Free Memorandum - 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 Defendant Provident Life and Accident Insurance Company

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Brett D. Leavey,

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

No. CIV-02-2281-PHX-SMM DEFENDANTS' PROPOSED RESPONSE TO THE QUESTION FROM JUROR #4

To address the question from Juror #4 submitted on Friday, September 30, 2005, the defendants propose the following written response: In assessing whether the defendants breached the duty of good faith and fair dealing, it is up to you to decide whether the company had a reasonable basis to question whether the plaintiff was meeting "Part 2" of the policy definition of "total disability" ("you are receiving care by a Physician which is appropriate for the condition causing the disability"). The insurance policy does not further define "appropriate care."

Case 2:02-cv-02281-SMM

Document 213

Filed 10/03/2005

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LEWIS ROCA
AND LLP L A W Y E R S

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The defendants' proposed instruction directly responds to the juror's question, which states in pertinent part: Is it the individual opinions of each Juror as to how appropriate care is defined? We heard a lot of testimony on this subject and I feel it has an impact on "implied good faith and fair dealing in every insurance policy", which can affect my decision. The question demonstrates that the juror understands the relationship between "appropriate care" and the claim of bad faith. The question is whether the jury is supposed to assess what appropriate care is in the context of the bad faith claim. The answer is that although they do not have to decide whether Leavey was actually receiving appropriate care to decide whether the defendants acted in good faith, they do have to assess the reasonableness of the defendants' concerns about Leavey's care. A response that is limited to the juror's actual question is consistent with federal case law and will minimize the chances of reversal on appeal. Many federal appellate courts have emphasized that "a jury instruction given after deliberations have begun comes at a particularly delicate juncture and therefore evokes heightened scrutiny. . . ."1 The U.S. Supreme Court has recognized that the trial court's "last word is apt to be the decisive word."2 The Fifth Circuit, meanwhile, has cautioned that a district court "must exercise special care to see that inaccuracy or imbalance in supplemental instructions do not poison an otherwise healthy trial."3 And, particularly relevant to this case, the First Circuit has
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Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 175 (1st Cir. 1998).

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Bollenbach v. United States, 326 U.S. 607, 612 (1946) (reversing a criminal conviction because of an erroneous supplemental instruction).
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United States v. Carter, 491 F.2d 625, 633 (5th Cir.1974). 2
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LEWIS ROCA
AND LLP L A W Y E R S

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stated that "[c]areful craftsmanship of a supplemental jury instruction requires the district court to walk a fine line--the court can err as easily by overinclusiveness as by underinclusiveness."4 RESPECTFULLY SUBMITTED this 3rd day of October, 2005. LEWIS AND ROCA LLP BY: s/ Stephen M. Bressler Stephen M. Bressler Ann-Martha Andrews Scott Bennett Attorneys for Defendant Provident Life and Accident Insurance Company

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Testa, 144 F.3d at 175. 3
Case 2:02-cv-02281-SMM Document 213 Filed 10/03/2005 Page 3 of 4
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LEWIS ROCA
AND LLP L A W Y E R S

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CERTIFICATE OF SERVICE I hereby certify that on October 3, 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: Steve Dawson Anita Rosenthal Dawson & Rosenthal 11801 N. Tatum Blvd., Suite 247 Phoenix, Arizona 85028 Attorneys for Plaintiff Gregg H. Temple Gregg H. Temple, P.C. 11801 North Tatum Boulevard, Ste. 247 Phoenix, Arizona 85028 Attorneys for Plaintiff

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