# Petition for Writ of Certiorari — Syracuse Exploration Co. v. Northbrook Property & Casualty Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1474%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 531 U.S. 1011 ## Text ‘Supreme Court, U.& (i) FILED 00 309 auc 23 2008 Ueokwn Ur ate GLERK NO. Iu the Supreme Court of the United States October Term 2000 SYRACUSE EXPLORATION COMPANY, Petitioner VS. NORTHBROOK PROPERTY AND CASUALTY INSURANCE COMPANY, Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ANGINO & ROVNER, P.C. RICHARD C. ANGINO I.D. No. 07140 Attorneys for Petitioner Syracuse Exploration Company 4503 North Front Street Harrisburg, PA 17110 (717) 238-6791 Clare Printing, Box 100, Sayre, PA 18840—(570) 888-2244 os Statement of Questions Presented for Review STATEMENT OF THE QUESTIONS PRESENTED FOR REVIEW I. Is it reversible error for a trial judge to permit an attorney expert to express legal opinions over opposing coun- sel’s objections? II. Does a party waive his right to object by failing to except or object to the trial judge’s charge under the circum- stances where the trial judge refused to hold a pre-charge conference, failed to rule on submitted points for charge, and failed to instruct the jury with respect to points for charge submitted by counsel? III. Is it reversible error for the trial court to sanction counsel by precluding expert testimony because of the belated filing of an expert report under circumstances where the Circuit required “prejudice” and no “prejudice” was shown? IV. Is it reversible error for a trial court to preclude reference to an insurance carrier's cancellation/refusal to re- new as a possible act of “bad faith” in an insurance “bad faith” case? V. Is it reversible, prejudicial error to grant partial sum- mary judgment and a motion in limine removing from the jury's consideration contractual issues and evidence of conse- quential damages and/or lost profit based upon contract issues when the complaint seeks both contractual and bad faith damages and where the state law provides for different bur- dens of proof with respect to contract and “bad faith” issues? l Corporate Disclosure Statement CORPORATE DISCLOSURE STATEMENT Petitioner discloses that there is no parent or publicly held company owning 10% or more of the corporation's stock. TABLE OF CONTENTS Statement of the Questions Presented for Review... . . Corporate Disclosure Statement................... EE EE Tanee OF Citetions...........+... RES Pe TO ee ee Statutory Provisions Involved ..................... eo ST TEETER Cee I. It Is Reversible Legal Error For A Trial Judge To Permit An Attorney Expert To Express Legal Opinions Over Opposing Counsel's eer Lee wa teas II. A Party Does Not Waive His Right To Object By Failing To Except Or Object To The Trial Judge’s Charge Under The Circumstances Where The Trial Judge Refused To Hold A Pre-Charge Conference, Failed To Rule On Submitted Points For Charge, And Failed To Instruct The Jury With Respect To Points For Charge Submitted By Counsel........ . III. It Is Reversible Error For The Trial Court To Sanction Counsel By Precluding Expert Testimony Because Of The Belated Filing Of An Expert Report Under Circumstances Where The Circuit Required “Prejudice” And No “Prejudice” Was Shown ........... ill 11 12 15 IV. It Is Reversible Error For A Trial Court To Preclude Reference To An Insurance Carrier’s Cancellation/Refusal To Renew As A Possible Act Of “Bad Faith” In An Insurance “Bad Faith” Case............... 16 V. It Is Reversible, Prejudicial Error To Grant Partial Summary Judgment And A Motion In Limine Removing From The Jury's Consideration Contractual Issues And Evidence Of Consequential Damages And/Or Lost Profit Based Upon Contract Issues When The Complaint Seeks Both Contractual And Bad Faith Damages And Where The State Law Provides For Different Burdens Of Proof With Respect To Contract At Te Pe NN ks So oes 17 Comte ks sk a chee a Se ee eek 18 APPENDIX: Order of the United States Court of Appeals for the Third Circuit Sur Petition for Rehearing dated Sling TD, TOO ss ckcac cue bean eben ceaabeeae es la Panel Opinion of the United States Court of Appeals for the Third Circuit dated May 26, 2000........ 2a Trial Court Memorandum Opinion for the Middle District of Pennsylvania dated September 28, SO ns ex eee wk WAR eS ee Oe eee ie l6a Trial Court’s Order for the Middle District of Pennsylvania dated June 3, 1999............... 26a Trial Court’s Order for the Middle District of Pennsylvania dated December 31, 1998......... 27a Trial Court’s Order for the Middle District of Pennsylvania dated April 29, 1998.............. 29a iv Relevant portion of trial transcript dealing with testimony of lawyer/expert.................5.. 30a Relevant portion of trial transcript dealing with the trial court’s failure to hold a pre-charge conference regarding plaintiff's points for charge and the trial TERI ss os 5s:6s nds ae CreaseaWeokwenes 75a TABLE OF CITATIONS CASES: A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 612 F, Supp. 760 (W.D. Va. 1985)....... 12, 13, 14, 17 Adalman v. Baker, Watts & Co., 807 F.2d 359 (4th Cir. SE SI ux eis hire ak eine Cand en keer ak 8 Askanase v. Fatjo, 130 F.3d 657 (Sth C Cir. (Tex.) 1997). . 8 Ballow v. PHICO Ins. Co., 875 P.2d 1354 (S.Ct. CCID FSI x id Vw x 49 Ag Rae's tons 16 Bergman v. United Services Automobile Association, 742 A.2d 1101 (Pa. Super. 1999)............... 8. Burkhart v. Washington Metropolitan Area Transit Auth., 112 F.3d 1207 (D.C. Cir. 1997) .......... 8 Doylestown Electrical Supply Co. v. Maryland Cas. Ins. Co., 942 F. Supp. 1018 (E.D. Pa. 1996)...... 10 Endress + Hauser, Inc. v. Hawk Measurement Systems Pty. Ltd., 122 F.3d 1040 (C.A.Fed. (Ind.) 1997) .. 8 Harbor Ins. Co. and Allstate Ins. Co. v. Continental Bank Corp., 922 F.2d 357 (7th Cir. (Ill.) 1990)... 8 Helfand v. National Union Fire Ins. Co. of Pittsburgh, Pa., 10 Cal. App. 4th 869, 13 Cal. Rptr.2d 295 FR ct abe See Ce. eer iu eae ke i ok en 16 Hindman Transfer & Storage Inc. v. PMA Group, 31 D.& C. 4th 55 (G.P. Butler 1906) .............. 17 Jung v. Nationwide Mut. Fire Ins. Co., 949 F. Supp. Eh RR ere eee ey oe 17 Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505 (2d SE cick onde wk eek ae eae ees 7 Meyers v. Pennypack Woods Home Ownership Assn., SSD F905 G6 Cee Cie: MOTT) ¢ ss sc sk co nko eae 9, 10, 16 Nealy v. State Farm Mut. Auto. Ins. Co., 695 A.2d 790 (Pa. Sapna, BI) 6 cic cans hike hae aowewes dees 10 Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92 (1st Cir. Pusrto Fite Tee as cvs cacee vbb eo eaters ss 7 O’Donnell v. Allstate Ins. Co., 734 A.2d 901 (Pa. Supee. TIGR) «ccs sins du csne ch cape aeeees wan 12 Ohio Cas. Ins. Co. v. Travelers Ins. Co., 667 F. Supp. 993 CWB. Pi Ss on hc i. Se 16 Parsaie v. United Olympic Life Ins. Co., 29 F.3d 219 (Sats Cie. CU TT o's hee ee ae 17 PepsiCo, Inc. v. Continental Cas. Co., 640 F. Supp. O56 (5. TD.T.. Beets do onkka ne we 17 Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524 (Se Ge: BG) ck ee cn eee Re 10 Specht v. Jensen, 853 F.2d 805 (10th Cir. (Colo.) 1988) .. 8 Spindle v. Travelers Ins. Co., 66 Cal. App. 3d 951, 136 Cal. Rote. G00 (IRIE) «snk citer wtais cin eee 16 Timmons v. Royal Globe Ins. Co., 653 P.2d 907 (Okla. ROE 5.s ki oko ocean ee 17 U.S. v. Zipkin, 729 F .2d 384 (6th Cir. (Ohio) 1984)... . 8 United States v. Newman, 49 F.3d 1 (Ist Cir. 1995)... 7 Waldon v. Cotton States Mut. Ins. Co., 481 So.2d 340 (Ale: POG. is oc nd 0e 4583 xe ee ee 16 Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938 (1985). . Y STATUTES: eas RE 6s Kiva oh is Nase wh eR ee hie LS LON 3 pe eR ERRNGR Ga SN Re ee en ee 4,5 Pennsylvania Automobile Insurance Cancellation Law: 40 P.S. §1008.1, et seq. (repealed); now 40 P.S. oe re er eee ee eee 4,16 Pennsylvania Unfair Insurance Practices Act: MMs oe 4,12, 16 RULES: ; PU Ske cea, 85a casks CIVIL ACTION NO. 1:CV-97-1405 SYRACUSE EXPLORATION COMPANY, Plaintiff vs. NORTHBROOK PROPERTY & CASUALTY _ INSURANCE COMPANY, Defendant ORDER AND NOW. this 29th day of April, 1998, upon considera- tion of the Report of the United States Magistrate Judge, dated April 8, 1998, to which no exceptions have been filed, and upon independent review of the record and the controlling law, it is ordered that the Magistrate Judge’s Report is adopted. It is further ordered, pursuant to the Magistrate Judge’s recom- mendation, that: _ 1. Defendant's motion for partial summary judg- ment, filed January 30, 1998 (Doc. No. 14), is denied. 2. Defendant's motion for the return of funds, filed January 30 (Doc. No. 13), is denied. 3. This matter is remanded to the Magistrate Judge for further proceedings. /s/William W. Caldwell United States District Judge 30a Appendix IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA | 97-CV-1405 SYRACUSE EXPORATION COMPANY, Plaintiff V. NORTHBROOK PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant TRANSCRIPT OF PROCEEDINGS VOLUME 2 BEFORE: HON. WILLIAM W. CALDWELL, Judge DATES: June 8 and 9, 1999 PLACE: Courtroom Number Three Federal Building Harrisburg, Pennsylvania COUNSEL PRESENT: RICHARD C. ANGINO, Esquire For—Plaintiff ANTHONY ROBERT ZELLE, Esquire For—Defendant Vicki L. Fox, RMR Official Reporter gla Appendix Windt—Direct as to Qualifications 395 Mr. Allan Windt. MR. ANGINO: Your Honor, I would like an offer of proof with regard to this. THE COURT: I think you know what he is going to testify to. MR. ANGINO: I am going to object to the legal aspect of it, Your Honor. | MR. WINDT: Good afternoon, Your Honor. ALLAN WINDT, called as a witness, being duly sworn, testified as follows: THE CLERK: Would you state for the record your full name, please? A Allan Windt. THE CLERK: Thank you very much. DIRECT EXAMINATION AS TO QUALIFICATIONS BY MR. ZELLE: Q Mr. Windt, where do you live? A The western suburbs of Philadelphia. Q Will you tell the jury what you do for a living? A I handle insurance claims for a living, primarily for insurance companies, also for some insureds. Q Try to keep your voice up. How many insurance com- panies have you worked for over the past ten years? 32a Appendix Windt—Direct as to Qualifications 396 A Probably more than 70. Q How long have you been doing what you are doing? A About 23 years. Q In your work for insurance companies, describe for the jury what it is you do. A Well, if a claim is particularly complicated, kind of out of the ordinary, an insured or an insurance company might - come to me to help them figure out what to do, what is the correct result, is money owed, how should a claim be handled. It is really the best way I can summarize it. Q Do you limit your practice to Philadelphia or—I am sorry—to the Pennsylvania area? ANo. Q In what area do you provide services? A I have done this in really every state. I can’t remember. Maybe North Dakota, I don’t remember. But I have done Hawaii, Alaska, pretty much everywhere. Q If there is— A Outside of the country, too. Q If there is a dispute in Alaska about insurance, why would someone come to you in the outskirts of Philadelphia? A It is an unusual expertise. There really aren’t that many people that do what I do, that just limit their work to the type of thing that I do. Q How did you develop this expertise? 33a Appendix Windt—Direct as to Qualifications 397 A One learns by doing. I think it is the best way. It took a lot of work, also. I mean I devote a lot of time to developing the expertise pretty much on a weekly basis for the last 23 years. I mean in addition to my work, I spend at least on average a portion of every week just continuing to develop my exper- tise. Q What do you do on a weekly basis to continue to develop your expertise? A Well, I read every insurance case that is reported that comes out nationwide in all 50 states. Q When you say reported case, can you tell the jury what you mean? A After this case is over, whoever loses will likely file an appeal. It doesn’t always happen, but more likely than not, to a Court of Appeals. The Court of Appeals will issue a decision. In fact, this Court might issue a decision that is significant enough that it gets reported in a way that people like me can read it and find out how policies have been interpreted, how duties have been interpreted. So that the next claim I handle, I have increased my expertise because I know more about what the industry does, what Courts find acceptable, how Courts or other people have interpreted policy provisions. 34a Appendix Windt—Direct as to Qualifications 398 It is actually a lot more complicated than it sounds. Also probably a lot more boring than it sounds. But that is basically what I do. Q Can you tell this jury examples of some cases they may have heard of that you have been involved with? A Well, when Paula Jones sued Bill Clinton and Bill Clinton made a claim under his insurance policy for benefits, he had a home owner’s policy when he lived Arkansas, that’s where the alleged wrongdoing took place, because it was kind of an offbeat case and high visibility, the insurance company came to me and said what should we do, how should we handle this claim. So that is an example of a case that I am sure people will be familiar with. Q Can you give another example? A The movie and the book “A Civil Action,” which some of you may be familiar with, years ago when the litigation was ongoing and the defendants went to their insurance company for coverage, the insurance company came to me and said this ° is a pretty complex, fairly big dollar case. What benefits do we owe? How should we handle this claim? What should we do? I would handle that claim—or did handle that claim. Q Do you ever work for insurance companies in putting together and writing the insurance policy? A Yes, occasionally. Q Do you do any lecturing or present any educational 35a Appendix Windt—Direct as to Qualifications © 399 seminars for people who are trying to learn about handling insurance claims? A Yes. Q How often do you do that? A On average, twice a year. Maybe a little more. Q Who do you do that for typically? A Sometimes it will be to groups of lawyers. Like one time, I went to Texas and traveled teach at the major cities to lecture to the lawyers in Texas that specialize in insurance, lawyers that might be trying a case like this. Another example would be insurance companies may be having meetings where they may be having representatives come in from all 50 states, representatives of branch offices. And they would ask me to come and lecture and speak to this gathering about how they should handle claims, what they should and shouldn't do, that sort of thing. Q Has the product of your work ever been published, Mr. Windt? A Yes. Q Am I holding up the two volume set of your work? A Yes. Q Can you tell the jury what this is? A It is my life’s work. What can I say? Q Can you describe what the books are about? A They were about handling insurance claims, good 36a Appendix Windt—Direct as to Qualifications 400 faith/bad faith, how to handle claims, what policies certain policy provisions mean. Just to provide help to lawyers, Courts. Not so much insureds because it is really not written for someone who doesn’t have an existing knowledge in the area. Q Mr. Windt, I have seen your advertising brochure and this book has been hailed as the Bible of insurance law? MR. ANGINO: I object, Your Honor. THE COURT: That is a little testimony there, isn’t it? MR. ANGINO: That doesn’t sound like a question to me. BY MR. ZELLE: Q I want to ask you the question do you know why it is your book is so highly regarded? A It has gotten some good book reviews over the years. Q Your book has been cited by hundreds of Courts; is that right? A Around the country, yes. Q What does cited mean? A Well, as I was saying before, sometimes a Judge or a Court of Appeals may issue—write an opinion saying here is who we think should win this case, here is what we think the policy means, and here is why. And they say in support of their conclusion we are reaching, see Windt on insurance, 37a Appendix Windt—Direct as to Qualifications 401 page 423, which then they may quote me or whatever discusses the issue. Q Do you receive a lot of calls from people asking you to work for them in cases as an expert witness? A Yes. Q How often? A Well, I mean it can be a week goes by when I don’t get any calls and a week where I get eight calls. I would say on average in the last couple of years, three times a week, some- thing like that. Q Just doing the multiplication, that is 150 times a year. Of those 150 calls, how many cases would you actually take? How many clients would you actually accept? A Again, this is just the expert work, which again is kind of like a sideline for me. I take in an average year maybe ten, one in ten, one in fifteen, something like that. Q You have been retained by Northbrook in this case; is that right? A Yes. Q And Northbrook is paying you; is that right? A Yes. | Q How much are you charging Northbrook? A I charge $300.00 an hour for my time. Q Focusing in now on this case, what did you do in preparation for testifying here today? 38a Appendix Windt—Direct as to Qualifications 402 A I read the file. I read some of the papers that were filed by the Court, by you and Mr. Angino. Am I saying it right, Angino? MR. ANGINO: Your Honor, am I going to be permitted to ask some questions before he gets to the substance? MR. ZELLE: I am not finished laying the foundation. THE COURT: The qualifications? A And some depositions, transcripts. THE COURT: Just a second. A I am sorry, Your Honor. MR. ZELLE: Your Honor, let me— THE COURT: It sounded like you had finished. MR. ZELLE: You are right. BY MR. ZELLE: Q In connection with bad faith claims, can you describe for the jury the expertise you have in that area? A Well, I am involved—I have been in involved in hun- dreds of bad faith claims over the years. Frequently what will happen in my practice is that an insurance company might send me a file after they have handled it themselves for a while and they think maybe they have done it wrong and maybe they have a bad faith problem, they send me a file. And I will analyze it and tell them whether they are guilty of bad 39a Appendix Windt—Direct as to Qualifications 403 faith or not. That is one way I get involved. Another way I get involved is lots of law firms around the country will call me with what they think are good bad faith claims. And I will give them my analysis of it. If they really have a good bad faith claim as a plaintiff, sometimes I am willing to testify as an expert against the insurance company. Q Are you familiar with insurance industry standards for handling insurance, specifically property insurance claims, and particularly the timeliness with which those types of claims should be handled? A Yes. That is what I do for a living. The expert work is maybe ten percent of my time. What I do for a living is I handle claims. Q And you are familiar with the industry standards for handling claims for adjusting damage to physical property; are you not? A Yes. Q And you are familiar more generally with claims han- dling practices and their compliance with the rules of good faith; is that right? A Yes. Q And you, in fact, are often retained by insurance companies to insure that they comply with regulations apply- ing to good faith; isn’t that right? 40a Appendix Windt—Cross as to Qualifications 404 A I wouldn’t phrase it quite that way. Q How would you phrase it? A Sometimes insurance companies will ask me to handle a claim for them. I mean I don’t think the motivation is so they don’t act in bad faith, just to help handle the claims appropri- ately. | Q And that is based on your familiarity with good faith claim handling practices? A I guess yes. I wouldn’t word it that way, but I suppose it is not inaccurate to put it that way. MR. ZELLE: Your Honor, we would submit that Mr. Windt is qualified to testify as an expert. THE COURT: Do you wish to cross-examine? MR. ANGINO: Yes, I would like a few questions. CROSS EXAMINATION AS TO QUALIFICATIONS BY MR. ANGINO: Q Part of the qualification questions dealt with what you do in terms of lecturing, and I think you testified that you tell lawyers and you tell insurance companies what the state of the law is with regard to good faith/bad faith; is that something that you discuss? A It is just a tiny part of what I do. It is not really what I do. I mean I handle claims is what I do. In other words, the claim comes in, and I handle it. I draft the letters to the insured if I am working for the insurance company. 4la Appendix Windt—Cross as to Qualifications 405 If I am working for the insured, I draft the letters to the insurance company. I do the analysis. I make the calls, the factual investigation as appropriate. I hire people to do the factual investigation as appropriate. That is what I do. Q Maybe I misunderstood. I thought that the reason that you are called to be a witness or to give advice in all of the states of the union except perhaps for North Dakota is because of your expertise in this area? A Wait a second. With regard to expert witness work, the question is question why would people call me as an expert witness, and I said suppose it is cause because of the notoriety of the book. People know who I am. With regard to the 90 percent of my practice, which is what I do for a living handle claims, why do they come to me? Because I have a good track record of appropriately handling claims. That is what I do. Q You are a lawyer; right? A Yes. Q And I am a lawyer. Mr. Zelle is a lawyer. His Honor is a lawyer. Is that right? A Yes. Q And you are familiar that in a courtroom, there is a lawyer representing a plaintiff, there is a lawyer representing 42a Appendix Windt—Cross as to Qualifications 406 a defendant, and then there is a Judge who gives instructions to the jury; you understand? A Yes. Q In terms of appearing as an expert, is your background such that people hire you so that you can tell this jury that what was done here was good faith or bad faith; is that the reason you are hired? A I am hired to give my opinion from analyzing a case. I don’t take a lot of them because a lot of times, I disagree. But if I agree, I will get in the stand and tell what my opinion is. Q So basically, you are here to tell this jury that what Northbrook did was okay; is that right? A I am certainly prepared to say that, yes. Q That is what I am saying. A I wouldn't say okay. No, they didn’t handle it perfectly. You and I spoke at length, what, six months ago, and I told you certain mistakes were made. No question about that. Q You are going to say they handled it in good faith; is that right? A Yes. Q That is what you have been hired to do? A That is clearly the bottom line that I am going to try to convey and explain how I reached that conclusion, yes. 43a Appendix Windt—Cross as to Qualifications 407 Q And in those approximately ten or twelve cases you have given hourly, what do you usually make on an average on one of those ten or twelve cases that you take a year? A As an expert witness? Q Yes. From beginning to end. A I couldn’t give you an average. I could say in some cases where I do a report and it doesn’t get as far as a deposition or trial, my bill may be less than a thousand dollars. Q I am talking about a case that goes to trial, and you appear before a jury, and you testify. Would an average bill there be $5,000.00 or $10,000.00? A If there has been no deposition, it should normally would be less than $5,000.00 total. Part of it is the travel time. I went to Alaska once on a case. The travel time which I billed - for was like 20 hours each way. Do the math. It was a very significant bill. Q You might have had a $20,000.00 bill in that case? A Right. I had a case in Texas fifteen years ago, I think my bill even in dollars from fifteen years ago was like $70,000.00. Q $70,000.00? A I think so. My recollection—maybe it’s $50,000.00. But I remember it being at the time like a real lot of money. Q So insurance companies are willing to pay $50,000.00 44a Appendix Windt—Cross as to Qualifications 408 to $70,000.00 to have you come into a courtroom? A Or insureds. MR. ANGINO: No further questions. BY THE COURT: Q Mr. Windt, from hearing your testimony, are you an independent insurance adjuster or do you work for somebody? A No. I just have just me and a secretary, Your Honor. Q You are an independent adjuster? You will adjust claims? A Yes. It depends on what you define as an adjuster, but I mean I work on my own. I handle claims for a living. It’s just me and a secretary. Q Are you engaged in the practice of law as such? A I would say yes in the sense that the reports that I will issue to my client will be subject to the attorney/client privi- lege. Q Okay. But you are mainly concerned with the proper handling of insurance claims? A I am not concerned with the properly handling. I just handle claims. That is what I do. Q You are here to comment on whether Northbrook handled this claim— A Here as an expert. Q —in an acceptable annual proper manner? A Yes, Your Honor. As an expert is different than from I —— 45a Appendix Windt—Cross as to Qualifications 409 do really for a living. MR. ANGINO: Can I ask one more question, Your Honor? BY MR. ANGINO: Q You mentioned Clinton and the Paula Jones matter. Now that was a case where Clinton, from what we have read in the paper anyway, did certain things with regard to Paula Jones at least as the complaint went. Did you recommend to the insurance company that they provide coverage to President Clinton? A No. I think that would be privileged what advice I gave them. Q It turned out that they paid Paula Jones, the insurance company paid Paula Jones; is that correct? A There were two insurance companies involved. Q And did an insurance company pay Paula Jones? A I don’t believe the insurance company I worked for paid Paula Jones. Q Did an insurance company pay Paula Jones? A I don’t recall that an insurance company paid Paula Jones. THE COURT: I don’t think that is relevant information. THE COURT: We will accept Mr. Windt and let him testify subject to, of course, Mr. Angino’s objection. 46a Appendix Zelle—Direct 410 MR. ZELLE: Thank you, Your Honor. DIRECT EXAMINATION BY MR. ZELLE: Q Can you please tell the jury what you have done in connection, what you have looked at, what you have heard in connection with forming the opinions that you have reached in this case? A Well, I read the insurance company’s file. I read I believe all of the depositions that were taken. That is sworn testimony that is taken by the lawyers of people that have some knowledge about the case. And that is done long before the trial starts. And then I read some of the pleadings that were filed, documents filed with the Court, that Mr. Angino filed with the Court and that counsel for Northbrook filed with the Court. And other than that, I was here this morning. I listened to the testimony of the people that testified today. Q You in response to a question by Mr. Angino said that this wasn’t a perfect claim handling. Can you tell the jury what mistakes were made here? A You know, it would be easier if I could divide my analysis of this case into time frames—various time frames, and I will tell you within each time frame what was done right and what 47a Appendix Zelle—Direct 411 was done wrong. Q Sure. Would it help you to use the board? THE COURT: Let's try it without. BY MR. ZELLE: Q Let's just use some dates then. Using the first time period, what are you using? A The first relevant time period would be December 17th through January 2nd. Q And what is the facts as you determined them during that time period? A December 17th, you have the insured through its agent providing notice to the New York branch, the New York office of Northbrook. And then January 2nd, Northbrook finally finds out that the equipment is in Pennsylvania, and therefore the file should be handled in Pennsylvania. So that is to me the first relevant time period. And despite the fact that Christmas is there, New Year's, I think that is longer than it should have been. And in all—I know the position of Northbrook is, well, the insured didn’t tell us where the equipment was, but I think the insurance company should have called if you don’t know where the equipment 1S. I know it is Christmas, and I know it is New Year’s, but nothing was done between December 17th and Janu- ary 2nd, and I would say that is an error. That is a mistake. 48a Appendix Zelle—Direct 412 I think they should have even within the holiday period done something. Q Do you understand, Mr. Windt, the difference between a mistake or why don’t you explain to the jury the difference between a mistake and bad faith? A Right. Clearly in my opinion— MR. ANGINO: Your Honor, I object because— THE COURT: I sustain the objection. MR. ANGINO:—that is an instruction. BY MR. ZELLE: Q Why don’t you answer the question? THE COURT: I sustained the objection. I don’t think that Mr. Windt is going to be allowed to testify to the difference between a mistake and bad faith. That is something that I will charge the jury on. But he has indicated that he thought a mistake was made with not jumping on this claim sooner in the first time period. BY MR. ZELLE: Q In making that distinction following the Judge's instruc- tion, can you tell us whether the initial time frame of Decem- ber 17th to January 2nd, is there anything that you looked at that led you to believe that there was any reckless disregard on the part of the— A It is just a simple mistake. It happens. 49a Appendix Zelle—Direct 413 MR. ANGINO: I object and continue to object to his testifying as to things that you are going to give instructions on because he is usurping the position of the Judge in this. THE COURT: I think that is right. Gentlemen, come to sidebar for just a moment, please. (An off-the-record discussion was had at sidebar.) BY MR. ZELLE: | Q What was the next time frame after the 2nd of January? A January 2nd to January 7th would be the next logical time frame to look at. Q Describe what happened for the jury during that time frame. A On January 2nd, Northbrook learns that the equipment is in Pennsylvania. So they send the file to the correct office. And the file is opened in the correct office on January 7th. There is an intervening weekend. It seems fine to me. Q Do you have an opinion, sir, as to whether there was any delay during that time period? A It seems fine to me. Q What was the next time period? A January 7th to January 13th. January 7th being when the file is opened up in Pennsylvania, and January 13th when the adjuster Stanford is hired to go out to do the investigation, 50a Appendix Zelle—Direct 414 determine how the claim should be handled. And the file reflects that the person who was handling the assigned claim was out sick three days. It was a two day weekend. I don’t have any problem with that time frame. Q Do you have any opinion, sir, as to whether the insur- ance company did anything wrong during that time period? MR. ANGINO: Objection, Your Honor. Doing wrong? THE COURT: I think the question is was that period of time an acceptable period of time for performing the appoint- ment of an appraiser in this case? A I think the facts are that it was—since the person was sick and out three days and there is the weekend, it seems perfectly appropriate and perfectly fine to me that time frame. BY MR. ZELLE: Q What is your next time period? A January 13th to February 7th. Q What happened? A That is the dates that the investigation was done by Stanford on behalf of Northbrook. Stanford is Northbrook as a practical matter for the purpose of handling the claim. That is who they hired to do the work. And I think that was done more than good faith. I think that Stanford did an expeditious—they did a very 5la Appendix Zelle—Direct 415 good job, and they did it in a very reasonable amount of time. February 7th was when the investigation terminated. They didn’t need to do anything else in terms of the investiga- tion knowing what to do because by that date, it is clear from the file that they concluded that the way to handle this claim was to have the equipment repaired. Can I go on with the answer to say—explain something? Q Let me ask you a question, Mr. Windt. If you now look at the time frame from December 17th until February 7th, that is just a week short of two months, is that an acceptable period of time for an insurance company to complete an investigation into the adjustment of a piece of property, in this case a big drill? A Sure, that would be reasonable, two months. But that doesn’t change the fact that Stanford did a pretty quick job, and they were able to do it within less than a month. So I am saying it doesn’t change the fact that when the initial notice was sent to Northbrook, they were sloppy. Anyway, what I wanted to explain is what you are trying to accomplish in this investigation is to figure out how to handle the claim because you have a few options. One option which is available is if this property is not worth 52a Appendix Zelle—Direct 416 repairing, it is what you call a total loss, then you would handle a claim a certain way and owe a good deal of money to the insured. If in fact the property is repairable for a reasonable amount of money, then you would move forward with the repairs. So a fundamental decision you have to make is is this a case where I am going to repair it—ie. the insurance com- pany. Not that you repair it, you pay for the repairs—the insurance company pays for repairs—or is this a case where the insurance company is going to pay for the equipment as if it is a total loss? It is a fundamental decision that has to be made. You don’t just sit back and think here is what I am going to do. You have to do a lot of work. You have to get a lot of input from people you call from the outside world. You have to call people to find out what they view the actual cash value to be. Because if the actual cash value is $50,000.00 and it costs $50,000.00 to repair, you are not going to repair it. You have got to know what the actual cash value is. You don’t just call one person; you call a series of people. Espe- cially—I don’t want to belabor it. Now find out actual cash value. You would want to find out whac the salvage is if you don’t repair it. Because let’s say that the actual cash value was 53a Appendix Zelle—Direct 417 $150,000.00 and the salvage value—what someone would be willing to pay even if it is in a damaged state—is $140,000.00. So if it is $150,000.00 to repair and salvage value is $140,000.00, and it costs $50,000.00 to repair, you are not going to repair it. Q Mr. Windt, let me just— A You have to make those kinds of—I don’t want to belabor this. I thought it was needed to be explained some of what you need to do, what takes you a month or two to figure out what to do. Q The jury has heard evidence about what had to be done. The question I would like you to address, Mr. Windt, is whether a period of time from the 17th of December through February 7th was a reasonable period of time to get the claim investigation completed? A Yes. The same answer I had before, yes. Q What is the next period of time that you feel— A February 7th through the time the repairs were com- pleted, which I think was June 23rd or thereabouts, June 24th. Q Can you tell us what transpired during that time period on which you base your opinion? A I don’t see how you can possibly fault the insurance company for anything during that period of time. The insur- ance company had made the decision as of February 7th that 54a Appendix Zelle—Direct 418 it pays to repair the property. It will pay for the cost of the repairs, less depreciation. Now it’s up to the insured to get the property repaired, and it is up to the insurance company to then timely pay the amount of the repair bill when the repair bill comes in. Well, to the extent that the repairs take longer than expected because the repair company that the insured selected has problems finishing the repairs, that is not a reflection on the insurance company. The only thing that would be a bad reflection on the insurance company is after the repairs were done, the insur- ance company then sat back and didn’t pay the bill, which is not the case here. Q Are you aware-—did you hear the testimony that on June 30th, Northbrook did issue a check? A They had issued checks prior to that, and then they issued their final payment I think the check was dated June 30th as I recall. Q What is your next time period after June 23rd, the end of June when the drill repairs were completed? A The final time period is June 23rd through October, June 23rd or 24th when the repairs are finished and then October, early October when the insured picks up the equip- ment. 55a Appendix Zelle—Direct 419 And again, it is—I think it is impossible to fault the insurance company there. The repairs are done. The insurance company did what it said it would do. It paid for the repairs in full. If the insured doesn’t pick up the equipment, it is not bad faith by the insurance company. The insurance company’s obligation is to figure out in a timely fashion what to do with the equipment, repair it or not. The insurance company does that. The equipment is repaired. Then it is the insurance company’s obligation to pay in a reasonable amount of time. Clearly, they did that. That is it. Q You are talking about reasonable amount of time. You have heard all of the testimony this morning and this after- noon. In your opinion, sir, did Northbrook adjust the claim in a reasonable amount of time? A I don’t think that is a fair question because I think no matter how you try to lump it together, there was still the mistake made by Northbrook where—or the sloppiness by Northbrook in the early period. Q I understand that. I am asking you if you can’t look at it as a whole, then that is fine. But I am asking you if you look at the— MR. ANGINO: Your Honor, this is his witness. THE COURT: I don’t think he is leading him. 56a Appendix Windt—Cross 420 BY MR. ZELLE: Q If you look at the process as a whole, do you have an opinion as to whether Northbrook accomplished what it was supposed to accomplish in terms of getting the drill adjusted within a reasonable amount of time? A Yes. That is the answer I gave you twice before. Yes, that is true. MR. ANGINO: That is all I have. THE COURT: Cross-examine. CROSS EXAMINATION BY MR. ZELLE: Q Your decision and the opinions that you have expressed are based upon the fact that Northbrook made a decision on February 7th, 1997 to have this drill repaired; is that right? A That is when Northbrook finished its investigation of getting estimates on repairs on actual cash value, on salvage value. At which time based on the numbers that it received, it could decide on a course of action. So in other words, you need to do that investigation, that analysis within a reasonable amount of time. We know because of the file. There is no question about it. We know they finished that process by February 7th. . Q Did they make a decision—did Northbrook make a / 57a Appendix Windt—Cross 421 decision on February 7th to have that drill repaired? A They made a decision to go forward on the assumption it was going to be repaired. And I suppose anything is possible. If they opened up that machinery and found out that it had the plague, then maybe they would change their mind. But first, you have to decide on a course of action. And you can’t be a knucklehead about it. To the extent that despite getting six estimates from six different companies if based on what expertise everybody had in making their estimates and analysis, if it all turns out to be wrong, you don’t just say I don’t care if it is wrong, this is what I am doing. That would be silly. Q Would you look at Plaintiff Exhibit 7, please? THE COURT: That is in this folder. A Yes, I have it. BY MR. ANGINO: Q It is set up in a chronological order. Would you turn to what appears to be 2/13. Do you see that? A Yes. Q Would you turn to the next page, please? A (Witness complies.) Yes. Q Are you familiar with that particular page? A I have looked at it before, yes. Q And you had explained to the jury that there are various 58a Appendix Windt—Cross 422, things that an insurance company can do; is that right? A In essence, in other words, the insurance company under the policy is obligated to pay the lowest amount of certain options. Q They are not obligated? A Have the right. Q They can? A I could give you money. Even though we don’t ave any relationship, you are always free to give money away. The question is you have a certain right. I have a right not to give you money. And they have a right to pay just repairs rather than total loss value. Q What I am saying to you is that you have givem advice and you are called in by various insurance companies to do certain things with regard to potentially large claims; is that right? A I work for insureds, too. And not every claim I handle is a large claim, but usually they are. Q There are factors—individual factors in each sittuation; is that right? A No two cases are the same. Q So this particular case involves a company that has a particular type of drill; is that right? A Yes. 59a Appendix Windt—Cross 423 Q And that particular type of drill is important to that particular company to pursue its business; is that right? A That is my understanding, yes. Q Is that a factor to consider? A Possibly. Q The next thing we know is that you can go out and conduct an investigation, but until you tear that drill apart, you don’t know what it is going to cost to repair it; is that right? A Well, as evidenced by this case, they knew almost to the dollar. But there is no sure thing in life I have found. I don’t mean to pontificate. As I told you before, you got to keep your eyes and ears open if. Because if something unforeseen develops, you have to be able to react to it. Nothing unforeseen developed here. Stanford did a great job. Q You are familiar with this particular case, and you are familiar with Stanford's appraisals of what it was going to cost to repair; is that right? A Yes. Q The appraisals that he got—and he got six of them he said? A Yes. Q How much did—what was the range of them? A He only wrote up as I recall three of them because I 60a Appendix Windt—Cross 424 think the insured wouldn't look at the other three. You know, the report that was marked and not admitted into evidence, I obviously read that. On that report, I won't say what it says, but it does I am pretty sure mention at least one or two more beyond the three that were written up. Q That's right. The three that you have been privy to, what were the amounts? A I think the estimate from Stanford, which is the only one I remember off the top of my head— Q You don’t mean Stanford. A No, I mean Stockdale. Q How much was the one from Stockdale? A I think it said $40,000.00, but it was subject to certain things they didn’t know which could make it as much as 50. Q Right. A Or a little under 40. Q So you had at that time an appraisal from Stockdale that was about $40,500.00, but if certain things happened it could be $50,000.00; is that what it said? A I don’t think it said that, but that is my understanding that it could go as high as 50. Not that anyone expected it too, but that was within the realm of possibility. 6la Appendix Windt—Cross 425 Q And on the down side, there just seemed to be a little down side; is that right? - A It is not something I really focused on. I don’t recall there being a significant potential for it being a lot less than $40,000.00. Q Forty to fifty would be the range from the company that Syracuse wanted to have it done; is that right? A No. I think the range was—it depends what you call range. The range could be 40 to a million. I mean that is silly to say a million, but you don’t know. They thought it would be about $40,000.00. Q 40 to 50? A No. They thought it would be about $40,000.00. Q Now we know that if you are going to repair something, you are going to have to take that machine first to a shop to look at it to find out how much it is going to cost to repair; is that right? A Well, you have an estimate, but the estimate is not binding on Stockdale because they haven’t seen the equip- ment yet. So, again, you are dealing with professional people, Stanford, Stockdale. They have analyzed the problem. Stanford has explained it to Stockdale and gone through it piece by piece it is my understanding. I wasn’t there, but that is my understanding. They have come up with the belief that this can be repaired for approximately $40,000.00. 62a Appendix Windt—Cross 426 Does that answer your question? Q No. A Sorry. I forgot the question. Q Do you know there were two moves involved here? This particular drill was first moved to find out how much it is going to cost to repair. Do you know that? A No. My recollection is there was one move from the site where it was damaged to Stanford—Stockdale. Too many S’s in this case. Q You are saying there was only one move? A I only remember one move for $5100.00. When it was finished, it had to be moved not back to the site it was, but back to Maryland. And that was another 21, 22 hundred dollars. Q So you knew it had to be moved, and it had to come back. So you have— A It didn’t go back. It went to Maryland as I said. Q Whatever. So that is a figure of $7200.00; is that right? A Something sticks in my mind that $7300.00 is the right number, but maybe your right. Q Whatever. When you are going to make a decision as to whether you repair or replace, you obviously with this type of a piece of equipment have to factor in there is going to be 63a Appendix Windt—Cross 427 a cost to get it to where it is? A Absolutely. Q So in this case when we had $40,500.00 to $50,000.00 depending on what it is, we basically had something that would be—nobody knew exactly what it was going to cost to move at the time anywhere from $47,000.00 to $57,000.00; is that right? A That is not @ correct way to analyze it. From the insurance company’s point of view, they expected to spend about $36,000.00 for repairs, $40,000.00 less depreciation of about $4,000.00. They expected to pay about $36,000.00 for repairs. And we will use the $7300.00 number for a move. So if I were handling the claim for the insurance company, I would say if we repair this, I expect it is going to cost the company $43,300.00. Q But—? A So that is the first part of the equation. One can’t know the answer to that equation until one does the work that Stanford did. Q Stockdale? A Stanford did. At that time, actually I was right. That Stanford did between January 15th and February 7th. Q So with the best knowledge that the insurance company had at that time, they were looking at $43,300.00; is that right? 64a Appendix Windt—Cross __. 428 A That is what they would expect to spend. Q Now if you are going to spend $43,300.00, you know it is going to take time; is that right? A Yes. Q And were there calculations done on the basis of salvage that is in Exhibit 7 that I have addressed here? A I don’t knowif it is Exhibit 7, but I have seen the salvage estimates. I think there were six of them. Q Was there one between 80 and 90? A Yes. Q Is there an actual calculation in the diary of Northbrook that starts out with $140,000.00? A Yes. That is an incorrect calculation, but there is a calculation there. Q There is a calculation? A Yes. Q It says ACV $140,000.00. That is the policy limit; is that right? A You wouldn’t use 140. You would use the actual ACV. It also says policy limit. The relevant number would be ACV. Q What is the ACV? A The insured said 160. He said it in his deposition. He testified again today on the stand because I heard him that he thought it was 160. Q But he can’t get more— 65a Appendix Windt—Cross 429 A He wouldn’t get more than 140. The question is you start with ACV. According to the insured, it is 160. That is what they are insisting on. If you subtract out the maximum possible salvage value of 90, then you are left with $70,000.00 cost to the insurance company. Q So what I am saying to you though is were there—was . there actually an exhibit supplied by the plaintiff from a company that gave the value of that particular drill at or about that time? A There were I think six estimates that Stanford got on actual cash value. I am just saying that if you wanted to settle with the insured, which is what you are suggesting, the insured Says you start with 160 as actual cash value. Who knows what you are actually going to get for salvage because the insured hasn't let people get on the site to look at it. Let's say you get 90, which is far more than the average. The average salvage value that he obtained was 60. Let's say you use 90. 160 minus 90 is $70,000.00 to satisfy the insured. (1/30/97 letter from D&L Thomas Equipment Corp. Re: value of drill before 12/13/96 was introduced as Plaintiff Ex- hibit 16.) BY MR. ANGINO: Q Would you look at Plaintiff Exhibit 16, please? Windt—Cross 430 A Sure. Q Is this a letter from Nicholas B. Goulas to Jay DeLine of Syracuse Exploration? MR. ZELLE: Objection. This hasn’t been offered into evidence. MR. ANGINO: I am introducing it now. MR. ZELLE: I will object because he can’t authenticate THE COURT: I think we have to let the question go on a little further here. BY MR. ANGINO: Q Are you familiar with this particular document? | A Yes, it was in the file that I saw. Q It's in the file you looked at and referred to in appearing here in court; is that right? A Yes. Q And as of January 30th, 1997, which is during this period of time when you said this investigation was being conducted during which time there has to be a decision made with respect to do you go the salvage route or do you go the repair route, a letter is from Nicholas Goulas to Jay DeLine; is that right? A Yes. Q And it gives a price range for that particular piece of equipment as $130,000.00 to $145,000.00; is that right? Windt—Cross 431 A Yes. Q So whatever the—Syracuse supplied that to North- brook; did they not? MR. ZELLE: Objection. A I don’t know. BY MR. ANGINO: Q You don’t know? A How would I know? Q In terms—do you see the claim number on it? It says claim 3771001982? A Yes. Q Is that the claim for Northbrook? A I presume. I saw this in Northbrook’s file. Q You saw it in Northbrook’s file? A Yes. I don’t know how they got it. You asked me how they got it. I don’t know. Q How do you expect a letter to Syracuse Exploration would get in the Northbrook file? | A Either they got it—Mr. Stanford got it from D&L Equipment because it was one of the six people he called, or he got it from Syracuse. How would I know? Q If Mr. DeLine is going to give a price to Northbrook for the value, the ACV, he has gotten a written document that says 130 to 145? A And his position is it is wrong. His position is as he 68a Appendix Windt—Cross 432, testified today it was 160. So what do you want from me? I am not going to impeach your guy. Q You are in the insurance business. If you are adjusting a claim, do you want something in writing from somebody telling you what the value of something is? MR. ZELLE: Objection, Your Honor. I think we have got that there was a letter that said one thing, and we have Mr. DeLine's testimony. We can move on. THE COURT: The question was on a different tack. BY MR. ANGINO: Q If tack is in order for an insurance company—and you have been dealing with them for years? THE COURT: Don't intersperse the question with edi- torializing, Mr. Angino. Just ask the question. BY MR. ANGINO: Q Do you need to have something in writing as to the value of that piece of equipment? A You don’t need to. It is good practice because some- times, believe it or not—never mind. I was just trying to be cute, but that is not appropriate. Q You know what Mr. DeLine paid for it? A 140. Q He paid 140? A $140,000.00. Q Insured it for $140,000.00? 69a Appendix Windt—Cross 433 A The maximum coverage on it was $140,000.00. Q And submitted a document for 130 to 145 as far as its value; is that right? A Again, I don’t know who submitted it. I know he got the letter. It is addressed to him. And I know his position all along has been that this letter is wrong. It is worth 160. Q Where do you get that? ~ A Because I read his deposition. I heard his testimony _ today. I read the file. I mean what do you want me to say? Q Did he say this was wrong? A He said it is worth 160. He gave his testimony under oath both at his deposition and today. If you are calling him a liar, call him a liar. I am not. , I am just saying the insurance company, if you are going to say—never mind. I don’t know what you are trying to—if you want me to make your client look bad. I just want to tell you my opinions based on what I understand the facts to be. Q The facts are that Northbrook used 140, did they not, to calculate salvage and to calculate replacement; did they not? A The person that did that— THE COURT: Can you answer that question? A No. It looks like they used 140 because that was the 70a Appendix Windt—Cross 434 policy limit which is not how you do the equation. BY MR. ANGINO: Q Do they have ACV before it? A And then a policy limit written after it. Q But they have ACV before it? A I said before they have ACV before it, and it says $140,000.00 policy limit. And ae wouldn’t use the policy limit in the equation. THE COURT: I think we are getting into more argument than we need to, gentlemen. Do you have any more questions you want to ask this witness? MR. ANGINO: I would like to finish this. I would like toe THE COURT: I don’t know what you are driving at at this point. MR. ANGINO: What I am driving at is— THE COURT: You don’t have to explain to me. Go ahead with your questions. BY MR. ANGINO: Q Does that start with ACV of 140? A The letters ACV are on there, and then after the number it says policy limit. I can’t tell you anything more than what it says. Q But it has— THE COURT: We will let the jury interpret what the SE Tla Appendix Windt—Cross 435 meaning of those letters are and the numbers. BY MR. ANGINO: Q Does it have the word sal with $90,000.00? A Yes. Q Does it have $50,000.00 after that? A Yes. Q Does it have $1,000.00 after that? A Yes. Q So that at this point in time, you have indicated the repair cost as estimated from the insurance company was $43,300.00; is that right? A Correct. Q And the figure here is $49,000.00; is that right? A The incorrect figure on that piece of paper is $49,000.00. Q So that at this point in time, the insurance company opted to go with the repair; is that right? A Obviously, it opted to go with the repair, yes. Q And that repair therefore meant that this machine was not done until June 25th; is that right? A Correct. That is how long the repair took. Q So that the decision that was made then to save $5700.00 meant the machine would not be getting to Syracuse for another March, April, May, June, four months; is that right? 72a Appendix Windt—Redirect, Recross 436 A I disagree with your question for the reasons I have already explained. The correct number would be $70,000.00 as opposed to $43,000.00. MR. ANGINO: No further questions. MR. ZELLE: Brief redirect, Your Honor. REDIRECT EXAMINATION BY MR. ZELLE: Q If Northbrook had decided to simply pay the $50,000.00, would Mr. DeLine have had his drill back any faster? A Not as far as I know. Q He would have had $50,000.00, but he still wouldn’t have his drill, and his drill couldn’t have been repaired any faster based on what you have looked at; could it? A All I know is from what Mr. Stanford testified that if he had taken Mr. Stanford's recommendation of using Carbough, that he would have had it quicker. Q But— A That is all I know. MR. ANGINO: I have to ask one question. A Sure. RECROSS EXAMINATION BY MR. ANGINO: Q Mr. DeLine wouldn't have gotten—he would have gotten $140,000.00 to go out and by a drill; is that right? Under the salvage basis, the company keeps the salvage for the 90, he 73a Appendix Windt—Recross 437 gets $140,000.00. He can go out and buy a drill? A Right. If this was a total lose, if the insurance company determined it was a total loss, they would pay $140,000.00 and typically keep the rest as salvage value under the terms of the policy. Obviously, they opted the much cheaper route which they had the perfect right to do legally, which was to end up paying $43,000.00 and change. Q What I am saying in response to Mr. Zelle’s question is the calculations that are done here give Syracuse 140, and they can go out and then buy a drill; right? That is the calculation? A That is not what they did with the money. The idea is should the insurance—was the insurance company obligated to give your client $140,000.00 rather than having it repaired which they expected would cost them $43,000.00? And the answer is obviously since they had the right under the policy—it is not unusual; it is a standard policy—to only pay $40,000.00, who in their right mind would pay $140,000.00 and then supposedly be guilty of bad faith because they elected to pay what they had the right to limit their obligation to, which is $43,000.00? Q Did the repairs come out to be $50,000.00? A Tam talking about what their obligation to pay was. Q Didn't it come out to be fifty some thousand? 74a Appendix Windt—Recross 438 A It was another 2500 more than what they expected to psy: Q What was the final repair bill? MR. ZELLE: Beyond the scope, Your Honor. A The final repair bill was $44,000.00 and change less the $4,000.00 in depreciation. My recollection is it ended up costing $40,000.00 to the insurance company. But I could be off slightly. THE COURT: All right. Is that all? MR. ANGINO: Yes. THE COURT: Thank you. A Thank you, Your Honor. MR. ZELLE: Is defense rests, Your Honor. THE COURT: Very well. Any rebuttal testimony, Mr. Angino? MR. ANGINO: If I could have one minute, Your Honor. THE COURT: Yes. MR. ANGINO: Your Honor, Plaintiff Exhibit Number 34 indicates that the final repair bill— MR. ZELLE: Objection, Your Honor. Is he offering the exhibit? MR. ANGINO: Yes. MR. ZELLE: Let me take a look at it, and I will let you know if I have any objection. There are two exhibits ... . ait Appendix IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 97-CV-1405 SYRACUSE EXPORATION COMPANY, Plaintiff V. NORTHBROOK PROPERTY AND CASUALTY | INSURANCE COMPANY, Defendant TRANSCRIPT OF PROCEEDINGS VOLUME 2 BEFORE: HON. WILLIAM W. CALDWELL, Judge DATES: June 8 and 9, 1999 PLACE: Courtroom Number Three Federal Building Harrisburg, Pennsylvania COUNSEL PRESENT: RICHARD C. AN GINO, Esquire For—Plaintiff ANTHONY ROBERT ZELLE, Esquire For—Defendant Vicki L. Fox, RMR Official Reporter 76a Appendix 447 ... this company is certainly good for any punitive award that it might enter in this case, which is a rather small case when you compare it to the size of the company. MR. ANGINO: Sure. What is the time we are going to start tomorrow, Your Honor? THE COURT: Nine. MR. ANGINO: Thank you. Do you want to start with the jury charge conference tomorrow morning or closing argu- ments? THE COURT: I don’t plan to hold a charge conference. I don’t usually do that: The law is very clear here. MR. ZELLE: That is fine. I would like to know when if I have any objection to the jury charge—I don’t want to do it in front of the jury obviously. THE COURT: I think after I deliver my charge if you have any objections, you can come to sidebar, and we will put them on the record. MR. ZELLE: That is fine. Thank you. THE COURT: I will correct anything that I misquoted to the jury. But I have charged jurors on this exact thing, and I think my charge is within the limits of the law. MR. ZELLE: Your Honor, I would certainly never sug- gest that it wasn't. 77a Appendix Charge of the Court 479 AFTER RECESS THE COURT: Thank you, ladies and gentlemen. I am sure at this point you don’t need me to tell you the very important role that you play in the administration of justice and, of course, in this specific case. This is because the determination of the facts in this case is exclusively for you. It’s your duty as jurors to follow the law that governs the case, and you shouldn't disregard what I tell you about the law. But as to the facts in the case, you collec- tively are the exclusive judge. In arriving at the facts, you must consider only the evi- dence in the case. But you are, of course, permitted to draw such reasonable inferences from the testimony and the exhib- its that you feel are justified in light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts. If your recollection of the evidence differs from anything that might have been expressed by counsel or that I might say, it is your collective recollection of the evidence which should govern. If the inferences that vou think should be drawn from the facts differ from anything that has been suggested again, follow the inferences that you think should be drawn. 78a Appendix Charge of the Court 480 And if your judgment of what the evidence has proved differs from what might have been argued or suggested by counsel or anything that I might say, follow your own judg- ment. You are not to infer from this that you are to ignore what counsel have said to you in their closing arguments. It is not only your right, but it is your duty to consider their arguments and to view and examine the evidence in light of what they have said. However in the final analysis, you have the right to reject any argument that you don’t think follows from the evidence because the determination of the facts in this case is exclusively for you. Your verdict must be unanimous. All eight of you must agree in a result before we can accept it as a verdict. As we well know, this is a civil action brought by Syracuse Exploration Company against the Northbrook Casualty or Property and Casualty Insurance Company. In every civil proceeding, whether it is in a state or a federal court, a person or a plaintiff who makes a claim against another has what we call the burden of proof. The burden of proof sometimes depends upon the type of claim that is being made. In this case where the defendant is being accused in dealing with the plaintiff in bad faith, the law requires the 79a Appendix Charge of the Court 481 plaintiff to satisfy you, the fact finders, that it is entitled to recover by clear and convincing evidence. Clear and convincing evidence is evidence that is so clear, direct, weighty and convincing that you can come to a decision without hesitation. Most civil cases have a less strict burden of proof. In most civil litigation, a plaintiff must prove a case by what we call a fair preponderance of the evidence. Proof by a preponderance of the evidence is proof that a ‘point being advanced is more likely so than not so. Proving a case by clear and convincing evidence is a heightened standard imposed by the law in cases where bad faith is claimed. As I mentioned at the beginning of the case, one of the most important functions that you serve as a juror is to judge the credibility of the witnesses. And by credibility, we mean the worthiness of belief in what a particular witness says. You must determine which of the witnesses you believe, what portion of their testimony you accept, and what weight you might attach to it. Credibility is not limited to just truthfulness or the lack of truthfulness: although, of course, that is obviously very important. But credibility also includes accuracy of recollection, accuracy of observation, and whether a wit- 80a Appendix Charge of the Court 482 ness is giving dependable testimony that you can use in per- forming your fact finding function. It is possible that a witness intends and desires to tell the truth and yet through faulty memory, poor observation, the passage of time or for many other reasons is honestly mistaken. So you must determine how much of the testimony is truthful, as well as how much is reliable and correct. In passing upon the credibility of each witness who testi- fies, you have a right to assess their apparent accuracy of memory and observation, their appearance and conduct as they testify, and the manner in which they testify. Do they seem to be forthright? Did they show any bias? Are they evasive? Are they candid and fair in what they tell you? You can consider all the surrounding circumstances in judging credibility, including the interest that a witness might have in the outcome of the case. The parties, themselves have an obvious interest, but it is possible that other persons who testify have a less direct interest in the case and for some reason may have cause to color their testimony. You must attempt to reconcile conflicting evidence, then determine what testimony is worthy of reliance and belief and what is not. 8la Appendix Charge of the Court | 483 There was one witness called in this case to testify that we call an opinion witness. Northbrook called a witness who expressed opinions about how Northbrook handled the plain- tiff's claim. I will tell you just a word or two about evaluating the testimony of someone who testifies and is permitted to express an opinion. Frequently the issues in a case involve matters of special- ized knowledge or experience that can’t be determined from deductions or inferences drawn on the basis of our everyday knowledge, common sense or practical experience. Issues of this kind create the necessity for the admission into evidence of the opinions or conclusions of people who are shown to be qualified and experienced in the particular field in question. However, you should also realize, as I am sure you do, that a witness's opinion is just that. It is an opinion. It creates no fact. It is what the witness thinks about something. And the thought may be accurate or inaccurate and yet represent the honest conviction of the person who expresses it. The importance of or the weight to be given to opinion testimony is again exclusively for you to decide. In determining the weight to be given to that testimony, consider the qualifications and credibility of the witness 82a Appendix Charge of the Court 484 and the reason he gives to support his opinions. While opinion witnesses may have special knowledge on a certain subject, their testimony is evaluated in the same way as other witnesses. So in evaluating the opinion of an expert witness, as we sometimes call them, you should as in any other case apply your common sense, your good judgment and your experience as you weigh the opinion given and the basis for that opinion. You are not bound to accept the conclusion of an opinion witness if your judgment of all of the evidence leads you to reject the opinions that have been expressed. Of course, Northbrook is a corporation as is the plaintiff, and these companies can act only through its employes or agents. In general, a corporation is liable for the conduct of its employes or agents who act within the scope of their authority. And in this case, there is no dispute that the representatives of the two corporations acted within the scope of their employ- ment and authority. Both parties in this case are corporations, and the law treats them the same as it would treat an individual litigant. This brings us then to the specific issue in this case, and that is the issue, of course, of bad faith. The attorneys have expressed in summary form their own understanding of the law in the area of bad faith. 83a Appendix Charge of the Court 485 In a case like this it is necessary for them to some extent to refer to the law. But in our system of jurisprudence you, the jury, must take the law on the subjecc before you from the Court. Because of the importance of this law in resolving this case, I would ask that you listen carefully as I explain the law concerning bad faith and what a claimant is required to show in order to prevail. As we all know, this suit involves the allegation that Northbrook acted in bad faith in handling the claim presented to it by its policyholder Syracuse Exploration Company for damage to a drill that had been insured. There is a statute in Pennsylvania—and Pennsylvania law governs this case—that requires an insurer to deal in good faith in handling the claims of its insureds. And plaintiff contends that the defendant violated this law. Your responsibility will be to determine whether bad faith has been shown by all of the evidence remembering that the burden of proof requires the plaintiff to prove bad faith by clear and convincing evidence. While the Pennsylvania statute does not define bad faith, it has been given a well defined meaning in the Pennsylvania Courts that have interpreted this law. Bad faith is defined as any frivolous or unfounded refusal to pay 84a Appendix Charge of the Court 486 what is due an insured. For the purposes of a claim against an insurer for bad faith in failing to pay a claim in a timely fashion, negligence or poor judgment in handling a claim is not bad faith. Even gross negligence by an insurer is insufficient to support a finding of bad faith. Now it is not necessary that the insurance companies be fraudulent. Rather bad faith can exist where an insurance company’s evaluation of a claim is less than honest and objec- tive. That is because an insurer has a duty to act in good faith, and good faith requires that the insurer act honestly and objectively in evaluating a claim, that it promptly adjust and pay a valid claim without unnecessary delay, and that an insurance company give its insured’s interests the same con- sideration as it gives its own. In addition to providing a general definition of bad faith, Pennsylvania Courts have developed a two part test to deter- mine whether bad faith exists. This is the test you should apply in determining whether Syracuse has established by clear and convincing evidence that Northbrook acted in bad faith. The first element in this test is whether the insurance company had a reasonable basis for any delay that resulted in paying its insured’s claim. If you find that Northbrook did not ~ respond promptly to plaintiff's claim or delayed in issuing a 85a Appendix Charge of the Court 487 decision concerning repair or replacement, you must deter- mine whether Northbrook had a reasonable basis for its ac- tions. Remember, however, that whether a person acts reason- ably is not the same as whether he has acted correctly. A person can be incorrect in a decision or an action and yet still be reasonable under the facts as they were known at the time the decision was made or an action was taken. The second element of the test for bad faith that must be shown is whether the insurance company knew that it lacked a reasonable basis for delaying payment of the claim or reck- lessly disregarded the question of whether it lacked a reason- able basis for its action. Thus if you find that there was no reason for Northbrook not to promptly authorize repair of plaintiff's equipment and payment of its claim, you must then determine whether it knew that it had no reasonable basis to delay or recklessly disregard the claim. In this context, to recklessly disregard facts means to consciously disregard them. An example would be a situation where Northbrook had no reasonable basis to delay authoriz- ing the repairs to plaintiff's drill, but did not know it had no basis to delay because it had not conducted an investigation and evaluation in a timely fashion. 86a Appendix Charge of the Court 488 If you find that Northbrook consciously decided for im- proper reasons not to investigate or evaluate or consciously decide to delay plaintiff's claim, then you could find it acted in bad faith. However if you find that Northbrook did not consciously fail to resolve plaintiff's claim in a timely fashion, there would not be bad faith. In other words, Northbrook or any other insurance com- pany is not permitted to bury its head in the sand to avoid determining whether a claim should be paid. If there was a delay in evaluating or paying a claim, ask whether there was a reasonable basis for the delay. If so, there can be no bad faith. Remember the plaintiff must prove both elements of the test for bad faith by clear and convincing evidence, not merely by insinuating that Northbrook acted in bad faith. As I stated earlier, clear and convincing evidence is evidence that is so clear, direct, weighty and convincing that it enables you, the jury, to make a decision without hesitation. Now this is not a situation where you look back and say what might have been done better by Northbrook with regard to plaintiff's claim. In other words, we don’t engage in Monday morning quarterbacking. 87a Appendix Charge of the Court 489 What you must and should do is consider the information Northbrook had at the time these events transpired. And also look at what Northbrook and its agent Stanford did in handling the claim. You may consider how Northbrook responded to the initial notice of loss, the process by which it determined that the drill should be repaired rather than replaced, and the manner in which it issued payment for the claim. Remember, however, that the Court has already deter- mined that Northbrook has paid Syracuse the proper amount for repairing the drill. So the only issue for you to decide is whether Northbrook’s handling of that claim was done in bad faith. That brings us then to the question of damages that might be filed—might be applied here in the event of bad faith. The Pennsylvania bad faith statute allows an award of punitive damages if you conclude that the insurance company acted in bad faith. So if you find bad faith, you must then determine whether plaintiff should receive punitive damages. These damages are awarded in exceptional cases as a punishment of a defendant and as a warning to others to keep them from acting in the same manner. 88a Appendix Charge of the Court | 490 Punitive damages are appropriate only where a defen- dant’s conduct is especially egregious. The burden of proof in this case—in this part of the case as to the imposition of punitive damages is by a fair preponderance of the evidence. As I said earlier, the burden of proof by fair preponder- ance of evidence means proving that something is more likely so than not so. Another example is using the scales of justice, and if the evidence for plaintiff tips the scales even slightly on a particular point, then he has prevailed as far as proving that point by a fair preponderance of the evidence. You may award punitive damages if you determine by a preponderance of the evidence that the defendant’s conduct was outrageous, done with an improper motive or with a reckless indifference to the interests of its policyholder Syracuse Exploration Company. In this context, the term reckless means that the defen- dant knew ofa risk of a harm to the plaintiff, and it deliberately proceeded to act or failed to act in conscious disregard of or indifference to that risk. Punitive damages are not to be lightly imposed and may not be awarded for misconduct that constitutes such things as carelessness, negligence, inadvertence, mistakes and errors of judgment. Nor may they be awarded for conduct that 89a Appendix Charge of the Court 491 rises only to the level of gross negligence. Simply put, before punitive damages are appropriate, it must be shown that a defendant’s conduct was outrageous. To summarize, if you determine that the actions of North- brook’s employes or agents constituted bad faith, you may impose punitive damages only if the following factors are present: First, the conduct must be clearly outrageous; and second, the actions must not have been done to satisfy an individual’s personal will or malice, but with the intent to further the interests of the insurance company Northbrook. If you conclude that the facts justify an award of punitive damages, you should try to determine a fair, just and reason- able amount for the plaintiff under all of the circumstances. As I said, punitive damages are not intended to compen- sate a plaintiff for injury, but rather are designed to punish a defendant and to prevent similar conduct in the future. In considering an appropriate award, you may consider the character of Northbrook’s actions, the nature and extent of the harm to Syracuse which Northbrook caused or intended to cause, the financial condition of the defendant insofar as it is relevant to fixing an amount which will punish and deter it. 90a Appendix Charge of the Court 492 Any award you make must be unanimously agreed upon and must be reasonable under all of the circumstances. Now it doesn’t follow that punitive damages must be awarded if you find that Northbrook acted in bad faith. Whether punitive damages should be paid is a separate issue, and plaintiff must prove by a fair preponderance of the evi- dence that the circumstances in the case warrant the imposi- tion of imposing a punishment of this nature on the defendant. In effect, you have the discretion as to whether the situation calls for an award of punitive damages. Finally, you should know that in addition to permitting an award of punitive damages for an insurer's bad faith, the Pennsylvania Act also provides for certain other categories of recoverable damages and costs. However, the Act provides that these items are awarded by the Court at a later point if you find that the defendant acted in bad faith. So you will only be dealing with the question of punitive damages. Gentlemen, that concludes my charge. I would next in- tend to go over the verdict form with the jury unless you have exceptions to what I have said so far or any requests for further instructions. MR. ANGINO: Can we take one minute? THE COURT: Sure. Indulge us for just a moment, Charge of the Court ladies and gentlemen. (There was an off-the-record discussion at sidebar.) THE COURT: I have asked Mrs. Michael to provide each of you with a copy of the verdict form as it may be of assistance to you in deciding the case. All of the exhibits will come over to you after you retire, and you may look at all those exhibits. And they are a part of the evidence in the case that you may consider. The testimony of the witnesses is something you are going to have to recall collectively. Because at this point, we really don’t have any way of telling you what a particular said on a particular point. But if you do have a question about anything like that, we will certainly attempt to assist you. So don’t hesitate to present it to us. If you have any questions about my instructions, or the law, or you want further explanations or clarifications, just send me a note, and we will certainly accommodate you in that regard. Insofar as the verdict form is concerned, I think you will see that it pretty much tracks what I have said to you in my charge. First, has the plaintiff proved by clear and convincing evidence that defendant acted in bad faith in the handling of 92a Appendix Charge of the Court 494 plaintiff's insurance claim? And by unanimous agreement, you simply check the no or the yes line to that question. If you answer no, then you would sign the form and return to the courtroom. But if you answer yes, you proceed to question two, has plaintiff proved by a preponderance of the evidence that it is entitled to punitive damages? And again, you indicate an answer to that question. If you answer no, you sign the form. But if you answer yes, you go on to the third question and indicate the total punitive damages to which the plaintiff is entitled. One of your number should be selected to chair your deliberations. That person will also sign the form where the foreman’s signature line is. And we will be prepared to receive your verdict when you reach it. As I said to you before, this is an important case. It is important to the plaintiff because it feels that its claim was handled improperly and in bad faith. It is equally important to © the defendant because it believes that it is being asked to pay for something for which it is not responsible, and that under the circumstances, it dealt properly with the plaintiff's claim. Your decision should be based upon the evidence. You shouldn’t allow any emotion to enter into your delib- erations or into your verdict such as sympathy or prejudice 93a Appendix Charge of the Court 495 or anything of that kind. Treat the parties equally, and base your decision on the evidence that you have heard as I am sure you will. If there is nothing further, then we will ask the jury to retire. (The Courtroom Deputy Clerk was duly sworn.) THE COURT: Folks, you may retire and we will send the verdict—the exhibits over to you. (The jury retires to deliberate at 10:45.) THE CCURT: Mr. Zelle, I believe you indicated you wished to put something on the record concerning the charge. I asked you to wait until the jury retired. So at this time, you may place that on the record. MR. ZELLE: For the record, Your Honor, note North- brook’s objection to the charge specifically on the issue of punitive damages. The objection is simply not to the wording at all, but based on the fact there has been no evidence to support such a charge. Secondly, as I mentioned and requested an instruction that it is not bad faith for a lawyer to produce records that were never requested. And although an argument would clearly be sought to establish that, I think the charge would be an appropriate point to make that known as well. THE COURT: Okay. | MR. ANGINO: Your Honor, could I put on the record 94a Appendix Charge of the Court 496 my comment to you that since this was a diversity case, I thought the five-sixth state rule wouid apply. THE COURT: Okay. Fine. We will be in recess now. The jury is going to receive its lunch at 11:30. I don’t think they will be returning a verdict. However, you should be available in the event they have a question. Probably, they won't have a question before lunch, but you never know. If you want to go back to your office— MR. ZELLE: It’s your call. Do you want us to hang around until lunch? THE COURT: I don’t want to say that. Just be some- where where we can get you in ten minutes or so. Let Mrs. Michael know where you are going to be. (A recess was taken.) AFTER RECESS (The following discussion was had in the courtroom at 1:10 PM:) THE COURT: Ladies and gentlemen, we appreciate your deliberations and your efforts to resolve this case. We wish to respond at this time to your two inquiries. The second one, which I will address first, asks whether we could clearly define bad faith in layman’s terms and could you give us a hard copy for reference? 95a Appendix Charge of the Court 497 It is pretty hard to explain this concept in any way other than what I did. I tried to make it as understandable as possible. We will provide you with a written copy of those instructions, and I am sure with the written copy that you won’t have any trouble understanding hopefully what is required to be proved to prove bad faith. The other question you asked involves Exhibit 34, Plain- tiff Exhibit 34, specifically whether the—off the record. MR. ANGINO: It is the second page of 34. It is a proof of loss. It is not in 34. It would be in 36. THE FOREMAN: Ft was in 34 that we had. MR. ANGINO: They tater changed it. 34 is what they first sent, and then later they changed it. THE COURT: I think we will have a copy now of what you are referring to. Yes, in paragraph nine, there is printing undisputed amount. And your question is does adding that word mean that the plaintiff gives up the right to future claims? Let me answer that by saying that paragraph nine pro- vides that the insured agrees to accept full payment in satis- faction and compromise of all claims under the policy by reason of said loss or damage. What was intended by adding the words undisputed amount in my mind at least was not particularly clear, and I 96a Appendix Charge of the Court 498 don’t think that that should be the focus of the inquiry. Does _ that in any way assist you? (The jury indicates in the negative.) THE COURT: The signing of the regular proof of loss would give up all claims under the policy. A bad faith claim would not be a claim under the policy. What they meant by undisputed amount when that was printed on there, I don’t know. I don’t think anybody—who- ever put it there, I don’t think testified what it was intended to mean. I think it is ambiguous. So I would not suggest that you dwell on it. But, of course, you are free to consider the facts. Does anybody else—maybe you can clarify what your concern is for me. THE FOREMAN: Our concern was whether or not the wording even though it was not requested to be worded that way on the check, whether or not that was an intentional way to word that. THE COURT: I think that is a conclusion that the jury is going to have to consider if you think that it is important on the issue of bad faith. But I don’t think anybody—I don’t know that Mrs. Hall was asked. I don’t know if she put it on there or who put it on there. Whoever did didn’t testify what it was intended to mean. I think it’s an ambiguous situation. I don’t know how you can 97a Appendix Charge of the Court 499 draw too many conclusions about it. Okay? A JUROR: My concer was if they cashed the check, does that mean that that case is done? They can’t go back later and say that something else was wrong and go back with the difference. THE COURT: If they cashed the check and signed this release, they can’t go back and complain about anything under the policy. But that doesn’t preclude the claim that they have brought because I am sure they did sign some sort of a release to get the check which—they have gotten the check. MR. ANGINO: Your Honor— THE COURT: Isn’t that true? I know you were involved in it. MR. ZELLE: This should probably be outside the jury— THE COURT: Yes. (An off-the-record discussion was had at sidebar.) THE COURT: I don’t feel that I can say any more about that exhibit. I think if there was testimony about how that language was interpreted and why it was interpreted the way it was, that is just something you have to consider. Legally I think it is an ambiguous two words that—I don’t know what it means or what the result of it would be if 98a Appendix Charge of the Court 500 it came down to it. That is as much help as I think we can give you. Okay. THE FOREMAN: Okay. THE COURT: You have copies of these exhibits, don’t you? THE FOREMAN: Thank you, Your Honor. THE COURT: Perhaps after further deliberations, you might want to refine the question again if it is really important to you. I don’t want to cut you off at all. Based on the question that you have asked, I don’t think I can say any more at this time. Okay. You may retire and continue your deliberations. Thank you very much. THE CLERK: Court is in recess. (The jury exits to deliberate in the jury room at 1:18 PM.) (A recess was taken.) (The jury has a verdict at 2:05 PM.) THE COURT: We understand you have arrived at a verdict, ladies and gentlemen. We would like to have the verdict form at this time. (Handed to the Court.) _ THE COURT: You are the Foreperson of the jury, is that correct? THE FOREPERSON: Yes, sir. 99a Appendix Charge of the Court 501 THE COURT: Would you answer on behalf of the jury, please? Has plaintiff proved by clear and convincing evidence that the defendant acted in bad faith in the handling of plaintiff's insurance claim? THE FOREMAN: No. THE COURT: Thank you. You may be seated. Ladies and gentlemen, your Foreman has indicated that your answer to the first verdict question is no. Is this your individual answer? (The jury indicates in the affirmative.) THE COURT: Is there anyone who does not agree to that answer to that question? All right. We accept this then as an unanimous verdict, and we will enter a judgment in favor of the defendant on plaintiff's claim. I want to thank you for serving as a juror in this case. It was not an easy one I am sure. I hope that the experience of being with us and serving as a juror has given you alittle insight — into the operation of the courts on a first hand basis. I won't ask you whether you enjoyed it, but we do appre- ciate you being here very much. You may be excused at this time. Thank you. (The jury exits the courtroom.) THE COURT: If there is nothing further, we will ad- journ. rari i i 100a Appendix Charge of the Court 502 MR. ZELLE: Thank you, Your Honor. THE CLERK: Court is adjourned. (Whereupon, the proceedings were concluded.) I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same. /s/Vicki L. Fox, RMR Official Reporter The foregoing certification of this transcript does not apply to any reproduction by any means unless under the direct control and/or supervision of the certifying reporter. Errata in original. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1474%3A1. Public record. Not legal advice.