United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1755

___________________________

Patricia Jackson

lllllllllllllllllllll Plaintiff - Appellant

v.

Allstate Insurance Company

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

____________

 Submitted: January 14, 2015

 Filed: May 7, 2015

____________

Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.

____________

BEAM, Circuit Judge.

After a fire of incendiary origin destroyed her house, Patricia Jackson sued

Allstate Insurance Company for denying her claim on a homeowner's insurance

policy. Allstate asserted that Jackson's coverage was void because she burned the

house or caused it to be burned and because she made material misrepresentations
regarding how the fire was started. The district court granted Allstate's motion for 1

partial summary judgment and denied Jackson's motion for summary judgment. The

parties then proceeded to trial on Jackson's breach of contract claim, and the jury

found in favor of Allstate. On appeal, Jackson asserts that the jury's verdict was not

supported by sufficient evidence. Jackson also appeals the district court's dismissal

of her remaining claims, its imposition of a one-day time limit for Jackson to present

her case, numerous evidentiary and discovery rulings, and the court's denial of

Jackson's request for a statutory penalty and attorney's fees related to Allstate's

untimely attempt to pay her mortgage. We affirm.

I. BACKGROUND

Sometime between 6:00 a.m. and 6:40 a.m. on the morning of February 22,

2012, a fire severely damaged Jackson's house. Jackson testified that she spent the

night of February 21 at her mother's house in Pine Bluff, Arkansas, and the trial

record indicates that Jackson was at work during the time period in which the fire

began. The Little Rock Fire Department was called to Jackson's residence and

successfully put out the fire. Ryan Baker, an investigator for the Little Rock Fire

Department's Fire Marshal's Division, was tasked with determining the cause of the

fire. Baker ultimately classified the fire as an incendiary fire, meaning that it was

started by human intervention. Baker reached this conclusion after he detected

accelerants (i.e., gasoline) in multiple locations in the house and discovered that the

fire's points of origin were inconsistent with any accidental causes. At trial, the

parties agreed that the fire was a product of arson, and the district court instructed the

jury to this effect. 

The Honorable Billy Roy Wilson, United States DistrictJudge for the Eastern 1

District of Arkansas.

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Baker testified that he initially believed that Jackson might have been the

victim of a hate crime, primarily because he discovered racially derogative graffiti in

her garage and basement. However, Baker testified that as his investigation unfolded,

Jackson's status quickly changed from that of victim to that of suspect. Baker

testified that there were no signs offorced entry into Jackson's house, which indicated

that whoever started the fire had a key. Baker also testified that Jackson's house was

largely devoid of personal items, food, or furniture. Baker interviewed Jackson, and

he claims she told him that she was the only person with access to the house, that she

did not believe anyone had any motive to harm her, and that she was not missing any

items of property. Baker also testified that Jackson told him that she was at work

when the fire started. Baker therefore wrote a search warrant for her cell phone

records to verify her whereabouts. These records indicated that, although Jackson

was probably at work when the fire started, Alexander Henson, who is Jackson's

coworker, attempted to call Jackson three times between 5:49 a.m. and 6:12 a.m. on

the morning of the fire. Baker subsequently interviewed Henson, who denied that he

tried to call Jackson. Jackson also told Baker thatshe never received any phone calls

fromHenson. However, Baker testified that the cell phone records clearly established

that Henson's phone called Jackson's phone, and he therefore concluded that Henson

and Jackson were lying about their contact on the morning of the fire. Baker

ultimately concluded that, based upon the incendiary origin of the fire, the lack of

evidence of forced entry or burglary, the dearth of items in the house, and Jackson's

and Henson's alleged dishonesty regarding their contact, that Henson may have

burned Jackson's home at her request. However, no criminal charges were filed

against Henson or Jackson. 

Wilbur Jordan, a member of Allstate's special investigative unit, testified that

he conducted an independent investigation of the events surrounding the fire and

concluded that Henson had burned Jackson's home. Allstate's investigators also

discovered that Jackson was subject to a 2006 divorce decree that ordered her to sell

her house, thatshe tried to sell the house for several years, and thatshe took the house

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off the market after her efforts to sell were unsuccessful. Allstate thus denied

Jackson's insurance claim based on two provisions in her policy, one of which

excluded coverage for losses caused by "intentional or criminal acts of or at the

direction of any insured person," (Intentional Acts Exclusion) and one that excluded

coverage for any loss "in which any insured person has concealed or misrepresented

any material fact" (Material Misrepresentations Exclusion). Following the denial,

Jackson filed suit against Allstate, asserting, inter alia, claims for breach of contract,

unjust enrichment, bad faith, and promissory and equitable estoppel. Allstate

countered that Jackson's policy was void based on the Intentional Acts and Material

Misrepresentations exclusions. 

Shortly after Jackson filed suit, Allstate submitted a privilege log that sought

to protect from disclosure numerous documentsrelated to Jackson's policy claim that

contained attorney-client communications and work product. Jackson filed a motion

to compel production of these documents, and Allstate resisted the motion. Jackson

requested that the district court review the documents in camera, and Allstate did not

object to this request. After performing an in camera review, the district court held

the documents were not discoverable and denied Jackson's motion.

After the parties completed substantial discovery, Allstate filed a motion for

partialsummary judgment with respect to all ofJackson's claims except for the breach

of contract claim. Jackson resisted this motion and filed a motion for summary

judgment on Allstate's affirmative defenses. The district court denied Jackson's

motion for summary judgment after concluding there were material questions of fact

regarding whether she was involved in burning her house and whether she made

material misrepresentations. However, the district court granted Allstate's motion for

partial summary judgment on the grounds that Jackson's unjust enrichment and

estoppel claims were precluded under Arkansas law and that Jackson had failed to

produce sufficient evidence that Allstate denied her claim in bad faith.

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Before trial, the parties filed numerous motions in limine. Jackson moved to

exclude all evidence related to Henson's cell phone records; the district court denied

this motion. Jackson moved to exclude as inherently unreliable any evidence that

involved the use of historical cell phone data to place individuals at certain locations. 

Jackson also attempted to exclude Allstate's expert, Kevin Levy, who was slated to

testify on the subject of cell phone records, based on an untimely disclosed expert

report. The district court denied both motions. Allstate moved to exclude one of

Jackson's experts, David Van Puffelen, who was scheduled to testify that Allstate's

investigation of the fire was inadequate because Allstate failed to establish that

Jackson had a motive to cause the fire and because Allstate's investigator did not

sufficiently rule out other possible suspects. The district court did not immediately

rule on Allstate's motion but did indicate that it was "highly dubious" of the

admissibility of Van Puffelen's testimony. Jackson filed a motion for reconsideration,

which the district court denied. After Jackson again raised the issue at a pretrial

conference, the district court ruled that Van Puffelen's testimony was inadmissible. 

Approximately one month before trial was scheduled to begin, Jackson

submitted a pretrial disclosure sheet which stated that Jackson planned to call

approximately fifty witnesses and needed around thirty hours to examine them. The

night before trial, the district court informed the parties that, because the case had

been reduced to a simple contract dispute, the court would permit the parties one day

each to present their case. Jackson objected to the one-day time limit, and the district

court granted a continuance so that Jackson could submit a proffer of witnesses. 

Jackson submitted a proffer oftwenty-four witnesses, and the court subsequently held

a hearing to permit Jackson to explain why she was prejudiced by the one-day time

limit. At the hearing, Jackson's counsel acknowledged that several of the witnesses

would provide cumulative evidence and therefore could be excluded. The parties also

discussed whether several witnesses who were scheduled to testify solely about

Jackson's religious proclivities and her good moral character might also need to be

excluded under Rules 403, 404, and 610 of the Federal Rules of Evidence. However,

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the district court briefly noted the possibility that Jackson might be able to proffer

character witnesses under Rule 608 if her character for truthfulness was attacked. 

The district court ultimately excluded twelve of Jackson's proffered witnesses on the

grounds that their testimony would be cumulative or irrelevant. The court also

excluded Jackson's five character witnesses under Rules 403, 404, and 610. The

district court subsequently overruled Jackson's objection to the time limit but

indicated that it would be open to revisiting its rulings on Jackson's witnesses and the

time limit depending on how circumstances developed at trial.

Approximately one week after the district court excluded Jackson's proffered

witnesses, Jackson served Allstate with twenty-three requestsfor admission. Roughly

one-half of these requests related to issues that were materially disputed, such as

whether Henson burned Jackson's house at her request. Allstate filed a motion for a

protective order, complaining that the purpose of Jackson's requests for admission

was to harass and annoy Allstate and that the requests were barred by the discovery

deadline. The district court granted Allstate's motion and denied Jackson's

subsequent motion for reconsideration.

The parties proceeded to trial on February 25, 2014. As noted above, Baker

provided extensive testimony regarding his investigation of the fire, and Jackson's

counsel thoroughly cross-examined Baker regarding the investigative methods he

employed, his findings, and the possibility thatJackson's ex-husband or vandals may

have caused the fire. Jackson testified during Allstate's case-in-chief, as well as her

own, and she admitted that her mortgage payment consumed nearly 80% of her

monthly income, that she was the only person with a key to her house, and that she

was unaware of anyone who would want to harm her. Jackson also testified that

several items were stolen from her house, including a large screen television and a

family Bible. Jordan testified and was cross-examined regarding the results of

Allstate's investigation of the fire and its decision to deny Jackson's claim.

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Levy provided expert testimony regarding Jackson's and Henson's cell phone

records. Levy testified that these records established that Henson's phone attempted

to connect with Jackson's phone at least three times between 5:49 a.m. and 6:12 a.m.

on the morning of the fire. Levy also testified that during each of these calls,

Henson's cell phone connected to cell towers located close to Jackson's house. Levy

provided extensive testimony regarding how and why cell phone calls typically

connect to the tower located closest to the phone, and he discussed a field study that

he performed to determine the approximate coverage area of the towers that carried

the calls from Henson's phone on the morning of the fire. Based on the results of this

field study, Levy concluded that Henson's phone was probably located somewhere

near Jackson's home during the time period in which the fire started. In response to

Levy's testimony, Jackson introduced deposition testimony from her own cellular

technology expert, Russell Pope. Like Levy, Pope testified that Henson's phone

attempted to connect with Jackson's phone at least three times before 6:12 a.m. on the

morning of the fire and that directional data from the cell tower indicated that the

2

calls originated in the Cammack Village, Arkansas, area, which is located several

miles from Jackson's house. Pope further testified that cell towers located in urban

areas typically can only connect with cell phones located within a one-to-two mile

radius of the tower. 

Although Pope's testimony was mostly consistent with Levy's testimony,

Allstate briefly re-called Baker in order to establish the time it takes to drive from

Cammack Village to Jackson's house. Baker testified that, depending on traffic

conditions, he could drive from Cammack Village to Jackson's house in ten minutes

or less. Jackson's counsel attempted to impeach Baker's testimony by introducing a

printout from Google Maps that allegedly estimated the drive time to be twenty

Despite the fact thatJackson's expert testified that Henson's and Jackson's cell

2

phones connected at least three times on the morning of the fire, both Henson and

Jackson maintained that these calls never occurred.

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minutes. However, the district court excluded the printout after Allstate's counsel

made a hearsay objection. 

Prior to the close of Allstate's case-in-chief, the district court held a jury

instructions conference with the partiesto discuss their proposed jury instructions and

to solicit their feedback regarding the final instructions the court planned to give. At

this conference, the court explicitly discussed Jury Instruction No. 8, which stated

"(1) Allstate contends that Ms. Jackson either burned the insured property or caused

the property to be burned [and] (2) Allstate contends that Ms. Jackson intentionally

concealed or misrepresented material facts . . . relating to the investigation of the

fire." The only objection Jackson made to thisinstruction wasthat itshould state that

Allstate had the burden of proving both defenses. The district court overruled this

objection. 

At the close of Allstate's case-in-chief, Jackson moved for judgment as a matter

of law (JAML); the district court denied this motion. Jackson renewed her motion

before the case was submitted to the jury, but the district court denied this motion as

well. The district court provided Jury Instruction No. 8 and gave the jury a verdict

form that indicated the jury should find for Allstate if it concluded "by the greater

weight of the evidence that Patricia Jackson, or someone on her behalf, either burned

her home or caused it to burn." Jackson did not further object to Jury Instruction No.

8 or the verdict form. The jury returned a verdict in favor of Allstate on the basis of

Allstate's intentional acts defense. The record before us contains no evidence that

Jackson filed a renewed motion for JAML after the final entry of judgment in favor

of Allstate.

-8-
II. DISCUSSION

A. Summary Judgment

Jackson asserts the district court erred by granting Allstate's motion for partial

summary judgment on her claims for unjust enrichment, estoppel, and bad faith. 

Jackson also contendsthe district court should have granted summary judgment in her

favor on Allstate's defense that Jackson personally burned her home. With respect

to Jackson's motion for summary judgment, we typically "will not review a district

court's denial of a motion for summary judgment after a trial on the merits," and we

decline to do so here. Keup v. Hopkins, 596 F.3d 899, 904 (8th Cir. 2010) (quotation

omitted). We do, however, review de novo the district court's grant of partial

summary judgment in favor of Allstate, "viewing the evidence and drawing all

reasonable inferences in favor of [Jackson]." Rose v. Flairty, 772 F.3d 552, 554 (8th

Cir. 2014).

Jackson's unjust enrichment and estoppel claims are quasi-contractual in

nature. Glenn Mech., Inc. v. S. Ark. Reg'l Health Ctr., Inc., 278 S.W.3d 583, 586

(Ark. Ct. App. 2008). Under Arkansas law, "the existence of a valid and enforceable

written contract governing a particular subject matter ordinarily precludes recovery

in quasi-contract for events arising out of the same subject matter." Servewell

Plumbing, LLC v. Summit Contractors, Inc., 210 S.W.3d 101, 112 (Ark. 2005)

(quotation omitted). However, when an enforceable written "contract does not fully

address a subject, a court of equity may impose a remedy to further the ends of

justice." QHG of Springdale, Inc. v. Archer, 373 S.W.3d 318, 324 (Ark. Ct. App.

2009) (quotation omitted). 

Although Jackson does not dispute that her insurance policy with Allstate is an

enforceable written contract, she contends the contract does not fully address the

subject matter in this case. Specifically, Jackson asserts that she paid her mortgage

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until October 2013, over one year following the loss, despite the fact that Allstate had

a duty under her insurance policy to pay the mortgage. Jackson therefore contends

that, because the policy is silent regarding her right to recover those mortgage

payments, the district court improperly dismissed her equitable claims. However,

because Jackson presumably had an ongoing obligation to pay her own mortgage, her

post-fire mortgage payments were recoverable damages arising from Allstate's

alleged breach of contract. See Optical Partners, Inc. v. Dang, 381 S.W.3d 46, 55

(Ark. 2011) ("In breach-of-contract cases, consequential damages are recoverable

when they were fairly within the contemplation of the parties."). The district court

therefore correctly held Jackson's policy fully addressed the subject matter at issue. 

We also hold the district court did not err in dismissing Jackson's bad faith

claim. Under Arkansas law, "a claim based on the tort of bad faith must include

affirmative misconduct by the insurance company, without a good faith defense, and

. . . the misconduct must be dishonest, malicious, or oppressive in an attempt to avoid

its liability under [the] insurance policy." Aetna Cas. and Sur. Co. v. Broadway Arms

Corp., 664 S.W.2d 463, 465 (Ark. 1984). The summary judgment record indicates

that Allstate denied Jackson's claimbased upon its receipt ofsubstantial evidence that

Jackson intentionally caused her house to be burned and materially misrepresented

her role in causing the fire. In addition, Jackson's expert, Van Puffelen, testified in

his deposition that, after reviewing the relevant evidence upon which Allstate relied

in denying Jackson's claim, he could not say whether Allstate denied Jackson's claim

in bad faith. The district court thus correctly concluded the summary judgment

3

Having carefully reviewed the record, it is clear that Van Puffelen's expert 3

testimony was relevant only to the issue of whether Allstate denied Jackson's claim

in bad faith. Accordingly, because the district court properly dismissed Jackson's bad

faith claim, we hold the court did not abuse its discretion by excluding Van Puffelen's

testimony at trial. Fed. R. Evid. 702(a); see Sappington v. Skyjack, Inc., 512 F.3d

440, 448 (8th Cir. 2008) (noting "[t]he district court's exclusion of expert testimony

is reviewed for an abuse of discretion"). 

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record was devoid of evidence indicating that Allstate's denial ofJackson's claim was

"dishonest, malicious, or oppressive." Id. Accordingly, we affirm the district court's

dismissal of Jackson's equitable claims and her bad faith claim.

B. Discovery Rulings

Jackson contends the district court erred by denying her motion to compel

production of the documents contained in Allstate's privilege log and by granting

Allstate's motion for a protective order. "We review a district court's discovery

rulings for abuse of discretion." Harvey v. Schoen, 245 F.3d 718, 720-21 (8th Cir.

2001). Allstate claims that the documents in its privilege log contained confidential

attorney-client communications or work product, and Jackson seemingly does not

dispute this contention. Jackson argues, however, that the documents are

discoverable because they contain the mental impressions of the agents who denied

her claim. We find this argument unpersuasive. Jackson does not sufficiently support

her contention that these alleged "mental impressions" are discoverable, and our

review of the record indicates the district court did not abuse its discretion by

declaring these documents to be privileged. Ark. R. Evid. 502(b); see Union Cnty.,

Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (holding that in a

diversity case "the determination of whether attorney-client privilege applies is

governed by state law"); see Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997)

(holding ordinary work product may be discovered "only upon a showing of

substantial need and an inability to secure the substantial equivalent of the items

through alternate means without undue hardship") (internal quotation omitted). 

Finally, Jackson has provided no evidence that Allstate waived an applicable

privilege with respect to any of the documents. See Pamida, Inc. v. E.S. Originals,

Inc., 281 F.3d 726, 731-32 (8th Cir. 2002) (discussing waiver of work product

privilege); Kinkead v. Union Nat'l Bank, 907 S.W.2d 154, 158 (Ark. Ct. App. 1995)

(discussing waiver of attorney-client privilege). Accordingly, the district court did

not abuse its discretion in denying Jackson's motion to compel.

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We also cannot say that the district court abused its discretion by summarily

granting Allstate's motion for a protective order. Rule 26(c)(1) of the Federal Rules

of Civil Procedure permits a court, for good cause, to "issue an order to protect a

party or person from annoyance, embarrassment, oppression, or undue burden." Fed.

R. Civ. P. 26(c)(1). Here, on the eve of trial, Jackson served Allstate with dozens of

requests to admit materialfacts thatJackson knew were in dispute. Although Jackson

asserts the requests for admission were intended to "narrow the contested issues in

this case," the frivolous nature of many of these requests indicatesthey were designed

to annoy and burden Allstate. Accordingly, we affirm the district court's grant of

Allstate's motion for a protective order. 

4

C. Evidentiary Rulings

1. Time Limit and Jackson's Character Witnesses

Jackson assertsthe district court erred by entering a pretrial order that excluded

her character witnesses and by limiting her time to present evidence at trial. With

respect to the district court's exclusion of her witnesses, Jackson concedes that, as a

general matter, character evidence in civil cases, including evidence of religious

beliefs or opinions, is inadmissible. Fed. R. Evid. 403, 404(a)(1) & 610. Jackson

contends, however, that Allstate attacked her credibility as a witness, and that Rule

608(a) therefore entitled her to rebut this attack via her own character witnesses. 

Rule 608(a) provides that a witness's credibility may be attacked or supported by

opinion or reputation testimony about the witness's character for truthfulness or

untruthfulness; however, "evidence of truthful character is admissible only after the

witness's character for truthfulness has been attacked." Fed. R. Evid. 608(a). "We

We also note the requests for admission may have been untimely, asthey were 4

filed months after the discovery deadline expired. See Freeman v. City of Detroit,

274 F.R.D. 610, 612-13 (E.D. Mich. 2011) (citing several federal district court cases

holding requests for admission are subject to discovery deadlines).

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review the district court's decision to admit or exclude evidence under Rule 608(a)

for an abuse of discretion." United States v. Jewell, 614 F.3d 911, 926 (8th Cir.

2010). 

Jackson first argues that Allstate attacked her character for truthfulness as a

witness by asserting its material misrepresentations defense. Jackson cites no case

law in support of her contention, and we decline to hold that Allstate's assertion of

this defense entitled Jackson to offer character evidence under Rule 608(a). Jackson

alternatively argues that Allstate attacked her credibilitywhen Baker testified thatshe

was dishonest with him during his investigation. However, Jackson never objected

to Baker's testimony under Rule 608(a). In addition, despite the district court's

assurances that it would consider revising its evidentiary rulings depending on how

the trial progressed, Jackson never offered a rebuttal witness to counter Baker's

purported attack on her character for truthfulness. Thus, with respect to Baker's

testimony, Jackson has failed to preserve any challenge based on Rule 608(a), and we

find no plain error in the district court's decision to enter a pretrial order excluding

Jackson's character witnesses. Chism v. CNH Am. LLC, 638 F.3d 637, 640 (8th Cir.

2011) (holding plain error review is appropriate when a "party fails to make a timely

objection" to an evidentiary ruling). 

We also hold the district court did not err by limiting Jackson's time to present

evidence at trial. "Trial courts are permitted to impose reasonable time limits on the

presentation of evidence to prevent undue delay, waste of time, or needless

presentation of cumulative evidence." Harris v. Chand, 506 F.3d 1135, 1141 (8thCir.

2007) (quotation omitted). "Trial management decisions are within the court's

discretion and are reversed only for an abuse of discretion." Id. "Abuse may occur

when a court excludes probative, noncumulative evidence simply because its

introduction will cause delay." Id. (internal quotation omitted). Having closely

reviewed the trial record, we conclude that the time limit did not prevent Jackson

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from presenting any probative, noncumulative evidence. Accordingly, the district

court did not abuse its discretion in limiting Jackson's time. 

2. Cell Phone Records and Google Maps Printout

Jackson next asserts the district court erred by denying her motion to exclude

Levy's expert testimony because of a late disclosed supplemental expert report. "We

review the district court's evidentiary rulings under an abuse of discretion standard." 

Townsend v. Bayer Corp., 774 F.3d 446, 460 (8th Cir. 2014). The record indicates

that on December 2, 2013, Jackson took an extensive deposition of Levy in Little

Rock, Arkansas. On the morning of the deposition, Levy conducted a field study of

the cell towers located near Jackson's house. During the deposition, Levy disclosed

to Jackson's counsel that he had conducted the field study, discussed the

methodologies he utilized, and fully explained the results of the study. 

Approximately two weeks later, Levy provided Jackson with a supplemental expert

report that summarized the same information Levy disclosed during his deposition. 

Rule 37(c)(1) of the Federal Rules of Civil Procedure providesthat "[i]f a party

fails to provide information . . . as required by Rule 26(a) or (e), the party is not

allowed to use that information . . . to supply evidence on a motion, at a hearing, or

at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ.

P. 37(c)(1). Allstate concedes that its disclosure of the report was untimely, but

contends that its late disclosure was substantially justified and was harmless. We

agree. The record indicates Jackson fully deposed Levy with respect to the field

study and never requested the opportunity to take a supplemental deposition. See

Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (noting trial court has wide

discretion in fashioning remedies or sanctions for violations of Rule 26(a) or (e));

Fed. R. Civ. P. 37(c)(1) (stating sanctions court may impose in addition to or instead

of excluding the evidence). Jackson also fails to identify any information in the

report that took her by surprise or thatshe needed to discuss with Levy in more detail. 

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We thus cannot say that the district court abused its discretion by denying Jackson's

motion to exclude Levy's expert testimony.

5

Jackson next contendsthe district court erred by refusing to take judicial notice

of the Google Maps printout. It is undisputed that the printout was hearsay evidence,

and Jackson has failed to establish that drive time estimates from Google Maps are

so accurate that they cannot reasonably be questioned. Fed. R. Evid. 201(b)

(identifying the kinds of facts that may be judicially noticed), 801 & 802.

Accordingly, the district court did not abuse its discretion by excluding the Google

Maps printout. 

3. Evidence of Criminal Charges

Jackson next argues the district court erred by excluding evidence that no

criminal charges were filed with respect to the fire. "As a general rule, evidence that 6

criminal charges were not brought is inadmissible in a civil case arising out of the

same events as the criminal charges." Goffstein v. State Farm Fire & Cas. Co., 764

We also reject Jackson's contention that evidence regarding the use of 5

historical cell phone data to identify the geographic area in which a phone was

located at a given time is inherently unreliable. Federal courts have regularly

admitted expert testimony regarding this type of evidence. E.g., United States v.

Evans, 892 F. Supp. 2d 949, 955 (N.D. Ill. 2012); United States v. Benford, No.

2:09CR86, 2010 WL 2346305, at *2-3 (N.D. Ind. 2010). Furthermore, Jackson never

raised a Daubert challenge with respect to "the scientific validity of the principles and

methodology underlying [Levy's] testimony," and there is no evidence that the district

court clearly erred by allowing Levy's testimony into the record. McKnight v.

Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir. 1994) (citing Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993)).

The record indicates, however, that in response to a juror's question, the

6

district court informed the jury that no criminal charges had been filed but instructed

the jurors that they were not to consider this evidence during their deliberations.

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F.2d 522, 524 (8th Cir. 1985). Jackson acknowledges this general rule, but she

contends the evidence should have been admitted under the doctrine of curative

admissibility. "The doctrine of curative admissibility allows a trial judge, in his

discretion, to admit otherwise inadmissible evidence in order to rebut prejudicial

evidence which has already been erroneously admitted." Id. (quotation omitted).

Jackson contends the doctrine of curative admissibility is applicable here because

Baker's investigation was so biased and unreliable that the district court erred by

admitting evidence related to the investigation. However, having closely reviewed

the record, we conclude that Baker's investigation was thorough and that he had

sufficient grounds to investigate Jackson as an arson suspect. Accordingly, because

the district court did not abuse its discretion by admitting Baker's testimony, Jackson

has failed to meet "the prerequisites for curative admissibility." Id. at 525. 

D. Motions for JAML and Sufficiency of the Evidence

Jackson next challenges the sufficiency of the evidence supporting the jury's

verdict. Specifically, Jackson contends that, because the jury returned a general

verdict in favor of Allstate on its intentional acts defense, it is possible that the jury

found thatJackson personally burned her home despite there being no evidence in the

record to support such a finding. Jackson also asserts the district court erred by

denying her pre-verdict motions for JAML with respect to the issue of whether she

personally burned her house. However, we decline to consider either argument

because Jackson failed to preserve these issues for appeal. 

Although Jackson twice moved for JAML before the case wassubmitted to the

jury, her failure to file a renewed motion for JAML after the entry of judgment in

favor of Allstate precludes our review of her challenge to the sufficiency of the

evidence supporting the verdict. If the trial court does not grant a motion for JAML

made under Rule 50(a) "the court is considered to have submitted the action to the

jury subject to the court's later deciding the legal questions raised by the motion. No

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later than 28 days after the entry of judgment . . . the movant may file a renewed

motion for [JAML]." Fed. R. Civ. P. 50(b). The "requirement of a timely application

for judgment after verdict is not an idle motion but an essential part of [Rule 50]." 

EEOC v. S.W. Bell Tel., L.P., 550 F.3d 704, 710 (8th Cir. 2008) (internal quotations

omitted). Indeed, the Supreme Court has held that when a party failsto file a renewed

motion for JAML under Rule 50(b), "there [is] no basis for review of [the party's]

sufficiency of the evidence challenge in the Court of Appeals." Unitherm Food Sys.,

Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006); see N.Y. Marine and Gen. Ins.

Co. v. Cont'l Cement Co., 761 F.3d 830, 840 (8th Cir. 2014) ("A party cannot

challenge the sufficiency of the evidence if it failed to file a postverdict motion under

Rule 50(b) after the district court denied its Rule 50(a) motion."). Our precedent also

establishes that Jackson's failure to file a Rule 50(b) motion precludes our review of

the district court's denial of her pre-verdict motions for JAML because they too were

based on a sufficiency of the evidence argument. S.W. Bell Tel., 550 F.3d at 709-10. 

We thus "conclude that [Jackson's] failure to file a Rule 50(b) motion after the entry

of judgment leaves us without a basis to review [her] sufficiency of the evidence

challenges." Id. at 711.

E. Motions Related to Allstate's Payment of Jackson's Mortgage

Jackson next argues the district court erred in denying her motion to require

Allstate to pay her mortgage company, Nationstar Mortgage, LLC, and for an

indicative ruling regarding the amount Allstate is required to pay. Jackson also

contends she is entitled to a twelve percent statutory penalty and attorney's fees with

respect to any payments Allstate makes to Nationstar. "We review the district court's

findings of fact for clear error and [its] legal rulings de novo." Native Am. Council

of Tribes v. Weber, 750 F.3d 742, 748 (8th Cir. 2014) (alteration in original) (internal

quotation omitted). We review a denial of indicative relief for abuse of discretion. 

Dice Corp v. Bold Techs., 556 Fed. App'x 378, 384 (6th Cir. 2014). 

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Some additional factual background is helpful in evaluating the variousissues

Jackson raises with respect to her mortgage. Jackson's policy imposes a duty on

Allstate to pay Nationstar "to the extent of [its] interest" (i.e., the mortgage) in

Jackson's house, and it is undisputed that this duty was not relieved by the jury's

determination that Jackson was responsible for the fire. We also note, however, that

the policy requires Nationstar to establish its right to recovery by furnishing a proof

of loss. The record indicates that, before Jackson filed suit, Allstate acknowledged

its duty to pay her mortgage and, consistent with the terms of her policy, requested

a proof of loss from Jackson's mortgage company. Prior to finally receiving a proof

of loss from Nationstar in January 2014, nearly two years after the fire occurred,

Allstate made at least ten additional attempts to obtain this information. In the proof

of loss, Nationstar claimed its interest in Jackson's property was $203,164.41, and

Allstate promptly issued a check to Nationstar in this amount. However, Nationstar

has been unable to process this payment because Jackson has refused to consent to

Nationstar's use of the funds to pay her mortgage. At the time this case was

submitted, Allstate had not paid Jackson's mortgage.

With respect to Jackson's motion for an indicative ruling, she has presented no

evidence or legal argument suggesting that her policy requires Allstate to pay

Nationstar a sum greater than Nationstar claimed in its proof of loss. We thus hold

the district court did not abuse its discretion in denying Jackson's motion for an

indicative ruling regarding the amount Allstate owes Nationstar. Similarly, because

Jackson alone is responsible for Nationstar's delay in processing Allstate's payment,

we affirmthe district court's denial of her motion to require Allstate to payNationstar.

We also rejectJackson's argument thatshe is entitled to a statutory penalty and

attorney's fees with respect to the amount Allstate ultimately pays to Nationstar. 

Jackson's claim for a statutory penalty and attorney's fees arises from § 23-79-

208(a)(1) of the Arkansas Code, which states: 

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In all cases in which loss occurs and the [casualty insurance company]

shall fail to pay the losses within the time specified in the policy after

demand is made, the [company] shall be liable to pay the holder of the

policy . . ., in addition to the amount of the loss, twelve percent (12%)

damages upon the amount of the loss, together with all reasonable

attorney's fees for the prosecution and collection of the loss.

Ark. Code Ann. § 23-79-208(a)(1). "This provision is penal in nature and istherefore

strictly construed in favor of the party sought to be penalized. It should not be held

to apply except in cases that come clearly within the statute." Primerica Life Ins. Co.

v. Watson, 207 S.W.3d 443, 448 (Ark. 2004) (citations omitted). The purpose of this

provision is to inhibit "the unwarranted delaying tactics of insurers." Id. In light of

this purpose, the Arkansas Supreme Court has consistently declined to apply § 23-79-

208(a)(1) in circumstances where the insurer's delay in payment was justified. Id. at

449-50; see Clark Center, Inc. v. Nat'l Life & Accident Ins. Co., 433 S.W.2d 151,

152-53 (Ark. 1968) (holding untimely payment was justified where insurer

consistently acknowledged its duty to pay under policy and insured failed to "furnish

proper and necessary information" despite insurer's good faith attempts to obtain it);

see also Farm Bureau Mut. Ins. Co. of Ark. v. Shaw, 600 S.W.2d 432, 435 (Ark. Ct.

App. 1980) (affirming trial court's award of statutory penalty and attorneys' fees to

insured where insurer's payment to mortgagee was untimely and insurer provided "no

justification for the delay"). Here, it is clear that Allstate's delay in paying Jackson's

mortgage wasinitially caused by Nationstar'sfailure to "furnish proper and necessary

information,"and later by Jackson's refusal to consent to the payment. Clark Center,

433 S.W.2d at 152-53. In addition, Allstate made numerous good faith attempts to

acquire the information it needed to pay Jackson's mortgage, and there is no evidence

suggesting that Allstate engaged in any "unwarranted delaying tactics." Watson, 207

S.W.3d at 448. Accordingly, because Allstate's delay in paying Nationstar is

justified, we find no error in the district court's denial of Jackson's motion for a

statutory penalty and attorney's fees.

Finally we reject Jackson's remaining contentions as being without merit.

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III. CONCLUSION

For the reasons stated above, we affirm the jury's verdict in favor of Allstate

and the various rulings by the district court that Jackson appeals. 

______________________________

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