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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                        Fifth Circuit

                                                                                   FILED
                                                                               January 3, 2019
                                      No. 17-50073
                                                                                Lyle W. Cayce
                                                                                     Clerk
CONESTOGA TRUST, also known as Conestoga Settlement Trust;
CONESTOGA TRUST SERVICES, L.L.C.,

                Plaintiffs - Appellants

v.

COLUMBUS LIFE INSURANCE COMPANY,

                Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-152


Before HIGGINBOTHAM and HIGGINSON, Circuit Judges.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:**
       This appeal arises from a dispute over the termination of a life insurance
policy. Appellant Conestoga Trust sued Appellee Columbus Life Insurance
Company alleging that Columbus failed to mail a grace notice prior to


       * Judge Edward C. Prado, a member of our original panel, retired from the court on
April 2, 2018, to become His Excellency the United States Ambassador to the Argentine
Republic. He therefore did not participate in this matter, which is decided by a quorum. See
28 U.S.C. § 46(d).
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 17-50073
terminating the policy following Conestoga’s failure to pay the life insurance
policy premiums. The jury was asked to consider one question: whether
Columbus failed to mail the grace notice as required by the policy. The jury
answered no, the district court entered judgment in favor of Columbus, and
this appeal followed. We affirm in part, and reverse and remand, in part.
                                      I.
      Columbus issued a universal life insurance policy on the life of Peggy
Mulvaney, a Michigan resident, in October 2007. Three years later, James
Settlement Services International, LLC purchased the Policy in a life
settlement transaction. JSS is a life settlement company that buys life
insurance policies and sells fractions of the death benefits to investors. The
Policy was sold by JSS to Conestoga, who contracted with Provident Trust
Group, LLC to manage its policies and serve as its escrow agent to hold
investor funds and pay life insurance premiums. In providing that service,
Provident called insurers each month to confirm the monthly premium due and
sent monthly emails to Conestoga to obtain approval to pay premiums owed.
      In mid-2014, Provident erroneously stopped paying premiums on the
Policy and stopped calling Columbus to determine the minimum payment due.
Consequently, the Policy entered a grace period. Once that occurs, the Policy
provides:
      We [Columbus] will allow a Grace Period. We will mail You . . . a
      notice indicating the minimum premium You must pay in order to
      keep the policy in force. . . .

      You will have 61 days from the date We mail You this notice to pay
      or mail enough premium. If You do not pay or mail the needed
      premium within the 61-day Grace Period, all coverage provided by
      this policy will terminate without value at the end of the 61-day
      period. We will rely on the postmark to determine the date of
      mailing.


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                                      No. 17-50073
       Pursuant to this provision, Columbus contends that it mailed Conestoga
a grace notice dated November 17, 2014, triggering the 61-day grace period. 1
Conestoga maintains that it never received the Grace Notice, and neither
Provident nor Conestoga paid the overdue $15,223.96 premium to Columbus
within the 61-day period.
       As a result, Columbus terminated the Policy and mailed Conestoga a
Notice of Loss of Coverage. Conestoga received the Notice of Loss of Coverage
and wired the overdue balance to Columbus. Two days later, Columbus faxed
a letter to Conestoga, indicating that the wired funds had not and would not
be applied to the Policy, as “[t]he funds were not timely paid” and the Policy
has “lapsed and is no longer in force.” Although the Policy permits
reinstatement of coverage within a five-year period, as both the Notice of Loss
of Coverage and the letter rejecting the wired funds indicated, Conestoga did
not apply for reinstatement.
       Conestoga initiated this action in the Western District of Texas, alleging
that Columbus had breached the life insurance policy by failing to “mail and/or
postmark” the Grace Notice and seeking a declaratory judgment that the Policy
is in full force and effect. Columbus moved for summary judgment, submitting
evidence of Columbus’s mailing procedures and arguing that applicable law
precluded Conestoga’s attorneys’ fees claim. The district court granted in part
and denied in part Columbus’s motion. The court determined that Texas law
applied to Conestoga’s breach of contract claim; that the sole issue was whether
Columbus mailed the Grace Notice; and that a genuine issue of material fact
remained on that issue. 2 The court, however, rejected Conestoga’s argument


       1All policyholder correspondence sent by Columbus to Conestoga was mailed to
Conestoga’s law firm, De Leon & Washburn.
      2 The court first, in conducting a choice-of-law analysis, determined that Michigan and

Texas law do not conflict and thus, Texas law applies. See LHC Nashua P’ship, Ltd. v.
PDNED Sagamore Nashua, L.L.C., 659 F.3d 450, 456–57 (5th Cir. 2011).
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                                   No. 17-50073
that Columbus could only prove the mailing of the Grace Notice with its
postmark, deeming that theory “thoroughly unpersuasive.” The court
additionally determined that Michigan law applied to Conestoga’s attorneys’
fees claim, thereby barring any fee award.
      Before the case proceeded to trial, Conestoga proposed jury instructions
that placed the burden on Columbus to prove that it “properly cancelled the
Policy.” Conestoga’s proposed instructions further specified that an insurer
must “strict comply” with the termination provisions at issue. Before jury
selection, the district court, having received additional briefing on the issue,
ruled from the bench that Conestoga had the burden of proof.
      At trial, both parties presented circumstantial evidence about the
mailing of the Grace Notice. Conestoga presented evidence on the procedures
in place at De Leon & Washburn (where the Grace Notice was purportedly
mailed) for receiving and sorting mail. The firm’s founder, Hector De Leon,
testified that Pat Washburn had been put in charge of receiving Conestoga
notices and Washburn testified that he had not “lost a client document in [his]
career” nor “had problems finding any documents if someone came to [his]
office and asked [him] for a particular document.” 3 Columbus proffered
evidence detailing the printing and mailing process for grace notices and
presented data about the batch of mail that included the Grace Notice
purportedly sent to Conestoga. The Grace Notice was randomly selected by the
machine operator for a quality control audit and, after the audit, the mail items
in the batch were placed on a machine for packaging and addressing. Pitney
Bowes then conducted an additional quality check and presorted the mail for




      3 This testimony aimed to counter Columbus’s evidence that Washburn may have
misplaced the Grace Notice. For example, Columbus presented evidence that Washburn had
a messy office.
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                                     No. 17-50073
delivery to USPS. 4 Conestoga contends that Columbus failed to present direct
evidence that the Grace Notice was mailed, arguing that their documentation
only goes as far as showing that the Grace Notice was diverted for quality
control, faulting Columbus for failing to produce a postmark or certified mail
receipt.
      At the close of evidence, Conestoga again objected to the court’s
instruction that placed the burden of proof on Conestoga and to the court’s
failure to include an instruction that Columbus was required to “strictly
comply” with the Policy. The court overruled the objections, and instructed the
jury as follows:
      Plaintiffs have the burden of proving their case by a preponderance
      of the evidence. . . . If you find Plaintiffs have failed to prove any
      element of their claim by a preponderance of the evidence, then
      they may not recover on that claim. . . .


      The only issue for your determination is whether Plaintiffs proved
      by preponderance of the evidence Defendant Columbus Life failed
      to mail notice of Grace Period and Termination of Coverage as
      required by the Policy. Damages that may or may not have been
      incurred by any party should not play a role in your determination.
      Accordingly, the jury verdict form presented one question: “Did
Columbus Life fail to mail the notice of Grace Period and Termination of
Coverage as required by the policy?” The jury answered, “No,” and the court
entered judgment in favor of Columbus.
      Conestoga filed two post-judgment motions. First, Conestoga moved for
judgment as matter of law or, alternatively, a new trial pursuant to Rule 50(b),
arguing that Columbus presented no evidence of a postmark to determine the
date of mailing. Second, Conestoga moved for a new trial pursuant to Rule 59,



      4  Pitney Bowes is a company that collects mail from large companies, sorts it, then
delivers it to USPS at a discounted rate.
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                                       No. 17-50073
arguing the court erred by placing the burden of proof on Conestoga. The court
denied both motions, stating the following: “The simple fact is the jury found
Columbus Life Insurance Co. did not violate the policy on the only issue in this
case—whether the appropriate notice was mailed. The plaintiffs failed to prove
to the jury Columbus Life Insurance Co. violated the policy determined this
case. No basis for new trial is warranted.” Conestoga appeals the final
judgment and the court’s order denying its post-judgment motions.
                                              II.
       This Court reviews jury verdicts deferentially. 5 “We review the denial of
a judgment as a matter of law de novo, but we apply the district court’s
standard: granting judgment as a matter of law only if the ‘facts and inferences
point so strongly and overwhelmingly in the movant’s favor that reasonable
jurors could not reach a contrary conclusion.’” 6 “[W]hen evaluating the
sufficiency of the evidence, we view all evidence and draw all reasonable
inferences in the light most favorable to the verdict.” 7
       This Court reviews a denial of a motion for new trial for abuse of
discretion. 8 “The district court abuses its discretion by denying a new trial only
when there is an ‘absolute absence of evidence to support the jury’s verdict.’” 9
Jury instructions are also reviewed for abuse of discretion 10 but a district
court’s allocation of the burden of proof is reviewed de novo. 11
                                             III.



       5EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 451 (5th Cir. 2013).
       6MM Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835, 843 (5th Cir. 2015) (quoting
Boh Bros. Constr. Co., 731 F.3d at 451).
      7 Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir. 2005).
      8 Streamline Prod. Sys., Inc. v. Streamline Mfg., Inc., 851 F.3d 440, 450 (5th Cir. 2017).
      9 Cobb v. Rowan Cos., 919 F.2d 1089, 1090 (5th Cir. 1991) (quoting Irvan v. Frozen

Food Express, Inc., 809 F.2d 1165, 1166 (5th Cir. 1987)).
      10 Garriott v. NCsoft Corp., 661 F.3d 243, 247 (5th Cir. 2011).
      11 Guajardo v. Tex. Dept. of Criminal Justice, 363 F.3d 392, 395 (5th Cir. 2004).

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                                     No. 17-50073
      Conestoga contends that the district court erred in denying its motion
for judgment as a matter of law because Columbus failed to strictly comply
with the termination provisions of the Policy. Conestoga urges this Court to
interpret the Policy as requiring Columbus to create a postmark for the mailing
of the Grace Notice. Following non-payment of premiums, the Policy provides
that the insurer will send a notice of nonpayment and allows a 61-day Grace
Period during which the insured is permitted to pay or mail the needed
premium to avoid termination of the Policy. The Policy specifies that the
insurer will “rely on the postmark to determine the date of mailing.” Conestoga
maintains that the postmark language creates an independent requirement
that Columbus prove the date of mailing of the Grace Notice by producing the
postmark, which Columbus could not do. It also urges that the language of
reliance on the postmark to determine the mailing date refers to both the
mailing date of the unpaid premium and the mailing date of the Grace Notice.
Columbus responds, arguing that the Policy does not limit the documentation
it can use in litigation to prove the mailing date of the Grace Notice to a
postmark. It submits a conflicting interpretation of the Policy’s “rely on the
postmark” clause, arguing that it applies only to the mailing of the premium
payments, not to the mailing of the Grace Notice.
      “An insurance policy is a contract, generally governed by the same rules
of construction as all other contracts.” 12 “When construing a contract, [the
Court’s] primary concern is to ascertain the intentions of the parties as
expressed in the contract,” beginning the analysis “with the language of the
contract because it is the best representation of what the parties mutually
intended.” 13 Importantly, “[a]n ambiguity does not arise simply because the


      12  RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015) (citing Gilbert
Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010)).
       13 Id.

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                                       No. 17-50073
parties offer conflicting interpretations.” 14 Where only one party’s proposed
construction is reasonable, we will conclude that the contract is unambiguous
and adopt that party’s construction. 15 However, where “both constructions
present reasonable interpretations of the policy’s language, we must conclude
that the policy is ambiguous,” adopting the construction that most favors the
insured. 16
        Conestoga is correct that Texas law indeed requires strict compliance
with an insurance policy’s termination provision. 17 That stricture, however,
does not change the fact that nothing in the plain language of the grace period
provision requires Columbus to “create or retain” a postmark when mailing a
grace        notice.   Even     assuming    arguendo       that    Conestoga’s      proffered
interpretation—that the “rely on the postmark” language applies to both grace
notices and premium payments—is reasonable, 18 Conestoga reads into the
grace period provision an evidentiary requirement, i.e. that Columbus “create
or retain” a postmark to prove the date of mailing of a grace notice. The plain
language of the Policy does not compel such a requirement. The district court
did not err in denying Conestoga’s motion for judgment as a matter of law. 19


        14Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003).
        15RSUI Indem., 466 S.W.3d at 118.
       16 Id.
       17 See U.S. Liab. Ins. Co. v. Baggett, 285 S.W.2d 804, 806–807 (Tex. App. 1955) (“It is

a well-established rule of law that to effect a cancellation . . . the conditions of a policy of
insurance . . . must be strictly complied with and followed.”).
       18 The reasonableness of that interpretation is questionable given the absurd results

that would follow. As Columbus emphasizes, if the “rely on the postmark” language applies
to the mailing of the grace notice, any grace notice sent via a separate postal carrier (e.g.,
Federal Express) would be noncompliant and no other clear evidence of the date of mailing
would be permissible to prove delivery of the Grace Notice (e.g., a receipt of hand delivery or
a video documenting the hand delivery). Finally, Columbus points out that Conestoga’s
reading of the contract would preclude Columbus from using metered postage for its millions
of mail items per year, instead forcing them to obtain a stamp, postmark, and copy of the
postmark for each mail item.
       19 Columbus also argues that the district court correctly denied Conestoga’s motion

for judgment as a matter of law because Conestoga did not and cannot prove damages, a
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                                         No. 17-50073
                                               IV.
       Conestoga also contends that because they are entitled to judgment as a
matter of law, the case should be remanded for a trial to determine its
attorneys’ fees. Having held that Conestoga is not entitled to judgment as a
matter of law, we turn to the issue of attorneys’ fees. Holding that Michigan
law applied, the district court granted summary judgment on that issue for
Columbus, and Conestoga now challenges that order.
       In considering Conestoga’s choice of law argument, we apply the choice
of law rules of the forum state—here, Texas. 20 Texas follows the “most
significant relationship” test from the RESTATEMENT (SECOND) OF CONFLICT OF
LAWS, (“RESTATEMENT”), and Section 192 provides:
       The validity of a life insurance contract issued to the insured upon
       his application and the rights created thereby are determined, in
       the absence of an effective choice of law by the insured, by the local
       law of the state where the insured was domiciled at the time the
       policy was applied for, unless, with respect to the particular issue,
       some other state has a more significant relationship under the
       principles stated in § 6 to the transaction and the parties, in which
       event the local law of the other state will be applied. 21



necessary element of its breach of contract claim. Columbus contends that because a separate
entity bought replacement coverage, and there is no agreement that Conestoga must
reimburse that separate entity for the coverage, Conestoga sustained no damages. Conestoga
responds that it sought specific performance, not monetary damages. We agree. See e.g.,
Temple v. DLJ Mortg. Capital Inc., No. 04-12-00113, 2012 WL 5984696, at *3 (Tex. Ct. App.
2012) (rejecting identical argument in breach of contract case where plaintiff sought specific
performance, recognizing that “not every breach of contract claim requires the establishment
of money damages”) (citing Rasmusson v. LBC PetroUnited Inc., 124 S.W.3d 283, 287 (Tex.
Ct. App. 2001) (additional citation omitted)).
        20 Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 190–91

(5th Cir. 2010).
        21 RESTATEMENT (SECOND) CONFLICTS OF LAW § 192. In determining whether a state

has a “more significant relationship” under § 6 principles, Texas courts examine “(a) the place
of contracting, (b) the place of negotiation of the contract; (c) the place of performance, (d) the
location of the subject matter of the contract, and (e) the domicil, residence, nationality, place
of incorporation and place of business of the parties.” Cardoni v. Prosperity Bank, 805 F.3d
573, 582 (5th Cir. 2015).
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                                           No. 17-50073
         That Section creates a “presumption in favor of the jurisdiction where
the insured was domiciled at the time he or she applied for life insurance.” 22
Conestoga suggests that the official comments to Section 192 implicate an
exception to the general presumption, providing for the application of local law
when “the giving of notice of default by the insurance company” is at issue. 23
As the district court correctly noted, however, the particular question here is
whether the owner of a life insurance policy who proves that an insurer
breached the policy can collect attorneys’ fees. Because Mulvaney (the insured)
was domiciled in Michigan when she bought the policy, Michigan law applies
and Conestoga is unable to collect attorneys’ fees, even if it were to succeed on
its breach of contract claim.
                                                  V.
         Conestoga also appeals the district court’s order denying its motion for a
new trial, suggesting that the district court erred in placing the burden of proof
on Conestoga. Columbus responds by reiterating that this is, fundamentally, a
breach of contract action for which the plaintiff bears the burden of proof,
arguing that the mere fact that Columbus is an insurer doesn’t change that
analysis. Columbus attempts to distinguish the cases cited by Conestoga by
pointing out that in those cases, the insurer sought to cancel a policy, unlike
here, where Columbus claims it merely let the policy lapse.
         We now hold that the district court erred in its allocation of the burden
of proof. In Texas, 24 the insurer has the burden to prove that it sent a grace




         22   Am. Nat’l Ins. Co. v. Conestoga Settlement Trust, 442 S.W.3d 589, 598 (Tex. Ct. App.
2014).
         RESTATEMENT (SECOND) CONFLICTS OF LAW § 192 cmt. d.
         23

         As explained above, the district court held that Texas law applies to the breach of
         24

contract claim because there is no conflict between Michigan and Texas law. On appeal,
Columbus acknowledges that Texas law applies to the burden of proof issue.
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                                       No. 17-50073
notice that is required prior to termination of the policy. 25 This is true even
where the question of whether “the cancellation notice was mailed to the
insured” is “the sole jury issue.” 26 Columbus attempts to distinguish this case
in a number of ways, all of which are ultimately unavailing. 27 Columbus
suggests that it does not have the burden of proof because the beneficiary is
still alive, and therefore the insured has not been wrongfully denied benefits.
Following Columbus’s logic, because no benefits have been denied, Conestoga
cannot show breach of contract without proving that Columbus failed to mail
the Grace Notice and therefore, it must bear the burden of proof. Although
there was no formal denial of benefits, coverage under the Policy was
indisputably terminated by Columbus. Columbus offers no principled reason
to explain why the burden should shift to the insured when the beneficiary is
still alive and such a contention does not comport with Texas law. 28 Columbus



       25  W. Fire Ins. Co. v. Reyna, 495 S.W.2d 57, 59 (Tex. App. 1973) (holding that the
insurer had burden of proof on sole jury issue and therefore had right to open and close the
argument); Winters Mut. Aid Ass’n v. Corum, 297 S.W. 238, 240 (Tex. App. 1927) (“Where
notice is required in order to establish a forfeiture for nonpayment of premiums, the burden
is on the insurer to show that required notice was given.”); Plasma Fab, LLC v. BankDirect
Capital Fin., LLC, 468 S.W.3d 121, 132–33 (Tex. App. 2015) (finding that insurer “met its
burden of establishing that the policy was cancelled . . . in accordance with the terms of the
policy” which required advance written notice); 17A COUCH ON INS. § 254:35 (3d Ed. 2016)
(“Where an insured denies receiving a proper notice of cancellation, the insurer has the
burden of proving compliance with conditions of the policy as to notice.”).
        26 Reyna, 495 S.W.2d at 59.
        27 Columbus relies heavily on an unpublished case from the District of Maryland

(applying Maryland law) where the court, on similar facts, required that the insured prove
by a preponderance of the evidence that the insurer failed to fulfill a notice condition before
cancelling the policy. Goldstein v. Lincoln Nat’l Life Ins. Co., No. WMN-09-706, 2012 WL
1044325, at *4 (D. Md. Mar. 27, 2012). The case contains no further discussion of the burden
of proof issue and Columbus offers no explanation for its applicability to this question of
Texas law.
        28 Texas Mut. Life ins. Co. v. Burns, 92 S.W.2d 469, 472 (Tex App. 1936) (rejecting

insurer’s contention on appeal that the trial court erred in placing the burden of proving that
notice was mailed on insurer in case where policy was cancelled during the life of the insured).
Columbus attempts to distinguish Burns based on the fact that the insured there claimed to
have fully performed the contract by paying the premiums. We see no reason why the
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                                        No. 17-50073
also attempts to distinguish this case by arguing that here, the policy
automatically lapsed by the terms of the agreement, whereas in the cases cited
by Conestoga, the policy was cancelled—a discretionary decision made by the
insurer. Because Columbus made no discretionary decision, it argues, it did
not have the burden of proving it had the right to make that discretionary
decision to terminate. The language of the contract, however, belies any
argument that the policy “lapsed” by its own terms—the lapse could not occur
until the insurer sent the Grace Notice giving the insured the opportunity to
pay the missed premiums. 29 The question here then, is whether Columbus
complied with that Grace Notice requirement, which is antecedent to the
termination. Columbus has the burden to prove that it did. 30
       Having found error, we turn now to remedy. Conestoga claims that the
district court’s improper placement of the burden constituted prejudicial error
because, given the lack of direct evidence, the burden of proof was likely
outcome-determinative. Columbus, on the other hand, concludes that any error
concerning the burden of proof is harmless because the record demonstrates
that Columbus presented ample evidence that it mailed the Grace Notice.
       While this court has acknowledged that misallocating the burden of proof
might be harmless in some cases, it has also warned that the “class of


stipulation here that Conestoga erroneously stopped making payments changes the burden
of proof on the mailing of the notice issue.
         29 The contract makes clear that the lapse is not automatic, guaranteeing that the

insurer will “not terminate th[e] policy until at least 61 days after” it mails the Grace Notice.
         30 Columbus suggests that allocating the burden of proof to the insurer here

contravenes the general rule that a plaintiff has the burden to prove breach of contract. But
as we have reiterated, the mere fact that the parties stipulated to other elements of the claim
(e.g., the Policy’s ownership and the erroneous nonpayment of premiums) does not change
the fact that the insurer bears the burden to prove notice under Texas law. Such a result
comports with the law of other jurisdictions. See e.g., Herndon v. Mass. Gen. Life. Ins. Co., 28
F. Supp. 2d 379, 381 n.3, 382 (W.D. Va. 1998) (collecting cases from several jurisdictions and
holding that “an insurer bears the burden of proving that proper notice was sent to the
insured before termination of coverage” when sole issue was whether “[insurer] sent notice
to [insureds] that the insurance policy was about to lapse”).
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                                       No. 17-50073
[harmless] cases seems small.” 31 We have reversed jury verdicts after finding
the trial court misallocated the burden of proof in similar cases. We observed
in Aero International that the “allocation of the burden of proof is crucial—
oftentimes dispositive.” 32 And, in Barton’s Disposal, this Court held that an
erroneous burden of proof charge necessitated reversal when that charge left
the Court “with substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations.” 33
         While the misallocation of the burden of proof did not produce an
“irrational verdict” here, the evidence—though largely in favor of Columbus—
is not so one-sided that Conestoga failed to present a genuine issue of material
fact. Given that the jury was incorrectly instructed on the law on the sole issue
before it, we are left with “a substantial doubt whether the jury was fairly
guided in its deliberations.” 34
                                             VI.
         Accordingly, we affirm the district court’s denial of Conestoga’s motion
for a judgment as a matter of law, finding that nothing in the plain language
of the Policy required Columbus to “create or retain” a postmark to establish
that it had mailed the Grace Notice. We affirm the district court’s grant of
summary judgment as to attorneys’ fees. Finding that the district court erred
in placing the burden of proof on Conestoga, we reverse and remand for a new
trial.




          Whiteside v. Gill, 580 F.2d 135, 139 (5th Cir. 1978) (finding that the misallocation
         31

of the burden of proof was not harmless due to “conflicting testimony” presented to the
hearing examiner). Misallocation could be harmless, for example, “[i]f all evidence favored
one party and if that evidence were overwhelming, [so] we could infer that a misallocation
was a technical defect that did not influence the outcome of the case.” Id.
       32 Aero Intern., Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1112 (5th Cir. 1983)
       33 Barton’s Disposal Serv. Inc. v. Tiger Corp., 886 F.2d 1430, 1437 (5th Cir. 1989)
       34 Aero Int’l, 713 F.2d at 1113 (citing Mid-Texas Comm’ns Sys., Inc. v. AT&T, 615 F.2d

1372, 1390 n.16 (5th Cir. 1980)).
                                             13
