Daily Blast January 16, 2012

In Transport Ins. Co. v. TIG Ins. Co. (Jan. 13, 2012, A122573) ___ Cal.App.4th ___, the Court of Appeal affirmed a defense verdict in a reinsurance case  based on the jury’s finding that the lawsuit was not timely filed.  Plaintiff and appellant’s main argument on appeal was that the jury instruction regarding the accrual of their reinsurance claim contained an incorrect statement of law.  The appellate court held that the argument was barred by the invited error doctrine, which states that a party is estopped from arguing that a judgment must be reversed based on an error that the party itself induced or invited.  In regards to the disputed jury instruction, the Court of Appeal found plaintiff consented to the giving of the disputed question and apparently even assisted in drafting the instruction. Thus, plaintiff was barred from arguing on appeal that the instruction was erroneous. The Court of Appeal reasoned that a party must make appropriate objections before acquiescing to an erroneous instruction if the party intends to challenge the instruction on appeal.

The Court of Appeal also rejected plaintiff’s argument that the instruction was incomplete because plaintiff never requested an instruction regarding the omitted issue.  The Court of Appeal held that a party may complain of a failure to instruct on a particular issue only if it proposed a proper instruction.  Likewise, the Court of Appeal rejected an argument that the court erred in rejecting another jury instruction on a theory that plaintiff did not plead and never advanced before trial.

Transport Ins. Co. v. TIG Ins. Co. provides helpful guidance for trial counsel:  to preserve an argument for appeal regarding jury instructions, counsel must be sure to (1) voice any and all objections to a proposed instruction, even if you believe the objection is futile, (2) propose instructions on all potential theories, and (3) plead all theories and support those theories with evidence before trial to ensure the court will allow instruction on those theories. By failing to do so, the given instructions may not be challenged on appeal.

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