Jury - Walker v LSW

(p138-139) - Jury Instructions

THE COURT:

Well, let me tell you what I plan to do.

  • With regard to the provisions in the insurance code, I'm going to add those to page 37. That's the provision that you can't be held liable by being required to do something the law prevents you from doing. That's page 37 of the draft of the instructions that went out.
  • I'm simply going to provide the quotations from the insurance code.
  • I don't believe that this goes to good faith.
  • I will instruct them that they are not being asked to determine whether the insurance code has been violated and that they're to be governed by the instructions I give them.
  • But this doesn't go to good faith.

2014 0423 – DOC 812 – Trial Transcript – Day 10 – Walker v LSW – 194p

(p184-187) - Jury Instructions

  • THE COURT: There are two things I concluded as reflected in the instruction on page 24, which is the element of fraudulent concealment. I read the Gagne case. As I indicate, element number four as I've numbered them here comes directly from CACI and it requires an intent to deceive.  -- So I think I have decided that issue.
  • MR. BROSNAHAN: Your Honor, if I may suggest, instruction 5.8 on page 31 has a number -- I think it got a bit chopped up, so I think it's very confusing at this point. I also don't think it's necessary because that instruction was a definition of intent to defraud.  The Court has decided to go with the intent-to-deceive language out of CACI 1901 on page 24 in the overview instruction. We think that in view of that, there is no necessity to explain intent to defraud.
    • I believe we had proposed that simply because under the Gagne case, intent to defraud meant the intent to cause induced reliance. Since the Court is rejecting the Gagne formulation, then I think that instruction 5.8 is unnecessary and confusing, and the Court should just go with intent to deceive.
  • MR. BROSNAHAN: Well, the remainder of the instruction is not clear as it goes into -- means that any omissions made by LSW must have been made with intent to cause plaintiffs to purchase the policies knowing that a person unaware to the concealed fact who would not have acted had he known the fact. Everything after the word policies is inconsistent with the Gagne case, and we think there should just be a period after the word policies.
  • THE COURT: I understand your position.
  • MR. MARTENS: And I think what they're trying to do, Your Honor, is just back it into intent to cause reliance by striking that, and I think that's exactly what they can't do.

2014 0423 – DOC 812 – Trial Transcript – Day 10 – Walker v LSW – 194p