Parsing jury instructions
In 2011, Fleurimond Barthelemy was involved in an automobile accident. He had a personal automobile policy with Safeco Insurance Company of Illinois. The insurer asked him three times to submit to an examination under oath (EUO) so it could investigate his claim. Barthelemy did not submit to the examination, and the insurer denied coverage for the accident.
As a result of the accident, other drivers sued Barthelemy and subsequently obtained a judgment against him. Safeco did not provide Barthelemy a legal defense or coverage for the judgments against him, based on his failure to cooperate with the insurer’s requests that he attend the EUO. Barthelemy filed an action for declaratory relief, seeking coverage up to the policy limits.
At trial, over Barthelemy’s objection, the jury received the following instruction regarding the “failure to cooperate” defense:
To prevail on this affirmative defense, Safeco Insurance Company of Illinois must establish, by the greater weight of the evidence, that: (1) Plaintiff did not comply with his post-loss obligations; and (2) Safeco Insurance Company of Illinois was actually prejudiced by Plaintiff’s failure to comply with his post-loss obligations.
Barthelemy argued that the jury instruction should include language regarding “material failure to comply” and “substantial prejudice,” and that the jury instruction was erroneous. He also requested, in writing, a jury instruction and verdict form requiring findings of materiality and substantial prejudice.
The jury returned a verdict in favor of Safeco. The court ruled that the insurer was not obligated to provide Barthelemy coverage up to the policy limits or to provide him a defense and entered a final declaratory judgment for the insurer. Barthelemy filed a motion for a new trial, again arguing in part that the insurer’s “failure to cooperate” defense and jury instruction were based on an incorrect statement of the law.
On appeal, the court stated that Barthelemy’s claim that the jury instruction and verdict form were incorrect emanated from a disagreement between the parties as to which case law governed this case. Barthelemy claimed that Bankers Insurance Co. v. Macias controlled in this case. According to this case, a “failure to cooperate” defense requires the insurer to show that the insured (1) materially failed to cooperate with his post-loss obligations and (2) the failure to cooperate substantially prejudiced the insurer.
Safeco disputed this assertion, arguing that State Farm Mutual Automobile Insurance Co. v. Curran changed the requirements of the “failure to cooperate” defense. The insurer claimed that under Curran, a “failure to cooperate” defense requires only a showing that the insured (1) failed to cooperate and (2) that the insurer suffered actual prejudice. The insurer thus contended that the “failure to cooperate” defense required neither a “material failure” to comply nor “substantial prejudice.”
The court found that Macias was the dispositive case, stating there was no clear indication that the standard for “failure to cooperate” was to be changed as a result of Curran. In issuing a “failure to cooperate” instruction that did not include “material failure” to comply and “substantial prejudice,” the trial court misstated the law and could have misled the jury into applying an incorrect standard. The decision of the trial court was reversed and the case remanded for a new trial.
Barthelemy v. Safeco Insurance Company of Illinois-District Court of Appeal of Florida, Fourth District-October 24, 2018-Nos. 4D17-1254 and 4D17-1543.