Allstate Indem. Co. v. Ridgely

• Decision Date: 15 March 2007
• Docket Number: No. 2 CA-CV 2006-0164.,2 CA-CV 2006-0164.
• Parties: ALLSTATE INDEMNITY COMPANY and Allstate Insurance Company, Plaintiffs/Appellees, v. Lisa RIDGELY, a single person, Defendant/Appellant.
• Court: Arizona Court of Appeals

153 P.3d 1069

214 Ariz. 440

ALLSTATE INDEMNITY COMPANY and Allstate Insurance Company, Plaintiffs/Appellees, v. Lisa RIDGELY, a single person, Defendant/Appellant.

No. 2 CA-CV 2006-0164.

Court of Appeals of Arizona, Division 2, Department A.

March 15, 2007.

Herman, Goldstein & Forsyth, P.C. By Keith B. Forsyth, Phoenix, Attorneys for Plaintiffs/Appellees.

Haralson, Miller, Pitt, Feldman & McAnally, P.L.C. By Thomas G. Cotter, The Law Office of Elliot Glicksman, P.L.L.C. By Elliot Glicksman, Tucson, Attorneys for Defendant/Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Lisa Ridgely challenges the trial court's grant of summary judgment in favor of appellees Allstate Insurance Company and Allstate Indemnity Company in Allstate's declaratory judgment action against her. Ridgely argues that Allstate should have been estopped from asserting the "not a resident of the household" coverage defense. Ridgely also argues the trial court erred by ruling that an ex parte sworn statement could not be contradicted by deposition testimony. Because we agree the trial court erred when it disregarded the deposition testimony, we reverse.

¶ 2 When reviewing a grant of summary judgment, we view the evidence and reasonable inferences from it in the light most favorable to the nonmoving party. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App.1998). On March 20, 2004, Nicholas Perrow hosted a party at the home of Donald and Garnett Sloane, Perrow's grandparents. One of the partygoers was fatally shot at the home. Lisa Ridgely, the decedent's mother, filed a wrongful death claim against Perrow.

¶ 3 The Sloanes were the named insureds in Allstate homeowners and umbrella policies. Allstate suspected that Perrow might have been living with his uncle, not the Sloanes, at the time of the shooting and began investigating Perrow's coverage under the Sloanes' policy. Allstate asked Perrow to give a sworn statement, and although Perrow initially requested the presence of his attorney, he eventually gave the statement without his counsel being present. During the statement, Allstate questioned Perrow regarding his Tucson residence. But Allstate never informed Perrow that the purpose of the examination was to dispute coverage under the Sloanes' policy.

¶ 4 While under oath, Perrow stated that, at the time of the shooting, he did not have a specific place in Tucson where he lived. He also stated that although he lived with the Sloanes when he was in elementary school and again when he was in his late teens, he was no longer a permanent resident of the Sloanes' home once he stopped working for them at their store.

¶ 5 Allstate then filed this declaratory judgment action against Perrow and Ridgely seeking a determination that Perrow was not a member of the Sloanes' household for coverage purposes. Perrow did not answer or otherwise defend against the action and was eventually defaulted. Ridgely's counsel deposed Perrow and, during his deposition, Perrow testified that at the time of the shooting, he considered the Sloanes' house his primary residence.

¶ 6 Ridgely filed a motion to exclude Perrow's ex parte statement taken by Allstate and to dismiss the declaratory judgment action. Allstate cross-moved for summary judgment, arguing Perrow was not covered by the policy because he was not a resident of the Sloanes' home. Prior to ruling on the summary judgment motion and the motion to dismiss, the trial court entered a default judgment against Perrow. The trial court then granted summary judgment in favor of Allstate, and Ridgely now appeals.

¶ 7 Ridgely first argues that Allstate should have been estopped from asserting Perrow was not a resident of the Sloanes' household because Allstate had a fiduciary duty to notify its insureds that coverage issues existed prior to questioning the insured about coverage. But Ridgely did not make this argument below, and we will not consider it on appeal.¹ See Napier v. Bertram, 191 Ariz. 238, ¶ 6, 954 P.2d 1389, 1390 (1998) (supreme court refused to consider contract theory of recovery when only negligence theory alleged and argued in trial court); Kuehn v. Stanley, 208 Ariz. 124, ¶ 19, 91 P.3d 346, 352 (App.2004) (new factual theories waived on appeal from summary judgment if not first raised in trial court); see also Crowe v. Hickman's Egg Ranch, Inc., 202 Ariz. 113, ¶ 16, 41 P.3d 651, 654 (App.2002) ("Issues not properly raised below are waived.").

¶ 8 Ridgely next argues the trial court erred when it held "as a matter of law that [Perrow's] ex parte statement could not be contradicted by deposition." In its minute entry granting summary judgment, the trial court stated that Perrow's "two statements [were] contradictory and [could not] both be true." Relying on Wright v. Hills, 161 Ariz. 583, 780 P.2d 416 (App.1989), abrogated on other grounds by James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 868 P.2d 329 (App.1993), and MacLean v. State (Department of Education), 195 Ariz. 235, 986 P.2d 903 (App.1999), the trial court then refused to consider Perrow's deposition testimony because it was given after the sworn statement. We review de novo the propriety of summary judgment, Link, 193 Ariz. 336, ¶ 12, 972 P.2d at 673, and questions involving the interpretation of court rules, Vega v. Sullivan, 199 Ariz. 504, ¶ 8, 19 P.3d 645, 648 (App.2001).

¶ 9 In Wright, this court held that the "sham affidavit" rule applies in Arizona because "parties cannot thwart the purposes of Rule 56, [Ariz. R. Civ. P., 16 A.R.S., Pt. 2,] by creating issues of fact through affidavits that contradict their own depositions." 161 Ariz. at 588, 780 P.2d at 421; see also Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986) (referring to the rule as the "[s]ham [a]ffidavit [c]oncept"). The rule states that when a party's affidavit is submitted to defeat summary judgment and contradicts the party's own deposition testimony, it should be disregarded in deciding the motion. Wright, 161 Ariz. at 587, 780 P.2d at 420. "[G]iv[ing] great weight to the federal interpretations of rules of civil procedure," the court reasoned that "[a]llowing a party to submit a contradictory affidavit after giving a deposition would greatly diminish the utility of summary judgment as a procedure for screening out genuine issues of fact." Id. at 587-88, 780 P.2d at 420-21.

¶ 10 Wright also held that certain exceptions exist to the sham affidavit rule, for instance, "if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony or if the affiant lacked access to material facts and the affidavit sets forth the newly discovered evidence." Id. at 588, 780 P.2d at 421. This court, in MacLean, recognized the rule it adopted in Wright. 195 Ariz. 235, ¶ 20, 986 P.2d at 909. But in that case, the court did not apply it because it found the affidavit and the deposition did "not clearly conflict." Id.

¶ 11 While Wright and MacLean provide guidance on this issue, they are not dispositive. Wright and MacLean held that a party's prior deposition testimony cannot be contradicted by the party's subsequent affidavit submitted to defeat summary judgment and did not address the issue presented here: whether a former party/witness's prior sworn statement or affidavit can be contradicted by subsequent deposition testimony to defeat summary judgment. Because we have found no Arizona cases addressing the issue presented here, we look to the federal and out-of-state cases for guidance.

¶ 12 In Darnell v. Target Stores, 16 F.3d 174 (7th Cir.1994), the Seventh Circuit considered a case in which a party's deposition testimony was contradicted by his subsequent affidavit and two witnesses' prior affidavits were contradicted by their subsequent deposition testimony. After applying the sham affidavit rule to the party's affidavit, the Seventh Circuit extended the rule to the prior affidavits of two witnesses who had been deposed after they had submitted their affidavits. Id. at 177. The witnesses' affidavits would have prevented summary judgment, but the later deposition testimony supported the entry of summary judgment. See id. at 176-77. The Seventh Circuit stated that "though the timing is reversed, the rule is the same" and held that witnesses' "`[s]elf-serving affidavits,' ... that ... [we]re contradicted by their own [subsequent] deposition testimony ... [could] not defeat a motion for summary judgment." Id. at 177, quoting Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993) (first alteration in Darnell). But, because the deposition in Darnell was presented in support of summary judgment, see id. at 175-76, and here the deposition was presented to defeat summary judgment, further analysis into the purpose—to prevent parties from thwarting Rule 56—and application of the sham affidavit rule is necessary to determine whether it applies in this case.

¶ 13 The federal courts, when applying the sham affidavit rule, have given greater weight to deposition testimony than affidavits. They conclude that because deposition testimony is subject to cross-examination, it is inherently more reliable than an affidavit. See Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir.1969); Darnell, 16 F.3d at 176. When the court in Darnell applied the sham affidavit rule to the party's affidavit that contradicted his prior deposition testimony, it reasoned "[i]nherently[,] depositions carry an increased level of reliability ... [because they] are adversarial in nature and provide the opportunity for direct and cross-examination." Id. at 176. State courts have also found that deposition testimony is inherently more reliable than an affidavit. See Hancock v. Bureau of Nat'l Affairs, Inc., 645 A.2d 588, 590-91 (D.C. 1994); Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 736 (Ky.2000); Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983); Best v....