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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Benjamin McClure, 

Plaintiff, 

v. 

Country Life Insurance Company, et al., 

Defendants. 

No. CV-15-02597-PHX-DLR 

ORDER 

 Following a ten-day trial in September 2017, the jury returned a verdict in favor of 

Plaintiff Benjamin McClure on his breach of contract and insurance bad faith claims. 

The jury found that Defendants Country Life Insurance Company (“Country Life”) and 

CC Services Incorporated (“CCS”) were jointly liable for the conduct of the insurance 

adjusters handling Plaintiff’s claim. On the breach of contract claim, the jury awarded 

Plaintiff $23,469.35 for policy benefits and $1,245.74 for un-refunded premiums. On the 

bad faith claim, the jury awarded Plaintiff damages in the amount of $1,290,000.00 for 

emotional distress, humiliation, inconvenience, and anxiety; $45,000.00 for the loss of 

enjoyment of life; and $173,593.76 for policy benefits for the period in which the 

Plaintiff will be totally disabled in the future. The jury also awarded punitive damages in 

the amount of $2,500,000.00 against each defendant. 

 Before the Court is Defendants’ motion for new trial pursuant to Federal Rule of 

Civil Procedure 59 (Doc. 404), which includes a request relief pursuant to Rule 50 
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regarding the jury’s finding that Defendants were operating as a joint venture. The Court 

heard oral argument on July 10, 2018, and received supplemental briefs shortly 

thereafter. (Docs. 420, 424.) For reasons stated below, Defendants’ motion is granted in 

part and denied in part. 

I. Background 

Country Life issued a Disability Income Policy (“the Policy”) to Plaintiff in 1995. 

In late November 2012, Plaintiff suffered a head injury, was diagnosed with a 

concussion, and found by his doctor to be unable to work. Country Life accepted his 

claim for disability under the Policy in March 2013. Country Life paid Plaintiff’s claim 

for about thirteen months, but terminated it on April 23, 2014. After Plaintiff filed this 

action, Country Life reconsidered its termination and agreed to pay benefits dating back 

to June 16, 2014. Although Country Life reinstated benefits, it continued to deny 

Plaintiff’s disability claim for the period between April 23, 2014 and June 16, 2014. 

 At trial, Plaintiff contended that he was disabled because of severe depression and 

that, Country Life and CCS (acting jointly) terminated his claim without a reasonable 

basis and adequate investigation, ignored medical facts that supported the claim, and 

misinterpreted medical facts to their advantage. Plaintiff also contended that he was 

especially vulnerable and susceptible to emotional injury, and that the bad faith 

termination of benefits exacerbated his depression, resulting in extreme emotional 

distress and suicidal ideations for which he was hospitalized a number of times. 

 Plaintiff presented evidence that CCS employed all those at Country Life with 

responsibility for handling Plaintiff’s claim, and that Country Life controlled the conduct 

of the CCS employees. Defendants maintained that they were not operating as a joint 

venture, did not act in bad faith, and had a reasonable basis for terminating Plaintiff’s 

claim. 

 Defendants seek a new trial on the ground that prejudicial errors on material issues 

unfairly distorted the evidence, resulting in jury confusion and determinations based on 

passion or prejudices as opposed to the evidence and instructions. Plaintiff responds that 
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the evidence was fairly presented, Defendants’ motion argues facts rejected by the jury, 

and allegations that the jury was confused and its verdict was based on passion or 

prejudice are conclusory. 

II. Standard of Review 

 “The court may, on motion, grant a new trial on all or some of the issues . . . after 

a jury trial, for any reason for which a new trial has heretofore been granted in an action 

at law in federal court[.]” Fed. R. Civ. P. 59(a)(1)(A). For example, a court may order a 

new trial if the verdict is “against the great weight of the evidence” or if “it is quite clear 

that the jury has reached a seriously erroneous result.” Venegas v. Wagner, 831 F.2d 

1514, 1519 (9th Cir. 1987) (internal quotations and citation omitted). In making such a 

determination, “[t]he judge can weigh the evidence and assess the credibility of 

witnesses, and need not view the evidence from the perspective most favorable to the 

prevailing party.” Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 

1371 (9th Cir. 1987). However, “a decent respect for the collective wisdom of the jury, 

and for the function entrusted to it in our system, certainly suggests that in most cases the 

judge should accept the findings of the jury, regardless of his own doubts in the matter.” 

Id. (internal quotation and citation omitted). 

III. Discussion. 

 A. Limitations on Defense Expert’s Testimony 

 Defendants called Ms. Roberts as a trial witness to opine as an expert on bad faith. 

After Defense counsel laid the foundation for Ms. Roberts’ qualifications, counsel for 

Plaintiff conducted a “voir dire” of her, which revealed that Ms. Roberts’ definition of 

insurance bad faith was not consistent with the definition utilized by Arizona courts. 

Plaintiff then made an untimely challenge to Ms. Roberts’ testimony under Federal Rules 

of Evidence 702(c) and (d). Despite the untimeliness of the challenge, the Court 

considered it on its merits. After reviewing the witness’s deposition, the Court found that 

her definition of bad faith was inconsistent with Arizona law. The Court ruled that she 

could not opine that Defendants’ conduct amounted to good faith or bad faith because 
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such opinions either were not the product of reliable principles or did not reliably apply 

the principles. (Trial Tr. at 1411:2-5.) The Court also ruled, however, that Ms. Roberts 

could testify about the Country Life procedures used to prevent bad faith, and that she 

could give her opinions on whether Country Life acted reasonably in adjusting the claim. 

(Trial Tr. at 1319:7-15.) 

 The objective of the trial court’s gatekeeping function, described in Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), is 

to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony 

upon professional studies or personal experience, employs in 

the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. . . 

. [T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. 

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Defendants have not 

shown that the Court erred in limiting Ms. Roberts’ testimony as part of its gatekeeping 

role. This case turned on Arizona law governing bad faith claims. Because Ms. Roberts’ 

definition of bad faith differed from that of Arizona courts, any opinions she could offer 

on whether Defendants’ conduct amounted to bad faith would not have been reliable. 

 Ms. Roberts’ opinions on whether Defendants acted in bad faith also were 

inadmissible because they were opinions on an ultimate issue of law. Although Rule 704 

provides that expert testimony that is “otherwise admissible is not objectionable because 

it embraces an ultimate issue to be decided by the trier of fact,” “an expert witness cannot 

give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” 

Mukhtar v. Cal. State Univ. Hayward, 299 F.3d 1053, 1066 n. 10 (9th Cir.2002), 

overruled on other grounds by Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th 

Cir. 2014). Similarly, instructing the jury on the applicable law “is the distinct and 

exclusive province” of the court. United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th 

Cir.1993) (internal quotations and citation omitted). 

 Limiting Ms. Roberts’ opinions did not prejudice Defendants. Ms. Roberts was 
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allowed to give all of her relevant and otherwise admissible opinions. She testified that 

Country Life acted reasonably in the adjustment of Plaintiff’s claim; that County Life’s 

claims handling process was reasonable; and that Country Life’s process reasonably 

provided for the claims to be investigated, facts compared to the policy, damages 

documented, medical reports reviewed when received, and a nurse to help interpret the 

records. (Trial Tr. at 1322:11-1323:11.) 

 Ms. Roberts addressed Plaintiff’s accusations that Defendants’ investigation was 

inadequate. She testified that the investigation was reasonable despite the failure to 

obtain certain hospital records because the hospital records were irrelevant. She 

explained that adjusters are not required to do a “scorched earth to obtain every scrap of 

medical information about a claimant.” (Trial Tr. at 1323:13-1324:8.) She testified that 

the adjusters acted reasonably when they made the payments timely and when, without 

prompting, they advised Plaintiff that he no longer had to pay premiums after he had been 

on disability for a certain period. She testified that, contrary to Plaintiff’s assertion, the 

decision to require Plaintiff to undergo an independent medical examination (“IME”) was 

reasonable and that Plaintiff’s contention that the adjuster should have called Plaintiff’s 

treating physicians was unheard of. Ms. Roberts explained, “I’ve never known an 

adjuster to call a physician directly” and opined that it was reasonable for the adjusters 

not to attempt to talk to Plaintiff’s physicians. (Trial Tr. at 1324:9-1326:11.) She 

testified to the reasonableness of Country Life’s decision to reinstate benefits when it did. 

Ms. Roberts also was not precluded from rebutting the opinions of Plaintiff’s expert, Ms. 

Fuller, whose analysis and opinions Ms. Roberts criticized. (Trial Tr. at 1331:1-

1332:10.) 

 Defendants identify four opinions that they claim Ms. Roberts was prejudicially 

precluded from offering. The Court’s ruling was narrow, however, and based on the 

witness’s misunderstanding of the applicable definition of bad faith. The Court 

precluded none of the four opinions Defendants identify. Had these four opinions been 

offered, however, they would have been inadmissible for reasons other than Rule 702(c). 
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 Ms. Roberts’ opinion that there was no evidence that the claims adjuster was 

financially motivated to harm Plaintiff is not a proper expert opinion. Fed. R. Civ. P. 

702(a). A jury can make its own determination of whether financial incentives 

motivated a certain action without the assistance of expert witness testimony. Likewise, 

Ms. Roberts’ opinion that any wrongful termination of claim benefits must have been a 

mistake because she found no indication of any intent to harm Plaintiff is not relevant, 

nor would the opinion have been helpful to the jury. Ms. Roberts’ opinion that people are 

not perfect and make mistakes, which in her experience rarely constitutes bad faith, is 

irrelevant, not helpful to the jury, and amounts to a legal conclusion. Finally, Ms. 

Roberts’ opinion that case law does not require an insurer to prevent all harm and that an 

insurer should not be liable because of a good faith mistake in judgment so long as it acts 

honestly, addresses an ultimate issue of law and is an opinion that would not be helpful to 

the jury. Indeed, any point intended to be made by this opinion was adequately covered 

by the jury instructions. 

 Defendants additionally argue that the Court should have limited Plaintiff’s trial 

time, as it advised it would after the untimely challenge to Ms. Roberts’ opinions. 

Defendants do not argue legal error or prejudice. Defendants’ initial representation to the 

Court about the time needed to present their evidence was incorrect. Because the defense 

did not need the amount of trial time the Court initially was lead to believe was needed, 

the Court found that it was not necessary to assess against Plaintiff’s allotted time the 

delay occasioned by the untimely challenge to Ms. Roberts. Defendants had ample time 

to present their case and therefore were not prejudiced. (Trial Tr. at 1365:14-24; 

1415:11.) Defendants also complain that the curative instruction given to the jury was 

inadequate to cure the perceived error of not letting Ms. Roberts opine on whether 

Defendants acted in bad faith. The instruction the Court gave was proposed by 

Defendants and agreed to as modified. (Trial Tr. at 1567:4-10.) The instruction was not 

intended to address the limits on Ms. Roberts’ opinions; it was intended to address any 

negative perceptions by the jury from the “voir-dire” that occurred during her direct 
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examination. The instruction was adequate for its intended purpose and Defendants were 

not prejudiced. 

B. The Emotional Distress Award 

 Defendants argue that there was insufficient evidence that they caused Plaintiff 

significant emotional distress. Defendants argue that the jury’s award had to have been 

based on improper speculation because there were no medical records and no medical 

testimony stating that his worsening condition was caused by Defendants’ decision to 

terminate his benefits. 

 Plaintiff bears the burden of proof on the issue of proximate cause. Under Arizona 

law, “[t]he proximate cause of an injury is that which, in a natural and continuous 

sequence, unbroken by any efficient intervening cause, produces an injury, and without 

which the injury would not have occurred.” McDowell v. Davis, 448 P.2d 869, 871 

(Ariz. 1968) (internal quotations and citation omitted), superseded on other grounds by 

statute as stated in Cheney v. Ariz. Super. Ct. for Maricopa Cty., 698 P.2d 691 (Ariz. 

1985). Defendants’ act or omission need not be a “large” or “abundant” cause of the 

injury; even if Defendants’ conduct contributes “only a little” to Plaintiff's damages, 

liability exists if the damages would not have occurred but for that conduct. Ontiveros v. 

Borak, 667 P.2d 200, 205 (Ariz. 1983). Plaintiff need only present probable facts from 

which the causal relationship reasonably may be inferred. Purcell v. Zimbelman, 500 

P.2d 335, 342 (Ariz. Ct. App. 1972). 

 Defendants cite no authority for their suggestion that proof of causation under the 

facts of this case required expert testimony or reference in medical records. The causal 

relationship between Defendants’ conduct and Plaintiff’s emotional distress could have 

been readily apparent to the trier of fact. The testimony of those familiar with Plaintiff, 

his situation, and the effects the termination of benefits had on him was sufficient 

evidence from which a jury could infer that Plaintiff’s emotional stress was brought about 

by Defendants’ conduct. 

 For example, the jury heard the chronology of events. Plaintiff, who was totally 
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disabled and unable to work, had his benefits terminated for almost two years before they 

were partially reinstated after he hired a lawyer and filed suit. Plaintiff, his wife, 

Brandon Figg, and Dr. Turner testified about the stress Plaintiff experienced and that they 

observed him experience resulting from the termination of benefits. The witnesses’ 

testimony painted a picture of emotional pain brought on by the uncertainties of the 

family finances and of their future, resulting from the termination and the coverage battle 

with Defendants, all of which came at a time when Plaintiff was vulnerable and 

experiencing severe depression. There was sufficient evidence from which the jury could 

infer that Plaintiff’s preexisting emotional distress was aggravated by the stress and 

humiliation of having to rely on the charity of friends. 

 Defendants challenge the amount of the award, claiming it had to be based on 

improper motives when it is viewed against awards in other cases. Defendants argue that 

the award here is not justified because the emotional distress was not severe and 

permanent, suggesting that others in Plaintiff’s situation would not have suffered severe 

emotional distress. But there was ample evidence supporting the jury’s verdict for 

emotional distress. The evidence showed that Plaintiff was suffering from a preexisting 

condition and that Defendants’ bad faith termination of his claim made his condition 

worse. The jury verdict was consistent with the “Pre-Existing Condition, Unusually 

Susceptible Plaintiff” jury instruction, which instructed the jury, in relevant part, as 

follows: 

[I]f Mr. McClure had any preexisting physical or emotional condition that was aggravated or made worse by Country Life’s fault, you must decide the full amount of money that 

will reasonably and fairly compensate Ben McClure for that 

aggravation or worsening. . . . even if Mr. McClure was more 

susceptible to injury than a normally healthy person would have been[.] 

(Doc. 384 at 34.) 

 Defendants’ argument that the stress was not permanent because they resumed 

Plaintiff’s benefits is without merit. The emotional distress, depression, and anxiety 

caused by Defendants’ bad faith conduct did not turn on and off like a water hose. There 
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was sufficient evidence for the jury to find that Plaintiff’s emotional condition was 

aggravated by Defendants’ actions and that he continued to live in the aggravated state 

well after the benefits resumed. 

C. Joint Venture Within the Corporate Family 

 Defendants request Rule 50 relief from the jury’s finding that they were operating 

as a joint venture, but also argue that relief under Rule 59 would be appropriate for the 

same reasons. They argue that, as a matter of law, there can be no joint venture because 

Defendants are part of the same corporate family, wholly owned by Illinois Agricultural 

Holding Company. 

 Rule 50 relief is not available to Defendants because they did not raise this issue in 

their initial, pre-verdict Rule 50 motion. (Trial Tr. at 1255-65.) “The failure to raise this 

issue prior to the return of the verdict results in a complete waiver, precluding [the 

Court’s] consideration of the merits of the issue.” Zhang v. Am. Gem Seafoods, Inc., 339 

F.3d 1020, 1028-29 (9th Cir. 2003); see also Freund v. Nycomed Amersham, 347 F.3d 

752, 761 (9th Cir. 2003) (“A party cannot raise arguments in its post-trial motion for 

judgment as a matter of law under Rule 50(b) that it did not raise in its preverdict Rule 

50(a) motion.”). 

 Even assuming there has been no waiver, or considering Defendants’ request 

under the rubric of Rule 59, Defendants’ argument fails on the merits. Defendants are 

separate entities. They enjoy the advantages of being separate, independent entities. The 

legal authority offered by Defendants, Helfenbein v. Barae Investment Co., 508 P.2d 101, 

104 (Ariz. Ct. App. 1973), does not support their argument. Defendants are not 

immunized from the jury’s joint venture finding simply because they are part of the same 

extensive corporate family. Arizona courts have held that a third party administering 

claims, as was the case here, may be found to be engaged in a joint venture with the 

contracting insurer. See, e.g., Sparks v. Republic Nat’l Life Ins. Co., 647 P.2d 1127, 

1137-38 (Ariz. 1982); Farr v. Transamerica Occidental Life Ins. Co. of Cal., 699 P.2d 

376, 385-86 (Ariz. Ct. App. 1984). 
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D. The Sufficiency of Evidence of a Joint Venture 

 Defendants argue that there is no evidence that they engaged in a joint venture. A 

joint venture requires “an agreement, a common purpose, a community of interest, and an 

equal right of control.” Sparks, 647 P.2d 1127, 1138 (Ariz. 1982). There was evidence 

presented to support all of these requirements. 

 First, there was evidence of an agreement and common purpose for Country Life 

to issue the policies and received the premiums, and for CCS to provide the personnel 

who performed the claim handling responsibilities. (Doc. 309 at 4, ¶ K.) 

 Second, there was community interest in the shared bonus program. The bonus 

program for both Defendants shared the same objectives and both had a shared interest in 

Country Life’s financial performance. Chad Carpenter, who is employed by CCS and 

manages the claims operation that handled Plaintiff’s claim, testified that the bonus 

program for CCS employees is “based on the operating results from all the companies,” 

including Country Life. (Trial Tr. at 1476:8-21.) CCS employees are updated about the 

financial results that impact their bonuses. They are encouraged to “make a positive 

impact” on those financial results, and reminded that “profitability” is a “measure [of] our 

progress.” (Doc. 411-8.) 

 Indeed, Defendants’ community of interest was such that they were treated as a 

single unit throughout the trial and employed the same lawyers in the defense of the case. 

Their community of interest was so close that Mr. Anderson, the in-house attorney who 

supervised and terminated Plaintiff’s claim, was not even sure which company was his 

employer. (Trial Tr. at 1167:7-20); see Ceimo v. Gen. Am. Life Ins. Co., No. 2:00-CV1386 FJM, 2003 WL 25481095, at *1 (D. Ariz. Sept. 17, 2003) (finding the evidence 

“was more than sufficient” on alter ego and joint venture and denying the defendants’ 

Rule 50(b) motion, considering “they not only retained the same lawyers, but were, for 

the most part, treated as a single unit throughout the trial”), aff’d by 137 Fed. App’x 968, 

969 (9th Cir. 2005) (“A company may be liable to an insured based on its direct 

involvement in the insured’s claim, regardless of its status as a non-party to the 
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contract.”). 

 As for the final element, under Arizona law “equal right to control” does not mean 

that each venturer has “an equivalent amount of control over the venture’s operation[.]”

Estate of Hernandez v. Flavio, 930 P.2d 1309, 1313 (Ariz. 1977). Rather, “each joint 

venturer must share, to some extent, in the control of the venture. In other words, it is 

sufficient that a venturer has some voice or right to be heard in the control and 

management of the venture.” Id. The evidence at trial showed that, although Country 

Life issued Plaintiff’s disability policy and received his premiums, it was CCS that 

performed all claim handling responsibilities and denied Plaintiff’s claim. (Doc. 309 at 4, 

¶ K.) 

 Further, Farr indicates that the right of control can be established by the nature of 

the relationship. Relying on Sparks, the Farr Court explained: 

Sparks turns upon the idea that the insurer and its agent are engaged in a joint venture so that each is jointly and severally liable with the other for a bad faith refusal to pay. . . . [W]e note that here there was no proof of profit and loss sharing 

and no proof of a joint right to control. Thus, the classical 

elements of a joint venture are missing. But if that is true here, it was also true in Sparks. In Sparks the court found that 

a company that issued certificates of coverage, billed and collected premiums, handled the investigation and payment of claims, and distributed brochures to induce the purchase of policies was engaged in a joint venture with the insurer so 

that both owed a common duty to the insureds to act in good faith. 

Farr, 699 P.2d at 386. Based on similar evidence, the jury reasonably found the 

existence of a joint venture here. 

E. The Evidence to Support an Award of Punitive Damages 

Defendants argue that there was not clear and convincing evidence of conduct by 

each Defendant to justify both punitive damage verdicts. In an insurance bad faith case, 

the plaintiff must prove “a willful and knowing failure to process or pay a claim known to 

be valid” to support an award of punitive damages. Id. at 383. The requisite mental state 

necessary to justify an award of punitive damages may also be shown with evidence of (1) 

fraud in connection with denying the claim, (2) “[d]eliberate, overt and dishonest
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dealings,” Id. at 383-84, and (3) other conduct that “is sufficiently oppressive, outrageous 

or intolerable,” Hawkins v. Allstate Ins. Co., 733 P.2d 1073, 1080 (Ariz. 1987) (internal 

quotations and citation omitted). See also Rawlings v. Apodaca, 726 P.2d 565, at 578 

(Ariz. 1986) (concluding that conscious disregard of significant harm to insured warrants 

punitive damages). The “clear and convincing” proof of the mental state necessary for 

punitive damages often comes “from defendant’s expressions, conduct, or objectives,” 

and other “indirect and circumstantial evidence.” Thompson v. Better-Bilt Aluminum 

Prod. Co., 832 P.2d 203, 210 (Ariz. 1992) (internal quotations and citation omitted). 

 Plaintiff presented evidence at trial from which the jury could conclude that 

Country Life terminated a claim it knew was valid. The evidence indicated that when 

Country Life, acting through CCS employees, terminated the claim in April 2014, it 

knew: (1) the medical evidence and Plaintiff’s treating doctors supported the claim up to 

that point, (2) there was no basis to question or reject their opinions, (3) Country Life did 

not question the validity of Plaintiff’s depression and anxiety, (4) the IME was 

“inconclusive” at best and actually verified continuing depression, and (5) Dr. Borgaro’s 

testing in December 2013 revealed “severe depression” on the PAI test, supporting this 

claim. 

 Defendants argue that “there would not have been clear and convincing evidence 

of an evil mind had Ms. Roberts been permitted to testify in full.” As discussed above, 

however, the limitation placed on Ms. Roberts’ testimony prevented her only from 

rendering a legal opinion on whether Defendants’ conduct amounted to bad faith. She 

was allowed to and did testify on all other subjects, including the reasonableness of 

Defendants’ conduct, and her challenges to Plaintiff’s expert and Plaintiff’s accusations 

about the adequacy of the investigation. 

 Defendants argue that there was no evidence they acted with the requisite mental 

state because the termination of benefits was a mistake. The evidence showed, however, 

that Defendants essentially ratified the termination in November 2016, and the adjuster 

who made that decision, Spellmeyer, testified that she would make the decision again 
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today. 

 Defendants argue that Plaintiff presented no evidence that they unjustly 

disregarded a substantial risk of harm to him. Adjuster Spellmeyer, however, admitted to 

knowing that Plaintiff suffered from major depressive disorder and panic attacks, that she

was aware that Plaintiff’s treating doctors believed he continued suffering disabling

depression, and the there was no basis to reject their opinions. (Doc. 359-3 at 8, 13, 17, 

29.) Spellmeyer knew both Dr. Strupinsky’s and Dr. Borgaro’s IME reports specifically 

indicated Plaintiff continued to suffer from depression, was anxious over his lack of 

income, and was struggling emotionally—having been hospitalized as suicidal. Both 

Spellmeyer and Anderson knew that Plaintiff could be sent into the severely impaired 

range when anxious. (Trial Tr. at 982:24-983:10; Doc. 359-3 at 19.) Spellmeyer 

admitted knowing that terminating disability benefits could be devastating. (Doc. 359-3 

at 8.) There was sufficient evidence for the jury to find that Defendants terminated 

benefits knowing that the medical evidence supported the claim and knowing the risks of 

the devastating consequences of terminating benefits. 

 Additionally, there was evidence that Defendants misrepresented the medical 

evidence to justify the termination of benefits. For example, there was evidence of a 

misrepresentation that occurred in the termination letter when Spellmeyer told Plaintiff 

that his treating doctors did not document “any loss of physical/mental health 

function.” There also was evidence that Spellmeyer knew Plaintiff’s doctors continued 

to support disability. County Life also knew Dr. Borgaro’s December 2013 IME report 

revealed severe depression on the PAI test and Strupinski’s IME showed continuing 

depression and anxiety. See, e.g., Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 

998, 1010-11 (9th Cir. 2004) (noting that letter terminating benefits could be found 

misleading and deceptive); Verhulst v. Gen. Am. Life Ins. Co., No. CV-03-0858-PCTJAT, 2005 WL 2371860, at *5 n.4, 7 (D. Ariz. Sept. 26, 2005) (allowing punitive 

damages to be considered at trial where insurer misrepresented that the treating doctor 

believed the insured was “stable”). 
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 The evidence of oppressive and outrageous conduct included the intentional 

creation of financial conflicts of interest for claims staff. For example, there was 

evidence that financial conflicts created incentives for claims adjusters to look for ways 

to terminate Plaintiff’s claim. Ms. Fuller explained how Defendants’ bonus and 

incentive pay plans make claim handlers inappropriately accountable for contributing to 

the achievement of financial goals. (Trial Tr. at 359-60.) Company documents 

conveyed that everyone should be focused on meeting the financial objectives, including 

those in the claim operation, and personal interests are aligned with meeting the corporate 

financial goals. (Trial Tr. at 360-61.) Ms. Fuller explained that it is inappropriate, 

however, to ask those making decisions on claims to be focused on company financial 

objectives. (Trial Tr. at 361, 369-70.) She testified that claim handlers can influence 

profitability only by rejecting new claims or terminating claims that are already in pay 

status. (Trial Tr. at 368-69.) Therefore, tasking claims personnel with concerns about 

company profits inappropriately places them in an inherent conflict of interest. By 

creating a financial incentive to wrongfully terminate claims, adjusters can be motivated 

to avoid their responsibility to treat insureds equally and honor all legitimate claims. 

(Trial Tr. at 245.) Ms. Fuller testified that Defendants’ bonus arrangement encouraged 

adjusters to deny and terminate claims, and that in her opinion the financial performance 

of the company should not bear on how the claims organization is operated. (Trial Tr. at 

361.) 

 Lastly, the evidence demonstrated that, in the early months of 2014, the year 

Plaintiff’s claim was terminated, Country Life was experiencing much higher new claim 

activity and higher reserves. (Trial Tr. 362-67.) Reserves released from terminated 

claims began increasing in April 2014. (Trial Tr. 368.) In sum, the evidence was 

sufficient to support a finding that Country Life acted dishonestly to serve its own 

interests. 

F. Separate Punitive Damages Against Each Defendant 

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because there was no evidence that each Defendant acted with the request mental state. 

Defendants further argue that they cannot be held individually responsible for the acts of 

the claims adjusters because there no evidence establishing for which Defendant the 

adjusters were acting. Defendants argue that two punitive damages awards show that the 

jury was both confused and inflamed by passion. 

 Defendants’ arguments fail to recognize that, under Arizona law, a principal may 

be held responsible for punitive damages for the conduct of its agent without any 

showing of the principal’s mental state. Mendoza v. McDonald's Corp., 213 P.3d 288, 

305 (Ariz. Ct. App. 2009); Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 907 

P.2d 506, 516 (Ariz. Ct. App.1995); see also Haralson v. Fisher Surveying, Inc., 31 P.3d 

114, 119-20 (Ariz. 2001) (rule in Arizona is that punitive damages may be awarded 

against employer for acts of employee as long as acts committed in furtherance of 

employer’s business and within scope of employment); Echols v. Beauty Built Homes, 

Inc., 647 P.2d 629, 633 (Ariz. 1982). 

 Defendants argue that Plaintiff had not pled or presented to the jury the theory of 

vicarious damages for punitive damages. The entire case, however, was premised on 

respondeat superior liability. No individual employee was named as a defendant, 

although it was the individual adjusters’ conduct that formed the basis of Plaintiff’s 

claims. The jury was instructed, without objection, that “a corporation is responsible for 

the acts of its employees, agents, directors, and officers performed within the scope of 

authority.” (Doc. 384 at 17.) 

 In support of their argument that the respondeat superior theory was not previously 

introduced, Defendants point to the failure to give the Revised Arizona Jury Instruction 

for respondeat superior liability. The instruction the Court gave, however, is a portion of 

that Arizona instruction. The Use Note accompanying the Revised Arizona Jury 

Instruction states that the portion of the respondeat superior instruction that the Court 

gave here is to be used “if there is no dispute about the existence of respondeat superior 

liability.” The Use Note also indicates that the second portion of the instruction, which 
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the Court did not give, is to be used “if there is a dispute about the existence of 

respondeat superior liability.” There was no dispute during trial about respondeat 

superior liability and there was no request by Defendants for the second portion of the 

instruction to be given. 

Because the jury found that Defendants were acting as a joint enterprise, with 

equal right of control, an award of punitive damages against each as a result of the 

actions of the employees working for the joint enterprise is allowed. “The reason for 

allowing punitive damages against the corporation is the supposed deterrent effect. 

Indeed, “[t]he reason for allowing punitive damages against the corporation is the 

supposed deterrent effect. The allowance of such damages will encourage employers to 

exercise close control over their servants for the prevention of outrageous torts.” State v. 

Sanchez, 579 P.2d 568, 570 (Ariz. Ct. App. 1978); see also Wilson v. Riley Whittle, Inc., 

701 P.2d 575, 580-81 (Ariz. Ct. App. 1984). 

 Defendants’ arguments that Plaintiff failed to prove which Defendant employed 

the culpable employees and that Plaintiff did not allege an aiding and abetting claim are 

not relevant in light of the finding by the jury of the existence of a joint enterprise. The 

finding of a joint venture also eliminates Defendants’ concern that there was no 

“common employee” inquiry. There was no need to determine whether a general 

employer remained vicariously liable for the acts of employees it has contracted out to 

another. Where a joint venture exists, each of the parties is the agent of the other and 

each is likewise a principal of the other “so that the act of one is the act of all.” West v. 

Soto, 336 P.2d 153, 157 (Ariz. 1959). 

 The separate assessment of punitive damages does not indicate that the jury was 

confused or inflamed by passion. The Court finds that the punitive damages were not 

excessive nor was the jury confused by the evidence or the instructions. The instructions 

advised the jury that the determination of joint liability is independent of its assessment 

of punitive damages, and that, if assessed, punitive damages shall be assessed as to each 

Defendant separately. The jury, following those instructions, arrived at a separate 
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punitive damage verdict for each Defendant. The acts and conduct of each company’s 

employees and agents form the basis of a punitive damage award as to each company. 

Although Country Life delegated the duty of adjusting the claim to adjusters employed 

by CCS, it remained liable for the actions taken by those adjusters because the duty of 

good faith is not delegable. Walter v. F.J. Simmons & Others, 818 P.2d 214, 222 (Ariz 

Ct. App. 1991). Relatedly, because the jury found that Country Life and CCS were 

engaged in a joint venture, the act of one is the act of both. With these principals in 

mind, the jury’s separate punitive damages awards are consistent with the deterrence 

goals underlying such damages. 

G. Exhibit 55 

 At trial, Plaintiffs offered Exhibit 55, a Certified Copy of the Annual Statement of 

Country Life Insurance Company for the year 2016 filed with the Arizona Department of 

Insurance, to show Country Life’s net worth. (Doc. 404-3.) A company’s net worth, 

defined as “‘the excess of total assets over total liabilities,’ can readily be calculated by 

reference to its financial statement[.]” Metro. Bus. Mgmt., Inc. v. Allstate Ins. Co., No. 

CV 05-8306CAS (CWX), 2009 WL 2424291, at *3 (C.D. Cal. Aug. 6, 2009) (internal 

quotations and citation omitted), aff'd, 448 F. App’x 677 (9th Cir. 2011). 

 Defendants objected to the exhibit’s admission, arguing that it is confusing and is 

irrelevant without explanation. Defendants do not argue that Exhibit 55 lacked 

authentication or that the information contained in Exhibit 55 is irrelevant per se, but 

instead that it is irrelevant without context. The Court agreed that some of the 

information could be confusing, but concluded that that the relevant portions—the total 

assets and total liabilities—were not confusing and did not require testimony in order to 

be understood by a jury. (Trial Tr. at 1519:15-1526:16.) When Exhibit 55 was allowed 

into evidence, Plaintiff’s counsel therefore was limited to addressing only total assets and 

liabilities. 

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admitted without testimony that gave context to the numbers contained in the exhibit, 
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they do not explain what additional information or context was necessary for the jury to 

understand what is meant by total assets and total liabilities. Exhibit 55 was relevant and 

not unfairly prejudicial to Defendants. The information in Exhibit 55 allowed a 

calculation of Country Life’s net worth (total assets minus total liabilities) and did not 

require explanation to be understood by the jury. 

H. The Ratio of Compensatory to Punitive Damages 

Defendants argue that the jury must have acted with passion and prejudice and that 

the punitive damages awards exceed constitutional limits because the ratio of punitive 

damages to compensatory damages is greater than one. Defendants’ argument is 

predicated on their belief that there was no evidence that their conduct was reprehensible. 

Even if Defendants were correct that their conduct was not reprehensible, however, the 

ratio of punitive to compensatory damages neither shows that the jury acted out of 

passion or prejudice nor exceeds constitutional limits. The jury award of $2.5 million for 

punitive damages is less than twice the awarded compensatory damages of 

$1,463,638.76. The ratio of punitive damages to compensatory damages, 1.7:1, therefore 

is well with constitutionally permissible limits. See Planned Parenthood of 

Columbia/Willamette Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 962 (9th Cir. 

2005).

 Moreover, the premise of Defendants’ argument is not supported by the evidence. 

There was substantial evidence to support a finding that Defendants’ conduct was 

reprehensible. The evidence showed, for example, that Defendants were indifferent to 

Plaintiff’s health and safety. Defendants improperly terminated Plaintiff’s benefits 

without proper investigation and despite his financial vulnerability, fragile emotional 

health, suicidal ideations, and the knowledge that additional stressors could worsen his 

health. There was evidence that some of the bad faith practices utilized against Plaintiff 

were practices used by Defendants in the past. (Trial Tr. at 342:2-25.) The harm caused 

to Plaintiff was immense. Plaintiff spiraled into further depression and suicidal thoughts 

leading to hospitalization after Defendants terminated his benefits. 
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 I. Breach of Contract Award for Retroactive SIR Benefits 

 The parties agree that the jury awarded retroactive SIR benefits, considering the 

amount of the award ($23,469.35). The parties also agree that a verdict for retroactive 

SIR benefits as damages for Plaintiff’s breach of contract claim is inconsistent with the 

Court’s ruling on Defendants’ pre-verdict Rule 50(a) motion. The Court had ruled that 

Plaintiff could not seek retroactive SIR benefits as contractual damages, but could seek 

those damages as part of his bad faith claim. The jury, however, found that Plaintiff 

suffered no such damages as a result of a breach of good faith and fair dealing. 

 Plaintiff argues that Defendants have waived any objection to the damage award 

because they did not provide the jury with an opportunity to clear up the inconsistency by 

raising the issue before the jury was released. Defendants argue that their failure to 

object is irrelevant because the verdicts were not internally inconsistent. 

 The Court agrees that this is not a case where the verdicts were internally 

inconsistent. The subject damages are not allowed as contract damages as a matter of 

law. The Court had previously granted Defendants’ Rule 50 motion and ordered that 

those damages could be pursued under a theory of bad faith, but not as a remedy for 

breach of contract. Because the Court granted the Rule 50 motion precluding those 

damages for breach of contract, there is no basis supporting the jury’s award of them. 

The jury found that the there were no bad faith damages for the retroactive SIR benefits. 

The Court therefore reaffirms its Rule 50 ruling and finds as a matter of law that the jury 

award of $23,469.35 for the policy benefits that Plaintiff would have received through the 

date of the trial is vacated. 

 J. Evidentiary Rulings 

 Defendants claim the Court erred by allowing the jury to consider punitive 

damages against CCS because there was no evidence of its wealth. Defendants do not 

identify any point during trial or arguments on jury instructions or verdict forms where 

such an objection was raised. Any such objection therefore has been waived. 

 Defendants argue that the Court erred by admitting Exhibit 94. Defendants’ 
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medical expert, Dr. Hendin, who has been performing IMEs since at least the early 1990s 

(mostly for insurance companies and defense attorneys), was asked to verify that, 

between 2008 and 2012, his office collected $2.4 million for those exams. When he 

stated that he could not verify that amount, Plaintiff offered Exhibit 94, an affidavit 

signed by Dr. Hendin’s partner setting forth information Dr. Hendin claimed he could not 

verify. Defendants objected that the exhibit was not proper impeachment. The Court 

overruled Defendants’ objection, however, and allowed the exhibit into evidence to show 

that the witness had a potential financial motive or bias. Defendants have not shown that 

the Court abused its discretion by allowing the admission of Exhibit 94, or that its 

admission was prejudicial. 

 Without identifying a rule of evidence, Defendants raise a new objection to 

Exhibit 94. Defendants claim that the line of questioning was inappropriate because Dr. 

Hendin did not have personal knowledge of the exact amount of money made by his 

firm’s performance of IMEs, even though that number was set forth in Exhibit 94, a 

document Dr. Hendin conceded was authored by his partner. (Trial Tr. at 778-82.) 

Defendants’ new objection is waived, as it was not raised at trial. Regardless, the exhibit 

was relevant and otherwise properly admitted. 

 Defendants argue that the Court favored Plaintiff in permitting Dr. Zacarri to offer 

opinion and fact testimony beyond what Plaintiff timely disclosed, compounding the 

error and prejudicial effect by admitting objectionable records from this witness. Dr. 

Zacarri provided ongoing counseling services to Plaintiff and his family. Plaintiff had 

disclosed Dr. Zacarri as a provider who was providing ongoing counseling. Plaintiff had 

difficulty obtaining Dr. Zacarri’s records, but disclosed them soon after obtaining them. 

After exploring the reason for the delayed disclosure and the contents of the records, the 

Court allowed them into evidence, finding that the delayed disclosure was substantially 

justified due to fact that Plaintiff notified Defendants that Dr. Zacarri was an ongoing 

treating medical provider and had made reasonably timely efforts to gather the records. 

The Court further found that allowing the late disclosed documents into evidence was 
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harmless. (Trial Tr. at 845-46.) Although Defendants argue that the late disclosure 

should not have been allowed, they do not argue that the Court was incorrect or that it 

abused its discretion when it found that the late disclosure was substantially justified and 

harmless. 

 Finally, Defendants challenge three rulings on objections to Ms. Fuller’s testimony 

and the admission of Exhibit 92. Regarding the objections to Ms. Fuller’s testimony, 

based on the portions of the record cited in Defendants’ motion, Defendants have not 

shown that the Court’s rulings were incorrect or an abuse of discretion. As to the 

objection to the admission of Exhibit 92, Defendants have not cited the testimony, 

objection, or arguments that occurred at the time of the exhibit’s admission. The Court 

will not search the entire record. Defendants present nothing to show that the Court 

improperly admitted the exhibit or that the admission was prejudicial. Accordingly, 

 IT IS ORDERED that Defendants’ motion (Doc. 404) is GRANTED IN PART 

AND DENIED IN PART. The Court reaffirms its prior ruling granting Defendants’ 

Rule 50 motion on the availability of retroactive SIR benefits as a damage for Plaintiff’s 

breach of contract claim. Consequently, the jury award of $23,469.35 as damages for 

breach of contract is vacated, as those damages are contrary to law and inconsistent with 

the Court’s prior ruling. The remainder of Defendants’ motion, including their request 

for a new trial, is denied. 

 Dated this 8th day of August, 2018. 

Douglas L. Rayes 

United States District Judge