Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Lynn M. Allen, State Bar Number 012612 Amy N. Toppel, State Bar Number 022106 ALLEN & LEWIS, PLC 4835 East Cactus Road, Suite 340 Scottsdale, AZ 85254 Telephone: (602) 443-0402 Facsimile: (602) 443-0403 Attorneys for Plaintiff/Counter Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA American Family Mutual Insurance Company, Plaintiff/Counter Defendant, vs. Robert D. Dunn and Joy Lynn Dunn, Defendants/Counterclaimants. ) ) ) ) ) ) ) ) ) ) ) )

No. CV2003-1277 PHX SRB PLAINTIFF'S REQUESTED JURY INSTRUCTIONS

Plaintiff requests the attached jury instructions in addition to the parties' stipulated jury instructions. DATED this 21st day of September, 2005. ALLEN & LEWIS, PLC. By: s/Lynn M. Allen Lynn M. Allen Amy N. Toppel Attorneys for Plaintiff/Counter Defendant ORIGINAL electronically filed this 21st day of September, 2005, with: The Clerk of the Court United States District Court COPY st the foregoing hand-delivered of This 21 day of September, 2005 to:

Case 2:03-cv-01277-SRB

Document 198

Filed 09/21/2005

Page 1 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Honorable Judge Susan R. Bolton United States District Court By: Laura Sakakibara

2
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 2 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12

Plaintiff's Requested Jury Instruction No. 1 CLAIMS AND DEFENSES To help you follow the evidence, I will give you a brief summary of the positions of the parties: American Family claims that the homeowners insurance policy issued to the Dunns does not cover the alleged damage to the residence, because it was not caused by a covered water leak. The Dunns deny that claim and also contend that American Family breached the covenant of good faith and fair dealing in its investigation and evaluation of the claim. American Family denies that it breached the covenant of good faith and fair

13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 3 of 13

dealing. American Family also contends that the Dunns conduct contributed to any delay in the claim investigation and that the Dunns failed to mitigate their damages. Source: Ninth Circuit Model Civil Jury Instructions No. 1.2 (Claims and Defenses)

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff's Requested Jury Instruction No. 2 CLAIMS AND DEFENSES COURT RULINGS

With respect to the appraisal award, I have ruled in this case that American Family does not owe the cost to stabilize the land or to repair the roof, garage, patio, or other structures. You are not to consider the amounts awarded for those repairs in determining damages in this case. In addition, I have ruled in this case that prior to the entry of the appraisal award in June 2002, American Family did not breach the covenant of good faith and fair dealing by not investigating or paying the Dunns' claim for mold damage. I have also ruled that American Family did not breach the covenant of good faith and fair dealing by denying the Dunns' claim for repair of the slab cracks. You are not to consider these acts or omissions in determining whether American Family breached the covenant of good faith and fair dealing and/or damages.

Source: See Arizona v. California, 460 U.S. 605 at 618, 103 S.Ct. 1382 at 1391 (1983) (law of the case doctrine); Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703 at 715 (9th Cir. 1990) (same); Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597 at 601 (9th Cir. 1991) (same).

4
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 4 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3.

Plaintiff's Requested Jury Instruction No. 3 CONTRACT MITIGATION OF DAMAGES American Family claims that the Dunns did not make reasonable efforts to prevent or reduce damages. The Dunns may not recover for any damages that could have been prevented or reduced through reasonable efforts. American Family must prove: 1. 2. The Dunns did not make reasonable efforts to prevent or reduce damages; If the Dunns had acted reasonably, the Dunns could have prevented or

reduced damages; and The amount of the Dunns' damages that could have been prevented or

reduced through reasonable efforts. Source: Revised Arizona Jury Instructions (Civil) 4th, Contract 23; Coury Bros. Ranches v. Ellsworth, 103 Ariz. 515, 518, 446 P.2d 458, 461 (1968); Fairway Builders, Inc. v. Malouf Towers Rental Co., 124 Ariz. 242, 255, 603 P.2d 513, 526 (App. 1979).

5
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 5 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff's Requested Jury Instruction No. 4 CONTRACT Claims and Elements The Dunns claim that American Family breached a contract--the homeowners insurance policy. On this claim, the Dunns must prove that there was a contract with American Family and that American Family breached the contract. American Family claims that the Dunns failed to mitigate their damages. American Family must prove this defense. The Dunns have the burden of proving coverage for their claim exists under the homeowners insurance policy. American Family has the burden of proving that exclusion(s) in the homeowners insurance policy preclude coverage for the Dunns' claim. Source: Revised Arizona Jury Instructions (Civil) 4th, Contract 2.

6
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 6 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14

Plaintiff's Requested Jury Instruction No. 5 CONTRACT Measure of Direct Damages If you find that American Family is liable to the Dunns for breach of contract, you must then decide the full amount of money that will reasonably and fairly compensate the Dunns for the damages proved by the evidence to have resulted naturally and directly from the breach of contract. The damage you award for breach of contract must be the amount of money that will place the Dunns in the position the Dunns would have been in if the contract had been performed. To determine those damages, you should consider the following: 1. The amount of money awarded by the appraisal panel to repair the cracks in

the slab caused by the covered water leaks. 15 16 17 18 19 20 21 22 23 24 25 26 7
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 7 of 13

2.

The cost to pack out, clean and store the Dunns' personal property during the

structure repairs. Source: Revised Arizona Jury Instructions (Civil) 4th, Contract 17; 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 (App. 1984).

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff's Requested Jury Instruction No. 6

BAD FAITH (FIRST-PARTY) Duty of Good Faith and Fair Dealing

There is an implied duty of good faith and fair dealing in every insurance policy. The Dunns claim that American Family breached this duty. To prove that American Family breached the duty of good faith and fair dealing, the Dunns must prove: 1. American Family intentionally denied, failed to pay, or delayed payment of

the claim without a reasonable basis for such action; and 2. American Family knew that it acted without a reasonable basis, or defendant

failed to perform an investigation or evaluation adequate to determine whether its action was supported by a reasonable basis. Source: Revised Arizona Jury Instructions (Civil) 4th, Bad Faith 1 (First-Party); Taylor v. State Farm, 175 Ariz. 148, 854 P.2d 1134 (1993); Noble v. Nat'l American Life Ins. Co., 128 Ariz. 188, 624 P.2d 866 (1981); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986).

8
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 8 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 determine.

Plaintiff's Requested Jury Instruction No. 7

BAD FAITH (FIRST-PARTY) Fairly Debatable Claim American Family has the right challenge a fairly debatable claim. Whether the Dunns' claim was fairly debatable is a question of fact that you must

If you believe that the Dunns' claim was fairly debatable, in order to prove that American Family breached the implied covenant of good faith and fair dealing, the Dunns must prove that American Family failed to conduct an adequate investigation, acted unreasonably in evaluating the claim, or knowingly and unreasonably failed to act promptly in paying the claim. The standard is whether or not American Family acted unreasonably and either knew or was conscious of the fact that its conduct was unreasonable when it investigated, evaluated and paid the claim. Mere negligence, mistake, or inadvertence is not sufficient to establish a

18 19 20 21 22 23 24 25 26 9
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 9 of 13

breach of the covenant of good faith and fair dealing. Source: Zilisch v. State Farm Mutual Automobile Ins. Co., 196 Ariz. 234, 995 P.2d 276 (2000); Rawlings v. Apodoca, 151 Ariz. 149, 726 P.2d 565 (1996).

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1.

Plaintiff's Requested Jury Instruction No. 8 BAD FAITH (FIRST-PARTY) Measure of Damages ­ Bad Faith If you find that American Family is liable to the Dunns on the bad faith claim, you must then decide the full amount of money that will reasonably and fairly compensate the Dunns for each of the following elements of damage proved by the evidence to have resulted from American Family's breach of the duty of good faith and fair dealing: The unpaid benefits of the policy, to the extent not already awarded as

damages for breach of contract; 2. Emotional distress, humiliation, inconvenience, and anxiety experienced, and

reasonably probable to be experienced in the future. Source: Revised Arizona Jury Instructions (Civil) 4th, Bad Faith 7 (First-Party) (modified); Rawlings v. Apodoca, 151 Ariz. 149, 726 P.2d 565 (1996); Farr v. Transamerica Occidential Life Ins. Co., 145 Ariz. 1, 699 P.2d 376 (App. 1984).

10
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 10 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 fault.

Plaintiff's Requested Jury Instruction No. 9 FAULT Statement of Liability Issues (Comparative Fault) If you decide that American Family did not breach the covenant of good faith and fair dealing, then your verdict must be for American Family. If you find that American Family did breach the covenant of good faith and fair dealing, then American Family is liable to the Dunns and your verdict must be for the Dunns. You should then determine the full amount of the Dunns' damages and enter that amount on the verdict form. You should then consider American Family's claim that the Dunns were at

Source: Revised Arizona Jury Instructions (Civil) 4th, Fault 8; A.R.S. § 12-2506.

11
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 11 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff's Requested Jury Instruction No. 10 FAULT Plaintiff's Fault (Comparative Fault) On American Family's claim that the Dunns were at fault, you must decide whether American Family has proved that the Dunns were at fault and, under all the circumstances of this case, whether any such fault should reduce the Dunns' damages. These decisions are left to your sole discretion. If you decide that the Dunns' fault should reduce the Dunns' full damages, the court will later reduce those damages by the percentage of fault you have assigned to the Dunns. Source: Revised Arizona Jury Instructions (Civil) 4th, Fault 9; A.R.S. § 12-2506.

12
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 12 of 13

ALLEN & LEWIS, PLC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff's Requested Jury Instruction No. 11 FAULT Determining Relative Degrees of Fault (Comparative Fault) If you decide that the Dunns' fault should reduce their damages, you must then determine the relative degrees of fault of all those whom you find to have been at fault. The relative degrees of fault are to be entered on the verdict form as percentages of the total fault for the Dunns' injury. The fault of one person may be greater or lesser than that of another, but the relative degrees of all fault must add up to 100%. This will be clear from the verdict form. Source: Revised Arizona Jury Instructions (Civil) 4th, Fault 11; A.R.S. § 12-2506.

13
Case 2:03-cv-01277-SRB Document 198 Filed 09/21/2005 Page 13 of 13