North American Specialty Co. v. Britt Paulk Ins.

Decision Date25 August 2009
Docket NumberNo. 08-7000.,No. 07-7115.,07-7115.,08-7000.
Citation579 F.3d 1106
PartiesNORTH AMERICAN SPECIALTY INSURANCE COMPANY, Plaintiff-Appellant/Cross-Appellee, v. BRITT PAULK INSURANCE AGENCY, INCORPORATED, a foreign corporation, Defendant-Appellee/Cross-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Eric Mareshie (James K. Secrest, II, and Edward J. Main, with him on the briefs), Secrest, Hill & Butler, Tulsa, OK, for Plaintiff-Appellant-Cross-Appellee.

Joseph R. Farris (Paula J. Quillin, Thayla P. Bohn, and Jeremy K. Ward, with him on the briefs), Feldman Franden Woodard & Farris, Tulsa, OK, for Defendant-Appellee-Cross-Appellant.

Before LUCERO, O'BRIEN, and GORSUCH, Circuit Judges.

LUCERO, Circuit Judge.

North American Specialty Insurance Co. ("North American") sued its general agent, Britt Paulk Insurance Agency, Inc. ("Britt Paulk"), and its limited agent, Argenia, Inc. ("Argenia"),1 alleging that the latter two companies wrongfully caused North American to settle a bad faith lawsuit brought against it by two insureds. North American claimed that Britt Paulk and Argenia were liable for negligence and that Britt Paulk was liable for breach of contract and contractual indemnification. A jury returned verdicts in favor of North American and against Britt Paulk on all three claims.

After trial, consistent with the jury's verdict, the district court entered judgment in favor of North American on two claims: negligence and breach of contract. But the district court entered judgment in favor of Britt Paulk and against North American on the contractual indemnification claim, finding that it was duplicative of the breach of contract claim. Both North American and Britt Paulk appeal.

North American argues that none of its claims is duplicative of any other, and it therefore is entitled to the awarded damages on all three. Britt Paulk responds that there was insufficient evidence of causation to support any of the jury's findings, that exclusion of expert testimony and improper closing arguments require a new trial, and that in any event all three claims were duplicative and thus North American should be allowed to recover on one at most. In all respects, we conclude that North American is correct. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand.2


Jerry and Nikki McDonald ("the McDonalds") had a farm. On this farm they had some chickens. They cooped these chickens in poultry houses, which were insured by North American. Two of the poultry houses were damaged as a result of blast mining in the area. North American's insurance policy was underwritten by Britt Paulk, who in turn employed Argenia as its sub-agent to deal directly with the McDonalds. In November 2003, Argenia's representative, Michael Alexander, was contacted about the damage to the McDonalds' property.

Upon learning of the property damage, Alexander contacted Curtis Barham, Britt Paulk's manager for the poultry property program. In response, Barham indicated to Alexander that blasting was not covered under the North American policy. Alexander then relayed that message to Jerry McDonald. North American was unaware of these conversations.

North American first learned of the McDonalds' losses in January 2004. After North American sent an independent adjuster, Bill Haneline, to inspect the poultry houses, Haneline reported that the McDonalds were not making a claim but providing notice that the damaged buildings would no longer be used for raising chickens. Approximately one month later, North American closed the McDonalds' claim file.

Unbeknownst to North American, Jerry McDonald continued to request that Argenia pay his claim. Yet, North American did not hear mention of the McDonalds again until early 2005 when they sued North American for breach of contract and bad faith denial of their claim.

After the McDonalds filed suit, North American determined that blasting was a covered peril, contrary to what Britt Paulk and Argenia told the McDonalds. North American then paid the McDonalds' policy limit of $205,000 for the property damage. As for the bad faith component of the lawsuit, North American and the McDonalds reached a mediated settlement of $1.2 million, down from the McDonalds' $2.3 million demand.

In May 2006, North American sued Britt Paulk and Argenia for breach of contract, negligence, and indemnification. North American alleged that it was forced to pay damages to the McDonalds on their bad faith claim because Britt Paulk communicated to the McDonalds that the property damage was not covered and failed to notify North American of the McDonalds' attempts to obtain payment on their claim. Under the terms of the parties' contract, Britt Paulk was barred from investigating, defending, or denying any claim against North American. Britt Paulk was also contractually required to "give [North American] prompt written notice of any claim, demand, action, suit, or proceeding raised, brought, threatened, made, or commenced."

Prior to trial, North American moved to exclude testimony of Britt Paulk's expert Diane L. Luther, who would have testified that North American mishandled the McDonalds' claim by deviating from accepted insurance industry standards of care. Granting the motion to exclude, the district court reasoned that Luther's opinion would not be helpful because the jury was perfectly capable of deciding the case without her testimony. On the same day, the district court granted Britt Paulk's motion to exclude testimony by North American's expert, Michael Atkinson, for similar reasons.

During the presentation of North American's case, Jerry McDonald testified that he paid his premiums to Argenia and therefore understood Argenia to be his insurance company. Alexander, Argenia's representative, testified that he notified Britt Paulk that the McDonalds continued to seek payment. For his part, Barham, Britt Paulk's manager for the poultry property program, testified that he did not recall receiving any such notice. Notably, Barham did not notify North American about the ongoing discussions or the McDonalds' expressed desire for payment.

After North American concluded its case, Britt Paulk moved for judgment as a matter of law, which the district court took under advisement. Following testimony from Britt Paulk's sole witness, the case proceeded to closing arguments. During its rebuttal argument, counsel for North American argued that Britt Paulk and Argenia had failed to produce certain phone records from the months after North American was notified that the McDonalds did not seek payment on their claim. North American's counsel told the jury, "[T]his case could have been so much simpler if [Britt Paulk or Argenia] would have stepped up and showed you that phone record." He reiterated that Britt Paulk and Argenia "should have felt compelled to bring [the jury] their own client's [phone] records," calling them "the one [thing] they didn't want to show you." Britt Paulk moved for a mistrial. This was denied on the basis stated by the district court that Britt Paulk had not been prejudiced.

After being instructed against awarding duplicative recoveries,3 the jury, by special interrogatories, found that Britt Paulk breached its contract with North American, directly causing North American to settle with the McDonalds, and awarded $500,000 on that claim. On the negligence claim, the jury awarded $250,000 in damages. It found Britt Paulk and Argenia each responsible for 40% of North American's negligence damages. North American was itself 20% responsible. The jury further found Britt Paulk liable to North American for contractual indemnification in the amount of $250,000.

Judgment was entered in favor of North American on the negligence claim and the breach of contract claim, including awarding attorneys' fees. Without making factual findings regarding duplicative recovery or providing any explanation, however, the court entered judgment in favor of Britt Paulk and against North American on the contractual indemnification claim.

North American moved for reconsideration, arguing that the jury awards were not duplicative. While North American's motion was pending, Britt Paulk moved for a new trial and renewed its earlier motion for judgment as a matter of law. Britt Paulk also moved the court to reconsider its judgment in favor of North American on both negligence and breach of contract, contending that these awards amounted to double recovery and that North American was not entitled to attorneys' fees. The district court denied all motions, leaving intact the previously-entered judgment and award of an undetermined amount of attorneys' fees. North American and Britt Paulk both appeal.


We first consider Britt Paulk's contention that the district court should have granted its motion for judgment as a matter of law. We review denial of a motion for judgment as a matter of law de novo, taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to North American, the non-movant. Keylon v. City of Albuquerque, 535 F.3d 1210, 1214-15 (10th Cir. 2008). "Judgment as a matter of law is appropriate only if the evidence points but one way and is susceptible to no reasonable inferences which may support the nonmoving party's position." Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1081 (10th Cir.2008) (quotation omitted). Britt Paulk contests only whether there was evidence that it caused North American to have to settle the McDonalds' bad faith claim.

North American contends that three acts or omissions by Britt Paulk caused settlement of the bad faith claim: (1) Britt Paulk allowed the creation of a coverage opinion regarding the McDonald's property, (2) it allowed that opinion to be communicated to the McDonalds, and (3) it failed to notify North American of the McDonalds' continued efforts to make a claim. Barham, Britt Paulk's...

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