                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 23 1999
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    WILLIAM NEAL CLARK; BILLIE
    CLARK, as co-guardian of William
    Neal Clark,

               Plaintiffs-Appellants,                  No. 98-6312
                                                (D.C. No. CIV 97-1390-M)
    v.                                                 (W.D. Okla.)

    NATIONAL UNION FIRE
    INSURANCE COMPANY; CLAIMS
    MANAGEMENT, INC.,

               Defendants-Appellees.




                           ORDER AND JUDGMENT           *




Before ANDERSON and KELLY , Circuit Judges, and         BROWN , ** Senior
District Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
      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.

      Plaintiffs William Neal Clark and Billie Clark, as co-guardian of William

Neal Clark, appeal from a jury’s verdict finding that defendants   1
                                                                       National Union

Fire Insurance Co. and Claims Management, Inc. (collectively National) were not

guilty of bad faith breach of contract in regard to the payment of medical

expenses incurred by William Neal Clark following an on-the-job injury.

We affirm.

      Plaintiffs commenced this action in state court. National removed the

action to federal district court on the grounds of diversity. The parties are

familiar with the facts and we will relate them only as necessary to our

disposition. William Neal Clark, an employee of Wal-Mart, was driving a

Wal-Mart van when he struck a semi-truck head on. He was seriously injured

and filed a claim for workers’ compensation benefits. The workers’

compensation court determined that the accident arose out of and in the course

of Clark’s employment. The court held that National should provide Clark


1
      Defendant National Union Fire Insurance Co. is the workers’ compensation
insurance carrier for William Neal Clark’s employer, Wal-Mart Stores, Inc.
Claims Management, Inc. is National Union’s agent.

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“reasonable and necessary medical treatment, care and attention.” App. Vol. 1,

at 14 (June, 1995 Workers’ Compensation Court order at 2).

      Clark commenced this action for bad faith breach of contract alleging that

National had failed to meet their obligations as ordered. Clark alleged that none

of his medical bills or prescription and transportation costs had been paid.

      On appeal, Clark raises issues concerning the district court’s evidentiary

rulings and the jury instructions. Clark contends the district court erred in not

admitting (1) testimony of his treating physician regarding his organic brain

damage and treatment, (2) documents necessary for him to show National had

notice of his medical bills and their duty to pay those bills, (3) billing records of

his health providers, and (4) expert testimony that the insurance adjuster was

inadequately trained. He also argues that the court erred in giving a jury

instruction which placed the burden on him to prove he was covered by workers’

compensation without allowing him to introduce workers’ compensation records

or, in the alternative, instructing the jury that he was covered by workers’

compensation insurance. He also argues the district court should have given his

requested jury instructions.

      We review the trial court’s evidentiary rulings for abuse of discretion.    See

Gust v. Jones , 162 F.3d 587, 592 (10th Cir. 19 98). Further, “ [i]f we find error in

the admission of evidence, we will set aside a jury verdict only if the error


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prejudicially affects a substantial right of a party.”       Coletti v. Cudd Pressure

Control , 165 F.3d 767, 776 (10th Cir. 19 99) (quotation omitted).

       The testimony of Clark’s treating physician was properly excluded. Such

testimony was sought by way of depositions the physician had given in the

workers’ compensation case, prior to the time Clark’s allegations of bad faith

arose and, thus, are irrelevant to Clark’s claim that National had failed to pay

bills submitted after the date of the workers’ compensation order.

       An insurer has the “right to contest questionable claims” and, therefore,

legitimate litigation conduct is not evidence of bad faith.         Timberlake Constr. Co.

v. U.S. Fidelity & Guar. Co.     , 71 F.3d 335, 341      (10th Cir. 19 95). Thus, the fact

that bills were submitted but not paid prior to the entry of final judgment on his

workers’ compensation case is irrelevant to the issues here. Clark has not set

forth any claim that   the litigation in his workers’ compensation case was not

legitimate. Further, National’s policy of requiring that medical bills be

resubmitted after liability is established is reasonable. Clark’s argument that an

insurer can only have this policy if mandated by statute is without merit.

       We decline to address Clark’s argument that he should have been permitted

to introduce an expert to testify that the insurance adjustor was inadequately

trained. Clark did not develop this argument in his brief.          See American Airlines

v. Christensen , 967 F.2d 410, 415 n.8       (10th Cir. 19 92).


                                               -4-
       Clark argues that the district court erred in refusing to give his proffered

jury instructions.

              In a diversity case, 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.    We
              review a district court’s decision whether to give a
              tendered instruction for an abuse of discretion.    When,
              as here, a party has objected to instructions at trial, then
              we conduct a de novo review to determine whether, as a
              whole, the instructions correctly stated the governing
              law and provided the jury with an ample understanding
              of the issues and applicable standards.

Wiles v. Michelin N. Am., Inc. , 173 F.3d 1297, 1304 (10th Cir. 19 99) (quotations

and citation omitted).

       First, Clark argues the court should not have instructed the jury that he

carried the burden of proving he was covered by workers’ compensation without

permitting him to introduce his workers’ compensation records or instructing the

jury that he had met that element. Instruction No. 13 correctly stated the essential

elements of a bad faith failure to pay claims which includes proof that the

claimant was covered by a workers’ compensation liability policy and that

National was required to pay his claims. However, Instruction No. 2 states that

“Clark received a workers’ compensation award for his injuries.” App. Vol. 1,

at 95. Our review of the instructions as a whole and the evidence presented at

trial does not persuade   us that the jury could have erroneously thought that Clark

had failed to show these elements. Although Clark’s proposed amendment to the

                                           -5-
instruction may have been helpful to the jury, the court’s failure to amend the

instruction is, at best, harmless error.

      Clark also contends the court should have given his requested instructions.

Clark has failed to show how the district court’s failure to give his requested

instructions prejudiced him.   The instructions as given properly guided the jury

and correctly stated the controlling law.

      The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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