UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-20531
VIRGINIA M. LACY,
Plaintiff - Appellee - Cross-Appellant,
VERSUS
STATE FARM LLOYDS,
Defendant - Appellant - Cross-Appellee.
Appeals from the United States District Court
For the Southern District of Texas
(H-98-CV-1921)
August 13, 2002
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
PER CURIAM:*
This case presents an insurance coverage dispute. Plaintiff
Virginia M. Lacy filed a claim under her homeowner’s policy with
State Farm Lloyds. State Farm denied the claim. The case went to
trial, and the jury found for Lacy and awarded her damages. The
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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district court entered judgment on the verdict.
Based on our review of the briefs, the record excerpts, the
arguments of counsel, and the orders of the district court, we are
convinced that all rulings and the judgment of the district court
are correct and should be affirmed for the reasons that follow.
I. State Farm’s Limitations Argument
Under the State Farm policy, Lacy was required to file suit no
later than two years and one day after the accrual of her cause of
action. In this appeal, State Farm essentially challenges the
sufficiency of the evidence underlying the jury’s finding on the
date of accrual. Generally, review of factual findings underlying
a jury verdict is deferential: “Unless the evidence is of such
quality and weight that reasonable and impartial jurors could not
arrive at such a verdict, the findings of the jury must be
upheld.”1 State Farm, however, did not move for a judgment as a
matter of law at the close of the evidence at trial. And it is
well established that challenges to the sufficiency of the evidence
must be raised in a Fed.R.Civ.P. 50(a) motion for judgment as a
matter of law before submission of the case to the jury.2 A party
that fails to move for judgment as a matter of law on the basis of
insufficient evidence at the conclusion of all of the evidence
1
Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 459 (5th
Cir. 1995).
2
See U.S. for Use of Wallace v. Flintco Inc., 143 F.3d 955, 960
(5th Cir. 1998).
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“waives its right to file a renewed post-verdict Rule 50(b) motion,
and also waives its right to challenge the sufficiency of the
evidence on appeal.”3 Because of State Farm’s non-compliance with
Rule 50(a), we must consider State Farm’s objections to the
sufficiency of Lacy’s evidence as though they were raised for the
first time on appeal.4 “It is the unwavering rule in this Circuit
that issues raised for the first time on appeal are reviewed only
for plain error. In other words, this Court will reverse only if
the judgment complained of results in a manifest miscarriage of
justice.”5
State Farm has not demonstrated that we must reverse the
jury’s verdict to prevent a manifest miscarriage of justice.
Although State Farm contends that it clearly denied Lacy’s claim in
its April 29, 1996 letter and that, as a consequence, her suit was
time barred, State Farm’s conduct thereafter was more consistent
with an ongoing investigation. In particular, the record reflects
that a claim representative recommended, after April 29, 1996, that
Lacy hire an engineer to evaluate the cause of her foundation
problems and submit the engineer’s report to State Farm. Under
these circumstances, and applying our most deferential standard of
review, we affirm the judgment in Lacy’s favor.
3
Id.
4
See id. at 963.
5
Id. at 963-64 (internal quotation and citation omitted).
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II. State Farm’s Daubert Challenge
State Farm filed a pre-trial motion to strike the causation
testimony of Howard Pieper, the engineer hired by Lacy. Having
reviewed the May 23, 2000 order denying that motion, we are
satisfied that the trial court adequately performed its gatekeeping
obligation by ensuring that Pieper’s testimony was both relevant
and reliable.6 Accordingly, the trial court did not abuse its
discretion by admitting the testimony.
III. Lacy’s Bad Faith Claims
Lacy challenges the district court’s grant of summary judgment
on her bad faith claims. Under Texas law, an insurer owes its
insured a duty to deal fairly and in good faith in processing
claims. Whether the insurer breaches this duty in denying a claim
is determined by whether “the insurer knew or should have known
that it was reasonably clear that the claim was covered.”7 Even if
the insurer is wrong in denying a claim, it is not liable for bad
faith if it can establish the existence of a bona fide dispute.8
For the reasons given in the magistrate’s January 26, 2000
Memorandum, Recommendation, and Order, summary judgment was proper.
There was a bona fide dispute on the issue of causation. Although
6
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589 (1993).
7
United States Fire Ins. Co. v. Williams, 955 S.W.2d 267, 267
(Tex. 1997).
8
Id.
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Lacy argues that State Farm’s expert, Edward Kubena, was biased,
she did not demonstrate that State Farm knew that Kubena’s report
was unreliable.
AFFIRMED.
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