Muller et al v. Country Mutual Insurance Company
OPINION AND ORDER: For the reasons stated above, I DENY Country Mutual's Motion for a New Trial and Renewed Motion for Judgment as a Matter of Law 259 . Signed on 11/20/2017 by Judge Michael W. Mosman. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHEN MULLER and
OPINION AND ORDER
This matter comes before me on Defendant Country Mutual Insurance Co.'s ("Country
Mutual") Motion for a New Trial and Renewed Motion for Judgment as a Matter of Law [259).
For the reasons below, I DENY Country Mutual's Motions.
This case arises out of a fire in 2012, in which the Mullers' house, business (machine
shop), and 1967 Mustang were all damaged. After investigation, Country Mutual denied the
Mullers' claim, concluding that Mullers had intentionally started the fire. The Mullers brought
suit in August 2014 and sought recovery for breach of express contract. 1 .
The Mullers originally brought a claim for breach of the implied covenant of good faith and fair dealing,
but voluntarily dismissed this claim before trial.
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Their claims culminated in an eight-day jury trial in June 2017. Prior to trial, the Mullers
successfully moved to exclude evidence that they had been involved in four previous fires at a
house, motorhome, and commercial property in 1972, 1994, 2003 or 2004, and 2006. The jury
found for the Mullers on their breach of contract claim and awarded damages for $1,082,500.
. These damages include $186,000 in damages related to structures, $570,000 in damages
related to business property, $256,000 in damages related to personal property, $25,000 in
damages related to business income, and $45,000 in damages related to automobiles. .
Country Mutual now moves for a new trial and for renewed judgment as a matter of law
regarding replacement cost of personal property. . Country Mutual argues a new trial is
warranted because: (I) it discovered new evidence that would have changed the outcome of the
trial; (2) the Court erred by admitting evidence that the Mullers were not charged with a crime;
(3) the Court erred by instructing the jury that the Mullers were not charged with a crime and by
not instructing the jury on the definition of reasonable doubt; (4) the Court erred by not admitting
the Mullers' prior fires; (5) the Court erred by denying Country Mutual's motion in limine
regarding evidence of replacement cost value; (6) the Court erred by not granting judgment as a
matter of law that personal automotive parts were not covered by the policy; and (7) the
cumulative errors denied Country Mutual a fair trial. . Country Mutual also renews its
motion for judgment as a matter of law regarding replacement cost of personal property. .
"The court may, on motion, grant a new trial ... after a jury trial, for any reason for which a
new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(l).
"Historically recognized 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.'" Molski v. MJ. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting
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Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). The court may grant a motion for a
new trial on the basis of newly discovered evidence. Defs. of Wildlife v. Bernal, 204 F.3d 920, 929
(9th Cir. 2000). "[T]he district court, in considering a Rule 59 motion for new trial, is not required to
view the trial evidence in the light most favorable to the verdict. Instead, the district court can weigh
the evidence and assess the credibility of the witnesses." Experience Hendrix L.L.C. v.
Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014).
When addressing a renewed motion for judgment as a matter of law, the Court must
"uphold the jury's award if there was any 'legally sufficient basis' to support it." Id. (quoting
Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002)). "In making that determination,
the district court considers all of the evidence in the record, drawing all reasonable inferences in
favor of the nonmoving party ... ; the court may not make any credibility determinations or
reweigh the evidence." Id.
New Trial on the Basis of Newly Discovered Evidence.
Country Mutual first argues the Court should grant a new trial on the basis of newly
discovered evidence.  at 4-6. After the trial, Stephen Muller's sister, Jeanette Allured,
contacted Country Mutual and claimed she had information showing the Mullers set several prior
fires intentionally.  at 4-6. In a statement and an interview with Country Mutual, Ms.
Allured alleged: (1) in 1994, Stephen Muller told her that he intentionally set the 1994 fire; (2)
Stephen Muller had also told her that he intentionally set the 1972 house fire; (3) Stephen
Muller's ex-wife, Lupe Cameron, told Ms. Allured that she saw Rena Muller on the day of the
2003 or 2004 shop fire at the site of the fire, despite the fact the Mullers said they were out of
town that day; and (4) Stephen Muller's daughter, Yvette Schneider, told Ms. Allured that she
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thought her father tried to over-explain his innocence in the 2006 garage fire by sharing detailed
information about the type of car that caught on fire. Allured Deel.  at 1-5.
To succeed on its motion, Country Mutual "must establish that (1) the evidence was
discovered after trial, (2) the exercise of due diligence would not have resulted in the evidence
being discovered at an earlier stage and (3) the newly discovered evidence is of such magnitude
that production of it earlier would likely have changed the outcome of the case." Deft. of
Wildlife, 204 F.3d at 929. Because the Mullers do not dispute that Ms. Allured's statements are
"newly discovered," I focus on the remaining two factors.
a. Whether Country Mutual exercised due diligence
Country Mutual argues it could not have discovered Ms. Allured, Lupe Cameron, or Ms.
Schneider through the exercise of due diligence. Country Mutual' s main arguments are that Ms.
Allured did not come up in a background check of Stephen Muller, that Mr. Muller was not
forthcoming about his daughter's name or place ofresidence in a deposition, that Country
Mutual's investigator did not find anyone related to the Mullers in California, and that the
insurance companies tied to the prior fires had no information.  at 7-10. The Mullers argue
that Country Mutual never asked Stephen Muller about his siblings or followed up on the
information he gave about his children in depositions. Response [27 5] at 6-13.
"The application for a new trial will be denied where it appears that the degree of activity
or diligence which led to the discovery of the evidence after the trial would have produced it had
it been exercised prior thereto." United States v. Bransen, 142 F.2d 232, 235 (9th Cir. 1944). In
Lavina v. Jamison, 230 F.2d 909 (9th Cir. 1956), the Ninth Circuit concluded that the failure to
locate a witness was excusable based in part on conduct by the non-moving party. There, the
appellants had relied on the appellee's statements that they did not know of the witness's
whereabouts nor did they believe he would appear at trial as a witness. Id. at 912. Similarly, in
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Chang v. City ofAlbany, 150 F.R.D. 456 (N.D.N.Y. 1993), the court concluded that the plaintiff
exercised due diligence in finding witnesses to his arrest. The court noted there was some
evidence the defendants knew of the existence of key witnesses discovered post-trial by the
plaintiff. Id. at 460. The Chang court also concluded, "[t]his is simply a case where the witnesses
were unknown to the parties and the pending action unknown to the potential witnesses." Id But
in Jay Edwards, Inc. v. New England Toyota Distributor, Inc., 708 F.2d 814 (1st Cir. 1983), the
court concluded that a losing party had failed to show due diligence because the "new evidence"
consisted of computer printouts that former employees had in their possession prior to trial. Id at
824-25. The court noted, "[w]e cannot be impressed by the diligence of a party that fails to
uncover evidence during four years of discovery that it manages to retrieve four weeks after
losing the lawsuit." Id at 825.
Unlike in Jay Edwards, Inc., there is no evidence Country Mutual knew of Ms. Allured' s
existence or knowledge prior to trial. See 708 F.2d 814. And Country Mutual had little reason to
seek out individuals from the Mullers' past, particularly those without ties to the 2012 fires. On
the other hand, unlike in Lavina and Chang, there is no evidence the Mullers hid Ms. Allured's
existence or otherwise misled Country Mutual. See Lavina, 230 F.2d 909; Chang, 150 F.R.D.
456. And Country Mutual could have asked the Mullers about siblings or other individuals who
knew them at the time of the prior fires. Without a showing of fault on the Mullers' part or a
reason why Country Mutual should have discovered Ms. Allured earlier, I conclude this factor
weighs in favor of neither party.
b. Whether the evidence would likely have changed the outcome of the
The analysis turns on two questions: (1) whether Ms. Allured's statements were
admissible and would provide a new basis for allowing the admission of evidence of some or all
5 - OPINION AND ORDER
of Stephen Muller's prior fires to show intent, absence of mistake, motive, or plan; and (2)
whether the admission of Ms. Allured's statements and any new evidence about the prior fires
would have changed the outcome at trial.
Evidence must be admissible to warrant a new trial. Wolcher v. United States, 233 F.2d
748, 749 (9th Cir.1956) ("One important reason such alleged newly discovered evidence is
insufficient ... is that such evidence would be inadmissible .... "); United States v. Hill, 737 F.3d
683, 687 (10th Cir. 2013); Murdockv. United States, 160 F.2d 358, 362 (8th Cir. 1947). I
concluded before trial that evidence of the prior fires was not admissible for the purposes of
showing intent, knowledge, or absence of mistake under Federal Rule of Evidence 404(b). Order
 at 1. Here, the question is whether Ms. Allured's statements alter this analysis.
Federal Rule of Evidence 404(b) prohibits the introduction of evidence about prior bad
acts "in order to show that on a particular occasion the person acted in accordance with the
character," but such evidence may be admissible to show "another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident." Fed. R. Evid. 404(b). "Evidence is admissible under Rule 404(b) only if it is
relevant." Huddleston v. United States, 485 U.S. 681, 689 (1988). In the context of prior similar
acts, "evidence is relevant only if the jury can reasonably conclude that the act occurred and that
the defendant was the actor." Id. "The test for admitting evidence under 404(b) is whether: 1) it
tends to prove a material fact; 2) the prior act is not too remote in time; 3) the evidence is
sufficient to support a finding that the defendant committed the act; and 4) where knowledge and
intent are at issue, the act is similar to that charged." United States v. Tsinnijinnie, 91 F.3d 1285,
1288-89 (9th Cir. 1996). "The probative value of the evidence must also not be substantially
outweighed by the danger of unfair prejudice" under Federal Rule of Evidence 403. Id.
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i. The 2003/2004 and 2006 fires
Ms. Allured's information about the 2003/2004 and 2006 fires comes from statements
allegedly made by Lupe Cameron, Stephen Muller's ex-wife, and Yvette Schneider, Stephen
Muller's daughter. Allured Deel.  at 1-5. Country Mutual does not dispute that Ms.
Allured's statements about Ms. Cameron's and Ms. Schneider's statements are inadmissible
hearsay.  at 11-14. Country Mutual instead argues that it should be allowed to depose
Yvette Schneider and Lupe Cameron to provide further admissible evidence about the 2003/2004
fire and the 2006 fire.  at 11-14. But the Ninth Circuit has explicitly stated that a party
"cannot use a Rule 59(a) Motion to extend the discovery deadline," Deft. of Wildlife, 204 F.3d
at 929. Additionally, the evidence that Ms. Cameron saw the Mullers at the shop the day of the
2003/2004 fire is cumulative of the testimony of other witnesses at trial, and Ms. Cameron and
Ms. Schneider contest Ms. Allured's version of events surrounding the 2003/2004 and 2006
fires. Schneider Deel.  at 1-2; Cameron Deel. [297-1] at 3. See Mesarosh v. United States,
352 U.S. 1, 9 (1956) ("[N]ew evidence which is merely cumulative or impeaching is not,
according to the often-repeated statement of the courts, an adequate basis for the grant of a new
trial." (internal quotation marks omitted)). Without more, Country Mutual has no new admissible
evidence about the 2003/2004 and 2006 fires. See Hill, 737 F.3d at 687 ("Implicit in a claim of
newly discovered evidence is that there is new evidence-that is, material that is admissible at
ii. The 1972 and 1994 fires
That leaves Ms. Allured's allegations regarding Stephen Muller's statements about the
1972 and 1994 fires. The Mullers argue these statements are inadmissible under FRE 404(b)
because they are too remote in time to be reliable. Response  at 4-6. Courts have admitted
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evidence of prior acts that occurred eleven, thirteen, and even twenty years prior, where the acts
were sufficiently similar to a charged crime or relevant act. See United States v. Williams, 308
F.3d 833, 837 (8th Cir. 2002); United States v. Mejia-Uribe, 75 F.3d 395, 398 (8th Cir. 1996);
United States v. Norman, No. CR-90-1079-01-JET, ajj'd, 8 F.3d 32 (9th Cir. 1993)
The 1972 fire occuned forty years before the 2012 fire. Country Mutual concedes it has
little information about the 1972 fire, and it points to no similarities between the 1972 and 2012
fires. Thus, I conclude Ms. Allured's statements about the 1972 fire and other evidence about the
fire would not be admissible under FRE 403 and 404(b).
Regarding the 1994 fire, there are some reasons Ms. Allured's statements might be
admissible and might have allowed for the admission of the 1994 fire under FRE 403 and 404(b).
If the Mullers set the 1994 fire in circumstances similar to those sunounding the 2012 fire, it
would tend to prove the material fact that they also set the 2012 fire. The 1994 fire occuned
eighteen years prior to the 2012 fire, which is not necessarily too remote in time. See, e.g.,
Williams, 308 F.3d at 837. And there are some similarities between what Ms. Allured alleges
about the 1994 fire and the circumstances of the 2012 fire. According to Ms. Allured, the
Mullers were absent from the property during the 1994 fire, there was a vehicle parked close to
the house, and there was old property inside the house. Allured Deel.  at 1-5. These facts
are similar to the circumstances sunounding the 2012 fire.
But Ms. Allured's lack ofreliability raises serious doubts about whether "the evidence is
sufficient to support a finding that the [Mullers] committed the act." See Tsinnijinnie, 91 F.3d at
128 8-89. She offers statements based on a conversation she had over twenty years ago about a
fire that occuned twenty-three years ago. Allured Deel.  at 1-5. And Ms. Allured self-
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reports her tumultuous, estranged relationship with Stephen Muller, stating "Steve will say my
testimony is my vindication against him for taking my inheritance from my father." Thenell
Deel. , Exh. 1 (Allured Memo) at 4. Given these concerns, Ms. Allured's statements do not
alter my prior ruling that evidence of the 1994 fire is inadmissible under FRE 403 and 404(b).
See Davtian v. Safeco Ins. Co. of Oregon, 683 Fed. App'x 651, 652-53 (9th Cir. 2017)
(concluding the district court did not abuse its discretion by allowing circumstantial evidence to
suggest a previous fire was intentionally set under circumstances similar to the fire at issue, but
recognizing "the evidence presented some danger of unfair prejudice").
Even if Ms. Allured's statements were admissible and would have allowed for the
admission of evidence of the 1994 fire, her statements and this evidence likely would not have
changed the outcome of the case. Evidence of a single fire eighteen years prior to the 2012 fire is
unlikely to have swayed a jury that heard more pertinent evidence that the Mullers set the 2012
fire and still found for the Mullers. Ms. Allured's credibility is also in question. As discussed
above, she self-reported statements about the animosity between Stephen Muller and herself.
And some of Ms. Allured's statements are contradicted by other evidence in the record,
including her assertions that Stephen Muller never paid taxes and that Yvette Schneider gave her
information about the 2006 fire. See Thenell Deel. , Exh. 2 (Allured Statement) at 17-18;
Allured Deel.  at 1-5; Schneider Deel.  at 1-2. Evidence based on statements from a
witness lacking credibility likely would not have changed the outcome of this case. I therefore
DENY Country Mutual's Motion for a New Trial  on the basis of newly discovered
Country Mutual's claims of error based on evidentiary rulings
9 - OPINION AND ORDER
a. Whether the Court erred by admitting evidence that the Mullers
were not charged with a crime, and by issuing related jury
I denied Defendants' motion in limine # 13, which sought to exclude evidence of a lack of
criminal charges against the Mullers, and allowed the Mullers to present "the bare evidence of
the lack of any criminal charges being brought into the case." Pretrial Conference Transcript
 at 80-81. Country Mutual argues that a new trial is warranted because multiple other
circuit courts (though not the Ninth Circuit) have concluded that a lack of criminal charges is
inadmissible in an insurance coverage action.  at 15-18; see, e.g., Am. Home Assurance Co.
v. Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985) ("[E]vidence of non-prosecution
is of very limited probative value in showing that there was no arson because of the higher
burden of persuasion in a criminal case .... Further, prosecutorial discretion may take into
account many other factors not relevant in a civil suit."). But none of these cases involved one of
the exclusions at issue here, which required Country Mutual to prove a dishonest or criminal act
on the Mullers' part. Pretrial Conference Transcript  at 80-81 This exclusion significantly
alters the Fed. R. Evid. 403 balancing in this case and I find no error occurred.
I also declined to give the Ninth Circuit model jury instruction for the definition of
reasonable doubt [231 ], because I concluded then and continue to think that on its own, such an
instruction would have been confusing to the jury because it might suggest that they were to
decide aspects of the case under a reasonable doubt standard. But the final jury instructions
included the following limiting instruction regarding reasonable doubt:
You have heard Plaintiffs were not charged with the crime of arson. This evidence
has only a limited purpose. Crimes must be proven by a burden of proof described
as "beyond a reasonable doubt." This is a much higher burden of proof than the
one Defendant must meet to establish its affirmative defense. Defendant's burden
of proof in this case is described as "preponderance of the evidence," which
means "more probably tiue than not true." Thus, it is possible for Defendant to
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provide evidence sufficient to establish their affirmative defense even though
relevant state officials did not charge Plaintiffs with a crime.
You cannot rely on the absence of a criminal charge as a reason, by itself, to
decide Defendant has not proved their affirmative defense. But you can consider
it as one item of evidence, along with any other evidence presented, in
determining whether or not the affomative defense has been established, keeping
in mind the differing burdens of proof.
Jury Instruction No. 22 . I find no en-or occun-ed in these rulings and DENY
Country Mutual's Motion for a New Trial  on this basis.
b. Whether the Court erred by not admitting the Mullers' prior fires
to show intent, knowledge, or absence of mistake.
Country Mutual argues that the Court erred by not admitting evidence of the Mullers'
prior fires to show intent, knowledge, or absence of mistake. This issue depends largely on
whether there was admissible evidence that the prior fires were incendiary or intentionally set
under circumstances similar to the fire relevant to trial. See Davtian, 683 F. App'x at 652-53
(concluding district court did not err by admitting evidence of prior fires as evidence of intent);
Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1350-51 (8th Cir. 1984) (discussing cases
where "evidence of a prior fire was not deemed to be relevant unless it was proved that the
insured actually participated in the prior arson (or at least a showing that the fire was of
incendiary origin)"). Country Mutual makes no new arguments from its supplemental briefing on
this issue to show that it had admissible evidence prior to trial that the fires were incendiary or
intentionally set, and I conclude the evidence was properly denied under FRE 403 and 404(b). I
DENY Country Mutual's Motion  on this issue.
c, Whether the Court erred by denying Country Mutual's motion in
limine regarding evidence of replacement cost value (RCV).
I previously concluded that Country Mutual waived this issue because "in failing to raise
Plaintiffs' nonperformance of the repair and replace provision until now, Defendant has
11 - OPINION AND ORDER
essentially conceded that if Plaintiffs are entitled to coverage, they have met all the preconditions
for RCV." Order  at l; see Runnymede Owners, Inc. v. Crest Mortg. Corp., 861F.2d1053,
1058 (7th Cir. 1988) (holding that a party "who intends to controvert the claimant's general
allegation of performance is ... given the burden of identifying those conditions he believes are
unfulfilled and wishes to put in issue" (citation omitted); see also Myers v. Cent. Fla. lnvs., Inc.,
592 F.3d 1201, 1224 (11th Cir. 2010) ("Should a defendant not deny the satisfaction of the
conditions precedent specifically and with particularity, however, the allegations are assumed
admitted and cannot be later attacked." (internal quotation marks omitted)). Country Mutual does
not address the Court's ruling on waiver, instead arguing the Court erred because Oregon courts
require insureds to show actual replacement of lost property before payment of RCV. I find no
error in this ruling and DENY Country Mutual's Motion on this issue.
d. Whether the Court erred by not granting judgment as a matter of
law that personal automotive parts were not covered by the policy.
Country Mutual argues the Court erred because the homeowner's insurance policy does
not cover personal automotive parts. I denied Country Mutual's motion for judgment as a matter
oflaw because Country Mutual waived this issue by failing to raise it until trial, and because
there was at least some evidence from a Country Mutual representative that there was coverage
for personal automotive parts. Country Mutual's argument fails to address waiver. Minutes
. I find no error and I DENY Country Mutual's Motion on this issue.
e. Whether the cumulative errors denied Country Mutual a fair trial.
As stated above, I do not find error in these four evidentiary rulings and DENY Country
Mutual' s Motion on this issue.
Renewed motion for judgment as a matter of law regarding the cost of personal
12- OPINION AND ORDER
Country Mutual argues the Court should grant judgment as a matter of law (JMOL) on
replacement cost for personal property, because "[t]here [wa]s almost no testimony about current
replacement cost values" from the Mullers or other witnesses. 2 Motion  at 22. But the
Mullers did testify about replacement cost values. Stephen Muller testified that the value of his
personal property lost in the fire was $180,000. Minutes ; LauersdorfDecl. , Exh. 9 at
10. Rena Muller testified that the replacement cost of the household personal property lost in the
fire was $170,000. LauersdorfDecl. , Exh. 16 at 7. The jury instructions included the
following limiting instruction on Rena Muller's testimony:
You may only rely on Ms. Muller's opinion regarding damages to the degree that
she formed it independent oflooking up values on the Internet. Additionally, you
may only use, if you choose, Ms. Muller's testimony to arrive at a replacement
cost value for the lost items.
During Ms. Muller's testimony, you also heard evidence about the sale of six
rental properties, including the closing costs for each sale. I have stricken any
testimony relating to closing costs as unrelated to Plaintiffs' allegation for breach
of contract. As such, you should disregard that testimony.
Jury Instruction No. 20 . The jury returned a verdict for $256,500, below the combined
amount from these two testimonies. Jury Verdict .
I conclude there is sufficient evidence in the record from the Mullers' testimony of the
value of the personal property lost in the fire. "Opinion testimony by lay witnesses is admissible
ifit is '(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in issue."' United States v.
Goodheim, 686 F.2d 776, 779 (9th Cir. 1982) (quoting Fed. R. Evid. 701). Lay witness testimony
is admissible to prove damages. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir.1993)
The Mullers argue that Country Mutual waived this argument, citing an old version of Federal Rule of Civil
Procedure 50 to argue that Country Mutual had to move at the close of all evidence. But Rule 50 now states that "[a]
motion for judgment as a matter of law may be made at any time before the case is submitted to the jury." Fed. R.
Civ. P. 50(a)(2). Country Mutual moved for JMOL on this issue after the close of the Mullers' case, on day four of
the trial. Transcript of Proceedings .
13 - OPINION AND ORDER
(concluding the district court did not abuse its discretion by allowing lay opinion testimony as to
damages, where it was based on knowledge of business); US. ex rel. Technica, LLC v. Carolina
Cas. Ins. Co., No. 08-CV-01673-H KSC, 2012 WL 1229885, at *5 (S.D. Cal. Apr. 12, 2012).
Here, the Mullers testified that the replacement cost of the personal property lost in the fire was
$350,000. Testimony based on Rena Muller's Internet searches was disallowed; the jury could
only consider the Mullers' testimony based on their personal knowledge of the property lost.
And the jury found for the Mullers in an amount well below what their combined testimony
would have produced ($350,000), indicating the jury did not just take their testimonies at face
value. Given there was a "legally sufficient basis" to support the jury's verdict, Experience
Hendrix L.L.C., 762 F.3d at 842, I DENY Country Mutual's Motion  on this issue.
For the reasons stated above, I DENY Country Mutual's Motion for a New Trial and
Renewed Motion for Judgment as a Matter of Law .
IT IS SO ORDERED.
Chief United States District Judge
14-0PINION AND ORDER
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