Plаintiff-Appellant/Cross-Appellee Royal Maccabees Life Insurance Company (“Royal”) appeals from a judgment on a jury verdict in favor of Defendant-Appel-lee/Cross-Appellant Dr. Stephen J. Cho-ren on a bad faith breach of insurance contract counterclaim. The jury awarded $425,000 in damages. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
Prior to the incidents giving rise to this suit, Dr. Choren engaged in the general practice of dentistry in Colorado. Beginning in 1994, he experienced hand numbness and other symptoms that were diagnosed as consistent with nerve abnormalities. Over timе, these symptoms worsened. In February 1997, Dr. Cho-ren lacerated his left index finger to the bone while removing packing materials from a chair, necessitating surgery to reattach a severed nerve. During subsequent examination, he was diagnosed as suffering from bilateral carpal tunnel syndrome, tremors, and neck and shoulder pain. Although he attempted to return to his practice, by April 1997 Dr. Choren reached the conclusion, after consultation with his physician, that he was no longer able to practice dentistry.
Prior to the onset of his disability, Dr. Choren purchased an “own occuрation” disability income insurance policy from Royal. He subsequently exercised an option in the contract to purchase additional coverage on four occasions between 1984 and 1992. Dr. Choren also purchased a business overhead policy from Royal. Royal’s policies provided that, if the insured could not perform the material and substantial duties of his profession, benefits would be payable over the insured’s lifetime.
Dr. Choren submitted a claim under the policies for total disability in April 1997, dating back to February 1997. A neurolo *1178 gist subsequently certified Dr. Choren as disаbled from practicing dentistry because his condition prevented him from safely performing fine motor work in a patient’s mouth. In July 1997, Royal began making total disability payments of $9,000 per month to Dr. Choren.
In August 1997, the Colorado Division of Insurance forwarded to Royal an anonymous letter (written by Dr. Choren’s office manager and dental assistant) alleging that Dr. Choren was engaged in insurance fraud. Receipt of the letter prompted a covert investigation of Dr. Choren’s claims that culminated in the filing of this diversity suit in June 1999. During the course of its two-year investigation, Royal assembled evidence, including videо surveillance of Dr. Choren windsurfing in Venezuela, that the insurer viewed as inconsistent with a claim of total disability. While engaging in this lengthy and expansive investigation, Royal at no time informed Dr. Choren that his claim was under investigation and continued to pay benefits under the policies.
In its complaint, Royal alleged that Dr. Choren had submitted a fraudulent insurance claim for total disability on the basis that he continued to practice dentistry after filing the claim and that he engaged in recreational activities that were inconsistent with his claim. Dr. Choren counterclaimed for breach of contract, bad faith breach of contract, outrageous conduct, violation of the Colorado Consumer Protection Act (“CCPA”), and institution of a vexatious action. The district court granted summary judgment to Royal on Dr. Choren’s outrageous conduct and breach of contract counterclaims. The case was later tried in January 2002 and submitted to the jury on Royal’s fraud claim and Dr. Choren’s bad faith and CCPA counterclaims.
Through a series of special verdicts, the jury found that Dr. Choren was totally disabled under the terms of the policies and had not sought to defraud Royal. The jury further found that Rоyal acted in bad faith in the investigation and handling of Dr. Choren’s claim and awarded him $225,000 in unspecified economic damages and $200,000 in unspecified non-economic damages. The jury rejected Dr. Choren’s CCPA claim, finding that Royal did not engage in a deceptive trade practice. Following the jury’s verdict, both parties filed several post-trial motions. The district court disposed of the motions in its Order on Posh-Trial Motions of March 26, 2003, denying Royal’s motion for a new trial on the issue of bad faith and dismissing Dr. Choren’s counterclaim that the lawsuit was vexatious. The district court also denied Dr. Choren’s motion to alter or amend the judgment to award him tort damages for the present value of future disability benefits. On March 28, 2003, the district court entered judgment on the jury verdicts and this appeal followed.
Discussion
On appeal, Royal asserts that the district court (1) erred in giving three bad faith jury instructions; and (2) committed plain error in failing to instruct the jury that (a) attorney fees were not compensa-ble damages for bad faith breach of insurance contract, and (b) in the absence of other economic damages the jury could not award the insured non-economic damages for bad faith. Dr. Choren argues on cross-appeal that the district court erred (1) in treating the recovery of future benefits as a contract remedy (rather than as a remedy for bad faith breach of insurance contract), and (2) in excluding evidence on the CCPA claim of representations made at the time of sale of the insurance policies and by failing to instruct that post-sale claims handling could properly be consid *1179 ered as deceptive trade practices. We discuss each of these arguments in turn.
A. Bad Faith Jury Instructions
We review legal challenges to tendered jury instructions de novo.
Garrison v. Baker Hughes Oilfield Operations, Inc.,
1. Coverage Investigаtion and Notification of the Insured of Coverage Issues
This case was tried in January 2002. Under the then existing rule, “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51 (2002). The current rule retains the dual requirements of objecting on the record with sufficient specificity.
See
Fed. R.Civ.P. 51(c)(1) (2003). To preserve the objection, a party must proffer the same grounds raised on appeal,
Reed v. Landstar Ligon, Inc.,
Dr. Choren originally proffered Instruction 26, which read:
Proceeding with a coverage investigation covertly to gain advantage over an insured is improper. When the interests of the insurer and the insured conflict as a result of the discovery of coverage issues, the insurer may not covertly build a case against its insured, but should promptly take steps to see that the insured is made fully aware of and understands the problem.
App. Vol. IV at 1066. At the jury instruction conference, Royal objected to this proposed instruction, stating: “It’s not Colоrado law. It doesn’t state Colorado law. It shouldn’t be given.” App. Vol. XI at 3214. However, Royal conceded during the ensuing colloquy that “proceeding with [a] coverage investigation to gain advantage over an insured is improper” and that “the insurer has a duty to notify the insured once [a] problem is discovered by it as to coverage.” App. Vol. XI at 3215-16. These two concessions provide the substantive basis for Instruction 43A as tendered by the court. While it is true that the court noted a continuing objection to “giving [Instruction 43A] at all,” App. Vol. XI at 3218, we believe Royal has waived its legаl argument, having conceded the validity of the duties encompassed by Instruction 43A. Accordingly, we review Royal’s
*1180
challenge to Instruction 43A for plain error.
Hardeman,
To succeed on a plain error review, the challenging party must demonstrate (1) an error (2) that is plain, meaning clear or obvious under current law, and (3) affecting substantial rights.
Id.
If these elements are satisfied, “ ‘we may exercise discretion to correct the error if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ”
Id.
(quoting
United States v. Ruiz-Gea,
Royal’s challenge to Instruction 43A necessarily depends on the assertion that the Colorado Supreme Court would not impose requirements on insurers to promptly notify insureds of coverage disputes and abstain from engaging in investigations to gain an advantage over the insured. Both parties concede that the Colorado Supreme Court has yet to pronounce such rules. Aplt. Opening Br. at 12 n. 6; Aplee. Opening/Response Br. at 22. In a diversity suit, the content of substantive jury instructions is derived from controlling state law.
Elliot,
While we realize that uncertainty inheres in every Erie prediction made in federal court, we do not believe that the district court’s resolution of this issue arises to a clear or obvious error under current law, especially since Royal specifically agreed that each sentence of the instruction was correct. Royal has neither pointed us to, nor have we found, contradictory Colorado law specifically barring the duties enunciated in Instruction 43A. Under our limited review, we will not disturb the district court’s determination under these circumstances. The district court did not commit plain error in tendering Instruction 43A to the jury.
2. Duties of IME Physicians and Presumption that Injuries Are Not Self-Inflicted
Royal next argues that Instructions 46B and 46C, while properly stating Colorado law, prejudicially bolstered Dr. Choren’s case because the jury did not have to decide the issues raised by the instructions. Aplt. Opening Br. at 21. Royal further argues that Instruction 46B conflicted with Instructions 7, 8, and 10, telling the jurors that they are the sole arbiters of witness credibility and of the weight of the testimоny. Aplt. Opening Br. at 17. Instruction 46B stated:
The physician who conducts an independent medical examination (an “IME”) does not owe the insured a duty *1181 of care to diagnose his condition correctly-
On the other hand, a treating physician owes a duty of care in diagnosing a patient’s condition and may be liable to the patient for an incorrect diagnosis.
App. Vol. VI at 1432. Instruction 46C stated: “The law presumes that injuries are not intentionally self-inflicted.” App. Vol. VI at 1433.
As a preliminary matter, Dr. Choren argues that Royal failed to preserve the issues noted above for appeal. Aple. Opening/Response Br. at 17. Having reviewеd the record, we find that Royal preserved the issues for appeal. Dr. Choren misconstrues Royal’s argument regarding the instructions, characterizing it as asserting that the instructions “unduly dignified what should have been mere factual arguments.” Aple. Opening/Response Br. at 21. In so doing, Dr. Choren converts the argued effect of the instructions into Royal’s principal grounds on appeal. Royal clearly objected during the instruction conference on the grounds that the issues raised by the instructions were not properly before the jury, App. Vol. XI at 3223-24, 3226, and that Instruction 46B would lead to confusion in the jury, App. Vol. XI at 3224. These are precisely the issues before us. The language employed by Royal was sufficiently clear to raise the issue before the district court and permit it to alter the instructions accordingly.
See Rogers v. N. Rio Arriba Elec. Coop., Inc.,
Returning to the principal argument before us, the jury in this case heard conflicting evidence concerning the existence and extent of Dr. Choren’s disability, offered by both treating physicians and independent medical experts. It also heard evidence about Royal’s suspicion that Dr. Choren’s finger laceration was self-inflicted. The parties agree that the statements of law are correct. We think it was within the district court’s discretion to inform the jury of factors that might be considered in evaluating this evidence. Contrary to Royal’s argument, these instructions do not amount to an endorsement of Dr. Cho-ren’s theory of bad faith. They in no way contravene or diminish the court’s general instructions that the jurors are the sole arbiters of credibility and decide what weight to accord witness testimony. We find no reversible error. The instructions taken as a whole adequately instructed the jury.
See Hardeman,
B. Damage Instructions
Royal’s final argument is that the district court committed plain errоr in failing to instruct the jury that attorney’s fees could not be construed as economic damages under Dr. Choren’s bad faith counterclaim and that non-economic damages could not be awarded in the absence of economic damages. Aplt. Opening Br. at 23. Royal concedes that it did not request such instructions, and therefore did not preserve the error below. Aplt. Opening Br. at 25.
“A court may consider a plain error in the instructions affecting substantial rights that has not been preserved.” Fed. R.Civ.P. 51(d)(2). We have consistently noted that the plain error standard in civil cases is limitеd to errors that “ ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ”
Phillips v. Hillcrest Med. Ctr.,
1. Attorneys Fees as Economic Damages
Royal first asserts that the district court’s failure to instruct the jury that attorneys fees could not be considered economic damages under Colorado law constituted plain error. Royal relies on
Bernhard v. Farmers Insurance Exchange,
Royal contends that failing to give the instruction was highly prejudicial in that the only evidence Dr. Choren presented concerning economic damage was personal testimony that he had paid his attorneys in excess of $200,000. Aplt. Opening Br. at 24-25. The jury subsequently returned an award of $225,000 in unspecified economic damages. Dr. Choren counters that the jury heard evidence that he suffered economic loss from Royal’s failure to. make timely payment of business overhead expenses (total payment on that policy was $6,900 with a maximum of $23,000 possible, App. Vol. IX at 2524) and that he suffered further economic damage from the loss of use of policy benefits. Aple. Opening/Response Br. at 36-37.
Royal admits that it did not object to the testimony about attorney’s fees at trial. Aplt. Opening Br. at 25. Nor did it request either a limiting instruction or an interrogatory, the latter as contemplated by Federal Rule of Civil Procedure 49(b) whereby issues of fact necessary to a decision could be recorded by the jury and compared to the verdict. On direct, Royal’s claims investigator testified why Royal decided to file, this action against Dr. Cho-ren and in the process stated “we decided that we could continue to make payment so as not to harm him so he had the funds to live, but we decided to present the matter to the Court and let the Court decide.” App. Vol. IX at 2516. Dr. Choren’s counsel asked Dr. Choren whether he had been able to use the monthly benefits to live on. Dr. Choren responded no because he had to. pay over $200,000 in attorney’s fees to defend. App. Vol. X at 2955. On cross examination, Royal’s counsel pursued the matter, bringing out that рart of those attorney’s fees were for counterclaims. App. Vol. X at 2963.
After examining Royal’s role in inducing the testimony, and the presence of some evidence suggesting economic damages, we conclude that Royal cannot demonstrate plain error. We can hardly say that it should have been obvious to the trial judge that a Bernhard instruction was necessary, given the manner in which the evidence about attorney’s fees came in. A limiting instruction tendered by the parties would have been preferable. But the jury heard testimony relevant to Royal’s untimely payment of business overhead expenses. App. Vol. IX at 2524, 2593-94. The jury also might have inferred that Dr. Choren *1183 suffered economic damage from his inability to fully utilize the benefits provided under the policy once coverage was contested. Having agreed to a general form of verdict as to the extent of economic damages, Royal cannot now speculate as to what elements made up that verdict.
2. Non-Economic Damages in the Absence of Economic Damages
Royal further argues that the district court committed plain error in failing to instruct the jury that in an action for bad faith breach of an insurance contract Colorado law precludes an award for non-economic damages in the absence of economic damages. Aplt. Opening Br. at 25. Royal’s argument is foreclosed by the Colorado Supreme Court’s decision in
Goodson v. American Standard Insurance Co. of Wisconsin,
C. Recovery of Future Benefits
On cross-appeal, Dr. Choren argues that the district court erred in precluding evidence concerning future benefits and failing to alter or amend the judgment to include the present value of future benefits, some $2,491,851. App. Vol. VI at 1564. The district court determined, after balancing several considerations, that an award of future benefits was not appropriate in this case. The district court treated Dr. Choren’s motion to alter or amend as a motion for reconsideration because it would have required reversal of pretrial rulings. App. Vol. VI at 1564, 1567. We ordinarily rеview motions for reconsideration for abuse of discretion.
Matosantos Commercial Corp. v. Applebee’s Int’l, Inc.,
As recently as its decision in
Goodson,
the Colorado Supreme Court has reiterated the general principle that “[a]n insured can recover damages for bad faith breach of insurance contract based on traditional tort principles.”
*1184 At the outset, we note certain facts that informed the district court’s decision on this legal issue and that we believe are pertinent to our own determination. First, the district court found that Royal had not repudiated the contract in question. App. Vol. VI at 1565, VIII at 2376. Second, the expectations under the contract embraced the possibility that benefits would cease should Dr. Choren recover from his disability. App. Vol. VI at 1566, VIII at 2375. Third, the expectations under the contract were payments for present disability, not future disability. App. Vol. VI at 1565; App. Vol. VIII at 2375. Finally, we note the jury’s finding that Royal had acted in bad faith in the “investigation and handling” of Dr. Choren’s claim. App. Vol. VI at 1457.
Our evaluation, like the district court’s, begins with the United States Supreme Court’s decision in
New York Life Insurance Co. v. Viglas,
In discussing
Vigías,
the district court noted correctly that Royal had not repudiated the contract in question here. Rather, Royal had chosen to seek enforcement of the contract terms, terms it felt supported its claim against Dr. Choren. Dr. Choren argues on appeal that Royal’s initial claim for rescission, abandoned at the court’s insistence that Royal choose one claim for relief, functioned as a repudiation of the contract. Thus, according to Dr. Choren, the instant case falls well outside the orbit of
Vigías.
We do not believe the Colorado cases cited by Dr. Choren support this assertion.
See, e.g. Schneiker v. Gordon,
Irrespective of this argument, the Supreme Court’s decision in
Vigías
informs but does not conclude our consideration of the present issue. In
Vigías,
the Court was careful not to craft “an invariable rule whereby the full value of a bargain may never be recovered for any breach of contract falling short of repudiation or intentional abandonment.”
Id.
at 679,
Dr. Choren directs us to decisions outside Colorado where courts have permitted the award of future benefits in actions involving insurance contract disputes.
See, e.g. DeChant v. Monarch Life Ins. Co.,
We believе the categorical rules urged upon us by the parties are not supported by either the cases cited or the circumstances of the instant dispute. Dr. Choren’s authorities depend, either explicitly or implicitly, on a finding of repudiation or anticipatory breach. As explained above, the evidence here does not support such a finding. Royal’s authorities, on the other hand, did not arise in the context of bad faith
breach
of contract claims, and thus offer little guidance on how to balance the conflicting policy considerations underlying tort and contrаct disputes. We do find, however, one aspect of the Wisconsin appellate court’s decision in
DeChant
persuasive. After reviewing existing case law, the Wisconsin court concluded, and we agree, that trial judges enjoy broad discretion to shape remedies in bad faith insurance cases to ensure that successful parties receive compensation in accordance with their legitimate expectations under the contract as determined by the court.
DeChant,
Given its reticence in precisely defining the types of relief available to successful parties in bad faith breach of insurance contract claims, we do not believe the Colorado Supreme Court would embrace a categorical rule mandating that an award of future benefits be available in every action involving a bad faith breach. Nor do we believe that the court would preclude such an award in all cases involving benefits contingent on continuing disability. Rather, we believe the Colorado Supreme Court would hold, as did the court in DeChant, that the determination of whether or not an award of future benefits is available lies in the discretion of the trial court after considering such factors as the relationship of the parties, the nature of the contract, and all other relevant factors present in the case.
Under the facts of the instant dispute, we believe the district court did not err in precluding Dr. Choren from presenting evidence with respect to the present value of future benefits or in refusing to alter or amend the judgment to include an award of future benefits. Royal did not repudiate the contract in the instant case. While the jury found that Royal had acted in bad faith in handling and investigating Dr. Choren’s claim, there was no evidence introduced at trial to suggest that Royal had brought suit under a “disingenuous
*1186
pretense.”
See Viglas,
D. CCPA Claim
Dr. Choren’s arguments on the CCPA are conditional on a remand on liability and damages. Because we do not find error that would necessitate a remand, we do not reach Dr. Choren’s arguments.
Dr. Choren’s motion to certify (to the Colorado Supreme Court) the question of whether the present value of potential future benefits is available if an insurer denies benefits in bad faith is DENIED and the judgment is
AFFIRMED.
Notes
. Royal makes much of the fact that during the course of the instructiоn conference the district court remarked in reference to Instruction 43A: "I don’t know whether that's the law or not. I am relying on you people.” App. Vol. XI at 3217. Whether the district court was being facetious is not clear. Of course, the district court has an independent duty to determine or predict state law. We do not believe the district court failed in the exercise of that duty. The district court heard the parties on the issue, including Royal's objections, and resolved the issue independently after Royal had conceded the legal obligations encompassed by Instruction 43A.
. The decision in Goodson was rendered after final briefing of this appeal.