Shamalon Bird Farm, Ltd. v. U.S. Fidelity & Guar. Co.

• Decision Date: 19 March 1991
• Docket Number: No. 19083,19083
• Citation: 809 P.2d 627,1991 NMSC 39,111 N.M. 713
• Parties: SHAMALON BIRD FARM, LTD., Plaintiff-Appellant and Cross-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 627

809 P.2d 627

111 N.M. 713

SHAMALON BIRD FARM, LTD., Plaintiff-Appellant and Cross-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY Defendant-Appellee and Cross-Appellant.

No. 19083.

Supreme Court of New Mexico.

March 19, 1991.

[111 NM 713] Bosson & Canepa, Richard E. Bosson, Santa Fe, for plaintiff-appellant and cross-appellee.

Montgomery & Andrews, Walter J. Melendres, Santa Fe, for defendant-appellee and cross-appellant.

OPINION

FRANCHINI, Justice.

Shamalon Bird Farm, Ltd. (Shamalon) filed suit against United States Fidelity & Guaranty Company (USF & G) claiming bad faith failure to pay insurance benefits under a business interruption policy relating to Shamalon's bird raising business. The case was tried to a jury and resulted in a verdict against Shamalon on its claim, and against USF & G on its counterclaim. Shamalon appeals, claiming the trial court abused its discretion by excluding the testimony of John Conway, Shamalon's insurance expert. We hold the trial court did not abuse its discretion and affirm.

On June 9, 1987, Shamalon filed its complaint. On May 6, 1988, USF & G served interrogatories on Shamalon. Interrogatory No. 21 requested the identity of any expert witness, and a summary of the testimony of each witness. Shamalon answered the interrogatories but objected to Interrogatory No. 21 on the ground that it sought disclosure of work product of Shamalon's counsel. On July 1, 1988, USF & G notified Shamalon that the answer to Interrogatory No. 21 was not satisfactory and requested the identity of additional witnesses and a summary of any expert's testimony. On July 14, 1988, Shamalon requested that the August 22, 1988, trial date be vacated. On July 27, 1988, Shamalon informed USF & G that it intended to call a bad faith insurance expert, thus far unidentified.

On August 2, 1988, November 14, 1988, and April 26, 1989, the trial dates were vacated and reset at Shamalon's request and over USF & G's objection. On November 1, 1988, Shamalon retained Conway, its bad faith expert. In spring or summer of 1989, Conway received documentation regarding the case from Shamalon's counsel including various pleadings, depositions, the USF & G claim file, reports and records. On April 28, 1989, Shamalon served its Supplemental Response to Interrogatory No. 21, which stated that Conway would "testify as an expert on bad faith insurance matters, specifically the actions and inactions of USF & G in this matter." On September 20, 1989, USF & G filed its motion to compel discovery. In particular, it requested a summary of Conway's testimony. On the same day, USF & G filed its pretrial interrogatories requesting Shamalon to supplement answers to all previous interrogatories pursuant to SCRA 1986, 1-026(E). On September 22, 1989, USF & G noticed the deposition of Conway for October 3, 1989. The deposition was later postponed until December 13, 1989.

On September 25, 1989, the trial was vacated for the fourth time, over USF & G's objection, and given a firm setting of January 8, 1990. On October 11, 1989, Shamalon responded to USF & G's Motion to Compel Discovery. Referring to Interrogatory No. 21, Shamalon stated that Conway would summarize the pertinent documents and offer his opinions and conclusions to Shamalon's counsel. "Plaintiff anticipates that if Conway is offered as a witness, this interrogatory can be answered by no later than the middle of November, and hopefully sooner." Shamalon produced Conway for deposition on December 13, 1989. Conway testified that he had only "preliminary opinions, directions and leanings," which were all "subject to change." Conway was so unfamiliar with the facts of the case that he was unable to state the basis of his opinions.

On December 18, 1989, USF & G filed its Motion to Exclude Testimony of Expert Witness on the basis that Conway did not have final opinions and factual basis therefore, that his lack of preparation was without reasonable justification, and that USF & G would be prejudiced if he were allowed to testify. On January 2, 1990, the trial court heard argument on the motion. Shamalon insisted that the January 8, 1990, trial date be kept and USF & G complete its discovery of Conway the day before or during trial. The court took the motion under advisement until it had read Conway's deposition. On January 4, 1990, the court advised counsel by letter of its decision to exclude Conway's testimony.

The trial court did not abuse its discretion by excluding Conway's testimony. "Abuse of discretion occurs when the trial court's decision is contrary to logic and reason." Roselli v. Rio Communities Service Station, Inc., 109 N.M. 509, 787 P.2d 428 (1990). The trial court based its exclusion of Conway's testimony on the following: (1) Conway's deposition, which demonstrated his inability to assist the jury in understanding the testimony or any fact in issue, and (2) prejudice suffered by the defendant in that it was denied a meaningful opportunity to examine the witness.

Rule 702

Rule of Evidence SCRA 1986, 11-702 provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

The trial court has wide discretion to determine whether a witness is qualified to give testimony as an expert and its determination will not be disturbed unless there has been an abuse of discretion. Jaramillo v. Anaconda Co., 71 N.M. 161, 164, 376 P.2d 954, 955-56 (1962). The trial court listened to argument on Conway's lack of qualifications and his unfamiliarity with the record. The trial court also read Conway's deposi tion.. Although Conway had worked as an insurance adjuster for a number of years, he never had handled a business interruption claim of any substance, or one that was contested. Furthermore, he could not identify any training in the area of business interruption insurance. Additionally, the court found that Conway had a poor understanding of the facts of a rather complicated case. He had not taken the time to familiarize himself with the facts, and thus did not have a sufficient basis to give opinions that would be of help to the jury. An expert witness must satisfactorily explain steps followed in reaching a conclusion and give reasons for his opinion. Four Hills Country Club v. Bernalillo County Tax Protest Board, 94 N.M. 709, 714, 616 P.2d 422, 427 (Ct.App.1979), cert. quashed, 94 N.M. 675, 615 P.2d 992 (1980). Without such an explanation, the opinion is not justified. Id. In view of Conway's lack of experience and training in the area of business...