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Filed: Patrick Fisher
Filed: Patrick Fisher
MAY 22 2002
PATRICK FISHER
Clerk
No. 01-5129
(D.C. No. 99-CV-659-B)
(N.D. Oklahoma)
BRISCOE ,
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
Plaintiffs Jimmy and Letha Mayberry appeal from the judgment in favor of
defendant Pioneer Life Insurance Company on their claims for breach of contract,
bad faith, and punitive damages, and the dismissal of their motion for a bill of
accounting. We have jurisdiction under 28 U.S.C. 1291. As we find no plain
errorif there is error at allin the trial courts action, we affirm.
Plaintiffs were covered by defendants catastrophic hospital expense
insurance plan beginning on December 10, 1992. During the course of the policy,
plaintiffs submitted approximately 3000 claims seeking approximately $250,000.
Defendant paid approximately $200,000 and denied other claimed amounts.
Plaintiffs asserted that defendant breached the insurance contract and acted in bad
faith by wrongfully denying payment on insurance claims and improperly
increasing their insurance premiums.
Defendant filed a motion for summary judgment. The district court
originally granted it in part, limiting plaintiffs breach of contract claim to the
alleged wrongful denial of a dental claim. Addressing plaintiffs motion to
reconsider interlocutory order, the district court decided to allow plaintiffs to
proceed against defendant on all unpaid insurance claims. The district court
noted, however, that plaintiffs breach of contract and bad faith claims were
limited to unpaid claims, because plaintiffs did not raise the issue of claims
ultimately paid upon resubmission until their motion to reconsider.
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The case was then tried to a jury. At the conclusion of the evidence,
defendant filed a motion for judgment as a matter of law under Fed. R. Civ.
P. 50(a). The court entered judgment for defendant on plaintiffs bad faith and
punitive damages claims and submitted plaintiffs remaining breach of contract
claim to the jury. The jury rejected plaintiffs breach of contract claim, and the
district court dismissed their claim for a bill of accounting on the basis that it was
not supported by the evidence.
Plaintiffs argue on appeal that: (1) the district courts comment to the jury
regarding the testimony of their expert witness, Melvin Cooper, unfairly
prejudiced the jury; (2) the district court erred in limiting the dollar amount of a
disputed dental claim based on a theory not advanced by defendant at the time it
initially rejected the claim; (3) there was sufficient evidence to submit to the jury
their bad faith and punitive damages claims; (4) the district court improperly
denied their evidence of resubmitted claims; (5) the district court improperly
imposed a contractual statute of limitations that defendant had not preserved in
the Pretrial Order; and (6) there was sufficient evidence to support their claim for
a bill of accounting on premium issues. Plaintiffs contend that the jurys verdict
based on a finding that there was no breach of contract should be reversed, and
the case should be retried on all issues.
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A federal court sitting in diversity must apply the law of the forum state,
in this case Oklahoma, and thus must ascertain and apply Oklahoma law with the
objective that the result obtained in the federal court should be the result that
would be reached in an Oklahoma court.
512 (10th Cir. 1994). On appeal, we apply the normal federal standards of
appellate review to examine the district courts decision process.
Pipeline Co. v. Lario Enters., Inc.
Mid-America
191 F.3d 1281, 1289 (10th Cir. 1999). We will only reverse under the plain
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We have carefully considered the judges comment in this case, and hold
that it does not constitute error and did not prejudice plaintiffs. The trial judge in
a federal court is not limited to instructions of an abstract sort.
Quercia v.
United States , 289 U.S. 466, 469 (1933). Rather, the judge is entitled to assist
the jury in arriving at a just conclusion by explaining and commenting upon the
evidence, . . . provided [the judge] makes it clear to the jury that all matters of
fact are submitted to their determination. The judge may analyze and dissect
the evidence, but . . . may not either distort it or add to it.
judges comment in this case did not add to or distort the evidence, and clearly
left the duty of fact-finding with the jury.
In their second argument, plaintiffs contend that the district court erred in
limiting the dollar amount of a disputed dental claim based on a contract
provision not advanced by defendant at the time it initially rejected the claim.
Plaintiffs offer no support for their contention that defendant was precluded from
relying on the entire insurance contract at trial of their breach of contract claim.
We are aware of none and, therefore, reject plaintiffs argument. We have
reviewed the trial transcript as it relates to the disputed dental claim. Based on
the evidence presented at trial, the amount submitted to the jury as potential
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damages, $1722, is the amount that was potentially covered by the contract as an
accidental injury. The rest of the disputed dental claim clearly was barred by the
policys cosmetic surgery exclusion, if not by other provisions. We need not
consider whether plaintiffs were entitled to the disputed $1722 as a matter of law
because the issue was determined by the jury.
Next, plaintiffs assert that there was sufficient evidence to submit their bad
faith and punitive damages claims to the jury. The trial court granted defendants
motion for judgment as a matter of law on these claims because the only
testimony that potentially could support them was that of Melvin Cooper. The
court decided, however, that Mr. Coopers testimony was based on an erroneous
interpretation of the insurance policy, was not probative, and could not meet the
required evidentiary standard for either bad faith or punitive damages. Aplt.
App., Vol. III at 574-75. Plaintiffs contend that the district court misunderstood
the policy and that its decision was error, but fail to set out an argument
demonstrating any error. We reject plaintiffs conclusory argument.
Next, plaintiffs argue that the district court improperly denied their
evidence of claims that were resubmitted before they were eventually paid. The
district court considered the issue of resubmitted claims untimely because
plaintiffs did not raise it until their motion to reconsider, in which they
challenged the partial grant of summary judgment to defendant.
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See Aplt.
review the district courts exercise of its equitable jurisdiction and its denial of
[plaintiffs] motion for an abuse of discretion.
850, 851 (10th Cir. 1997). Plaintiffs had the burden to prove their right to relief
by plac[ing] in evidence facts which reasonably tend to prove that there is a
balance due. Dobry , 324 P.2d at 537.
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Plaintiffs point to evidence which, they argue, does not establish that
defendants premiums were proper. They fail to present evidence that defendants
premiums were improper , which is their burden. We therefore affirm the district
courts dismissal of plaintiffs motion for a bill of accounting.
AFFIRMED.
Robert H. Henry
Circuit Judge
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