James BANNISTER, Plaintiff-Appellant/Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant.
Nos. 11-6174, 11-6186
United States Court of Appeals, Tenth Circuit.
Sept. 5, 2012.
1117
Reid E. Robison of McAfee & Taft, P.C., (Mark D. Spencer, Michael K. Avery, McAfee & Taft, P.C., and Daniel C. Andrews, Jones, Andrews & Oritz, P.C., of Counsel, with him on the briefs), Oklahoma City, OK, for Defendant-Appellee/Cross-Appellant.
Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.
EBEL, Circuit Judge.
Plaintiff James Bannister was injured in a motorcycle accident on the freeway near Oklahoma City in 2009. According to Bannister, he was forced to lay down and slide his motorcycle at a high speed when a car in front of him braked suddenly, that car having been cut off by another car. Bannister slammed into the wall of the freeway and suffered substantial injuries. He did not collide with any other vehicle; neither of the aforementioned cars remained at the scene of the accident; and no witnesses besides Bannister ever gave an account of the crash.
Bannister filed an insurance claim with his insurer, defendant State Farm Auto-
The jury found in favor of Bannister, but the district court granted State Farm‘s renewed motion for judgment as a matter of law (“JMOL“), ruling essentially that the evidence showed that State Farm‘s denial of Bannister‘s claim was based on a reasonable dispute regarding whether Bannister was majority at fault, and that no evidence suggested that further investigation would have undermined the reasonableness of that dispute. Meanwhile, the district court conditionally denied State Farm‘s alternative motion for a new trial based on the jury‘s irregular calculation of damages as well as on allegedly improper prejudicial statements by Bannister‘s counsel at trial.
Exercising jurisdiction under
I. BACKGROUND
1. The motorcycle accident
On Thursday afternoon, January 22, 2009, Bannister was driving his motorcycle in the left-hand lane on Interstate 40, en route to pick up his wife at work. According to his own testimony at trial, Bannister was driving at a speed of approximately 65-70 mph, or 5-10 mph above the legal limit. Bannister had been drinking beforehand at a motorcycle bar in Oklahoma City, where he had two beers and a shot of whisky over the course of perhaps two and a half hours. The police report for the accident indicated that Bannister was driving under the influence of alcohol.1
At trial, Bannister claimed that, just prior to his accident, he was following a beige car at a safe distance when a red car, apparently in the right lane, came alongside him and began to encroach into his lane.2 Bannister revved his engine so as to send an auditory warning to the driver of the red car (in effect, a honk). The red car stayed in its lane, passed the beige car, and then cut off the beige car, causing it to brake suddenly. The beige car slid into the emergency lane, and Bannister locked his brakes.
Bannister‘s recollection of the crash is foggy. He testified that, to avoid hitting
2. The insurance claim
The day after the crash, January 23, 2009, Bannister‘s wife reported the accident to State Farm. State Farm‘s first relevant substantive log entry in Bannister‘s claim file (entry No. 7) was recorded by State Farm claim representative Wendy Jeffus based on Jeffus‘s conversation with Bannister‘s wife. That log entry characterized the crash as having involved a vehicle in front of Bannister slamming on its brakes, and Bannister swerving to avoid that vehicle, and rolling his motorcycle. The log further noted that investigation was needed to determine whether Bannister‘s uninsured motorist (“UM“) coverage—coverage that could apply to unknown “miss-and-run” vehicles—would apply, as well as whether Bannister was majority at fault, which would negate coverage. The log indicated that Jeffus explained as much to Bannister‘s wife.
Three days later, on January 26, 2009, another claim representative, Edwina Kelley-Gilliam of the UM division of State Farm, updated Bannister‘s claim log after speaking with a team manager named Collins, who worked in the auto claims, or liability, division.5 Kelley-Gilliam‘s log entry (entry no. 14) reflected: “[T]he liability [investigation] does not appear complete. In addition, the insured appears to be majority at fault based on the facts of the loss. Moving file back to [the auto claims division] pursuant to our discussion. UM retains nothing....” ROA v. V at 1500. It apparently took Kelley-Gilliam three minutes to enter that determination.
The next significant event occurred on February 9, 2009, when another State Farm claim representative, Gloria Mercado of the motorcycle collision division, met with Bannister. Mercado‘s purposes were to examine the crashed motorcycle and to complete a vehicle inspection report concerning the damage incurred by the mo-
2 other cars flew by him on the right and switched over in front of the car directly ahead of him. Then the car in front of him had to hit brake [sic] and [Bannister] wasn‘t able to get slowed fast enough so he laid [his motorcycle] over to keep from hitting car in front of him, he has over 30 years[‘] experience riding [a motorcycle] & this was his 1st wreck. He‘s unsure why cars slammed on brakes as none of them stopped for him. A car behind him saw what happened and stopped his car sideways to keep any other traffic from running over [him]....
Id. at 1495. This log entry was largely consistent, then, with the earlier-made entry no. 7.6 Meanwhile, this new entry added the information about Bannister‘s riding experience as well as the reference to the other car, behind Bannister, whose driver allegedly witnessed the accident. However, Bannister never gave Mercado or anyone else any identifying information about that alleged individual.
At trial, Mercado testified that she believed that based on these facts, Bannister would be at fault. She reasoned that due to the fact that the car in front of Bannister was able to stop without collision, Bannister—driving behind that car—likewise should have been able to stop safely, if Bannister had been following at a reasonable distance per his duty as a motorist.
On February 17, 2009, State Farm obtained a copy of the police report for Bannister‘s accident. The next substantive entries in the claim log were a pair of entries (entries nos. 73-74) by Patrick Dreier of State Farm‘s auto claims division on February 25. Dreier‘s entries essentially summed up State Farm‘s knowledge to date—the history of State Farm‘s investigation, one might say. The entries indicated that the accident was a single-vehicle wreck, that Bannister had been driving under the influence of alcohol, and that no second vehicle was involved in any collision. Further, they concluded that Bannister was 100 percent at fault and that, accordingly, he was not entitled to UM coverage, to which an insured is not entitled if the insured is more than fifty percent at fault. The entries did not specify which prior logs/information their conclusions were based on, or to what extent. At trial, Bannister‘s attorney emphasized that, judging from the claim log, Dreier appeared to take eleven minutes to reach these conclusions. Also, the February 25 date of these entries is the date that Bannister‘s attorney stressed at trial as the cutoff date of when State Farm stopped “investigating” Bannister‘s claim and “denied” coverage. See, e.g., ROA v. III-IV at 700, 752, 755, 806, 827, 943, 952.7
On March 17, 2009, State Farm communicated to Bannister that his UM claim would be denied, though the exact context
On April 23, 2009, Bannister‘s attorney wrote to State Farm formally to request a written explanation for the basis of State Farm‘s denial of Bannister‘s claim. On April 30, presumably in reaction to that request, State Farm asked one of its liability agents, Eddie Walker, to review Bannister‘s case. Walker, based on his review of the claim logs, recorded (in entries nos. 83-84) that the investigation of Bannister‘s case was finished, and that
all evidence would indicate [Bannister] himself was responsible for this collision and no one [sic] else. No support on [police report] or even in [Bannister‘s] own statement that would indicate someone, other than himself, is liable for this accident.... UM [coverage] would not apply as [Bannister] was the proximate cause of this accident.... [Police report] also notes that there was drinking involved.... When we obtained facts from [Bannister], he stated he left roadway as vehicle in front of him slammed brakes and he swerved to avoid hitting the rear of this vehicle and rolled motorcycle....
ROA v. V at 1488.
On June 9, 2009, State Farm UM claim representative Dani Conover sent a letter to Bannister‘s attorney stating the following:
At this time, we have no evidence Mr. Bannister is legally entitled to collect from an uninsured motorist. The police report we have indicates [Bannister‘s] vehicle left the roadway for an unknown reason, and notes an improper start from alcohol-DUI/DWI. If you are aware of any information that does support [that Bannister] is legally entitled to collect [on his UM policy], please let me know, and we will be happy to review it.
Id. at 1526.
State Farm apparently did not receive a response to that letter, so on July 7, 2009—after Bannister had filed his complaint in this lawsuit—Conover sent another letter to Bannister‘s attorney to the same effect.
3. The lawsuit and the trial
Bannister filed his complaint in Oklahoma state court on June 24, 2009. He alleged both that State Farm had breached its insurance contract with respect to Bannister‘s UM policy, and that State Farm had breached its duty of good faith and fair dealing in denying Bannister‘s UM claim. State Farm removed the case to the Western District of Oklahoma in November 2009. In September 2010, State Farm moved for summary judgment on both of Bannister‘s claims, but the district court denied the motion. However, before trial, Bannister dropped his breach of contract claim. Bannister‘s bad faith claim was thus the only claim presented at trial.8
The jury returned an award of $125,000 in compensatory damages for Bannister. Additionally, the jury also found that State Farm had acted recklessly. That finding of recklessness triggered consideration of punitive damages, in line with Oklahoma‘s system of bifurcated consideration of compensatory and punitive damages.9
We reject Bannister‘s argument on appeal that even if he is not entitled to recover on his bad-faith claim, he should still recover damages on a breach-of-contract theory in the amount allegedly owed under his insurance policy ($125,000). Bannister reasons that the jury, in finding State Farm liable on the tort of bad faith, necessarily found in his favor on the contract issue. See infra Section II-A-2 (noting that the first element of a bad-faith claim is that the insurer was required to pay under the insurance policy). Bannister‘s assertion that he “did not need to try his breach of contract cause of action because the bad faith cause of action, which he did try, included the contract claim,” Aplt. Br. at 32-33, is half-correct and half-incorrect. Breach of contract was indeed one element the jury needed to find in determining that State Farm was liable for the tort of bad faith; and breach of contract can be a standalone theory of recovery. However, it does not follow that Bannister may therefore recover based on the jury‘s finding of a single element of Bannister‘s sole asserted claim—the tort of bad faith—when Bannister chose to abandon his earlier-asserted contract claim.
In arguing for a contrary conclusion, Bannister invokes the concept of lesser-included offenses from the criminal law context. However, we are unaware of any precedent extending that criminal doctrine to this civil context, such that a forsaken contract claim would be transformed into an independent sub-claim of a separate tort claim, upon which recovery could be independently awarded. We do not interpret the Court of Civil Appeals of Oklahoma‘s decision in Cales v. Le Mars Mut. Ins. Co., 69 P.3d 1206 (Okla. Civ. App. 2002), to compel a contrary conclusion. Cales held that a new trial was warranted in light of the trial court‘s improper decision to bifurcate the plaintiff‘s breach of contract and bad faith claims into separate trials. Id. at 1208-09. In doing so, the appellate court reflected:
We further note the trial court incorrectly describes Cales’ suit as “two causes of action.” Cales has but one cause of action: for damages arising out of Insurer‘s failure to pay Cales’ claim. In support of that cause of action CalesCales’ allegation that Insurer acted in bad faith by ignoring relevant information in its investigation of the claim, leading to its decision not to pay. These theories are connected and, as set out below, should not be bifurcated.
Id. at 1208. However, notwithstanding Cales‘s “not[ing]” that the plaintiff‘s breach of contract claim and bad faith claims comprised “one cause of action,” the actual holding of Cales was that it was improper to bifurcate the consideration of the “two interrelated theories of recovery” when both theories had been asserted. Id. Cales did not hold that a plaintiff could recover under the “lesser-included” theory of breach of contract when he had earlier chosen to abandon that theory.
We the jury were not clear on the dollar amount awarded in actual damages on this claim. We thought we could only award the cap amount we kept hearing about, which was $125,000. Nor did we know that it would cap the amount of our punitive damages.
Id. at 428. It is unclear what prompted the jury to realize that it could have awarded more than $125,000 in compensatory damages; the jury had not expressed confusion with that instruction during the first stage of deliberations.
The court discussed the note with the parties and heard their input about how to proceed. Bannister advocated allowing the jury to recalculate compensatory damages, then letting the jury proceed with calculating punitive damages, reflecting that it would be wasteful to order a new trial. In contrast, State Farm‘s urged the court to declare a mistrial, arguing that allowing the jury to recalculate compensatory damages with the knowledge that its compensatory award would cap its potential punitive award would circumvent the statutory purpose behind bifurcation of the respective considerations. The court denied State Farm‘s motion and allowed the jury to re-deliberate on compensatory damages and then calculate punitive damages afterwards. The jury ultimately returned a verdict awarding $350,000 in compensatory damages and $350,000 in punitive damages.
On April 27, 2011, State Farm renewed its motion for JMOL pursuant to
Meanwhile, with respect to State Farm‘s alternative motion for a new trial, pursuant to
Finally, the court denied Bannister‘s motion for attorney fees. The Court observed that Bannister was not a prevailing party and determined that, even if he were, State Farm‘s defense in the lawsuit was neither asserted in bad faith, ungrounded in fact, nor unwarranted by existing law, as required by statute for recovery of attorney‘s fees in this case.
Bannister appealed the district court‘s grant of JMOL to State Farm, as well as the court‘s denial of Bannister‘s motion for attorney‘s fees. State Farm cross-appealed the court‘s conditional denial of its alternative motion for a new trial.
II. DISCUSSION
A. Legal Standards
1. Appellate review of JMOL generally
We review de novo the district court‘s grant of State Farm‘s renewed motion for JMOL, applying the same standard as the district court. See Bristol v. Bd. Of Cnty. Comm‘rs of Cnty. of Clear Creek, 312 F.3d 1213, 1216 (10th Cir. 2002) (en banc). Accordingly, we will affirm the district court if we determine that “a reasonable jury would not have [had] a legally sufficient evidentiary basis to find for” Bannister on his bad faith claim.
2. The tort of bad faith
The law of bad faith was properly encapsulated by Jury Instruction no. 10 in this case. The instruction on the elements of Bannister‘s bad faith claim (i.e., breach of the duty good faith and fair dealing) was that “[Bannister] must prove each of the following elements by the greater weight of the evidence“:
FIRST: That State Farm was required under the insurance policies to pay Mr. Bannister‘s uninsured motorist claim10;
SECOND: That State Farm‘s refusal to pay the claim was unreasonable under the circumstances because
1) State Farm did not perform a proper investigation,
2) State Farm did not evaluate the results of the investigation properly, or
3) State Farm had no reasonable basis for the refusal.
THIRD: That State Farm did not deal fairly and in good faith with Mr. Bannister; and
FOURTH: That the violation by State Farm of its duty of good faith and fair dealing was the direct cause of the damages sustained by Mr. Bannister and sought to be recovered in this action.
ROA v. II at 408 (emphases added, footnote added). The instruction went on to state:
In determining whether the insurer had a good faith belief in some justifiable reason for denying payment at the time it made its decision on the insurance claim, you [the jury] may only consider evidence which the insurer had at the time it decided to deny the claim. In this action there is a factual dispute about when that decision was made.
An insurer‘s refusal to pay a claim is not bad faith when there is a legitimate dispute concerning coverage; however, merely because there is a reasonable basis that an insurance company could invoke to deny a claim does not necessarily immunize the insurer from a bad faith claim if, in fact, it did not actually rely on that asserted reasonable basis and instead took action in bad faith. The insurer is not required to show that its good faith belief was correct.
Id. at 409 (emphasis added).
That instruction properly stated the elements of the tort of bad faith. See Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1093 (Okla. 2005) (citing Oklahoma Uniform Jury Instructions Civ (2d) 22.3). The district court properly recognized that it was not bad faith per se for State Farm to resort to the judicial forum to settle legitimate disputes over insurance claims. See Garnett v. Gov‘t Employees Ins. Co., 186 P.3d 935, 944 (Okla. 2008). The court correctly acknowledged that the decisive questions are whether State Farm‘s denial of coverage was based on a good-faith reason at the time it decided to deny coverage, and also whether State Farm conducted an investigation reasonably appropriate under the circumstances to determine the validity of Bannister‘s claim. See Buzzard v. Farmers Ins. Co., Inc., 824 P.2d 1105, 1109 (Okla. 1991).
3. Appellate review of JMOL in bad faith cases specifically
“[A]s a matter of law ... no reasonable inference of bad faith arises“—and hence JMOL is warranted for the insurer—“when an insurer denies a claim solely because of the existence of a legitimate dispute.” Oulds v. Principal Mut. Life Ins. Co., 6 F.3d 1431, 1442 (10th Cir. 1993). However, “a legitimate dispute as to coverage will not act as an impenetrable shield against a valid claim of bad faith.” Timberlake Constr. Co. v. U.S. Fidelity & Guar. Co., 71 F.3d 335, 343 (10th Cir. 1995). Thus, in “cases in which the question of bad faith [is] required to be submitted to the jury, the evidence of the insurer‘s defense to the underlying claim [is] so weak that a reasonable inference could be drawn that the insurer denied the claim in bad faith.” Oulds, 6 F.3d at 1442; see also Timberlake, 71 F.3d at 343 (“In sum, ‘in order to establish such a [bad faith] claim, the insured must present evidence from which a reasonable jury could conclude that the insurer did not have a reasonable good faith belief [for denying the claim].‘” (quoting Oulds, 6 F.3d at 1436) (alteration marks omitted)). In other words, if the evidence at trial demonstrates that “there was a legitimate dispute as to coverage under the policy, and that [the insurer‘s] position was reasonable in light of the facts known or knowable to it at the time it denied [the] claim,” then “as a matter of
To that end, a jury may decide the issue of bad faith, even when the evidence reveals a legitimate possible basis for a dispute, if the claimant submitted evidence that the insurer did not actually rely on that legitimate basis but rather denied the claim for an illegitimate reason, such as a “systematic, bad faith scheme of canceling policies without ... good cause,” Vining v. Enter. Fin. Grp., Inc., 148 F.3d 1206, 1214 (10th Cir. 1998); see also Capstick v. Allstate Ins. Co., 998 F.2d 810, 814–15 (10th Cir. 1993) (affirming denial of JMOL where “from the very beginning without any investigation, [the insurer] treated the claim as a ‘suspicious loss‘” and “denied coverage without making any other bona fide investigation“).
Another instance in which the jury may decide the issue is if there is evidence that the insurer “failed to adequately investigate [the] claim.” Timberlake, 71 F.3d at 345. Crucially, however, “when a bad faith claim is premised on inadequate investigation, the [claimant] must make a showing that material facts were overlooked or that a more thorough investigation would have produced relevant information” that would have delegitimizied the insurer‘s dispute of the claim. Id. That is, evidence of inadequate investigation must “suggest a sham defense or an intentional disregard of uncontrovertible facts” in order to be put to a jury. Id. To illustrate, where an insurer had interviewed a claimant, but had failed to question key individuals and therefore “had not completed an investigation [but rather] had only gotten one side of the story,” JMOL was still warranted when such questioning “would not have changed the underlying facts already known to [the insurer], facts from which [the insurer] was entitled to form a reasonable belief” regarding its justification for denying the claim. Id.
B. Analysis
We hold that a reasonable jury could not find, based on the evidence produced in this case, that State Farm did not actually rely on a legitimate reason in disputing Bannister‘s insurance claim. Furthermore, we discern no evidence showing that State Farm failed adequately to evaluate or to investigate Bannister‘s insurance claim such that additional investigation would have materially altered the legitimate factual basis on which State Farm disputed Bannister‘s claim.
1. Whether State Farm actually based its denial of Bannister‘s claim on a legitimate dispute as to whether Bannister‘s policy covered the accident
First, to evaluate both the reasonableness of State Farm‘s denial of Bannister‘s claim in light of State Farm‘s knowledge at the time, it is necessary to identify the date of that denial.11 See Timberlake, 71 F.3d at 344 (evaluating reasonableness “in light of the facts known or knowable to [the insurer] at the time it denied [the insured‘s] claim” (citing Buzzard v. McDanel, 736 P.2d 157, 159 (Okla. 1987))); see also ROA v. II at 409 (Jury Instruction no. 10). On this record and our required standard of review, we con-
On February 25, the facts known to State Farm included that Bannister had been involved with a single-vehicle accident in which Bannister was unable safely to stop when the car in front of him braked suddenly; that the police report showed that Bannister had been driving under the influence of alcohol; and that there were no identified witnesses. These facts make State Farm‘s dispute of Bannister‘s eligibility for recovery reasonable. For one, Bannister had a duty to leave a safe, appropriate distance between himself and the vehicle ahead. See
Next, the evidence showed that State Farm, from its initial reaction to Bannister‘s claim to its ultimate denial of the claim, actually relied on the legitimate reasons listed above. It is clear that State Farm relied at least on the facts about Bannister not having sufficient space between him and the vehicle in front of him timely to brake and avoid laying down his motorcycle. That itself is sufficient to give rise to a reasonable dispute about whether Bannister was majority at fault. State Farm may also have relied on the police report‘s notation that Bannister was driving under the influence; and that would only have bolstered the already reasonably supported conclusion that Bannister was majority at fault.
The first material entry in Bannister‘s claim log (entry no. 7, on January 23, 2009) recorded the facts of the accident as reported by Bannister and relayed to State Farm through his wife the day after the crash. At trial, Wendy Jeffus, who spoke with Bannister‘s wife and entered that log, said that the facts she recorded—i.e., that a vehicle in front of Bannister slammed on its brakes, causing Bannister to crash—were insufficient at that point to dictate who was at fault, since it was just one person‘s version of what had happened. However, Jeffus testified that if those facts were confirmed through subsequent investigation, then there would be reason to believe that Bannister was at least majority at fault for the accident, which would have disqualified him from UM coverage. The next material log entry (entry no. 14, on January 26, 2009), said that there was insufficient information on file to make a determination at that point and that further investigation was appropriate; but that it appeared that Bannister was majority at fault based on reasonable inferences from the facts of a single-vehicle crash where the car in front of the claimant stopped suddenly, and the claimant had insufficient room to stop himself.
After those entries, State Farm continued to rely on the crash scenario, but it also became aware that the police report, obtained on by State Farm on February 17, 2009, indicated that Bannister had been driving under the influence of alcohol. State Farm representative Walker testified that Bannister‘s alcohol consumption was “a piece of the investigation,” though not something upon which State Farm did, or could have, based its determination of liability exclusively. ROA v. III at 710. It is uncertain the extent to which State Farm took the police report‘s driving-under-the-influence notation into account in assessing Bannister‘s fault. To that end, the February 25 entry only noted that fact in the “comment” section of the log rather than the “analysis” section, though it is unclear how much of a difference, if any, such placement makes. Id. at 767. Walker—who reflected on but did not himself make the February 25 log entry determining Bannister‘s fault—testified that he would have denied Bannister‘s claim based solely on the crash scenario, independent of the driving-under-the-influence factor.
In sum, from the initial consideration of Bannister‘s claim through the February 25 denial of it, State Farm actually at least relied on the facts of the crash scenario—a single-vehicle accident where the car in front of the claimant braked suddenly, and the claimant had insufficient space timely to stop—and possibly also on the police report‘s notation that Bannister had been driving under the influence. The former
2. Whether State Farm failed adequately to investigate Bannister‘s claim
Even though State Farm had a reasonable, actually-relied-upon basis for denying Bannister‘s claim, the bad faith issue could still be sent to the jury to the extent that Bannister‘s theory is “premised on inadequate investigation.” Timberlake, 71 F.3d at 345. However, to resist JMOL based on a theory of inadequate investigation, Bannister “must [have] ma[d]e a showing that material facts were overlooked or that a more thorough investigation would have produced relevant information.” Id.
We can reject this theory even assuming arguendo that State Farm‘s investigation of Bannister‘s claim was inadequate.15 Bannister‘s argument falls on this ground because all that any further, reasonable investigation would have revealed, according to the record before us, is what Bannister himself testified to at trial; and that testimony “would not have changed the underlying facts already known to [State Farm], facts from which [State Farm] was entitled to form a reasonable belief” regarding its justification for denying Bannister‘s claim. Timberlake, 71 F.3d at 345. That is, taking into account everything Bannister said at trial, State Farm still would have had before it the material facts of a single-vehicle accident with no identified witnesses (other than the claimant), where the claimant had not left sufficient space to brake and avoid crashing, and where the claimant was driving after the consumption of alcohol. Bannister‘s testimony did not contradict any material facts upon which State Farm based its legitimate dispute regarding Bannister‘s negligence.
On the contrary, upon further investigation Bannister would only have appeared more negligent, since the fact that he was speeding—a fact to which Bannister testified, but which was never noted in the claim log—would have come out. Further, if State Farm had obtained Bannister‘s hospital record from the aftermath of the accident (or had asked Bannister about the record and had received truthful answers), State Farm would have discovered that the hospital record indicated that Bannister‘s blood-alcohol level was 0.09.
Bannister argues that “[p]erhaps most significantly, a statement from Bannister would have provided State Farm with the opportunity to assess for itself Bannister‘s credibility,” id. at 24, but Bannister‘s credibility in itself was not a “fact” upon which claim coverage was disputed, see Timberlake, 71 F.3d at 345. Bannister asserts that “a situation like this ... turns on how an accident happened and the only evidence of that is the insured‘s testimony.” Aplt. Br. at 24. But again, assuming State Farm had deemed Bannister credible, and Bannister had recounted in an interview the same things he recounted at trial, State Farm still would have had the same material facts before it. And as discussed above, those facts support a good-faith dispute of Bannister‘s claim-recovery eligibility, given the apparent degree of Bannister‘s fault.
Bannister also argues in his reply brief that State Farm should have made efforts to contact the alleged driver from a truck behind Bannister who stopped to help him after the accident, as that person could have been a witness. However, that alleged individual was never noted in a police report, and Bannister never gave, nor at trial professed to possess, any contact information for that individual. Accordingly, State Farm—whose duty it was simply to undertake an investigation that was reasonable under the circumstances, see Buzzard, 824 P.2d at 1109—cannot be faulted for not seeking out some unknown and reasonably unknowable person.
In conclusion, Bannister failed to “make a showing that material facts were overlooked or that a more thorough investigation would have produced relevant information” that would have delegitimizied the insurer‘s dispute of the claim. Timberlake, 71 F.3d at 345. As such, his inadequate-investigation theory of bad faith is without merit, and JMOL in favor of State Farm was appropriate.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s grant of JMOL to State Farm.17 We therefore DISMISS AS MOOT State Farm‘s cross appeal.