Free Order - District Court of Colorado - Colorado

Case 1:04-cv-01143-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 04-cv-01143-JLK DOLLY LAU, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant.

MINUTE ORDER REGARDING JURY INSTRUCTIONS AND VERDICT FORM Judge John L. Kane ORDERS The following additional changes have been made to the Jury Instructions in this case: 1. Instructions 3.9, 3.10, 3.12 and 3.13 all relate to the duty of good faith and fair dealing inherent in contracts for insurance. They are repetitive and duplicative and have been combined into a single instruction 3.9. The remaining instructions, beginning with old Instruction 3.11 " Evidence in Support of Claim - Bad Faith Breach of Insurance Contract,"have been renumbered beginning at Instruction 3.10. Instruction 3.11 is old 3.14 " Measure of Damages" 3.12 is old ; Instruction 3.15; 3.13 is old 3.16.

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In addition, the parties'Stipulated Jury Verdict Form has been revised to clarify the claims and the jury' verdict on them, as well as to incorporate cross references to individual s instructions. The revised Jury Verdict Form is attached. Counsel shall review the draft and any comments indicated in bold type before the conclusion of proceedings on Monday, January 30, 2006, when it will be finalized and given to counsel and to the jury for inclusion in their jury instruction notebooks.

Dated: January 29, 2006

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SECTION 5.0 JURY VERDICT FORM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-K-1143 (CBS)

DOLLY LAU, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant.

JURY VERDICT FORM

We, the jury, present our Answers to the Questions submitted by the Court, to which we have all agreed: I. Breach of Insurance Contract - Underinsured Motorist Benefits

(Instruction 3.3). 1. Looking first to paragraph 1 of instruction 3.3, what is the total

amount of damages, if any, for noneconomic losses or injuries which Ms. Lau has suffered as a result of the collision up to the present time and which you find she will probably suffer in the future? $ __________

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As set forth in paragraph 1 of Instruction 3.3, you must limit your damages in this category to physical and mental pain and suffering, inconvenience, emotional stress and impairment of the quality of life. You may not include

damages for " physical impairment,"because those damages, if any, are included in a separate category at paragraph 3. You should answer " if you determine 0" Ms. Lau has proven no noneconomic damages in this category 1. 2. Looking to paragraph 2 of instruction 3.3, you must now determine

the total amount of economic losses or injuries which Ms. Lau has suffered as a result of the collision, up to the present time and which you find she will probably suffer in the future. Again, these damages do not include actual damages for " physical impairment." Remember that in making you calculation for economic losses or injuries, you must exclude the amount of medical expenses Ms. Lau has incurred or will incur during the first five years after the collision because these expenses (up to $50,000) are to be covered under the PIP (a separate category of) provisions of Ms. Lau' insurance policy with Allstate. Accordingly, s you are asked to answer the following questions regarding economic damages separately: (a) First, please enter the total amount of reasonable and necessary medical expenses you find Ms. Lau has incurred and will incur during the first five years after the collision (i.e. from the date of the collision on September 28, 2001

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to September 28, 2006), even if that amount exceeds $50,000. If you find Ms. Lau has failed to prove she has incurred or will incur any medical expenses during the first five years after the collision, please enter " 0." $ ___________ (b) Next, what is the total amount of damages, if any, of other economic losses or injuries which Ms. Lau has suffered as a result of the collision to the present time and which you find she will probably suffer in the future (not limited to five years after the accident) in the following categories: $ _________ for loss of earnings to the present time $ _________ for damage to her ability to earn money in the future $ _________ for reasonable and necessary medical expenses beyond $50,000, if any (see you answer to question 2(a) above); $ _________ for hospital and other expenses not included as " medical"expenses in previous questions. 3. What is the total amount of Dolly Lau' damages for physical s

impairment? Do not include in this category any damages already determined in paragraphs 1 and 2 above. $__________

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II. Breach of Insurance Contract ­ Personal Injury Protection (PIP) Benefits (Instruction 3.4) 4. What was the total amount of medical expenses you identified in your answer to Question 2(a) above? If the amount was greater than $50,000, enter $50,000 in the space provided below. If the amount was less than $50,000 but greater than $0, enter that amount in the space provided below. If the amount was $0, skip to Question 8. $ __________ 5. Did Allstate fail to pay any of these medical expenses within 30 to 45 days after receiving reasonable proof of the fact and amount of those expenses? ____ YES ____ NO

IF YOUR ANSWER TO QUESTION 5 IS " NO,"PLEASE SKIP TO QUESTION 8. IF YOUR ANSWER TO QUESTION 5 IS " ES," PLEASE PROCEED TO Y QUESTION 6. 6. What is the total amount of Dolly Lau' medical bills that were not s paid by Allstate in a timely manner after Allstate had reasonable proof of the fact and amount of these bills? $_________ 7. In failing to pay or delaying the payment of personal injury

protection benefits under question 5 above, did Allstate act in a willful and wanton
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manner? (note: there is no commensurate jury instruction defining " willful and wanton" in this context or instructing the jury as to the relevance of such a factual circumstance. This question will not be included in the final Jury Verdict Form absent the inclusion of a definition of willful and wanton or clarification of this standard to omit reference to it in the verdict form and Instruction 1.1) (Check either " Yes"or " ) No" ANSWER: ________ (Yes) _________(No)

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III. Bad Faith Breach of Insurance Contract

8.

Did Allstate act unreasonably in denying or delaying payment of the

plaintiff' underinsured and/or personal injury protection claims? (See Instruction s Nos. 3.5, 3.6, 3.7, 3.9) (Check either " Yes"or " ) No" ANSWER: ________ (Yes) _________(No)

IF YOUR ANSWER TO QUESTION 8 IS " YES"THEN GO ON TO QUESTION 9. IF YOUR ANSWER IS NO, PLEASE SKIP TO THE BOTTOM AND SIGN AND DATE THE VERDICT FORM. 9. Did the defendant know that its conduct or position was

unreasonable or did the defendant recklessly disregard the fact that its conduct or position was unreasonable? (Instructions 3.6, 3.8) (Check either " Yes"or " ) No" ANSWER: ________ (Yes) _________(No)

IF YOUR ANSWER TO QUESTION 9 IS " YES"THEN GO ON TO QUESTION 10. IF YOUR ANSWER TO QUESTION 9 IS " NO,"PLEASE SKIP TO THE BOTTOM AND SIGN AND DATE THE VERDICT FORM.

10.

Did the defendant' unreasonable conduct or position cause the s

plaintiff damages? (Instruction Nos. 3.5, 3.12)

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(Check either " Yes"or " ) No" ANSWER: ________ (Yes) _________(No)

IF YOUR ANSWER TO QUESTION 10 IS " YES,"THEN PROCEED TO QUESTION 11. IF YOUR ANSWER TO QUESTION 10 IS " NO,"PLEASE SKIP TO THE BOTTOM AND SIGN AND DATE THE VERDICT FORM.

11.

What is the total amount of damages caused by Allstate' bad faith s

breach of the insurance contract? (Instruction 3.12) ANSWER: $ _____________ Punitive Damages 11. What amount, if any, do you award for punitive damages against

Allstate? (Instruction 3.13) ANSWER: $ _____________ _____________________ Presiding Juror _____________________ _____________________ _____________________ _____________________ _____________________ _____________________

_____________________ _____________________ _____________________ _____________________ _____________________

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