UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

JULIE A. MACKINNEY, Plaintiff - Appellant, v. No. 18-1437 D.C. No. 1:16-CV-01447-NYM (D. Colo.)
ALLSTATE FIRE AND CASULATY INSURANCE COMPANY, Defendant - Appellee.

ORDER AND JUDGMENT *

Before MATHESON , McKAY , and BACHARACH , Circuit Judges.

This appeal grew out of a suit over insurance coverage. At tria l, the insured ’ s sole claim was a state-law cla im for bad faith based on the insurer’s unreasonable delay in p aying underinsured-motorist be nefits. On

* Oral argument would not materi ally help us to decide this app eal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). We have thus decided the appeal based on the briefs and record on appeal. This order and judgme nt does not constitut e binding precedent except under the doctrines of law of the case, res judicata, and colla teral estoppel. But the order and judgment may be cited for persuasive value if otherwise appropriate. Fed. R. App . P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### May 6, 2019
Elisabeth A. Shumaker Clerk of Court2 this claim, the jury found no lia bility and the district court entered judgment for the insurer. The insured appeals. The appeal involves the denial of the insured’s motion for a mi strial. The motion stemmed from questioni ng of the insure d on cross-exa mination. This questioning involv ed the insurer’s earlier payments on the claims for underinsured-motorist c overage. The insured ’s responses showed that when she sued, she ha dn’t known about paymen ts to her attorney. After the insured tes tified, the bailiff no tified the district court that one of the jurors had admitted possible bias in the case. The d istrict judge inquired and learned that the jur or believed, based on the insu red’s testimony, that the insured’s atto rney had been driving the ent ire lawsuit. The district court ultim ately dismissed this juror, but the ins ured also moved for a mistrial. The distri ct court declined to order a mi strial, concluding that the pr ejudice had been rem edied through dismiss al of the juror. On appeal, the insured argues that the district court erred in refusing to declare a mistrial. The insur ed contends that the allegedly irrelevant and prejudicial cross-exam ination prevented he r from receiving a fa ir trial. In reviewing the denial of a mis trial, we apply the abuse-ofdiscretion standard. Towerridge, Inc. v. T.A.O., Inc. , 111 F.3d 758, 769 (10th Cir. 1997). In ou r view, the court did not abuse its disc retion in3 denying the motion for a mistrial. 1 The insured’s statutory claim was that the insurer had taken too long to make these payments, and the questions asked on cross-examination apparently involved the timing of th e insurer’s past payments to the insured’s attorney. The timing of the past payments appears relevant to a claim base d on delays in making those pay ments, and we do not see why thes e questions would be unfairly prejudicial . (If they are unfairly prejudicial, the insured has not told us why they are.) We thus conclude that the district court acted within its discretion in declining to order a mistrial based on the cr oss-examination of the insured. Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge

1 The insurer contends that the appellant’s brief is deficient. It is true that the insured’s counsel has not (1) identified any of the ac tual questions or answers underlying the appeal or (2) explained how the quest ioning was unfairly prejudicial. Despite these shortcomings, we address th e merits of the appeal.