Hilborn et al v. Metropolitan Group Property and Casualty Insurance Company

Filing 187

MEMORANDUM DECISION AND ORDER Plaintiffs' Rule 59(e) Motion to Alter or Amend Judgment or, in the Alternative, Motion for New Trial (Dkt. 173 ) is GRANTED. The Court will set a new trial date in a separate notice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT W. HILBORN and JEAN
ANN S. HILBORN,

Case No. 2:12-cv-00636-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
METROPOLITAN GROUP PROPERTY
AND CASUALTY INSURANCE CO.,
Defendant.

INTRODUCTION
The Court has before it Plaintiffs’ Rule 59(e) Motion to Alter or Amend Judgment
or, in the Alternative, Motion for New Trial (Dkt. 173). For the reasons explained below,
the Court will grant the motion for a new trial.
ANALYSIS
Plaintiff Robert Hilborn1 asks the Court to alter or amend the verdict against him
by entering judgment in his favor or by ordering a new trial. Both requests are brought
pursuant to Federal Rule of Civil Procedure 59. Although Robert references only 59(e) in
the title of his motion, he references Rule 59 generally throughout his brief, and he
references the standard under Rule 59(a) and cites cases addressing Rule 59(a), such as
1

The Court will refer to Robert Hilborn as Robert and Jean Ann Hilborn as Jean Ann throughout
this Memorandum Decision and Order.

MEMORANDUM DECISION AND ORDER - 1

Murphy v. City of Long Beach, 914 F.2d 183 (9th Cir. 1990). Plf. Br., p.2, Dkt. 173-1.
Metropolitan addresses such cases as well. Def. Br. p.2, Dkt. 183.
The specific standard for altering or amending a judgment is found in Rule 59(e),
while the specific standard for ordering a new trial is found in Rule 59(a). Accordingly,
the Court will address the motion to alter or amend under Rule 59(e), but will address the
motion for new trial under Rule 59(a), as required by the rule.
1.

Rule 59(e) Motion to Alter or Amend Judgment
District courts have “considerable discretion” when addressing motions to amend

a judgment under Rule 59(e). Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d
1058, 1063 (9th Cir. 2003). However, “a Rule 59(e) motion is an ‘extraordinary remedy,
to be used sparingly in the interests of finality and conservation of judicial resources.’”
Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014). (Citing Kona Enters., Inc. v. Estate
of Bishop, 229 F.3d 877, 890 (9th Cir.2000)). Typically, a district court may grant a Rule
59(e) motion where it “is presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the controlling law.” Id. (Citing McDowell v.
Calderon, 197 F.3d 1253, 1255 (9th Cir.1999) (en banc) (quoting 389 Orange St.
Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999)).
None of these grounds are present in this case. In fact, Robert makes no real
attempt to assert them. Instead, he focuses his arguments almost exclusively on matters
more appropriately addressed under Rule 59(a). Accordingly, Robert’s Rule 59(e) motion
to alter or amend the judgment will be denied, but the Court will consider his arguments
as they apply to his Rule 59(a) motion for new trial.
MEMORANDUM DECISION AND ORDER - 2

2.

Rule 59(a) Motion for New Trial
Rule 59(a) states that the Court may grant a new trial on all or some of the issues,

and to any party, “after a jury trial, for any reason for which a new trail has heretofore
been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a). The Ninth
Circuit has not specified the grounds on which a motion for a new trial may be granted.
Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). Instead, “the court is bound
by those grounds that have been historically recognized.” Id. (Internal citation and
quotation omitted). Those “grounds include, but are not limited to, claims that the verdict
is against the weight of the evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair to the party moving.” Id. (Internal quotation and citation
omitted).
The standard set forth by the Ninth Circuit is that “[t]he trial court may grant a
new trial only if the verdict is contrary to the clear weight of the evidence, is based upon
false or perjurious evidence, or to prevent a miscarriage of justice.” Id. (Internal quotation
and citation omitted). Thus, “[u]pon the Rule 59 motion of the party against whom a
verdict has been returned, the district court has the duty . . . to weigh the evidence as [the
court] saw it, and to set aside the verdict of the jury, even though supported by substantial
evidence, where, in [the court’s] conscientious opinion, the verdict is contrary to the clear
weight of the evidence.” Id. (Brackets in original)(Internal quotation and citation
omitted).

MEMORANDUM DECISION AND ORDER - 3

Here, Metropolitan had the burden at trial of proving by a preponderance of the
evidence that Robert made material misrepresentations in his insurance claim. In its brief,
Metropolitan acknowledges that it had this burden at trial. Def. Br., p. 4, Dkt. 183.
In his Rule 59(a) motion, Robert essentially argues that there was no evidence to
support the jury’s finding that he willfully misrepresented a material fact about his claim
for property lost in the fire. As the Court instructed the jury, a representation is material
only if it is of such a nature that knowledge of the truth would affect the insurer’s
decision-making process. Inst. 18, Dkt. 157.
Metropolitan suggests there was ample evidence to support the jury’s conclusion
that Robert willfully misrepresented a material fact about his claim. First, Metropolitan
argues that because Jean Ann did not join the pending motion to alter or amend the
judgment against her on the material misrepresentation of a claim assertion, the only
logical inference is that Robert concedes that Metropolitan proved at trial that Jean Ann
did, in fact, willfully make a material misrepresentation.
That is not the only logical inference – it simply means Jean Ann is not asking the
Court to alter or amend the judgment against her. There could be many reasons for her
decision – tactical or otherwise. First of all, as to Robert, the jury was only asked to
determine whether Metropolitan proved that he willfully misrepresented a material fact
about his insurance claim. Dkt. 161. But as to Jean Ann, the jury was asked two questions
– each containing two alternative ways for denying Jean Ann’s legal claim. In the first
question, the jury was asked to determine whether Metropolitan proved that Jean Ann
caused the fire or directed another to cause the fire. In the second question, the jury was
MEMORANDUM DECISION AND ORDER - 4

asked to determine whether Metropolitan proved that Jean Ann willfully misrepresented a
material fact about her claim or about the cause of the fire. An affirmative answer by the
jury to either part of either question meant Jean Ann did not prove her legal claim.
Thus, if there was sufficient evidence for the jury to find that Metropolitan proved
its affirmative defense that Jean Anne caused the fire, directed another to cause the fire,
or willfully misrepresented a material fact about the cause of the fire, then she could not
prevail on her legal claim regardless of whether the jury also determined that she
willfully misrepresented a material fact about her insurance claim. In fact, there is no real
way to even determine whether the jury found that Jean Ann misrepresented a material
fact about the cause of the fire or about her claim for lost property, or both, because that
distinction was of no consequence. Therefore, the question was not broken out for the
jury. Thus, even if the Court determined that a jury finding that Jean Ann misrepresented
a material fact on her insurance claim should be overturned, she would be in the same
position as she is now.
Accordingly, Metropolitan’s assertion that Plaintiffs are conceding that Jean Ann
did, in fact, make material misrepresentations about her claim is not the only logical
inference to be drawn from her decision not to join in Robert’s motion. It is also quite
logical that Plaintiffs believe there was sufficient evidence to support the jury’s verdict
on at least one of the other three defenses against Jean Ann, making a her joinder in the
motion pointless.
Moreover, the Court specifically instructed the jury that “[u]nder fire policies in
Idaho the actions of each insured must be considered separately and any penalty or
MEMORANDUM DECISION AND ORDER - 5

exclusion based on intentional acts or material misrepresentation applies only to the
guilty insured.” Jury Inst. 15, Dkt. 157. Metropolitan acknowledges this as well. Def. Br.,
p. 4, Dkt. 183. Thus, the claim that Robert willfully made material misrepresentations is
separate from the claim that Jean Ann willfully made material misrepresentations.
Regardless, the jury verdict against Jean Ann stands. Accordingly, the Court will
address Robert’s motion with the understanding that the verdict stands against Jean Ann.
That is, Metropolitan proved both of its affirmative defenses against Jean Ann Hilborn –
that she either caused the fire or directed another to do so, and that she willfully made
material misrepresentations about the cause of the fire or her claim for lost property.
In this vein, Metropolitan argues that there was evidence at trial that Robert
collaborated with Jean Ann and participated in the inventory process. To support this
assertion, Metropolitan first points to testimony from Robert’s granddaughter, Rachel,
and from defense expert William Hight. When asked about whether Robert helped
prepare the inventory of damaged or destroyed personal property, Rachel testified, “I
think he did.” Tr., Aug. 28, 2014, 20:3-14, Dkt. 174. Mr. Hight stated that “[t]he forms
that were submitted with a proof of loss contained an extensive list of contents that were
prepared in handwriting form, I think by the involvement of all the insureds; at least
that’s what I recall from the – from the discovery that was conducted.” Tr., Sept. 2, 2014,
35:34 – 36:3, Dkt. 179.
The only other evidence Metropolitan relies upon in support of the jury’s finding
that Robert willfully misrepresented a material fact about his claim is that the jury need
not believe Robert when he testified that he did not misrepresent anything on his
MEMORANDUM DECISION AND ORDER - 6

insurance claim, that he was motivated by his desire to move to California, that he gave
Jean Ann authority to sign his proof of loss, and defense expert Hight’s “arson for profit”
testimony.
A conclusion that Robert willfully misrepresented a material fact on his insurance
claim based upon such flimsy evidence is troubling to the Court. First, both Rachel’s and
Hight’s testimony about Robert participating in the inventory was equivocal – “I think he
did,” and “I think by the involvement of all the insureds; at least that’s what I recall from
the – from the discovery that was conducted.” On the other hand, when asked at trial
whether he helped prepare the inventory, Robert stated that he “would call my wife and
tell her things that I remember. I know there is (sic) things that we forgot. I know I had a
letterman jacket that I forgot to put on it. But it had sentimental value, but I guess it really
wasn’t important to try to get it back because it’s gone.” Tr., Aug. 27, 2014, p. 9:22 –
10:4, Dkt. 166. He testified that he tried to be accurate. Tr., Aug. 27, 2014, p. 10:4-11,
Dkt. 166. Metropolitan is correct that the jury did not have to believe Robert, but that
does not make the very limited contrary testimony persuasive. Regardless, none of this
testimony suggests Robert made misrepresentations.
As for Hight’s testimony about “arson for profit,” it must be noted that
Metropolitan never asserted that Robert caused the fire, directed another to cause the fire,
or made a misrepresentation about the cause of the fire. Thus, the “arson for profit” has
virtually no relevance to Robert.
Finally, the motive to move to California and the power of attorney Robert gave
Jean Ann must be considered in the context of the Court’s impression of Robert’s
MEMORANDUM DECISION AND ORDER - 7

cognitive abilities. As explained above, the Court has a duty to weigh the evidence as the
Court saw it, and to set aside the verdict of the jury, even though supported by substantial
evidence, where, in the Court’s conscientious opinion, the verdict is contrary to the clear
weight of the evidence. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007).
At the risk of sounding disrespectful, which is not the Court’s intent, the Court’s
strong conscientious opinion of Robert, based upon the evidence presented at trial, is that
he is a man of limited cognitive abilities. Given these limitations, the Court cannot
overstate its concerns about the jury’s conclusion that Robert willfully misrepresented a
material fact on his insurance claim. His demeanor on the stand and throughout the trial
evidenced a less than complete understanding of the process for submitting an insurance
claim and the court proceedings. Even the questioning of him by the attorneys resembled
the way a child is examined on the stand. In the Court’s opinion, his decision to give Jean
Ann power of attorney, or possibly her pressure that he do so, is not evidence that he
authorized Jean Ann to willfully misrepresent a material fact on the insurance claim on
his behalf. In fact, the evidence at trial indicated that Robert did not give the power of
attorney to Jean Ann specifically for purposes of submitting the proof of loss. Rather, the
evidence at trial showed that Robert, a truck driver, was on the road most of the year, and
he gave Jean Ann the power of attorney so she could take care of business at home. If
anything, it show’s Jean Ann’s control over Robert. Likewise, the Court does not recall
any evidence of Robert wanting to move to California to live with Jean Ann’s sister – the
evidence suggested that was Jean Ann’s motive.

MEMORANDUM DECISION AND ORDER - 8

Although the Court is concerned about a potentially orchestrated plan by Jean
Ann, which could result in an insurance pay out to Robert, the Court cannot ignore Idaho
law. Idaho law provides that under fire policies, the actions of each insured must be
considered separately and any penalty or exclusion based on a material misrepresentation
applies only to the guilty insured. Jury Inst. 15, Dkt. 157. In the Court’s conscientious
opinion, after weighing the evidence as the Court saw it, the verdict against Robert was
contrary to the clear weight of the evidence. Accordingly, the Court will grant Robert’s
motion and order a new trial on only Robert’s claims. If Robert prevails in a new trial,
any award of damages would be his, and his alone.
ORDER
IT IS ORDERED:
1. Plaintiffs’ Rule 59(e) Motion to Alter or Amend Judgment or, in the
Alternative, Motion for New Trial (Dkt. 173) is GRANTED.
2. The Court will set a new trial date in a separate notice.

DATED: April 16, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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