Free Proposed Jury Instructions - District Court of Arizona - Arizona

STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: (602) 257-5200 Facsimile: (602) 257-5299 Karl M. Tilleman (013435) P. Bruce Converse (005868) Janice K. Crawford (019042) Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Northland Insurance Company, a Minnesota corporation, Plaintiff, vs. Correctional Medical Services, Inc., a Missouri corporation, Dr. Antonio DiMaano, Dr. Reynaldo Figueroa, Nurse Lorraine Lopez-Moreno, Nurse Trina Carrasco, Nurse Jacqueline Cornwell, and ABC Insurance Company, Defendants. DATED this 24th day of February, 2006. STEPTOE & JOHNSON LLP By /s/ P. Bruce Converse Karl M. Tilleman P. Bruce Converse Janice K. Crawford 201 East Washington Street, Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Plaintiff PROPOSED JURY INSTRUCTIONS No. CV 04-347 PHX-FJM

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Index of Proposed Jury Instructions Northland v. Correctional Medical Services, et al.
I. Index of Proposed Jury Instructions A. Preliminary Instructions 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. B. RAJI 4th Preliminary 1 - Duty of Jurors RAJI 4th Preliminary 3 - Evidence RAJI 4th Preliminary 4 ­ Rulings of the Court RAJI 4th Preliminary 5 ­ Credibility of Witnesses RAJI 4th Preliminary 6 ­ Expert Witness RAJI 4th Preliminary 8 - No Transcript Available to Jury; Taking Notes RAJI 4th Preliminary 9 ­Admonition RAJI 4th Preliminary 11 ­ Questions by Jurors RAJI 4th Preliminary 13 ­ Alternate Jurors RAJI 4th Preliminary 16 ­ Order of Trial Non-RAJI Preliminary Instruction No. 1 ­ Redactions Non-RAJI Preliminary Instruction No. 3 ­ Breach of Contract Non-RAJI Preliminary Instruction No. 4 ­ Fraud

Instructions During Trial 1. 2. Non-RAJI Trial Instruction No. 1 ­ Bench Conferences and Recesses Non-RAJI Trial Instruction No. 2 ­ Depositions as Substantive Evidence

C.

Instructions After Trial 1. 2. 3. 4. RAJI 3d Standard 1 ­ Duty of Jurors RAJI 3d Standard 2 - Evidence RAJI 3d Standard 3 ­ Rulings of the Court RAJI 3d Standard 4 - Arguments of Counsel -2Document 155
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5. 6. 7. 8. 9. 10. 11. 12. 13. 14. D.

RAJI 3d Standard 5 ­ Stipulations RAJI 3d Standard 6 ­ Credibility of Witnesses RAJI 3d Standard 7 ­ Expert Witness RAJI 4th Standard 2 ­ Burden of Proof (More Probably True) RAJI 4th Standard 4 - Corporate Party RAJI 4th Standard 6 ­ Impasse in Jury Deliberations RAJI 4th Standard 7 - Excused Alternate Jurors RAJI 4th Standard 8 ­ Closing Instruction RAJI 4th Standard 9 ­Insurance Non-RAJI Standard Instruction No. 1 - Redactions

Substantive Instructions 1. 2. 3. 4. 5. 6. 7. 8. 9. RAJI 4th Contract 2 ­ Claims and Elements RAJI 4th Contract 17 ­ Contract ­ Measure of Direct Damages (Breach of Contract) Non-RAJI Substantive Instruction No. 1 ­ Contract ­ Intention of the Parties Non-RAJI Substantive Instruction No. 2 ­Contract ­ Duty of Good Faith and Fair Dealing Non-RAJI Substantive Instruction No. 3 ­ Compensatory Damages Non-RAJI Substantive Instruction No. 4 ­ Desire to Make a Profit Not an Improper Motive Non-RAJI Substantive Instruction No. 5 ­ Contract ­ Consequential Damages Non-RAJI Substantive Instruction No. 6 ­ Fraud Non-RAJI Substantive Instruction No. 7 ­ Fraud ­ Consequential Damages

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RAJI 4th Preliminary 1 - Duty of Jurors

Ladies and Gentlemen: Now that you have been sworn, I will briefly tell you something about your duties as jurors and give you some instructions. At the end of the trial I will give you more detailed instructions, and those instructions will control your deliberations. It will be your duty to decide the facts. You must decide the facts only from the evidence produced in court. You must not speculate or guess about any fact. You must not be influenced by sympathy or prejudice. You will hear the evidence, decide the facts, and then apply those facts to the law I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. You must not take anything I may say or do during the trial as indicating any opinion about the facts. You, and you alone, are the judges of the facts.

SOURCE: RAJI (CIVIL) Preliminary 1, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 10.01, as modified.

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RAJI 4th Preliminary 3 - Evidence

You will decide what the facts are from the evidence presented here in court. That evidence will consist of testimony of witnesses, any documents and other things received in evidence as exhibits, and any facts stipulated, or agreed to, by the parties or which you are instructed to accept. You will decide the credibility and weight to be given to any evidence presented in the case, whether it be direct evidence or circumstantial evidence. Direct evidence is a physical exhibit or the testimony of a witness who saw, heard, touched, smelled or otherwise actually perceived an event. Circumstantial evidence is the proof of a fact from which the existence of another fact may be inferred. You must determine the weight to be given to all the evidence without regard to whether it is direct or circumstantial.

SOURCE: RAJI (CIVIL) Preliminary 3, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), §§ 10.02, 12.05, as modified.

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RAJI 4th Preliminary 4 ­ Rulings of the Court

Admission of evidence in court is governed by rules of law. I will apply those rules and resolve any issues that arise during the trial concerning the admission of evidence. If an objection to a question is sustained, you must disregard the question and you must not guess what the answer to the question might have been. If an exhibit is offered into evidence and an objection to it is sustained, you must not consider that exhibit as evidence. If testimony is ordered stricken from the record, you must not consider that testimony for any purpose. Do not concern yourselves with the reasons for my rulings on the admission of evidence. Do not regard those rulings as any indication from me of the credibility or weight you should give to any evidence that has been admitted.

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SOURCE: RAJI (CIVIL) Preliminary 4, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 10.05, as modified.

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RAJI 4th Preliminary 5 ­ Credibility of Witnesses

In deciding the facts of this case, you should consider what testimony to accept, and what to reject. You may accept everything a witness says, or part of it, or none of it. In evaluating testimony, you should use the tests for accuracy and truthfulness that people use in determining matters of importance in everyday life, including such factors as: the witness' ability to see or hear or know the things the witness testified to; the quality of the witness' memory; the witness' manner while testifying; whether the witness has any motive, bias, or prejudice; whether the witness is contradicted by anything the witness said or wrote before trial, or by other evidence; and the reasonableness of the witness' testimony when considered in the light of the other evidence. Consider all of the evidence in light of reason, common sense, and experience.

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SOURCE: RAJI (CIVIL) Preliminary 5, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 10.07, as modified.

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RAJI 4th Preliminary 6 ­ Expert Witness

A witness qualified as an expert by education or experience may state opinions on matters in that witness' of expertise, and may also state reasons for those opinions. field Expert opinion testimony should be judged just as any other testimony. You are not bound by it. You may accept it or reject it, in whole or in part, and you should give it as much credibility and weight as you think it deserves, considering the witness' qualifications and experience, the reasons given for the opinions, and all the other evidence in the case.

SOURCE: RAJI (CIVIL) Preliminary 6, as modified; Rule 702, Arizona Rules of Evidence; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 12.07, as modified.

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RAJI 4th Preliminary 8 - No Transcript Available to Jury; Taking Notes

At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not be given a written transcript of any testimony; you should pay close attention to the testimony as it is given. You have been provided with note pads and pencils. The court encourages you to take notes during the trial if you wish to do so. Do not let note taking distract you so that you miss hearing or seeing other testimony. You may take your notes [and notebooks]1 with you when you leave the courtroom for recesses, and may use them during [discussions with other jurors in the jury room during the trial and during]2 your deliberations at the end of the trial. Until then, keep your notes to yourself. If you do not want to take notes [and notebook] with you during the trial, you should leave them on your seat. Whether you take notes or not, you should rely upon your own memory of what was said and not be overly influenced by the notes of other jurors. After you have rendered your verdict, the bailiff will collect your notes and destroy them. Do not be influenced at all by my taking notes at times. What I write down may have nothing to do with what you will be concerned with at this trial.

SOURCE: RAJI (CIVIL) Preliminary 8, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), §§ 10.10, 10.11, and 10.12, as modified; Rule 39(d)(3) and Rule 39(p), Arizona Rules of Civil Procedure.

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RAJI 4th Preliminary 9 ­Admonition

I am now going to say a few words about your conduct as jurors. I am going to give you some do' and don' mostly don' which I will call " Admonition."This admonition is s ts, ts, The designed to prevent jury tampering and any appearance of jury tampering, something that cannot be tolerated in our system of justice. Do wear your juror badge at all times in and around the courthouse so everyone will know you are on a jury. Do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. " Research"includes doing things such as looking up words in a dictionary or encyclopedia, or using treatises or similar sources with respect to any of the issues involved in the case. Research also includes searching on the internet or using other electronic devices to obtain information. The reason for this is that you have to base any decision on the evidence that is produced here in the courtroom. Do not talk to anyone about the case, or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you can'talk t about it until it is over. It is your duty not to speak with or permit yourselves to be addressed by any person on any subject connected with the trial. If someone should try to talk to you about the case, stop him or her or walk away. If you should overhear others talking about the case, stop them or walk away. If anything like this does happen, report it to me or any member of my staff [insert phone number] as soon as you can. To avoid even the appearance of improper conduct, do not talk to any of the parties, the lawyers, or witnesses about anything until the case is over, even if your conversation with them has nothing to do with the case. For example, you might pass an attorney in the hall, and ask what good restaurants there are downtown, and somebody from a distance

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may think you are talking about the case. So, again, please avoid even the appearance of improper conduct. The lawyers and parties haven been given the same instruction about not speaking with you jurors, so do not think they are being unfriendly to you. When you go home tonight and family and friends ask what the case is about, remember you cannot speak with them about the case. All you can tell them is that you are on a jury, the estimated schedule for the trial, and that you cannot talk about the case until it is over. There is one and only one limited exception to the foregoing rules. During recesses from the trial, you may discuss the evidence presented at the trial, but: 1) only among yourselves; and 2) only when you are all together; and 3) only in the jury room. Even though you may discuss the case under the conditions I have described, do not form final opinions about any fact or about the outcome of the case until you have heard and considered all of the evidence, the closing arguments, and the rest of the instructions I will give you on the law. Both sides have the right to have the case fully presented and argued before you decide any of the issues in the case. Keep an open mind during the trial. Form your final opinions only after you have had an opportunity to discuss the case with each other in the jury room at the end of the trial. If at anytime during the trial you have difficulty hearing or seeing something you should be hearing or seeing, or if you have personal distress for any reason, raise your hand and let me know. If you have any questions about parking, restaurants, or other personal matters relating to your jury service, feel free to ask one of the court staff. But, remember that the admonition applies to court staff, as it does to everybody else, so do not try to discuss the case with court staff. Before each recess, I will not repeat the entire Admonition I have just given you. I probably will refer to it by saying, " Please remember the Admonition,"or something like that.

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However, even if I forget to make reference to it, remember that the Admonition still applies at all times during the trial.

SOURCE: RAJI (CIVIL) Preliminary 9, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 10.10, as modified; Rule 39(f), Arizona Rules of Civil Procedure.

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RAJI 4th Preliminary 11 ­ Questions by Jurors

If at any time during the trial you have difficulty hearing or seeing something that you should be hearing or seeing, or if you get into personal distress for any reason, raise your hand and let me know. If you have any questions about parking, restaurants, or other personal matters relating to jury service, feel free to ask one of the court staff. But remember that the Admonition applies to court staff, as it does to everybody else, so do not try to discuss the case with court staff. [If you have a question you would like to ask a witness or me during the trial, write your question down, but do not sign it. Hand the question to the bailiff during a recess. If you have a question for a witness who is about to leave the witness stand, signal the bailiff or me before the witness leaves the stand. I will discuss the question with the lawyers. If I decide the question is proper, an answer will be provided at the earliest logical opportunity. Keep in mind, however, that the rules of evidence or other rules of law may prevent some questions from being asked. I will apply the same legal standards to your questions as I do to the questions asked by the lawyers. If a particular question is not asked, do not guess why or what the answer might have been. The failure to ask a question is not a reflection on the person asking it, and you should not attach any significance to the failure to ask a question.]

SOURCE: RAJI (CIVIL) Preliminary 11, as modified BENCH BOOK FOR SUPERIOR COURT JUDGES (1982), as modified; Rule 39(b)(10); Arizona Rules of Civil Procedure and Comment to 1995 Amendment.

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RAJI 4th Preliminary 13 ­ Alternate Jurors

The law provides for a jury of six to twelve persons in a case such as this. In any case lasting several days, we seat alternate jurors so that, if a juror becomes ill or has a personal emergency, the trial can continue without that juror. At the end of the case, alternate jurors will be determined by lot in a drawing held in open court. Do not be concerned with who may or may not be chosen as an alternate at the end of the case. Each of you must consider yourself a juror throughout the trial and comply with the admonitions I have given you.

Source: Rule 48, Federal Rules of Civil Procedure; RAJI (CIVIL) Preliminary 13.

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RAJI 4th Preliminary 16 ­ Order of Trial

Soon you will begin hearing the evidence. Before that, each side may make an opening statement. An opening statement is not evidence; it is an outline of the expected evidence. It is offered to help you understand and follow the evidence that will be presented during trial. Next, plaintiff will present witnesses and defendant may cross-examine them. Then defendant may present witnesses, and plaintiff may cross-examine. Plaintiff may then present further evidence. After the evidence has been presented, the attorneys will make their closing arguments. I will also instruct you on the law that you are to apply in deciding the case. You will then go to the jury room to deliberate and decide the case. The final instructions I give you at the end of the trial may differ from these preliminary instructions. The preliminary jury instructions will be replaced by the final jury instructions I will give you at the end of the trial. The final instructions will govern your deliberations.

SOURCE: Bench Book For Superior Court Judges; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 10.13, as modified.

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Non-RAJI Preliminary Instruction No. 1 ­ Redactions

During the course of trial and your deliberations you may see documents that have had portions of them covered or redacted. These redactions are made to remove information from the trial that is irrelevant to any of the issues in this case. You are instructed not to attach any significance to any redactions made from any document introduced into evidence. You should not speculate as to what has been redacted from any document and you should not view any redaction as reflecting positively or negatively on any party.

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Non-RAJI Preliminary Instruction No. 2 ­ Breach of Contract

Northland claims that CMS breached its contract with Northland (as CSC' assignee) by s failing to name CSC as an additional insured on the PHICO insurance policy which damaged Northland (as CSC' assignee). Northland also claims that CMS breached its contract with s Northland (as CSC'assignee) by failing to property notify PHICO of the tender of the defense of s the Valdez matter. On this claim, Northland must prove the following: 1. 2. There was a contract between Northland (as CSC'assignee) and CMS; s CMS breached the contract.

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Non-RAJI Trial Instruction No. 1 ­ Bench Conference and Recesses

From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney' request for a conference. Do s not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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SOURCE: Ninth Circuit Model Civil Jury Instruction No. 2.2 (2001 ed.).

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Non-RAJI Instruction No. 2 ­ Depositions as Substantive Evidence

When a person is unavailable to testify at trial, the deposition of that person may be used at the trial. A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify.

SOURCE: Ninth Circuit Model Civil Jury Instruction No. 2.6 (2001 ed.), as modified.

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RAJI 3d Standard 1 ­ Duty of Jurors

I will now tell you the rules you must follow to decide this case. I will instruct you on the law. It is your duty to follow the law whether you agree with it or not. It is also your duty to determine the facts. You must determine the facts only from the evidence produced in court. You should not speculate or guess about any fact. You must not be influenced by sympathy or prejudice. You must not be concerned with any opinion you may feel I have about the facts. You are the sole judges of the facts. You must take account of all my instructions on the law. You are not to pick out one instruction, or part of one, and disregard the others. However, after you have determined the facts, you may find that some instructions do not apply. You must then consider the instructions that do apply, together with the facts as you have determined them. Decide the case by applying the law in these instructions to the facts.

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SOURCE: RAJI (CIVIL) Standard 1, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 12.01, as modified.

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RAJI 3d Standard 2 - Evidence

You will decide what the facts are from the evidence presented here in court. That evidence will consist of testimony of witnesses, any documents and other things received into evidence as exhibits, and any facts stipulated to by the parties or which you are instructed to accept. You will decide the credibility and weight to be given to any evidence presented in the case, whether it be direct evidence or circumstantial evidence.

SOURCE: RAJI (CIVIL) Standard 2, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), §§ 10.02, 12.05, as modified.

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RAJI 3d Standard 3 ­ Rulings of the Court

Admission of evidence in court is governed by rules of law. I have applied those rules during the trial and resolved any issues concerning the admission of evidence. If an objection to a question was sustained, you must disregard the question and you must not guess what the answer to the question might have been. If an exhibit was offered into evidence and an objection to it was sustained, you must not consider that exhibit as evidence. If testimony was ordered stricken from the record, you must not consider that testimony for any purpose. [If evidence was admitted for a limited purpose, you shall consider that evidence only for that limited purpose.] Do not concern yourselves with the reasons for my rulings on the admission of evidence. Do not regard those rulings as any indication from me of the credibility or weight you should give to any evidence that has been admitted.

SOURCE: RAJI (CIVIL) Standard 3, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), §§ 10.05, 10.06, as modified.

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RAJI 3d Standard 4 - Arguments of Counsel

In the opening statements and closing arguments the lawyers have talked to you about the law and the evidence. What the lawyers said is not evidence, but it may help you to understand the law and the evidence.

SOURCE: RAJI (CIVIL) Standard 4.

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RAJI 3d Standard 5 ­ Stipulations

The parties are permitted to stipulate or agree that certain facts exist. You must regard any stipulated or agreed upon fact as having been proved.

SOURCE: RAJI (CIVIL) Standard 5, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 11.04, as modified.

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RAJI 4th Standard 6 ­ Credibility of Witnesses

In deciding the facts of this case, you should consider what testimony to accept, and what to reject. You may accept everything a witness says, or part of it, or none of it. In evaluating testimony, you should use the tests for truthfulness that people use in determining matters of importance in everyday life, including such factors as: the witness's ability to see or hear or know the things the witness testified to; the quality of the witness's memory; the witness's manner while testifying; whether the witness had any motive, bias, or prejudice; whether the witness was contradicted by anything the witness said or wrote before trial, or by other evidence; and the reasonableness of the witness's testimony when considered in the light of the other evidence. Consider all of the evidence in the light of reason, common sense, and experience.

SOURCE: RAJI (CIVIL) Standard 6, as modified; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 10.07, as modified.

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RAJI 4th Standard 7 ­ Expert Witness

A witness qualified as an expert by education or experience may state opinions on matters in that witness's field of expertise, and may also state reasons for those opinions. Expert opinion testimony should be judged just as any other testimony. You are not bound by it. You may accept it or reject it, in whole or in part, and you should give it as much weight as you think it deserves, considering the witness's qualifications and experience, the reasons given for the opinions, and all the other evidence in the case.

SOURCE: Rule 702, Arizona Rules of Evidence; MANUAL OF MODEL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT (1985), § 12.07, as modified.

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RAJI 4th Standard 2 ­ Burden of Proof (More Probably True)

Burden of proof means burden of persuasion. On any claim, the party who has the burden of proof must persuade you, by the evidence, that the claim is more probably true than not true. This means that the evidence that favors that party outweighs the opposing evidence. In determining whether a party has met this burden, consider all the evidence that bears on that claim, regardless of which party produced it.

SOURCE: RAJI (CIVIL) Standard 2.

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RAJI 4th Standard 4 - Corporate Party

A corporation is a party in this lawsuit. Corporations and individuals are entitled to the same fair and impartial consideration and to justice reached by the same legal standards. When I use the word "person" in these instructions, or when I use any personal pronoun referring to a party, those instructions also apply to Northland Insurance Company.

Source: RAJI (CIVIL) Standard 4.

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RAJI 4th Standard 6 ­ Impasse in Jury Deliberations

I have been informed you are having difficulty reaching a verdict. This instruction is offered to help you, not to force you to reach a verdict. You may want to identify areas of agreement and disagreement and discuss the law and the evidence as they relate to the areas of disagreement. If you still disagree, you may wish to tell the attorneys and me which issues, questions, law or facts you would like us to assist you with. If you decide to follow these steps, please write down the areas of disagreement and give the note to the bailiff. We will then discuss your note and try to help you.

SOURCE: RAJI (CIVIL) Standard 6; Rule 39(h), Arizona Rules of Civil Procedure and Comment to 1995 Amendment.

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RAJI 4th Standard 7 - Excused Alternate Jurors

[Insert name of alternate juror], your name has been drawn by lot as an alternate juror. While you are physically excused from your service as a juror at this time, there remains a possibility you may be called back to court to deliberate should one of the other jurors be unable to do so. The bailiff will retain your notes [and notebook] for your use if you are called back. The admonition continues to apply to you. Please do not discuss this case with anyone or let anyone talk to you about it until you have been notified a verdict has been reached or the jury has been discharged.

SOURCE: RAJI (CIVIL) Standard 7.

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RAJI 4th Standard 8 ­ Closing Instruction

The case is now submitted to you for decision. When you go to the jury room you will choose a foreman. He or she will preside over your deliberations. All of you must agree on a verdict. You will be given __________ forms of verdict. They read as follows (there is no significance to the order in which they are read):

SOURCE: RAJI (CIVIL) Standard 8, as modified; Rule 48, Federal Rules of Civil Procedure.

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RAJI 4th Standard 9 ­ Insurance In reaching your verdict, you should not consider or discuss whether a party was or was not covered by insurance with respect to that party'damages. Insurance or the lack of insurance s has no bearing on whether or not a party was at fault, or the damages, if any, a party has suffered.

SOURCE: Modified version of the insurance instruction proposed in 87 VA. L. REV. 1857, at 1910 (Dec. 2001). See also JUDICIAL COUNCIL OF CALIFORNIA CIVIL JURY INSTRUCTIONS (2003-04), CACI No. 105.

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Non-RAJI Standard Instruction No. 1 - Redactions

During the course of trial and your deliberations you have seen documents that have had portions of them covered or redacted. These redactions are made to remove information from the trial that is irrelevant to any of the issues in this case. You are instructed not to attach any significance to any redactions made from any document introduced into evidence. You should not speculate as to what has been redacted from any document and you should not view any redaction as reflecting positively or negatively on any party.

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RAJI 4th Contract 2 - Claims and Elements

I will give you detailed instructions of law later in these instructions. But I will now give you a statement of each claim in the case, and a statement of what has to be proved in each claim. Northland (as CSC'assignee) claims that CMS breached the Health Services Agreement. s On this claim, Northland must prove the following: 1. 2. There was a contract between Northland (as CSC'assignee) and CMS; s CMS breached the contract.

If you find that a material breach of contract occurred, it will then become your duty to consider the issue of damages.

Source: RAJI (Civil), Contract 2, as modified; Amos Flight Operations, Inc. v. Thunderbird

Bank, 112 Ariz. 263, 540 P.2d 1244 (1975); Hitching Post Lodge, Inc. v. Kerwin, 101 Ariz. 402, 420 P.2d 273 (1966); Mahurin v. Schmeck, 95 Ariz. 333, 390 P.2d 576 (1964).

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RAJI Contract Instruction No. 17 ­ Contract ­ Measure of Direct Damages (Breach of Contract) If you find that CMS is liable to Northland (as CSC'assignee) for breach of contract, you s must then decide the full amount of money that will reasonably and fairly compensate Northland (as CSC' assignee) for the damages proved by the evidence to have resulted naturally and s directly from the breach of contract. The damages you award for breach of contract must be the amount of money that will place Northland in the position Northland would have been in if the contract had been performed. To determine those damages, you should consider the following: 1. The profit that Northland (as CSC' assignee) would have received had the s

contract been performed; 2. The return of the value of the things or services that Northland (as CSC' s

assignee) provided to the CMS; 3. The value of things or services expended by Northland (as CSC' assignee) in s

preparing to perform its part of the contract or in preparing to accept the benefits of CMS' expected performance.

SOURCE: A.R.A. Mfg. Co. v. Pierce, 86 Ariz. 136, 141, 341 P.2d 928, 932 (1959); Northern Ariz. Gas Serv., Inc. v. Petrolane Transp., Inc., 145 Ariz. 467, 478-79, 702 P.2d 696, 707-08 (Ct. App. 1984); Southern Ariz. School for Boys, Inc. v. Chery, 119 Ariz. 277, 280, 580 P.2d 738, 741 (Ct. App. 1978); RESTATEMENT (SECOND) OF CONTRACTS §§ 347, 351 (1981); DOBBS, HANDBOOK ON THE LAW OF REMEDIES § 12.1 (1973); RESTATEMENT (SECOND) OF CONTRACTS § 349 (1981).

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Non-RAJI Substantive Instruction No. 1 Contract - Determining Intent of Parties In deciding what a contract provision means, you should attempt to determine what the parties intended at the time that the contract was formed. You may consider the surrounding facts and circumstances as you find them to have been at the time that the contract was formed. It is for you to determine what those surrounding facts and circumstances were. To determine what the parties intended the terms of a contract to mean, you may consider the language of the written agreement; the acts and statements of the parties themselves before any dispute arose; the parties' negotiations; any prior dealings between the parties; any reasonable expectations a party may have had as to the result of the promises or conduct of the other party; and any other evidence that sheds light on the parties' intent.

SOURCE: RAJI (Civil) Contract 26; Anderson v. Preferred Stock Markets, Inc., 175 Ariz. 208, 854, P.2d 1194 (App. 1993); Gordinier v. Aetna Casualty & Sur. Co., 154 Ariz. 266, 742 P.2d 277 (App. 1987); Public Serv. Co. of Okla. v. Bleak, 134 Ariz. 311, 656 P.2d 600 (1982); Polk v. Koerner, 111 Ariz. 493, 533 P.2d 660 (1975); United Cal. Bank v. Prudential Ins. Co., 140 Ariz. 238, 681 P.2d 390 (App. 1983); Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc., 124 Ariz. 242, 603 P.2d 513 (App. 1979); Associated Students of the Univ. of Ariz. v. Arizona Bd. of Regents, 120 Ariz. 100, 584 P.2d 564 (App. 1978).

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Non-RAJI Substantive Instruction No. 2 Contract - Good Faith and Fair Dealing Every party to a contract has a duty to act fairly and in good faith. This duty is implied by law and need not be in writing. This duty requires that neither party do anything that prevents the other party from receiving the benefits of their agreement. If you find that CMS has breached the duty of good faith and fair dealing, then Northland is entitled to recover damages proven by the evidence to have resulted naturally and directly from the breach.

SOURCE: RAJI (Civil) Contract 16, as modified; Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 888 P.2d 1375 (App. 1994); Miel v. State Farm Mut. Auto. Ins. Co, 185 Ariz. 104, 912 P.2d 1333 (App. 1995); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986); Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 381, 710 P.2d 1025, 1036 (1985); Southwest Sav. & Loan Ass'n v. SunAmp Systems, 172 Ariz. 553, 838 P.2d 1314, 1320 (App. 1992); Oldenburger v. Del E. Webb Dev. Co., 159 Ariz. 129, 765 P.2d 531 (App. 1988); California Lettuce Growers, Inc. v. Union Sugar Co., 289 P.2d 785 (Cal. 1955); Restatement (Second) of Contracts § 205 cmt. d, illus. 6; Rapp Collins Worldwide, Inc. v. Mohr, 982 S.W.2d 478, 485-86 (Tex. App. 1998) (affirming judgment in favor of executive against former employer where evidence supported a finding that employer' s decision to deny bonus was not fair, honest, reasonable, and in good faith); Lessley v. Hardrage, 727 P.2d 440, 447-48 (Kan. 1986) (where an employer agreed to place a fixed percentage of profits aside to be divided among key personnel, and employer had discretion to allocate funds in a manner commensurate with the quantity and quality of their work, the employer was bound by the duty of good faith and fair dealing in making bonus determinations).

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Non-RAJI Substantive Instruction No. 3 Contract - Compensatory Damages If you find that CMS is liable to Northland on the breach of contract claims, you must decide the amount of money that will reasonably and fairly compensate the plaintiffs. e amount of a monetary award, if any, must be sufficient to compensate Northland. A monetary award of damages must be based upon a fair and reasonable evaluation of the evidence.

Sources: Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 521, 446 P.2d 458, 464 (1968); Valley Nat'l Bank v. Brown, 110 Ariz. 260, 264, 517 P.2d 1256, 1260 (1974); Larsen v. Decker, 196 Ariz. 239, 245, 995 P.2d 281, 287 (Ct. App. 2000); Hall v. Schulte, 172 Ariz. 279, 284, 836 P.2d 989, 994 (Ct. App. 1992); Weiner v. Ash, 157 Ariz. 232, 235, 756 P.2d 329, 332 (Ct. App. 1988); Lewin v. Miller Wagner & Co., 151 Ariz. 29, 34, 725 P.2d 736, 741 (Ct. App. 1986); Nienstedt v. Wetzel, 133 Ariz. 348, 353, 651 P.2d 876, 881 (Ct. App. 1982); Valley Nat'l Bank v. Brown, 110 Ariz. 260, 264, 517 P.2d 1256, 1260 (1974); Brown v. Valley Nat'Bank of Ariz., 26 l Ariz. App. 538, 540, 549 P.2d 1056, 1058 (1976); Anderson v. Muniz, 21 Ariz. App. 25, 28, 515 P.2d 52, 55 (1973).

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Non-RAJI Substantive Instruction No. 4 ­ Desire To Make a Profit Not Improper Motive

Plaintiff Northland Insurance Company is a legal entity known as a stock insurance company. Stock insurance companies are organizations that are intended to make a profit for their stockholders, who need not be policyholders. Stockholders in stock insurance companies such as Northland are entitled to any of the residual profits of such companies. There is nothing improper in Northland'undertaking to make a profit for its shareholders. s

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Source: 3 Couch on Insurance §§ 39:3 & 39:4, at 39-7 (3rd ed. 1996) (citing Ohio St. Life Ins. Co. v. Clark, 274 F.2d 771 (6th Cir. 1960)); [other cases from NAIC article]

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RAJI Contract Instruction No. 5 ­ Contract ­ Consequential Damages Northland (as CSC' assignee) also seeks to recover damages for items of damage s determined by the court to be consequential in nature rather than direct. To recover for these damages, Northland must prove: 1. It was foreseeable to the parties when they entered into the contract that these damages would probably result if the contract was breached; 2. These damages were in fact caused by CMS' breach of contract; and 3. The amount of the damages.

SOURCE: Seekings v. Jimmy GMC of Tucson, Inc., 130 Ariz. 596, 601, 638 P.2d 210, 215 (1981); Cole v. Atkins, 69 Ariz. 81, 209 P.2d 859, 861-62 (1949); Miscione v. Bishop, 130 Ariz. 371, 374, 636 P.2d 149, 152 (Ct. App. 1981).

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Non-RAJI Fraud Instruction No. 6 ­ Fraud Northland (as CSC' assignee) claims that CMS defrauded CSC. To establish this claim, s Northland must prove: 1. CMS made a representation to Northland; 2. The representation was false; 3. The representation was material, which means that it was sufficiently important to influence a reasonable person'actions; s 4. CMS knew that the representation was false; 5. CMS intended that CSC would act upon the representation in the manner reasonably contemplated by CMS; 6. CSC did not know that the representation was false; 7. CSC relied on the truth of the representation; 8. CSC'reliance was reasonable and justified under the circumstances; and s 9. As a result, Northland (as CSC'assignee) was damaged. s

SOURCE: Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 647 P.2d 629 (1982); Staheli v. Kauffman, 122 Ariz. 380, 595 P.2d 172 (1979).

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Non-RAJI Instruction No. 7 Fraud ­ Consequential Damages

Northland (as CSC' assignee) also seeks to recover damages for items of damage s determined by the court to be consequential in nature. To recover for these damages, Northland must prove: 1. These damages were in fact caused by CMS' fraud; and 2. The amount of the damages.

SOURCE: Ashley v. Kramer, 8 Ariz. App. 27, 442 P.2d 564 (1968); Bechtel v. Liberty Nat' l Bank, 534 F.2d 1335 (9th Cir. 1976).

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