E. Valley Disaster Servs., Inc. v. Awsienko, 1 CA-CV 12-0565

CourtCourt of Appeals of Arizona
Writing for the CourtJON W. THOMPSON
PartiesEAST VALLEY DISASTER SERVICES, INC., Plaintiff/Counterdefendant/Appellee, v. OLEG AWSIENKO, Defendant/Counterclaimant/Appellant.
Docket Number1 CA-CV 12-0565
Decision Date23 July 2013

EAST VALLEY DISASTER SERVICES, INC., Plaintiff/Counterdefendant/Appellee,
OLEG AWSIENKO, Defendant/Counterclaimant/Appellant.

1 CA-CV 12-0565


Filed: July 23, 2013

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24

(Not for Publication
Rule 111, Rules of the
Arizona Supreme Court)

Appeal from the Superior Court of Maricopa County

Cause No. CV2010-090265

The Honorable Karen Potts, Judge


Knapp & Roberts, P.C.
By David L. Abney
Attorneys for Defendant/Counterclaimant/Appellant


Law Offices of Kevin Jensen, PLLC
By Kevin Jensen
Attorneys for Plaintiff/Appellee


THOMPSON, Presiding Judge

¶1 Oleg Awsienko (Awsienko) appeals the trial court's judgment after a jury trial in favor of East Valley Disaster Services, Inc. (East Valley). Finding no error, we affirm.

Page 2


¶2 In September 2009, while Awsienko was travelling in Europe, a toilet leak caused water damage to his Phoenix home. The home sustained considerable damage to the structure and there was damage to his personal property. Awsienko insured his home with State Farm. East Valley was hired by Awsienko to do remediation and repair pursuant to State Farm's Premier Service Program (Program), a voluntary State Farm service which listed participating independent contractors. Under the Program, State Farm typically agreed to pay for repairs to the property damage covered under the insured's home owner's policy.

¶3 Awsienko entered into a "Work Order and Authorization Agreement" with East Valley that included emergency services, structural repairs and home-content processing related to the water damage. The Agreement authorized and directed that State Farm would pay East Valley directly on Awsienko's claim. The Agreement also contained language that payment in full was due "upon work completion and receipt of invoice" with interest to accrue at eighteen percent annually and the cost of collections in the event of non-payment.

¶4 Awsienko dismissed East Valley prior to the completion of the job on or around December 2009. Thereafter, East Valley filed suit claiming breach of contract and unjust enrichment.

Page 3

Awsienko answered and filed a counterclaim for breach of contract with consequential damages.

¶5 East Valley made an offer of judgment in September 2010 pursuant to Arizona Rule of Civil Procedure 68. The matter went to mandatory arbitration and the arbitrator found for Awsienko in the amount of $22,208.57. East Valley appealed the award to the superior court and the parties began to prepare for trial. In February 2012, East Valley disclosed the revised measure of its damages as $56,900.

¶6 Awsienko filed a motion for sanctions pursuant to Rule 72(e) alleging East Valley should have amended their arbitration certificate to show damages exceeding $50,000 before arbitration, a motion in limine to preclude evidence of insurance, and a motion for summary judgment on the issues of breach and unjust enrichment, claiming East Valley's increased damages were precluded. East Valley answered the motions. After briefing, the trial court granted Awsienko's motion for summary judgment as to East Valley's unjust enrichment claim only. The trial court denied Awsienko's remaining claims under the motion for summary judgment, the motion in limine as to insurance, and declined to award sanctions under Rule 72(e) finding both parties "equally shared" in the prejudice of engaging in arbitration.

Page 4

¶7 Awsienko filed a motion for reconsideration of the motion in limine as to insurance and the trial court held argument prior to trial. During the hearing on this contract matter, the trial court clarified that although Awsienko kept arguing insurance was irrelevant and prejudicial he, himself, intended to call two State Farm adjusters as fact witnesses as to whether East Valley did the work in a workman-like manner and regarding the payments made to East Valley. On reconsideration, the trial court found some exhibits being offered should be redacted and stated that it was open to hearing further objections as the testimony progressed. The trial court, finally, said:

But I don't think you can eliminate the existence of insurance from this case, because it's in the first work order [and] it is tangled into the issue between the parties as to how payments could be made and how invoices could be received. So I don't think we can take that out, and I don't think the issue of insurance prejudices them as long as we don't tell them what the insurance [as a third party to the contract] thought or didn't think about the claim and as long as we don't tell them what the insurance company paid regarding the claim or didn't pay. And then we can give them the standard instruction on how insurance is not to be considered.

¶8 A four day jury trial was held wherein the jury awarded East Valley $57,500. A judgment was entered that included $41,965 for attorneys' fees under Arizona Revised Statutes (A.R.S.) § 12-341.01 (2012), costs in the amount of

Page 5

$3,565.55, Rule 68 sanctions in the amount of $3,095.55 and jury fees. Awsienko timely appealed.


¶9 Awsienko makes three assertions on appeal:

(1) It was reversible error for the trial court to allow evidence of insurance in this case;
(2) East Valley failed to participate in pretrial arbitration in good faith and, therefore, should have lost its right to appeal the award to the superior court; and
(3) East Valley's contract claims were barred because Awsienko did not receive invoices for East Valley's work prior to East Valley filing suit, thus creating the failure of a condition precedent.


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT