IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION



TAMELA J. PETRILLO and ADOLPH D. PETRILLO, JR., individually and as parents and next friends of minor children, LATISH L. PETRILLO, DOMINIQUE L. PETRILLO and ADOLPH D. PETRILLO, III.,

 

Plaintiffs,

No. C01-1044

vs.

JURY INSTRUCTIONS

LUMBERMENS MUTUAL CASUALTY COMPANY,

Defendant.

____________________



 

 

 


INSTRUCTION NO. _____

 

         In this case Plaintiffs claim that Lumbermens Mutual Casualty Company, doing business as Kemper, acted in bad faith in the handling of Tamela Petrillo’s workers compensation claim.

         Defendant Lumbermens Mutual Casualty Company denies it acted in bad faith in the handling of Tamela Petrillo’s workers compensation claim.

         Do not consider this summary as proof of any claim. Decide the facts from the evidence and apply the law which I will now give you.


INSTRUCTION NO. ____

         Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.

         The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

         In considering these instructions, the order in which they are given is not important.

          Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.


INSTRUCTION NO. _____

 

         My duty is to tell you what the law is. Your duty is to accept and apply this law.

         You must consider all of the instructions together because no one instruction includes all of the applicable law.

         The order in which I give these instructions is not important.

         Your duty is to decide all fact questions.

         Do not be influenced by any personal likes or dislikes, sympathy, bias, prejudices or emotions.


INSTRUCTION NO. ____

 

         The fact that defendant Lumbermens is a corporation should not affect your decision. All person are equal before the law, and corporations, whether large or small, are entitled to the same fair and conscientious consideration by you as any other person.


INSTRUCTION NO. _____

 

         You have heard me refer to the word “evidence.” Evidence is:1. Testimony.

                  2. Exhibits I admitted into evidence.

                  3. Stipulations, which are agreements between the parties.

         Evidence may be direct or circumstantial. The law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

         The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

         The following are not evidence:

                  1. Statements, arguments, questions, and comments by the lawyers.

                  2. Objections and rulings on objections.

                  3. Testimony I told you to disregard.

                  4. Anything you saw or heard about this case outside the courtroom.

         The weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence are for you to decide.


INSTRUCTION NO. ____


         Testimony from depositions was read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing. Consider deposition testimony as if it had been given in court.


INSTRUCTION NO. ____

 

         During this trial, you heard the word ‘interrogatory.’ An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.


INSTRUCTION NO. _____


         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 said, only part of it, or none of it.

         In deciding what testimony to believe, consider the witness’s intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’s memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider, therefore, whether a contradiction results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.


INSTRUCTION NO. ____

 

         You have heard testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinion on matters in that field and the reasons for their opinion.

         Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

         In evaluating the testimony of attorneys Robert Fulton and Frank Harrison, you are instructed that to the extent the attorneys made statements concerning workers’ compensation law that are contrary to the law as I give it to you in these instructions, you must follow the law as stated in my instructions.


INSTRUCTION NO. ____

 

         An expert witness was asked to assume certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. If any fact assumed in the question has not been proved by the evidence, you should decide if that omission affects the value of the opinion.


INSTRUCTION NO.

 

         In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact. In this case, unless I tell you otherwise, that party is plaintiffs.

         The party with the burden of proof must prove facts by the “greater weight of the evidence.” To prove something “by the greater weight of the evidence” means to prove that it is more likely true than not true. The “greater weight of the evidence” is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you find that the evidence is equally balanced, then you cannot find that the issue has been proved.

         The “greater weight of the evidence” is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.


INSTRUCTION NO. _____

 

         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 the authority delegated to the agent by the corporation, or within the scope of his/her duties as an employee of the corporation.


INSTRUCTION NO. ______

 

         Iowa Workers’ Compensation law imposes an affirmative duty on the part of the employer and the workers’ compensation carrier to pay for reasonable and necessary medical care and weekly benefits to an injured employee if the employee proves her claim is compensable.


INSTRUCTION NO. _____

 

         Under Iowa Workers’ Compensation law an employer and workers’ compensation carrier have an affirmative duty to continue to investigate an employee’s claim to determine if they have a reasonable basis to continue to deny the claim.


                                                    INSTRUCTION NO. ______

 

         In order for a workers compensation claim to be compensable, the employee’s injury must arise out of the workers’ employment. This means the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of the workers’ employment.


INSTRUCTION NO.

         Plaintiff Tamela Petrillo’s claim against Defendant Lumbermens is for bad faith, because of the way Plaintiff Tamela Petrillo’s workers’ compensation claim was handled.

         To win her claim of bad faith, Plaintiff Tamela Petrillo must prove the following elements by the greater weight of the evidence:

                  1.      Defendant Lumbermens acted in bad faith in one or more of the following ways:

                           a.      In failing to fully and properly investigate Plaintiff Tamela Petrillo’s workers’ compensation claim;

                           b.      In terminating Plaintiff Tamela Petrillo’s workers’ compensation benefits;

                           c.      In failing to timely pay for authorized medical treatment for Plaintiff Tamela Petrillo’s workers’ compensation injury;

                           d.      In failing to reconsider the denial of Plaintiff Tamela Petrillo’s workers’ compensation benefits;

                           e.      In failing to reinstate Plaintiff Tamela Petrillo’s workers’ compensation benefits before September 1, 2001.

                  2.      There was no reasonable basis for Defendant Lumbermens’ actions.

                  3.      Defendant Lumbermens knew or had reason to know that there was no reasonable basis for their actions.

                  4.      Defendant Lumbermens’ bad faith was a proximate cause of damages to Plaintiff Tamela Petrillo.

                  5.      The nature and extent of damage.


                               INSTRUCTION NO. ______ (Cont’d)

         Unless Plaintiff Tamela Petrillo proves all of these numbered elements by the greater weight of the evidence against Defendant Lumbermens, your verdict must be for Defendant Lumbermens against whom the claim has not been proven on Plaintiff Tamela

Petrillo’s claim for bad faith. However, if you find that Plaintiff Tamela Petrillo has proven all of these elements by the greater weight of the evidence against Defendant Lumbermens, then Plaintiff Tamela Petrillo is entitled to damages in some amount.


INSTRUCTION NO. _____

 

         A workers’ compensation insurance carrier must act in good faith in making decisions about claims made by employees of the insured. The decisions of the workers’ compensation insurance company that are complained about in this case must be considered by you in the light of the information as it fairly appeared to the insurer’s claims adjusters at the time the decisions were made. In other words, you must not use hindsight in judging the decisions that were made. Your decision must be based on the information the insurance company had at the time of the decision to deny benefits. You may consider whether supportable reasons were given for the decisions that were made in determining if the claim was fairly debatable. Whether the decision of the insurance company was eventually found to be correct or incorrect is not determinative on the issue of bad faith.


INSTRUCTION NO.

         The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance in the event that you should find that one or more Plaintiffs are entitled to damages in accord with other instructions.

If you find in favor of Plaintiff Tamela Petrillo, then you must award her such sum as you find by the greater weight of the evidence will fairly and justly compensate her for any damages that you find were proximately caused to her by Defendant Lumbermens’ bad faith. An act is a “proximate cause” of damage if the act was a substantial factor in producing the damage and the damage would not have happened except for the act. “Substantial” means that the act had such an effect in producing damage as to lead a reasonable person to regard it as a cause of the damage.

         In arriving at an amount of damages, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages. Rather, you must use your sound judgment based upon an impartial consideration of the evidence.

         Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. Except where instructed otherwise, you must not award damages under these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties.

         You must award the full amount of damages that Plaintiff Tamela Petrillo has proved by the greater weight of the evidence. However, the amount you assess for damages must not exceed the amount proximately cause by any wrongful conduct of Defendant Lumbermens as proved by the evidence.


INSTRUCTION NO. ____

 

         If you find in favor of Plaintiff Tamela Petrillo on her bad faith claim, then you must award Plaintiff Tamela Petrillo such sum as you find by the greater weight of the evidence will fairly and justly compensate Plaintiff Tamela Petrillo for damages, if any, that you find were proximately caused by Defendant Lumbermens. Plaintiff Tamela Petrillo seeks compensatory damages on her claim for past mental pain and suffering. She claims she experienced mental pain and suffering from January 25, 2000, when she learned her workers’ compensation benefits were going to be cancelled, until her workers’ compensation benefits were reinstated retroactively. Mental pain and suffering may include, but is not limited to, mental anguish or loss of enjoyment of life.

         Lumbermens is not responsible in this lawsuit for any mental pain and suffering caused by Tamela Petrillo’s physical condition nor for any other damages except as instructed herein.


INSTRUCTION NO. ______

 

         If you find in favor of Plaintiff Tamela Petrillo on her claim of bad faith claim practices, as the claims and defense are explained in Jury Instruction Nos. 15/16, but you find that Plaintiff Tamela Petrillo’s damages proximately caused by Defendant Lumbermens’ acts and omissions have no monetary value, then you must return a verdict on that claim for the plaintiff in the nominal amount of One Dollar ($1.00).


INSTRUCTION NO.

         "Spousal consortium" is the fellowship of a husband and wife and the right of each other to the benefits of company, cooperation, affection, the aid of the other in every marital relationship, general usefulness, industry and attention within the home and family. It does not include loss of financial support from the injured spouse, nor mental anguish caused by the spouse's injury.

         If you find Adolph Petrillo is entitled to recover damages for loss of spousal consortium because his spouse Tamela Petrillo suffered from mental pain and suffering as a result of having her workers’ compensation benefits terminated, it is your duty to determine the amount. In doing so, you shall consider the following item:

         1.      The reasonable value of loss of spousal consortium, which Adolph Petrillo would otherwise have received from the date Tamela Petrillo learned her workers’ compensation benefits were stopped (1/25/00) until her workers’ compensation benefits were reinstated retroactively.

         In determining the value for loss of spousal consortium you may consider:

                  1. The circumstances of Tamela Petrillo’s life.

         2.    Tamela Petrillo’s and Adolph Petrillo’s ages at the time of Tamela                   Petrillo’s injury.

         3.  Tamela Petrillo’s health, strength and character.

         4.      Tamela Petrillo’s capabilities and efficiencies in performing the duties                   of a spouse.

         5.      Tamela Petrillo’s skills and abilities in providing instructions,                   guidance, advice and assistance.

                  6.      Adolph Petrillo’s needs.


INSTRUCTION NO. _____ (Cont’d)

 

                  7.      All other facts and circumstances bearing on this issue.

         The amount you assess for loss of spousal consortium in the past cannot be measured by any exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against the parties. The amount you assess for this item of damage must not exceed the amount caused by Defendant Lumbermens as proved by the evidence.


INSTRUCTION NO. ______

 

         “Parental consortium” is the relationship between parent and child and the right of the child to the benefits of companionship, comfort, guidance, affection, the aid of the parent in every parental relation, general usefulness, industry and attention within the family. It does not included the loss of financial support from the injured parent, nor mental anguish caused by the parent’s injury.

         If you find that Latish L. Petrillo, Dominique L. Petrillo and Adolph D. Petrillo, III are entitled to recover damages for loss of parental consortium with their mother because of the mental pain and suffering she suffered as a result of having her workers’ compensation benefits terminated, it is your duty to determine the amount. In doing so you shall consider the following item:

1.The reasonable value of loss of parental consortium which the child under consideration would otherwise have received from Tamela Petrillo from January 25, 2000, when she learned her workers’ compensation benefits were being stopped, until her workers’ compensation benefits were reinstated retroactively.

         A child is not entitled to damages for loss of parental consortium unless the injury to the parent has caused a significant disruption or diminution of the parent-child relationship.

In determining the value for loss of parental consortium, you may consider:

         1.      The circumstances of Tamela Petrillo’s life.

         2.      Tamela Petrillo’s and the children’s ages at the time of Tamela


                                INSTRUCTION NO. _____ (Cont’d)

 

                   Petrillo’s injury.

         3.      The health, strength and character of Tamela Petrillo and the child under consideration.

         4.      Tamela Petrillo’s capabilities and efficiencies in performing the duties as a parent.

         5.      Tamela Petrillo’s skills and abilities in providing instruction, guidance, advice and assistance to the child under consideration.

         6.      The needs of the child under consideration.

         7.      All other facts and circumstances bearing on the issue.

         The amount you assess for loss of parental consortium for the past cannot be measured by any exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against the parties. The amount you assess for any item of damage must not exceed the amount caused by Defendant Lumbermens as proved by the evidence.

         Damages awarded to one party shall not be included in any amount awarded to another party. You will consider each child’s claim for loss of parental consortium separately.

         The amounts, if any, you find for each of the above items will be used to answer the special verdicts.


INSTRUCTION NO. _____

 

         In addition to compensatory damages described in Jury Instruction No. ____, the law permits the jury, under certain circumstances, to award punitive damages in order to punish the Defendant for willfully and wantonly disregarding their duty or duties under the Iowa Workers’ Compensation law and to serve as an example or warning to others not to engage in such conduct. Whether or not to award punitive damages, and the amount of such punitive damages, are for you to decide.


INSTRUCTION NO. _____

 

         Conduct is willful and wanton when a person intentionally does an act of an unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.

 

 


INSTRUCTION NO. _____

 

         Note, however, that in this case Plaintiff’s claim for punitive damages must be proved not just by the greater weight of the evidence, but by clear, convincing and satisfactory evidence. This is a heightened standard that is applied by law to various kinds of claims. This standard is not quite as strict as the beyond a reasonable doubt standard; but it is stricter than the greater weight of the evidence standard.

         Evidence is clear, convincing and satisfactory if there is no serious or substantial uncertainty about the conclusion to be drawn from it.


INSTRUCTION NO. _____

 

         Lumbermens is liable for the punitive damages by reason of the acts of its employees if one of the following occurred:

         1.      Lumbermens authorized the act and the way it was done; or

         2.      Lumbermens ratified or approved the act.

 


INSTRUCTION NO. ____


         In conducting your deliberations and returning your verdict, there are certain rules you must follow.

         First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

         Second, 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 so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges - judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

         Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.

         Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.

         Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Y our verdict must be unanimous. You


INSTRUCTION NO. _____ (Cont’d)

 

will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and sign it. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

 

 

 

 

 

_____________                                           __________________________________

DATE                                                        LINDA R. READE

                                                                 JUDGE, U. S. DISTRICT COURT