Mayberry v. Pioneer Life Insurance , 37 F. App'x 954 ( 2002 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 22 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    JIMMY MAYBERRY; LETHA
    MAYBERRY, dba GEM ELECTRIC
    COMPANY,
    Plaintiffs - Appellants,                No. 01-5129
    (D.C. No. 99-CV-659-B)
    v.                                                 (N.D. Oklahoma)
    PIONEER LIFE INSURANCE
    COMPANY (Conseco Companies), a
    foreign corporation,
    Defendant - Appellee.
    ORDER AND JUDGMENT         *
    Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and         BRISCOE ,
    Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    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
    error–if there is error at all–in the trial court’s action, we affirm.
    Plaintiffs were covered by defendant’s 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 court’s 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 jury’s verdict
    based on a finding that there was no breach of contract should be reversed, and
    the case should be retried on all issues.
    -3-
    “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.”        Wood v. Eli Lilly & Co. , 
    38 F.3d 510
    ,
    512 (10th Cir. 1994). On appeal, we apply “the normal federal standards of
    appellate review to examine the district court’s decision process.”     Mid-America
    Pipeline Co. v. Lario Enters., Inc.    , 
    942 F.2d 1519
    , 1524 (10th Cir. 1991).
    In their first assertion of error, plaintiffs contend that a comment made by
    the trial judge to the jury amounted to an instruction to disregard the testimony of
    their expert witness, Melvin Cooper, which unfairly prejudiced their breach of
    contract claim. Plaintiffs presented Mr. Cooper as an expert on the coverage
    provided by their insurance contract.
    At the end of all the evidence, the judge said to the jury:
    In reference to the testimony of Mr. Melvin Cooper who testified in
    this case, let me simply say to you insofar as you conclude that
    Mr. Cooper’s testimony involved an erroneous conclusion regarding
    the benefits or coverage under the insurance policy, you should
    simply disregard his testimony if you think that was the case as to
    any particular claim or claims.
    Aplt. App., Vol. III at 587. Plaintiffs did not object to this comment.
    Because plaintiffs did not object at trial, we review the trial judge’s
    instructions to the jury for plain error.   Giron v. Corrections Corp. of Am.    ,
    
    191 F.3d 1281
    , 1289 (10th Cir. 1999). “We will only reverse under the plain
    -4-
    error standard in an exceptional circumstance–one where the error was patently
    plainly erroneous and prejudicial.”       
    Id. (quotation omitted).
    We have carefully considered the judge’s 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.”    
    Id. at 470.
    The
    judge’s 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
    -5-
    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
    policy’s 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 defendant’s
    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. Cooper’s 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.      See Aplt.
    -6-
    Opening Br., Att. 3, at 3 n.1 (district court order on plaintiffs’ motion to
    reconsider). Although plaintiffs assert on appeal that they raised the issue in an
    earlier pleading, they did not include in their appendix the document necessary for
    us to review that assertion. Because it is plaintiffs’ responsibility to provide an
    adequate record, we decline to consider their inadequately supported argument.
    See 10th Cir. R. 10.3(A), (B).
    Next, plaintiffs maintain that the district court improperly imposed a
    contractual statute of limitations that defendant had not preserved in the Pretrial
    Order. Because plaintiffs have not demonstrated that the jury verdict finding no
    breach of contract by defendant should be overturned, the issue of a limitation on
    damages is moot.
    Finally, plaintiffs argue that there was sufficient evidence to support their
    motion for a bill of accounting on premium issues. An action for an accounting is
    a proceeding in equity.    Dobry v. Dobry , 
    324 P.2d 534
    , 537 (Okla. 1958). “We
    review the district court’s exercise of its equitable jurisdiction and its denial of
    [plaintiffs’] motion for an abuse of discretion.”   United States v. Grover , 
    119 F.3d 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.
    -7-
    Plaintiffs point to evidence which, they argue, does not establish that
    defendant’s premiums were proper. They fail to present evidence that defendant’s
    premiums were improper , which is their burden. We therefore affirm the district
    court’s dismissal of plaintiffs’ motion for a bill of accounting.
    AFFIRMED.
    Entered for the Court
    Robert H. Henry
    Circuit Judge
    -8-