UNITED STATES COURT 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 trial, the 

insured’s sole claim was a state-law claim for bad faith based on the 

insurer’s unreasonable delay in paying underinsured-motorist benefits. On 

 

* Oral argument would not materially help us to decide this appeal. 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 judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral 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 Court
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this claim, the jury found no liability and the district court entered 

judgment for the insurer. The insured appeals. 

The appeal involves the denial of the insured’s motion for a mistrial. 

The motion stemmed from questioning of the insured on cross-examination. 

This questioning involved the insurer’s earlier payments on the claims for 

underinsured-motorist coverage. The insured’s responses showed that when 

she sued, she hadn’t known about payments to her attorney. 

After the insured testified, the bailiff notified the district court that 

one of the jurors had admitted possible bias in the case. The district judge 

inquired and learned that the juror believed, based on the insured’s 

testimony, that the insured’s attorney had been driving the entire lawsuit. 

The district court ultimately dismissed this juror, but the insured also 

moved for a mistrial. The district court declined to order a mistrial, 

concluding that the prejudice had been remedied through dismissal of the 

juror. 

On appeal, the insured argues that the district court erred in refusing 

to declare a mistrial. The insured contends that the allegedly irrelevant and 

prejudicial cross-examination prevented her from receiving a fair trial. 

In reviewing the denial of a mistrial, we apply the abuse-ofdiscretion standard. Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 769 

(10th Cir. 1997). In our view, the court did not abuse its discretion in 
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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 the insurer’s 

past payments to the insured’s attorney. The timing of the past payments 

appears relevant to a claim based on delays in making those payments, and 

we do not see why these 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 cross-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 actual questions 

or answers underlying the appeal or (2) explained how the questioning was 

unfairly prejudicial. Despite these shortcomings, we address the merits of 

the appeal.