DONALD L. THOMPSON,
Plaintiff, Pro-Se
vs.
Cause
No. 94-12,817
ALLSTATE INSURANCE COMPANY
and ROBERT WILSON,
Defendants
PLAINTIFF'S PROPOSED JURY INSTRUCTIONS
1. Ladies and Gentlemen of the Jury: It is now my duty to instruct you on the law that applies to this case. It is your duty to follow the law. As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact.
2. If any matter is repeated or stated in different ways in my instructions, no emphasis is intended. Do not draw any inference because of a repetition. Do not single out any individual rule or instruction and ignore the others. Consider all the instructions as a whole and each in the light of the others. The order in which the instructions are given has no significance as to their relative importance.
3. Statements of counsel are not evidence; however, if counsel have stipulated to a fact, or a fact has been admitted by counsel, accept that fact as having been conclusively proved.
4. Do not speculate as to the answers to questions to which objections were sustained or the reasons for the objections. Do not consider any evidence that was stricken; stricken evidence must be treated as though you had never known of it. A suggestion in a question is not evidence unless it is adopted by the answer. A question by itself is not evidence. Consider it only to the extent it is adopted by the answer.
5. The fact that an Insurance Company is a party must not prejudice you in your deliberations or in your verdict. Do not discriminate between the Insurance Company, (being a large corporation) and natural individuals. Each is a person in the eyes of the law and entitled to the same fair and impartial consideration and to justice by the same legal standards.
6. The words "plaintiff" and "defendant" apply to each plaintiff and to each defendant, respectively, except as you may be otherwise instructed. Therefore, whenever reference is made in these instructions to "plaintiff" or "defendant", such reference relates to each party in that capacity.
7. In this trial, the plaintiff is Donald L. Thompson, and the defendants are Allstate Insurance Company, and Robert Wilson. Plaintiff is seeking to recover actual damages payable under the insurance policy made the basis of this suit. Plaintiff also seeks exemplary and punitive damages against defendants Allstate Insurance Company and Robert Wilson based upon claims of breach by the defendants of their obligation to exercise "good faith", and failure to comply with the prompt payment provisions of the Texas Insurance Code. The defendants obligation to act in good faith is based upon a covenant implied by law in every insurance policy; that covenant being to deal honestly and fairly. In every insurance policy there is an implied obligation of good faith and fair dealing on the part of both parties. An insurance company which fails to deal fairly and in good faith with its insured by refusing unreasonably to pay the insured for a valid claim covered by the policy is liable for all damages resulting from such conduct.
8. You are not required to decide any issue according to the testimony of a number of witnesses, which does not convince you, as against the testimony of a smaller number or other evidence, which is more convincing to you. The testimony of one witness worthy of belief is sufficient to prove any fact. This does not mean that you are free to disregard the testimony of any witness merely from caprice or prejudice, or from a desire to favor either side. It does mean that you must not decide anything by simply counting the number of witnesses who have testified on the opposing sides. The test is not the number of witnesses, but the convincing force of the evidence.
9. If you find that a party willfully suppressed evidence in order to prevent its being presented in this trial, you may consider that fact in determining what inferences to draw from the evidence. In determining what inferences to draw from the evidence you may consider, among other things, a party's failure to explain or to deny such evidence.
10. Testimony has been read from depositions. A deposition is testimony taken under oath before trial and preserved in writing. You must consider that testimony as if it had been given here in court.
11. An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. You must consider interrogatories and the answers thereto just as if the questions had been asked and answered here in court.
12. In this case the plaintiff served on the defendant a written request to admit the truth of certain facts. All facts which were expressly admitted by the defendant or which defendant failed to deny must be accepted as conclusively proved.
13. Discrepancies in a witness's testimony or between such witness's testimony and that of other witnesses, if there were any, do not necessarily mean that such witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to an important matter or only to something trivial should be considered by you.
14. The fact that a witness has been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of such a conviction does not necessarily destroy or impair a witness's believability. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.
15. Evidence was presented that a party who also had an interest in the action in question compromised and settled a claim. Such evidence may be considered by you solely for the purpose of showing a fact from which an inference may, but need not, be drawn of any interest or bias on the part of either party of that settlement.
16. A witness who has special knowledge, skill, experience, training or education in a particular subject has testified to certain opinions. Any such witness is referred to as an expert witness. In determining what weight to give any such opinion, you should consider the facts or materials upon which each opinion is based, and the reasons for each opinion. An opinion is only as good as the facts and reasons on which it is based. If you find that any such fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion.
17. The defendant has admitted liability for any injury the plaintiff may have suffered resulting from the incident in question. Thus you are required to determine:
a. What injury, if any, the plaintiff sustained that was caused by the incident, and
b. The amount of damages, if any, to which the plaintiff is entitled as compensation for such injury.
The admission of liability should not prejudice you for or against the defendant.
18. The plaintiff also seeks to recover damages based upon a claim of negligence. The essential elements of such a claim are:
a. The defendant was negligent;
b. Defendant's negligence was a cause of injury, damage, loss or harm to plaintiff
The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm.
19. If the plaintiff establishes by a preponderance of the evidence all of the facts necessary to prove (1) that each of the defendants was negligent, and (2) that the negligent act of one of the defendants was a cause of plaintiff's injury, and (3) that the injury was such that it could only result from the negligent act of one of the defendants, and (4) that from the circumstances of the accident the plaintiff cannot reasonably establish which defendant's negligence was a cause of the injury, then you will find that each defendant is liable for plaintiff's injury.
20. From the evidence presented in this case, you may, but are not required to, infer that a cause of the occurrence was some negligent conduct by the defendant. However, you must not find that a cause of the occurrence was some negligent conduct by the defendant unless you believe, after weighing all the evidence in the case and drawing such inferences there from as you believe are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct by the defendant.
21. The plaintiff also seeks to recover damages based upon a claim of malicious prosecution. The words "malice" and "malicious" mean a wish to vex, annoy, or injure another person. Malice means that attitude or state of mind which actuates the doing of an act for some improper or wrongful motive or purpose. It does not necessarily require that the defendant be angry or vindictive or bear any actual hostility or ill will toward the plaintiff. The essential elements of a claim for malicious prosecution are:
a. The defendant initiated or was actively instrumental in procuring the arrest and prosecution of the plaintiff in a criminal action
b. The criminal action against the plaintiff terminated in plaintiff's favor;
c. The defendant acted without probable cause in initiating or procuring the arrest and prosecution of the plaintiff in the criminal action
d. The defendant acted with malice; and
e. The malicious actions of the defendant caused plaintiff to suffer injury, damage, loss or harm.
If you find from all the evidence that the foregoing elements are true, you must find in favor of Plaintiff of a claim for malicious prosecution. Malice, like any other fact, may be proved by direct or circumstantial evidence.
22. An opinion is the expression of a conclusion or judgment which does not purport to be based on actual knowledge. In determining whether a particular statement was a statement of fact or merely an expression of opinion, you may consider the surrounding circumstances under which it was made, the manner in which the statement was made and the ordinary effect of the words used. You may also consider the relationship of the parties and the subject matter with which the statement was concerned.
23. A contract is an agreement between two or more persons to do or not to do a certain thing or things. A valid contract requires:
a. Parties having legal capacity to contract;
b. Mutual consent;
c. A lawful objective; and
d. A sufficient consideration.
In this case, the parties were legally capable of contracting, there was mutual consent, there was a lawful objective, and there was sufficient consideration. In every contract of insurance there is an implied obligation of good faith and fair dealing upon each party to the contract that neither party will engage in conduct for the purpose of denying to the other the benefits of the contract. If any party to the contract violates that obligation, that party is in breach of the contract and is liable for damages. If defendant breached the implied covenant of good faith and fair dealing, you will award to plaintiff such damages as were caused to plaintiff by such breach.
24. The plaintiff also seeks to recover damages based upon a claim of breach of contract. An unjustified or unexcused failure to perform a contract is a breach. The essential elements of such a claim are:
a. The existence of a valid contract between the parties;
b. Plaintiff's performance;
c. Defendant's unjustified or unexcused failure to perform; and
d. Damages to plaintiff caused by the breach.
25. An unjustified or unexcused repudiation of or failure to perform a contract at the time performance is due is an actual breach. A repudiation which occurs before the time when performance is due is a breach by anticipatory repudiation, sometimes referred to as an anticipatory breach. When an anticipatory breach occurs, the injured party may either sue immediately, or wait until the time for performance, and then exercise his or her rights for actual breach of contract. An anticipatory repudiation or breach may be express or implied. A person who expressly repudiates the contract by an unequivocal refusal to perform, commits an express anticipatory breach or repudiation. A person who puts it out of his or her power to perform the promise, commits an implied anticipatory breach or repudiation.
26. Ordinarily, expressions of opinion are not treated as representations of fact upon which to base actionable fraud. However, when one party possesses or holds himself or herself out as possessing superior knowledge or special information regarding the subject of a representation, and the other party is so situated that they may reasonably rely upon such supposed superior knowledge or special information, a representation made by the party possessing or holding himself or herself out as possessing such knowledge or information will be treated as a representation of fact although if made by any other person it might be regarded as an expression of opinion. When a party states an opinion as a fact, in such a manner that it is reasonable to rely and act upon it as a fact, it may be treated as a representation of fact.
27. A party claiming to have been defrauded by a false [representation] [or] [promise] must not only have acted in reliance on it but must have been justified in such reliance, that is, the situation must have been such as to make it reasonable in the light of the circumstances and plaintiff's intelligence, experience and knowledge, to accept the representation or promise without making an independent inquiry or investigation. If you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages, if any, caused by the fraud upon which you base your finding of liability.
28. The plaintiff also seeks to recover damages based upon a claim of negligent infliction of emotional distress, willful violation of statutory standards. The elements of such a claim are:
a. The defendant engaged in negligent conduct, a willful violation of a statutory standard;
b. The plaintiff suffered serious emotional distress;
c. The defendant's negligent conduct willful violation of statutory standards was a cause of the serious emotional distress.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances. A plaintiff who has suffered a substantial financial injury which was caused by a defendant's intentional or reckless wrongful conduct, is entitled to recover damages from that defendant for any mental or emotional distress resulting from such financial injury. If you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages in an amount that will reasonably compensate plaintiff for all loss or harm, provided that you find it was or will be suffered by plaintiff and was caused by the defendant's conduct. The amount of such award shall include reasonable compensation for any fears, anxiety and other emotional distress suffered by the plaintiff and for similar suffering reasonably certain to be experienced in the future from the same cause. This is a non-economic damage. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for emotional distress. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for emotional distress you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. Reasonable compensation for any financial loss suffered by the plaintiff which was caused by emotional distress. This is an economic damage.
29. Reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the plaintiff and of which injury was a cause and for similar suffering reasonably certain to be experienced in the future from the same cause. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation. In making an award for pain and suffering you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. This is non-economic damage.
30. If you find that plaintiff suffered actual injury, harm, or damage caused by "bad faith" and failure to comply with prompt payment provisions of the Texas Insurance Code, you may then consider whether you should award punitive damages against defendant, for the sake of example and by way of punishment. You may in your discretion award such damages, if, but only if, you find by clear and convincing evidence that said defendant was guilty of the conduct on which you base your finding of liability which can include malicious, oppressive, and despicable. "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. A person acts with conscious disregard of the rights or safety of others when he she is aware of the probable dangerous consequences of his her conduct and willfully and deliberately fails to avoid those consequences. "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. "Despicable conduct" is conduct which is so vile, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people. "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury's sound discretion, exercised without passion or prejudice. In arriving at any award of punitive damages, you are to consider the following:
a. The reprehensibility of the conduct of the defendant.
b. The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant's financial condition.
c. That the punitive damages must bear a reasonable relation to the injury, harm, or damage actually suffered by the plaintiff.
If you find that plaintiff is entitled to an award of punitive damages against defendant, you shall state the amount of punitive damages separately in your verdict.
31. If you find that plaintiff is entitled to recover economic damages against more than one defendant, you must return a verdict for economic damages in a single sum against all the defendants whom you find to be liable. If you find that plaintiff is entitled to recover non-economic damages against more than one defendant, you must return a separate verdict as to each defendant and each shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of the total fault.
32. I have not intended by anything I have said or done, or by any questions that I have asked, to suggest how you should decide any questions of fact, or that I believe or disbelieve any witness. If anything I have done or said has seemed so to indicate, you must disregard it and form your own opinion. The purpose of the court's instructions is to instruct you as to the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Even though I have instructed you on various subjects [including damages] you must not treat the instructions as indicating the court's opinion on how you should decide any issue in this case or as to which party is entitled to your verdict.
33. In the jury room it is your duty to discuss the case in order to reach an agreement if you can. Each of you must decide the case for yourself, but should do so only after considering the views of each juror. You should not hesitate to change an opinion if you are convinced it is wrong. However, you should not be influenced to decide any question in a particular way simply because a majority of the jurors, or any of them, favor such a decision.
34. The attitude and conduct of jurors at the beginning of their deliberations are very important. It is rarely helpful for a juror, on entering the jury room, to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown that it is wrong. Remember that you are not partisans or advocates in this matter. You must be impartial judges of the facts.
35. The instructions which I am now giving to you will be made available in written form if you so request for your deliberations. You will find that the instructions may be typed, printed or handwritten. Portions may have been added or deleted. You must disregard any deleted part of an instruction and not speculate as to what it was or as to the reasons for its deletion. You are not to be concerned with the reasons for any modification. Every part of the text of an instruction, whether typed, printed or handwritten, is of equal importance. You are to be governed only by the instruction in its final wording.
36. You shall now retire and select one of your number to act as foreperson. He or she will preside over your deliberations. Each juror should deliberate and vote on each issue. Nine or more jurors may reach a verdict. As soon as nine or more have agreed upon a verdict so that each may state truthfully that the verdict expresses his or her vote have the verdict signed and dated by your foreperson and then return with it to this room.
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