                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 19, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT


    MID-CONTINENT CASUALTY
    COMPANY,

             Plaintiff-Appellee,                       No. 10-6165
                                               (D.C. No. 5:09-CV-00354-W)
    v.                                                (W.D. Okla.)

    BLUTONE ENTERPRISES, LLC;
    RAY LAWRENCE; EUGENE
    RADFORD,

             Defendants-Appellants,

    and

    SCOTT TURNER, JOYCE TURNER,
    MARY SUE HEITZ,

             Defendants.


                           ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      On October 10, 2008, a 2005 Dodge pickup truck owned and operated by

Blutone Enterprises, LLC, was involved in an accident resulting in personal injury

to three individuals. Thereafter, Mid-Continent Casualty Company brought this

diversity action against Blutone Enterprises, LLC, Ray Lawrence, and Eugene

Radford (collectively, “Blutone”), seeking a declaratory judgment that at the time

of the accident the truck was not covered by the commercial auto policy issued by

Mid-Continent to Blutone. 1 A jury returned a verdict for Mid-Continent, finding

defendants had “not established by the greater weight of the evidence that the

2005 Dodge pickup involved in the collision . . . was covered under the . . .

policy.” Aplt. App. at 325. Blutone appeals, contending the district court

erroneously excluded (1) an Insurance Identification Card, and (2) Proposed Jury

Instruction No. 16. 2 Our jurisdiction arises under 28 U.S.C. § 1291, and we

affirm.




1
       Mid-Continent also named as defendants the three people injured in the
accident (Scott Turner, Joyce Turner, and Mary Sue Heitz), but they are not
parties to this appeal.
2
       To the extent Blutone asserts on appeal that the jury was confused by the
district court’s preliminary statement and by Jury Instructions Nos. 3 and 8,
Blutone waived appellate review—other than for plain error, which we do not
here discern—by failing to object to the instructions in the district court. See
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1094 (10th Cir. 2007)
(“[W]hen a party does not object to an instruction before the district court . . . we
can review the district court’s decision . . . only for plain error. Under that
standard, we will affirm unless the instructions were patently, plainly erroneous
and prejudicial.” (citations and internal quotation marks omitted)).

                                         -2-
      The parties are familiar with the facts so we provide only a brief summary.

It is undisputed in this case that “[o]nly vehicles on the policy at the time of an

accident are covered vehicles.” Aplt. App. at 59. It is also undisputed that the

2005 Dodge pickup truck was not listed as a covered vehicle at the time of the

accident, and that Blutone never received a bill or paid a premium for this

vehicle. Notwithstanding, Blutone maintains that its employee, Donna Lawrence,

asked Mid-Continent’s agent, Kristina Donaldson, to add the truck to the policy

during a forty-seven second telephone conversation on February 20, 2008. 3 Trial

testimony established that Blutone’s commercial auto policy allowed for Blutone

to add or delete a vehicle by notifying Mid-Continent’s agent, and that this was

routinely done without incident—until this case.

                                           I.

      Prior to trial, Mid-Continent filed a motion in limine explaining that

Blutone claimed it had an Insurance Identification Card in its file for the 2005

Dodge pickup, and that Blutone intends to argue that the Card shows it “requested

the 2005 Dodge to be added” to the policy “and that Mid-Continent did add [it].”

Id. at 20. Mid-Continent asserted that “[s]uch a claim is false, irrelevant to the

single issue [in the case], confusing, and prejudicial.” Id. In support,

Mid-Continent explained that the reason Blutone had a Card in its file was


3
     Whether the information necessary to add a vehicle to a policy can be
exchanged in forty-seven seconds was a major issue of discussion at trial.

                                          -3-
because Mid-Continent’s agent had sent Blutone extra cards “[b]ecause when you

have a fleet card you can use it in any of your vehicles.” Id. at 21. In other

words, unlike a personal auto policy, a commercial auto policy’s identification

cards do not list an individual vehicle; rather, under “MAKE/MODEL” the cards

say “Fleet,” Aplee. Supp. App. at 3. Since the Insurance Identification Card does

not list an individual vehicle, reasoned Mid-Continent, it—and/or testimony about

it—is not relevant to proving or disproving whether Ms. Lawrence asked

Ms. Donaldson to add the 2005 Dodge pickup truck to the policy on February 20,

and is therefore inadmissable. In the alternative, Mid-Continent argued that any

evidence regarding the Card should be ruled inadmissible because it would be

confusing and prejudicial since the jury might believe that the Card lists the

individual vehicle the way an individual vehicle is listed on a personal auto

policy.

      Blutone filed a response to Mid-Continent’s motion in limine, contending

that the Insurance Identification Card was generated to allow it to obtain title to

the 2005 Dodge pickup truck and thereby comply with Oklahoma law. Blutone

urged that the Card was relevant because “[i]t is evidence of whether . . .

[Blutone] thought it had insurance on the 2005 Dodge Pickup.” Aplt. App. at 33.

Blutone further argued that the Card evidenced “Mid-Continent’s manner of doing

business,” stating that Mid-Continent “can and should have to explain to the

Court and jury why the [Card] was produced and given to Blutone.” Id.

                                          -4-
      After considering the parties’ filings and hearing argument on

Mid-Continent’s motion, the court stated:

      Here is what I’m going to do. I will sustain the same ruling that I
      previously made [4] with regard to the insurance verification form,
      except that you [(counsel for Blutone)] will be given permission to
      approach the bench if you think [the Insurance Identification Card]
      becomes relevant, or if you think you can persuade the Court that it
      becomes relevant by anything said or done by [counsel for
      Mid-Continent], then you may approach the bench and we’ll have a
      discussion with regard to what I will call a reserve ruling on the
      motion in limine.

Id. at 83-4.

      On appeal, Blutone takes issue with the district court’s exclusion of the

Insurance Identification Card and asserts that we should review the district

court’s exclusion of the Card for an abuse of discretion. Mid-Continent counters

that because the district court reserved ruling on the motion in limine, the proper

standard of review is the rigorous plain error standard. See Perkins v. Silver

Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1146-47 & n.4 (10th Cir.

2009). We need not engage in a standard of review inquiry, however, because

even applying the more lenient abuse-of-discretion standard we find no error.

      Blutone submits that the district court abused its discretion because the

Insurance Identification Card is relevant and admissible under Federal Rules of


4
      Earlier in the proceeding, the district court judge stated, “Let’s rule on the
motion[] in limine . . . . next is these insurance verification forms [(also known as
Insurance Identification Cards)]. I don’t see what part they play in this particular
lawsuit.” Aplt. App. at 75, 77.

                                         -5-
Evidence 401 and 402—it is “how Mid Continent chooses to allow its insureds to

prove they are in compliance with Oklahoma’s mandatory liability insurance

law,” and it “show[s] ownership and Blutone’s state of mind as to whether it

believed it was insured.” Aplt. Br. at 11. Blutone also directs our attention to the

jury’s two questions to the court during deliberations: “(1) Was the Truck

tag[g]ed; and (2) was it registered to Blutone.” Id. at 12 (citing Aplt. App. at 65).

Blutone argues that the jury “knew that a person cannot tag or register a vehicle

without showing proof of insurance,” which “is generally accomplished by

submitting an insurance verification form to the state.” Id. at 12. Therefore,

argues Blutone, “[t]he jurors were without the very piece of evidence that was at

the heart of their questioning,” and this relevant evidence’s probative value

outweighs the danger of unfair prejudice or confusion. Id. (citing Fed. R. Evid.

403). We disagree.

      “[A] trial court has broad discretion to determine whether evidence is

relevant, and its decision will not be reversed on appeal absent a showing of clear

abuse of that discretion.” Hill v. Bache Halsey Stuart Shields Inc., 790 F.2d 817,

825 (10th Cir. 1986). In this case, the Insurance Identification Card was

irrelevant to the single issue before the jury—whether Blutone’s Ms. Lawrence

asked Mid-Continent’s agent, Ms. Donaldson, to add the truck to the policy

during a forty-seven second telephone conversation on February 20, 2008. The

Card did not tend to prove or disprove this question because, among other things,

                                          -6-
it does not include a vehicle identification number, make, model, or year of a

vehicle; instead, it only says “Fleet,” Aplee. Supp. App. at 3. Accordingly, we

are not “firmly convinced that a mistake [was] made” by the district court. Hill,

790 F.2d at 826. Indeed, the court invited Blutone’s counsel “to approach the

bench if you think [the Insurance Identification Card] becomes relevant, or if you

think you can persuade the Court that it becomes relevant by anything said or

done by” counsel for Mid-Continent. Aplt. App. at 83-4. But Blutone did not

make any proffer on this issue at trial. We conclude that the district court’s

decision to exclude this evidence was not an abuse of discretion.

                                          II.

      Blutone next contends the district court abused its discretion in refusing to

give Blutone’s Proposed Jury Instruction No. 16, and that doing so caused

confusion amongst the jury members. In a diversity case such as this, “the

substance of a jury instruction is a matter of state law, but the grant or denial of a

tendered instruction is governed by federal law.” Blanke v. Alexander, 152 F.3d

1224, 1232 (10th Cir. 1998). Although we review the district court’s refusal to

give a particular instruction for an abuse of discretion, “[w]e review de novo

whether, as a whole, the district court’s jury instructions correctly stated the

governing law and provided the jury with an ample understanding of the issues

and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132

(10th Cir. 2009) (internal quotation marks omitted). “We reverse only in those

                                          -7-
cases where we have a substantial doubt whether the jury was fairly guided in its

deliberations . . . .” Id. (brackets and internal quotation marks omitted).

      Proposed Jury Instruction No 16 stated, in pertinent part:

      ACTIONS OF INSURANCE AGENT ARE ACTIONS OF
      INSURER

            Act performed by the insurance agent can bind the insurance
      company within the scope of his authority, which includes the taking
      and preparation of applications for insurance for submission to the
      insurance company.

            You should consider the actions of Messer-Bowers [(the
            5
      agent )] as those actions of Mid-Continent because Messer-Bowers[’]
      actions in taking information and preparing applications falls with
      the scope and authority of the agency of Messer-Bowers.

Aplt. App. at 48.

      But, as Mid-Continent points out, the district court read the parties’

stipulations to the jury, which stated, in part:

      The parties have agreed to the following facts:

           (2) Messer Bowers Company, Inc., is Mid-Continent Casualty
      Company’s agent. Notice to Messer-Bowers would be notice to
      Mid-Continent Casualty Company. Likewise, failure to notify
      Messer-Bowers would be failure to notify Mid-Continent Casualty
      Company.

Id. at 59. Thus, counters Mid-Continent it would be confusing “for the jury to be

told the parties stipulated to the agency relationship but then be instructed that



5
     Messer-Bowers is an agent of Mid-Continent, the insurer, as is
Ms. Donaldson in her capacity as a Messer-Bowers employee.

                                          -8-
agency was an issue to be decided,” Aplee. Br. at 11-12, especially when

“[f]actual stipulations withdraw a fact from issue and dispense with the need for

proof of the fact,” id. at 12 (citing Christian Legal Soc. Chapter of the Univ. of

Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2983 (2010)). We

agree with Mid-Continent. In deciding to exclude Proposed Jury Instruction

No. 16, the district court concluded that the stipulation adequately covered the

agency issue and that the instruction that Blutone proffered would be duplicative

of the stipulation. This determination was not an abuse of discretion and we do

not have any doubt that the jury “was fairly guided in its deliberations.”

Martinez, 572 F.3d at 1132 (10th Cir. 2009) (internal quotation marks omitted).

                                         III.

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




                                          -9-
