Free Supplement - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Leslie Kresin (#010033) Offidani & Kresin, P.C. 11120 N. Tatum Blvd., Ste. 101 Phoenix, Arizona 85028 Telephone: (480) 922-8145 Facsimile: (480) 922-9830 E-Mail: [email protected] Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Rose O'Connell, Plaintiff, vs. J.C. Penney Life Insurance Company, a Stock Company, Defendant. (Assigned to the Honorable Susan R. Bolton) NO. CIV 02-0378 PHX-SRB Defendant's Supplemental Authority in Support of its Motion for Summary Judgment

In connection with the court's consideration of the Defendant's Motion for Summary Judgment ("MSJ") dated January 17, 2003, the defendant submits, as supplemental authority, the case cited below. In light of the decisions issued by the dissenting Ninth Circuit Justice and by this court, the defendant submits that the following case is relevant to this court's consideration of whether summary judgment is appropriate on the plaintiff's bad faith claim. (an argument addressed in the MSJ at pp. 9-11, Legal Argument III, Summary Judgment is Appropriate on the Bad Faith Claim): In Aetna Cas. & Surety v. Superior Court, 161 Ariz. 437, 440, 778 P.2d 1333, 1336 (App. 1989), the court held:

Case 2:02-cv-00378-SRB

Document 75 -1-Filed 09/21/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Regardless of the eventual outcome of this question..., the fact that two courts agreed that plaintiff was not covered by the policy, after hearing the arguments of counsel for both parties, clearly demonstrates that the insurance company had a reasonable basis for denying the claim....Therefore the insurance company cannot be liable for bad faith, and this issue should not be presented to the jury. The insurance company's conduct in this case as a matter of law did not constitute bad faith. (Emphasis added, citation omitted). For convenient reference, a copy of this case was mailed with the judge's copy of this notice. DATED this 21st day of September, 2005.

OFFIDANI & KRESIN, P.C.

By: s/Leslie Kresin Leslie Kresin Attorneys for Defendant

Certificate of Service The foregoing was electronically transmitted to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Honorable Susan R. Bolton [email protected] United States District Court Sandra Day O'Connor U.S. Courthouse, Ste. 522 401 W. Washington St., SPC 50 Phoenix, Arizona 85003 /// ///
Case 2:02-cv-00378-SRB Document 75 -2-Filed 09/21/2005 Page 2 of 3

Charles J. Muchmore [email protected] Burch & Cracchiolo, P.A. 702 E. Osborn Rd., Ste. 200 Phoenix, Arizona 85014 Co-Counsel for Plaintiff

1 2 3 4 5 6 7 8 9

A copy of the foregoing was also served by first class mail to the following: Honorable Susan R. Bolton United States District Court. Sandra Day O'Connor U.S. Courthouse, Ste. 522 401 W. Washington St., SPC 50 Phoenix, Arizona 85003 Joseph F. Gmuca Ryan Woodrow & Rapp, P.L.C. 3101 N. Central Ave., Ste. 1500 Phoenix, Arizona 85012 Co-Counsel for Plaintiff

s/Sandy Warren
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Case 2:02-cv-00378-SRB

Document 75 -3-Filed 09/21/2005

Page 3 of 3