Free Motion for Judgment - District Court of Arizona - Arizona

LEWIS ROCA
AND LLP L A W Y E R S

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602 734-3742 Telephone (602) 262-5311 Stephen M. Bressler (State Bar No. 009032) [email protected] Ann-Martha Andrews (State Bar No. 012616) [email protected] Scott Bennett (State Bar No. 022350) [email protected] Attorneys for Defendants Provident Life and Accident Insurance Company and UnumProvident Corporation

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) ) UNUMProvident Corporation and Provident ) Life and Accident Insurance Company, ) ) Defendants. ) )

Brett D. Leavey,

No. CIV-02-2281-PHX-SMM RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL AND/OR REMITTITUR

The defendants renew their motions for judgment as a matter of law under Fed. R. Civ. P. 50(b) and move for a conditional new trial under Fed. R. Civ. P. 50(c)(1). In the alternative, they move for a new trial and/or remittitur under Fed. R. Civ. P. 59(a). The following specifies the grounds for the defendants' motions. By permission of this Court (per an order dated October 21, 2005), the defendants will submit a supporting memorandum of points and authorities within 14 days.

Case 2:02-cv-02281-SMM

Document 235

Filed 10/27/2005

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LEWIS ROCA
AND LLP L A W Y E R S

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Rule 50(b) Renewed Motions For Judgment As A Matter Of Law. A. Defendants are entitled to judgment as a matter of law on Leavey's request for punitive damages. 1. Leavey failed to establish by clear and convincing evidence that, with respect to the handling of his claim, defendants acted with the "evil mind" required for an award of punitive damages. See Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 331-32, 723 P.2d 675, 68081 (Ariz. 1986). Leavey's attempt to prove an "evil mind" focused on the defendants' institutional practices of tracking statistics regarding claims. But Leavey did not show a link between defendants' institutional practices and the actual handling of his claim. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003). Leavey failed to show that defendants' alleged outrageous conduct and "evil mind" occurred in tandem with any conduct that allegedly harmed him, as Arizona law requires. See Saucedo v. Salvation Army, 200 Ariz. 179, 24 P.3d 1274 (App. 2001).

2.

3.

B.

Defendants are entitled to judgment as a matter of law on Leavey's bad faith claim because the evidence was insufficient to establish that defendants "acted unreasonably" in "the investigation, evaluation, and processing" of Leavey's claim and "either knew or [were] conscious" that their actions were unreasonable. See Prieto v. Paul Revere Life Ins. Co., 354 F.3d 1005, 1010 (9th Cir. 2004) (quoting Zilisch v. State Farm Mut. Auto. Ins. Co., 995 P.2d 276, 280 (Ariz. 2000)).

This Court should therefore grant defendants judgment as a matter of law under Fed. R. Civ. P. 50(b). The Court should also order a conditional new trial under Fed. R. Civ. P. 50(c)(1), which allows the Court to order a new trial that will take place only if an appellate court vacates or reverses this Court's decision to grant judgment as a matter of law.

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LEWIS ROCA
AND LLP L A W Y E R S

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Rule 59(a) Motion For A New Trial And/Or Remittitur. Alternatively, defendants are entitled, under Fed. R. Civ. P. 59(a), to a new trial on

both bad faith and punitive damages, and/or a remittitur of the damage awards, for the following reasons: A. The $4 Million Award For Pain And Suffering Is Excessive As A Matter Of Law. 1. 2. 3. 4. 5. B. The evidence presented at trial does not support the amount of painand-suffering damages. An award of $4 million is grossly excessive compared to awards from similar cases. The $4 million award was the product of passion and prejudice. The $4 million award was meant to punish defendants, and therefore constitutes a duplicative award of punitive damages. The $4 million award is unconstitutionally excessive under the Due Process Clause.

The $15 Million Punitive Award Is Unsustainably Excessive. 1. Application of the Supreme Court's three guideposts establishes that the punitive damages are grossly excessive and therefore violate the defendants' due-process rights. See generally State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). Defendants have been punished multiple times for the same alleged conduct in violation of the Due Process Clause. The $15 million award was the product of passion and prejudice.

2. 3. C. D.

The Jury's Findings Of Liability For Bad Faith And Punitive Damages Are Against The Great Weight Of The Evidence. The Court Should Grant A New Trial In The Interests Of Justice.

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RESPECTFULLY SUBMITTED this 27th day of October, 2005. LEWIS AND ROCA LLP By: s/ Stephen M. Bressler Stephen M. Bressler Ann-Martha Andrews Scott Bennett Attorneys for Defendants Provident Life and Accident Insurance Company and UnumProvident Corporation

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Attorneys for Plaintiff 17 18 19 20 21 22 23 24 25 26 s/Jody A. Crain Steven C. Dawson Anita Rosenthal Dawson & Rosenthal 6586 Highway 179 Suite B-2 Sedona, Arizona 86351

CERTIFICATE OF SERVICE I hereby certify that on October 27, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Gregg H. Temple Gregg H. Temple, P.C. 4835 E. Cactus Road Suite 225 Phoenix, Arizona 85254-4196 Thomas L. Hudson Danielle D. Janitch OSBORN MALEDON, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794

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