Waterbury v. Progressive Northern Insurance Company

Filing 45

ORDER Regarding Proposed Jury Instructions and Choice of Law. Signed by Judge Leonard T Strand on 9/7/16. Each party shall file a response to the attached preliminary jury instructions by no later than 3:00 p.m. on Tuesday, September 13, 2016. (Attachments: # 1 Court's Preliminary Instructions to the Jury) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
BRETT WATERBURY,
Plaintiff,
vs.
PROGRESSIVE NORTHERN
INSURANCE COMPANY,

No. C15-0112-LTS
COURT’S PRELIMINARY
INSTRUCTIONS
TO THE JURY

Defendant.
____________________
Table of Contents

INSTRUCTION NO. 1 ...................................................................... 3
INSTRUCTION NO. 2 ...................................................................... 4
INSTRUCTION NO. 3 ...................................................................... 5
INSTRUCTION NO. 4 ...................................................................... 6
INSTRUCTION NO. 5 ...................................................................... 7
INSTRUCTION NO. 6 ...................................................................... 9
INSTRUCTION NO. 7 .................................................................... 11
INSTRUCTION NO. 8 .................................................................... 12
INSTRUCTION NO. 9 ................................................................... 13
INSTRUCTION NO. 10 .................................................................. 14

INSTRUCTION NO. 11 .................................................................. 15
INSTRUCTION NO. 12 .................................................................. 16
INSTRUCTION NO. 13 .................................................................. 17
INSTRUCTION NO. 14 .................................................................. 18
INSTRUCTION NO. 15 .................................................................. 19
INSTRUCTION NO. 16 .................................................................. 20
INSTRUCTION NO. 17 .................................................................. 21
INSTRUCTION NO. 18 .................................................................. 22
INSTRUCTION NO. 19 .................................................................. 23
INSTRUCTION NO. 20 .................................................................. 25
INSTRUCTION NO. 21 .................................................................. 26
INSTRUCTION NO. 22 .................................................................. 27
INSTRUCTION NO. 23 .................................................................. 30

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INSTRUCTION NO. 1
INTRODUCTION
Congratulations on your selection as a juror!
I give you these instructions now to help you better understand the trial and
your role in it. I may give you additional instructions during the trial, and I will
give you additional instructions at the end of the trial before you begin your
deliberations.
Consider these instructions, together with any oral or written instructions I
give you during the trial or at the end of the trial, and apply them as a whole to the
facts of the case. In considering these instructions, the order in which they are
given is not important.

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INSTRUCTION NO. 2
STATEMENT OF THE CASE
As I explained during jury selection, this is a civil case brought by the
Plaintiff, Brett Waterbury, against the Defendant, Progressive Northern Insurance
Company. Brett Waterbury claims a breach of contract and bad faith refusal to
pay an insurance claim. Specifically, he claims that his boat was damaged during
an accident and that he is entitled to compensation under an insurance policy
provided by Progressive Northern Insurance Company. Progressive Northern
Insurance Company denies the damage was covered by the insurance contract.
Progressive contends the damage was caused by normal wear and tear. It will be
your duty to decide from the evidence if the Plaintiff, Brett Waterbury, is entitled
to a verdict against the Defendant, Progressive Northern Insurance Company.

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INSTRUCTION NO. 3
DUTY OF JURORS
It will be your duty to decide from the evidence what the facts are. You,
and you alone, are the judges of the facts. You will hear the evidence, decide what
the facts are and then apply those facts to the law that I will give you in these
preliminary instructions, any instruction given during the trial and in the final
instructions at the conclusion of the case. You will then deliberate and reach your
verdict. You are the sole judges of the facts, but you must follow the law as stated
in my instructions, whether you agree with it or not.
This case must be considered and decided by you as an action between
persons of equal standing in the community, of equal worth, and holding the same
or similar stations in life. All persons are equal before the law. Corporations are
entitled to the same fair and conscientious consideration by you as any other
person.
You should not take anything I may say or do during the trial as indicating
what I think of the evidence or what I think your verdict should be.

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INSTRUCTION NO. 4
ORDER OF TRIAL
The trial will proceed as follows:
After I finish reading these instructions, the attorneys may make opening
statements. An opening statement is not evidence. It is simply a summary of what
the parties expect the evidence to be.
The Plaintiff then will present evidence. The Defendants may cross-examine
the Plaintiff’s witnesses.

Following the Plaintiff’s case, the Defendants may

present evidence. The Plaintiff may cross-examine the Defendants’ witnesses.
Following the Defendants’ case, the parties may present additional evidence.
After all evidence has been presented, I may give additional instructions to
you. The attorneys will then make arguments summarizing and interpreting the
evidence for you. As with opening statements, these arguments are not evidence.
Then I will give you a final instruction on deliberations, and you will retire to
deliberate on your verdict.

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INSTRUCTION NO. 5
BURDEN OF PROOF
Your verdict will depend upon whether or not you find certain facts have
been proved. The obligation to prove a fact, or “the burden of proof,” is upon the
party whose claim depends upon that fact. The party with the burden of proving
a fact must prove the fact by “the greater weight of the evidence,” which is proof
that the fact is more likely true than not true. This is also called “the preponderance
of the evidence.”
To determine whether a fact has been proved by the greater weight of the
evidence, you must consider the evidence in the case, decide which evidence is
more believable, and then determine whether the fact is more likely true than not
true. If you find a fact is more likely true than not true, then the fact has been
proved by the greater weight of the evidence. If you find a fact is more likely not
true than true, or you find the evidence on the fact is equally balanced, then the
fact has not been proved by the greater weight of the evidence. The greater weight
of the evidence is not determined by the number of witnesses or exhibits a party
presents, but by your judgment as to the weight of all of the evidence.

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You may have heard of the term “proof beyond a reasonable doubt.” That
is a stricter standard which applies in criminal cases. It does not apply in civil
cases such as this one.

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INSTRUCTION NO. 6
DEFINITION OF EVIDENCE
You shall base your verdict only upon the evidence, these instructions and
other instructions that I may give you during trial.
Evidence is:
1.

Testimony in person or by deposition.

2.

Exhibits received by the court.

3.

Stipulations, which are agreements between the parties.

4.

Any other matter admitted into evidence.

Evidence may be direct or circumstantial. The law makes no distinction
between the weight to be given to direct and circumstantial evidence. The weight
to be given any evidence is for you to decide. Consider the evidence using your
observations, common sense and experience.

You must try to reconcile any

conflicts in the evidence; but, if you cannot, you will accept the evidence you find
more believable.
Sometimes during a trial references are made to pre-trial statements and
reports, witnesses’ depositions, or other miscellaneous items. Only those things
formally offered and received by the court are available to you during your
deliberations. Documents or items read from or referred to which were not offered
and received into evidence, are not available to you.

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The following are not evidence.
1.

Opening statements, closing arguments and questions are not

evidence.
2.

Objections and rulings on objections are not evidence.

3.

Testimony that I strike from the record, or tell you to disregard is

evidence and must not be considered.
4.

Anything you see or hear about this case outside the courtroom is not

evidence.
Furthermore, a particular item of evidence is sometimes received for a
limited purpose only. That is, it can be used by you only for one particular
purpose, and not for any other purpose. I will tell you when that occurs, and
instruct you on the purposes for which the item can and cannot be used.

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INSTRUCTION NO. 7
CREDIBILITY OF WITNESSES
In deciding what the facts are, you may have to decide what testimony you
believe and what testimony you do not believe. You may believe all of what a
witness says or only part of it or none of it.
In deciding what testimony to believe, consider the witnesses’ intelligence,
their opportunity to have seen or heard the things they testify about, their
memories, any motives they may have for testifying a certain way, their manner
while testifying, whether they said something different at an earlier time, the
general reasonableness of their testimony and the extent to which their testimony
is consistent with other evidence that you believe.

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INSTRUCTION NO. 8
STIPULATIONS
The parties may agree to certain facts and reduce them to written or oral
stipulations. You should treat stipulated facts as having been proved.

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INSTRUCTION NO. 9
INTERROGATORIES
During the trial, you may hear the word “interrogatory.” An interrogatory
is a written question one party can send to the other which the other party then
must answer under oath and in writing. Consider interrogatories and the answers
to them as if they were, respectively, questions asked and answered under oath
here in court.

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INSTRUCTION NO. 10
DEPOSITIONS
A deposition is testimony taken under oath before the trial and preserved in
writing or electronically. Testimony from a deposition may be read into evidence
or replayed from a video recording. Consider such testimony as if it had been
given under oath here in court.

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INSTRUCTION NO. 11
OPINION EVIDENCE – EXPERT WITNESS
You will hear testimony from witnesses described as experts. “Experts” are
persons who may be knowledgeable in a field because of their education,
experience, or both. They are permitted to give their opinions on matters in that
field and the reasons for their opinions.
You may accept or reject expert testimony just like any other testimony.
After considering the witness’ education and experience, the reasons given for the
opinion, and all the other evidence in the case, you may give an expert witness’
testimony whatever weight, if any, you think it deserves.
An expert witness may be asked to assume certain facts are true, and to give
an opinion based on that assumption. This is called a hypothetical question. When
deciding the weight, if any, to give to an expert witness’s testimony, if a fact
assumed in a hypothetical question has not been proved by the evidence, you should
consider the extent to which the falsely assumed fact affects the value of the
opinion.

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INSTRUCTION NO. 12
OBJECTIONS
During the trial, the parties may make objections. You should not hold it
against the parties when they do this. A party may object when the other party
offers testimony or other evidence the party believes is not admissible. If I sustain
an objection to a question, you should not pay any attention to the question itself.
Also, when I rule or comment on an objection or motion, you should not think I
have any opinions about the case, favoring one side or the other.

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INSTRUCTION NO. 13
BENCH CONFERENCES
During the trial, it may be necessary for me to talk with the attorneys out of
your hearing, either by having a bench conference here, while you are present in
the courtroom, or by calling a recess. Please understand that while you are waiting,
we are working. The purpose of these conferences is to decide how certain
evidence is to be treated under the rules of evidence and to avoid wasting your
time. We will do what we can to keep the number and length of these conferences
to a minimum.

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INSTRUCTION NO. 14
NOTE TAKING
You may take notes during the trial if you wish. After the parties’ opening
statements, you will be given note pads and pens for this purpose.
If you choose to take notes, be sure it does not interfere with your ability to
listen to the evidence. It is the responsibility of all jurors to listen carefully to the
evidence. You cannot give this responsibility to another juror who may be taking
notes. We depend on all members of the jury to remember and consider the
evidence.

Do not discuss your notes with anyone until you begin your

deliberations.
A juror’s notes are not evidence. They are no more reliable than the memory
of a juror who chooses to listen carefully to the evidence without taking notes.
Do not take your notes with you when you leave the courtroom. Leave them
on your chair in the courtroom, with only your name on the front page, and the
Court Security Officer will safeguard them for you. Your notes will remain
confidential throughout the trial and will be destroyed when the trial is over.
You will notice that we have an official court reporter making a record of
the trial. However, we will not have a typewritten transcript of the record available
for your use in reaching your decision.

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INSTRUCTION NO. 15
AGENCY
A corporation acts only through its agents or employees and any agent or
employee of a corporation may bind the corporation by acts and statements made
while acting within the scope of the authority delegated to the agent by the
corporation, or within the scope of his or her duties as an employee of the
corporation.
The fact that the defendant is a corporation should not affect your decision.
All persons are equal before the law, and corporations, whether large or small, are
entitled to the same fair and conscientious consideration by you as any other
person.

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INSTRUCTION NO. 16
DEFINITION: BREACH
A breach of the contract occurs when a party fails to perform a term of the
contract.

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INSTRUCTION NO. 17
ELEMENTS OF BREACH OF CONTRACT
Your verdict must be for the Plaintiff on the Plaintiff’s breach of contract
claim if all the following elements have been proved:
First, the Plaintiff was insured for loss due to collision by the Defendant on
the date of loss.
Second, the Plaintiff had paid the premiums that were due.
Third, the Plaintiff had a loss by collision which was covered by the
insurance policy with the Defendant.
Fourth, the Plaintiff gave the Defendant notice of loss as required by the
policy.
Fifth, the Defendant did not pay the Plaintiff’s claim.
Sixth, the amount of damage.
If Plaintiff has proved all of these elements, the Plaintiff is entitled to
damages in some amount as set out in Instruction No. 21. If the Plaintiff has failed
to prove any of the above elements, your verdict must be for the Defendant.

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INSTRUCTION NO. 18
ELEMENTS OF BAD FAITH REFUSAL TO PAY
If you found in favor of the Plaintiff in Instruction No. 17, you may consider
whether the Defendant acted in bad faith in refusing to pay the Plaintiff’s claim.
To prove bad faith refusal to pay, the Plaintiff must prove all of the following
elements:
First, the Defendant denied the Plaintiff’s claim.
Second, there was no reasonable basis for denying the claim.
Third, the Defendant knew or had reason to know that there was no
reasonable basis for denying the claim.
Fourth, the denial was a cause of damage to the Plaintiff.
Fifth, the nature and extent of damage.
If the Plaintiff has failed to prove any of these propositions, the Plaintiff is
not entitled to damages. If the Plaintiff has proved all of these propositions, the
Plaintiff is entitled to damages in some amount.

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INSTRUCTION NO. 19
CONTRACT INTERPRETATION
In determining the terms of the contract you may consider the following:
1. The intent of the parties along with a reasonable application of the
surrounding circumstances.
2. The intent expressed in the language used prevails over any secret
intention of either party.
3. The intent may be shown by the practical construction of a contract by
the parties and by the surrounding circumstances.
4. You must attempt to give meaning to all language of a contract. Because
an agreement is to be interpreted as a whole, assume that all of the language is
necessary. An interpretation which gives a reasonable, effective meaning to all
terms is preferred to an interpretation which leaves a part of the contract
unreasonable or meaningless.
5. The meaning of a contract is the interpretation a reasonable person would
give it if they were acquainted with the circumstances both before and at the time
the contract was made.
6. Ambiguous language in a written contract is interpreted against the party
who selected it.

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7. Where general and specific terms in the contract refer to the same subject,
the specific terms control.

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INSTRUCTION NO. 20
DAMAGES FOR BREACH OF CONTRACT
If you find the Plaintiff has proven a breach of contract as set out in
Instruction No. 17, the Plaintiff is entitled to damages. The measure of damages
for the Plaintiff is the lowest of:
1) The amount necessary to replace the damaged property;
2) The amount necessary to repair the damaged property to its pre-loss
condition; or
3) The agreed value for the “covered watercraft.”

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INSTRUCTION NO. 21
DAMAGES FOR BAD FAITH
If you find in favor of the Plaintiff on his bad faith claim as set out in
Instruction No. 18, you must award the Plaintiff such sum as you find by the
greater weight of the evidence that will fairly and justly compensate the Plaintiff
for damages, if any, that you find were proximately caused by the Defendant.

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INSTRUCTION NO. 22
CONDUCT OF JURORS DURING TRIAL
You must decide this case solely on the evidence and your own observations,
experiences, reason, common sense and the law in these instructions. You must
also keep to yourself any information that you learn in court until it is time to
discuss this case with your fellow jurors during deliberations.
To ensure fairness, you must obey the following rules:
 Do not talk among yourselves about this case, or about anyone
involved with it, until you go to the jury room to decide on your
verdict.
 Do not talk with anyone else about this case, or about anyone involved
with it, until the trial is over.
 When you are outside the courtroom, do not let anyone ask you about
or tell you anything about this case, anyone involved with it, any news
story, rumor or gossip about it, until the trial is over. If someone
should try to talk to you about this case during the trial, please report
it to me.
 During the trial, you should not talk to any of the parties, lawyers or
witnesses, even to pass the time of day, so that there is no reason to
be suspicious about your fairness. The lawyers, parties and witnesses
are not supposed to talk to you either.
 You may need to tell your family, friends, teachers, co-workers or
employer about your participation in this trial so that you can tell them
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when you must be in court and warn them not to ask you or talk to
you about the case. However, do not provide any information to
anyone by any means about this case until after I have accepted your
verdict. That means do not talk face-to-face or use any electronic
device or media, such as the telephone, a cell or smart phone, a PDA,
a computer, the Internet, any Internet service, any text or instant
messaging service, any Internet chat room, any blog or any website
such as Facebook, YouTube or Twitter, to communicate to anyone
any information about this case until I accept your verdict.
 Do not do any research on the Internet, in libraries, in the newspapers,
on social media, in dictionaries or other reference books or in any
other way or make any investigation about this case, the law or the
people involved on your own.
 Do not visit or view any place discussed in this case and do not use
Internet maps or Google Earth or any other program or device to
search for or to view any place discussed in the testimony.
 Do not read any news stories or articles, in print, on the Internet or
on any blog, about this case or about anyone involved with it or listen
to any radio or television reports about it or about anyone involved
with it or let anyone tell you anything about any such news reports. I
assure you that when you have heard all the evidence, you will know
more about this case than anyone will learn through the news media
and it will be more accurate.

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 Do not make up your mind during the trial about what the verdict
should be. Keep an open mind until you have had a chance to discuss
the evidence with other jurors during deliberations.
 Do not decide the case based on biases. Because you are making very
important decisions in this case, I strongly encourage you to evaluate
the evidence carefully and to resist jumping to conclusions based on
personal likes or dislikes, generalizations, gut feelings, prejudices,
sympathies, stereotypes or biases. The law demands that you return
a just verdict, based solely on the evidence, your individual evaluation
of that evidence, your reason and common sense and these
instructions. Our system of justice is counting on you to render a fair
decision based on the evidence, not on biases.
 If, at any time during the trial, you have a problem that you would
like to bring to my attention or if you feel ill or need to go to the
restroom, please send a note to the Court Security Officer, who will
give it to me. I want you to be comfortable, so please do not hesitate
to tell us about any problem.
I will read additional instruction(s) at the end of the evidence.

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INSTRUCTION NO. 23
CONDUCT OF JURORS DURING DELIBERATIONS
In conducting your deliberations and returning your verdict, there are certain
rules you must follow.
First, when you go to the jury room, you must select one of your members
as your foreperson. That person will preside over your discussions and speak for
you here in court.
Second, it is your duty, as jurors, to discuss this case with one another in
the jury room. You should try to reach agreement if you can do so without violence
to individual judgment. Each of you must make your own conscientious decision,
but only after you have considered all the evidence, discussed it fully with your
fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to
change your opinions if the discussion persuades you that you should, but do not
come to a decision simply because other jurors think it is right, or simply to reach
a verdict. Remember at all times that you are not partisans. You are judges –
judges of the facts. Your sole interest is to seek the truth from the evidence in this
case.
Third, if you need to communicate with me during your deliberations, you
may send a note to me through the Court Security Officer, signed by one or more

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jurors. I will respond as soon as possible either in writing or orally in open court.
Remember that you should not tell anyone – including me – how your votes stand
numerically.
Fourth, your verdict must be based solely on the evidence and on the law
which I have given to you in my Instructions. Nothing I have said or done is
intended to suggest what your verdict should be – that is entirely for you to decide.
Finally, I am giving you the Verdict Form. A verdict form is simply the
written notice of the decision that you reach in this case. You will take this form
to the jury room, and complete it when you have reached a verdict. Your decision
must be unanimous. If you all agree, the verdict form must be signed by your
foreperson and all members of the jury.

IT IS SO ORDERED.
DATED this 19th day of September, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
BRETT WATERBURY,
Plaintiff,

No. C15-0112-LTS

vs.

VERDICT FORM

PROGRESSIVE NORTHERN
INSURANCE COMPANY,
Defendant.
____________________

We, the jury in the above-entitled case, return the following verdict:
Question No. 1: As set out in Instruction No. 17, did Defendant breach
the contract?
(Answer “yes” or “no”)
ANSWER: __________
If you answered “no” to Question No. 1, do not answer any further questions
on this verdict form. If you answered “yes” to Question No. 1, answer
Question No. 2.
Question No. 2: Based on Instruction No. 20, what amount of damages is
Plaintiff entitled to receive?
ANSWER: $__________

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Question No. 3: As set out in in Instruction No. 18, did Defendant act
in bad faith?
(Answer “yes” or “no”)
ANSWER: __________
If you answered “no” to Question No. 3, skip Question No. 4. If you answered
“yes” to Question No. 3, answer Question No. 4.
Question No. 4: Based on Instruction No. 21, what amount of damages is
Plaintiff entitled to receive?
ANSWER: $__________

Dated this _________ day of September, 2016.

__________________________________________
FOREPERSON
________________________________
Juror

________________________________
Juror

________________________________
Juror

________________________________
Juror

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________________________________
Juror

________________________________
Juror

________________________________
Juror

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