                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0308n.06

                                         No. 14-5597

                         UNITED STATES COURTS OF APPEALS                             FILED
                              FOR THE SIXTH CIRCUIT                              Apr 28, 2015
                                                                            DEBORAH S. HUNT, Clerk
CINCINNATI INSURANCE CO.,                              )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
LARRY BANKS, et ux.,                                   )       COURT FOR THE EASTERN
                                                       )       DISTRICT OF TENNESSEE
       Defendants-Appellees.                           )
                                                       )
                                                       )



BEFORE:       BATCHELDER, MOORE, and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. In this diversity case, Cincinnati Insurance

Company (“CIC”) appeals a verdict rendered against it in favor of Larry and Wanda Sue Banks

(collectively “Banks”), whose home was damaged by fire in 2011, and the district court’s

denying CIC a new trial. Banks insured the home through CIC, and although CIC cited several

reasons for not covering the damage, pursuant to Tennessee law CIC paid the mortgage balance

to the bank that held the mortgage on the property. CIC then filed suit against Banks to recover

that payment, and Banks filed a counterclaim seeking payment for the value of the property in

excess of the outstanding mortgage, as well as personal property. After discovery and an eight-

day trial, a jury rendered a verdict in favor of Banks. CIC raises fifteen issues on appeal

covering manifold aspects of this litigation. We AFFIRM.
No. 14-5597
Cincinnati Ins. Co. v. Larry Banks, et ux.

                              I. FACTS AND PROCEDURAL HISTORY

         Plaintiff Cincinnati Insurance Company (“CIC”) is an Ohio insurance company, and

Defendants Larry Banks and Wanda Sue Banks (“Banks”) are citizens of Tennessee. CIC

insured Banks’ residential property in Manchester, Tennessee. The policy covers the dwelling,

other structures, personal property, and any loss of use. The parties dispute whether this is an

“all-risk policy,” covering all direct physical loss unless otherwise excluded. On November 28,

2011, the property was damaged by fire.           On March 14, 2012, Banks filed a claim for

$1,904,309.64. On March 17, 2012, CIC denied the claim. Banks filed a second claim, wherein

they insist in a sworn statement:


                 The said loss did not originate by any act, design or procurement on the
         part of your insured, or this affiant; nothing has been done by or with the privity
         or consent of your insured or this affiant to violate the conditions of the policy or
         render it void; no articles are mentioned herein or in annexed schedules but such
         as were destroyed or damaged at the time of said loss; no property saved has in
         any manner been concealed, and no attempt to deceive the said Company as to the
         extent of said loss has in any manner been made. Any other information that may
         be required will be furnished and considered a part of this proof.

         CIC denied Banks’ claim on May 18, 2012. CIC’s letter reads in part:


         It is the opinion of [CIC] that the fire . . . was not accidental, as required by this
         insuring provision. It is further the opinion of [CIC] that you and/or others acting
         with your knowledge, consent and permission did intentionally set fire to the
         property for the purpose of destroying same and defrauding [CIC] . . . .”

The policy states, “‘Physical loss’ means accidental physical loss or accidental physical

damage.” However, the property was encumbered by a mortgage, and pursuant to Tennessee

law, CIC paid $587,176.44 to Peoples Bank & Trust Company for the damaged property.


         CIC filed suit against Banks in U.S. District Court for the Eastern District of Tennessee

on May 18, 2012, invoking the court’s diversity jurisdiction under 28 U.S.C. § 1332, and seeking

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Cincinnati Ins. Co. v. Larry Banks, et ux.

both declaratory and monetary relief. Banks responded with an answer and counterclaim on

June 4, 2012. CIC filed an amended complaint on June 12, 2012. CIC’s complaint asked the

court to declare that Banks’ claim is void due to breach of contract and intentional

misrepresentations, that Banks committed insurance fraud, and that an award of $670,139.36 in

damages is due CIC, derived from the CIC’s payment to People’s Bank, plus incidental and

subsequent costs, interest, and legal fees. Banks filed an amended counterclaim on August 10,

2012, followed by a second amended counterclaim on December 13, 2012, claiming (1) breach

of contract, (2) statutory bad faith, and (3) common law bad faith. On November 15, 2013, after

an eight day trial,1 the jury issued a verdict finding that Banks did not “willfully and knowingly

make a material misrepresentation to [CIC] with the intent to deceive” or “cause or consent to

the intentional burning of the insured property.” The jury awarded Banks $2,174,268.40, which

when adjusted for the amount paid by CIC to People’s Bank, became $1,625,053.19. On

December 16, 2013, CIC filed a “motion for new trial, motion to amend findings and judgment,

and/or motion for judgment notwithstanding the verdict” invoking Federal Rules of Civil

Procedure 50 and 59. On April 22, 2014, the district court denied CIC’s post-verdict motions.

CIC filed a notice of appeal on May 16, 2014.


                                                II. ANALYSIS

                                                         A.

         The first two issues we address are CIC’s strongest—but ultimately unsuccessful—

arguments, both pertaining to jury instructions.




1
 The parties consented to have this case tried before Magistrate Judge William B. Carter, who presided over all the
proceedings in the district court.

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Cincinnati Ins. Co. v. Larry Banks, et ux.

                                                 1.

           CIC first challenges the instructions given to the jury regarding the burden of proof in

this litigation.    We review “legal accuracy of jury instructions de novo,” United States v.

Blanchard, 618 F.3d 562, 571 (6th Cir. 2010). We reverse for an improper jury instruction “only

if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Micrel, Inc.

v. TRW, Inc., 486 F.3d 866, 881 (6th Cir. 2007).


         CIC argues that the jury should have been instructed that Banks must carry the burden of

proof that the fire was not intentionally caused by any person. CIC cites for support the

requirement under Tennessee law that an insured party show that a loss is covered by the terms

of a policy. Blaine Constr. Corp. v. Ins. Co. of N. Am., 171 F.3d 343, 349 (6th Cir. 1999). CIC

also faults the court for the verdict form’s not requiring Banks to prove their loss was from an

“accidental” fire. Citing Farmers Bank & Trust Co. v. Transamerica Ins. Co., 674 F.2d 548, 551

(6th Cir. 1982), CIC argues that Banks must prove all facts essential to recovery under the

policy. In Farmers Bank, we reversed a district court’s requiring an insurer to prove that a note

on which he sought to recover was not forged. CIC also cites a district court case where a

plaintiff sought to collect under a policy covering injuries “caused by accident,” where the court

required the claimant to prove not only that the decedent had died, but also that the death was

accidental. Smith v. Life Ins. Co. of N. Am., 872 F. Supp. 482, 484–85 (W.D. Tenn. 1994).


         The district court instructed the jury that “Banks bear the burden only to prove by a

preponderance of the evidence the amount of damages they suffered as a result of the fire within

the monetary coverage limits of the insurance policy.” CIC faults this instruction for failing to

instruct the jury that Banks also bore the burden of proving that the fire was accidental rather



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Cincinnati Ins. Co. v. Larry Banks, et ux.

than intentional, and the burden of proving that Banks were not themselves the cause of the fire,

either directly or indirectly through an agent.


         Under Tennessee law, an insurance company “ha[s] the burden of proving by a

preponderance of the evidence that ‘the loss was due to a fire of incendiary origin, that the

insured had an opportunity to set the fire, and that he had a motive to do so.” Wharton v. State

Farm Fire & Cas. Ins. Co., 57 F.3d 1072, 1995 U.S. App. LEXIS 14586, at *7 (6th Cir. 1995)

(table decision) (quoting McReynolds v. Cherokee Ins. Co., 815 S.W.2d 208, 211 (Tenn. Ct. App.

1991)). Thus the only factual issue on which the district court needed to instruct the jury on this

count was the nature of the fire’s origin; the court accordingly rejected CIC’s argument that the

court should instruct the jury that Banks bore the burden of proving that they had not started the

fire.


         CIC’s argument turns Farmers Bank and Blaine on their heads. The district court held—

and we agree—that this an all-risk policy.              Under Tennessee law, “an all-risk policy

automatically covers any loss unless the policy contains a provision expressly excluding the loss

from coverage.” HCA, Inc. v. Am. Prot. Ins. Co., 174 S.W.3d 184, 187 (Tenn. Ct. App. 2005).

Such a policy provides coverage “in the absence of fraud or other intentional misconduct of the

insured unless the policy contains a specific provision expressly excluding the loss from

coverage.” Id. Tennessee law presumes that the “burning of a property is the result of an

accidental cause.” Johnson v. Allstate Ins. Co., 2000 Tenn. App. LEXIS 548, at *20 (Tenn. Ct.

App. 2000) (citing Ricketts v. State, 241 S.W.2d 604 (Tenn. 1951)). “[A] claimant under an

insurance policy has the initial burden of proving that he comes within the terms of the

policy. . . . Conversely, the insurer [must] carr[y] the burden if it claims that one of the policy

exclusions applies to the claimant and prevents recovery.” Farmers Bank, 674 F.2d at 550,

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Cincinnati Ins. Co. v. Larry Banks, et ux.

quoted in Blaine, 171 F.3d at 349.           Moreover, “exceptions, exclusions and limitations in

insurance policies must be construed against the insurance company and in favor of the insured.”

Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 886 (Tenn. 1991), quoted in Blaine, 171 F.3d at 349.


         There was no error in the jury instruction. CIC bears the burden of proof regarding its

arson defense. The district court did not err by refusing to instruct the jury that Banks had to

prove that they did not cause the fire.


                                                   2.


         The second issue is whether the district court erred in its jury instruction regarding CIC’s

arson defense. We review for abuse of discretion the denial of proposed instructions. King v.

Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). We will find an abuse of discretion where

“a ruling rests on clearly erroneous facts or an improper application of the law or erroneous legal

standard.” United States v. Sandoval, 460 F. App’x 552, 561 (6th Cir. 2012).        The elements of

arson are: (1) motive, (2) opportunity, and (3) incendiary origin. McReynolds, 815 S.W.2d at

211. The court’s instruction was, “It is not necessary that the policyholder be the person who

actually starts the fire,” and that the jury could find Banks committed arson if Banks

“intentionally or willfully set fire to the insured property or participated in or consented to the

willful burning of the property.” The court continued that the opportunity element of arson can

be satisfied if the policyholder had “an opportunity to set the fire or to have it set by some other

person.” The jury was instructed that it must determine whether the “evidence establishes that

the Banks burned or caused their house to be burned.” CIC requested that the court include

additional language that CIC did not need to “specifically identify” the person who started the

fire.


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Cincinnati Ins. Co. v. Larry Banks, et ux.

         Our task is “as a whole to determine whether [the instructions] fairly and adequately

submitted the issues and applicable law to the jury,” and are not deficient “unless the

instructions, taken as a whole, are misleading or give an inadequate understanding of the law.”

Arban v. W. Publ’g Corp., 345 F.3d 390, 404 (6th Cir. 2003). Reversible error would occur only

if some element of what the law requires is not covered by any of the instructions. Morgan v.

N.Y. Life Ins. Co., 559 F.3d 425, 434 (6th Cir. 2009).


         There is no indication that—for lack of the additional language—the jury was confused

and might have thought Banks prevailed because CIC failed to name the arsonist. The district

court’s instructions sufficiently covered the elements of arson.


                                                 B.


         The next three issues pertain to motions for judgment as a matter of law and the resulting

impact on the jury award. In diversity-jurisdiction cases, we apply state law when reviewing

such motions. Mannix v. Cnty. of Monroe, 348 F.3d 526, 531 (6th Cir. 2003). Under Tennessee

law, when one party moves for what that State calls a motion for a directed verdict, “the trial

court ‘must consider the evidence most favorably for the [nonmoving party], allow all reasonable

inferences in [the nonmoving party’s] favor and disregard all counteracting evidence, and, so

considered, if there is any material evidence to support a verdict for [the nonmoving party], [the

court] must deny the motion.’” Morris v. Wal-Mart Stores, Inc., 330 F.3d 854, 857–58 (6th Cir.

2003) (quoting City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977))

(final brackets in Morris). This standard is essentially the same as the standard for whether there

is a genuine issue of fact for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,




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Cincinnati Ins. Co. v. Larry Banks, et ux.

251–52 (1986). Whether a jury award should be reduced would automatically follow from the

outcome of the motion for a directed verdict.


                                                 1.


         The first of these issues is whether the district court erred by not granting CIC judgment

as a matter of law under Federal Rule of Civil Procedure 50 on whether the retaining wall and

driveway were covered by the “other structures” provision of the policy. The jury awarded

Banks $21,500 for these two items. CIC argues that these items were part of the house itself, and

therefore would not be covered because the coverage limit for the dwelling was exhausted when

the house was designated a total loss (discussed infra). The policy required other items to be

physically separated from the dwelling by a “clear space” in order to come within the “other

structures” provision. CIC argues that the district court should have granted a directed verdict

that the driveway and wall were part of the dwelling. Instead, the district court submitted the

matter to the jury, which found that the items were “other structures” and awarded Banks relief.


         The district court acted correctly by denying CIC’s motion under Federal Rule of Civil

Procedure 50(a). “A motion for a judgment as a matter of law converts what would otherwise be

a question of fact, reserved to the jury and generally protected from review by the Seventh

Amendment, into a legal question.” Harry T. Edwards et al., Federal Standards of Review:

Review of District Court Decisions & Agency Actions 50 (2d ed. 2013). A motion for judgment

as a matter of law should be granted only “when the facts are sufficiently clear that the law

requires a particular result.” Weisgram v. Marley Co., 528 U.S. 440, 448 (2000). “[B]ecause

improperly granted judgments intrude upon the province of the jury, the standard is demanding

and must be applied with caution.” Edwards, supra, at 51.


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Cincinnati Ins. Co. v. Larry Banks, et ux.

         The jury was given photographs of the items in question. Reasonable jurors could differ

on whether there was sufficient space between the dwelling and the driveway or retaining wall to

qualify either item as part of “other structures.” It would have been improper for the court to

have decided that question rather than send it to the jury. We affirm the district court’s denial of

the motion for a directed verdict.


         CIC moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b)

that the jury award should be reduced by $21,500. Because the jury found that those items were

separate from the dwelling, the jury was correct in granting Banks $21,500 for damage to “other

structures.” We accordingly affirm the district court’s denial of the Rule 50(b) motion.


                                                    2.


         CIC also filed a motion under Federal Rule of Civil Procedure 50 for judgment as a

matter of law on Banks’ receiving additional living expenses (“ALE”) under the policy, and

whether CIC waived the right to enforce a policy provision to refuse payment for such expenses.


         The relevant provision states that if the dwelling becomes “uninhabitable, [CIC] pay[s]

for necessary increases in living expenses incurred so that [Banks’s] household can maintain its

normal standard of living.”           CIC argues that ALE applied only to expenses that are both

necessary and incurred. Banks argues that CIC provided Banks with ALE payments of $3,100

per month without regard to whether they had been incurred, and thus waived a strict reading of

the provision. CIC counters that Banks signed a non-waiver agreement.


         Tennessee’s rule on waiver is that an insurance provision can be waived by the acts,

representations, or knowledge of the insurer.            Gaston v. Tenn. Farmers Mut. Ins. Co.,

120 S.W.3d 815, 819 (Tenn. 2003). “The burden of proof to establish waiver rests with the

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Cincinnati Ins. Co. v. Larry Banks, et ux.

insured, and is a question of fact for the jury.” Id. (citations omitted). CIC immediately began

paying Banks $3,100 per month without requiring costs to be incurred first, and Kevin Young

(CIC’s adjustor) testified that he authorized those payments as fair and reasonable. In at least

one previous case, an insurance company’s authorizing payments for those same reasons

constituted waiver. See, e.g., Norris v. Nationwide Mut. Fire Ins. Co., 728 S.W.2d 335, 337

(Tenn. Ct. App. 1986). CIC claims that only “technical rights” can be waived, and that by

contrast this issue turns on non-waivable “substantive rights.”


         CIC is incorrect. According to Tennessee law, the relevant rule concerning waiver is that

it “applies to a waiver of the right to enforce a provision in a contract.” GuestHouse Intern., LLC

v. Shoney’s N. Am. Corp., 330 S.W.3d 166, 201 (Tenn. Ct. App. 2010). That is precisely the

question here, whether as a factual matter CIC had waived enforcement of the policy provision

that expenses be both necessary and incurred before CIC must issue payments. Both parties

proffered evidence in favor of their respective positions. Given this conflicting evidence, the

court properly denied the motion for a directed verdict so as to submit this question to the jury.


                                                 C.


         CIC next argues that the district court erred by granting Banks partial summary judgment

by holding that the dwelling was a constructive total loss, justifying demolition of the property

rather than repair. We review a district court’s grant of summary judgment de novo. Tompkins

v. Crown Corr, Inc., 726 F.3d 830, 837 (6th Cir. 2013). “In examining the record to determine

whether a genuine issue of material fact exists, the district court must review all evidence in the

light most favorable to the nonmoving party, and ‘all justifiable inferences are to be drawn in his




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Cincinnati Ins. Co. v. Larry Banks, et ux.

favor.’” Miles v. Kohli & Kaliher Assocs., 917 F.2d 235, 240–41 (6th Cir. 1990) (quoting

Anderson, 477 U.S. at 255).


         A property can be designated a total loss. Tenn. Code Ann. § 56-7-801-803. CIC argues

that the order from the City of Manchester’s Codes Department did not require demolition of the

property, and instead permitted repair as an alternative. The district court did not permit CIC to

present proof on this issue stating that it had already ruled on the issue and held the property a

total loss as a matter of law. CIC points out that the Tennessee courts have never adopted the

constructive total loss doctrine, and instead have used a test of whether the damaged structure

had lost its identity and specific character.     See, e.g., Hollingsworth v. Safeco Ins. Cos.,

782 S.W.2d 477, 479 (Tenn. Ct. App. 1988).             Banks respond that the Codes Department

condemned the dwelling and ordered its demolition, and that O.P. Guess, the Codes Director,

executed an affidavit clarifying that the City was not giving Banks the option of repairing the

dwelling.     Banks further respond that the district court’s adoption of the constructive loss

doctrine was proper.


         The district court could find no state court decision governing the rule to apply, and so

followed an Eleventh Circuit diversity case involving insured Tennessee properties damaged by

fire, in which the court adopted the majority rule “that a municipal demolition order creates a

‘total loss at law’ in the type of circumstances presented here.” Algernon Blair Grp., Inc. v. U.S.

Fid. & Guar. Co., 821 F.2d 597, 600 (11th Cir. 1987). The district court noted that the Codes

Department had authority to require demolition and that CIC presented no evidence to contradict

Guess’s affidavit, and granted summary judgment on this issue.




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Cincinnati Ins. Co. v. Larry Banks, et ux.

         The district court—and in the previous case, the Eleventh Circuit—erred by invoking the

constructive loss doctrine. The Tennessee Supreme Court long ago adopted the test of whether

the building maintains its identify and specific character, as set forth in Laurenzi v. Atlas Ins.,

176 S.W. 1022, 1026 (Tenn. 1915). The intermediate Tennessee court in Hollingsworth held

that Laurenzi was still controlling. Hollingsworth, 782 S.W.2d at 480. Federal courts exercising

diversity jurisdiction are required to apply state law as construed by the highest court in that

State. Saab Auto. AB v. GM Co., 770 F.3d 436, 440 (6th Cir. 2014). The district court failed to

do so here; there is no case law to suggest that Laurenzi’s test has been abandoned.


         However, the error is harmless. The constructive loss doctrine and the identity-and-

character test are not mutually exclusive, and can lead to the same result. The demolition order

was valid, and therefore the dwelling would not maintain its identity and character after being

razed. Thus the property is an actual total loss, not a constructive total loss. We can affirm on

any basis supported by the record. Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am.,

648 F.3d 295, 303 (6th Cir. 2011). We do so here, affirming the district court’s grant of partial

summary judgment, but on grounds other than those cited by the district court.


                                                D.


         CIC’s remaining issues on appeal are entirely without merit, and do not warrant thorough

discussion. We review each for abuse of discretion. See King v. Ford Motor Co., 209 F.3d 886,

897 (6th Cir. 2000) (denying motion for a new trial reviewed for abuse of discretion); Saxion v.

Titan-C-Manufacturing, Inc., 86 F.3d 553, 556 (6th Cir. 1996) (district court’s decision on

whether to bifurcate claims reviewed for abuse of discretion); United States v. Phibbs, 999 F.2d




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1053, 1078 (6th Cir. 1993) (“Motions in limine to exclude evidence are reviewed for an abuse of

discretion.”).


                                                  1.


         We turn first to whether the district court erred in denying CIC’s motion in limine to

exclude evidence of four other fires in the Manchester area during November 2011. The court

regarded those fires—all of which were suspicious in nature and happened within seven miles of

Banks’ home—as substantially similar to the fire that destroyed Banks’ home. CIC objects that

the court did exclude evidence of a previous total-loss fire at Banks’ residence, showing an

inconsistency in the court’s method.


         A party proffering evidence of other incidents bears the burden of showing the other

incidents are substantially similar because they occurred “under similar circumstances or share

the same cause.” Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989). CIC

argues that some of those fires were not incendiary in nature, and should thus not have been

admitted as evidence.


         This evidence is relevant under Federal Rule of Evidence 401. CIC argues that, if this

evidence is relevant at all, then since one or more of those fires may not have been incendiary,

they should have been excluded under Federal Rule of Evidence 403 because the evidence may

have confused the jury. Whether the court could have ruled differently regarding this is not the

test, and we find no abuse of discretion here.




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                                               2.


         The second issue is whether the district court erred when it denied CIC’s Daubert

challenge to the admission of testimony of Jeffrey Morrill, an expert testifying on behalf of

Banks. CIC argues that Morrill’s methodology was not scientifically valid or reliable and

therefore should have been excluded under Federal Rule of Evidence 702. See Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993). CIC also argues that the testimony

should have been excluded because it did not follow NFPA 921 (from National Fire Protection

Association code), since it relied upon others’ reports, testimony, and photos instead of those

Morrill personally developed; Morrill did not consider all the relevant data; and that Morrill is

not licensed in Tennessee as an investigator, which CIC says is required by Tenn. Code Ann.

§ 62-26-204. Morrill’s license expired.


         The lack of a license does not disqualify an expert. Doochin v. U.S. Fid. & Guar. Co.,

854 S.W.2d 109 (Tenn. Ct. App. 1993). And the district court ruled that “another section of the

NFPA [] appears to support Morrill’s methodology” and that CIC’s arguments “go to the weight

of his testimony and not whether it is admissible.” This appears to be a reference to NFPA 921,

§ 4.4.3.3, which includes that “[t]he use of previously collected data from a properly documented

scene can be used successfully in an analysis of the incident to reach valid conclusions.” CIC

does not cite to any important data that was overlooked, or to any precedent showing that such

data would render an expert’s testimony inadmissible. Morrill has testified as an expert in more

than thirty trials, and according to the record his credentials have not previously been doubted.

We find no abuse of discretion here.




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                                                 3.


         Third, CIC complained that the district court abused its discretion when it overruled

CIC’s Daubert challenge to John Lentini as an expert witness supporting Banks.              Lentini

testified regarding the fire debris, and was called to rebut the testimony of CIC’s expert on that

point, Christine Foran. CIC argues that Lentini’s opinion testimony does not satisfy Federal

Rule of Evidence 702 because his analysis was based on research conducted by others, such as

the readings and results from investigators.


         The district court found Lentini was qualified. Moreover, Lentini accepted much of

Foran’s data, and disagreed only with Foran’s interpretation of, and conclusions reached from,

the data. Lentini’s disagreement with Foran consisted of criticizing what he opined were errors

in Foran’s methodology. These go “to the weight of the testimony and opinions,” not their

admissibility. Travelers Cas. Ins. Co. of Am. v. Volunteers of Am. Ky., Inc., 2012 U.S. Dist.

LEXIS 117789, at *6 (E.D. Tenn. Aug. 21, 2012) (citing McClean v. Ontario, LTD, 224 F.3d

797, 801 (6th Cir. 2000)). The district court did not abuse its discretion by denying CIC’s

motion to exclude Lentini’s testimony.


                                                 4.


         The next two issues concern the district court’s denial of CIC’s motion for a new trial.

First, CIC objects to the district court’s excluding all evidence regarding an “accelerant detection

K-9.” And second, CIC objects to the court’s limiting the testimony of Marks Sells, CIC’s expert

on the fire’s cause and origin, to preclude Sells from discussing items derived from the K-9

“alerts.” CIC did not disclose prior to trial that it would proffer the expert testimony regarding




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the use of the accelerant detection K-9, and Banks argued that the evidence was unreliable

because seven of nine samples tested negative for accelerants.


         The district court found that testimony regarding the dog’s training and performance was

necessary to lay a foundation for the evidence. The district court ruled that without expert

testimony pertaining to “the dog’s training, reliability and skill,” the K-9 alerts were

meaningless. Because Banks did not have “the appropriate opportunity to explore this particular

dog’s reliability,” the court disallowed the evidence, and further ruled that the relevance of this

evidence would be outweighed by unfair prejudice. CIC admits that the district court noted cases

where canine testimony was excluded for lack of such a foundation, but argues (citing no case

law support) that since those cases were criminal—in which the burden of proof is higher—

courts should not be as stringent when ruling on the same issue in civil cases such as this one.

Since the canine evidence was excluded, Sells’s testimony was limited to the use of accelerant-

detection canines without any discussion of his investigation methods (which used the canine) or

direct observations (involving the canine’s actions and responses) upon which he was basing his

expert opinion.


         Banks respond first that canine alerts are not reliable without laboratory confirmation.

The two samples for which the canine alerted positive were sent to a lab, and came back

negative.2 Banks argue that the two alerts were therefore unreliable, pointing out that Sells

admitted that “K-9 hits” have no value beyond helping determine where to take samples, at

which point the proper evidence becomes the lab results of those samples. Since relevant

evidence is excluded when the probative value is “substantially outweighed by the danger of


2
 Banks make clear that Foran said the results were positive, but Lentini said they were positive only for accelerants
expected to be detected in the home, but negative for foreign accelerants.

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unfair prejudice,” Fed. R. Evid. 403, the court could exclude the canine alerts if the jury’s

hearing that the dog alerted could lead them to assign more value to the alert than to the

inconsistent lab report on the sample.


         The district court agreed with Banks, excluding all evidence from the canine, and limiting

Sells’s testimony accordingly. The court did not abuse its discretion when it denied CIC’s

motion for a new trial on both of these issues.


                                                   5.


         Next, CIC challenges the district court’s denial of CIC’s motion for a new trial based on

the court’s excluding expert testimony from State Fire Marshall Bomb and Arson Investigator

Russell Robinson.          The deadline for disclosure of expert witnesses was November 13, 2012.

CIC did not make the disclosure until August 9, 2013—eight months later. CIC claims it was

unable to obtain the State’s investigation file until after the court’s deadline for expert

disclosures had passed. The court permitted Robinson to testify regarding what he did and saw

during the investigation, but did not allow him to offer expert opinion. The court held that the

failure to meet the deadline was prejudicial to Banks and not substantially justified.


         Robinson is a non-retained expert. CIC argues that Fed. R. Civ. P. 26(a)(2) controls, and

therefore that the required disclosure includes only the subject matter and summary of facts. CIC

argues that it satisfied these requirements on August 10, 2012, by informing Banks that Robinson

would testify on the “cause and origin and investigation of the Banks’ fire and the claim

submitted by the insureds,” and further, by its supplement to interrogatory answers. CIC also

argues that the 2010 amendment to Rule 26(a)(2)(C) has generated confusion as to what the new

rule requires, and thus essentially asked to be excused on equitable grounds for any possible


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Cincinnati Ins. Co. v. Larry Banks, et ux.

violation. Separately, CIC argues that it is unreasonable to conclude that Banks were surprised

by CIC’s attempt to introduce expert opinion from Robinson.


            The district court was unpersuaded by these arguments. The district court acted well

within its discretion by excluding Robinson’s expert testimony, and thus did not abuse its

discretion by denying a new trial on this issue.


                                                             6.


            The next issue is whether the district court erred in denying a new trial because it had

limited the expert testimony of Mike Caldwell. The district court did not permit Caldwell to

testify as to the value of Banks’ personal property items. CIC objects that Banks’ personal

property expert, Tanya Butler, was allowed to testify,3 but Caldwell was not. Butler has acted

upon 500 personal property inventories, compared to 300 for Caldwell.


            The district court found Caldwell did not have the necessary “knowledge, expertise, or

training in evaluating personal property and that he relied on the expertise of others to do so in

his report.” The court also gave CIC the opportunity to designate someone else from the same

company as Caldwell to testify. CIC declined to do so.


            The court acted within its discretion by finding that Caldwell was not qualified to testify,

and went beyond what was required to offer CIC the opportunity to substitute a different expert.

The district court did not abuse its discretion by denying a new trial.




3
    Although Butler’s testimony was allowed, it appears that she never actually testified.

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Cincinnati Ins. Co. v. Larry Banks, et ux.

                                                7.


         Next, we consider whether the district court erred by bifurcating Banks’ bad-faith claims

from the remaining claims. Banks’ counterclaim alleged bad faith against CIC under Tennessee

Code Annotated § 56-7-105. That counterclaim was filed on August 10, 2012. On October 7,

2013—fourteenth months later—Banks moved to bifurcate the statutory bad-faith claims from

the contractual claims. The district court informed the parties on October 24, 2013, that it

planned to grant the motion.


         Banks argues that this issue is moot because Banks voluntarily dismissed their bad-faith

claim at the conclusion of Phase 1 of the trial. CIC argues that there was certain evidence it

would have introduced that would have impacted the principal trial had it known how the issue

of a second trial would eventually play out. Banks counters that the evidence CIC wished to

introduce was ruled inadmissible for any purpose other than bad faith.


         This goes to tactical decisions that counsel routinely make in determining how best to

prosecute their case. CIC is not affirmatively entitled to a “do-over” when part of a case unfolds

differently from what they expected. And the district court could take into account whether the

evidence in question was in fact inadmissible for any purpose other than bad faith, such that once

bad faith was no longer at issue in the litigation, there was no acceptable purpose for the

evidence. There was no abuse of discretion here.


                                                8.


         The final issue is whether the district court erred by not granting a new trial on the

grounds that the jury’s verdict was against the weight of the evidence. A new trial is “warranted

when a jury has reached a ‘seriously erroneous result’ as evidenced by: (1) the verdict being

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No. 14-5597
Cincinnati Ins. Co. v. Larry Banks, et ux.

against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair

to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.”

Holmes v. City of Massillon, 78 F.3d 1041, 1045–46 (6th Cir. 1996). CIC argues that “[b]ased

upon the jury’s verdict, it is clear the jury did not even listen to the Banks’ own evidence and

arguments.”


         CIC’s argument on this count is meritless. The district court did not abuse its discretion

by refusing to disturb the jury’s verdict.


                                             III. CONCLUSION

         We AFFIRM the judgments of the district court.




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