                                                                               FILED
                                                                   United States Court of Appeals
                                      PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     January 7, 2020

                                                                      Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                        Clerk of Court
                         _________________________________

 LUZETTA MURPHY-SIMS,

       Plaintiff - Appellant,
                                                             No. 18-1392
 v.

 OWNERS INSURANCE COMPANY,

       Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                       (D.C. No. 1:16-CV-00759-CMA-SKC)
                       _________________________________

Bradley A. Levin (Jeremy A. Sitcoff and Elisabeth L. Owen of Levin, Sitcoff, P.C.,
Natalie Brown and Joseph A. Sirchio of Franklin D. Azar & Associates, P.C., with him
on the briefs, Aurora, Colorado), Levin Sitcoff PC, Denver, Colorado, for Plaintiff -
Appellant.

Gregory R. Giometti (John D. Mereness and Taylor R. Seibel of Giometti & Mereness,
P.C., with him on the brief), Denver, Colorado, for Defendant - Appellee.
                         _________________________________

Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

KELLY, Circuit Judge.
                         _________________________________

      Plaintiff-Appellant Luzetta Murphy-Sims appeals from a judgment on a jury

verdict in favor of Defendant-Appellee Owners Insurance Company (Owners). On

appeal, Ms. Murphy-Sims argues that the district court erred by (1) denying her motion
for judgment as a matter of law; (2) instructing the jury that it did not need to consider

bad faith absent a breach of contract; (3) linking the breach of contract and bad faith

claims; (4) instructing the jury on bad faith and damages; and (5) admitting and excluding

certain evidence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                        Background

       On March 27, 2013, Mr. Switzer and Ms. Murphy-Sims were involved in a car

accident in which Mr. Switzer was at fault. At the time, he was insured by Owners under

an automobile policy that provided liability coverage of $100,000 per person and covered

the vehicle that Mr. Switzer was driving.

       Ms. Murphy-Sims maintained that she suffered extensive injuries, and

consequently incurred significant medical costs, as a result of the accident. In February

2014, she sent Owners a letter demanding settlement claiming $41,000 in medical

expenses. Owners timely replied with a request for more information. When Ms.

Murphy-Sims failed to reply, Owners sent two additional follow-up requests. Finally, in

June 2014, Ms. Murphy-Sims provided Owners with some of the requested information.

It did not offer a settlement payment in response.

       In July 2014, Ms. Murphy-Sims sued Mr. Switzer. The parties agreed roughly

three weeks later to enter into a Nunn agreement1 wherein the parties agreed to submit



1
 Colorado law permits local insureds to enter into an agreement with a third party
whereby the insured “assigns its bad faith claims [against the insurer] to the third party,
and in exchange the third party agrees to pursue the insurer directly for payment of the
excess judgment” that the insurer did not settle. Nunn v. Mid-Century Ins. Co., 244 P.3d
116, 119 (Colo. 2010).
                                              2
the issue of damages to binding arbitration. The arbitrator awarded Ms. Murphy-Sims

approximately $1.3 million and judgment was entered against Mr. Switzer. Pursuant to

the agreement, Ms. Murphy-Sims did not execute on the judgment.

       In March 2016, Ms. Murphy-Sims, standing in Mr. Switzer’s shoes as permitted

under the Nunn agreement, filed the underlying lawsuit against Owners in state district

court. She claimed that Owners had breached its contract with Mr. Switzer and had done

so in bad faith. Owners removed the suit to federal court and the case proceeded to trial.

A jury ultimately found that Owners did not breach its contract with Mr. Switzer, thereby

declining to award $1.3 million in damages to Ms. Murphy-Sims. The jury did not reach

the bad faith claim having been instructed that it need not be reached in the absence of a

breach of contract.

                                        Discussion

       Ms. Murphy-Sims argues that the district court made five distinct errors, three of

which are contingent upon our finding that the district court improperly instructed the

jury that they need only reach the bad faith claim if they found breach of contract. As

discussed below, we do not find that the district court so erred and thus only address her

first two arguments.

A. Rule 50(a) Motion

       Ms. Murphy-Sims argues the district court erred in denying her Rule 50(a) motion

for judgment as a matter of law. While we ordinarily “review a district court’s decision

under Rule 50(a) de novo and apply the same standards as the district court,” Bay v.

Anadarko E&P Onshore LLC, 912 F.3d 1249, 1255 (10th Cir. 2018), we need not engage

                                             3
in this analysis here as we find that this issue is not preserved for appellate review

because Ms. Murphy-Sims failed to renew her motion under Rule 50(b).

       Ms. Murphy-Sims argues that the district court erred in denying her Rule 50(a)

motion because she presented “unequivocal” evidence on the question of whether

“Owners breached its contractual duty to indemnify [Mr.] Switzer, up to the amount of

the policy limit, for damages . . . [he owed Ms.] Murphy-Sims by virtue of the

[j]udgment.” Aplt. Br. at 12. However, “the precise subject matter of a party’s Rule

50(a) motion—namely, its entitlement to judgment as a matter of law—cannot be

appealed unless that motion is renewed pursuant to Rule 50(b).” Unitherm Food Sys. v.

Swift-Echrich, Inc., 546 U.S. 394, 404 (2006). As Ms. Murphy-Sims failed to file a Rule

50(b) motion following entry of the jury verdict, this issue was not properly preserved for

appeal.

       Ms. Murphy-Sims argues that Rule 50(b) should not apply because she raised her

Rule 50(a) motion not on sufficiency-of-the-evidence grounds “but rather asked that the

court rule on a purely legal question that could not be and never was submitted to the

jury.” Aplt. Reply Br. at 7. But this is incorrect as her Rule 50 grounds were not

premised on a pure question of law, as she alleges, but rather turned on “material issues

of fact.”2 Murphy-Sims v. Owners Ins. Co., No. 1:16-cv-00759-CMA-CBS, 2017 WL


2
  We agree with the district court that the issue raised by Ms. Murphy-Sims implicates
material questions of fact. Moreover, we are not beholden to counsel’s own
characterization of whether an issue presents questions of law or fact and have indeed
cautioned that “prudent counsel” would be wise not to “rely on their own interpretations”
in making this determination. Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d
1515, 1521 (10th Cir. 1997).
                                              4
2865679, at *7 (D. Colo. Mar. 17, 2017) (finding “material issues of fact prevent[ed] a

finding that Owner’s waived its right to challenge the reasonableness of the judgment in

the underlying lawsuit” in response to Ms. Murphy-Sims’s argument that Owners was per

se liable by virtue of the judgment). And where Rule 50(a) motions are raised on

sufficiency-of-the-evidence grounds, all challenges on appeal are waived unless a Rule

50(b) motion was subsequently filed. As Ms. Murphy-Sims did not file a Rule 50(b)

motion, her challenge to the court’s ruling was not properly preserved for appellate

review.

       Moreover, even if we were to find that Ms. Murphy-Sims’s Rule 50 challenge was

premised on a pure question of law, and was thus appropriately raised on appeal, see

Ruyle v. Continental Oil Co., 44 F.3d 837, 841–42 (10th Cir. 1994), her argument is

precluded by the Final Pretrial Order. “[C]laims, issues, defenses, or theories of damages

not included in the pretrial order are waived even if they appeared in the complaint.”

Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002). Ms. Murphy-Sims’s theory

that Owners breached its contractual duty by failing to indemnify Mr. Switzer as required

by the judgment was not included in the Final Pretrial Order. As discussed in Part B

below, the only breach of contract theory alleged by Ms. Murphy-Sims turned on whether

Owners breached by failing to tender the policy limits to Ms. Murphy-Sims in a timely

manner. As Ms. Murphy-Sims’s Rule 50 motion relied on a separate theory that fell

outside four corners of the Final Pretrial Order, we conclude that the district court did not

err in denying her motion.



                                              5
B. Bad Faith Theory Not Included the Final Pretrial Order

       Ms. Murphy-Sims next argues that the district court erred in instructing the jury

that it need not reach her bad faith claim if it found no breach of contract. Where an

appellant challenges a particular jury instruction, we review the district court’s decision

to include or exclude that instruction for abuse of discretion. See Coletti v. Cudd

Pressure Control, 165 F.3d 767, 771 (10th Cir. 1999).

       Ms. Murphy-Sims contends that Owners acted in bad faith by failing to settle her

claim against Mr. Switzer. Importantly, she did not raise this theory in the Final Pretrial

Order. The Final Pretrial Order provides that her “claims are for breach of contract and

bad faith breach of contract.” 1 Aplee. Supp. App. 126. Ms. Murphy-Sims’s counsel

clarified at a subsequent status conference that she brought her bad faith claim on the

theory that Owners breached its contract by failing to tender policy limits in a timely

manner:

       THE COURT: . . . I wanted to clarify with you all what you believe is at
       issue in this case in terms of breach of contract. Owners, as I understand
       from the pleadings, satisfied its duty to defend Mr. Switzer against [Ms.
       Murphy-Sims’] claims in the underlying action brought by [Ms. Murphy-
       Sims], so that’s not an issue; correct?

       MS. BROWN: Right. I think this is the breach –– or the bad faith comes
       out of its duty; it didn’t act reasonably in weighing out our settlement offer
       in the case.

       THE COURT: All right. But it did eventually tender[] the $100,000 policy
       limit.
       ...
       MS. BROWN: Yes. The delay in tendering. And then the bad faith is not
       reasonably evaluating our client’s claims in light of the –– well, all of the
       circumstances.
                                              6
       THE COURT: But that is all tied to time; correct?

       MS. BROWN: Correct.

5 Aplee. Supp. App. at 1250:9–1251:3. As any “claims, issues, defenses, or theories of

damages not included in the pretrial order are waived even if they appeared in the

complaint,” Wilson, 303 F.3d at 1215, Ms. Murphy-Sims improperly raises this new

theory on appeal. We agree with Owners that allowing Ms. Murphy-Sims to wait until

after the presentation of evidence to alter her theory would directly contravene the

purpose of a final pretrial order. See Monfore v. Phillips, 778 F.3d 849, 851 (10th Cir.

2015) (discussing the importance of final pretrial orders in constraining the modern

pretrial practice of alleging “every alternative and contradictory claim or defense known

to the law” at the pleading stage and “encourag[ing] both sides to . . . disclose something

approximating their real trial intentions to opposing counsel and the court”).

Accordingly, the district court’s decision to instruct the jury that the bad faith claim was

contingent upon a finding of breach of contract cannot be error.

       As the remainder of Ms. Murphy-Sims’s arguments rely on this same theory,

which was not included in the Final Pretrial Order and which we thus do not accept, we

need not reach them.

       AFFIRMED.




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