                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 22 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


AMCO INSURANCE COMPANY,                          No. 12-16773

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01257-NC

  v.
                                                 MEMORANDUM*
EUREKA OXYGEN COMPANY,

              Defendant - Appellee.



AMCO INSURANCE COMPANY,                          No. 12-16891

              Plaintiff - Appellee,              D.C. No. 3:10-cv-01257-NC

  v.

EUREKA OXYGEN COMPANY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                Nathanael M. Cousins, Magistrate Judge, Presiding

                      Argued and Submitted October 9, 2014
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.

      The parties each appeal the district court’s denial of their respective motions

following a jury award of $43,900 in a negligence action resulting from damage

caused by a fire. We have jurisdiction under 28 U.S.C. § 1291.

      The district court did not err in denying AMCO’s motion for additur of

$674,300. Courts may not award damages in excess of a jury verdict unless the

defendant consents, DePinto v. Provident Sec. Life Ins. Co., 323 F.2d 826, 838 (9th

Cir. 1963), which did not occur here.

      The district court erred in denying AMCO’s motion for a new trial. At trial,

AMCO’s claims adjustor testified that the costs to repair or replace the building

exceeded the policy limit of $689,400, and the total damages of $718,200 included

lost rental income of $28,800. While the claims adjustor stated on cross-

examination that she did not know how the contractors had derived the repair or

replacement cost estimates they provided her, Eureka did not adduce any evidence

that damages were less than the $718,200 or that AMCO could have mitigated the

damages. Because the jury’s award of $43,900 was not supported by any evidence

in the record and was grossly inadequate, the district court abused its discretion by

denying AMCO’s motion for a new trial. DePinto, 323 F.2d at 838. In this case,

the issue of damages is intertwined with the issue of liability, so we must remand


                                          2
for a new trial on all issues. See Gasoline Prods. Co. v. Champlin Ref. Co., 283

U.S. 494, 500 (1931).

      Finally, Eureka cross-appeals the denial of its motion for a judgment as a

matter of law on the grounds that AMCO failed to demonstrate causation. Viewing

the evidence “in the light most favorable to the nonmoving party,” Josephs v. Pac.

Bell, 443 F.3d 1050, 1062 (9th Cir. 2005), AMCO presented substantial evidence

of causation at trial through the expert testimony of Donald Perkins and Michael

Carlsen. We therefore affirm the district court on this issue.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WITH INSTRUCTIONS TO GRANT A NEW TRIAL ON ALL ISSUES.1




      1
             Costs are taxed against Eureka. Fed. R. App. P. 39(a)(4).

                                          3
