Opinion
8:18CV23
07-31-2023
MILLARD GUTTER COMPANY, a corporation d/b/a Millard Roofing and Gutter; GILLICK ENTERPRISES, INC.; and GROSS POINT HOLDINGS, LLC, Plaintiffs, v. DEPOSITORS INSURANCE COMPANY, Defendant.
COURT'S PROPOSED JURY INSTRUCTIONS
8th Cir. MCivJI 1.01. See Joint Proposed JI No. 1.01.
Members of the Jury Panel, we are about to begin the process of selecting which of you will be the jury that tries this case. In that process you will be asked questions by me then by the attorneys that touch on your qualifications to sit as jurors in this case. You will be placed under oath or asked to affirm that you will truthfully and completely answer these questions put to you.
I have modified this sentence from the model, which stated that the Court, the attorneys, or both might ask questions, because both the Court and the attorneys will ask question in jury selection in this case.
Your undivided attention to this process is very important. So, if you have a cell phone or other communication device, please take it out now and turn it off. Do not turn it to vibration or silent; please power it down or off. During this jury selection process, you must leave it off.
During this jury selection process and during the trial, it is important that all the information you receive about the case comes from the courtroom. So, from now on until you are discharged from the case you may not discuss this case with anyone and that includes the other potential jurors, except during deliberations if you are selected as a juror. However, you may tell your family, close friends, and other people about your participation in this trial, but only so they will know when you are required to be in court. If you do that, please warn them not to ask you about this case, or try to tell you anything they know or think they know about it, or discuss it in your presence.
Also, just as importantly, you must not communicate any information at all about the case to anyone by any means, directly or indirectly, in face-to-face conversation or by any digital media, such as Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, Snapchat, Tiktok, and NextDoor.
8th Cir. MCivJI 1.01 points to 8th Cir. MCrimJI .01 for a more explicit list of digital and medial sources that can be added here. I have inserted the list from the criminal model.
If you discuss the case with someone other than the other jurors during deliberations, you may be influenced in your verdict by the opinions of people other than the other jurors. That would not be fair to the parties, and it would result in a verdict that is not based entirely on the evidence in court and the law the court gives you.
It is very important that you abide by these rules. Failure to follow these instructions, and indeed any instructions the court gives you during the trial could result in the case having to be retried. Failure to follow these and the court's other instructions could result in you being held in contempt of court and punished accordingly.
Those of you who are selected to try this case will receive similar instructions as we go through the trial.
Are there any of you who cannot or will not abide by these rules concerning communication with others during this trial?
My Stock, based on 8th Cir. MCivJI 1.03. See Joint Proposed JI No. 1.03.
Members of the Jury: I am now going to give you some instructions about this case and about your duties as jurors. At the end of the trial, I will give you more instructions. I may also give you instructions during the trial. All instructions-those I give you now and those I give you later, and whether they are in writing or given to you orally-are equally important and you must follow them all.
You must leave your cell phone, smartphone, iPhone, tablet computer, or any other wireless communication device in the jury room during the trial and may only use them during breaks. You will have to turn those devices “off” in the jury room during your deliberations.
My Stock on electronic device policy, based on 8th Cir. MCivJI 1.03, ¶ 2.
This is a civil case brought by plaintiffs Gillick Enterprises, Inc., Gross Point Holdings, LLC, and Millard Gutter Company against defendant Depositors Insurance Company. For the sake of convenience, I will call the plaintiffs as a group “Millard Gutter,” and I will call the defendant “Depositors.” Millard Gutter claims that Depositors breached an insurance policy and has failed to remit all sums due under a policy of insurance issued to Gillick Enterprises, Inc., and Gross Point Holdings, LLC. Gillick Enterprises, Inc., and Gross Point Holdings, LLC, have assigned to Millard Gutter Company the right to proceeds under the policy up to Millard Gutter Company's unpaid charges. Depositors denies Millard Gutter's breach-of-contract claim and asserts certain defenses. It will be your duty to decide from the evidence whether Millard Gutter is entitled to a verdict against Depositors.
These are the “shorthand” references for the parties that I have used in the ruling on Motions for Partial Summary Judgment. I recognize that Millard Gutter's interest is only as an assignee of Gillick and Gross Point and only of their “right to proceeds” under the insurance policy in question. See Filing 1-3 at 5 (¶¶ 12-13). However, because the assignment also “directed Defendants to communicate with Millard Roofing regarding repairs to the damaged property,” I will continue to use “Millard Gutter” as the shorthand name for the plaintiffs. Also, after my ruling on the Motions for Partial Summary Judgment, Nationwide is no longer a defendant in this action.
This sentence of the instruction correctly describes the assignment in this case. See Filing 1-3 at 5 (¶¶ 12-13). Both parties have submitted additional instructions on the assignment to Millard Gutter. See Plaintiffs' Proposed JI No. 12; Defendant's Proposed JI Nos. 22-23. I will require considerable convincing before I give any additional instructions on “assignment.” I note that, on the one hand, Defendant asserts in Defendant's Proposed JI No. 23 that the assignment was limited, so that it did not give Millard Gutter control of the claim, while on the other hand, Defendant asserts in its Brief in Opposition to Plaintiffs' Motion in Limine Re: Subcontractor/Supplier Charges/Proposal Estimates that “with the rights under the contract assigned by Gillick and Gross Point to Millard Gutter also comes all of the conditions, duties, and other terms of the policy” such that “Millard Gutter, due to its position and standing in the case as assignee of the Named Insureds, Gillick and Gross Point, has obligated itself to comply with all of the terms, conditions and other provisions of the policy.” Filing 136 at 7. I believe that Defendant is wrong on this point because the assignment is indeed limited. I conclude that Millard Gutter did not (and as a matter of Nebraska law cannot) step into the shoes of the insureds by virtue of an assignment of less than the entirety of the insureds' claims. An insured can validly assign a post-loss breach of contract claim for insurance proceeds. See Millard Gutter Co. v. Shelter Mut. Ins. Co., 980 N.W.2d 420, 430 (Neb. 2022) (explaining that in the absence of a statute to the contrary, an insured may validly assign a post-loss breach of contract claim for proceeds, and the assignee has standing to sue for breach of contract in its own name). However, that is because “the indemnity policy is no longer an executory contract of insurance [but rather] a vested claim against the insurer.” Id. The assignment does not obligate the assignee to comply with terms of the policy, although the insureds must do so because they have not assigned that obligation. See id. at 434 (explaining that a post-loss assignment by an insured does not create a contractual relationship between the insurer and the assignee, even if the assignment of the right to proceeds allows the assignee to sue for breach of contract); see also Millard Gutter Co. v. Cont'l Cas. Co., 9 F.4th 711, 713 (8th Cir. 2021) (relying on Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 889 N.W.2d 596, 605 (Neb. 2016), and Valley Boys, Inc. v. Allstate Ins. Co., 66 F.Supp.3d 1179, 1881-82 (D. Neb. 2014), to conclude that an assignment of insurance proceeds and the authority to negotiate payment with the insurer did not assign the entire claim). Similarly, I find it unnecessary-without considerable convincing-to instruct the jurors that “[a] beneficiary of a contract may recover thereon even though they [sic] are not named as a party to the contract,” as requested in Plaintiffs' Proposed JI No. 13. One reason is that the authority Plaintiff cites, Spring Valley IV Joint Venture v. Nebraska State Bank of Omaha, 690 N.W.2d 778 (Neb. 2005), never mentions an “assignee” as a “beneficiary” of a contract; indeed, it does not mention “assignment” at all.
Joint Proposed JI No. 1.03, ¶ 2, included the “first party bad faith” claim, but I granted Depositors summary judgment on that claim. Thus, Plaintiffs' Proposed JI Nos. 21-24 and Defendant's Proposed JI No. 11 are irrelevant to the claim going to trial. Joint Proposed JI No. 1.03, ¶ 2, did not include any reference to Depositors' affirmative defenses, but I believe it is appropriate to inform the jurors that Depositors has such defenses. Contrary to Plaintiff's assertion in Proposed JI No. 1, n.1, I believe Defendant has pleaded affirmative defenses that would warrant instructions, if proof materializes at trial.
In my view, this paragraph, coupled with the “stipulated facts” instruction, Instruction No. 5 (based on 8th Cir. MCivJI 2.03), make section A of Plaintiffs' Proposed JI No. 1, section A of Defendant's Proposed JI No. 24, and all of Defendant's Proposed JI No. 1 unnecessary.
You will decide whether or not Millard Gutter has proved its claim and whether or not Depositors has proved its defenses. Your duty is to decide what the facts are from the evidence. You are allowed to consider the evidence in the light of your own observations and experiences. After you have decided what the facts are, you will have to apply those facts to the law that I give you in these and in my other instructions. That is how you will reach your verdict. Only you will decide what the facts are. However, you must follow my instructions, whether you agree with them or not. You have taken an oath to follow the law that I give you in my instructions.
This is an amplification of the last sentence of the preceding paragraph again including the claim and affirmative defenses.
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any reasons they might have to testify a certain way, how they act while testifying, whether they said something different at another time, whether their testimony is generally reasonable, and how consistent their testimony is with other evidence that you believe.
In deciding whether to believe a witness, remember that people sometimes hear or see things differently and sometimes forget things. You will have to decide whether a contradiction is an innocent misrecollection, or a lapse of memory, or an intentional falsehood. That may depend on whether it has to do with an important fact or only a small detail.
You may hear testimony from expert witnesses who will testify to opinions and the reasons for the opinions. This opinion testimony is allowed because of the education or experience of the witness. You should judge this opinion testimony just as you would any other testimony. You may accept it or reject it and give it the weight you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all other evidence in this case.
This paragraph on experts is based on 8th Cir. MCivJI 3.05. See Joint Proposed JI 3.05; Plaintiffs' Proposed JI No. 9. I prefer the Eighth Circuit Model to NJI2d Civ. 1.42 requested in Defendant's Proposed JI No. 3. I believe the instruction on experts should be included with the general credibility instructions in 8th Cir. MCivJI 1.03 that precede this paragraph.
Do not let sympathy, or your own likes or dislikes, influence you. The law requires you to come to a just verdict based only on the evidence, your common sense, and the law that I give you in my instructions, and nothing else.
Nothing I say or do during this trial is meant to suggest what I think of the evidence or what I think your verdict should be.
This instruction is based on 8th Cir. MCivJI 5.23 and is similar to NJI2d Civ. 6.30, which is requested in the last unnumbered Joint Proposed JI and again in Plaintiffs' Proposed JI No. 3.
A corporation acts only through its agents or employees and any agent or employee of a corporation may bind the corporation by acts and statements made while acting within the scope of his or her duties as an employee of the corporation.
8th Cir. MCivJI 1.02, which I prefer to give as an instruction at the beginning of the case, rather than at the first recess.
During trial, including during recesses, do not discuss this case among yourselves or with anyone else, including your family and friends. Do not allow anyone to discuss the case with you or within your hearing. “Do not discuss” also means do not e-mail, send text messages, blog, or engage in any other form of written, oral, or electronic communication, as I instructed you earlier.
The beginning of this instruction was modified for its context in the set of instructions rather than an instruction given at the first recess.
You must decide this case only from the evidence received by the court here in the courtroom and the instructions on the law that I give you.
Do not read any newspaper or other written account, watch any televised account or streamed video account, or listen to any streamed internet or radio program on the subject of this trial.
Do not conduct any Internet research or consult with any other sources about this case, the people involved in the case, its general subject matter, or the law. This includes not consulting or commenting on Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, Snapchat, Tiktok, and NextDoor.
8th Cir. MCivJI 1.02 points to 8th Cir. MCrimJI .01 for a more explicit list of digital and medial sources that can be added here. I have inserted the list from the criminal model.
You must keep your mind open and free of outside information. Only in this way will you be able to decide the case fairly, based solely on the evidence received in court and my instructions on the law. If you decide this case on anything else, you will have done an injustice. It is very important that you follow these instructions.
Keep these things in mind until you are discharged.
The beginning of the sentence in the model has been modified to reflect that this instruction is not given before the first recess.
My Stock No. 4, based on 8th Cir. MCivJI 2.03. It is nearly identical to Joint Proposed JI No. 2.03.
Millard Gutter and Depositors have stipulated-that means they have agreed-that the following facts are true. You must treat these facts as having been proved:
1. Gross Point Holdings, which I will call Gross Point, is the record owner of property located at 13255 Centech Road, Omaha, Nebraska 68138.
2. Gillick Enterprises, which I will call Gillick, operates its business at the property at 13255 Centech Road, Omaha, Nebraska 68138.
3. Gillick and Gross Point were named insureds concerning property located at 13255 Centech Road in Omaha, Nebraska, under a policy bearing policy number ACP CPPD 7215729129, issued under the name Depositors Insurance Company from a period of July 1, 2012, to July 1, 2013.
4. Gillick and Gross Point submitted a claim for storm damage to their commercial building during the covered period of July 1, 2012, to July 1, 2013.
5. Millard Gutter Company is a general contractor doing business in Nebraska, whose services include roof, gutter, and HVAC repairs.
6. At the Property, there are three main structures, a Truck Wash, a Main Building, and a Refrigeration Building.
7. The Truck Wash has a metal roof.
8. The Main Building has an EPDM-style rubber membrane roof, covered in river rock (ballast).
9. The Refrigeration Building has a TPO-style roof.
10. Gillick and Gross Point engaged Millard Gutter Company to undertake repairs at the property located at 13255 Centech Road, Omaha, Nebraska 68138.
11. The estimate of Mike Weber of Young and Associates dated 11/21/2017 shows the work Depositors has determined to be covered loss due to a covered cause of loss. The Court and the parties may call this estimate the Weber Estimate. Plaintiffs dispute the scope and the amount of loss set forth in the Weber Estimate.
I have inserted where appropriate the “shorthand” names I will use for parties and documents.
I believe this paragraph of stipulated facts obviates the need for the first numbered paragraph of Plaintiffs' Proposed JI No. 11 setting out “Findings as a Matter of Law.”
I did make a statement like this in the factual background of my ruling on the parties' Motions in Limine, Filing 108 at 2, but I do not believe I have ever found as a matter of law that the property in fact sustained storm damage during the effective period of the insurance policy, as stated in numbered paragraph 2 of Plaintiffs' Proposed JI No. 11 setting out “Findings as a Matter of Law.” Plaintiffs cite no decision in this case so finding. Consequently, I have not included the second “finding” from Plaintiffs' Proposed JI No. 11 and I have not given Plaintiffs' Proposed JI No. 11 at all.
The Court and the parties may refer to these facts as Stipulated Facts.
My Stock, based on 8th Cir. MCivJI 1.04. See Joint Proposed JI No. 1.04.
When I use the word “evidence,” I mean the testimony of witnesses; documents and other things I receive as exhibits; facts that I tell you the parties have agreed are true (including the Stipulated Facts); and any other facts that I tell you to accept as true.
Some things are not evidence. I will tell you now what is not evidence:
1. Lawyers' statements, arguments, questions, and comments are not evidence.
2. Documents or other things that might be in court or talked about, but that I do not receive as exhibits, are not evidence. Either party may offer into evidence documents that have been partially redacted, meaning certain contents of the documents have been blacked out or whited out. There are various reasons why redactions are necessary. You may give the un-redacted information in any document whatever weight you choose. However, you should not consider the redacted portions. Do not speculate on the contents of the redacted information or the reasons for its redaction.
This instruction on “redaction” of documents starting with the second sentence of this paragraph, has been included here, essentially as requested in unnumbered Proposed JI (based, inter alia, on 8 Iowa Practice Civil Litigation Handbook § 70:5), Plaintiffs' Proposed JI No. 7, and Defendant's Proposed JI No. 7.
3. Objections are not evidence. Lawyers have a right-and sometimes a duty-to object when they believe something should not be a part of the trial. Do not be influenced one way or the other by objections. If I sustain a lawyer's objection to a question or an exhibit, that means the law does not allow you to consider that information. When that happens, you must ignore the question or the exhibit, and you must not try to guess what the information might have been.
4. Testimony and exhibits that I strike from the record or tell you to disregard are not evidence, and you must not consider them.
5. Anything you see or hear about this case outside the courtroom is not evidence, and you must not consider it unless I specifically tell you otherwise.
Also, I might tell you that you can consider a piece of evidence for one purpose only, and not for any other purpose. If that happens, I will tell you what purpose you can consider the evidence for and what you are not allowed to consider it for. You need to pay close attention when I give an instruction about evidence that you can consider for only certain purposes, because you might not have that instruction in writing later in the jury room.
I believe this paragraph of 8th Cir. MCivJI 1.04 makes it unnecessary to repeat 8th Cir. MCivJI 2.09 later. See Joint Proposed JI No. 2.09; Plaintiffs' Proposed JI No. 4.
Some of you may have heard the terms “direct evidence” and “circumstantial evidence.” You should not be concerned with those terms because the law makes no distinction between the weight to be given to direct and circumstantial evidence.
I have used the last paragraph of 8th Cir. MCivJI 1.04 rather than Defendant's Proposed JI No. 4 concerning “direct” and “circumstantial” evidence, because the law does not distinguish between the weight of the two kinds of evidence.
My Stock, based on 8th Cir. MCivJI 2.14. The parties proposed a comparable instruction based on NJI2d Civ. 1.44. See unnumbered Joint Proposed JI on “Deposition Testimony”; Plaintiffs' Proposed JI No. 6; Defendant's Proposed JI No. 6. I prefer to use the Eighth Circuit Model because it is more detailed about how deposition testimony may be prepared and presented.
Testimony may be presented to you in the form of a deposition. A deposition is the recorded answers a witness made under oath to questions asked by lawyers before trial. The deposition testimony that may be presented was either electronically video recorded and that recording will be played for you or taken down in writing and will be read to you. You should consider the deposition testimony and judge its credibility as you would that of any witness who testifies here in person.
8th Cir. MCivJI 3.04. See Joint Proposed JI No. 3.04, Plaintiffs' Proposed JI No. 8, Defendant's Proposed JI No. 13.
You must decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved by the greater weight of the evidence, if you find that it is more likely true than not true. You decide that by considering all the evidence and deciding what evidence is more believable.
You have probably heard the phrase “proof beyond a reasonable doubt.” That is a stricter standard than “more likely true than not true.” It applies in criminal cases, but not in this civil case, so put it out of your mind.
8th Cir. MCivJI 1.05. See Joint Proposed JI No. 4. The parties did not offer a comparable Joint Proposed JI, but I believe this instruction is helpful to the jury to understand why a sidebar may be called.
During the trial, I will sometimes need to talk privately with the lawyers. I may talk with them here at the bench while you are in the courtroom, or I may call a recess and let you leave the courtroom while I talk with the lawyers. Either way, please understand that while you are waiting, we are working. We have these conferences to make sure that the trial is proceeding according to the law and to avoid confusion or mistakes. We will do what we can to limit the number of these conferences and to keep them as short as possible.
8th Cir. MCivJI 1.06. See Joint Proposed JI No. 1.06.
At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a written copy of the testimony to refer to. Because of this, you must pay close attention to the testimony and other evidence as it is presented here in the courtroom.
If you wish, however, you may take notes to help you remember what witnesses say. If you do take notes, do not show them to anyone until you and your fellow jurors go to the jury room to decide the case after you have heard and seen all the evidence. Do not let taking notes distract you from paying close attention to the evidence as it is presented. The Courtroom Deputy will provide each of you with a pad of paper and a pen or pencil. At each recess, leave your notes at your seat here in court or in the jury room.
When you leave at night, your notes will be locked up and returned to you when you return. When the trial is over your notes will be destroyed. They will not be read by anyone other than you.
8th Cir. MCivJI 1.09 (edited). See Joint Proposed JI No. 6.
The trial will proceed in the following manner:
First, Millard Gutter's attorney may make an opening statement. Depositors' attorney may then make an opening statement. An opening statement is not evidence. Rather, it is a summary of the evidence the lawyers expect you will see and hear during the trial.
After opening statements, Millard Gutter's attorney will present evidence. Depositors' attorney will have a chance to cross-examine Millard Gutter's witnesses. After Millard Gutter's attorney has finished presenting Millard Gutter's case, Depositors' attorney may present evidence, and Millard Gutter's attorney will have a chance to cross-examine Depositors' witnesses.
After you have seen and heard all the evidence from both sides, the attorneys will make closing arguments that summarize and interpret the evidence. Just as with opening statements, closing arguments are not evidence. After the closing arguments, I will instruct you further on the law. After the lawyers' arguments and after the Court's instructions, you will go to the jury room to deliberate and decide on your verdict.
8th Cir. MCivJI 1.08 as modified by My Stock. Like the parties, I do not believe the “Ninth” paragraph of the model is necessary in this case. See Joint Proposed JI No. 1.08.
Jurors, to make sure this trial is fair to all parties, you must follow these rules:
First, do not talk or communicate among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to consider your verdict.
Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone tries to talk to you about the case during the trial, please report it to the courtroom deputy.
Fourth, during the trial, do not talk with or speak to any of the parties, lawyers, or witnesses in this case-not even to pass the time of day. It is important not only that you do justice in this case, but also that you act accordingly. If a person from one side of the lawsuit sees you talking to a person from the other side-even if it is just about the weather-that might raise a suspicion about your fairness. So, when the lawyers, parties, and witnesses do not speak to you in the halls, on the elevator, or the like, you must understand that they are not being rude. They know they are not supposed to talk to you while the trial is going on, and they are just following the rules.
Fifth, you may need to tell your family, close friends, and other people that you are a part of this trial. You can tell them when you have to be in court, and you can warn them not to ask you about this case, tell you anything they know or think they know about this case, or talk about this case in front of you. Just remember that you must not communicate with anyone or post information in any manner about the parties, witnesses, participants, claims, evidence, or anything else related to this case. You must not tell anyone anything about the jury's deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you talk about the case with someone besides the other jurors during deliberations, it looks as if you might already have decided the case or that you might be influenced in your verdict by their opinions. That would not be fair to the parties, and it might result in the verdict being thrown out and the case having to be tried over again.
During the trial, while you are in the courthouse and after you leave for the day, do not give any information to anyone, by any means, about this case. For example, do not talk face-to-face or use any electronic device, such as a telephone, cell phone, smartphone, Blackberry, PDA, computer, or computer-like device. Likewise, do not use the internet or any internet service; do not text or send instant messages; do not go on or use any internet or other medium, including an internet chat room, blog, or other websites such as Facebook, MySpace, YouTube, or Twitter. In other words, do not communicate with anyone about this case-except for the other jurors during deliberations-until I accept your verdict.
This paragraph is an amplified version of the paragraph in 8th Cir. MCivJI 1.08 immediately preceding “Sixth.” I believe it is appropriate to reiterate at the end of the preliminary instructions the importance of not disclosing any information on social media.
Sixth, do not do any research-on the internet, in libraries, newspapers, or otherwise-and do not investigate this case on your own. Do not visit or view any place discussed in this case, and do not use the internet or other means to search for or view any place discussed in the testimony. Also, do not look up any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge.
The last sentence of this paragraph is interpolated from the fourth paragraph of 8th Cir. MCivJI 1.02.
Seventh, do not read or otherwise receive any information, including any news stories or internet articles or blogs that are about the case, or about anyone involved with it. Do not listen to any radio or television reports, or digital streaming, about the case or about anyone involved with it. In fact, until the trial is over, I suggest that you avoid reading or receiving any digital streaming or any newspapers or news journals and avoid listening to any television or radio newscasts at all. I do not know whether there will be news reports about this case, but if there are, you might accidentally find yourself reading or listening to something about the case. If you want, you can have someone collect information and set it aside to give to you after the trial is over. I can assure you, however, that by the time you have heard all the evidence in this case, you will know what you need to decide it.
The parties have a right to have you decide their case based only on evidence admitted here in court. If you research, investigate, or experiment on your own, or get information from other sources, your verdict might be influenced by inaccurate, incomplete, or misleading information. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through cross-examination. All the parties are entitled to a fair trial and an impartial jury, and you have to conduct yourselves in a way that assures the integrity of the trial process. If you decide a case based on information not admitted in court, you will deny the parties a fair trial. You will deny them justice. Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished.
Eighth, do not make up your mind during the trial about what your verdict should be. Keep an open mind until after you and your fellow jurors have discussed all the evidence.
My Stock, based on 8th Cir. MCivJI 3.01. There is no directly comparable Joint Proposed JI. In my view, the third paragraph of Instruction No. 2, coupled with the “stipulated facts” instruction, Instruction No. 5 (based on 8th Cir. MCivJI 2.03), make section A of Plaintiffs' Proposed JI No. 1, section A of Defendant's Proposed JI No. 24, and all of Defendant's Proposed JI No. 1 unnecessary.
Members of the jury, the instructions I gave at the beginning of the trial and during the trial are still in effect. Now I am going to give you additional instructions.
You have to follow all of my instructions-the ones I gave you earlier, as well as those I give you now. Do not single out some instructions and ignore others, because they are all important. This is true even though I am not going to repeat some of the instructions I gave you at the beginning of or during the trial.
You will have copies of all the instructions in the jury room. Remember, you have to follow all instructions, no matter when I give them, whether or not you have written copies.
Although you must follow my instruction, I have not intended to suggest what I think your verdict should be by any of my rulings or comments during trial. During the trial, I may have asked some questions of witnesses. Do not try to guess my opinion about any issues in the case based on the questions I asked.
This paragraph is drawn from 8th Cir. MCivJI 3.02. See Joint Proposed JI No. 10; Plaintiffs' Proposed JI No. 10.
This Instruction is based on NJI2d Civ. 15.01, § B. See Plaintiffs' Proposed JI No. 1, § B; Defendant's Proposed JI No. 24, § B. I see no reason for the reiteration of slightly different elements in section B of Plaintiffs' Proposed JI No. 1.
Your verdict must be for Millard Gutter and against Depositors on Millard Gutter's claim of breach of contract if Millard Gutter has proved all the following elements by the greater weight of the evidence:
First, plaintiffs Gillick and Gross Point entered into an insurance contract with Depositors;
The insureds, Gillick and Gross Point, not their assignee of the right to proceeds of the contract, Millard Gutter, must have entered into the contract with Depositors. Again, for reasons I will explain below and in my forthcoming ruling on Motions in Limine, I believe Defendant is wrong when it asserts in its Brief in Opposition to Plaintiffs' Motion in Limine Re: Subcontractor/Supplier Charges/Proposal Estimates that “with the rights under the contract assigned by Gillick and Gross Point to Millard Gutter also comes all of the conditions, duties, and other terms of the policy” such that “Millard Gutter, due to its position and standing in the case as assignee of the Named Insureds, Gillick and Gross Point, has obligated itself to comply with all of the terms, conditions and other provisions of the policy.” Filing 136 at 7.
Second, the terms of the contract;
Contrary to Plaintiffs' suggestion by proffering Plaintiffs' Proposed JI No. 14, I will not instruct the jury on interpretation of an insurance contract. The interpretation of a contract is a question of law for the Court. Brush & Co. v. W. O. Zangger & Son, Inc., 991 N.W.2d 294, 301 (Neb. 2023).
Third, Gillick and Gross Point complied with all conditions in the policy for coverage to apply;
Plaintiffs omitted this element from Plaintiffs' Proposed JI No. 1, § B. I believe it should be included, with the parties that must comply with contract terms specifically identified. Again, I conclude that Millard Gutter did not (and as a matter of Nebraska law cannot) step into the shoes of the insureds by virtue of an assignment of less than the entirety of the insureds' claims. An insured can validly assign a post-loss breach of contract claim for insurance proceeds. See Millard Gutter Co. v. Shelter Mut. Ins. Co., 980 N.W.2d 420, 430 (Neb. 2022) (explaining that in the absence of a statute to the contrary, an insured may validly assign a post-loss breach of contract claim for proceed, and the assignee has standing to sue for breach of contract in its own name). However, that is because “the indemnity policy is no longer an executory contract of insurance [but rather] a vested claim against the insurer.” Id. The assignment does not obligate the assignee to comply with terms of the policy, although the insureds must do so because they have not assigned that obligation. See id. at 434 (explaining that a post-loss assignment by an insured does not create a contractual relationship between the insurer and the assignee, even if the assignment of the right to proceeds allows the assignee to sue for breach of contract); see also Millard Gutter Co. v. Cont'l Cas. Co., 9 F.4th 711, 713 (8th Cir. 2021) (relying on Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 889 N.W.2d 596, 605 (Neb. 2016), and Valley Boys, Inc. v. Allstate Ins. Co., 66 F.Supp.3d 1179, 1881-82 (D. Neb. 2014), to conclude that an assignment of insurance proceeds and the authority to negotiate payment with the insurer did not assign the entire claim).
Fourth, Depositors breached the contract;
Fifth, the breach of contract was a proximate cause of some damage to Gillick, Gross Point, and Millard Gutter; and
Sixth, the nature and extent of the damage covered by the contract.
A breach of contract is a failure, without legal excuse, to perform any promise that forms the whole or part of a contract. A breach of contract is a proximate cause of damage when it produces the damage in a natural and continuous sequence and the damage would not have occurred without the breach of contract.
I believe the definitions in this paragraph are appropriate. See Defendant's Proposed JI No. 24, § C. This definition is from McGill Restoration, Inc. v. Lion Place Condo. Ass'n, 959 N.W.2d 251, 269 (Neb. 2021). Defendant's definition in Defendant's Proposed JI No. 24, § C, omits “without legal excuse.” I believe this caveat is important, particularly where Defendant asserts affirmative defenses as excuses for its non-performance.
This instruction paraphrases in “plainer English” the definition in NJI2d Civ. 3.41 and uses “damage” rather than “result” consistent with the definition of “breach.” See NJI2d Civ. 3.41 (“A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred”). Compare Defendant's Proposed JI No. No. 24, § C (same), with George Clift Enterprises, Inc. v. Oshkosh Feedyard Corp., 947 N.W.2d 510, 536 (Neb. 2020) (“[T]he claimant must prove that the breach of contract complained of was the proximate cause of the alleged damages. There must be a causal relationship between the damages asserted and the breach relied upon.”). (BCB-use exactly the model language if at all possible)
If Millard Gutter has not met its burden of proof on all the elements of this claim, your verdict must be for Depositors. On the other hand, if Millard Gutter has met its burden of proof on all the elements of this claim, then you must consider Depositors' affirmative defenses, as set out in the following Instructions. If you find that Depositors does not meet its burden of proof on those affirmative defenses, then your verdict must be for Millard Gutter on its breach-of-contract claim.
This paragraph is based on NJI2d Civ. 15.01, § C. I have interpolated “on all the elements” after “met its burden” because I stated above that Millard Gutter must prove “the elements” by the greater weight of the evidence. See Plaintiffs' Proposed JI No. 1, § C; Defendant's Proposed JI No. 24, § D.
Again, contrary to Plaintiff's assertion in Proposed JI No. 1, n.1, I believe Defendant has pleaded affirmative defenses that would warrant instructions, if proof materializes at trial.
This is the first instruction on Defendant's affirmative defenses. Defendant sets out eight affirmative defenses in Defendant's Proposed JI No. 2, but Defendant sets out three affirmative defenses (the first with three alternatives) to the breach-of-contract claim in Defendant's Proposed JI Nos. 26 (the insureds' failure to comply with conditions of the policy), 27 (the insurer's prior payment for the amount actually spent for necessary repair or replacement), and 28 (the insureds' failure to repair or replace promptly). I have rearranged the order of the affirmative defenses so that the two involving Gillick and Gross Points alleged failings follow each other before the one involving Defendant's conduct allegedly meeting Defendant's obligation. I have modeled this first instruction on NCJI2d Civ. 15.20, § C.
In defense to Millard Gutter's claim of breach of contract, Depositors asserts three affirmative defenses: (1) the failure of Gillick and Gross Point to comply with conditions of the policy; (2) the failure of Gillick and Gross Point to repair or replace damaged property promptly; and (3) Depositors' prior payment for the amount actually spent for necessary repairs or replacement. The next three instructions explain how you are to decide if Depositors has proved these defenses.
Where conduct of the “insureds” is the basis for an affirmative defense, I have identified the parties who may have engaged in wrongdoing as Gillick and Gross Point, because these plaintiffs did not assign any duties to Millard Gutter under the contract, only a “right to proceeds” under the contract. See Filing 1-3 at 5 (¶¶ 12-13).
However, I must first explain that if Depositors proves one or more of its defenses by the greater weight of the evidence, then your verdict must be for Depositors on Millard Gutter's claim of breach of contract. On the other hand, if Depositors has not proved a defense by the greater weight of the evidence, then you must disregard that defense in reaching your decision in this case.
It appears that Plaintiffs wish me to instruct on some principles of law in relation to Defendant's affirmative defenses. Specifically, Plaintiffs' Proposed JI No. 16 states the broad principle that an insurer may waive a policy provision or condition on the insurer's performance. Plaintiff's Proposed JI No. 19 states that an insurer cannot change the basis for a decision to deny a claim after litigation has begun. The latter instruction fails to recognize that Mutual Benefit Life Ins. Co. v. Chisholm, 329 N.W.2d 103 (Neb. 1983), on which it relies has been disapproved to the extent it does not require a showing that the insured detrimentally relied on the reasons stated by the insurer pre-litigation. See Design Data Corp. v. Maryland Cas. Co., 503 N.W.2d 552, 560 (1993). If I conclude that the evidence warrants such instructions, I will include them here as additional preliminary matters before the affirmative defense “elements” instructions, and I will include a detrimental reliance requirement on the pre-litigation reasons instruction. Because I have identified the terms of the policy on which Defendant's affirmative defenses rely and placed the burden on Defendant to prove violation of those provisions, I do not see the necessity of including Plaintiffs' Proposed JI No. 17 explaining that the insurer bears the burden to prove that an exclusionary clause applies.
The alleged breaches at issue in this affirmative defense are drawn from Defendant's Proposed JI No. 26.
Depositors' first affirmative defense is the failure of Gillick and Gross Point to comply with conditions of the policy, so that Depositors has no obligation to make any further payment under the policy. The three failures of Gillick and Gross Point alleged are the following:
Because I have cast the alleged breaches by the insureds in terms of what the cooperation clause requires and how the insureds allegedly failed to do it, I find Defendant's Proposed JI No. 17 unnecessary.
1. Gillick and Gross Point Holdings must cooperate with Depositors in the investigation or settlement of the claim, but they failed to do so when they refused to provide information requested of them about the amounts actually spent in payment to all subcontractors providing labor and materials in performing repairs at the property.
This alleged breach may not be submissible because the evidence I know about suggests that Gillick and Gross Point never had such information, and Depositors was not entitled to get this information from Millard Gutter where Millard Gutter is not an insured under the policy. I am including this proposed instruction as a discussion point for further briefing allowed on my proposed jury instructions, but I am currently inclined not to instruct on this point.
2. Gillick and Gross Point Holdings must cooperate with Depositors in the investigation or settlement of the claim, but they did not do so when they presented Depositors with one or more statements as part of their claims for benefits under the policy knowing that the statements contained false, incomplete, or misleading information concerning a fact or thing material to the insurance claim.
I have no indication of what allegedly false, incomplete, or misleading information Gillick and Gross Point provided to Depositors. Defendant's Proposed JI No. 14 defines “fraudulent misrepresentation” as in NJI2d Civ. 15.08, but “fraudulent misrepresentation is not used in Defendant's statement of this instance of alleged noncooperation. Likewise, “false representation” in Defendant's Proposed JI No. 15 (based on NJI2d Civ. 15.23), “misrepresentation” in Defendant's Proposed JI No. 16 (based on Restatement (Second) of Contracts §§ 159-160), and “committing] a fraudulent insurance act” in Defendant's Proposed JI No. 21 (based on Neb. Rev. Stat. § 44-6604) define terms that are also absent from the statement of this instance of alleged noncooperation. I do not believe that “knowing that the statements contained false, incomplete, or misleading information” requires any definition even for lay jurors, and the definitions Defendant offers will not help the jury understand these terms. What I believe is much more likely to help jurors is a definition of what “a fact or thing material to a claim” means. First, I have clarified that the “claim” in question is an insurance claim. The definition of “material fact” in NJI2d Civ. 15.09 is cast in terms of a fact that is material to entering into a contract not a fact that is material to the other party's performance of the contract. Nevertheless, I have modified NJI2d Civ. 15.09 to define “fact or thing material to the insurance claim” below.
3. Gillick and Gross Point Holdings must cooperate with Depositors by, as often as may be reasonably required, permitting Depositors to examine their books and records and make copies from their books and records of documentation showing amounts actually spent in payment to all subcontractors providing labor and materials in performing repairs at the property, but they have refused to provide the requested information.
This alleged breach may not be submissible because the evidence I know about suggests that Gillick and Gross Point never had such information, and Depositors is not entitled to get this information from Millard Gutter where Millard Gutter is not an insured under the policy. I invite further discussion of this in further briefing allowed for with regard to these instructions.
To succeed on this defense, Depositors must prove the following elements by the greater weight of the evidence:
First, Gillick and Gross Point materially breached the cooperation clause in one or more of the ways alleged by Depositors; and
I have recast the first element as proposed by Defendant to limit the breaches to “one or more” of the breaches alleged by Depositors of the noncooperation clause. See Defendant's Proposed JI No. 26, § B (stating the first element as “[a]ny material breach of the cooperation clause by refusing to provide information material to the claim when the insurer requested the information”).
Second, Depositors was prejudiced by the breach of the cooperation clause.
If Depositors has proved all these elements by the greater weight of the evidence, then your verdict must be for Depositors on the breach of contract claim. On the other hand, if Depositors has not proved all these elements by the greater weight of the evidence, then you must disregard this particular defense in reaching your decision in this case.
A “material breach” is a failure to do something that is so fundamental to a contract that the failure to perform that obligation defeats the essential purpose of the contract or makes it impossible for the other party to perform under the contract. Whether or not a breach is material is a question of degree, which must be decided by weighing the consequences of the breach in light of the usual performance of similar contracts. Similarly, a “fact or thing” is “material to an insurance claim” if it would change a reasonable insurer's mind about payment of the insurance claim. If you find that Gillick and Gross Point failed to cooperate in one or more of the ways alleged by Depositors and that the failure to cooperate prevented Depositors from completing a reasonable investigation of their claim, you may find that Depositors was prejudiced by their breach of the cooperation clause.
I agree with Defendant's proposed explanation of “material breach” in Defendant's Proposed JI No. 18, based on Siouxland Ethanol, LLC v. Sebade Bros., LLC, 859 N.W.2d 586, 592 (Neb. 2015), and I have set it out in the first sentence of this paragraph. The second sentence of this paragraph is a more “juror friendly” paraphrase of a sentence also from Siouxland Ethanol. See id. (“Whether or not a breach is material and important is a question of degree which must be answered by weighing the consequences of the breach in light of the actual custom of persons in the performance of contracts similar to the one involved in the specific case.”).
This sentence is the promised definition of “fact or thing material to an insurance claim” promised, supra, n.45, based on a paraphrase of NJI2d Civ. 15.09.
This explanation of the “prejudice” element of the non-cooperation defense is drawn from the last sentence of Defendant's Proposed JI No. 19, which is in turn drawn from Saif v. Atl. States Ins. Co., 453, 955 N.W.2d 6, 15 (Neb. Ct. App. 2021), review denied (Apr. 7, 2021) (“If the insured's refusal to cooperate prevents the insurer from completing such a reasonable investigation, prejudice should be found to exist.”).
This instruction is based on Defendant's Proposed JI No. 28.
Defendant's second affirmative defense is that Gillick and Gross Point have failed to make repairs to certain property and failed to make any repairs or replacement of certain damaged property as soon as possible after the loss or damage so that Depositors has no obligation to make any further payment under the insurance contract. The insurance contract provides that Depositors will not pay on a replacement cost basis for any loss or damage (1) until the damaged property is actually repaired or replaced, and (2) unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.
This provision of the insurance policy provides the legal basis for this affirmative defense.
To succeed on this defense, Depositors must prove by the greater weight of the evidence EITHER
(1) The claimed damage to the Main Building was never repaired or replaced
OR
(2) The repairs or replacement were not made as soon as reasonably possible after the loss or damage to the Main Building occurred.
If Depositors hindered Gillick and Gross Point's ability to repair or replace its property by refusing to pay a claim or underpaying a claim, Gillick and Gross Point may be excused from their failure to repair or replace the property until liability of Depositor for the costs to repair or replace is determined.
This is paragraph is drawn from Plaintiffs' Proposed JI No. 15, and I believe it is a fair paraphrase of the statement in the authority on which Plaintiffs rely. See D & S Realty, Inc. v. Markel Ins. Co., 816 N.W.2d 1, 13 (Neb. 2012) (“[U]nder the doctrine of prevention, where a party to a contract is the cause of the failure of the performance of the obligation due him or her, that party cannot in any way take advantage of that failure.”). I believe that Plaintiff's Proposed JI No. 18, stating that a promisor's prevention or hindrance of the occurrence of a condition under a contract excuses the condition, is redundant of the paragraph included in this Instruction from Plaintiffs' Proposed JI No. 15.
If Depositors has proved one or more of these alternatives by the greater weight of the evidence, then your verdict must be for Depositors on the breach of contract claim. On the other hand, if Depositors has failed to prove either of these alternatives by the greater weight of the evidence, then you must disregard this particular defense in reaching your decision in this case.
The formulation of this defense is based on Defendant's Proposed JI No. 27, despite Defendant's failure to cite any authority in the law or the contract for the proposed instruction. It appears to rely on the provision of the contract stating that Depositors will not pay more for loss or damage on a replacement cost basis than the least of inter alia “[t]he amount actually spent that is necessary to repair or replace the lost or damaged property.” Filing 82-1 at 56.
Depositors' third affirmative defense is that it that has no obligation to make any further payment under the policy because Depositors has already paid an amount of money on the claim of Gillick and Gross Point that is more than the amount actually spent that was necessary to repair or replace any property damaged by hail. The insurance contract provides that Depositors will not pay more for loss or damage on a replacement cost basis than the amount actually spent that is necessary to repair or replace the lost or damaged property.
To succeed on this defense, Depositors must prove the following elements by the greater weight of the evidence:
I believe my statement of the elements is correct as well as more helpful and less confusing to jurors than Defendant's statement of a single element. Defendant's Proposed JI No. 27 (“1. The total amount of money actually spent by any Plaintiff that was necessary to repair or replace any property damaged by hail is less than the amount of money Depositors has already paid to Plaintiffs.”).
First, the amount of money actually spent by Gillick and Gross Point that was necessary to repair or replace any property damaged by a loss covered by the insurance contract;
I have substituted “damaged by a loss covered by the insurance contract” for Defendant's formulation (“property damaged by hail”) because the parties dispute whether replacement of the roof is a consequential damage from authorized repairs so that it is covered by the policy.
Second, the amount of money Depositors has already paid on the insurance claim; and
Third, the amount of money proved in the second element is greater than the amount of money proved in the first element.
If Depositors has proved all these elements by the greater weight of the evidence, then your verdict must be for Depositors on the breach of contract claim. On the other hand, if Depositors has not proved all these elements by the greater weight of the evidence, then you must disregard this particular defense in reaching your decision in this case.
This instruction on damages is based on NJI2d Civ. 4.40 and accompanying Comment II.A. It is consistent with Plaintiffs' Proposed JI No. 20, which is based on the same model and some additional case law. Defendant's Proposed JI No. 25 cites no authority. Defendant's proffer differs in that it refers to damages for repair or replacement of the property “damaged by hail” rather than “damages for loss covered by the insurance contract.” Again, I believe my formulation is more appropriate because the parties dispute whether replacement of the roof is a consequential damage from authorized repairs so that it is required under the insurance policy. Defendant's proffer also refers to “replacement costs” and “actual cash value” but does not define the former, nor does any of Defendant's other proffers. It also refers to “actual cash value,” for which Defendant's offer Proposed JI No. 10. I believe that it is appropriate for the parties to prove to the jury the proper calculation of damages-whether “replacement cost” or “actual cash value”-under the general contract damages principles set out in this Instruction drawn from NJI2d Civ. 4.40 and accompanying comments.
If you find in favor of Millard Gutter on its claim of breach of contract, then you must determine the amount of Millard Gutter's damages.
In a breach of contract case, the ultimate objective of a damages award is to put the injured party in the same position the injured party would have occupied if the contract had been performed, that is, to make the injured party whole. One injured by a breach of contract is entitled to recover all of his damages, including gains prevented as well as losses sustained, provided they are reasonably certain and such as might naturally be expected to follow the breach. Millard Gutter must prove that the breach of the contract was the proximate cause of the damages claimed,, which means that the breach produces the damage in a natural and continuous sequence and the damage would not have occurred without the breach of contract.
This instruction paraphrases in “plainer English” the definition in NJI2d Civ. 3.41 and uses “damage” rather than “result” consistent with the definition of “breach.” See NJI2d Civ. 3.41 (“A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred”). Compare Defendant's Proposed JI No. No. 24, § C (same), with George Clift Enterprises, Inc. v. Oshkosh Feedyard Corp., 947 N.W.2d 510, 536 (Neb. 2020) (“[T]he claimant must prove that the breach of contract complained of was the proximate cause of the alleged damages. There must be a causal relationship between the damages asserted and the breach relied upon.”); see also NJI2d Civ. 4.40, Comment, II (also citing George Clift Enters., 947 N.W.2d at 536). [BCB-I don't like the “plainer English” bit. Put in the model exactly unless it is error to do so].
Remember that, while damages do not have to be proved to a mathematical certainty, Millard Gutter must offer evidence that is not merely speculative or conjectural.
Plaintiff is also correct that the Nebraska Supreme Court has stated in a breach-of-contract case, “Proof of damages to a mathematical certainty is not required; however, a plaintiff's burden of offering evidence sufficient to prove damages cannot be sustained by evidence which is speculative and conjectural. Dietzel Enterprises, Inc. v. J. A. Wever Constr., L.L.C., 979 N.W.2d 517, 534 (Neb. 2022).
If you find in favor of Millard Gutter, but do not find any actual damages, then you may award Millard Gutter no more than a nominal sum.
Plaintiffs offer their Proposed JI No. 25 on prejudgment interest. None of the authority they cite stands for the proposition that an award of prejudgment interest is an issue for the jury rather than for the Court. Neb. Rev. Stat. § 45-104 does not say who awards prejudgment interest. Weyh v. Gottsch, 929 N.W.2d 40, 45 (Neb. 2019), was an appeal after a bench trial. Although AVG Partners was a jury trial, the court entered judgment on the jury's verdict and “further” awarded prejudgment interest. AVG Partners I, LLC v. Genesis Health Clubs of Midwest, LLC, 948 N.W.2d 212, 223 (Neb. 2020). Similarly, BCL Properties was tried in part to a jury and in part to the court, but after the jury verdicts were accepted, the plaintiff moved for an award of prejudgment interest, which the court then awarded. BCL Properties, Inc. v. Boyle, 992 N.W.2d 440, 445 (Neb. 2023). Moreover, prejudgment interest awards are reviewed de novo, see BCL Properties, 992 N.W.2d at 446; AVG Partners, 948 N.W.2d at 224, while a jury's verdict is reviewed by viewing the evidence in the light most favorable to the jury's verdict. See State v. Matteson, 985 N.W.2d 1, 13 (Neb. 2023). I will not give an instruction on awarding prejudgment interest with an offer of controlling authority showing prejudgment interest is a question for the jury.
My Stock based on 8th Cir. MCivJI 3.07, as is Joint Proposed JI No. 3.07.
There are rules you must follow when you go to the jury room to deliberate and return with your verdict.
First, you will select a foreperson. That person will preside over your discussions and speak for you here in court.
Second, your verdict must be the unanimous decision of all jurors. Therefore, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement, if you can do this without going against what you believe to be true. Each of you must come to your own decision, but only after you have considered all the evidence, discussed the evidence fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your mind if the discussion persuades you that you should. On the other hand, do not come to a decision just because other jurors think it is right, or just to reach a unanimous verdict. Remember you are not for or against any party. You are judges-judges of the facts. Your only job is to study the evidence and decide what is true.
Third, during your deliberations, including during any recess taken during deliberations, you must not directly or indirectly communicate with or provide any information to anyone by any means or by any medium about anything relating to this case, until I accept your verdict and discharge you from further service in this case.
Fourth, as stated in my instructions at the beginning of the trial, you may not in any manner seek out or receive any information about the case from any source other than the evidence received by the court and the law of the case I have provided to you. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.
Fifth, if you need to communicate with me during your deliberations, send me a note signed by one or more of you. Give the note to my Courtroom Deputy, and I will answer you as soon as I can, either in writing or here in court. While you are deliberating, do not tell anyone-including me-how many jurors are voting for any side.
Sixth, nothing I have said or done was meant to suggest what I think your verdict should be. The verdict is entirely up to you.
Finally, the verdict form is your written decision in this case. You will take this form to the jury room, and when you have all agreed on the verdict, your foreperson will fill in the form, sign and date it, and tell the Courtroom Deputy that you are ready to return to the courtroom.