Thomas S. Zilly United States District Judge

ORDER

THIS MATTER comes before the Court on a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) or, in the alternative, a new trial pursuant to Federal Rule of Civil Procedure 59 or remittitur, docket no. 214, and a motion to stay execution on the judgment pending resolution of post-judgment motions, docket no. 231, brought by plaintiff IDS Property and Casualty Insurance Company ("IDS"). Having reviewed all papers filed in support of, and in opposition to, each motion, the Court enters the following order. Background

Defendant Charles H. Fellows was previously married to Michaela Osborne. See Pretrial Order at 3 (docket no. 153). During the course of dissolution proceedings, Osborne obtained a no-contact or protection order and, as a result, Fellows was required to move out of their residence located at 10021 SE 192nd Place in Renton, Washington. See id . In April 2015, for purposes of the dissolution proceedings, the house was appraised and assessed to be in good condition. Id . At the conclusion of the dissolution proceedings, Fellows was awarded the home, and Osborne was directed to vacate the residence by the end of August 2015. See id . Upon his return to the residence on August 31, 2015, Fellows discovered a substantial amount of damage, including graffiti, holes in the walls, and other vandalism. Id . at 4. Fellows immediately reported the damage to the Renton Police Department, which performed an investigation. Id . On the following day, September 1, 2015, Fellows made a claim against a homeowners' policy issued by IDS.

IDS initiated this declaratory judgment action to obtain a ruling that, under the homeowners' policy, which was in effect from May 10, 2015, through May 10, 2016, it did not owe coverage for the following losses: (i) damage to the residence, (ii) additional living expenses ("ALE") necessarily incurred by Fellows to reside elsewhere while the dwelling was uninhabitable, and (iii) theft or other improper disposition of Fellows's personal property, including business attire and formal wear. IDS asserted that the losses were excluded under the policy because they resulted from intentional acts of an insured, namely Osborne and/or her children, and that the vandalism to the dwelling was not the product of domestic violence. Fellows brought six counterclaims, two of which (for constructive fraud and negligence) were dismissed with prejudice on IDS's oral motion pursuant to Federal Rule of Civil Procedure 50(a). See Minute Order at ¶¶ 1(a) & (b) (docket no. 198). With respect to the remaining four counterclaims, to the extent they were premised on the lost business attire and formal wear, they were dismissed in part. See id . at ¶ 1(c).

As to the damage to the residence and the ALE, the jury reached a verdict in favor of Fellows on his counterclaims for (i) breach of contract, (ii) violation of the Insurance Fair Conduct Act ("IFCA"), (iii) violation of Washington's Consumer Protection Act ("CPA"), and (iv) insurance bad faith. See Verdict (docket no. 201). Judgment was entered on April 7, 2017, in favor of Fellows and against IDS in the following amounts: (i) $164,798.24 in contract damages; (ii) $494,394.72 in increased damages under IFCA; (iii) $102,600 in actual damages on the CPA and insurance bad faith counterclaims; (iv) $10,000 in increased damages under the CPA; and (v) $145,000 in noneconomic damages on the bad faith counterclaim, for a total of $916,792.96, together with costs and post-judgment interest. Judgment (docket no. 205). Within 28 days after entry of the judgment, IDS filed its motion for judgment under Rule 50(b), new trial under Rule 59, or remittitur, but it did not file its motion to stay execution on the judgment until over three weeks after Fellows commenced garnishment proceedings, naming as garnishee defendants, in three separate actions, Costco Insurance Agency, Inc., Ameriprise Financial Services, Inc., and Ameriprise Auto & Home Insurance Agency, Inc. See Applications for Writ of Garnishment (docket no. 1 in Case Nos. 17-mc-39, 17-mc-40, & 17-mc-41). Discussion A. Rule 50(b) Motion

IDS has moved for judgment as a matter of law on "those matters" as to which it "moved for directed verdict." Pla.'s Mot. at 15:4-5 (docket no. 214). By framing its Rule 50(b) motion in this manner, IDS acknowledges that it cannot base its post-judgment motion on any argument not raised pursuant to Rule 50(a) before the matter was submitted to the jury. See Fed. R. Civ. P. 50(b). IDS's Rule 50(a) motion was limited to the following issues: (i) alleged insufficiency of the evidence concerning Fellows's emotional distress; and (ii) alleged failure by Fellows to establish a negligence, constructive fraud, CPA, and/or IFCA claim. See Tr. (Mar. 31, 2017), Ex. 2 to Thenell Decl. (docket no. 215-2); Minutes (docket no. 195). The Court granted IDS's Rule 50(a) motion with regard to negligence and constructive fraud, and therefore, the only motions that IDS can now present under Rule 50(b) relate to emotional distress damages and whether the counterclaims under the CPA and/or IFCA lack merit for the reason asserted by IDS in its Rule 50(a) motion, namely that no reasonable jury could find that IDS engaged in an unreasonable denial of coverage. IDS has not renewed the latter of its pre-verdict motions, which bordered on being frivolous, and thus, the only issue before the Court on IDS's Rule 50(b) motion concerns emotional distress damages. To the extent that IDS seeks judgment as a matter of law under Rule 50(b) as to the amount of contract damages ( i .e., the cost to repair the home and the ALE) or the amount of actual damages ( i .e., interest on a home equity line of credit and lost wages), IDS's motion is precluded because IDS did not timely raise, pursuant to Rule 50(a), any contention that such amounts should be limited in accordance with, or were unsupported by, the evidence.

A jury's verdict must be upheld if it is supported by substantial evidence. Wallace v . City of San Diego , 479 F.3d 616, 624 (9th Cir. 2006). Evidence is substantial if it is adequate to support the jury's conclusions even if drawing a contrary conclusion from the evidence is possible. Id . In ruling on a motion for judgment as a matter of law, the Court may not make credibility determinations or weigh the evidence. EEOC v . Go Daddy Software , Inc., 581 F.3d 951, 961 (9th Cir. 2009). Rather, the Court must draw all inferences from the evidence in the light most favorable to the nonmoving party, and it must disregard all evidence favorable to the moving party that the jury was not required to believe. Winarto v . Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001). The Court must accept the jury's credibility findings consistent with the verdict, and it may not substitute its view of the evidence for that of the jury. Id . Judgment as a matter of law may be granted only when the evidence, as appropriately viewed, permits only one reasonable conclusion and such conclusion runs contrary to the jury's verdict. A .D. v. Cal. Highway Patrol , 712 F.3d 446, 453 (9th Cir. 2013). Having applied these standards, the Court concludes that the jury's award of emotional distress damages is supported by substantial evidence, and IDS's Rule 50(b) motion is DENIED. B. Motion for New Trial

IDS moves, in the alternative, for a new trial pursuant to Rule 59, arguing that the Court's instructions to the jury were erroneous in multiple ways and that the Court erred in excluding evidence regarding Fellows's prior felony conviction. IDS's contentions lack merit. On a motion for a new trial, the Court's inquiry is whether, giving full respect to the jury's findings and considering all of the evidence, the Court is left with "the definite and firm conviction that a mistake has been committed." Landes Constr . Co. v. Royal Bank of Canada , 833 F.2d 1365, 1371-72 (9th Cir. 1987); see 11 Charles Alan Wright, et al., FED. PRAC. & PROC. § 2806 & n.26 (3d ed. 2012) (citing United States v . U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (applying a similar test for when a reviewing court may upset a trial court's finding of fact in a nonjury case)). IDS does not come close to meeting this standard.

1. Jury Instructions

IDS complains about instructions the Court gave, namely Instructions Nos. 7 (concerning Osborne's credibility) and 11 (setting forth the elements of IDS's claim for declaratory judgment), and about instructions the Court refused to give, specifically IDS's Proposed Instructions Nos. 62 and 63 and an unnumbered proposed instruction concerning the Court's dismissal of the portions of Fellows's counterclaims that were premised on the loss of personal property.

a. Instruction No. 7 (Osborne's Credibility)

After IDS had completed its direct examination of Michaela Osborne, and after Fellows's attorneys had cross-examined her, IDS for the first time disclosed, during the course of redirect, that it had reached an agreement with Osborne, shortly before trial began, to forego its subrogation rights against her. Until the moment in redirect when IDS broached the subject of subrogation, IDS had not bothered to tell Fellows's lawyers about the agreement with Osborne. The failure to timely disclose such information was a substantial breach of the discovery rules, as well as strong evidence that IDS knew the waiver of its subrogation rights undermined Osborne's credibility and that it intentionally tried to hide the agreement from Fellows. At Fellows's request, see Def.'s 2d Supp. Jury Instructions (docket no. 185 at 8), the Court added the following language to the standard instruction regarding the credibility of witnesses:

In considering the testimony of Michaele Osborne, you may take into account that she received favored treatment from IDS in connection with this case. In evaluating Osborne's testimony, you should consider whether and, if so, the extent to which, her testimony might have been influenced by this factor.

IDS's contention that the above-quoted portion of Instruction No. 7 "told the jury to discount Osborne's testimony," Pla.'s Mot. at 7:13-14 (docket no. 214), ignores the words the Court actually used. The Court's phrasing is entirely permissive ("may") and conditional ("whether"), and in no way mandatory. IDS's further argument that, because the parties elicited testimony from Osborne about her "deal" with IDS, Instruction No. 7 placed undue emphasis on the subrogation waiver disregards both (i) IDS's role in surprising Fellows's attorneys and rendering them unprepared to examine Osborne on the subject, and (ii) the Court's duty to provide the jury with guidance about how to consider the evidence once so elicited. Finally, IDS's repetitious assertion that it suffered prejudice unjustifiably attempts to appeal to sympathy. IDS made a strategic decision to waive its subrogation rights against Osborne, to keep the agreement secret until redirect, and then to inquire about the "deal" in an unsuccessful effort to introduce self-serving hearsay articulating IDS's view that Osborne did not commit any acts of domestic abuse. IDS's tactics backfired, and it will not now be heard to complain about any prejudice.

b. Instruction No. 11 (Elements of IDS's Claim)

In connection with IDS's claim for declaratory judgment, the Court instructed the jury as follows:

With respect to the damage to the residence, the insurance policy at issue does not cover "intentional loss," meaning "any loss arising out of any act an insured person commits or conspired to commit with the intent to cause a loss." This exclusion does not apply if the loss at issue was "caused by an act of domestic violence by another insured person." Under the insurance policy at issue, Fellows, Osborne, and Osborne's children are each an "insured person."
Because IDS is asserting that an exclusionary provision of the insurance policy applies, IDS bears the burden of proving the relevant facts by a preponderance of the evidence. To obtain a declaratory judgment that it owes no coverage, IDS must prove the following:
1. Michaela Osborne and/or one or more of her children caused the damage at issue to the residence located at 10021 SE 192nd Place in Renton;
2. The damage at issue was caused by an act or acts committed by an insured person with the intent to cause a loss; and
3. The damage at issue was not caused by an act or acts of domestic violence by such insured person, or in other words, the purpose of the damage was not to intimidate or attempt to control the behavior of Fellows.
Based on your consideration of all of the evidence, you must decide whether any portion of the damage to the home that was caused by Michaela Osborne and/or Osborne's children was committed with the "intent to cause a loss," and if so, whether such portion of the damage was caused by an act or acts of domestic violence. You must also determine what amount of the damage was caused by each person.

IDS's first contention was addressed in the Order issued by the Court on April 6, 2017, after the jury's verdict, and before judgment was entered. See Order at 4 n.2 (docket no. 204). As explained in that Order, "because the 'domestic violence' exception is contained within the 'intentional loss' exclusion, as opposed to a separate provision of the policy, and because IDS could not, consistent with Washington law, exclude loss caused by domestic abuse or violence to an innocent co-insured's otherwise covered property, Instruction No. 11 appropriately placed the burden on IDS to disprove domestic violence." Id . The Court is satisfied that its prior ruling is consistent with Washington law.

IDS's second argument overlooks the contents of Instruction No. 11, as well as its history. Instruction No. 11 explains, using IDS's own words, that the insurance policy at issue does not cover "intentional loss," meaning "any loss arising out of any act an insured person commits or conspired to commit with the intent to cause a loss." See Instruction No. 11 (docket no. 196) (emphasis added, quoting Policy Exclusions at ¶ 9 (docket no. 1-1 at 18)). Nothing in Instruction No. 11 foreclosed IDS's ability to argue that Osborne conspired with her children to cause the damage, and IDS never objected to Instruction No. 11 on that basis. See Tr. (Apr. 3, 2017), Ex. 1 to Thenell Decl. (docket no. 215-1); see also Fed. R. Civ. P. 51(d)(2) (indicating that, in the absence of a timely objection, the applicable standard for relief is "plain error" affecting "substantial rights").

Instruction No. 11 underwent substantial revision before the final version was read to the jury. A prior draft contained the following sentence:

You must presume that Osborne's children were incapable of formulating an "intent to cause a loss," unless you find that IDS has proved by a preponderance of the evidence that the children had sufficient capacity to understand their actions and to know that such actions were wrong.

Despite its heading, this section of IDS's motion seems to be arguing that, because the jury was asked to attribute to Osborne and her children the amount of the cost to repair the home that was caused by each of them, see Verdict at Question No. 10 (docket no. 201), IDS was unable to present its theory that Osborne conspired with her children to commit the acts giving rise to the loss. IDS's reasoning is flawed. Even if Osborne and her children engaged in some conspiracy, of which IDS presented no evidence at trial, the jury could still have allocated between them the cost to repair the home, based on the damage done by each of them. Moreover, IDS's contention fails to recognize that, if the children either did not have the capacity to form, or did not in fact have, an "intent to cause a loss" (as was found by the jury), they also could not have "conspired to commit [an act] with the intent to cause a loss." See Policy Exclusions at ¶ 9 (docket no. 1-1 at 18). Finally, even if Osborne and her children were part of a conspiracy, IDS would not prevail because the jury found that Osborne's acts constituted domestic violence, and thus, any conspiracy would likewise fall within the "domestic violence" exception to the "intentional loss" exclusion. IDS has not raised any doubt about the appropriateness of Instruction No. 11.

c. IDS's Proposed Instructions Nos. 62 and 63

Without citation to any authority, IDS contends that a new trial should be granted because the Court refused to tell the jury the meaning of the common terms "intimidate" and "control," for which IDS proposed definitions from the Merriam-Webster Dictionary. See Pla.'s Supp. Jury Instructions (docket no. 171). IDS's motion lacks merit. See United States v . Young , 458 F.3d 998, 1010 (9th Cir. 2006) ("Jury instructions need not define common terms that are readily understandable by the jury."); Lewiston Milling Co . v. Cardiff , 266 F. 753, 759 (9th Cir. 1920) ("The law does not require courts to define ordinary words and phrases."). IDS makes no assertion that, in the context of this case, the words "intimidate" and "control" have anything other than their usual meanings, and IDS's suggestion that the jury did not understand such terms improperly casts "an aspersion upon the intelligence of [the] jury." Lewiston Milling , 266 F. at 759.

d. Personal Property

IDS requested that the Court instruct the jury as follows:

The Court has ruled, as a matter of law, that Mr. Fellows is not entitled to coverage for personal property in this matter.

2. Criminal History

IDS alleges that the Court erred in granting Fellows's motion in limine to exclude evidence concerning his 2001 conviction for distribution of cocaine base and money laundering. See Order (docket no. 142); see also United States v . Fellows , CR00-436. IDS is mistaken. Such impeachment evidence was subject to the balancing test set forth in Federal Rule of Evidence 403. See Fed. R. Evid. 609(a)(1)(A). The Court concluded that the probative value of such evidence was substantially outweighed by the undue prejudice to Fellows and the potential for confusing the issues, misleading the jury, and wasting time. See Fed. R. Evid. 403. Fellows had been released from custody almost 10 years before trial in this matter commenced, see Fed. R. Evid. 609(b) (limiting the use of criminal history evidence after 10 years), and had successfully completed five years of supervised release without incident. IDS made no proffer that Fellows continues to be involved in drug-related or money-laundering activities, that he has been anything other than candid about his criminal history, or that his prior conviction in any way undermined his character for truthfulness. Instead, IDS argued that the conviction tended to show Fellows was the aggressor or "batterer" in a domestic-violence ("DV") relationship with Osborne. In other words, IDS offered the conviction merely as propensity evidence, which is precluded by Federal Rule of Evidence 404(b)(1). Moreover, IDS's syllogistic reasoning is flawed because it relies on a false premise, namely that all felons or at least all felons convicted of federal drug offenses are DV batterers.

IDS's further contention that the testimony of Fellows's former attorney, Thomas Lether, "opened the door" to evidence about Fellows's felony conviction is meritless. At trial, Lether recounted a conversation with IDS's lawyer, Daniel Thenell, in which Thenell questioned why Lether was representing Fellows, called Fellows a "scumball" or "scumbucket," indicated that Fellows has "got a criminal history," and opined that Fellows was "the one who damaged the house." Lether responded that Fellows's "past is long past history and not really relevant to anything," and explained that Fellows was an "innocent co-insured" with regard to what Lether described as "clearly an act of domestic abuse" on Osborne's part. This dialogue transpired shortly before Thenell began taking Fellows's examination under oath, which IDS was entitled to do under the policy at issue. The timing and circumstances of IDS's counsel's remarks are shocking, and they reveal, as Lether observed at trial, a "predilection towards finding no coverage," an extreme bias, and an inability to conduct the requisite "open-minded investigation." IDS cannot rely on its attorney's disparaging remarks to pry open the door to evidence about criminal history that itself was not a proper or reasonable basis to deny coverage. C. Remittitur

IDS asks, in the alternative, for the Court to reduce the amounts awarded by the jury for the cost to repair the home, the ALE, lost wages, and emotional distress. The Court declines to do so. The Court may not disturb a jury's award of damages unless it is "clearly unsupported by the evidence," or "grossly excessive," "monstrous," or "shocking to the conscience." Brady v . Gebbie , 859 F.2d 1543, 1557 (9th Cir. 1988). Moreover, the Court may not unilaterally reduce the amount of damages without running afoul of the Seventh Amendment right to a jury trial. See Kennon v . Gilmer , 131 U.S. 22, 29 (1889) ("no court of law . . . is authorized, according to its own estimate of the amount of damages which the plaintiff ought to have recovered, to enter an absolute judgment for any other sum than that assessed by the jury"). If the Court determines that the verdict should be decreased, the Court must offer the non-moving party the option of either accepting a remittitur or submitting to a new trial. Fenner v . Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir. 1983). On the other hand, if the jury's award finds substantial support in the record and falls within "the range sustainable by the proof," the Court must resist any temptation to "play Monday morning quarterback" or supplant the jury's evaluation with its own. L .A. Mem 'l Coliseum Comm'n v. Nat'l Football League , 791 F.2d 1356, 1366 (9th Cir. 1986). The Court is satisfied that the actual and noneconomic damages awarded by the jury are consistent with the evidence and are not in any way excessive. D. Motion to Amend Judgment

Although brought as a motion for remittitur, IDS's contention that Fellows is not entitled to actual damages on his breach of contract counterclaim, as well as treble damages on his IFCA counterclaim, is more properly considered a motion to alter or amend the judgment, pursuant to Federal Rule of Civil Procedure 59(e), or a motion to correct the judgment, pursuant to Federal Rule of Civil Procedure 60(a). The motion is denied. Fellows brought four separate counterclaims, and he is entitled to the full amount of damages awarded by the jury on each counterclaim. As to his counterclaim for breach of contract, Fellows is entitled to expectancy damages, meaning the sum that would put him in "as good a position as he would have been in" if IDS had performed all of its promises under the insurance contract and paid for the cost to repair the home and for ALE. See Instruction No. 18 (docket no. 196). The jury awarded $157,098.24 for the cost of repair and $7,700 in ALE, for a total of $164,798.24. Verdict at Question No. 9 (docket no. 201).

With respect to Fellows's IFCA counterclaim, the jury was told that it could, but was not required to, award increased damages in an amount up to three times the actual damages, and that, in deciding whether to award increased damages, it must consider whether such increased award was necessary to punish IDS for its conduct or deter IDS from engaging in similar conduct in the future. See Instruction No. 18 (docket no. 196). IDS did not except to Instruction No. 18, and it correctly states the law. The jury found that increased damages on the IFCA counterclaim were warranted, and awarded the maximum amount of $494,394.72, or treble the amount of actual damages. Verdict at Question No. 11 (docket no. 201). Consistent with the jury's verdict, the judgment reflects both the actual damages awarded on the breach of contract counterclaim and the increased damages awarded on the IFCA counterclaim. See Judgment (docket no. 205). To do as IDS requests, and collapse the damages on the contract and IFCA counterclaims into one amount, limited to three times the actual damages, would run contrary to the text of the applicable statute, RCW 48.30.015(2), and would not effectuate the jury's verdict. E. Stay of Execution on Judgment

IDS has moved to stay execution on the judgment pending disposition of its post-judgment motion. The post-judgment motion having been resolved, the motion to stay execution on the judgment is moot. Conclusion

For the foregoing reasons, the Court ORDERS as follows:

(1) IDS's motion for judgment as a matter of law or, in the alternative, a new trial or remittitur, docket no. 214, is DENIED;

(2) IDS's motion to stay execution on the judgment pending resolution of post-judgment motions, docket no. 231, is STRICKEN as moot;

(3) The Clerk is DIRECTED to send a copy of this Order to all counsel of record.

IT IS SO ORDERED.

Dated this 15th day of June, 2017.

/s/_________

Thomas S. Zilly

United States District Judge