Progressive West Insurance Com v. Craig Tiscareno
PROGRESSIVE WEST INSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellant, v. Craig TISCARENO; Teresa Tiscareno, Defendants-Counter-Claimants-Appellees
- Area
- other
- Panel
- Marsha S. Berzon (author), Smith, Richard C. Tallman
Analysis
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Opinion
FILED NOT FOR PUBLICATION APR 11 2013
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PROGRESSIVE WEST INSURANCE No. 11-57033 COMPANY, D.C. No. 3:08-cv-00180-H-CAB Plaintiff-counter-defendant - Appellant, MEMORANDUM * v. CRAIG TISCARENO; TERESA TISCARENO, Defendants-counter-claimants - Appellees.
Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Submitted April 9, 2013 ** Pasadena, California Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Progressive West Insurance Company (“Progressive”) appeals from a final judgment entered by the district court in favor of Craig Tiscareno and Teresa Tiscareno. The district court entered judgment after a jury found, in a special verdict, that Progressive had unreasonably failed to accept the Tiscarenos’
settlement demand. Progressive contends that the district court erred in denying its pre-verdict motion for judgment as a matter of law, and argues that the jury’s verdict is not supported by sufficient evidence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment.
“[A] post-verdict motion under [Federal Rule of Civil Procedure] 50(b) is an absolute prerequisite to any appeal based on insufficiency of the evidence.” Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007); see also Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400–01 (2006).
Because Progressive failed to file a post-verdict Rule 50(b) motion, Progressive has forfeited its right to challenge the jury’s verdict based on sufficiency of the evidence. In the absence of a Rule 50(b) motion, an “appellate court [i]s without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.” Cone v. W. Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947). As a result, we are precluded from granting the relief sought by Progressive, entrance of judgment notwithstanding the verdict.
2 Even if we were to consider the merits of Progressive’s arguments on appeal, we would conclude that the district court’s judgment was not erroneous as a matter of law and the jury’s verdict was supported by sufficient evidence. There was a legally sufficient evidentiary basis for a reasonable jury to find that Progressive “unreasonably fail[ed] to accept a reasonable settlement demand for an amount within the policy limits between April 16, 2007 and May 18, 2007.”
Judgment, Progressive West Ins. Co. v. Tiscareno, No. 3:08–cv–00180–H–CAB, Dkt. No. 138 (S. D. Cal. Oct. 26, 2011); see Fed. R. Civ. P. 50(a); see also Bell v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003).
AFFIRMED.