Progressive West Insurance Company v. Craig Tiscareno; Teresa Tiscareno

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROGRESSIVE WEST INSURANCE
COMPANY,
Plaintiff-counter-defendant -
Appellant,
v.
CRAIG TISCARENO; TERESA
TISCARENO,
Defendants-counter-claimants
- Appellees.
No. 11-57033
D.C. No. 3:08-cv-00180-H-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 9, 2013**
Pasadena, California
Before: BERZON, TALLMAN, and M. SMITH, Circuit Judges.
FILED
APR 11 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
Progressive West Insurance Company (“Progressive”) appeals from a final
judgment entered by the district court in favor of Craig Tiscareno and Teresa
Tiscareno. The district court entered judgment after a jury found, in a special
verdict, that Progressive had unreasonably failed to accept the Tiscarenos’
settlement demand. Progressive contends that the district court erred in denying its
pre-verdict motion for judgment as a matter of law, and argues that the jury’s
verdict is not supported by sufficient evidence. We have jurisdiction under 28
U.S.C. § 1291, and we affirm the district court’s judgment.
“[A] post-verdict motion under [Federal Rule of Civil Procedure] 50(b) is an
absolute prerequisite to any appeal based on insufficiency of the evidence.” Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007); see also
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400–01 (2006).
Because Progressive failed to file a post-verdict Rule 50(b) motion, Progressive
has forfeited its right to challenge the jury’s verdict based on sufficiency of the
evidence. In the absence of a Rule 50(b) motion, an “appellate court [i]s without
power to direct the District Court to enter judgment contrary to the one it had
permitted to stand.” Cone v. W. Virginia Pulp & Paper Co., 330 U.S. 212, 218
(1947). As a result, we are precluded from granting the relief sought by
Progressive, entrance of judgment notwithstanding the verdict.

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3
Even if we were to consider the merits of Progressive’s arguments on
appeal, we would conclude that the district court’s judgment was not erroneous as
a matter of law and the jury’s verdict was supported by sufficient evidence. There
was a legally sufficient evidentiary basis for a reasonable jury to find that
Progressive “unreasonably fail[ed] to accept a reasonable settlement demand for an
amount within the policy limits between April 16, 2007 and May 18, 2007.”
Judgment, Progressive West Ins. Co. v. Tiscareno, No. 3:08–cv–00180–H–CAB,
Dkt. No. 138 (S. D. Cal. Oct. 26, 2011); see Fed. R. Civ. P. 50(a); see also Bell v.
Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003).
AFFIRMED.

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