UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NELLIE MONTGOMERY; CHARLES
MONTGOMERY,
Plaintiffs-Appellants,

v.
                                                                      No. 95-2702
GENERAL ACCIDENT INSURANCE;
POTOMAC INSURANCE COMPANY OF
ILLINOIS,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Richard L. Williams, Senior District Judge, sitting by designation.
(CA-93-62)

Argued: April 7, 1997

Decided: June 10, 1997

Before RUSSELL, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William B. Carey, Berkeley Springs, West Virginia, for
Appellants. Paul K. Geer, DIBELLA & GEER, P.C., Pittsburgh,
Pennsylvania, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Charles and Nellie Montgomery brought this action claiming that
General Accident Insurance Company of America and Potomac Insur-
ance Company of Illinois (collectively, "General Accident") refused
in bad faith to satisfy their obligations under an insurance policy cov-
ering property owned by the Montgomerys. A jury awarded the Mont-
gomerys compensatory damages but refused to award punitive
damages. The Montgomerys appeal, primarily contending that the dis-
trict court erred in refusing to grant them a new trial on the basis that
prejudicial remarks by the district court resulted in the failure of the
jury to award adequate compensatory or punitive damages. We
affirm.

I.

In June 1993, a small grocery store owned by the Montgomerys in
rural West Virginia was damaged when an underground gasoline tank
located on the property exploded. The Montgomerys sought reim-
bursement for property damage caused by the explosion from General
Accident pursuant to the terms of a business owners insurance policy.
Subsequently, the Montgomerys filed a claim under the policy for lost
profits due to business interruption, believing that General Accident
had unduly delayed in paying their property damage claim, thereby
postponing the reopening of the store and causing a loss of income.
General Accident denied the full claim for lost profits on the basis
that any delay in payment of the property damage claim was a result
of the Montgomerys' failure to provide promptly repair estimates and
that delay in the reopening of the store was caused by the enforcement
of environmental regulations by the State of West Virginia, for which
General Accident was not responsible.

The Montgomerys then filed this action, alleging that General
Accident's failure to pay promptly their repair costs and refusal to pay

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their entire claim for business interruption losses amounted to a
breach of the insurance contract and a bad faith failure to comply with
its terms. Additionally, the Montgomerys alleged that General Acci-
dent's handling of their claim for benefits constituted an unfair trade
practice. See W. Va. Code § 33-11-4(9) (1996).

At trial, Jack Lane testified on behalf of the Montgomerys as their
sole expert witness in insurance claims handling practices. Lane
explained the standard procedures for processing claims to which
adjustors for General Accident should have adhered, concluding that
General Accident acted with actual malice and engaged in unfair trade
practices in failing to pay the Montgomerys' claims. According to
Lane, "[General Accident] knew [it] owed the money for business
interruption, [it] knew how much, and refused to pay it." J.A. 46.

While instructing the jury on the applicable law, the district court
remarked that Lane did not "add any evidence to the case at all" and
that the jury should accord only "slight" weight to his testimony. J.A.
92. Subsequently, in explaining that an insurance policy imposes vari-
ous obligations and duties upon both the insurance company and the
policyholder, the district court admonished the jury that "[w]hen you
bring suit on an insurance policy, it's not like a TV program called
`The Jackpot is Yours' or `Strike it Rich.'" J.A. 95. Immediately fol-
lowing the conclusion of the jury instructions, the Montgomerys
moved unsuccessfully for a mistrial because of these comments by the
district court. After the verdict, the Montgomerys moved for a new
trial based, inter alia, on these remarks. The motion was denied. We
review the denial of a motion for a new trial for abuse of discretion.
See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99
F.3d 587, 594 (4th Cir. 1996).

II.

The Montgomerys contend that the comments of the district court
concerning Lane's testimony amounted to reversible error because the
court "influence[d] the minds of the jury as to the value of the wit-
ness' testimony." Brief for Appellant at 12 (internal quotation marks
omitted). And, they maintain that the "Strike it Rich" comment was
unduly prejudicial, undercutting the validity of their bad faith and
unfair trade practices claims, and also requires reversal.

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In the federal system, a trial judge may "comment on the weight
of the evidence even to the point of expressing his opinion as to [the]
credibility" of a witness. United States v. Holley, 502 F.2d 273, 276
(4th Cir. 1974); see Quercia v. United States , 289 U.S. 466, 469
(1933); United States v. Tello, 707 F.2d 85, 88 (4th Cir. 1983). "It is
within [the trial judge's] province, whenever he thinks it necessary,
to assist the jury in arriving at a just conclusion by explaining and
commenting upon the evidence ...." Quercia , 289 U.S. at 469. The
discretion of the district judge to comment on the evidence is not
without bounds, however. For example, the judge may not distort or
add to the evidence and must use caution to avoid misleading the jury
or appearing one-sided. See id. at 470."It is particularly vital that the
trial judge also instruct the jurors that his comments are not binding
upon them ... and that they are the sole judges of the evidence." Tello,
707 F.2d at 88. Further, the trial judge should give this instruction to
the jury "in sufficient proximity to his comment so that the jury will
have it clearly in mind when the comment is made." Id.

Although the remarks of the district court with respect to Lane's
testimony might be subject to criticism when considered in isolation,
we are convinced that the district judge did not misconstrue or add to
the evidence and that he "stay[ed] within his role in the fact-finding
process." Tello, 707 F.2d at 89. Moments before commenting on
Lane's testimony, the district judge instructed the jurors that they
were free to disregard his view of the evidence and emphasized their
role as "the sole judges of the credibility of the witnesses and the
weight that their testimony deserve[d]." J.A. 92. Likewise, the gratu-
itous "Strike it Rich" comment, although not especially judicious, did
not "reach[ ] such a level of prejudice that it denied ... the appellants
a fair, as distinguished from perfect, trial." United States v. Parodi,
703 F.2d 768, 776 (4th Cir. 1983) (internal quotation marks omitted).
Viewed in the context of the complete jury instructions, the remarks
by the district court did not amount to reversible error.

III.

After carefully reviewing the record and the parties' briefs, we find
that the Montgomerys' remaining contentions also lack merit.
Accordingly, we conclude that the district court did not abuse its dis-
cretion in denying the Montgomerys' motion for a new trial.

AFFIRMED

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