concurring in part and dissenting in part:
I agree with the majority that under the facts of this case, Miller’s failure-to-inform theory is a viable basis for a bad-faith claim against Allstate. Allstate was required to give Miller’s interest equal consideration, which required Allstate to adequately inform Miller of Hopkins’ interpleader settlement offer. Whether Allstate adequately informed Miller was a question of fact for the jury to decide. As a *324result, I concur with the majority that the district court did not err when it submitted the issue to the jury.
The majority goes on to hold that Miller’s two other theories of bad faith, which are Allstate’s failure to file an interpleader action and Allstate’s failure to consent to an excessive stipulated judgment, are not viable to establish the bad-faith claims against Allstate. Since the majority was unable to determine which of the three theories of bad faith the jury relied upon in this case, the majority felt constrained to reverse the jury verdict in favor of Miller and remand this matter for a new trial.
The majority goes on to hold that the district court erred when it refused to submit Allstate’s special verdict questions to the jury. The majority reasons that if the special verdict questions were submitted to the jury, the court would then know which of the theories of bad faith the jury relied upon to find in favor of Miller and against Allstate. Further, to make sure that this court will always be aware of which theory of liability a jury relies upon to find in favor of a plaintiff in a tort case or contract case, the majority now extends Skender v. Brunsonbuilt Construction & Development Co., 122 Nev. 1430, 148 P.3d 710 (2006), which recognized special verdict questions in constructional defect cases that contained both contract and tort theories and a comparative negligence defense, to cases where the plaintiff presents claims of tort and contract liability or where the plaintiff presents multiple theories of liability made under a single claim.
I do not disagree with the majority on its holding that two of the three claims of bad faith are not viable, nor do I disagree on the extension of Skender to future cases.
My quarrel with the majority in reversing this matter for a new trial is multifold. First and foremost, the district judge would have had to have been a psychic to know that the court would extend Skender to cases other than constructional defect cases. Therefore, the district judge did not abuse her discretion by failing to submit Allstate’s special verdict questions to the jury. No one could possibly predict from a fair reading of Skender that special verdict questions should be used in tort and contract cases other than constructional defect cases and that failure to give the jury such a special verdict form would result in a reversal of a general jury verdict. As a result, the district court could not foresee that this court would significantly expand Skender’s holding. Speaking as a former district court judge, the district courts are required to follow the precedent established by this court. It is unreasonable to expect district courts to predict when and how this court will alter its precedent. As a result, I disagree with the majority’s holding that the district court should have submitted Allstate’s special verdict questions under Skender.
*325Further, the majority seems somewhat tentative on its pronouncement of extending Skender. Although the majority seems to strongly encourage and recommend the use of special verdict questions or interrogatories in cases other than constructional defect cases, the majority cites Skender throughout the opinion, giving the impression that Skender has in fact been extended to cases other than constructional defect cases.
Also, the majority distorts the discretionary nature of NRCP 49. The majority states that in order to facilitate appellate review “district courts should follow Skender” when a plaintiff presents claims of tort and contractual liability or multiple theories of liability under a single claim. The majority goes on to say, “However, the district court is not required to submit special verdicts or interrogatories to the jury if the party does not timely and properly submit proper proposed special verdicts or interrogatories to the court.” NRCP 49.
In other words, the majority recognizes the discretionary nature of special verdict questions and interrogatories, but it is still reversing this case because the district court refused to submit Allstate’s proposed special interrogatories. The majority’s reading of NRCP 49 makes it an abuse of discretion for a district court not to give special interrogatories if requested by one of the parties unless the district court makes findings as to the failure to give said special interrogatories. My reading of NRCP 49 is that said rule is completely discretionary and the majority fails to cite any authority regarding the mandatory nature of findings by the district court.
Is the majority relying on the extended application of Skender? However, Skender states this “court will sustain a general verdict where several counts are tried if any one count is supported by substantial evidence.” 122 Nev. at 1438, 148 P. 3d at 716.
Why strip a plaintiff of a sizable judgment on a general jury verdict when it is clear that said jury verdict could be based on the viable claim of bad faith and said jury verdict is supported by substantial evidence in the record of the trial proceedings? Under Skender, this court should affirm a general verdict when there is a viable claim supported by substantial evidence. Here, it is obvious that substantial evidence supported Miller’s viable failure-to-inform claim of bad faith against Allstate, which was in fact presented to the jury by Miller. The majority so states that “under the facts of this case, Miller’s failure-to-inform theory is a viable basis for a bad-faith claim against Allstate.”
I also disagree vehemently with the majority that the district judge abused her discretion because she did not state on the record her reasoning for rejecting Allstate’s submitted special interrogatories. What findings could the district judge have made at the trial without doing an injustice to the then present stare decisis? The district judge could have rightly stated that Skender applied only to con*326structional defect cases and NRCP 49 was purely discretionary. In light of the jurisprudence that existed at the time of the settling of jury instructions and special interrogatories, it seems inconceivable that the district judge abused her discretion. What she did do is follow the existing caselaw and statutes of the State of Nevada, which leaves only one conclusion. Therefore, the district judge did not abuse her discretion by failing to submit Allstate’s special interrogatories to the jury. As a result, the jury verdict against Allstate and in favor of the respondent should be affirmed.
Next, it is obvious that sufficient and substantial evidence of a viable claim of bad faith by Allstate was in fact presented to the jury by Miller. The majority so states that “under the facts of this case, Miller’s failure-to-inform theory is a viable basis for a bad-faith claim against Allstate.”
In Cortinas v. State, 124 Nev. 1013, 195 P.3d 315 (2008), this court affirmed a conviction of first-degree murder with use of a deadly weapon and robbery with use of a deadly weapon in spite of the fact that the district court failed to give a requested jury instruction that afterthought robbery may not serve as a predicate felony for felony murder. Cortinas discusses the way to determine whether reversal is required when a trial court error allows a jury to return a verdict based on a legally invalid theory but the jury is also presented with one or more valid alternative theories. Since the absolute certainty approach1 is found to be unsound in a criminal prosecution where the burden of proof is beyond a reasonable doubt, it seems sensible that the absolute certainty approach is unsound in a civil case where the burden on the plaintiff is less stringent.
Finally, the majority relies heavily on a products liability case, Gillespie v. Sears, Roebuck & Co., 386 F.3d 21 (1st Cir. 2004), in order to find an abuse of discretion by the district judge in this bad-faith case against Allstate. The majority was indeed fortunate to find a First Circuit case, not a Ninth Circuit case, to justify the reversal of the jury verdict. A careful examination of Gillespie informs the reader that “[i]n assessing the sufficiency of the evidence, the question for the court is whether, viewing the evidence in the light most favorable to the verdict, a rational jury could find in favor of the party who prevailed.” Id. at 25 (citing DaSilva v. American Brands, Inc., 845 F.2d 356, 359 (1st Cir. 1988)). There is no question that there was sufficient evidence presented at trial to allow a rational jury to find in favor of Miller and against Allstate on the claim of bad faith.
The gravamen of the majority’s rationale for reversal of the bad-faith verdict is that the district judge abused her discretion in refus*327ing without explanation to give the jury the special interrogatories that Allstate proposed. However, even in Gillespie, that court does not hold that there is always a reversal if evidence is insufficient with respect to any one of the multiple claims covered by a general verdict. Rather, the Gillespie court stated “ ‘a new trial is usually warranted if evidence is insufficient with respect to any one of the multiple claims covered by a general verdict.’ ” Gillespie, 386 F.3d at 29 (emphasis added) (quoting Kerkhof v. MCI Worldcom, Inc., 282 F.3d 44, 52 (1st Cir. 2002)). The Gillespie court also confesses that not all circuits follow the practice of the First Circuit in this regard. Id. at 30.
Rather than relying on Gillespie to reverse the bad-faith verdict against Allstate, I would affirm said verdict on the rationale of other courts, which have upheld a general verdict if there is sufficient evidence to support at least one viable theory. See Kern v. Levolor Lorentzen, Inc., 899 F.2d 772 (9th Cir. 1990); McCord v. Maguire, 873 F.2d 1271, amended by 885 F.2d 650 (9th Cir. 1989).
The Gillespie court also admits that even its
own approach is by no means rigid. Recognizing that a jury is likely to prefer a better supported theory to one less supported, [the First Circuit has] generously applied the harmless error concept to rescue verdicts where [it] could be reasonably sure that the jury in fact relied upon a theory with adequate evidentiary support.
Gillespie, 386 F.3d at 30. It was clear in Gillespie that “none of the theories was strongly supported by the evidence,” id., unlike the instant case against Allstate wherein one of the three theories was indeed viable, even according to the majority.
One must ask why would the majority choose the rationale of the First Circuit to reverse rather than the rationale of the Ninth Circuit to affirm this jury verdict? Unfortunately, I have no clue.
For the above reasons, I would affirm the jury verdict against Allstate and in favor of Miller and hold that the district judge did not abuse her discretion in any manner whatsoever. If there is in fact error, I would hold it to be harmless in light of the substantial evidence supporting Miller’s failure-to-inform theory of bad faith against Allstate, which was presented to the jury.
Under the absolute certainty approach, reversal is mandatory unless the court “is absolutely certain that the jury relied upon the legally correct theory . . . .” Stromberg v. California, 283 U.S. 359 (1931).