UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NELLIE MONTGOMERY; CHARLES

MONTGOMERY,

Plaintiffs-Appellants,

v.

No. 95-2702

GENERAL ACCIDENT INSURANCE;

POTOMAC INSURANCE COMPANY OF

ILLINOIS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

Richard L. Williams, Senior District Judge, sitting by designation.

(CA-93-62)

Argued: April 7, 1997

Decided: June 10, 1997

Before RUSSELL, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William B. Carey, Berkeley Springs, West Virginia, for

Appellants. Paul K. Geer, DIBELLA & GEER, P.C., Pittsburgh,

Pennsylvania, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Charles and Nellie Montgomery brought this action claiming that

General Accident Insurance Company of America and Potomac Insurance Company of Illinois (collectively, "General Accident") refused

in bad faith to satisfy their obligations under an insurance policy covering property owned by the Montgomerys. A jury awarded the Montgomerys compensatory damages but refused to award punitive

damages. The Montgomerys appeal, primarily contending that the district court erred in refusing to grant them a new trial on the basis that

prejudicial remarks by the district court resulted in the failure of the

jury to award adequate compensatory or punitive damages. We

affirm.

I.

In June 1993, a small grocery store owned by the Montgomerys in

rural West Virginia was damaged when an underground gasoline tank

located on the property exploded. The Montgomerys sought reimbursement for property damage caused by the explosion from General

Accident pursuant to the terms of a business owners insurance policy.

Subsequently, the Montgomerys filed a claim under the policy for lost

profits due to business interruption, believing that General Accident

had unduly delayed in paying their property damage claim, thereby

postponing the reopening of the store and causing a loss of income.

General Accident denied the full claim for lost profits on the basis

that any delay in payment of the property damage claim was a result

of the Montgomerys' failure to provide promptly repair estimates and

that delay in the reopening of the store was caused by the enforcement

of environmental regulations by the State of West Virginia, for which

General Accident was not responsible.

The Montgomerys then filed this action, alleging that General

Accident's failure to pay promptly their repair costs and refusal to pay

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their entire claim for business interruption losses amounted to a

breach of the insurance contract and a bad faith failure to comply with

its terms. Additionally, the Montgomerys alleged that General Accident's handling of their claim for benefits constituted an unfair trade

practice. See W. Va. Code § 33-11-4(9) (1996).

At trial, Jack Lane testified on behalf of the Montgomerys as their

sole expert witness in insurance claims handling practices. Lane

explained the standard procedures for processing claims to which

adjustors for General Accident should have adhered, concluding that

General Accident acted with actual malice and engaged in unfair trade

practices in failing to pay the Montgomerys' claims. According to

Lane, "[General Accident] knew [it] owed the money for business

interruption, [it] knew how much, and refused to pay it." J.A. 46.

While instructing the jury on the applicable law, the district court

remarked that Lane did not "add any evidence to the case at all" and

that the jury should accord only "slight" weight to his testimony. J.A.

92. Subsequently, in explaining that an insurance policy imposes various obligations and duties upon both the insurance company and the

policyholder, the district court admonished the jury that "[w]hen you

bring suit on an insurance policy, it's not like a TV program called

`The Jackpot is Yours' or `Strike it Rich.'" J.A. 95. Immediately following the conclusion of the jury instructions, the Montgomerys

moved unsuccessfully for a mistrial because of these comments by the

district court. After the verdict, the Montgomerys moved for a new

trial based, inter alia, on these remarks. The motion was denied. We

review the denial of a motion for a new trial for abuse of discretion.

See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99

F.3d 587, 594 (4th Cir. 1996).

II.

The Montgomerys contend that the comments of the district court

concerning Lane's testimony amounted to reversible error because the

court "influence[d] the minds of the jury as to the value of the witness' testimony." Brief for Appellant at 12 (internal quotation marks

omitted). And, they maintain that the "Strike it Rich" comment was

unduly prejudicial, undercutting the validity of their bad faith and

unfair trade practices claims, and also requires reversal.

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In the federal system, a trial judge may "comment on the weight

of the evidence even to the point of expressing his opinion as to [the]

credibility" of a witness. United States v. Holley, 502 F.2d 273, 276

(4th Cir. 1974); see Quercia v. United States , 289 U.S. 466, 469

(1933); United States v. Tello, 707 F.2d 85, 88 (4th Cir. 1983). "It is

within [the trial judge's] province, whenever he thinks it necessary,

to assist the jury in arriving at a just conclusion by explaining and

commenting upon the evidence ...." Quercia , 289 U.S. at 469. The

discretion of the district judge to comment on the evidence is not

without bounds, however. For example, the judge may not distort or

add to the evidence and must use caution to avoid misleading the jury

or appearing one-sided. See id. at 470."It is particularly vital that the

trial judge also instruct the jurors that his comments are not binding

upon them ... and that they are the sole judges of the evidence." Tello,

707 F.2d at 88. Further, the trial judge should give this instruction to

the jury "in sufficient proximity to his comment so that the jury will

have it clearly in mind when the comment is made." Id.

Although the remarks of the district court with respect to Lane's

testimony might be subject to criticism when considered in isolation,

we are convinced that the district judge did not misconstrue or add to

the evidence and that he "stay[ed] within his role in the fact-finding

process." Tello, 707 F.2d at 89. Moments before commenting on

Lane's testimony, the district judge instructed the jurors that they

were free to disregard his view of the evidence and emphasized their

role as "the sole judges of the credibility of the witnesses and the

weight that their testimony deserve[d]." J.A. 92. Likewise, the gratuitous "Strike it Rich" comment, although not especially judicious, did

not "reach[ ] such a level of prejudice that it denied ... the appellants

a fair, as distinguished from perfect, trial." United States v. Parodi,

703 F.2d 768, 776 (4th Cir. 1983) (internal quotation marks omitted).

Viewed in the context of the complete jury instructions, the remarks

by the district court did not amount to reversible error.

III.

After carefully reviewing the record and the parties' briefs, we find

that the Montgomerys' remaining contentions also lack merit.

Accordingly, we conclude that the district court did not abuse its discretion in denying the Montgomerys' motion for a new trial.

AFFIRMED

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