IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KAREN WELDIN STEWART, CIR-MI, )

INSURANCE COMMISSIONER OF THE )

STATE OF DELAWARE, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 12-0532-KD-B

)

CONTINENTAL CASUALTY )

COMPANY, )

)

Defendant and )

Third-Party Plaintiff, )

)

v. )

)

COLTIN ELECTRIC, INC., )

)

Third-Party Defendant. )

ORDER

This action is before the Court on the Defendant Continental Casualty Company’s renewed 

motions for judgment as a matter of law (doc. 200) and the response filed by Plaintiff Karen Weldin 

Stewart, Cir-Mi, Insurance Commissioner of the State of Delaware (the Commissioner) (doc. 203).

Upon consideration, and for the reasons set forth herein, the motions are DENIED. Accordingly, 

the Court allows judgment on the verdict. 

Rule 50(b) of the Federal Rules of Civil Procedure provides for renewed Rule 50(a) motions 

for judgment as a matter of law, as follows:

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the 

court does not grant a motion for judgment as a matter of law made under Rule 

50(a), the court is considered to have submitted the action to the jury subject to the 

court's later deciding the legal questions raised by the motion. No later than 28 days 

after the entry of judgment--or if the motion addresses a jury issue not decided by a 

verdict, no later than 28 days after the jury was discharged--the movant may file a 

renewed motion for judgment as a matter of law and may include an alternative or 

joint request for a new trial under Rule 59. In ruling on the renewed motion, the 

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court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order 

a new trial; or (3) direct the entry of judgment as a matter of law. 

Fed. R. Civ. P. 50(b). 

A renewed motion for judgment as a matter of law after trial “must be based on the same 

grounds as the earlier motion[.]” Connelly v. Metropolitan Atlanta Rapid Transit Authority, 764 F. 

3d 1358, 1363-1364 (11th Cir. 2014) (quoting Fed.R.Civ.P. 50 advisory committee's note (2006) 

(“Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only 

on grounds advanced in the preverdict motion. The earlier motion informs the opposing party of the 

challenge to the sufficiency of the evidence ....’) 

“When a court considers a motion for judgment as a matter of law—even after the jury has 

rendered a verdict—only the sufficiency of the evidence matters. The jury's findings are irrelevant.” 

Connelly, 764 F. 3d at 1363 (citation omitted). “[T]hat Rule 50(b) uses the word ‘renewed’ makes 

clear that a Rule 50(b) motion should be decided in the same way it would have been decided prior 

to the jury's verdict, and that the jury's particular findings are not germane to the legal analysis.”

(alteration omitted) Chaney v. City of Orlando, Fla., 483 F.3d 1221, 1228 (11th Cir.2007). Thus, 

“in deciding on a Rule 50 motion a district court's proper analysis is squarely and narrowly focused 

on the sufficiency of evidence.” Chaney, 483 F.3d at 1228. 

The “court should render judgment as a matter of law when there is no legally sufficient 

evidentiary basis for a reasonable jury to find for that party on that issue.” Gowski v. Peake, 682 

F.3d 1299, 1310 (11th Cir. 2012) (citations omitted). The question before the Court is, “whether the 

evidence is legally sufficient to find for” the Commissioner on the payment bond claim. Chaney,

483 F.3d at 1227. To reach its decision, the Court “should review all of the evidence in the record 

and must draw all reasonable inferences in favor of the nonmoving party”. Cleveland v. Home 

Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir. 2004) (citations omitted). “Credibility 

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the 

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facts are jury functions, not those of a judge.” Id. Thus, “judgment as a matter of law is appropriate 

only if the facts and inferences point so overwhelmingly in favor of” Continental “that reasonable 

people could not arrive at a contrary verdict” in favor of the Commissioner. Brown v. Alabama 

Dep't of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010) (citation and internal marks omitted). “If 

reasonable and fair-minded persons in the exercise of impartial judgment might reach different 

conclusions based on the evidence presented, the motion should be denied.” Montgomery v. Noga, 

168 F.3d 1282, 1289 (11th Cir. 1999); Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir.

2006) (same). 

Continental renews its first motion that was made at the close of the Commissioner’s 

evidence and again at the close of all evidence. Continental argues that the Commissioner failed to 

proffer sufficient evidence of Coltin Electric, Inc.’s damages for disruption to raise a jury question 

under the total cost method.

1 Continental also argues that the Commissioner failed to establish that 

she could not calculate damages under any other theory such as the measured mile approach.2

During trial, the Commissioner presented expert testimony3 as to the applicability of the 

total cost method and modified total cost method as opposed to other methods, such as the measured 

 1

 Continental argues that there are four elements as to which the Commissioner had to present 

acceptable proof (doc. 200, p. 4). The jury was instructed on those four elements: 1) That the nature 

of the particular losses makes in impossible or highly impractical to determine them with a 

reasonable degree of accuracy; 2) that Coltin’s bid or estimate was realistic; 3) that Coltin’s actual 

costs were reasonable; and 4) that Coltin was not responsible for the added expenses.

2

 Continental also argues that the Commissioner sought to prove damages under the modified total 

cost method. Continental asserts that because the Commissioner failed to adequately separate the 

costs for which Coltin was responsible, which is an element of a claim under the modified total cost 

method, the jury was left to speculate as to what adjustment should be made to the damages Coltin 

claimed. 

3

 The Commissioner’s expert John Buziak testified that the other methods Continental suggested, 

such as the measured mile approach, were appropriate where the issue was delay but the total cost 

method was appropriate where the issue was disruption caused by stacking of trades, pacing, and 

out-of-sequence work. He also testified that other factors precluded application of the measured 

mile and earned value analysis.

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mile approach, for determining and proving the costs or damages for disruption. The Commissioner 

also presented evidence of the disruption of Coltin’s work on the project,4 Coltin’s record-keeping 

on the project,5 and the associated costs resulting from the disruption.6 Continental rebutted the 

Commissioner’s case also by presenting documentary evidence and expert and fact witness 

testimony. 

Based upon the testimony and evidence presented at trial, the Court finds that Continental 

has failed to meet its burden to show that the evidence was so insufficient that no reasonable juror 

could have properly applied the total cost method or the modified total cost method to award the 

Commissioner $150,000 in damages for the associated costs caused by the disruption. The 

evidence and inferences drawn in favor of the Commissioner do not “point so overwhelmingly in 

favor of” Continental that no reasonable jury could reach a contrary verdict in favor of the 

Commissioner. Brown, 597 F.3d at 1173. Accordingly, Continental is not entitled to judgment as a 

matter of law as to this claim. See U.S. Anchor Mfg. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir. 

1993) (“If the jury verdict is supported by substantial evidence ... enough evidence that reasonable 

minds could differ concerning material facts—the motion should be denied.”) 

Continental also renews its second motion made at the close of all evidence wherein 

Continental argued that the Commissioner had failed to meet the jurisdictional requisite of Ala. 

Code § 39-1-1(b); that her action was commenced not later than one year from the date of final 

settlement of the contract between Elkins Constructors, Inc. and the University of South Alabama. 

 4 Alan Rodgers, Jason Clark, Brent Diamon and Mark Hodges testified regarding the disruption of 

Coltin’s work on the project. John Buziak testified as to stacking, pacing and out-of-sequence work. 

The Commissioner proffered this evidence in support of her argument that Elkins was responsible 

for the disruption. 

5 Alan Rodgers and John Buziak both testified regarding Coltin’s record-keeping on the project. 

6 Alan Rodgers testified as a fact witness and as an expert witness regarding the initial bid or 

estimate for the project and as to the reasonableness of Coltin’s actual costs.

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Continental argues that the Commissioner failed to put on any evidence as to when the final 

settlement occurred. Continental also argues that the Commissioner and Coltin’s claims are 

separate and both must independently satisfy the jurisdictional requisite.

7

The Court denied Continental’s Rule 50(a) motion and found that the evidence was 

sufficient to find that the Commissioner had met the jurisdictional requisite of filing her claim 

within one year of final settlement. The Court finds no basis for reconsideration.

Accordingly, Continental is not entitled to judgment as a matter of law as to this claim. 

DONE and ORDERED this the 7th day of November 2014. 

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

 7

 See Order granting motion for substitution pursuant to Rule 25(c) (doc. 66) and the Order denying 

motion for reconsideration (doc. 127). Continental also relies upon this Court’s order entered June 

9, 2014, wherein the Court denied Continental’s motion for summary judgment based upon its 

argument that Coltin’s claim and the Commissioner’s claim were separate claims and that the 

Commissioner should have been added as the real party in interest under Fed. R. Civ. P. 17 instead 

of substituted as the plaintiff under Fed. R. Civ. P. 25(c). (Doc. 157) The Court did discuss that 

Continental received notice of the Commissioner’s claim when she moved for substitution; 

however, the Court stated that it was giving a liberal construction to the notice provision because 

the purpose of the payment bond statute was to provide security for those who furnish labor and 

materials on public projects. Importantly, the Court also reiterated that the Commissioner was 

substituted for Coltin when the order granting the motion for substitution was entered. The Court 

cited Matter of Covington Grain Co., 638 F.2d 1362, 1364 (5th Cir. Mar. 13, 1981), for its 

explanation that “Rule 25(c) is not designed to create new relationships among parties to a suit but 

is designed to allow the [original] action to continue unabated when an interest in the lawsuit 

changes hands[.]”). In other words, the Commissioner “continued unabated” Coltin’s action against 

Continental. 

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