UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TONI H. JEFFRIES,
Plaintiff-Appellant,

and

KERMIT C. ZEIG, JR.,
                                                                   No. 97-1398
Plaintiff,

v.

PACIFIC INDEMNITY COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-821-A)

Argued: October 27, 1997

Decided: December 17, 1997

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and MERHIGE, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: August William Steinhilber, III, BRAULT, PALMER,
GROVE, ZIMMERMAN, WHITE & MIMS, Fairfax, Virginia, for
Appellant. Craig David Roswell, NILES, BARTON & WILMER,
Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this action for breach of contract, Appellant Toni Jeffries held
a homeowner's policy issued by Appellee Pacific Indemnity Insur-
ance Company (Pacific Indemnity) that included schedules covering
seventeen items of jewelry. When Pacific Indemnity denied a claim
for the value of fourteen items of covered jewelry that were allegedly
lost, Jeffries brought this action against Pacific Indemnity for breach
of contract and bad faith. On appeal from a jury verdict in favor of
Pacific Indemnity, Jeffries argues that the district court abused its dis-
cretion by (1) admitting certain documents into evidence, and (2)
instructing the jury that Jeffries had to prove she owned all the items
of jewelry in order to prevail in the lawsuit. Because we conclude that
the district court did not abuse its discretion in taking these actions,
we affirm the judgment of the district court.

I.

In 1993, Pacific Indemnity issued a homeowner's insurance policy
to Jeffries and her husband, Kermit Zeig. At the time of the alleged
loss, the policy contained schedules insuring seventeen specific items
of jewelry worth well over $300,000. The insurance policy also con-
tained the following provision:

          Concealment or Fraud. We do not provide coverage if you
          or any covered person has willfully concealed or misrepre-
          sented any material fact relating to this policy before or after
          loss.

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Jeffries asserts that on March 8, 1994, fourteen items of the insured
jewelry disappeared sometime after Zeig placed them in his car in a
plastic bag. Zeig allegedly ran various errands that day with the jew-
elry in the car. When he returned home that evening, Zeig believed
that the jewelry was still in his locked car. The next day, however, he
found the jewelry missing. The car showed no signs of forced entry.

Jeffries filed an insurance claim with Pacific Indemnity, requesting
payment for the value of the lost jewelry. In the course of investigat-
ing the claim, Pacific Indemnity alleges it found irregularities that led
it to deny the claim. Pacific Indemnity asserted that Jeffries and Zeig
had intentionally concealed and/or misrepresented material facts both
(1) when they applied for policy coverage, and (2) during the course
of the claim investigation. Pacific Indemnity believed that the loss, if
it occurred at all, was intentionally caused by Zeig and/or Jeffries.
When Pacific Indemnity refused to pay on the claim, Jeffries filed this
suit in Virginia state court for breach of contract and bad faith.*
Pacific Indemnity removed the case to the United States District
Court for the Eastern District of Virginia.

The district court's scheduling order required the parties to bring
to the pre-trial conference a list of all exhibits to be used at trial. The
scheduling order provided that "exhibits not so disclosed and listed
will not be permitted at trial except for impeachment or rebuttal." The
parties completed discovery, and the case proceeded to trial.

At trial, Jeffries presented little proof that the jewelry had ever
been purchased. With respect to five of the items in particular, having
a cumulative value of $81,000, Jeffries offered no evidence to support
their existence. In short, Jeffries relied largely on her own testimony
to establish that she owned all fourteen jewelry items for which she
had filed the insurance claim. It is clear from the record that, while
Jeffries may have proved ownership of some of the items, she did not
prove she owned all the jewelry at the time of the alleged loss.

Pacific Indemnity, on the other hand, presented evidence that Jef-
fries did not own some of the items of jewelry on the day of loss. This
_________________________________________________________________
*Zeig was originally a party plaintiff to the case but, on the first day
of trial, he was voluntarily dismissed.

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evidence included three documents, labeled as Defendant's Exhibits
25, 26 and 27, which were not disclosed at the pre-trial conference but
which the district court admitted into evidence. Pacific Indemnity also
presented other evidence that Jeffries had made material misrepresen-
tations while contracting for the policy and while filing this insurance
claim.

After hearing all the evidence, the jury retired to deliberate. The
jury deliberated for approximately one and one-half hours before
referring a question to the district court. This question read, "[D]o we
need to decide that the plaintiff owned all items at issue or could we
decide she owned some of them?" Over Jeffries' objection, the district
court responded, "The claim at issue in this case is for all the items
at issue. If the plaintiff cannot prove by a preponderance of the evi-
dence that she owned all the items of jewelry and that they were all
lost, she cannot prevail in this lawsuit."

The jury thereafter returned a verdict in favor of Pacific Indemnity.
In a special interrogatory, the jury found that Jeffries did not own the
jewelry items at issue on the date of the alleged loss. Accordingly, the
jury denied her any recovery. The district court entered judgment in
favor of Pacific Indemnity, and Jeffries filed a timely appeal to this
court.

II.

A.

Jeffries first argues the district court erred by admitting Defen-
dant's Exhibits 25, 26 and 27 into evidence. We review a district
court's decision to admit exhibits into evidence for an abuse of discre-
tion. See Brinkley-Obu v. Hughes Training, Inc. , 36 F.3d 336, 355
(4th Cir. 1994).

B.

Jeffries asserts that, since Pacific Indemnity failed to disclose these
exhibits in the pre-trial conference, the district court violated its own
scheduling order by admitting these documents into evidence. We

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have examined the record, the exhibits in question, and the cases to
which Jeffries cites, and can find no abuse of discretion. It is clear
from the record that these exhibits were being used to impeach the
credibility of Jeffries and Zeig. As such, they were admissible under
both the district court's scheduling order, which stated undisclosed
exhibits could be used for impeachment or rebuttal, and the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 26(a)(3)(C) ("a party
shall provide to other parties [an appropriate identification of each
document] that it may present at trial other than solely for impeach-
ment purposes."). Consequently, we hold that the district court did not
abuse its discretion in admitting these exhibits into evidence.

III.

A.

Jeffries next asserts the district court erred by instructing the jury
that Jeffries had to prove she owned all the jewelry to prevail in this
lawsuit. We review a district court's decision to give or not to give
a jury instruction, and the content of that instruction, for abuse of dis-
cretion. See United States v. Bostian, 59 F.3d 474, 480 (4th Cir.
1995). "We will not reverse a judgment because of an erroneous jury
instruction if `viewed as a whole and in the context of the trial, the
charge was not misleading and contained an adequate statement of the
law to guide the jury's determination.'" United States v. United Med.
& Surgical Supply Corp., 989 F.2d 1390, 1407 (4th Cir. 1993) (quot-
ing United States v. Park, 421 U.S. 658, 675 (1975)). When faced
with a challenge to a supplemental instruction, we inquire whether the
supplemental instruction fairly responded to the jury's question with-
out creating prejudice. Id.

B.

In essence, Jeffries argues here that she should have been able to
recover for those items of jewelry which she did prove she owned.
We find this argument to be without merit. First, the record reveals
that Jeffries brought this case on an "all or nothing" basis. Her com-
plaint stated that she owned the fourteen items of jewelry allegedly
lost, and she sued to recover their entire value. Furthermore, Jeffries
never argued during trial that the jury could compensate her for the

                     5
loss of any particular item she proved she owned. Second, if Jeffries
misrepresented her ownership of any of the items she reported lost,
then under the terms of the insurance policy she would be entitled to
no recovery. We conclude the supplemental jury instruction fairly and
accurately explained this provision of the insurance policy. Finding
no error, therefore, we hold that the district court did not abuse its dis-
cretion in giving this supplemental instruction.

IV.

Because we hold that the district court did not abuse its discretion
by admitting Defendant's Exhibits 25, 26 and 27 into evidence, or by
instructing the jury that Jeffries had to prove ownership of all the jew-
elry allegedly lost in order to prevail in this suit, we affirm the judg-
ment of the district court.

AFFIRMED

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