it please the court nelson want to arguing on behalf of plaintiff appellant patrick slaven the district court instructed the jury that under colorado law an insurance company that unreasonably delays or denies payment of a covered benefit is subject to certain statutory penalties to be imposed by the court capitalizing on this instruction at the end of its closing argument defendant apple league kerrison property and casualty insurance company said that the entire trial in which a great number of witnesses folk at length about the benefits owed and the recent list of the insurance companies conduct was not in fact about those benefits but was about the penalties that patrick slaven hoped to obtain the instruction was error st jury instructions or not is not complaining was an objection to the statement by counsel at the time it was made there was not an objection to the statement of counsel there were numerous objections to the instruction so we're focusing on instruction i didn't think you were challenging him properly closing oh yes but in in analyzing the effect of a jury instruction whether it tainted the verdict  it's appropriate to look at opening statements the evidence and close that was the opening statement this was closing if it's appropriate to look at closing as well so st of all the instruction is not a correct statement of the law a month or two months actually earlier before the trial the colorado supreme court announced two unanimous decisions that said that statutory bad faith claims aren't penalties at all that was the casper decision and the rooftop restoration decision  in addition to that the instruction given is not in conformity at all with the pattern jury instruction or statutory bad faith claims which is c d i set of twenty five cohen for if you look at the pattern instruction there are two elements to a statutory bad faith claim the st is it the defendant insurance company delay or deny payment of a benefit and the nd is was that delay or denial without a reasonable basis the pattern jury instructions include no mention of any penalties or remedies as what they really are that are imposed by the court after the jury's verdict and there's very compelling reasons that the pattern instruction doesn't mention penalties the  is that as i mentioned they're not penalties at all under colorado law the nd and perhaps most important one is that ascertainment of the penalty or imposition of the penalty is not a function of the jury in rendering it verdict it is a function of the court in drafting the judgment after the verdict is is rendered counsel can i just stop you there and ask you isn't the problem i guess you haven't identified this but the jury will take that into account when they're setting damages isn't that a concern and the jury was not doing that here well i don't think the concern only goes to damages i think the concern might be that they don't think he should get penalties at all and find against him on a statutory bad faith claim so the fear is not just oh we'll reduce the damage is but we don't want to get penalties or what why are we just maybe you can just tell me what the jury took from that instruction under your theory why they do what was their thought process i don't know what the jury's actual thought process was i think this instruction and the way it was used by harrison could only have been for an improper purpose which is to suggest that this case is about unnamed statutory penalties that patrick slaven wants to get and i think juries who knows what goes on in that room i certainly don't know but well what were they deciding they were deciding whether a payment was unreasonably delayed or denied for purposes of just the brick facade ok and how would the penalty effect that decision just the concern that we don't want penalties to be imposed whatever they are this case is all about statutory penalties which there was no test about that story penalties then we'll find against the plaintiff so that he can't recover those penalties for whatever reason to me it's no different than troubling damages which might not necessarily be a reduction it might just be a finding of no liability by the jury i just did a quick search of your opening brief in this case i don't see any argument that the instruction was wrong because it referred to it as a penalty can you show that can you direct me to where you made that argument in your opening brief because that was the main thrust of what you started with was that the the instruction was wrong because it spoke of penalties and the colorado supreme court said it's not a penalty sir when we we made the at the charging conference we raised four cases four district court cases that had found so there's a there's a case by judge bremer there's a case you're not answering my question do you or i who in your opening brief that the instruction was wrong because it referred to this is a penalty and it's not a penalty we do not that is in that answer briefs assertion that this is a correct statement of law is where that was raised don't you have to in your opening brief explain why it was an incorrect statement of well well that and we do for the three cases i mean catherine who did not make the argument that it's improper because that was improper instruction because it's not a penalty in the opening brief now but i think in responding to an answer briefs assertion that it is  correct statement of law it's appropriate in a reply to raise two cases that are directly on point but regardless i think this three cases we did talk about and tried to address with the district court or the which are which are similar holdings which is that the courts in those cases did not instruct the jury or refused to instruct the jury on the penalties because they have no probative value to the jury determination in addition to that they let me as you i suspect that the reason the judge gave that instruction included that instruction was the jury's go wondering what the heck are we here for then and isn't it appropriate for the judge to intice a paper that concern and say  result will result in a statutory penalty which you're not going to assess it yourself that's for the court to do is that what you think the jury's going to think sitting through a trial and not reaching any decision on how much money train she's hands i think the jury like in every other statutory bad faith case thinks it's deciding whether a benefit was delayed or denied without a reasonable basis consistent with the pattern jury instruction and they wouldn't ask why are we doing that i think that happens in all sorts of cases i mean as i mentioned in the opening brief or in the wrist in the reply brief happens in criminal cases all the time they don't know a criminal jury doesn't know the sentence that's going to be imposed in bifurcated trials you may have a contrary to contract claim under an insurance policy that's bifurcated from a statutory bet but i think common law at base i mean the jury doesn't know the effect of its finding on breach of contract i think of a reasonable review of the trial record doesn't reveal any confusion as to what was going on in this case deciding whether there was a benefit that was unreasonably delayed or denied and i don't think the jury had any confusion as to why it was there and this is an important issue that arises all the time in statutory bad faith claims just like as this is coming up more and more which is this these you know referring to the penalties is not there to provide context i don't think it was used to explain oh we're deciding this to see whether penalties are imposed or not it's included in the instructions tendered by insurance companies and then argued that that's why we're here to talk about penalt after the original complaint was filed which is not unusual at all both plaintiffs and defendants often request appraisal after litigation has been filed that's usually because insurance policies contain contain a time for supervision or a lawsuit has to be brought within two years of the data loss even though it may not be resolved so contractual appraisal as a method of ascertaining and finalizing the amount of the loss so that happened in this case the suggestion of magistrate judge shafer and the policy under the policy garrison was obliged to participate in did participate at selected its appraiser and both of those appraisers slavens and identified twelve thousand eight hundred dollars in additional window damage after the complaint was filed i think the context of the exclusion of the window damages in this case is extremely important it was not they were not excluded in a motion for summary judgment no party filed a motion in limine a to exclude evidence of window damage it arose in the context of plaintiff's motion to strike the defendant's bad faith expert no one asked that window damage be excluded well why would you ask that it be excluded if there's no allegation in the complaint regarding the windows no factual allegation  windows mentions in the complaint windows were not mentioned in the amended complaint but the appraisal had not occurred we didn't have the claim file no discovery had occurred no depositions and then after the appraisal that harrison participated in window damage was awarded so if windows to now appear to be an issue isn't the proper approach to move to amend your complaint to include windows is that the defendants responsibility so gee they part up windows let's make sure that's not covered so we'll file a motion to exclude windows there was no confusion about windows being a part of this case there's i went back and reviewed the entire record in preparation in preparing for this oral argument there is before the litigation there's one letter from usa referring to the windows in reference to a payment three of its estimates contain line a line items for windows the appraisal award post filing of the complaint contains when there are two issues then one is windows as a matter of breach of contract and windows as a but then the same could they i mean there's no question the recovery for some windows the question is whether there was any misconduct alleged misconduct by the insurer in being twos too slow to respond with respect to windows or something like that and there are no allegations about america wrecked in the complaint there are no allegations but there are allegations not only with respect to the breach of appears in the common law breach of contract when it appears in the statutory breach of contract claim at paragraphs eighty one dollars or excuse me seventy nine in eighty one and paragraphs eighty six and eighty eight and that's on  seventy and there are the exact same things and so for the court to say that well you've alleged window damage for purposes of breach of contract but not for purposes of statutory bad faith is just incorrect and this happens again all the time the complete does not define the evidence i don't think rule fifteen requires a litigant to amend the complaint to add every factual allegation discovered from subsequent events or in discovery that's what the proposed verdict form included in the trial previous talked about the windows and a year after the court found that that windows were part of the breach of contract claim it wasn't for purposes of that story  so i'd like to reserve thirty seconds and let the court of the question for me thank you after the district court refused to vacate the appraisal award appellant sought to reframe his case in focus solely on pre litigation conduct and avoid the consequences of the appraisal he demanded and appellant was successful in convincing the district court to focus on pre lit gaging conduct the exclusion of evidence at appellants request carried through the trial and the court did not allow evidence of the appraisal process or payments made after the appraisal beyond the party stipulations in the pretrial order now the that strategy proved unsuccessful as well appellant claims error for decisions the district court made that are the result of his own pretrial and to the extent the challenge instruction was improper that instruction and that error if it was one is harmless because in fact the jury didn't even reach the question of whether garrison acted unreasonably because they answered no to the st question garrison did not delay or deny a covered being covered benefit now i will address these in the order that the appellant in a different order than appellant if the court will allow because i want to take the issues chronologically as they were presented to the district court and address at that time starting with the windows in the exclusion of evidence related to the windows the st issue for this court is the standard of review for that issue appellant seeks an abuse of discretion for this evidence jury issue but the fact of the matter is this court may find that there was an intentional waiver based on appellants conduct and his conduct as a whole and i'll go through the context of how that decision came about and why this court may find intentional waiver and it's not an intentional waiver it should be rebuked soley for plain error because there was no offer of proof as stated is required in the philip eagle crest medical center case from this court the fact is we do not know what the evidence at trial would have been on the windows because there is no offer of proof more than that it is wrong to claim as appellant didn't reply that the court essentially issued a decision to a spontaneous because both parties not only brief issues related to whether windows should be part of the case before that evidence jury decision was made the court held oral argument a forty three minute argument on in january two hundred two thousand and eighteen appendix page two thousand two hundred and seventy three is the minute order for that but  include the transcript of that hearing in the appendix thus this court does not have in front of it the arguments made by appellant related to the windows and it does not have an offer of proof to know what the evidence would have been at trial thus if not a clear waiver then at most the court should review soley for plain error which is nearly an insurmountable burden in civil cases the context of that decision related to windows demonstrates why a waiver may have occurred and certainly there was no plain error as a starting point there is nothing in the claims process indicating an actual dispute related to windows appellant raised a question about the windows that question was answered he said that addresses my concerns the only issue left is the brics the court can see that in supplemental appendix pages one hundred and seventy four and one hundred and eighty six more importantly then appellant got a lawyer because of the brick issue before the lawsuit was filed that lawyer sent a letter saying raising questions and pointing out that the bricks were quote the sole issue in dispute and quote that's appendix page two thousand one hundred and eighty and it appears in what document to do so that's a letter that is a letter from the attorney before the lawsuit was filed appendix page two thousand one hundred and eighty then of course there's nothing in the complaint about windows there's nothing in the amended complaint the word doesn't appear well counsel can i just stop you there and get you to respond to opposing counsel's argument that all you did was talk about windows there could be no surprise in this case because windows were discussed throughout the case well the fact that windows were involved in the claims process but there was no dispute about them is the problem and the fact that there might have been windows as appellant pointed out didn't come up until the appraisal process and so the only conduct related to windows in terms of what was actually in the case was did you pay the right amount of the which went to the breach of contract claim that was then withdrawn ok you know how men are spend when you say there's no dispute about them there was no dispute about the windows during the claims process so if we're focused on korea litigation conduct as appellant requested and the court ruled we would do there was nothing about a dispute nothing that would indicate there was any problem with the windows windows don't come up until the appraisal award that's the st time they're injected into the case and in fact appellant then filed a motion to file a  complaint that included the word windows thirty five dollars times to add that to the case but then withdrew the motion in did not proceed on that and then you complained instead proceeding on the prior opera complaint that doesn't mention wind so the arguments that garrison made to the trial court were windows are not part of this case st of all in addition court said not quite their part of the breach of contract case and because there's dispute back some breach of contract that part goes forward the court never said they were part of the bad faith so then when the breach of contract place was withdrawn evidence about appraisal became irrelevant the court said we're not going there this is all pre litigation conduct your sin again pointed out wait a minute then if this is all pre litigation conduct windows aren't relevant to that in the district or group and said you're right there's nothing to do with windows back in this timeframe that is how the context of where we got to what happened is appellant got past summary judgment by claiming we didn't pay the appraisal award and by claiming garrison acted deceitfully unreasonably related to the bricks after that appellant withdrew the breach of contract claim because as appellant argued a process was too confusing the payments afterward which was complicated there was a dispute garrison claim they overpaid the claim mr flavin claimed he was underpaid that was going to be for what would happen if we talked about the appraisal process that appraisal so they were not part of the dispute pre litigation now to avoid the consequence of that decision appellant misreads the district court's order on summary judgment but the critical distinction is the difference between what it takes to provide notice of a contract claim which is simply you failed to pay me what your i'm owed and notice of an unreasonable delay denial claim pointing out conduct that was unreasonable in the complaint only talks about conduct to the windows as the attorneys letter said during the claims process the only dispute is the bricks nothing about windows now the thing is the court agreed with what appellant asked for which was to limit the case to occasion conduct but in doing so the court then recognized windows were not part of that dispute the appellant waived his claimed error regarding exclusion of evidence for the windows because it was based on appellant withdrawing his own contract claim and then arguing that evidence should be limited to preclude a geisha conduct and even if not fully weighed it certainly was not plain error for the court to reach that decision that it would exclude evidence related to windows based on those facts in this case how that issue came up in this case the nd issue that appellant raised on appeal and i'll just briefly because he did not address in moral argument is the appraisal letter itself and i just want to point out again this is a classic example of invited error because appellant asked this this evidence be excluded from the trial court and it was and then sought to introduce the evidence he had asked to have excluded and the context starts with supplemental appendix page one hundred and sixty eight line twenty four in which garrison intended to demonstrate it had paid twenty four thousand and change for the bricks before the lawsuit was filed in response appellant argued no you didn't actually pay the twenty four thousand now what gibson did at trial was say here's the pre litigation on the evidence and twenty four thousand compared it soley to this party stipulation about the covered benefit that was not a violation of the motion eliminate order as appellant argues in reply did not violate the order it focused solely on evidence of premeditation and compared it to a party's stipulation about what was actually alternately so the attack was to say he didn't really pay the twenty four thousand dollars and that is what appellant did with the adjuster mr ryan's and he did it by saying that included additional information the twenty four dollars didn't covered other issues the checks don't add up things like that and i'll point the court to appendix really pay the twenty four thousand dollars you're claiming you did it was only when that was unsuccessful apparently that then appellant claimed well with mr bart we're going to get into post appraisal payments and try to prove they were payments made later to discredit what happened before hand a direct violation of the motion lemony that was actually solicited by appellant on a page three thousand one hundred and eighty one and in fact gar objected in that testimony being allowed over garrisons objection then of course on redirect garrus and then a cleared up to say no those payments were due to stale checks but the court then didn't allow that evidence in that letter to come in because it was too confusing the same reason appellant argued for in his motion in limine that it shouldn't be allowed in the st place as well that is a classic example of invited error appellant should not be heard to challenge the exclusion of evidence that he demanded and convinced the court to exclude counsel could i get you to move to the jury instruction issue i know you want yes they but your i have three minutes thank your honor the st issue for the jury instructions is that the jury did not reach the question of reasonableness because they found the cover benefit was not the later denied thus this court should follow what happened in the seventy case that drive the outcome here to find that even if there was an error it was harmless based on the evidence in this case because the jury found the benefit do you concede there was error i do not ok but i argue that the court nessus doesn't necessarily have to go there because if there was an argument and here it was harmless and let me explain why there is no error the structure of the law is correct now as your honor pointed out the issue about whether it's a penalty or damages or wasn't raised until the reply brief it wasn't raised on on appeal here or at the district court but more importantly when we're talking about a juror this is ticks between whether it's a statutory penalty or statutory damages that has legal significance in terms of a statute of limitations it doesn't have legal significance to a jury so it is still correct to present this to the jury and let me explain why in the criminal context we tell a jury that you are going to decide guilt or innocence and that a judge might decide a sentence we don't tell them what the range of sentences will be or anything but just to know here's your role and there's more that happened so they understand the context here the jury was told slaven claimed garrison by a lady of colorado law they were told in an unreasonable delay or denial of a covered benefit is a call is a violation of colorado law it was proper to further allow the jury the limited context that if the jury finds kerrison violated colorado law garrison would be subject to statutory penalties imposed by the court the concerns with providing that information to a jury that are raised in the cases cited by appellant do not apply here one they weren't given a calculation of its double benefits plus attorneys fees or anything like that for them to be able to take a damage number and reduce they also were considering damages and all when being asked two simple questions did was there a delay or denial of benefit and was that delay or denial unreasonable it was certainly appropriate for them to understand because this is a statutory violation the significance is if they violated the law the court will then take the next up in address what penalties are required that is a proper context for a jury to understand the significance of what they are doing in this case and in any case with this type of instruction or this type of claim not to know the details how much of the penalty should we reduce our work but just simply that this is their their finding their reason for being here has meaning it does have significance because that is what they're doing here and they should be allowed to know that limited context as they were told here ultimately then though what even if the court found that instruction was not correct it is steel this still a harmless error here where the jury didn't even reach the question of reasonableness because they stopped at question one in some the district court's decision that appellant now challenges are the result of his own pretrial maneuvering and trial strategy mr slaven had his day in court his chance to convince the jury that garrison acted on reasonably focused on the pre litigation conduct that he requested and the jury rejected his claims the jury's verdict should not be disturbed in this court should affirm the trial court's judgment  very quickly i'd like to address the notion that there was no dispute about the windows before the appraisal that is a classic jury question i think it's inappropriate for a court to decide on a motion to strike a defense expert or insurance companies have a duty to investigate and ascertain the benefits payable and whether that was reasonable or not with respect to the windows as part of the claim it's inappropriate to just say it wasn't part of the case in the context of a motion to strike an expert there for no case is submitted counts are excused will turn turn next case case