Free Jury Instructions - District Court of Arizona - Arizona

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Case 2:02-cv-02281-SMM Document 210 Filed 09/30/2005 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Brett D. LEAVEY,

) ) Plaintiff, ) ) v. ) ) UNUM/PROVIDENT CORP., et al., ) ) Defendants. ) _________________________________ )

No. CV-02-2281-PHX-SMM FINAL JURY INSTRUCTIONS

The Court will give the following final instructions to assist the jury in reaching a verdict.

DATED this 29th day of September, 2005.

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Members of the jury, now that you have heard all the evidence and the arguments of the attorneys, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you. *** The evidence from which you are to decide what the facts are consists of: 1. 2. 3. the sworn testimony of any witness; the exhibits which have been received into evidence; and any facts to which the lawyers have agreed or stipulated. *** In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: 1. Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, will say in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.

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2.

Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it.

3.

Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.

4.

Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial. ***

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. *** In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: 1. the opportunity and ability of the witness to see or hear or know the things testified to; 2. 3. 4. 5. the witness's memory; the witness's manner while testifying; the witness's interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness's testimony; -3Case 2:02-cv-02281-SMM Document 210 Filed 09/30/2005 Page 3 of 10

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6. 7.

the reasonableness of the witness's testimony in light of all the evidence; and any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. *** You have heard testimony from persons who, because of education or experience, are permitted to state opinions and the reasons for those opinions. Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case. *** Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence. *** Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves. *** Defendant Provident Life issued the disability insurance policy to the plaintiff. The policy provides benefits for each month that the plaintiff is totally disabled. The policy defines total disability as follows: Total disability or totally disabled means that due to Injuries or Sickness:

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1.

you are not able to perform the substantial and material duties of your occupation; and

2.

you are receiving care by a Physician which is appropriate for the condition causing the disability. We will waive this requirement when continued care be of no benefit to you. ***

There is an implied duty of good faith and fair dealing in every insurance policy. The plaintiff claims that the defendants breached this duty, which is also known as a "bad faith claim." The defendants deny that they acted in bad faith. *** With regard to the bad faith claim, the plaintiff has the burden of proving by a preponderance of the evidence the following three elements: 1. 2. 3. The defendants breached the duty of good faith and fair dealing; The defendants' breach was a cause of the plaintiff's damages; and The amount of the plaintiff's damages. *** To prove that the defendants breached the duty of good faith and fair dealing, the plaintiff must prove by a preponderance of the evidence: 1. The defendants intentionally denied the claim without a reasonable basis or otherwise acted unreasonably in investigating, evaluating, paying, or processing the claim; and 2. At the time that they acted, the defendants knew they did so without a reasonable basis, or the defendants failed to perform an investigation or evaluation adequate to determine whether their action was supported by a reasonable basis. *** When a party has the burden of proving the case by a preponderance of the evidence, that means that he must persuade you, by the evidence, that the claim is more probably true than not. This means that the evidence that favors that party outweighs the opposing evidence. In -5Case 2:02-cv-02281-SMM Document 210 Filed 09/30/2005 Page 5 of 10

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determining whether a party has met this burden, consider all the evidence that bears on that claim, regardless of which party produced it. *** In all aspects of investigating and evaluating a claim, the defendants are required to give as much consideration to the plaintiff's interests as they do to their own interests. *** To prove that the defendants acted intentionally on the bad faith claim, the plaintiff must prove that the defendants intended their conduct, but the plaintiff does not need to prove that the defendants intended to cause injury. The defendants' conduct is not intentional if it is inadvertent or due to a good faith mistake. *** Before you can find the defendants liable on the bad faith claim, you must find that the defendants' breach of the duty of good faith and fair dealing was a cause of the plaintiff's damages. A breach of duty is a cause of damages if it helps produce the damages, and if the damages would not have occurred without the breach. *** A duty of good faith and fair dealing does not end upon the filing of a lawsuit, but rather exists throughout the litigation. *** Under the law, a corporation is considered to be a person. It can only act through its employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its employees, agents, directors, and officers performed within the scope of authority. *** If you find that the defendants did not breach the duty of good faith and fair dealing, then your verdict on the bad faith claim must be for the defendants, even if you find that the

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defendants incorrectly denied the plaintiff's claim or incorrectly investigated, evaluated, or processed the plaintiff's claim. If you find that the defendants did breach the duty of good faith and fair dealing and that the defendants' breach was a cause of the plaintiff's damages, then your verdict on the bad faith claim must be for the plaintiff, even if you find that the defendants correctly denied the plaintiff's claim or correctly investigated, evaluated, or processed the plaintiff's claim. *** It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff on plaintiff's bad faith claim, you must determine the plaintiff's damages. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: The mental, physical, emotional pain and suffering experienced and which with reasonable probability will be experienced in the future. The plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture. *** Any award for future economic damages (policy benefits) must be for the present cash value of those damages. Noneconomic damages such as anxiety, worry, mental and emotional distress, physical distress, and loss of time and expenses, are not reduced to present cash value. Present cash value means the sum of money needed now, which, when invested at a reasonable rate of return, will pay future benefits at the times and in the amounts that you find the benefits would have been received. -7Case 2:02-cv-02281-SMM Document 210 Filed 09/30/2005 Page 7 of 10

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The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill. *** If you find the defendants liable to the plaintiff on the bad faith claim, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future. To recover such damages, plaintiff has the burden of proving by clear and convincing evidence, either direct or circumstantial, that defendants acted with an evil mind. This required state of mind may be shown through evidence of either of the following: 1. 2. Intent to cause injury; or Defendants acted to serve their own interests, having reason to know and consciously disregarding a substantial risk that their conduct might significantly injure the rights of the plaintiff. To prove this required state of mind by clear and convincing evidence, plaintiff must persuade you that the punitive damages claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases. *** If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendants' conduct and the relationship of any award of punitive damages to any actual or potential harm to the plaintiff. *** In determining the amount of punitive damages, if any, that is necessary for punishment and deterrence, you may consider only the defendants' wrongful conduct that has had an impact -8Case 2:02-cv-02281-SMM Document 210 Filed 09/30/2005 Page 8 of 10

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on the citizens of Arizona. You may not award any punitive damages for the purpose of punishing the defendants for their handling of insurance claims made by citizens of other states, or for the purpose of punishing or deterring the defendants' conduct outside the State of Arizona. *** When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict. *** Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes. *** If it becomes necessary during your deliberations to communicate with me, you may send a note through the bailiff, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting -9Case 2:02-cv-02281-SMM Document 210 Filed 09/30/2005 Page 9 of 10

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for the answer to any question. Remember that you are not to tell anyone--including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court. *** Verdict forms have been prepared for you. After you have reached unanimous agreement on a verdict, your presiding juror will fill in the appropriate forms that have been given to you, sign and date them, and advise the court that you are ready to return to the courtroom.

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