NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

BRIAN SYMONS, Plaintiff/Appellant,

v.

PJO INSURANCE BROKERAGE LLC, Defendant/Appellee.

No. 1 CA-CV 18-0477 

Appeal from the Superior Court in Maricopa County

No. CV2016-001029

 CV2017-055421

 (Consolidated)

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Breyer Law Offices PC, Phoenix

By Mark P. Breyer, Brian C. Fawber, Edward M. Ladley

Counsel for Plaintiff/Appellant

Resnick & Louis PC, Scottsdale

By Roger W. Strassburg, Jr.; Mitchell J. Resnick; Sharon A. Biggs

Counsel for Defendant/Appellee

FILED 7-16-2019
SYMONS v. PJO INSURANCE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Brian Symons appeals the superior court’s denial of his 

motion for a new trial and entry of judgment in favor of PJO Insurance 

Brokerage, LLC. For the following reasons, we affirm. 

BACKGROUND

¶2 Symons was employed by DE Electricians (“DE”). DE is a 

subcontractor hired by general contractor Black Stone Development, LLC 

(“Black Stone”) to perform electrical work on a residential property. 

Symons was seriously injured on the job site when a wooden board acting 

as a ramp collapsed, causing him to fall four feet to the ground. Symons 

filed a negligence suit against Black Stone for the injuries he sustained in 

his fall on the Black Stone construction site. A jury found Black Stone largely

liable for Symons’ injuries. 

¶3 At the time of the accident, Black Stone was insured by 

Lloyd’s of London under a commercial general liability policy (the “Lloyd’s 

Policy”). Black Stone purchased this policy through an insurance broker,

PJO Insurance Brokerage, LLC (“PJO”). Black Stone also required its 

subcontractors to obtain commercial general liability insurance and to 

name Black Stone as an additional insured. DE and Black Stone signed a 

subcontractor agreement, whereby DE agreed to indemnify Black Stone 

against all claims and add Black Stone as an additional insured to its 

insurance policy. At the time of the accident DE was insured through 

Occidental Fire & Casualty (the “DE Policy”), on which Black Stone was

named as an additional insured. 

¶4 Upon service of Symons’ lawsuit, Black Stone notified Lloyd’s 

of London of the claim and asked DE to notify its insurance carrier of the 

claim. Black Stone’s owner testified that DE’s insurance carrier declined to 

represent Black Stone. Lloyd’s of London denied coverage because the 

Lloyd’s Policy had an exclusion for injuries to subcontractors or their 

employees. Black Stone then assigned any causes of action it may have
SYMONS v. PJO INSURANCE

Decision of the Court

3

against PJO under the Lloyd’s Policy to Symons, and Symons agreed not to 

execute on the judgment against Black Stone. Symons subsequently filed 

suit against PJO. 

¶5 Symons alleged PJO was negligent for falling below the 

standard of care for insurance brokers by issuing Black Stone an insurance 

policy that excluded coverage for injuries to subcontractors and employees 

of subcontractors. He further alleged PJO fell below the applicable standard 

of care when its agent failed to explain the subcontractor exclusion to Black 

Stone when he issued the Lloyd’s Policy.

¶6 Four weeks before trial was set to begin—and after the 

discovery deadline—PJO disclosed the DE Policy in a supplemental 

disclosure and indicated its intention to use that policy at trial. Symons filed 

a motion in limine to prohibit the use of the untimely disclosed DE Policy.

PJO argued to the court that it intended to use the policy to illustrate the 

industry practice of transferring risk between sub- and general contractors,

whereby general contractors purchase less expensive coverage with 

exclusions and fill exclusions in their insurance policies with coverage 

requirements in the polices of subcontractors. PJO further argued that 

because Black Stone required its subcontractors to name it as an additional 

insured on their policies, it was likely that Black Stone knew or assumed 

that its subcontractors would be covered by at least one insurance policy.

As a result, PJO claimed it was not negligent in issuing Black Stone a policy 

with the subcontractor liability exclusion. The court denied Symons’ 

motion in limine and allowed PJO to reference the DE Policy at trial.

¶7 At trial, PJO attempted to use the DE Policy not only to 

explain the transfer of risk, but also to argue it was not liable to Symons

because Black Stone failed to mitigate its damages. PJO asserted Black Stone 

should have made a claim through the DE Policy, which would have 

covered damages for Symons’ injuries. After PJO made this argument to the 

jury, Symons filed a motion to preclude further argument about the DE 

Policy. The court explained that whether the DE Policy provided coverage 

is a question of law for the court to decide and was not relevant to the issues 

before the jury—namely whether PJO was negligent in issuing Black Stone 

a policy of insurance as a general contractor that excluded coverage of 

subcontractors working on its jobsites. The court then precluded the parties 

from eliciting testimony or arguing in closing statements about whether the 

DE Policy would have provided coverage; it did not preclude all mention 

of the DE Policy. The DE Policy was not admitted as an exhibit at trial.
SYMONS v. PJO INSURANCE

Decision of the Court

4

¶8 Because testimony about whether the DE Policy provided 

coverage had been elicited during trial, the court gave a curative instruction 

that read: 

In reaching your verdict, you should not consider, or discuss, 

whether Black Stone Development was or was not covered by 

insurance from any other insurance company in connection 

with this matter, or whether or not Black Stone Development 

pursued a claim with any other insurance company in 

connection with this matter. This issue has no bearing on the 

matters before you for your consideration. 

¶9 The jury returned a verdict in favor of PJO. Symons filed a 

motion for a new trial, arguing he was denied a fair trial because of PJO’s 

references to the DE Policy during the trial. See Ariz. R. Civ. P. (“Rule”) 

59(a)(1). After a hearing, the court denied the motion and entered judgment 

in favor of PJO. Symons timely appealed. 

DISCUSSION

¶10 On appeal, Symons argues the trial court committed 

reversible error by allowing use of the DE Policy even though it had been

disclosed after the disclosure deadline and allowing PJO to refer to the DE 

Policy at trial. Symons also alleges the trial court abused its discretion by 

denying his motion for a new trial. 

¶11 We begin with the premise that trial judges are in a unique 

position and are “better able . . . to decide if a disclosure violation has 

occurred in the context of a given case and the practical effect of” such a 

violation. Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9 (App. 2010). As a result, 

the superior court has broad discretion in ruling on discovery matters and 

this court will not disturb an evidentiary ruling absent a clear abuse of 

discretion. Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013). We 

similarly review the court’s denial of a motion for new trial for abuse of 

discretion. First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162, ¶ 8 (App. 

2015). A court abuses its discretion when it commits an error of law or fails 

to consider evidence in reaching a discretionary conclusion. Flying Diamond 

Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007). 
SYMONS v. PJO INSURANCE

Decision of the Court

5

I. The superior court did not abuse its discretion in allowing PJO to 

introduce evidence about the DE Policy, despite its untimely 

disclosure. 

¶12 Symons argues the superior court incorrectly applied Arizona 

Rules of Civil Procedure 26.1(f)(2), 37(c)(1), and 37(c)(4).1 Rule 26.1 requires 

each party to disclose a list of all relevant documents in a disclosure 

statement and to serve with the statement a copy of each document listed. 

See Ariz. R. Civ. P. 26.1(a)(9).

2 “The purpose of the disclosure requirements 

of . . . Rule 26.1 is to ensure that all parties are fairly informed of the facts, 

legal theories, witnesses, documents, and other information relevant to the 

action.” Ariz. R. Civ. P. 26.1(e)(1). PJO claims it disclosed the DE Policy in 

April 2017, months before the discovery deadline, but that earlier disclosure 

did not include a supplemental disclosure statement and, thus, PJO did not 

comply with Rule 26.1. Instead, PJO’s June 2017 purported “disclosure” of 

the DE Policy occurred when PJO attached the DE Policy as an exhibit to a 

motion to serve a third-party complaint on Black Stone and Black Stone’s 

attorney. 

¶13 Symons argues that PJO did not properly disclose the DE 

Policy and by attaching it as an exhibit to the third-party motion, it 

appeared that PJO planned to use the DE Policy only to get the third parties 

into the case, not as a defense to the lawsuit. Therefore, Symons asserts the 

court should have precluded any other use of the document and the 

information contained therein. While we agree that the policy was not 

properly disclosed, we cannot say the court abused its discretion in 

allowing PJO to question witnesses about the existence of the DE Policy. 

¶14 Under Rule 37(c)(1), late-disclosed information may not be 

used unless the court finds that failure to timely disclose the information 

“caused no prejudice or orders otherwise for good cause.” Rule 26.1(f)(2) 

states that “[a] party seeking to use information that it first disclosed later 

than the deadline set in a Scheduling Order . . . must obtain leave of court 

to extend the time for disclosure as provided in Rule 37(c)(4).” To obtain 

 

1 Symons urges this court to review the superior court’s allowance of 

reference to the DE Policy de novo. Because we are simply reviewing the 

superior court’s application of Rules 26.1(f)(2), 37(c)(1), and 37(c)(4), rather 

than interpreting these rules, we review for an abuse of discretion. 

2 The Arizona Rules of Civil Procedure were amended in 2017 and 

2018, after the trial in this case. Because there is no material difference 

between the relevant Rules in effect at trial and after the amendments, we 

cite to the current version. 
SYMONS v. PJO INSURANCE

Decision of the Court

6

leave of the court, a party must file a motion, supported by affidavit, to 

extend the time for disclosure, illustrating that “(A) the information . . . or 

document would be allowed under the standards of Rule 37(c)(1); and (B) 

the party disclosed the information . . . or document as soon as practicable 

after its discovery.” Ariz. R. Civ. P. 37(c)(4). 

¶15 In response to Symons’ motion in limine to exclude the DE 

Policy, PJO filed a motion to extend time for disclosure. The court heard 

argument about whether to preclude PJO from eliciting testimony about the 

DE Policy at trial. PJO argued the existence of the DE Policy was relevant 

to the question of whether PJO was negligent in procuring the Lloyd’s 

Policy for Black Stone because there is a standard industry practice of 

general contractors requiring subcontractors to obtain insurance and name 

general contractors as additional insureds on the policy. PJO argued Black 

Stone was aware of this practice as evidenced by the subcontractor 

agreement with DE, requiring DE to obtain commercial general liability 

insurance and name Black Stone as an additional insured. 

¶16 After PJO’s argument on how it intended to use the DE Policy 

at trial, the court stated, “even if I deny the motion to exclude based upon 

late disclosure, there might still be other reasons on the merits to deny the 

admission of the evidence.” The court subsequently denied Symons’ 

motion to preclude the DE Policy and granted PJO’s motion to extend time 

for disclosure, thereby preliminarily allowing evidence of the existence of 

the DE Policy to be admitted. 

¶17 Although the superior court did not make an explicit finding 

that failure to disclose the DE Policy caused no prejudice or order otherwise 

for good cause, “we may infer additional findings of fact and conclusions 

of law sufficient to sustain the trial court’s order as long as those findings 

are reasonably supported by the evidence, and not in conflict with any 

express findings.” Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11 (App. 1998). As 

the superior court explained, evidence of the industry standard of having 

subcontractors supply their own insurance to fill exclusions in general 

contractors’ policies went directly to the issue of whether PJO violated the 

standard of care in issuing the Lloyd’s Policy to Black Stone. The court did 

not admit evidence of the DE Policy to show whether it provided 

coverage—and in fact expressly instructed the jury not to consider whether 

other policies existed that could have covered Symons’ claims. Rather, the 

court considered the relevance of the existence of the DE Policy in light of 

the issues before the jury—namely whether PJO violated the standard of 

care in issuing this policy—and evidence supports the conclusion that there 

was good cause to allow reference to the existence of the policy despite its 
SYMONS v. PJO INSURANCE

Decision of the Court

7

untimely disclosure. Symons’ own expert testified that he was unaware of

the existence of any insurance policies issued to general contractors that did 

not have similar exclusions to the policy issued to Black Stone by PJO.

Accordingly, the court did not abuse its discretion in granting PJO’s motion 

to extend time for disclosure or in finding the existence of the policy 

relevant. 

II. The superior court did not abuse its discretion when it denied 

Symons’ request for a new trial. 

¶18 Symons next argues the court erred in denying his motion for 

a new trial because the references at trial to the DE Policy were unfair and 

caused the jury to become confused. Under Rule 59(a)(1), the superior court 

may grant a new trial if a party’s rights are materially affected by any of the 

grounds set forth in the Rule. Symons alleges he is entitled to a new trial 

because (1) the verdict is not supported by the evidence or is contrary to 

law under Rule 59(a)(1)(H); (2) the court erred in the admission of evidence 

under Rule 59(a)(1)(F); and (3) he was deprived of a fair trial under Rule 

59(a)(1)(A).

¶19 We will affirm a ruling on a motion for a new trial challenging 

the sufficiency of the evidence if there is substantial evidence supporting 

the court’s determination. State v. Fischer, 242 Ariz. 44, 48, ¶¶ 11-12 (2017); 

see Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 197, ¶ 15 

(2012) (explaining the trial judge “has broad discretion to find the verdict 

inconsistent with the evidence and grant a new trial”). Evidence is 

substantial if it allows “a reasonable person to reach the [jury’s] result.” 

Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11 (App. 2009) (citation 

omitted). “We will not reweigh the evidence or substitute our evaluation of 

the facts,” id., nor will we reverse or vacate the court’s ruling merely 

because “there is a dispute in the evidence from which reasonable [people] 

could arrive at different conclusions as to the ultimate facts,” Spain v. 

Griffith, 42 Ariz. 304, 305 (1933). 

¶20 After hearing oral argument, the court explained it precluded 

evidence about the DE Policy coverage because it was not relevant to 

Symons’ claims and there was a likelihood that the jurors may equate the 

DE Policy with potential alternative coverage for Symons’ injury. However, 

the court also explained the DE Policy could not be excluded altogether

because the existence of the policy was relevant to determining the

standard of care and whether PJO breached the standard of care by not 

properly advising Black Stone that injuries to subcontractors were not 

covered by the Lloyd’s Policy.
SYMONS v. PJO INSURANCE

Decision of the Court

8

¶21 The jury’s verdict was supported by ample evidence 

presented at trial. The agent for PJO testified that the exclusion in the 

Lloyd’s Policy for claims for subcontractors and their employees was 

explained to Black Stone. Moreover, Black Stone’s owner admitted that he 

did not read the Lloyd’s Policy before purchasing it. The jurors had to 

determine witness credibility and find the facts based on the evidence. See 

Fischer, 242 Ariz. at 51, ¶ 26; Spain, 42 Ariz. at 305. In so doing, they found 

no negligence on the part of PJO in the issuance of the Lloyd’s Policy. 

Because there is evidence that supports the verdict, the court did not abuse 

its discretion by denying the motion for a new trial on the ground that the 

verdict was against the weight of the evidence. See Ariz. R. Civ. P. 

59(a)(1)(H). 

¶22 Neither did the court abuse its discretion in denying the 

motion for a new trial on the ground that Symons was deprived a fair trial,

nor on the ground that the court erred in admitting evidence of coverage 

under the DE Policy. First, the DE Policy was not admitted into evidence 

and the curative instruction precluded the jury from considering whether 

it provided coverage. Second, to the extent the jury was confused about 

whether the DE Policy actually provided coverage, the court gave an 

instruction to the jury that (1) this case was about professional negligence 

and (2) the jurors were not to consider whether Black Stone had any other 

insurance available to it or whether it had pursued a claim with any other 

insurance provider. We presume that jurors follow jury instructions in 

reaching a verdict. State v. Prince, 226 Ariz. 516, 537, ¶ 80 (2011). The DE 

policy was only relevant and considered in the context of whether PJO was 

negligent in issuing a policy that excluded subcontractors. Accordingly, the 

superior court did not abuse its discretion in denying Symons’ motion for 

a new trial. 

CONCLUSION

¶23 For the foregoing reasons, we affirm the judgment in favor of 

PJO.