United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1755
___________________________
Patricia Jackson
lllllllllllllllllllll Plaintiff - Appellant
v.
Allstate Insurance Company
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 14, 2015
Filed: May 7, 2015
____________
Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.
____________
BEAM, Circuit Judge.
After a fire of incendiary origin destroyed her house, Patricia Jackson sued
Allstate Insurance Company for denying her claim on a homeowner's insurance
policy. Allstate asserted that Jackson's coverage was void because she burned the
house or caused it to be burned and because she made material misrepresentations
regarding how the fire was started. The district court1 granted Allstate's motion for
partial summary judgment and denied Jackson's motion for summary judgment. The
parties then proceeded to trial on Jackson's breach of contract claim, and the jury
found in favor of Allstate. On appeal, Jackson asserts that the jury's verdict was not
supported by sufficient evidence. Jackson also appeals the district court's dismissal
of her remaining claims, its imposition of a one-day time limit for Jackson to present
her case, numerous evidentiary and discovery rulings, and the court's denial of
Jackson's request for a statutory penalty and attorney's fees related to Allstate's
untimely attempt to pay her mortgage. We affirm.
I. BACKGROUND
Sometime between 6:00 a.m. and 6:40 a.m. on the morning of February 22,
2012, a fire severely damaged Jackson's house. Jackson testified that she spent the
night of February 21 at her mother's house in Pine Bluff, Arkansas, and the trial
record indicates that Jackson was at work during the time period in which the fire
began. The Little Rock Fire Department was called to Jackson's residence and
successfully put out the fire. Ryan Baker, an investigator for the Little Rock Fire
Department's Fire Marshal's Division, was tasked with determining the cause of the
fire. Baker ultimately classified the fire as an incendiary fire, meaning that it was
started by human intervention. Baker reached this conclusion after he detected
accelerants (i.e., gasoline) in multiple locations in the house and discovered that the
fire's points of origin were inconsistent with any accidental causes. At trial, the
parties agreed that the fire was a product of arson, and the district court instructed the
jury to this effect.
1
The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
-2-
Baker testified that he initially believed that Jackson might have been the
victim of a hate crime, primarily because he discovered racially derogative graffiti in
her garage and basement. However, Baker testified that as his investigation unfolded,
Jackson's status quickly changed from that of victim to that of suspect. Baker
testified that there were no signs of forced entry into Jackson's house, which indicated
that whoever started the fire had a key. Baker also testified that Jackson's house was
largely devoid of personal items, food, or furniture. Baker interviewed Jackson, and
he claims she told him that she was the only person with access to the house, that she
did not believe anyone had any motive to harm her, and that she was not missing any
items of property. Baker also testified that Jackson told him that she was at work
when the fire started. Baker therefore wrote a search warrant for her cell phone
records to verify her whereabouts. These records indicated that, although Jackson
was probably at work when the fire started, Alexander Henson, who is Jackson's
coworker, attempted to call Jackson three times between 5:49 a.m. and 6:12 a.m. on
the morning of the fire. Baker subsequently interviewed Henson, who denied that he
tried to call Jackson. Jackson also told Baker that she never received any phone calls
from Henson. However, Baker testified that the cell phone records clearly established
that Henson's phone called Jackson's phone, and he therefore concluded that Henson
and Jackson were lying about their contact on the morning of the fire. Baker
ultimately concluded that, based upon the incendiary origin of the fire, the lack of
evidence of forced entry or burglary, the dearth of items in the house, and Jackson's
and Henson's alleged dishonesty regarding their contact, that Henson may have
burned Jackson's home at her request. However, no criminal charges were filed
against Henson or Jackson.
Wilbur Jordan, a member of Allstate's special investigative unit, testified that
he conducted an independent investigation of the events surrounding the fire and
concluded that Henson had burned Jackson's home. Allstate's investigators also
discovered that Jackson was subject to a 2006 divorce decree that ordered her to sell
her house, that she tried to sell the house for several years, and that she took the house
-3-
off the market after her efforts to sell were unsuccessful. Allstate thus denied
Jackson's insurance claim based on two provisions in her policy, one of which
excluded coverage for losses caused by "intentional or criminal acts of or at the
direction of any insured person," (Intentional Acts Exclusion) and one that excluded
coverage for any loss "in which any insured person has concealed or misrepresented
any material fact" (Material Misrepresentations Exclusion). Following the denial,
Jackson filed suit against Allstate, asserting, inter alia, claims for breach of contract,
unjust enrichment, bad faith, and promissory and equitable estoppel. Allstate
countered that Jackson's policy was void based on the Intentional Acts and Material
Misrepresentations exclusions.
Shortly after Jackson filed suit, Allstate submitted a privilege log that sought
to protect from disclosure numerous documents related to Jackson's policy claim that
contained attorney-client communications and work product. Jackson filed a motion
to compel production of these documents, and Allstate resisted the motion. Jackson
requested that the district court review the documents in camera, and Allstate did not
object to this request. After performing an in camera review, the district court held
the documents were not discoverable and denied Jackson's motion.
After the parties completed substantial discovery, Allstate filed a motion for
partial summary judgment with respect to all of Jackson's claims except for the breach
of contract claim. Jackson resisted this motion and filed a motion for summary
judgment on Allstate's affirmative defenses. The district court denied Jackson's
motion for summary judgment after concluding there were material questions of fact
regarding whether she was involved in burning her house and whether she made
material misrepresentations. However, the district court granted Allstate's motion for
partial summary judgment on the grounds that Jackson's unjust enrichment and
estoppel claims were precluded under Arkansas law and that Jackson had failed to
produce sufficient evidence that Allstate denied her claim in bad faith.
-4-
Before trial, the parties filed numerous motions in limine. Jackson moved to
exclude all evidence related to Henson's cell phone records; the district court denied
this motion. Jackson moved to exclude as inherently unreliable any evidence that
involved the use of historical cell phone data to place individuals at certain locations.
Jackson also attempted to exclude Allstate's expert, Kevin Levy, who was slated to
testify on the subject of cell phone records, based on an untimely disclosed expert
report. The district court denied both motions. Allstate moved to exclude one of
Jackson's experts, David Van Puffelen, who was scheduled to testify that Allstate's
investigation of the fire was inadequate because Allstate failed to establish that
Jackson had a motive to cause the fire and because Allstate's investigator did not
sufficiently rule out other possible suspects. The district court did not immediately
rule on Allstate's motion but did indicate that it was "highly dubious" of the
admissibility of Van Puffelen's testimony. Jackson filed a motion for reconsideration,
which the district court denied. After Jackson again raised the issue at a pretrial
conference, the district court ruled that Van Puffelen's testimony was inadmissible.
Approximately one month before trial was scheduled to begin, Jackson
submitted a pretrial disclosure sheet which stated that Jackson planned to call
approximately fifty witnesses and needed around thirty hours to examine them. The
night before trial, the district court informed the parties that, because the case had
been reduced to a simple contract dispute, the court would permit the parties one day
each to present their case. Jackson objected to the one-day time limit, and the district
court granted a continuance so that Jackson could submit a proffer of witnesses.
Jackson submitted a proffer of twenty-four witnesses, and the court subsequently held
a hearing to permit Jackson to explain why she was prejudiced by the one-day time
limit. At the hearing, Jackson's counsel acknowledged that several of the witnesses
would provide cumulative evidence and therefore could be excluded. The parties also
discussed whether several witnesses who were scheduled to testify solely about
Jackson's religious proclivities and her good moral character might also need to be
excluded under Rules 403, 404, and 610 of the Federal Rules of Evidence. However,
-5-
the district court briefly noted the possibility that Jackson might be able to proffer
character witnesses under Rule 608 if her character for truthfulness was attacked.
The district court ultimately excluded twelve of Jackson's proffered witnesses on the
grounds that their testimony would be cumulative or irrelevant. The court also
excluded Jackson's five character witnesses under Rules 403, 404, and 610. The
district court subsequently overruled Jackson's objection to the time limit but
indicated that it would be open to revisiting its rulings on Jackson's witnesses and the
time limit depending on how circumstances developed at trial.
Approximately one week after the district court excluded Jackson's proffered
witnesses, Jackson served Allstate with twenty-three requests for admission. Roughly
one-half of these requests related to issues that were materially disputed, such as
whether Henson burned Jackson's house at her request. Allstate filed a motion for a
protective order, complaining that the purpose of Jackson's requests for admission
was to harass and annoy Allstate and that the requests were barred by the discovery
deadline. The district court granted Allstate's motion and denied Jackson's
subsequent motion for reconsideration.
The parties proceeded to trial on February 25, 2014. As noted above, Baker
provided extensive testimony regarding his investigation of the fire, and Jackson's
counsel thoroughly cross-examined Baker regarding the investigative methods he
employed, his findings, and the possibility that Jackson's ex-husband or vandals may
have caused the fire. Jackson testified during Allstate's case-in-chief, as well as her
own, and she admitted that her mortgage payment consumed nearly 80% of her
monthly income, that she was the only person with a key to her house, and that she
was unaware of anyone who would want to harm her. Jackson also testified that
several items were stolen from her house, including a large screen television and a
family Bible. Jordan testified and was cross-examined regarding the results of
Allstate's investigation of the fire and its decision to deny Jackson's claim.
-6-
Levy provided expert testimony regarding Jackson's and Henson's cell phone
records. Levy testified that these records established that Henson's phone attempted
to connect with Jackson's phone at least three times between 5:49 a.m. and 6:12 a.m.
on the morning of the fire. Levy also testified that during each of these calls,
Henson's cell phone connected to cell towers located close to Jackson's house. Levy
provided extensive testimony regarding how and why cell phone calls typically
connect to the tower located closest to the phone, and he discussed a field study that
he performed to determine the approximate coverage area of the towers that carried
the calls from Henson's phone on the morning of the fire. Based on the results of this
field study, Levy concluded that Henson's phone was probably located somewhere
near Jackson's home during the time period in which the fire started. In response to
Levy's testimony, Jackson introduced deposition testimony from her own cellular
technology expert, Russell Pope. Like Levy, Pope testified that Henson's phone
attempted to connect with Jackson's phone at least three times before 6:12 a.m. on the
morning of the fire2 and that directional data from the cell tower indicated that the
calls originated in the Cammack Village, Arkansas, area, which is located several
miles from Jackson's house. Pope further testified that cell towers located in urban
areas typically can only connect with cell phones located within a one-to-two mile
radius of the tower.
Although Pope's testimony was mostly consistent with Levy's testimony,
Allstate briefly re-called Baker in order to establish the time it takes to drive from
Cammack Village to Jackson's house. Baker testified that, depending on traffic
conditions, he could drive from Cammack Village to Jackson's house in ten minutes
or less. Jackson's counsel attempted to impeach Baker's testimony by introducing a
printout from Google Maps that allegedly estimated the drive time to be twenty
2
Despite the fact that Jackson's expert testified that Henson's and Jackson's cell
phones connected at least three times on the morning of the fire, both Henson and
Jackson maintained that these calls never occurred.
-7-
minutes. However, the district court excluded the printout after Allstate's counsel
made a hearsay objection.
Prior to the close of Allstate's case-in-chief, the district court held a jury
instructions conference with the parties to discuss their proposed jury instructions and
to solicit their feedback regarding the final instructions the court planned to give. At
this conference, the court explicitly discussed Jury Instruction No. 8, which stated
"(1) Allstate contends that Ms. Jackson either burned the insured property or caused
the property to be burned [and] (2) Allstate contends that Ms. Jackson intentionally
concealed or misrepresented material facts . . . relating to the investigation of the
fire." The only objection Jackson made to this instruction was that it should state that
Allstate had the burden of proving both defenses. The district court overruled this
objection.
At the close of Allstate's case-in-chief, Jackson moved for judgment as a matter
of law (JAML); the district court denied this motion. Jackson renewed her motion
before the case was submitted to the jury, but the district court denied this motion as
well. The district court provided Jury Instruction No. 8 and gave the jury a verdict
form that indicated the jury should find for Allstate if it concluded "by the greater
weight of the evidence that Patricia Jackson, or someone on her behalf, either burned
her home or caused it to burn." Jackson did not further object to Jury Instruction No.
8 or the verdict form. The jury returned a verdict in favor of Allstate on the basis of
Allstate's intentional acts defense. The record before us contains no evidence that
Jackson filed a renewed motion for JAML after the final entry of judgment in favor
of Allstate.
-8-
II. DISCUSSION
A. Summary Judgment
Jackson asserts the district court erred by granting Allstate's motion for partial
summary judgment on her claims for unjust enrichment, estoppel, and bad faith.
Jackson also contends the district court should have granted summary judgment in her
favor on Allstate's defense that Jackson personally burned her home. With respect
to Jackson's motion for summary judgment, we typically "will not review a district
court's denial of a motion for summary judgment after a trial on the merits," and we
decline to do so here. Keup v. Hopkins, 596 F.3d 899, 904 (8th Cir. 2010) (quotation
omitted). We do, however, review de novo the district court's grant of partial
summary judgment in favor of Allstate, "viewing the evidence and drawing all
reasonable inferences in favor of [Jackson]." Rose v. Flairty, 772 F.3d 552, 554 (8th
Cir. 2014).
Jackson's unjust enrichment and estoppel claims are quasi-contractual in
nature. Glenn Mech., Inc. v. S. Ark. Reg'l Health Ctr., Inc., 278 S.W.3d 583, 586
(Ark. Ct. App. 2008). Under Arkansas law, "the existence of a valid and enforceable
written contract governing a particular subject matter ordinarily precludes recovery
in quasi-contract for events arising out of the same subject matter." Servewell
Plumbing, LLC v. Summit Contractors, Inc., 210 S.W.3d 101, 112 (Ark. 2005)
(quotation omitted). However, when an enforceable written "contract does not fully
address a subject, a court of equity may impose a remedy to further the ends of
justice." QHG of Springdale, Inc. v. Archer, 373 S.W.3d 318, 324 (Ark. Ct. App.
2009) (quotation omitted).
Although Jackson does not dispute that her insurance policy with Allstate is an
enforceable written contract, she contends the contract does not fully address the
subject matter in this case. Specifically, Jackson asserts that she paid her mortgage
-9-
until October 2013, over one year following the loss, despite the fact that Allstate had
a duty under her insurance policy to pay the mortgage. Jackson therefore contends
that, because the policy is silent regarding her right to recover those mortgage
payments, the district court improperly dismissed her equitable claims. However,
because Jackson presumably had an ongoing obligation to pay her own mortgage, her
post-fire mortgage payments were recoverable damages arising from Allstate's
alleged breach of contract. See Optical Partners, Inc. v. Dang, 381 S.W.3d 46, 55
(Ark. 2011) ("In breach-of-contract cases, consequential damages are recoverable
when they were fairly within the contemplation of the parties."). The district court
therefore correctly held Jackson's policy fully addressed the subject matter at issue.
We also hold the district court did not err in dismissing Jackson's bad faith
claim. Under Arkansas law, "a claim based on the tort of bad faith must include
affirmative misconduct by the insurance company, without a good faith defense, and
. . . the misconduct must be dishonest, malicious, or oppressive in an attempt to avoid
its liability under [the] insurance policy." Aetna Cas. and Sur. Co. v. Broadway Arms
Corp., 664 S.W.2d 463, 465 (Ark. 1984). The summary judgment record indicates
that Allstate denied Jackson's claim based upon its receipt of substantial evidence that
Jackson intentionally caused her house to be burned and materially misrepresented
her role in causing the fire. In addition, Jackson's expert, Van Puffelen, testified in
his deposition that, after reviewing the relevant evidence upon which Allstate relied
in denying Jackson's claim, he could not say whether Allstate denied Jackson's claim
in bad faith.3 The district court thus correctly concluded the summary judgment
3
Having carefully reviewed the record, it is clear that Van Puffelen's expert
testimony was relevant only to the issue of whether Allstate denied Jackson's claim
in bad faith. Accordingly, because the district court properly dismissed Jackson's bad
faith claim, we hold the court did not abuse its discretion by excluding Van Puffelen's
testimony at trial. Fed. R. Evid. 702(a); see Sappington v. Skyjack, Inc., 512 F.3d
440, 448 (8th Cir. 2008) (noting "[t]he district court's exclusion of expert testimony
is reviewed for an abuse of discretion").
-10-
record was devoid of evidence indicating that Allstate's denial of Jackson's claim was
"dishonest, malicious, or oppressive." Id. Accordingly, we affirm the district court's
dismissal of Jackson's equitable claims and her bad faith claim.
B. Discovery Rulings
Jackson contends the district court erred by denying her motion to compel
production of the documents contained in Allstate's privilege log and by granting
Allstate's motion for a protective order. "We review a district court's discovery
rulings for abuse of discretion." Harvey v. Schoen, 245 F.3d 718, 720-21 (8th Cir.
2001). Allstate claims that the documents in its privilege log contained confidential
attorney-client communications or work product, and Jackson seemingly does not
dispute this contention. Jackson argues, however, that the documents are
discoverable because they contain the mental impressions of the agents who denied
her claim. We find this argument unpersuasive. Jackson does not sufficiently support
her contention that these alleged "mental impressions" are discoverable, and our
review of the record indicates the district court did not abuse its discretion by
declaring these documents to be privileged. Ark. R. Evid. 502(b); see Union Cnty.,
Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (holding that in a
diversity case "the determination of whether attorney-client privilege applies is
governed by state law"); see Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997)
(holding ordinary work product may be discovered "only upon a showing of
substantial need and an inability to secure the substantial equivalent of the items
through alternate means without undue hardship") (internal quotation omitted).
Finally, Jackson has provided no evidence that Allstate waived an applicable
privilege with respect to any of the documents. See Pamida, Inc. v. E.S. Originals,
Inc., 281 F.3d 726, 731-32 (8th Cir. 2002) (discussing waiver of work product
privilege); Kinkead v. Union Nat'l Bank, 907 S.W.2d 154, 158 (Ark. Ct. App. 1995)
(discussing waiver of attorney-client privilege). Accordingly, the district court did
not abuse its discretion in denying Jackson's motion to compel.
-11-
We also cannot say that the district court abused its discretion by summarily
granting Allstate's motion for a protective order. Rule 26(c)(1) of the Federal Rules
of Civil Procedure permits a court, for good cause, to "issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden." Fed.
R. Civ. P. 26(c)(1). Here, on the eve of trial, Jackson served Allstate with dozens of
requests to admit material facts that Jackson knew were in dispute. Although Jackson
asserts the requests for admission were intended to "narrow the contested issues in
this case," the frivolous nature of many of these requests indicates they were designed
to annoy and burden Allstate. Accordingly, we affirm the district court's grant of
Allstate's motion for a protective order.4
C. Evidentiary Rulings
1. Time Limit and Jackson's Character Witnesses
Jackson asserts the district court erred by entering a pretrial order that excluded
her character witnesses and by limiting her time to present evidence at trial. With
respect to the district court's exclusion of her witnesses, Jackson concedes that, as a
general matter, character evidence in civil cases, including evidence of religious
beliefs or opinions, is inadmissible. Fed. R. Evid. 403, 404(a)(1) & 610. Jackson
contends, however, that Allstate attacked her credibility as a witness, and that Rule
608(a) therefore entitled her to rebut this attack via her own character witnesses.
Rule 608(a) provides that a witness's credibility may be attacked or supported by
opinion or reputation testimony about the witness's character for truthfulness or
untruthfulness; however, "evidence of truthful character is admissible only after the
witness's character for truthfulness has been attacked." Fed. R. Evid. 608(a). "We
4
We also note the requests for admission may have been untimely, as they were
filed months after the discovery deadline expired. See Freeman v. City of Detroit,
274 F.R.D. 610, 612-13 (E.D. Mich. 2011) (citing several federal district court cases
holding requests for admission are subject to discovery deadlines).
-12-
review the district court's decision to admit or exclude evidence under Rule 608(a)
for an abuse of discretion." United States v. Jewell, 614 F.3d 911, 926 (8th Cir.
2010).
Jackson first argues that Allstate attacked her character for truthfulness as a
witness by asserting its material misrepresentations defense. Jackson cites no case
law in support of her contention, and we decline to hold that Allstate's assertion of
this defense entitled Jackson to offer character evidence under Rule 608(a). Jackson
alternatively argues that Allstate attacked her credibility when Baker testified that she
was dishonest with him during his investigation. However, Jackson never objected
to Baker's testimony under Rule 608(a). In addition, despite the district court's
assurances that it would consider revising its evidentiary rulings depending on how
the trial progressed, Jackson never offered a rebuttal witness to counter Baker's
purported attack on her character for truthfulness. Thus, with respect to Baker's
testimony, Jackson has failed to preserve any challenge based on Rule 608(a), and we
find no plain error in the district court's decision to enter a pretrial order excluding
Jackson's character witnesses. Chism v. CNH Am. LLC, 638 F.3d 637, 640 (8th Cir.
2011) (holding plain error review is appropriate when a "party fails to make a timely
objection" to an evidentiary ruling).
We also hold the district court did not err by limiting Jackson's time to present
evidence at trial. "Trial courts are permitted to impose reasonable time limits on the
presentation of evidence to prevent undue delay, waste of time, or needless
presentation of cumulative evidence." Harris v. Chand, 506 F.3d 1135, 1141 (8th Cir.
2007) (quotation omitted). "Trial management decisions are within the court's
discretion and are reversed only for an abuse of discretion." Id. "Abuse may occur
when a court excludes probative, noncumulative evidence simply because its
introduction will cause delay." Id. (internal quotation omitted). Having closely
reviewed the trial record, we conclude that the time limit did not prevent Jackson
-13-
from presenting any probative, noncumulative evidence. Accordingly, the district
court did not abuse its discretion in limiting Jackson's time.
2. Cell Phone Records and Google Maps Printout
Jackson next asserts the district court erred by denying her motion to exclude
Levy's expert testimony because of a late disclosed supplemental expert report. "We
review the district court's evidentiary rulings under an abuse of discretion standard."
Townsend v. Bayer Corp., 774 F.3d 446, 460 (8th Cir. 2014). The record indicates
that on December 2, 2013, Jackson took an extensive deposition of Levy in Little
Rock, Arkansas. On the morning of the deposition, Levy conducted a field study of
the cell towers located near Jackson's house. During the deposition, Levy disclosed
to Jackson's counsel that he had conducted the field study, discussed the
methodologies he utilized, and fully explained the results of the study.
Approximately two weeks later, Levy provided Jackson with a supplemental expert
report that summarized the same information Levy disclosed during his deposition.
Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that "[i]f a party
fails to provide information . . . as required by Rule 26(a) or (e), the party is not
allowed to use that information . . . to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ.
P. 37(c)(1). Allstate concedes that its disclosure of the report was untimely, but
contends that its late disclosure was substantially justified and was harmless. We
agree. The record indicates Jackson fully deposed Levy with respect to the field
study and never requested the opportunity to take a supplemental deposition. See
Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (noting trial court has wide
discretion in fashioning remedies or sanctions for violations of Rule 26(a) or (e));
Fed. R. Civ. P. 37(c)(1) (stating sanctions court may impose in addition to or instead
of excluding the evidence). Jackson also fails to identify any information in the
report that took her by surprise or that she needed to discuss with Levy in more detail.
-14-
We thus cannot say that the district court abused its discretion by denying Jackson's
motion to exclude Levy's expert testimony.5
Jackson next contends the district court erred by refusing to take judicial notice
of the Google Maps printout. It is undisputed that the printout was hearsay evidence,
and Jackson has failed to establish that drive time estimates from Google Maps are
so accurate that they cannot reasonably be questioned. Fed. R. Evid. 201(b)
(identifying the kinds of facts that may be judicially noticed), 801 & 802.
Accordingly, the district court did not abuse its discretion by excluding the Google
Maps printout.
3. Evidence of Criminal Charges
Jackson next argues the district court erred by excluding evidence that no
criminal charges were filed with respect to the fire.6 "As a general rule, evidence that
criminal charges were not brought is inadmissible in a civil case arising out of the
same events as the criminal charges." Goffstein v. State Farm Fire & Cas. Co., 764
5
We also reject Jackson's contention that evidence regarding the use of
historical cell phone data to identify the geographic area in which a phone was
located at a given time is inherently unreliable. Federal courts have regularly
admitted expert testimony regarding this type of evidence. E.g., United States v.
Evans, 892 F. Supp. 2d 949, 955 (N.D. Ill. 2012); United States v. Benford, No.
2:09CR86, 2010 WL 2346305, at *2-3 (N.D. Ind. 2010). Furthermore, Jackson never
raised a Daubert challenge with respect to "the scientific validity of the principles and
methodology underlying [Levy's] testimony," and there is no evidence that the district
court clearly erred by allowing Levy's testimony into the record. McKnight v.
Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir. 1994) (citing Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993)).
6
The record indicates, however, that in response to a juror's question, the
district court informed the jury that no criminal charges had been filed but instructed
the jurors that they were not to consider this evidence during their deliberations.
-15-
F.2d 522, 524 (8th Cir. 1985). Jackson acknowledges this general rule, but she
contends the evidence should have been admitted under the doctrine of curative
admissibility. "The doctrine of curative admissibility allows a trial judge, in his
discretion, to admit otherwise inadmissible evidence in order to rebut prejudicial
evidence which has already been erroneously admitted." Id. (quotation omitted).
Jackson contends the doctrine of curative admissibility is applicable here because
Baker's investigation was so biased and unreliable that the district court erred by
admitting evidence related to the investigation. However, having closely reviewed
the record, we conclude that Baker's investigation was thorough and that he had
sufficient grounds to investigate Jackson as an arson suspect. Accordingly, because
the district court did not abuse its discretion by admitting Baker's testimony, Jackson
has failed to meet "the prerequisites for curative admissibility." Id. at 525.
D. Motions for JAML and Sufficiency of the Evidence
Jackson next challenges the sufficiency of the evidence supporting the jury's
verdict. Specifically, Jackson contends that, because the jury returned a general
verdict in favor of Allstate on its intentional acts defense, it is possible that the jury
found that Jackson personally burned her home despite there being no evidence in the
record to support such a finding. Jackson also asserts the district court erred by
denying her pre-verdict motions for JAML with respect to the issue of whether she
personally burned her house. However, we decline to consider either argument
because Jackson failed to preserve these issues for appeal.
Although Jackson twice moved for JAML before the case was submitted to the
jury, her failure to file a renewed motion for JAML after the entry of judgment in
favor of Allstate precludes our review of her challenge to the sufficiency of the
evidence supporting the verdict. If the trial court does not grant a motion for JAML
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
-16-
later than 28 days after the entry of judgment . . . the movant may file a renewed
motion for [JAML]." Fed. R. Civ. P. 50(b). The "requirement of a timely application
for judgment after verdict is not an idle motion but an essential part of [Rule 50]."
EEOC v. S.W. Bell Tel., L.P., 550 F.3d 704, 710 (8th Cir. 2008) (internal quotations
omitted). Indeed, the Supreme Court has held that when a party fails to file a renewed
motion for JAML under Rule 50(b), "there [is] no basis for review of [the party's]
sufficiency of the evidence challenge in the Court of Appeals." Unitherm Food Sys.,
Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006); see N.Y. Marine and Gen. Ins.
Co. v. Cont'l Cement Co., 761 F.3d 830, 840 (8th Cir. 2014) ("A party cannot
challenge the sufficiency of the evidence if it failed to file a postverdict motion under
Rule 50(b) after the district court denied its Rule 50(a) motion."). Our precedent also
establishes that Jackson's failure to file a Rule 50(b) motion precludes our review of
the district court's denial of her pre-verdict motions for JAML because they too were
based on a sufficiency of the evidence argument. S.W. Bell Tel., 550 F.3d at 709-10.
We thus "conclude that [Jackson's] failure to file a Rule 50(b) motion after the entry
of judgment leaves us without a basis to review [her] sufficiency of the evidence
challenges." Id. at 711.
E. Motions Related to Allstate's Payment of Jackson's Mortgage
Jackson next argues the district court erred in denying her motion to require
Allstate to pay her mortgage company, Nationstar Mortgage, LLC, and for an
indicative ruling regarding the amount Allstate is required to pay. Jackson also
contends she is entitled to a twelve percent statutory penalty and attorney's fees with
respect to any payments Allstate makes to Nationstar. "We review the district court's
findings of fact for clear error and [its] legal rulings de novo." Native Am. Council
of Tribes v. Weber, 750 F.3d 742, 748 (8th Cir. 2014) (alteration in original) (internal
quotation omitted). We review a denial of indicative relief for abuse of discretion.
Dice Corp v. Bold Techs., 556 Fed. App'x 378, 384 (6th Cir. 2014).
-17-
Some additional factual background is helpful in evaluating the various issues
Jackson raises with respect to her mortgage. Jackson's policy imposes a duty on
Allstate to pay Nationstar "to the extent of [its] interest" (i.e., the mortgage) in
Jackson's house, and it is undisputed that this duty was not relieved by the jury's
determination that Jackson was responsible for the fire. We also note, however, that
the policy requires Nationstar to establish its right to recovery by furnishing a proof
of loss. The record indicates that, before Jackson filed suit, Allstate acknowledged
its duty to pay her mortgage and, consistent with the terms of her policy, requested
a proof of loss from Jackson's mortgage company. Prior to finally receiving a proof
of loss from Nationstar in January 2014, nearly two years after the fire occurred,
Allstate made at least ten additional attempts to obtain this information. In the proof
of loss, Nationstar claimed its interest in Jackson's property was $203,164.41, and
Allstate promptly issued a check to Nationstar in this amount. However, Nationstar
has been unable to process this payment because Jackson has refused to consent to
Nationstar's use of the funds to pay her mortgage. At the time this case was
submitted, Allstate had not paid Jackson's mortgage.
With respect to Jackson's motion for an indicative ruling, she has presented no
evidence or legal argument suggesting that her policy requires Allstate to pay
Nationstar a sum greater than Nationstar claimed in its proof of loss. We thus hold
the district court did not abuse its discretion in denying Jackson's motion for an
indicative ruling regarding the amount Allstate owes Nationstar. Similarly, because
Jackson alone is responsible for Nationstar's delay in processing Allstate's payment,
we affirm the district court's denial of her motion to require Allstate to pay Nationstar.
We also reject Jackson's argument that she is entitled to a statutory penalty and
attorney's fees with respect to the amount Allstate ultimately pays to Nationstar.
Jackson's claim for a statutory penalty and attorney's fees arises from § 23-79-
208(a)(1) of the Arkansas Code, which states:
-18-
In all cases in which loss occurs and the [casualty insurance company]
shall fail to pay the losses within the time specified in the policy after
demand is made, the [company] shall be liable to pay the holder of the
policy . . ., in addition to the amount of the loss, twelve percent (12%)
damages upon the amount of the loss, together with all reasonable
attorney's fees for the prosecution and collection of the loss.
Ark. Code Ann. § 23-79-208(a)(1). "This provision is penal in nature and is therefore
strictly construed in favor of the party sought to be penalized. It should not be held
to apply except in cases that come clearly within the statute." Primerica Life Ins. Co.
v. Watson, 207 S.W.3d 443, 448 (Ark. 2004) (citations omitted). The purpose of this
provision is to inhibit "the unwarranted delaying tactics of insurers." Id. In light of
this purpose, the Arkansas Supreme Court has consistently declined to apply § 23-79-
208(a)(1) in circumstances where the insurer's delay in payment was justified. Id. at
449-50; see Clark Center, Inc. v. Nat'l Life & Accident Ins. Co., 433 S.W.2d 151,
152-53 (Ark. 1968) (holding untimely payment was justified where insurer
consistently acknowledged its duty to pay under policy and insured failed to "furnish
proper and necessary information" despite insurer's good faith attempts to obtain it);
see also Farm Bureau Mut. Ins. Co. of Ark. v. Shaw, 600 S.W.2d 432, 435 (Ark. Ct.
App. 1980) (affirming trial court's award of statutory penalty and attorneys' fees to
insured where insurer's payment to mortgagee was untimely and insurer provided "no
justification for the delay"). Here, it is clear that Allstate's delay in paying Jackson's
mortgage was initially caused by Nationstar's failure to "furnish proper and necessary
information,"and later by Jackson's refusal to consent to the payment. Clark Center,
433 S.W.2d at 152-53. In addition, Allstate made numerous good faith attempts to
acquire the information it needed to pay Jackson's mortgage, and there is no evidence
suggesting that Allstate engaged in any "unwarranted delaying tactics." Watson, 207
S.W.3d at 448. Accordingly, because Allstate's delay in paying Nationstar is
justified, we find no error in the district court's denial of Jackson's motion for a
statutory penalty and attorney's fees.
Finally we reject Jackson's remaining contentions as being without merit.
-19-
III. CONCLUSION
For the reasons stated above, we affirm the jury's verdict in favor of Allstate
and the various rulings by the district court that Jackson appeals.
______________________________
-20-