesn’t give you the absolute right to point the finger at somebody else whether you obey the procedural rules or not.
The court does indicate, as prior cases have held, that late notice because of justifiable late discovery of the non-party defense may be allowable.
The court decided that the trial judge had calculated pre-judgment interest from the wrong date and remanded for recalculation. The case will still cost the defendant’s carrier nearly $100,000 more than the original claim.
It would be nice to think that this opinion will stop the practice of filing ambiguous, obscure, catch-all non-party notices. But we know too many lawyers who aren’t that nice.