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UDALL LAW FIRM, LLP 

ATTORNEYS AT LAW 

2198 E. Camelback Road, Suite 375 

Phoenix, AZ 85016 

Telephone: 602-222-4848 

Fax: 602-222-4858 

minuteentries@udalllaw.com 

Thomas P. Burke, II SBN 9631 

Elizabeth Fleming SBN 025322 

Bret S. Shaw SBN 31732 

Attorneys for Defendant 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Benjamin McClure, an individual, 

 Plaintiff, 

vs. 

Country Life Insurance Company, dba 

Country Financial, previously dba Country 

Companies; Does I-10; Roes 1-10; 

 Defendant. 

NO. CV15-02597-PHX-DLR 

DEFENDANTS’ TRIAL BRIEF 

REGARDING LUMP SUM 

BENEFIT 

 Defendants Country Life Insurance Company and CC Services ask that this Court 

consider the following when determining whether plaintiff may be owed future benefits. 

Defendants maintain that he is not owed future benefits given that his benefits are currently 

being paid and the policy has not been repudiated. 

The cases cited to by plaintiff in his jury instruction regarding this issue do not 

discuss a plaintiff receiving benefits at the time of the jury’s verdict. Hangarter v. Paul 

Revere Life Ins. Co., 373 F.3d. 998 (9th Cir. 2004); REA Express, Inc. v. Interway Corp., 

538 F.2d 953,955 (2nd Cir. 1976) (lawsuit related to breach of contract regarding stocks). 

Case 2:15-cv-02597-DLR Document 365 Filed 09/07/17 Page 1 of 3
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UDALL LAW FIRM, LLP

2198 E. CAMELBACK ROAD, SUITE 375 

PHOENIX, ARIZONA 850016 

(602) 222-4848 

“Other states have found that an award of future damages is consistent with the 

general tort requirement of “direct and proximate” causation where there is evidence that (1) 

the insured will continue to be “entitled” to disability benefits, and (2) the insurer will 

continue to deny those benefits. Thus, were the Arizona Supreme Court to address this 

issue, it would likely hold that future policy benefits may be awarded as compensatory 

damages.” Greenberg v. Paul Revere Life Ins. Co., 91 Fed. Appx. 539, 541–42 (9th Cir. 

2004). This case is also cited to by plaintiff in the jury instruction. It explicitly predicates 

the award of future damages upon an insurer continuing to deny benefits. 

The award of future benefits is generally based on the repudiation of the policy, 

which plaintiff has not alleged and Country Life has not done. Cipala v. Lincoln Tech. Inst., 

179 N.J. 45, 50, 843 A.2d 1069, 1072 (2004); Caporali v. Washington Nat. Ins. Co., 102 

Wis. 2d 669, 672, 307 N.W.2d 218, 220 (1981); Cont'l Cas. Co. v. Stephenson, 112 Ga. 

App. 666, 666, 145 S.E.2d 825, 827 (1965); Hage v. Unumprovident Corp., CIV. A. 04-

5933MLC, 2008 WL 5423954, at *9 (D.N.J. Dec. 29, 2008); Benefit Trust Life Ins. Co. v. 

Baker, 487 S.W.2d 406, 410 (Tex. Civ. App. 1972); Busse v. Paul Revere Life Ins. Co., 341 

Ill. App. 3d 589, 598, 793 N.E.2d 779, 786 (2003); Fanning v. Guardian Life Ins. Co. of 

Am., 59 Wash. 2d 101, 108, 366 P.2d 207, 211 (1961).. 

Defendants request that the jury not be instructed that plaintiff may be owed future 

benefits given that his benefits are currently being paid. 

DATED this 7th day of September, 2017. 

 UDALL LAW FIRM, LLP 

 /s/Bret S. Shaw 

 Thomas P. Burke, II 

 Elizabeth Fleming - 025322 

 Bret S. Shaw 

 Attorneys for Defendant 

 

Case 2:15-cv-02597-DLR Document 365 Filed 09/07/17 Page 2 of 3
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UDALL LAW FIRM, LLP

2198 E. CAMELBACK ROAD, SUITE 375 

PHOENIX, ARIZONA 850016 

(602) 222-4848 

CERTIFICATE OF SERVICE 

I hereby certify that on the 7th day of September, 2017, a copy of the foregoing

DEFENDANTS’ TRIAL BRIEF REGARDING LUMP SUM BENEFIT was 

electronically filed with the clerk of the court, United States District Court, Arizona, and a 

copy e-served to all related parties via the court’s CM/ECF system, as follows:

Steve German, Esq. 

ADELMAN GERMAN, P.L.C. 

8245 N. 85th Way 

Scottsdale, AZ 85258 

and 

Steve C. Dawson 

Anita Rosenthal 

Sander R. Dawson 

DAWSON & ROSENTHAL, P.C. 

25 Schnebly Hill Road 

Sedona, AZ 86336-4233 

Attorneys for Plaintiff 

 

/s/EFleming 

 Elizabeth Fleming 

(21731-3C) 

Case 2:15-cv-02597-DLR Document 365 Filed 09/07/17 Page 3 of 3