Progressive West Insurance Com v. Craig Tiscareno

FILED
NOT FOR PUBLICATION APR 11 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

PROGRESSIVE WEST INSURANCE No. 11-57033
COMPANY,
D.C. No. 3:08-cv-00180-H-CAB
Plaintiff-counter-defendant -
Appellant,
MEMORANDUM *
v.

CRAIG TISCARENO; TERESA
TISCARENO,

Defendants-counter-claimants
- Appellees.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding

Submitted April 9, 2013 **
Pasadena, California

Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Progressive West Insurance Company (“Progressive”) appeals from a final

judgment entered by the district court in favor of Craig Tiscareno and Teresa

Tiscareno. The district court entered judgment after a jury found, in a special

verdict, that Progressive had unreasonably failed to accept the Tiscarenos’

settlement demand. Progressive contends that the district court erred in denying its

pre-verdict motion for judgment as a matter of law, and argues that the jury’s

verdict is not supported by sufficient evidence. We have jurisdiction under 28

U.S.C. § 1291, and we affirm the district court’s judgment.

“[A] post-verdict motion under [Federal Rule of Civil Procedure] 50(b) is an

absolute prerequisite to any appeal based on insufficiency of the evidence.” Nitco

Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007); see also

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400–01 (2006).

Because Progressive failed to file a post-verdict Rule 50(b) motion, Progressive

has forfeited its right to challenge the jury’s verdict based on sufficiency of the

evidence. In the absence of a Rule 50(b) motion, an “appellate court [i]s without

power to direct the District Court to enter judgment contrary to the one it had

permitted to stand.” Cone v. W. Virginia Pulp & Paper Co., 330 U.S. 212, 218

(1947). As a result, we are precluded from granting the relief sought by

Progressive, entrance of judgment notwithstanding the verdict.

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 Even if we were to consider the merits of Progressive’s arguments on

appeal, we would conclude that the district court’s judgment was not erroneous as

a matter of law and the jury’s verdict was supported by sufficient evidence. There

was a legally sufficient evidentiary basis for a reasonable jury to find that

Progressive “unreasonably fail[ed] to accept a reasonable settlement demand for an

amount within the policy limits between April 16, 2007 and May 18, 2007.”

Judgment, Progressive West Ins. Co. v. Tiscareno, No. 3:08–cv–00180–H–CAB,

Dkt. No. 138 (S. D. Cal. Oct. 26, 2011); see Fed. R. Civ. P. 50(a); see also Bell v.

Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003).

AFFIRMED.

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