Notice of Nonparty At Fault Deficient In Stating Factual Basis For Fault Cured by Disclosure Statements

Law Updates -Civil Procedure: Notice of Nonparty at Fault--Disclosure of Factual Basis Bowen Productions, Inc. v. French, __Ariz. Adv. Rep. __No. 1 CA-SA 12-0220 (App. Div. I, January 24, 2013) (J. Swann)  NOTICE OF NONPARTY AT FAULT DEFICIENT IN STATING FACTUAL BASIS FOR FAULT CURED BY DISCLOSURE STATEMENTS

A subcontractor hired to install a sound system in the dome of a new planetarium being built at Mesa Community College was sued by another contractor for allegedly damaging he dome. The contractor sued the sub who later designated another sub as a nonparty at fault. The notice of nonparty at fault stated generally that the nonparty at fault had negligently caused the damage but did not specify how. However, in an earlier and subsequent disclosure statement expert reports were disclosed by the sub specifically setting forth the facts to support how and why the nonparty had damaged the dome. The trial court struck the notice of nonparty at fault designation for being deficient in setting forth a factual basis for the designation. The defendant brought this special action. The Arizona Court of Appeals accepted jurisdiction and granted relief.

The court of appeals acknowledged that a nonparty at fault designation requires a statement of the facts supporting the designation and agreed this notice of nonparty at fault was deficient. However, the court held that the notice of nonparty at fault is not to be read in a vacuum and when read with the timely disclosure statements there was no question the plaintiff was adequately put on notice of the required factual basis. The notice of nonparty at fault should not have been stricken.

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