
    SEMPRA ENERGY, Plaintiff-Appellee and Cross-Appellant, v. MARSH USA, INC., Defendant-Appellant and Cross-Appellee.
    Nos. 09-55022, 09-55290.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 8, 2010.
    Filed Aug. 3, 2010.
    Kirk Pasich, Dickstein Shapiro, LLP, Los Angeles, CA, for Plaintiff-Appellee and Cross-Appellant.
    Mitchell J. Auslander, John R. Oiler, Partners, Christopher J. St. Jeanos, Willk-ie Farr & Gallagher LLP, New York, NY, for Defendant-Appellant and Cross-Ap-pellee.
    Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, District Judge.
    
      
       The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.
    
   MEMORANDUM

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., 44 Cal.3d 1103, 245 Cal.Rptr. 658, 751 P.2d 923, 927 (1988); see also Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc., 115 Cal.App.4th 1145, 10 Cal.Rptr.3d 582, 597-98 (2004); Butcher v. Truck Ins. Exch., 77 Cal.App.4th 1442, 92 Cal.Rptr.2d 521, 541-42 (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 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 U.S. Ecology, Inc. v. State, 129 Cal. App.4th 887, 28 Cal.Rptr.3d 894, 910 (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-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. Sun-Trust 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 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     