Hernandez v. Employers Mutual Liability Insurance Co.
| Decision Date | 08 June 1965 |
| Docket Number | No. 21564.,21564. |
| Citation | 346 F.2d 154 |
| Parties | Dallas HERNANDEZ, Appellant, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellee. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Dallas HERNANDEZ, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. Smith, Lake Charles, La., for appellant.
Frank M. Brame, Cavanaugh, Brame, Holt & Woodley, Lake Charles, La., for appellee.
Before BROWN and GEWIN, Circuit Judges, and KILKENNY,* District Judge.
In this action the appellant insured sought to recover damages allegedly accruing by reason of the appellee insurance company's breach of its obligation to attempt to settle a claim for personal injuries for which the appellant became liable.
The insured was involved in an automobile accident in which one Copeland was killed. Copeland's heirs filed suit in a state court against the appellant and appellee, and American Surety, the subrogated compensation insurer of Copeland's employer, intervened. The liability insurance policy issued by appellee contained a limit of $5000 for bodily injury to any one person.
Eventually, an excess judgment of $100,416.92 was rendered against the appellant Hernandez in the state court. He then instituted this action in the federal court to recover the amount of that judgment on the theory that Employers Mutual had not used good faith in its attempt to settle the claims of the Copeland heirs and American Surety.1 The case was submitted to a jury on special interrogatories, and the jury found that Employers Mutual was not guilty of bad faith or unintelligent handling of the claim.
(1) Appellant asserts that the trial court erred in denying his motion for a judgment in accordance with his motion for a directed verdict or, in the alternative, for a new trial. We do not think the trial court erred in this respect. The record contains no indication that Hernandez filed a motion for directed verdict at the close of the evidence, a prerequisite for relief on a motion for a judgment notwithstanding the verdict under Rule 50(b), Fed.R.Civ.P. Moreover, the trial judge stated in his order overruling the motion that he had no independent recollection that Hernandez had moved for a directed verdict. Nevertheless, we do not think the state of the evidence warranted the granting of such a motion. Without attempting to detail the proof, it is sufficient to state that the evidence of bad faith was certainly not so overwhelming that a directed verdict was appropriate. It follows that the court did not abuse its discretion in denying the alternative motion for a new trial.
(2) Appellant challenges the propriety of the trial court's instructions to the jury in several particulars. He asserts that the court erroneously placed the burden of proof on one issue in the case and that he misstated the insurer's settlement obligations in another part of the charge. In light of the failure of the...
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