Weathers v. American Family Mut. Ins. Co., Civ. A. No. 87-2557-O.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation793 F. Supp. 1002
Docket NumberCiv. A. No. 87-2557-O.
PartiesVirginia K. WEATHERS, Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, et al., Defendants.
Decision Date21 May 1992

793 F. Supp. 1002

Virginia K. WEATHERS, Plaintiff,

Civ. A. No. 87-2557-O.

United States District Court, D. Kansas.

May 21, 1992.

793 F. Supp. 1003
793 F. Supp. 1004
793 F. Supp. 1005
793 F. Supp. 1006
Pedro L. Irigonegaray, Irigonegaray & Associates, Topeka, Kan., for plaintiff

N. Jack Brown, Boddington & Brown, Chtd., Kansas City, Kan., Kent M. Bevan, Dysart, Taylor, Penner, Lay & Lewandowski, Kansas City, Mo., for defendant American Family Mut. Ins.

Mark S. Braun, Office of Atty. Gen., Topeka, Kan., for defendant Richard J. Blevins.

Wilburn Dillon, Jr., Bennett, Dillon & Callahan, Topeka, Kan., for defendant Zenith Electronic Corporation.


EARL E. O'CONNOR, District Judge.

This matter is before the court on defendant American Family Mutual Insurance Company's ("AFM's") motion for judgment notwithstanding the verdict, or in the alternative, to alter or amend a judgment, or in the alternative, for remittitur, or in the alternative, for new trial (Doc. # 1008). Having reviewed the motion, the court is now prepared to rule.

I. Background

The court will briefly summarize the background of this case.1 Plaintiff Virginia Weathers is a resident of Topeka, Kansas. In the late evening hours of November 12, 1986, and the early morning hours of November 13, 1986, plaintiff's home was extensively damaged by fire. Following the fire, investigations were conducted by defendant Richard Blevins, a fire investigator for the state fire marshal's office, and Steve Thompson, an AFM investigator.

In May of 1987, approximately five months after the fire, defendant AFM denied plaintiff's claim for benefits under her homeowner's insurance policy. As justification for the denial, AFM claimed that the fire was intentionally set and that plaintiff was involved in setting the fire with the intent to cause the loss of her dwelling and belongings. Additionally, AFM informed plaintiff that she had committed numerous other breaches of her homeowner's insurance policy.

In June of 1987, the State of Kansas filed criminal charges consisting of two counts of aggravated arson against the plaintiff. Plaintiff's criminal trial was conducted in the fall of 1987. After two and one-half weeks of trial, plaintiff was acquitted by the jury. Following her acquittal,

793 F. Supp. 1007
plaintiff filed this lawsuit against the defendants seeking money damages

Plaintiff asserted three separate claims against her insurer, defendant AFM: (1) breach of contract; (2) outrage; and (3) malicious prosecution.2 With respect to defendant Blevins, plaintiff alleged that Blevins was grossly negligent in the investigation of the fire. Finally, with respect to defendant Zenith, plaintiff asserted alternative claims of negligence and strict liability.3

This case was tried to a jury beginning April 8, 1991, until June 21, 1991. The jury returned a verdict in favor of plaintiff on all of her claims against defendant AFM, and awarded plaintiff $6,192,072.00 in total damages.4 The jury found against plaintiff on her claims against defendants Blevins and Zenith.

II. Standards

The standard for granting a motion for judgment notwithstanding the verdict is precisely the same as the standard for directing a verdict. Hurd v. American Host and Derrick Co., 734 F.2d 495, 499 (10th Cir.1984). In considering a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party against whom the motion is made. Downie v. Abex Corp., 741 F.2d 1235 (10th Cir.1984). It is not the court's duty to weigh the evidence presented, or to pass upon the credibility of witnesses, or to substitute its judgment of the facts for that of the jury. Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.1988). A judgment notwithstanding the verdict is cautiously and sparingly granted when the court is certain the evidence "conclusively favors one party such that reasonable men would not arrive at a contrary verdict." Western Plains Service Corp. v. Ponderosa Development Corp., 769 F.2d 654, 656 (10th Cir.1985). Finally, a motion for judgment notwithstanding the verdict may not be granted unless the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made. E.E.O.C. v. Univ. of Oklahoma, 774 F.2d 999, 1001 (10th Cir. 1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986).

Motions for new trial are committed to the sound discretion of the trial court. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984); Brownlow v. Aman, 740 F.2d 1476, 1491 (10th Cir. 1984). In reviewing a motion for new trial the court must view the evidence in the light most favorable to the prevailing party. Joyce v. Davis, 539 F.2d 1262, 1264 (10th Cir.1976). Moreover, the court should abide by the principle "that courts should exercise judgment in preference to the automatic reversal for `error' and ignore errors that do not affect the essential fairness of the trial." McDonough Power Equipment, Inc., 464 U.S. at 553, 104 S.Ct. at 848. Error in the admission or exclusion of evidence, and no error in ruling or order of the court or anything done or omitted by the court can be grounds for granting a new trial unless the error defect affects the substantial rights of the parties. Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1148-49 (10th Cir. 1978), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978); Fed.R.Civ.P. 61. "The party seeking to set aside a jury verdict must demonstrate trial error which constitutes prejudicial error or that the verdict is not based on substantial evidence." White v. Conoco Inc., 710 F.2d 1442, 1443 (10th Cir.1983).

793 F. Supp. 1008

III. Discussion

A. Motion for judgment notwithstanding the verdict.

In its motion, AFM contends that it is entitled to a judgment notwithstanding the verdict "for several reasons." The court will discuss each of AFM's contentions in the order in which they are presented in the motion.

1. Overlap of plaintiff's theories of malicious prosecution and outrage.

AFM contends that plaintiff's malicious prosecution and outrage claims overlap and resulted in a "partial double recovery" of actual damages. In support of this contention, AFM asserts that the "major element" of plaintiff's outrage claim was AFM's institution of criminal proceedings against the plaintiff. Accordingly, AFM argues, "where ... an established tort is alleged which, by definition, includes that outrageous conduct claimed by the plaintiff, the separate tort of outrage is not appropriate and is subsumed within the established tort." Alternatively, AFM argues that the court's instructions to the jury erroneously allowed the jury to award plaintiff duplicative damages on the outrage and malicious prosecution claims.

The court first turns to the question of whether plaintiff's outrage claim was subsumed by her malicious prosecution claim. Critical in this determination, the court believes, are the operative facts underlying each of plaintiff's tort claims. Viewed on a time line, the operative facts underlying plaintiff's outrage claim began on November 13, 1986, when AFM investigator Steve Thompson arrived on the fire scene and announced that his job was "to put people in jail," and continued until well after plaintiff's acquittal. In contrast, the operative facts underlying the malicious prosecution claim occurred during a different, and shorter, period of time — from approximately June of 1987, when criminal charges were instituted, until November of 1987, when plaintiff was acquitted. Although the conduct of AFM that gave rise to the malicious prosecution claim was possibly considered by the jury as a "subset" of the conduct giving rise to the outrage claim, the court does not believe that this precludes plaintiff from recovering under both claims.5

Defendant AFM has cited several cases which it claims support its subsumption argument. The court has reviewed these cases and finds them distinguishable from the case at hand. Specifically, in each of the cases cited by AFM, the plaintiffs were attempting to seek "identical relief" under multiple theories of recovery which were based on "the same, identical, operative facts...." Clappier v. Flynn, 605 F.2d 519, 531 (10th Cir.1979); see Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1089-92 (5th Cir.1984) (holding that, under Texas law, plaintiff whose privacy has been invaded can have only one recovery if alternative causes of action contain identical elements of damages flowing from the same publication), cert. denied, 469 U.S. 1107, 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); Braun v. Flynt, 726 F.2d 245, 251 (5th Cir.1984) (holding that plaintiff could not recover for the same embarrassment and humiliation caused by the publication of her photograph in a magazine under both defamation and invasion of privacy theories), cert. denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984); Greenwood Ranches, Inc. v. Skie Constr. Co., 629 F.2d 518, 521 (8th Cir.1980) (holding that plaintiff's causes of action were "simply alternate theories for seeking the same relief."); Stewart v. Thomas, 538 F.Supp. 891, 896-97 (D.C.Cir.1982) (holding that plaintiff's claim of intentional infliction of emotional distress was subsumed by plaintiff's Title VII claim); Therrell v. Fonde, 495 So.2d 1046, 1048 (Ala.1986) (court did not reach subsumption issue); Jonap v. Silver, 1 Conn.App. 550, 474 A.2d 800, 807 (1984)

793 F. Supp. 1009
(holding that separate verdicts for both invasion of privacy by appropriation and invasion of privacy by false light amounted to an improper duplication of damages where the wrong complained of by the plaintiff...

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