                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 03 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SEMPRA ENERGY,                                   Nos. 09-55022, 09-55290

               Plaintiff-Appellee and Cross-     D.C. No. 2:07 CV-5431-SJO (SS)
                                  Appellant,

  v.                                             MEMORANDUM *

MARSH USA, INC.,

                   Defendant-Appellant and
                           Cross-Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                        Argued and Submitted June 8, 2010

                                Pasadena, California

Before:      CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, **
                 District Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
      Marsh USA, Inc. (“Marsh”) appeals from a final judgment entered in favor

of Sempra Energy (“Sempra”) after a jury issued a verdict in Sempra’s favor and

awarded damages. We affirm.

      First, the district court properly submitted the statute of limitations issue to

the jury, and the jury’s conclusion that Marsh did not prove its statute of

limitations defense was not against the overwhelming weight of the evidence at

trial. A reasonable juror could have concluded that a reasonable person in

Sempra’s position would have understood that even a “gold standard” policy could

not cover all potential losses. A reasonable juror reaching that conclusion could

have similarly found that a reasonable person in Sempra’s position, reading the

statement of defense with that understanding in mind, would not have discovered

that Marsh’s negligence may have been a cause of Sempra’s injury. See Cal. Civ.

Proc. Code § 339, subd. 1; Jolly v. Eli Lilly & Co., 751 P.2d 923, 927 (Cal. 1988);

see also Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc., 10 Cal.

Rptr. 3d 582, 597-98 (Cal. Ct. App. 2004); Butcher v. Truck Ins. Exch., 92 Cal.

Rptr. 2d 521, 541-42 (Cal. Ct. App. 2000).

      Second, the district court did not err in allowing Sempra to advance an

alternative theory of causation. The arbitration panel’s ruling left open the

possibility that Sempra’s losses had more than one cause, and the district court


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barred Sempra from disputing the cause that the panel had identified. Moreover, as

Marsh concedes, Sempra informed Marsh that it wanted the broadest coverage

possible.

      Third, the district court did not abuse its discretion in its evidentiary rulings

related to the availability of alternative coverage. The district court did not abuse

its discretion in admitting the expert testimony of Winifred Baker. See Fed. R.

Evid. 702. The district court also did not abuse its discretion in concluding that

Marsh’s failure to timely designate Miles Wright was not substantially justified

and that Sempra would suffer harm from the late disclosure. See Fed. R. Civ. P.

37. With respect to Gustavo de Lucio, the district court did not abuse its discretion

in concluding that Marsh adopted his statements, Fed. R. Evid. 801(d)(2)(B), or in

limiting his lay witness testimony, Fed. R. Evid. 701. Substantial evidence

supported the jury’s finding that Marsh could have obtained alternative coverage

for Sempra.

      Fourth, although the district court may have erred in instructing the jury as

to the elements of breach of contract, see US Ecology, Inc. v. State, 28 Cal. Rptr.

3d 894, 910 (Cal. Ct. App. 2005), Marsh did not submit a proper instruction or

clearly identify the error to the court, and therefore the court did not abuse its

discretion in refusing to give the instruction that Marsh requested. Voohries-


                                            3
Larson v. Cessna Aircraft Co., 241 F.3d 707, 714 (9th Cir. 2001); Glover v. BIC

Corp., 6 F.3d 1318, 1327 (9th Cir. 1993). Moreover, any error was harmless. See

Counts v. Burlington N. R.R. Co., 952 F.2d 1136, 1140 (9th Cir. 1991).

      For the foregoing reasons, we AFFIRM the judgment of the district court.

We therefore dismiss Sempra’s cross-appeal as moot. See Golden W. Refining Co.

v. SunTrust Bank, 538 F.3d 1233, 1243 (9th Cir. 2008); Abromson v. Am. Pac.

Corp., 114 F.3d 898, 904 (9th Cir. 1997).




       AFFIRMED in 09-55022

       DISMISSED as moot in 09-55290




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