[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 23

- 10587
Non

- Argument Calendar

____________________
LEXIE HANDLEY,
Plaintiff

- Appellee,

versus WERNER ENTERPRISES INC.,

Defendant

- Appellant,

ACE AMERICAN INSURANCE COMPANY,

Defendant.

____________________2 Opinion of the Court 23

- 10587 Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:20

- cv

- 00235

- WLS

____________________ Before W ILSON , J ORDAN , and B RANCH , Circuit Judges.
PER CURIAM:
Defendant

- Appellant Werner Enterprises, Inc. (Werner) owned the tractor

- trailer truck that Plaintiff

- Appellee Lexie Handley collided with on September 20, 2019. After the jury unanimously entered a verdict in favor of Handley, Werner filed a Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(a), Renewed Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(b), and Motion for a New Trial under Federal Rule of Civil Procedure 59 . The district court denied all three motions. Werner argues that Handley did not meet her burden of establishing negligence, the decision goes against the weight of the evidence, and that the district court improperly informed the jury that Werner had insurance. After a careful review of the record, we AFFIRM

. I. Backgroun d
O n Sept ember 20, 2019
, Handley collided with a tractor

trailer owned by Werner and driven by its employee, Joseph Krisak . After suffering severe injuries, Handley sued Werner and ACE American Insurance Company (ACE) for Georgia tort law claims in state court. The defendants removed the action to federal23

- 10587 Opinion of the Court 3

court based on diversity jurisdiction. Handley ’s vicarious liability claim a gainst Werner alleged that Krisak ’s negligent attempt to turn left on a five

- lane highway caused the Werner tractor

- trailer

to stop in the left pass ing lane

. Handley alleged that
, but

- for the stopped tractor

- trailer , no accident would have occurred. Werner and ACE both moved for summary judgment. The court grantedACE’s motion because ACE was an excess liability insurance carr ier and therefore not a proper defendant for a direct action. However, t he court denied Werner’s motion , and Handley’s claim against Werner proceeded to trial in May 2022

. At trial, Werner moved for judgment as a matter of law at the end of Handley’s ca se , asserting that Handley had produced insufficient evidence to show a causal link between her injuries and Werner’s alleged breach. The court did not grant or deny the motion but took it under advisement. At the close of all evidence, Werner again moved for judgment as a matter of law on the same grounds as the earlier Rule 50(a) motion

. T he district court indicated that it would reserve its decision on the motion and sent the case to the jury

. The jury returned a unanimous verdict in favor of Handley and found $6,000,000 in damages. The jury apportioned the fault 60% to Werner and 40% to Ha ndley.

A fter receiving the verdict, Werner’s counsel noticed that the ve rdict form the jury received improperly named both Werner and ACE as defendant s . The erroneous caption only appeared on the verdict form. Each set of jury instructions used the proper caption. Immediately, t he court instructed the jurors to determine4 Opinion of the Court 23

- 10587

wh ether their verdict was directed to Werner only or to Werner and ACE. After six minutes , the jury said Werner only. Werner’s counsel move d for mistrial

.After the dismissing the jury, the district court did not formally enter the jury’s verdict. The district court asked both parties for supplemental briefing

. It is unclear whether th e district court intended for th is supplemental briefing to relate only to the motion for mistrial. On June 3, 2022, Werner submitted two separate supplemental briefs . One brief related to a motion for mistrial and included a footnote that the brief was not intended as the Rule 59 motion for a new trial

. The other brief rel ated to judgment as a matter of law under Rule 50(a) and included additional justifications beyond Werner’s oral motion s , such as the doctrine of “avoidable consequences.” On June 10 , 2022, Handley filed a single response brief , which only addressed the m otion for a mistrial and did not cite any procedural rules. On June 17, 2022, t he district court denied mistrial and entered the jury’s verdict

. The order issued that day did not mention Rule 50. On July 15, 2022, Werner filed a renewed motion for judgment as a matter of law under Rule 50(b) or alternative Rule 59 motion for a new trial. 1 Handley’s response mentioned both Rule 59 and Rule 50(b). Since the district court had never ruled on the Rule 50(a) m otion, the district court reviewed and denied all thre e

1 The district court appeared to use JMOL A and JMOL B to refer to Werner’s first and second motions. Instead, we will use Rule 50(a) and Rule 50(b) to identify each motion.23

- 10587 Opinion of the Court 5

motions

— under Rule 50(a), Rule 50(b), and Rule 59

— in its February 7, 2023, order. Werner timely appealed.

II. Standard of Review and Applicable Law We review the district court’s ruling on a motion for judgment as a matter of law de novo and apply the legal standard used by the district court. McGinnis v. Am

. Home Mort g
. Serv icing, Inc. , 817 F.3d 1241, 1254 (11th Cir. 2016). A motion for judgment as a matter of law may be granted when “a reasonable ju ry would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). We use the same standard for reviewing motions for judgment as a matter of law under both Rule 50( a ) a nd Rule 50( b ). McGinnis , 817 F.3d at 1254. Renewed motions for judgment as a matter of law under Rule 50(b) must be made on the same grounds as the init ial motion s under Rule 50(a). Id. at 1260. We recognize the potential harshness of this rule and therefore use a liberal approach “when confronting grounds thatare ‘closely related’ to those raised in an initial” motion for judgment as a matter of law. Id. at 1261. When determining if the verdict has sufficient supporting evidence, we “evaluate all the evidence, together with any logical inferences, in the light most favorable to the non

- moving party.” Beckwith v. City of Daytona Beach Shores , 58 F.3d 1554, 1560 (11th Cir. 1995 ).
We review a denial of a motion for a new trial for abuse of discretion. Lipp h ardt v. Durango Steakhouse of Brandon, Inc. , 267 F.3d 1183, 1186 (11th Cir. 2001)

. A motion for a new trial should be granted when either “the ve rdict is against the clear weight of the6 Opinion of the Court 23

- 10587 evidence or will result in a miscarriage of justice.” Id. (quoting Hewitt v. B.F. Goodrich, Co. , 732 F.2d 1554, 1556 (11th Cir. 1984)). A judge should only grant a new trial when “the verdict is against the great

— not merely the greater

—weight of the evidence.” Id. In a diversity case such as this, we apply the substantive law of the forum state
, so we apply Georgia’s substantive law here. See Sutton v. Wal

- Mart S t ores E., LP , 64 F. 4th 1166, 1168 (11th Cir. 2023).

III. Arguments on Appeal
Werner raises a few arguments on appeal. First, Werner argues that it is entitled to judgment as a matter of law either because Handley did not establish negligence or under the doctrine of avoidable consequences. Alternatively, Werner argues that it is entitled to a new trial

. We will address each argument in turn.

a . Judgment as a Matter of Law First, Werner argues that Handley produce d in sufficient evidence for a reasonable jury to find for her on negligence. U nder Georgia tort law, Handley bore the burden of proving that Werner (1) owed a duty to Handley; (2) Werner breached this duty; (3) this breach caused Handley’s injury ; and (4) Han dley suffered damages. See Heston v. Lilly , 546 S.E.2d 816, 818 (Ga. Ct. App. 2001). Werner and Handley dispute causation. Undoubtedly, the evidence about the accident is conflicting. Handley admitted a murky memory of the moments leading up to the cr ash. The police report assigned fault to Handley but listed the tractor

- trailer as being in the left travel lane and lacked witness23

- 10587 Opinion of the Court 7

statements

. T he jur y heard witness testimony from Albert Edmonds who consistently maintained that Krisak dr ove erratically and appeared lost on the day of the accident. Krisak’s trial testimony indicated that he was driving based on a map and verbal directions and was hit as he was changing lanes. When all evidence is viewed in the light most favorable to Handley, the jury had sufficient evidence to reasonably reach its verdict. The district court properly denied Werner’s motion for judgment as a matter of law regarding negligence. Second, Werner argues it should have received judgment as a matter of law under the doctrine of avoidable consequences. Werner frequently conflates causation and avoidable consequences. In Georgia, the doctrine of avoidable consequences is an affirmative defense, whereby “[ t ] he defendant has the burden of proving that the plaintiff by ordinary care could have avoided the consequences caused by the defendant’s negligence.” Reed v. Carolina Cas. Ins. Co. , 762 S.E.2d 90, 94 (Ga. Ct. App. 2014). Avoidable

c onsequences is an incomplete defense. O.C.G.A § 51

- 11

- 7.Handley argues that we should not consider Werner’s argument about avoidable consequences because Werner first used the phrase in its supplemental briefs

— not in its oral Rule 50(a) motion s

. Werne r’s oral motions for judgment as a matter of law focused exclusively on causation

. Handley alleges that the supplemental briefing was not related to the Rule 50(a) motion s , which means that there was no mention of “avoidable consequences” to renew in a Ru le 50(b) motion. We do not need to determine which8 Opinion of the Court 23

- 10587 motion the supplemental briefing related to because
, either way, Werner did not meet its burden of showing the affirmative defense of avoidable consequences applies

. As the defendant, We r ner bore the bu rden of proof regarding avoidable consequences. We consider granting judgment as a matter of law in favor of a party bearing the burden of proof an

“ extreme step” which “can be done only when the evidence favoring the claimant is so one

- sided as to be of overwhelming effect.” United States EEOC v. Massey Yardley Chrysler Plymouth , Inc. , 117 F.3d 1244, 12 5 0 (11th Cir. 1997). Werner uses the phrase “avoidable consequences” but never states or proves the elements of the affirmative de fe nse. Werner’s brief also repeatedly refers to Handley’s statement about taking her eyes off the road for five seconds prior to the accident. This is not enough , especially on an issue for which Werner bears the burden of proof. The district court properly denied Werner’s renewed motion for judgment as a matter of law regarding avoidable consequences.
b . New Trial Werner argues that the district court should have granted its motion for a new trial. First, Werner asserts that inadvertently including ACE i n the verdict form ’s caption should automatically necessitate a new trial. Werner cites language that states “[i]n an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the

mere existence of such contract is ground for a mistrial.” C ent

. of Ga

. R. R. C o . v. Wooten , 295 S.E.2d 369, 372 (Ga. Ct. App. 1982)23

- 10587 Opinion of the Court 9
(quoting City Council of Augusta v. Lee , 264 S.E.2d 683, 687 ( Ga/ Ct. App. 1980))

. Other Georgia cases have interpreted this as pe rm issive not mandatory. Den t on v. Con

- Way S. Express , 402 S.E.2d 269,
270 ( Ga. 1991) , disapprov ed of on other grounds by Grissom v. Gleason
, 418 S.E.2d 27 (Ga. 1992) (“ [A] litigant’s insurance policy is not only inadmissible, it can be the ground for a mistrial

. ”). Generally , these cases involve evidence of a party having insurance being considered by the jury

. A case caption is not evidence. We have previously reviewed a scrivener’s error on a verdict form in combination with correct information on jury instructions for plain error. F arley v. Nationwide Mut. Ins. Co.
, 197 F.3d 1322,
1330

– 31 (11th Cir. 1999)

. Since the jury instructions in Farley used the proper terminology, reading the verdict form “in conjunction with the comprehensive and correct jury instruction ” made the error harmless. Id. at 1331. Here , reading the erroneous case caption in conjunction with the correct case caption on the jury instructions

— especially with p roper party name s given in oral jury instructions and throughout the four

- day trial

— clarif ied the proper parties in this case. Further, w e presume that juries follow the instructions they receive. Evans v

. Michigan , 568 U.S. 313, 328 (2013). Here, the jury received instructions to not consider insurance during deliberations. Lat er, the error on the verdict form was pointed out immediately after the jury returned its verdict. When the court told the jury to review whether its verdict applied to only Werner or both Werner and ACE, it returned to say only Werner within six10 Opinion of the Court 23

- 10587

m inutes

. The erroneou s caption is at most harmless error. Thus, the district court did not abuse its discretion in denying Werner’s motion for a new trial based on the erroneous caption. 2 Second, Werner argues in the alternative that it is entitled to a new trial under Rule 59. M otion s for new trials under Rule 59 will only be granted when the verdict was “ against the clear weight of the evidence or will result in a miscarriage of justice.” Lipp h ar d t , 267 F.3d at 1186 (quoting Hewitt , 732 F.2d at 1556)

. The underlying verdict is n either against the clear weight of the evidence n or a miscarriage of justice. To argue about t he weight of evidence, Werner cites Johnson v. FFE Transp ortation Serv ice s Inc. , 227 F. App’x 780 (11th Cir. 2007), a rear end collision c ase

. B ut the similarities end there

. Th e j ury in Johnson found the defendant 0% at fault and the plaintiff 100% at fault

. Id. at 782. In contrast, the jury here allocated 60% of the fault to W e rner and 40% of the fault to Handley. Completely assigning fault to the plaintiff in Johnson was against the clear weight of the evidence in that case , but the split allocation of fault here is not clearly wrong

. Overall, the record does not indicate that the decision is against the great wei ght of the evidence or results in a miscarriage of justice.

2 Werner’s assertion that the erroneous case caption exposed the jury to the exi stence of an insurance contract s eems undermined by Werner’s own Exhibit A: the police report from the accident. Werner prepared Exhibit A and redacted the drivers’ dates of birth and Krisak’s telephone number. Werner did not redact any information about insurance. Instead, Werner left the lines listing ACE as the insurance company and policy number visible to members of the jury.23

- 10587 Opinion of the Court 11
Therefore, t he district court did not abuse its discretion in denying a new trial to Werner under Rule 59.
IV. Conclusion For the reasons discussed above, we affirm the district court’s denial of Werner’s motions for judgment as a matter of law under Rule 50 and motion for a new trial under Rule 59.

AFFIRMED

.