FILED

United States Court of Appeals

Tenth Circuit

February 19, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEFFREY SEMLER,

Plaintiff - Appellant/CrossAppellee,

v. Nos. 14-6071 & 14-6082

GEICO GENERAL INSURANCE

COMPANY,

Defendant - Appellee/Cross- 

 Appellant.

(D.C. No. 5:11-CV-01354-D)

(W. D. Okla.)

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.

This diversity action arises out of an uninsured motorist coverage dispute between

Defendant GEICO General Insurance Company (GEICO) and Plaintiff Jeffrey Semler

(Semler). Semler claimed GEICO breached its insurance contract with him, and also

violated its duty of good faith and fair dealing. Semler appeals from the district court’s

grant of partial summary judgment to GEICO on his bad faith claim. GEICO, in its crossappeal, challenges the district court’s partial denial of its summary judgment motion on

*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Semler’s breach of contract claim, as well as the district court’s denial of its motion for a

new trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I

1. The Accident

On August 25, 2010, at approximately 11:00 p.m., Semler was driving his Ford

Expedition eastbound in the right-hand lane on Highway 3 in Canadian County,

Oklahoma. Semler’s wife was driving behind him in a separate vehicle. It was a clear

night and Semler was driving the speed limit. He was also using his highbeams. As he

was driving, Semler noticed a large tire tread in his lane, which looked to him like a tread

from an 18-wheeler. He was approximately 90 feet from the tire tread when he noticed it. 

Semler tried to avoid it by swerving to the right. But he was unable to clear his lane in

time and struck the tread. Semler lost of control of his vehicle and collided with the wall

of a concrete bridge. He broke his thumb and injured his back in the accident.

David Craig, who lived close to the accident site, went out to see what had

happened after his wife noticed the collision. Craig confirmed that Semler had hit a tire

tread from a semi-truck. He also stated that he had not seen the tread in the roadway

when he had driven on the highway several hours earlier.

Oklahoma Highway Patrol Trooper Dallas Edwards arrived at the accident site a

short time later. Trooper Edwards also confirmed that Semler had hit a tire tread from a

semi-truck. After Trooper Edwards arrived, David Craig removed the tire tread from the

roadway and discarded it. Like Craig, Trooper Edwards had driven on this same portion

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of highway about thirty minutes earlier and had not seen the tread in the roadway. 

Trooper Edwards stated that he thought the tread was large enough to have thrown

Semler’s “vehicle off a little bit especially with [Semler] trying to swerve because there’s

not much room on that bridge.” Aplt. App. at 1480-81. He concluded that the accident

would not have occurred had the tire tread not been in the road.

2. Insurance Claim

At the time of the accident, Semler was insured under a policy issued by GEICO,

which provided uninsured motorist benefits of up to $100,000 per person. Semler’s

policy provided protection in the event Semler was involved in an accident with an

“uninsured motor vehicle” or a “hit-and-run motor vehicle” if his injuries “ar[ose] out of

the ownership, maintenance or use” of that vehicle, and if he was “legally entitled to

recover from the owner or operator” of that vehicle. Id. at 1572. The policy defined “hitand-run motor vehicle,” as “a motor vehicle causing bodily injury to an insured, and

whose owner or operator cannot be identified . . . .” Id. at 1571 (emphasis in original

omitted).

Semler reported the accident to GEICO on August 27, 2010. Three days later

GEICO noted in its activity log: “Single Veh[icle] loss. No [Bodily Injury] Or Um

Exposure. Appears To Be At Fault Loss.” Id. at 1182. On September 14, 2010, Semler,

through counsel, submitted a claim for uninsured motorist benefits. A few weeks later,

GEICO’s activity log was updated to indicate that Semler had hit “tire debris” in the

roadway and that he had collided with a “barrier.” The activity log also questioned

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whether Semler’s accident qualified for uninsured motorist benefits. Two GEICO

employees then reviewed Semler’s policy. After they did so, the activity log was updated

with the following: “Revd File/Policy Contract . . . Tire In Road Does Not Meet Def Of

Uninsured Motorist Def Or Losses We Will Pay. Um Coverage Would Not Apply.” Id. at

1175. GEICO then assigned the claim to employee Elizabeth Bray for investigation.

On December 20, 2010, Semler provided GEICO with a statement. Bray reviewed

Semler’s statement and contacted GEICO’s counsel to discuss the loss. After doing so,

Bray wrote to Semler’s attorney, John Branum, informing him that “[b]ased on the

information that [she] ha[d] to date, it does not appear that this loss meets the definition

of an uninsured motorist claim.” Id. at 1446. Bray also asked about the accident report,

which Semler had mentioned in his statement, but which Bray had not been able to locate.

Branum wrote back to Bray, asking her why she did not believe that Semler’s loss

met the definition of an uninsured motorist claim. Bray responded, explaining that

because Semler “was at fault in this loss for failing to maintain control of his vehicle,”

Semler “would not be entitled to make an uninsured motorist claim under the policy.” Id.

at 1451. Branum then sent Bray the report Trooper Edwards had prepared.

On January 26, 2011, Branum wrote Bray again asking her for the information she

had obtained which led her to believe the accident was Semler’s fault. A couple weeks

later, Branum wrote Bray yet again to inform her that he had spoken with David Craig. 

He shared with her the information he had learned from Craig and stated that, with the

information Craig provided, “it is more likely true than not that this incident was caused

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due to the negligent maintenance of a motor vehicle.” Id. at 1459. Bray then wrote back

to Branum. She stated that her liability decision was based on Semler’s statement, and

that she had taken a statement from Craig, but that it did not change GEICO’s position.

The next correspondence occurred on April 19, 2011, when Branum sent Bray

another letter asking Bray to explain what it was in Semler’s statement that had led to the

denial of his claim. Receiving no response from Bray, Branum wrote Bray one last time

on June 6, 2011. Branum enclosed a copy of the statements he had taken from Trooper

Edwards and Craig, and informed Bray that if GEICO did not offer to pay its policy limits

within 10 days, he would initiate legal proceedings.

3. Litigation

On June 27, 2011, GEICO filed a declaratory judgment petition, in which it argued

that Semler’s accident was not covered under his uninsured motorist policy because a tire

tread is not an uninsured motor vehicle, and even if it were, Semler could not demonstrate

that his injury arose out of the ownership, maintenance or use of an uninsured vehicle. 

But GEICO voluntarily dismissed its declaratory judgment petition a few months later.

Semler then filed the present lawsuit against GEICO in Oklahoma state court on

October 28, 2011, alleging that GEICO breached both its insurance contract with respect

to Semler’s uninsured motorist policy, and its duty of good faith and fair dealing in

denying Semler’s claim. GEICO removed the case to federal court, answered Semler’s

complaint, and filed a counterclaim for declaratory judgment.

GEICO then moved for summary judgment. GEICO argued it was entitled to

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summary judgment because (1) the tread in the roadway was an ordinary road hazard and,

without some evidence linking the tread to a negligent owner or operator of a vehicle, the

tread did not constitute an uninsured or a hit-and-run motor vehicle, (2) Semler’s injury

did not arise out of the ownership, maintenance or use of such a vehicle, and (3) Semler

was the primary cause of and principally at fault for the accident.

The district court denied GEICO’s motion for summary judgment on Semler’s

breach of contract claim, finding that even though “it is undisputed that the owner or

operator allegedly responsible for leaving tire debris in the roadway remains unknown,”

Aplt. App. at 1055, Semler “made a minimally sufficient showing to support his theory

that the negligence of an unidentified truck driver caused the accident” and that he “might

[be] entitle[d] . . . to UM coverage.” Id. at 1057-58. The district court, however, granted

GEICO’s motion on Semler’s bad faith claim, finding that “the evidence . . . clearly

establishes the existence of a legitimate dispute regarding [Semler’s] entitlement to UM

coverage, thereby precluding a finding of bad faith by [GEICO].” Id. at 1058.

Semler’s contract claim was then tried before a jury. At the conclusion of

Semler’s case in chief, GEICO moved under Fed. R. Civ. P. 50(a) for judgment as a

matter of law, advancing similar arguments to those made in its summary judgment

motion. The district court denied the motion. GEICO never renewed the motion pursuant

to Fed. R. Civ. P. 50(b) following the jury verdict.

During closing arguments, Semler’s counsel made two comments about GEICO’s

wealth. GEICO’s counsel objected after GEICO’s wealth was referenced for the second

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time. The district court sustained the objection and promptly gave the jury the following

instruction: “Ladies and gentlemen of the jury, what counsel say in closing argument is

not evidence. It’s what counsel believes the evidence shows. You’re not bound by what

counsel says in closing argument.” Supp. App. at 450. After Semler’s counsel completed

his closing arguments, GEICO’s counsel objected again to the comments made about

GEICO’s wealth. The district court responded: “With respect to the comments about the

financial position of [GEICO], you’re right. You objected and I sustained it and I told the

jury that it wasn’t evidence, and I think I appropriately handled that issue.” Supp. App. at

462. Although GEICO did not explicitly move for a mistrial, both parties seem to agree

that GEICO did so implicitly with its second objection. See Aplee. Br. at 38; Aplt. Reply

Br. at 18-19. Like the parties, we will treat this exchange between GEICO and the court

as a motion for mistrial which was denied. The jury ultimately found in favor of Semler,

awarding him $210,000 in damages. It did not find any fault on Semler’s part. Judgment

was entered on the jury award in the amount of the contract, $100,000.

Both parties now appeal. Semler appeals the district court’s grant of summary

judgment to GEICO on his bad faith claim, and GEICO appeals the district court’s denial

of its summary judgment motion on Semler’s breach of contract claim, as well as the

district court’s denial of its motion for a mistrial. We turn first to Semler’s appeal.

II

1. Bad Faith Claim

On appeal, Semler challenges the district court’s decision to grant summary

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judgment in favor of GEICO on his bad faith claim. “We review summary judgment

decisions de novo, applying the same standards employed by the trial court under Fed. R.

Civ. P. 56(c).” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). 

“Summary judgment is proper only if ‘there is no genuine issue as to any material fact’

and ‘the movant is entitled to judgment as a matter of law.’” Jones v. Okla. City Pub.

Sch., 617 F.3d 1273, 1277 (10th Cir. 2010) (quoting Fed. R. Civ. P. 56(c)). “We view the

record in the light most favorable to the nonmoving party,” which in this case is Semler. 

Russillo, 935 F.2d at 1170. Moreover, “we may affirm on any basis supported by the

record.” Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

Under Oklahoma law, “‘an insurer has an implied duty to deal fairly and act in

good faith with its insured . . . .’” Davis v. Mid-Century Ins. Co., 311 F.3d 1250, 1252

(10th Cir. 2002) (quoting Christian v. Am. Home Assurance Co., 577 P.2d 899, 904

(Okla. 1977)). This duty will only create a claim against an insurer if “there is a clear

showing that the insurer unreasonably, and in bad faith, withh[e]ld[] payment of the

claim.” McCorkle v. Great Atl. Ins. Co., 637 P.2d 583, 587 (Okla. 1981) (internal

quotation marks omitted). “‘[T]he tort of bad faith does not prevent the insurer from

resisting payment or resorting to a judicial forum to resolve a legitimate dispute.’” Davis,

311 F.3d at 1252 (quoting Skinner v. John Deere Ins. Co., 998 P.2d 1219, 1223 (Okla.

2000)). “The decisive question is whether the insurer had a good faith belief, at the time

its performance was requested, that it had a justifiable reason for withholding payment

under the policy.” Porter v. Okla. Farm Bureau Mut. Ins. Co., 330 P.3d 511, 518 (Okla.

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2014) (internal quotation marks and emphasis omitted). In this case, GEICO did.

At the time Semler requested performance by GEICO, a legitimate dispute existed

over whether Semler’s claim qualified for uninsured motorist coverage.1

 “There is no bad

faith when the insurer’s denial of a claim is based on a legitimate dispute between the

insurer and the insured.” Claborn v. Washington Nat’l Ins. Co., 910 P.2d 1046, 1051

(Okla. 1996). And “‘[a]n insurer clearly has the right to . . . litigate any claim to which

the insurer has a reasonable defense.’” Id. (citing Buzzard v. Farmers Ins. Co., Inc., 824

P.2d 1105, 1106 (Okla. 1991)). GEICO denied Semler’s claim based primarily on its

belief that Semler was entirely at fault for the accident. Under Oklahoma law, uninsured

motorist coverage is only triggered if the insured is entitled to recover from a negligent

tortfeasor. See Ply v. Nat’l Union Fire Ins. Co., 81 P.3d 643, 648 (Okla. 2003); Okla.

Stat. Ann. tit. 36, § 3636. If Semler was entirely at fault, he would not be entitled to

recover from a negligent tortfeasor or to receive uninsured motorist benefits. Under the

facts of this case, it was not unreasonable for GEICO to rely on this defense, as a jury

could find that even though Semler was driving the speed limit with his highbeams on, his

failing to notice the tread until he was only 90 feet away from it indicated that he was

driving negligently. Accordingly, GEICO did not act in bad faith in litigating this issue.

GEICO also consistently maintained that it was denying Semler’s claim because

1

 This remains the case regardless of whether, as Semler argues, GEICO is

considered to only have investigated the claim from August 2010 (when Semler informed

GEICO of the accident) to June 2011 (when GEICO filed its first declaratory judgment

petition). Even if we assume that Semler is correct, GEICO still prevails. As discussed

below, GEICO legitimately disputed Semler’s claim well before the start of any litigation.

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his loss did not meet the definition of an uninsured motorist claim.2

 See Aplt. App. at

1175, 1446, and 1450. GEICO noted early on in its activity log that it did not believe a

tire in the roadway meets the definition of an uninsured motorist claim; id. at 1175, and

Elizabeth Bray, who was in charge of investigating this claim for GEICO, repeatedly told

John Branum, Semler’s counsel, the same thing—that GEICO was withholding payment

because it did “not feel that this loss meets the definition of an uninsured motorist claim.”

Id. at 1450. Again, GEICO did not act in bad faith in litigating this issue. At the time

GEICO was investigating Semler’s claim, no conclusive legal authority existed

addressing whether an accident involving a tire tread in the roadway qualifies for

uninsured motorist coverage in Oklahoma. Semler even concedes this point. “For bad

faith liability to attach, the law at the time of the alleged bad faith must be settled.” 

Davis, 311 F.3d at 1252. Without any legal authority on point, it can hardly be said that

the law at the time was settled. Thus, it was not unreasonable for GEICO to challenge the

unique circumstances of Semler’s accident and to dispute whether Semler’s accident was

2

 Semler argues that GEICO should be prevented from relying on this defense

because GEICO merely manufactured it after the fact for litigation purposes. Aplt. Br. at

17. But this is not the case. GEICO noted this issue in its activity log at the very

beginning. See Aplt. App. at 1175. It also indicated in its initial letter to Semler that it

was denying his claim because it did not meet the definition of an uninsured motorist

claim. Id. at 1446. This all occurred before the start of any litigation. And while we

recognize that GEICO’s communications with Semler emphasized its belief that Semler

was at fault for the accident, GEICO’s noting this coverage dispute in its activity log is

sufficient to allow it to rely on this defense. Cf. Buzzard, 824 P.2d at 1109-10 (finding

that an insurer could not defend its bad faith claim on a basis that it did not “internally

note[]” or “communicate[] to [its insured] as a reason for delay or denial of the claim”)

(emphasis added).

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in fact caused by a negligent driver who lost the tread and then left it in the roadway. See

Porter, 330 P.3d at 518 (“It is not bad faith to withhold payment when there is a

legitimate dispute concerning coverage or no conclusive precedential legal authority

requiring coverage.”); see also Biggs v. State Farm Mut. Auto. Ins. Co., 569 P.2d 430,

433-34 (Okla. 1977) (explaining that even though Oklahoma does not require physical

contact between the insured’s vehicle and the hit-and-run vehicle for uninsured motorist

coverage to apply, the insured still must prove “that the accident was in fact caused by an

unidentified driver”).

Semler goes on to argue that even if a legitimate dispute existed at the time

GEICO withheld payment on his claim, GEICO still acted in bad faith by inadequately

investigating his claim. “[W]hen presented with a claim by its insured, an insurer must

conduct an investigation reasonably appropriate under the circumstances . . . .” Newport

v. USAA, 11 P.3d 190, 195 (Okla. 2000) (internal quotation marks omitted). Where a

bad faith claim is based on an inadequate investigation theory, “the insured must make a

showing that material facts were overlooked or that a more thorough investigation would

have produced relevant information.” Timberlake Constr. Co. v. U.S. Fid. & Guar. Co.,

71 F.3d 335, 345 (10th Cir. 1995); see also Bannister v. State Farm Mut. Auto Ins. Co.,

692 F.3d 1117, 1131 (10th Cir. 2012). Semler has failed to do this.

Once Semler filed his claim, GEICO investigated it. GEICO promptly took

Semler’s statement. Semler told GEICO that this was a single vehicle accident and that

his wife was the only other person to witness the accident. Semler also indicated that he

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did not know how the tire tread got into the roadway or what vehicle may have left it

there. Id. GEICO had no reason to suspect the information it had received from Semler

was incorrect or incomplete. GEICO also had every right to rely on that information,

including the fact that no eyewitness testimony would be available to establish how the

tire tread got into the roadway, who deposited it there, or whether it was left there as a

result of another driver’s negligence. See Bannister, 692 F.3d at 1131-32.

Moreover, there is simply no indication that any additional investigation would

have changed the underlying facts already known to GEICO. See id. at 1131. The tire

tread was discarded shortly after the accident; therefore no analysis could have been

performed on the tread itself. GEICO had already spoken with David Craig—the only

other person present at the scene—and had also obtained a copy of Trooper Edwards’s

contact report. But neither Craig’s statement nor Trooper Edwards’s report provided

GEICO with any new or relevant information about the accident that GEICO had not

already learned from Semler. And Semler identifies no other relevant witnesses or facts

that GEICO could have uncovered to assist it in its investigation. Without some

indication by Semler that “a more thorough investigation would have produced relevant

information that would have delegitimized the insurer’s dispute of the claim,” id. at 1132

(internal quotation marks omitted), Semler’s inadequate investigation theory fails. Under

Oklahoma law, an insurer’s investigation does not need to be perfect; it only needs to be

“reasonably appropriate under the circumstances.” Buzzard, 824 P.2d at 1109. In this

case, it was. Accordingly, the district court properly granted summary judgment in favor

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of GEICO on Semler’s bad faith claim.

2. Breach of Contract Claim

GEICO, in its cross-appeal, first challenges the district court’s denial of its

summary judgment motion on Semler’s breach of contract claim. However, this

argument is not properly before us. When a summary judgment motion is denied based

on factual disputes, it is “not properly reviewable on an appeal from a final judgment

entered after trial.” Haberman v. The Hartford Ins. Group, 443 F.3d 1257, 1264 (10th

Cir. 2006). Instead, the proper redress is “through subsequent motions for judgment as a

matter of law . . . and appellate review of those motions if they were denied.” Whalen v.

Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir. 1992). We have, however, noted one

exception. When a summary judgment motion is denied based on a purely legal issue,

that issue can be reviewed on appeal after final judgment. See Haberman, 443 F.3d at

1264. But we are not presented with such an issue in this case.

In its summary judgment motion, GEICO challenged only whether Semler could

establish two of the four elements required for an uninsured motorist claim under

Oklahoma law—(1) that his injury arose out of the maintenance or use of a motor vehicle

and (2) that he is legally entitled to recover damages from a hit-and-run motorist.3

 See

Aplee. Br. at 35. Both of these elements implicate factual issues. Under Oklahoma law,

3

 In addition to these two elements, Oklahoma requires a plaintiff to establish that

(1) he “is an insured under the UM provisions of a policy,” and (2) that his injury was

“caused by an accident” in order for the plaintiff to be entitled to uninsured motorist

coverage. Ply, 81 P.3d at 647. Neither of these two elements is in dispute in this case.

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for a plaintiff to prove that his injury arose out of the maintenance or use of a motor

vehicle, he must show that “a motor vehicle or any part of the motor vehicle [was] the

dangerous instrument which start[ed] the chain of events leading to [his] injury,” Safeco

Ins. Co. of Am. v. Sanders, 803 P.2d 688, 692 (Okla. 1990), and that his injury was

“causally connected” to the hit-and-run vehicle. Ply, 81 P.3d at 647 n.7. For a plaintiff to

prove he is legally entitled to recover from a hit-and-run motorist, he must show that his

injury was caused by a negligent hit-and-run motorist. Id. at 648. These issues present

factual disputes, not purely legal questions. See Safeco Ins. Co. of Am., 803 P.2d at 693;

Flanders v. Crane Co., 693 P.2d 602, 606 (Okla. 1984) (noting that “questions concerning

negligence . . . are for the trier of fact”); Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d

1318, 1322 (Okla. 1996) (noting that whether something is the proximate cause of a

plaintiff’s injury is a fact question). Indeed, the district court made clear that it was

denying GEICO’s motion for summary judgment on Semler’s breach of contract claim

because there were genuine disputes of material fact regarding both elements.

Because GEICO was denied summary judgment based on factual rather than

purely legal issues, we may not review that denial on appeal.4

 See Copar Pumice Co.,

4

 GEICO attempts to frame the issue on summary judgment as a purely legal issue

by arguing that the district court erred “in finding a tire fragment could constitute a ‘hitand-run motor vehicle’” under GEICO’s policy. Aplee. Br. at 35. But GEICO misstates

the relevant issue. The relevant issue is not whether a tire tread constitutes a hit-and-run

motor vehicle, but rather whether the accident was actually caused by a hit-and-run motor

vehicle. See Biggs, 569 P.2d at 433-34. That is how the district court framed the issue,

and it is also how the cases upon which GEICO relies framed the issue. See Kersten v.

Detroit Auto. Inter-Ins. Exch., 267 N.W.2d 425, 431 (Mich. Ct. App. 1978) (analyzing

(continued...)

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Inc. v. Morris, 639 F.3d 1025, 1032 (10th Cir. 2011). After GEICO’s summary judgment

motion was denied and the contract issue went to trial, GEICO’s counsel could have

renewed its summary judgment arguments in a Rule 50(a) and a Rule 50(b) motion for

judgment as a matter of law, and then appealed from the denial of those motions.5

 See

id.; Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006). However,

given the procedural posture of the case, we cannot now review the district court’s denial

of GEICO’s summary judgment motion on the contract claim.

3. Motion for a Mistrial

GEICO’s final challenge on appeal is that the district court erred by denying its

motion for a mistrial based on two comments made by Semler’s counsel about GEICO’s

wealth during closing arguments. GEICO contends that these comments were “highly

4

(...continued)

whether a tire tread in the roadway could provide the necessary connection between

plaintiff’s vehicle and a hit-and-run vehicle to show that a hit-and-run vehicle caused

plaintiff’s accident); Bingenheimer v. State Farm Mut. Auto. Ins. Co., 100 P.3d 1132,

1134-35 (Or. Ct. App. 2004) (analyzing whether the existence of a foreign substance on

the road could support an inference that a phantom driver’s negligence caused the

substance to be there); Tuttle v. Allstate Ins. Co., 138 P.3d 1107, 1112 (Wash. Ct. App.

2006) (similar).

5

 We note that GEICO did move at trial for judgment as a matter of law under Fed.

R. Civ. P. 50(a) after Semler’s case-in-chief. But GEICO did not renew the motion by

filing a Fed. R. Civ. P. 50(b) motion after the jury verdict. GEICO’s “failure to comply

with Rule 50(b) forecloses its challenge to the sufficiency of the evidence.” Unitherm

Food Sys., Inc., 546 U.S. 394, 404 (2006). Thus, even if GEICO had properly appealed

the denial of its Rule 50(a) motion, which it did not, its challenge to the sufficiency of the

evidence would still be waived. The cases upon which GEICO relies to suggest that a

Rule 50(a) motion is all that is required, see e.g., Wolfgang v. Mid-America Motorsports,

Inc., 111 F.3d 1515 (10th Cir. 1997), were decided prior to the Supreme Court’s decision

in Unitherm Food Sys., Inc. and are inapplicable.

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inflammatory,” done to “create prejudice in the minds of the jury,” and are sufficient to

require us to reverse and remand for a new trial. Aplee. Br. at 62. We disagree.

“We review [a] district court’s denial of a motion for mistrial for abuse of

discretion.” Rios v. Bigler, 67 F.3d 1543, 1550 (10th Cir. 1995). “‘In deciding whether

the court abused its discretion, we assume that the trial judge is in the best position to

determine whether an incident was so serious as to warrant a mistrial.’” Id. (quoting

Raybestos Prods. Co. v. Younger, 54 F.3d 1234, 1239 (7th Cir. 1995)).

When “reviewing the issue of improper closing argument, we . . . exercise[] great

caution in setting aside a judgment because of such remarks.” Lambert v. Midwest City

Mem’l Hosp. Auth., 671 F.2d 372, 375 (10th Cir. 1982). “Mistrial is not justified if an

affirmative direction to disregard is issued to the jury and it does not clearly appear that

the challenged remarks influenced the verdict.” Orjias v. Stevenson, 31 F.3d 995, 1006

(10th Cir. 1994). However, reversible error “does occur when counsel’s closing remarks

introduce extraneous matter which has a reasonable probability of influencing the jury.” 

Lambert, 671 F.2d at 375.

While it was improper for Semler’s counsel to bring up GEICO’s wealth, see

Garcia v. Sam Tanksley Trucking, Inc., 708 F.2d 519, 522 (10th Cir. 1983), reversal is

not required in this case because the statements did not constitute prejudicial error. Id.;

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240 (1940). These remarks were

“minor aberrations” made in passing; they were “not cumulative evidence of a proceeding

dominated by passion and prejudice.” Socony-Vacuum Oil Co., 310 U.S. at 240. 

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Semler’s counsel did not overemphasize GEICO’s wealth, nor did he linger on it. Rather,

he brought it up in passing as he challenged the credibility and veracity of GEICO’s

witnesses. We have consistently held that “only where counsel truly overemphasizes an

improper argument will we find the requisite prejudice and order a new trial.” King v.

PA Consulting Group, Inc., 485 F.3d 577, 591 (10th Cir. 2007) (citing Smith v. Atl.

Richfield Co., 814 F.2d 1481, 1488 (10th Cir. 1987)); see also Whittenburg v. Werner

Enterprises Inc., 561 F.3d 1122, 1131 (10th Cir. 2009). Because there was no such

overemphasis here, the district court did not abuse its discretion in denying GEICO’s

motion for a new trial.

Moreover, the district court issued a curative instruction immediately after

GEICO’s objection. Curative instructions that are “issued promptly after the improper

argument” and that “specifically address[] the precise impropriety complained of . . . can

go far in erasing prejudice occasioned by an improper remark.” Whittenburg, 561 F.3d at

1131. And even though the curative instruction in this case was merely a general

instruction reminding the jury that counsel’s arguments were not evidence, general

instructions can still help mitigate the influence of an improper closing argument,

especially where, as here, the improper statements were minor and the curative instruction

was issued promptly after an objection was made. Id.; United States v. Roberts, 185 F.3d

1125, 1144 (10th Cir. 1999).

Finally, the jury’s finding that Semler was not at fault for the accident does not, as

GEICO suggests, demonstrate prejudice sufficient to warrant a new trial. Although

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Semler’s own expert did testify that “a combination of both” the tire tread and Semler’s

driving “probably” caused Semler’s SUV to go into the bridge, see Supp. App. at 190,

that fact alone does not indicate that the jury’s verdict was improper or the result of

prejudice. There was ample evidence presented to the jury to support its finding that

Semler was not negligent, including that it was dark at the time of the accident, that

Semler had a short amount of time to react, and that a driver’s natural response to seeing

an object in the road is to swerve to avoid it. And the jury certainly could have decided to

give minimal to no weight to the testimony of Semler’s expert. See United States v.

Oliver, 278 F.3d 1035, 1043 (10th Cir. 2001) (noting that “it is solely within the province

of the jury, to weigh this expert testimony” (internal quotation marks omitted));

Boxberger v. Martin, 552 P.2d 370, 375 (Okla. 1976). Accordingly, the district court did

not abuse its discretion in denying GEICO’s motion for a mistrial.

III

For the foregoing reasons, we AFFIRM the district court.

Entered for the Court

Mary Beck Briscoe

Chief Judge 

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