NOT RECOMMENDED FOR PUBLICATION

File Name: 15a0253n.06

No. 13-6576

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEROME S. TANNENBAUM; DEBORAH H. 

TANNENBAUM

Plaintiffs-Appellants,

v.

FEDERAL INSURANCE COMPANY

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE MIDDLE 

DISTRICT OF TENNESSEE

BEFORE: COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges

ALICE M. BATCHELDER, Circuit Judge. After a ten day trial, a jury sided with 

Federal Insurance Company (“Federal”) in an insurance coverage dispute with property owners 

Jerome and Deborah Tannenbaum. Although the Tannenbaums claimed that strong winds had 

caused significant damage to their property in Nashville, Tennessee, the jury determined that 

landslides, which were excluded from policy coverage, were the primary catalyst for the damage, 

as Federal had contended. The Tannenbaums appeal the district court’s exclusion of one of their 

expert witnesses and the district court’s decision not to issue two jury instructions. For the 

reasons that follow, we AFFIRM.

I.

In August 2009, the Tannenbaums took out a one-year insurance policy from Federal for 

their property in Nashville, Tennessee. The policy, in relevant part, defines a “covered loss” as 
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including “all risk of physical loss to your house or other property covered . . . unless stated 

otherwise or an exclusion applies.” One of the enumerated exclusions to coverage is “earth 

movement including volcanic eruptions, landslides, mud flows, and the sinking, rising or shifting 

of land.” Wind damage, on the other hand, is not excluded from coverage. The policy also 

features a list of “Extra Coverages.” Notably for this appeal, the policy covers “Rebuilding to 

code,” which is defined as:

After a covered loss, [] cover[ing] the necessary cost of conforming to any law or 

ordinance that requires or regulates:

 the repair, replacement, or rebuilding of the damaged portion of your house or 

other permanent structure made necessary by the covered loss;

 the demolition, replacement, or rebuilding of the undamaged portion of your 

house or other permanent structure necessary to complete the repair, replacement 

or rebuilding of the damaged portion of your house or other permanent structure; 

or

 the demolition of the undamaged portion of your house or other permanent 

structure when your house or other permanent structure must be totally 

demolished.

Both parties stipulated to the terms of the policy at trial.

During the weekend of May 1-2, 2010, storms passed through Tennessee over the 

Tannenbaums’ property while the Tannenbaums were not present. Although the parties dispute 

how the damage occurred, both sides agree that the storms damaged the property extensively. 

The Tannenbaums assert that violent winds caused the damage by uprooting trees and hurling 

them into the house, a theory which, if true, would entitle them to full coverage for the damage. 

Federal, on the other hand, through the analysis of its two primary claim adjusters, as well as 

several experts, concluded that landslides had caused the majority of the damage. The only wind 

damage Federal found was damage to the roof caused by a single fallen tree. Federal paid the 

Tannenbaums $58,418.50 for the tree damage caused by the wind, but denied coverage for all 
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remaining damage, since landslide damage was an enumerated exclusion from coverage under 

the policy.

On October 11, 2011, the Tannenbaums filed a complaint against Federal in the Circuit 

Court for Davidson County, Tennessee. The complaint raised four claims: 1) breach of contract; 

2) failure to adjust the claim; 3) violations of the Tennessee Consumer Protection Act (“TCPA”); 

and 4) bad-faith refusal to pay. Federal removed the suit to the United States District Court for 

the Middle District of Tennessee on diversity grounds. In relevant part, Federal filed two 

motions in June 2013: a motion to bifurcate the trial into a phase for the breach-of-contract 

claims, and a phase for the TCPA and bad-faith claims; and a motion in limine to exclude the 

testimony of the Tannenbaums’ expert witness Charles W. Howarth. In October 2013, the 

district court granted the motion to bifurcate, dividing the trial into a breach-of-contract phase 

and a bad-faith phase. The case then proceeded to trial on October 22, 2013, beginning with the 

breach-of-contract phase.

Although he never ruled on the motion in limine, the district judge stated his intention at 

the outset of the trial to defer Charles Howarth’s testimony until the second phase of the trial. 

The Tannenbaums objected to this decision. On the sixth day of the trial of the breach-ofcontract claim, the Tannenbaums called Charles Howarth to the stand, despite the district judge’s 

previous statement. Federal objected, insisting that Howarth was the Tannenbaums’ bad-faith 

witness and thus his testimony would be irrelevant to the breach-of-contract phase of the trial. 

The court sustained the objection.

After a ten day trial, the parties closed proof for the breach-of-contract phase of the trial. 

The court’s clerk conducted an off-the-record charge conference to confer with counsel on the 

court’s intended jury instructions. Before charging the jury, the court noted that it had filed each 
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party’s proposed jury instructions. On November 5, 2013, the court charged the jury. The 

Tannenbaums objected to the lack of an instruction about the “Rebuilding to code” provision in 

the policy and the lack of an instruction on resolution of ambiguities in a contract.

That same day, the jury returned a verdict in favor of Federal on the breach-of-contract 

claim. Since the jury found that Federal had proved that the loss was primarily caused by 

landslides and not wind damage, as Federal had contended all along, there was no need for a 

second phase of the trial on the TCPA and bad-faith claims. The Tannenbaums appealed, 

contending that the district court erred by: 1) excluding testimony from their expert witness 

Charles Howarth; 2) not including a jury instruction on the “Rebuilding to code” provision; and 

3) not including a jury instruction on resolution of contract ambiguity.

II.

The Tannenbaums first argue that the district court erred by excluding testimony from 

their expert witness during the first phase of the bifurcated trial. We review for abuse of 

discretion the district court’s determination to admit or exclude expert testimony, “recognizing, 

of course, that such review calls for deference to the district court’s decision.” Conwood Co., 

L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002). We will not substitute our own 

judgment for that of the district court and will reverse an evidentiary decision “only where we 

are left with a definite and firm conviction that [the district court] committed a clear error of 

judgment.” Id.

The Tannenbaums contended at trial that even though Charles Howarth would have been 

their “bad-faith” expert witness had the trial proceeded in just one phase, they had instructed him 

not to testify about bad-faith issues during the breach-of-contract phase of the bifurcated trial. 

Howarth, they argued, would have testified about whether Federal had met the applicable 
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standards for adjusting the type of policy the Tannenbaums had purchased. This testimony was 

necessary, they believed, because Federal had opened the door to the proper standard for 

adjusting insurance policies by eliciting testimony from its claim adjusters about how they 

normally view coverage during a claim adjustment. Howarth would have challenged Federal’s 

claim adjusters’ views on coverage by showing that the industry standard for policies of this type 

is one of coverage with the burden placed on the adjuster to determine if an exclusion applies.

The report submitted by Howarth to the court outlining his expert opinions, however, is 

littered with references to “bad-faith.” Although he discusses the industry standards on claim 

adjustment in the report, these standards merely form the basis for his conclusion that Federal 

acted in bad-faith throughout the claim adjustment process. The district court had relegated all 

bad-faith argumentation to the second phase of the trial, if one were needed. There was no error 

in postponing the testimony of the Tannenbaums’ bad-faith witness to the bad-faith phase, 

especially because even the proposed, potentially relevant testimony about industry standards 

would not have been helpful to the jury. See Thompson v. State Farm Fire & Cas. Co., 34 F.3d 

932, 941 (10th Cir. 1994) (affirming a district court’s ruling which excluded testimony of an 

insurance industry expert comparing the insurance company’s actions to the industry standard 

because the “expert testimony [wa]s offered on an issue that a jury is capable of assessing for 

itself”).

III.

The Tannenbaums next contend that the district court erred by not including two of their 

proposed jury instructions in its charge to the jury. We review for abuse of discretion “[a]

district court’s refusal to give a specific requested jury instruction.” Fisher v. Ford Motor Co., 

224 F.3d 570, 576 (6th Cir. 2000). An abuse of discretion is defined as a “definite and firm 
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conviction that the trial court committed a clear error of judgment.” Cincinnati Ins. Co. v. Byers, 

151 F.3d 574, 578 (6th Cir. 1998) (internal quotation marks omitted). “A party needs only a slim 

amount of evidence to support giving a jury instruction, but jury instructions must be reviewed as 

a whole to determine whether an instruction is necessary.” Taylor v. TECO Barge Line, Inc., 

517 F.3d 372, 387 (6th Cir. 2008). “A party is not entitled to a new trial based upon alleged 

deficiencies in the jury instructions unless the instructions, taken as a whole, are misleading or 

give an inadequate understanding of the law.” Arban v. West Pub. Corp., 345 F.3d 390, 404 (6th 

Cir. 2003).

A.

The Tannenbaums first argue that the district court erred by not including a jury 

instruction on the “Rebuilding to code” provision of the insurance policy. They believe that the 

work required on their property to fix the damage from the storms would necessitate applying 

for, and paying for, permits. They point to a handful of references in the trial transcript 

mentioning permits. A few of these references are merely Federal’s experts responding to 

questioning from the Tannenbaums’ counsel, stating that such work would probably require a 

permit, although they had no idea what the locality’s code stipulated. The other references are 

from Jerome Tannenbaum himself and one of the Tannenbaums’ expert witnesses, stating 

generally that the Tannenbaums would need permits. In their brief, the Tannenbaums cite to 

multiple municipal code provisions showing that their city would have required permits. They 

never introduced any of these provisions, however, into the trial record.

A trial judge has authority to refuse to give a proposed instruction if insufficient evidence 

supports it. Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008). “A trial court 

may refuse to instruct the jury on an issue when there has been insufficient evidence presented to 
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support a jury finding on that issue.” Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 56 F.3d 

726, 736 (6th Cir. 1995). “To effectively charge a trial court with failure to provide an 

instruction, one must first show the presence of evidence in the record sufficient to support 

submission of that instruction.” Bucyrus-Erie Co. v. Gen. Prods. Corp., 643 F.2d 413, 420 (6th 

Cir. 1981).

Although only a “slim amount” of evidence is required to support a proposed jury 

instruction, allowing the Tannenbaums’ claim here would strain the definition of “slim.” During 

a ten day trial, the Tannenbaums can point to at most a handful of, and, more realistically, two, 

definitive statements about permits in the entire trial transcript. Without the specific code 

provisions introduced into evidence, the record simply does not demonstrate that the city would 

have required permits to rebuild. Given the lack of evidence on that topic, the district court did 

not err by refusing to give the instruction on the “Rebuilding to code” provision.

B.

The Tannenbaums argue finally that the district court erred by not including a jury 

instruction on resolving ambiguity in insurance contracts. The Tannenbaums proposed an 

instruction stating that ambiguous language in an insurance policy is always construed against 

the insurer and in favor of effecting coverage. They argue on appeal that the district court’s 

decision removed from the jury the question of whether ambiguities in fact existed and, if so, the 

impact those ambiguities had on coverage for their losses.

The Tannenbaums’ argument rests on a misapprehension of settled contract law in 

Tennessee, which we must apply because this case is premised on diversity jurisdiction. See 

Grantham & Mann, Inc. v. Am. Safety Prods., Inc., 831 F.2d 596, 608 (6th Cir. 1987). Insurance 

policies are contracts and, thus, are “subject to the same rules of construction and enforcement as 
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apply to contracts generally.” McKimm v. Bell, 790 S.W.2d 526, 527 (Tenn. 1990). “A court’s 

initial task in construing a contract is to determine whether the language of the contract is 

ambiguous.” Planters Gin Co. v. Fed. Compress & Warehouse Co., Inc., 78 S.W.3d 885, 890 

(Tenn. 2002). The existence of an ambiguity in a written contract and its resolution are questions 

of law for a judge, not a jury. Union Planters Corp. v. Harwell, 578 S.W.2d 87, 92 (Tenn. Ct. 

App. 1978).

Although, in a rush of wishful thinking perhaps, the Tannenbaums argue that the jury 

might have found certain provisions of the contract ambiguous had the judge instructed them on 

contract ambiguity, this threshold inquiry is for the judge, not the jury. And the district court 

never found any provisions of the policy to be ambiguous. Further, in evaluating the 

Tannenbaums’ arguments, we are convinced that there was not, in fact, any ambiguity in the 

policy. The Tannenbaums’ proposed ambiguities are simply complaints about Federal’s 

application of the policy to their claims disguised as purported problems with the contract 

language. Thus, even if the jury were the proper avenue for resolving contract ambiguities, the 

proposed instruction would not have helped the Tannenbaums.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.