* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 22 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JIMMY MAYBERRY; LETHA MAYBERRY, dba GEM ELECTRIC COMPANY, Plaintiffs - Appellants,

v. PIONEER LIFE INSURANCE COMPANY (Conseco Companies), a foreign corporation,

Defendant - Appellee. No. 01-5129 (D.C. No. 99-CV-659-B) (N.D. Oklahoma)

ORDER AND JUDGMENT *

Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiffs Jimmy and Letha Mayberry appeal from the judgment in favor of defendant Pioneer Life Insurance Company on their c laims for breach of contract, bad faith, and punitive damages, and the dismissal of their motion for a bill of accounting. We have jurisdiction under 28 U.S.C. § 1291. As we find no plain error–if there is error at all–in the trial court’s action, we affirm. Plaintiffs were covered by defendant’s catastrophic hospital expense insurance plan beginning on December 10, 1992. Dur ing the course of the policy, plaintiffs submitted approximately 3000 claims seek ing approximately $250,000. Defendant paid approximately $200,000 and denied other claimed amounts. Plaintiffs asserted that defendant breached the ins urance contract and acted in bad faith by wrongfully denying payment on insurance cl aims and improperly increasing their insurance premiums. Defendant filed a motion for summary judgment. The district court originally granted it in part, limiting plaintiffs’ breach of contract claim to the alleged wrongful denial of a dental claim. Address ing plaintiffs’ “motion to reconsider interlocutory order,” the district courtdecided to allow plaintiffs to proceed against defendant on all unpaid insurance c laims. The district court noted, however, that plaintiffs’ breach of contractand bad faith claims were limited to unpaid claims, because plaintiffs did no t raise the issue of claims ultimately paid upon resubmission until their motio n to reconsider.-3-

The case was then tried to a jury. At the conclusi on of the evidence, defendant filed a motion for judgment as a matter o f law under Fed. R. Civ. P. 50(a). The court entered judgment for defendanton plaintiffs’ bad faith and punitive damages claims and submitted plaintiffs’ r emaining breach of contract claim to the jury. The jury rejected plaintiffs’ b reach of contract claim, and the district court dismissed their claim for a bill of accounting on the basis that it was not supported by the evidence. Plaintiffs argue on appeal that: (1) the district court’s comment to the jury regarding the testimony of their expert witness, Me lvin Cooper, unfairly prejudiced the jury; (2) the district court erred i n limiting the dollar amount of a disputed dental claim based on a theory not advance d by defendant at the time it initially rejected the claim; (3) there was suffici ent evidence to submit to the jury their bad faith and punitive damages claims; (4) th e district court improperly denied their evidence of resubmitted claims; (5) th e district court improperly imposed a contractual statute of limitations that d efendant had not preserved in the Pretrial Order; and (6) there was sufficient ev idence to support their claim for a bill of accounting on premium issues. Plaintiffs contend that the jury’s verdict based on a finding that there was no breach of cont ract should be reversed, and the case should be retried on all issues.-4-

“A federal court sitting in diversity must apply th e law of the forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma law with the objective that the result obtained in the federal c ourt should be the result that would be reached in an Oklahoma court.” Wood v. Eli Lilly & Co. , 38 F.3d 510, 512 (10th Cir. 1994). On appeal, we apply “the normal federal standards of appellate review to examine the district court’s decision process.” Mid-America Pipeline Co. v. Lario Enters., Inc. , 942 F.2d 1519, 1524 (10th Cir. 1991). In their first assertion of error, plaintiffs cont end that a comment made by the trial judge to the jury amounted to an instruct ion to disregard the testimony of their expert witness, Melvin Cooper, which unfairlyprejudiced their breach of contract claim. Plaintiffs presented Mr. Cooper as an expert on the coverage provided by their insurance contract. At the end of all the evidence, the judge said to t he jury: In reference to the testimony of Mr. Melvin Cooper who testified in this case, let me simply say to you insofar as you conclude that Mr. Cooper’s testimony involved an erroneous conclu sion regarding the benefits or coverage under the insurance policy , you should simply disregard his testimony if you think that wa s the case as to any particular claim or claims. Aplt. App., Vol. III at 587. Plaintiffs did not object to this comment. Because plaintiffs did not object at trial, we revi ew the trial judge’s instructions to the jury for plain error. Giron v. Corrections Corp. of Am. , 191 F.3d 1281, 1289 (10th Cir. 1999). “We will onl y reverse under the plain-5-

error standard in an exceptional circumstance–one w here the error was patently plainly erroneous and prejudicial.” Id. (quotation omitted). We have carefully considered the judge’s comment in this case, and hold that it does not constitute error and did not preju dice plaintiffs. The trial judge in a federal court “is not limited to instructions of an abstract sort.” Quercia v. United States , 289 U.S. 466, 469 (1933). Rather, the judge is e ntitled “to assist the jury in arriving at a just conclusion by explai ning and commenting upon the evidence, . . . provided [the judge] makes it clearto the jury that all matters of fact are submitted to their determination.” The ju dge “may analyze and dissect the evidence, but . . . may not either distort it or add to it.” Id. at 470. The judge’s comment in this case did not add to or dist ort the evidence, and clearly left the duty of fact-finding with the jury. In their second argument, plaintiffs contend that t he district court erred in limiting the dollar amount of a disputed dental cla im based on a contract provision not advanced by defendant at the time it initially rejected the claim. Plaintiffs offer no support for their contention th at defendant was precluded from relying on the entire insurance contract at trial o f their breach of contract claim. We are aware of none and, therefore, reject plainti ffs’ argument. We have reviewed the trial transcript as it relates to the disputed dental claim. Based on the evidence presented at trial, the amount submitt ed to the jury as potential-6-

damages, $1722, is the amount that was potentially covered by the contract as an accidental injury. The rest of the disputed dental claim clearly was barred by the policy’s cosmetic surgery exclusion, if not by othe r provisions. We need not consider whether plaintiffs were entitled to the di sputed $1722 as a matter of law because the issue was determined by the jury. Next, plaintiffs assert that there was sufficient e vidence to submit their bad faith and punitive damages claims to the jury. The trial court granted defendant’s motion for judgment as a matter of law on these cla ims because the only testimony that potentially could support them was that of Melvin Cooper. The court decided, however, that Mr. Cooper’s testimonywas based on an erroneous interpretation of the insurance policy, was not pro bative, and could not meet the required evidentiary standard for either bad faith or punitive damages. Aplt. App., Vol. III at 574-75. Plaintiffs contend that the district court misunderstood the policy and that its decision was error, but fai l to set out an argument demonstrating any error. We reject plaintiffs’ con clusory argument. Next, plaintiffs argue that the district court impr operly denied their evidence of claims that were resubmitted before the y were eventually paid. The district court considered the issue of resubmitted claims untimely because plaintiffs did not raise it until their motion to r econsider, in which they challenged the partial grant of summary judgment to defendant. See Aplt.-7-

Opening Br., Att. 3, at 3 n.1 (district court orderon plaintiffs’ motion to reconsider). Although plaintiffs assert on appeal that they raised the issue in an earlier pleading, they did not include in their app endix the document necessary for us to review that assertion. Because it is plainti ffs’ responsibility to provide an adequate record, we decline to consider their inade quately supported argument.
See 10th Cir. R. 10.3(A), (B). Next, plaintiffs maintain that the district court i mproperly imposed a contractual statute of limitations that defendant h ad not preserved in the Pretrial Order. Because plaintiffs have not demonstrated th at the jury verdict finding no breach of contract by defendant should be overturne d, the issue of a limitation on damages is moot. Finally, plaintiffs argue that there was sufficientevidence to support their motion for a bill of accounting on premium issues. An action for an accounting is a proceeding in equity. Dobry v. Dobry , 324 P.2d 534, 537 (Okla. 1958). “We review the district court’s exercise of its equitab le jurisdiction and its denial of [plaintiffs’] motion for an abuse of discretion.” United States v. Grover , 119 F.3d 850, 851 (10th Cir. 1997). Plaintiffs had the burd en to prove their right to relief by “plac[ing] in evidence facts which reasonably te nd to prove that there is a balance due.” Dobry , 324 P.2d at 537.-8-

Plaintiffs point to evidence which, they argue, doe s not establish that defendant’s premiums were proper. They fail to pre sent evidence that defendant’s premiums were improper , which is their burden. We therefore affirm the d istrict court’s dismissal of plaintiffs’ motion for a bill of accounting.
AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge