Civ. A. No. 88-T-1033-N.
October 10, 1989.
Clyde C. Owen, Jr., Ball, Ball, Matthews Novak, Montgomery, Ala., for plaintiff.
J. Knox Argo, Argo, Enslen, Holloway Sabel, Montgomery, Ala., for defendant.
In this case, plaintiff Government Employees Insurance Company (GEICO) sought declaratory relief from this court regarding its obligations to defendant James D. Berry under a comprehensive automobile insurance policy. This court has entered a judgment on a jury verdict, declaring that GEICO is obligated to pay Berry for the theft of his 1981 Mercedes Benz automobile and that the reasonable value of this car is $23,200.00. The case is now before the court on GEICO's motion for judgment notwithstanding the verdict or in the alternative for a new trial, and on its alternative motion to alter or amend the judgment. For the following reasons, the court will grant a new trial and deny all other relief sought by GEICO.
In June 1985, GEICO issued a comprehensive insurance policy to Berry, covering three vehicles for losses suffered from, among other things, theft. The policy covered "any vehicle described in this policy for which a specific premium charge indicates there is coverage," and any automobile which Berry acquired during the policy period and which replaced one of the vehicles listed in the policy. In December 1987, Berry filed a claim following the theft of a 1981 Mercedes Benz automobile which he owned. At that time, the three vehicles described in his policy with GEICO were a 1983 Chevrolet van, a 1979 GMC pickup truck, and a 1982 Toyota automobile.
At trial, GEICO went first with its evidence, contending that the policy did not cover the 1981 Mercedes Benz. Berry responded to GEICO, contending that he had taken the appropriate steps to add this vehicle to his policy by mailing a form to GEICO. He also contended that the 1981 Mercedes Benz replaced the 1982 Toyota vehicle listed in the policy, coming under the policy by the replacement clause. More specifically, Berry testified that he sold the 1982 Toyota in July 1986 and purchased a 1986 Dodge Caravan to replace it in August 1986. He sold the Caravan one month later, in September, and bought a 1979 Mercedes Benz to replace the Caravan. Berry further testified that he purchased the 1981 Mercedes Benz in July 1987. At that point he still owned the 1979 Mercedes Benz, but Berry testified that he then stopped using that vehicle as a means of transportation. He attempted to sell both cars after that date, although he used the 1981 Mercedes Benz for personal transportation during this time. Berry sold the 1979 Mercedes Benz in Atlanta on September 30, 1987. He also attempted to sell the 1981 Mercedes Benz on that day, but this deal fell through. Berry did not return the car to Montgomery, but left it with an associate in Atlanta who attempted to locate a buyer for it. Berry did not drive the 1981 Mercedes Benz after September 30, 1987. The 1981 Mercedes Benz was stolen in Atlanta in November 1987.
Berry further testified that he and his wife owned and used three vehicles after leaving the 1981 Mercedes Benz in Atlanta for sale — a 1982 GMC pickup truck, a 1983 Volkswagen van, and a 1985 Toyota Corolla automobile — and that he understood these three vehicles to be insured under the three-vehicle policy.
After Berry rested, the court directed a verdict in GEICO's favor as to Berry's theory that the 1981 Mercedes Benz was covered because he had mailed the form to add it to his policy. The court, however, reopened the evidence to allow Berry to explain further his testimony regarding how one car did, or did not, replace another. He stated, among other things, that he and his wife used only two vehicles between September 30 and the date in November when the 1981 Mercedes Benz was stolen — the 1982 GMC pickup truck and the 1983 Volkswagen van. The court then denied GEICO's renewed motion for a directed verdict and sent the case to the jury solely on the replacement clause theory. The jury returned a verdict, finding for Berry on the coverage issue and determining the reasonable value of the 1981 Mercedes Benz.
In the motions now pending, GEICO challenges Berry's legal grounds for relief and contends that the evidence presented at trial did not support the jury's verdict. The court will first discuss GEICO's insurance law arguments and will then assess its claim regarding the sufficiency of the evidence. Since the court concludes that a new trial is necessary, it will not reach GEICO's motion to alter or amend the judgment.
In its request for judgment notwithstanding the verdict, GEICO urges this court to follow a formalistic approach in the construction of the replacement clause. Under this approach, the court asks whether a number of criteria have been met in order to determine whether a given vehicle is a replacement vehicle. Although some variation appears in the cases, courts following this approach commonly list the following criteria:
(1) the policyholder must acquire the second vehicle after he entered into the insurance contract;
(2) he must acquire the second vehicle before the policy expires;
(3) he must acquire the vehicle to replace the vehicle described in the policy; and
(4) the described vehicle must be disposed of by the policyholder or otherwise inoperable at the time of replacement.See, e.g., United Farm Bureau Mutual Ins. Co. v. Elder, 86 Ill.2d 339, 56 Ill.Dec. 47, 49, 427 N.E.2d 127, 129 (1981); Young v. State Farm Mutual Automobile Ins. Co., 18 N.C. App. 702, 198 S.E.2d 54, 56, cert. denied 284 N.C. 125, 199 S.E.2d 664 (1973). Courts choose this approach in large part to eschew unstructured inquiries into the intent of the policyholder as to the status of his various vehicles. To be sure, courts using the formalistic approach courts have implied that their criteria serve as proxies for the policyholder's intent to replace or not replace the covered vehicle. Cf. Young, 198 S.E.2d at 56-57 (after stating a brightline rule, the court reasons that nonuse of original vehicle after purchase of new vehicle provides conclusive evidence of intent). But in this view, "an intention to replace is not enough," unless it is supported by specific proof of abandonment or sale of the replaced vehicle, or by proof that the replaced vehicle no longer functions as a vehicle. National Farmers Union Property and Casualty Co. v. Nyborg, 290 Minn. 191, 186 N.W.2d 702, 705 (1971). Accord Elder, 56 Ill.Dec. at 50, 427 N.E.2d at 130; Butter v. Government Employees Ins. Co., 212 Va. 174, 183 S.E.2d 147 (1971). The policy concern underlying this adherence to brightline rules rests on the danger of double coverage created by the evidentiary problem of disproving the insured's intent. "[T]he significant factor is that the insurer agreed to insure only one vehicle at a time, and should not be required to insure more unless it explicitly has agreed to do so." Elder, 56 Ill.Dec. at 50, 427 N.E.2d at 130; see also Mitcham v. Travelers Indemnity Co., 127 F.2d 27, 28-29 (4th Cir. 1942). A simple focus on intent, from the formalistic point-of-view, would allow the insured effectively to obtain coverage on several vehicles for one premium, asserting at the time he submits a claim that he intended to replace the listed vehicle despite the fact that he retained possession of it and that it was in operable condition. As one court put it, this intent-based approach "would permit [the insured] after an accident to crystallize to its own advantage an intention which up to the time of the accident had been embryonic and perhaps never communicated to another person." Kelly v. State Farm Mutual Automobile Ins. Co., 256 F. Supp. 978, 981 (E.D.Tenn. 1966).
See also Elder, 56 Ill.Dec. at 50, 427 N.E.2d at 130 ("Intention of the insured is important when asking why the second vehicle was acquired, but following the acquisition the insured must eliminate the risk the insurer has agreed to bear on the first vehicle before the coverage will transfer to the second as a replacement. A less stringent rule would place an almost impossible burden on the insurer to police whether the insured was in fact using more than one vehicle").
The formalistic approach also rests on the thesis that legal rules support certainty in the relationship between insured and insurer. The insured is able to obtain coverage for any vehicle he wishes simply by taking the appropriate steps to meet the legal criteria for replacement. The insurer is also able to ascertain the scope of coverage under the policy at any given time by investigating the actions taken up to that point by the insured. The insured and the insurer can thus make rational decisions to reach their desired outcomes — assuming they know the legal rules governing their relationship in the first place.
GEICO advances two formal rules which, it contends, are consistent with Alabama law and applicable to the facts of this case. The first rule is that a vehicle is not covered by the replacement clause of the policy if it is not the first replacement for a listed vehicle. To use the facts of this case as an example, GEICO contends that the 1986 Dodge Caravan may have been a replacement vehicle covered by the policy since Berry claims it replaced the 1982 Toyota. Under GEICO's rule, however, the 1979 Mercedes Benz was not a replacement vehicle under the policy because it replaced a vehicle — the 1986 Dodge Caravan — which was not listed in the policy. Similarly, under GEICO's proposed rule the 1981 Mercedes Benz was not a replacement vehicle because it replaced, if anything, an unlisted vehicle too — the 1979 Mercedes Benz. See Garrelts v. Dep't of Motor Vehicles, 176 Neb. 220, 125 N.W.2d 678, 684 (1964); see also Schaller v. Aetna Casualty Surety Co., 280 A.D. 988, 116 N.Y.S.2d 729 (1952), aff'd, 306 N.Y. 725, 117 N.E.2d 908 (1954).
The second rule endorsed by GEICO is that a vehicle cannot replace a covered vehicle if the policyholder retains ownership of the covered vehicle after purchasing the second vehicle and the covered vehicle is not inoperable. E.g., Elder, 56 Ill.Dec. at 49-50, 427 N.E.2d at 129-30; Fleming v. Nationwide Mutual Ins. Co., 383 F.2d 145, 149 (4th Cir. 1967); Yenowine v. State Farm Mutual Automobile Ins. Co., 342 F.2d 957, 959 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 68, 15 L.Ed.2d 74 (1965). Berry purchased the 1981 Mercedes Benz several weeks before selling the 1979 Mercedes Benz. GEICO asserts that since Berry still owned the 1979 Mercedes Benz and it was still functional at the time he bought and began using the 1981 Mercedes Benz, the latter could not as a matter of law replace the former, even though Berry had stopped using the 1979 Mercedes Benz and was advertising it for sale. See Mitcham, 127 F.2d at 29; McKinney v. Calvert Fire Ins. Co., 274 S.W.2d 891 (Tex.Civ.App. 1955).
In contrast to the formalistic approach advocated by GEICO, a less rigid, alternative approach exists to the construction of replacement clauses. Courts choosing this approach refuse to apply strict criteria to the question of whether one vehicle replaced another, looking instead to the policyholder's intent and conduct in the totality of the circumstances. Courts following this approach commonly cite two traditional doctrines of insurance contract construction to support their position. The first is that, unless the parties express a different definition in the contract itself, courts should give the words in a contract the meaning they have in common, everyday usage — that is, the meaning probably held by the layperson who bought and paid for the policy. See, e.g., Rowland v. State Farm Mutual Automobile Ins. Co., 9 Wn. App. 460, 512 P.2d 1129, 1131 (1973); Adams v. Covenant Security Ins. Co., 465 S.W.2d 32, 34 (Mo.Ct.App. 1971) (per curiam); Filaseta v. Pennsylvania Threshermen and Farmers' Mutual Casualty Ins. Co., 209 Pa. Super. 322, 228 A.2d 18, 20 (1967); Brescoll v. Nationwide Mutual Ins. Co., 116 Ohio App. 537, 189 N.E.2d 173, 175 (1961). This doctrine is applied to the replacement clause to reach a usual and ordinary meaning of the word "replace" — that is, to provide or produce a substitute or equivalent in place of a person or thing. E.g., Continental Ins. Co. v. Entrikin, 9 Kan. App. 2d 384, 680 P.2d 913, 918 (1984); Rowland, 9 Wn. App. 460, 512 P.2d at 1132. This common sense meaning of replace does not mandate the evidentiary rules developed by the formalistic courts. The second doctrine, based in similar policy preferences, is that where some doubt exists as to the proper construction of an insurance policy term, courts should resolve the doubt by interpreting the term favorably to the insured. E.g., Iowa National Mutual Ins. Co. v. McGhee, 292 F. Supp. 176, 181 (W.D.Va. 1968), aff'd, 408 F.2d 4 (4th Cir. 1969); Adams, 465 S.W.2d at 34; Filaseta, 228 A.2d at 20.
Courts taking this alternative tack do not view the issue as whether certain specified criteria have been met, but rather whether the insured has provided evidence of whatever sort that reasonably establishes that he replaced the covered vehicle with another one. Rather than look to whether the insured transferred ownership of the first vehicle contemporaneously with the purchase of the second vehicle, for instance, these courts look to the facts of the case to determine whether the insured intended the second vehicle to act as a replacement and acted in accordance with that stated intent. See, e.g., Rowland, 512 P.2d at 1132. Thus, this line of reasoning would reject GEICO's proposed adoption of a rigid "direct replacement" rule and look instead to whether Berry replaced the 1982 Toyota with the 1981 Mercedes Benz through a discernable line of replacements, regardless of whether all replacements were themselves listed in the policy. Maryland Indemnity and Fire Ins. Co. v. Steers, 221 Md. 380, 157 A.2d 803 (1960); Kaczmarck v. La Perriere, 337 Mich. 500, 60 N.W.2d 327 (1953). Similarly, in courts following this reasoning, the issue would not be whether Berry still retained title to the 1979 Mercedes Benz when he purchased the 1981 Mercedes Benz, but simply whether he intended the latter to replace the former and objectively acted accordingly. See Entrikin, 680 P.2d at 920; Rowland, 512 P.2d at 1132; Brescoll, 189 N.E.2d at 176; Nationwide Mutual Ins. Co. v. Mast, 52 Del. 127, 153 A.2d 893 (Del.Super.Ct. 1959).
To the double coverage concern noted above, courts following this less rule-like approach to replacement clauses have responded with two main points. The first response reflects the confidence of the alternative-approach courts in the ability of the factfinder to determine the exact point of replacement:
Theoretically, no matter what point in time is chosen as the moment of replacement invoking automatic coverage, the [insurer] will never be exposed to the risk of double coverage, since implicit in policy provisions for automatic coverage of replacing vehicles is automatic termination of coverage of replaced vehicles, whether or not a change in ownership of replaced vehicles occurs.National Indemnity Co. v. Aanenson, 264 F. Supp. 408, 411 (D.Minn. 1967). The second response points out that insurers, as long-run players in the process of developing the law on a case-by-case basis, can draft rules into their policies with relative ease to eliminate the double coverage problem. Id. at 411-12. Adams, 465 S.W.2d at 35; Filaseta, 228 A.2d at 22; Merchants Mutual Casualty Co. v. Lambert, 90 N.H. 507, 509-10, 11 A.2d 361 (1939). If the insurer wishes to limit replacement coverage to the first vehicle after a vehicle described in the policy, it can simply insert such a requirement into the policy. The same is true for the rule that an insured must dispose of the replaced vehicle, or it must be inoperable, before a replacement will be covered. When the insurer does not place such express requirements in the policy, then the doctrines of common sense meaning of contract terms and liberal construction in favor of the insured combine to forestall the court from grafting the rules onto the policy as a matter of law.
See also Fleming, 383 F.2d at 151 (Craven, J., dissenting) (criticizing the rule that a replaced vehicle must be disposed of at the same time a replacement is purchased, under circumstances when the former vehicle is sold before the accident giving rise to the claim).
This stance can also be seen as a response to the argument noted above that legal rules foster certainty in the relationship between insurer and insured. If one party does not know the rules shaping its relationship with the other, that party will not make its decisions on the basis of those rules, thus undermining the effectiveness of the rules and producing unfair outcomes. In their reliance on the doctrine of liberal construction in favor of the insured, alternative-approach courts implicitly posit that the insured is significantly less likely to know the legal criteria than the insurers, who are more often exposed to the legal process.
The Alabama courts do not appear to have addressed either of the rules urged by GEICO. Indeed, too few reported Alabama cases exist on the subject of replacement clauses for this court to say with certainty which of the two approaches noted above Alabama courts would follow. It is apparent, however, that the doctrines underlying the alternative approach to replacement clause construction are venerable, stalwart principles of Alabama insurance law. In Ho Bros. Restaurant, Inc. v. Aetna Casualty Surety Co., 492 So.2d 603, 605 (Ala. 1986) (citations omitted), the Alabama Supreme Court observed:
[W]e recognize that insurance companies have a right to limit their liability and to write policies with narrow coverage. However, an insurance contract containing ambiguous language will be construed liberally in favor of the insured and strictly against the insurance company. Furthermore, provisions of insurance policies must be construed in light of the interpretation that ordinary men would place on language used therein.
Earlier, in Piedmont Arlington Life Ins. Co. v. Young, 58 Ala. 476, 487 (1877), the Court wrote:
Insurance policies are framed by insurance companies with great care and caution, with a view of limiting their liability as much as possible; and in most cases impose conditions and duties on the assured, to be performed with marked particularity. They should be, and are liberally construed in favor of the assured; which conditions and provisos are strictly construed against the insurer.
Thus, the groundwork for the alternative approach appears to be well laid in Alabama insurance law.
Moreover, those few replacement clause cases reported in Alabama support this approach, this court believes, more than the formalistic approach favored by GEICO. Of significance in this regard is the Alabama Supreme Court's repeated endorsement of the following paragraph from Professor Appleman:
The purpose of automatic insurance is to give coverage to persons who are already insured with the company in question upon acquiring a new vehicle. The coverage extends to the new acquisition when it replaces the sole automobile owned by the insured, when the insured owns a number of vehicles and all of them are insured with the company, or when several of the vehicles owned by the insured are covered by the policy and the new acquisition replaces one already covered. It does not apply to new vehicles which are in addition to those insured by the former coverages and which are not used as replacements, unless all vehicles of that insured are covered, in which event it is contemplated that a premium readjustment will be made.State Farm Mutual Automobile Ins. Co. v. Minor, 492 So.2d 601, 603 (Ala. 1986); Lambert v. Alabama Farm Bureau Mutual Casualty Ins. Co., 200 So.2d 656, 658 (Ala. 1967). The Alabama Supreme Court's choice of this passage to expound on the purpose of replacement clauses suggests that it is concerned more with the issue of actual replacement of the covered vehicle, in intent and use, by the insured than with evidentiary rules designed to facilitate the insurer's opposition to the insured's claims. And with respect to a preference for or against bright-line rules, several Alabama cases have found that the insured replaced the covered vehicle in factual situations featuring a notable lack of formality in the disposition of the covered vehicle. See Hartford Ins. Co. v. State Farm Mutual Automobile Ins. Co., 372 So.2d 1303 (Ala. 1979) (replacement vehicle purchased with funds belonging to both insured and her daughter, with title in both names); Aetna Casualty Surety Co. v. Mitchell, 281 Ala. 412, 203 So.2d 268 (1967) (per curiam) (insured and his son informally swapped pickup trucks without passage of title; son's former truck covered under father's policy as insured vehicle); United Services Automobile Ass'n v. Pons, 383 So.2d 166 (Ala.Civ.App. 1979) (son owned title to, and drove, car purchased by insured to replace vehicle listed on policy to which father owned title; new car was covered under replacement clause), writ quashed as improvidently granted, 383 So.2d 169 (Ala. 1980).
Upon consideration of these cases, and basic principles of Alabama insurance law the court finds that, if faced with the issue, Alabama courts would not adopt the rules proposed by GEICO. Accordingly, although Berry did not meet those rules in this case, GEICO is not entitled to judgment notwithstanding the verdict on those grounds.
GEICO also contends that, aside from the bright-line rules discussed above, it is entitled to judgment notwithstanding the verdict on the basis of the evidence presented at trial. The standard for determining whether judgment notwithstanding the verdict is appropriate is whether the facts adduced at trial and reasonable inferences following from them support so strongly the moving party's position relative to the nonmovant's that the court believes a reasonable jury could find only in favor of the former. On the other hand, when the jury's verdict is supported by substantial evidence, that is, evidence of such quality and weight that reasonable, impartial people could disagree as to whom judgment is proper, then the motion for judgment notwithstanding the verdict must be denied. See, e.g., Kerr v. City of West Palm Beach, 875 F.2d 1546, 1555 (11th Cir. 1989).
Reviewing the evidence presented at trial, the court must conclude that the jury's verdict is based on substantial evidence. Berry testified that the 1981 Mercedes Benz replaced a 1979 Mercedes Benz, which replaced a 1986 Dodge Caravan, which in turn replaced the 1982 Toyota listed in the policy. He related that, although he attempted to sell both the 1979 Mercedes Benz and the 1981 Mercedes Benz at the same time, he stopped using the former and began using the latter as a means of transportation. The jury apparently concluded, from Berry's testimony, that the 1981 Mercedes Benz replaced the 1979 Mercedes Benz when he purchased the 1981 Mercedes Benz or at some point thereafter.
In addition to his testimony, the evidence showed that from the time Berry purchased the 1981 Mercedes Benz until he attempted to sell it on September 30, he drove the car some 600 miles.
GEICO contends that if the jury did find this fact, however, the evidence compels the further finding that Berry replaced the 1981 Mercedes Benz with another vehicle after leaving the 1981 Mercedes Benz in Atlanta for sale. The court cannot agree. Admittedly, during his case-in-chief, Berry testified that he and his wife owned and used three vehicles after leaving the 1981 Mercedes Benz in Atlanta for sale: a 1982 GMC pickup truck, a 1983 Volkswagen van, and a 1985 Toyota Corolla automobile. He also testified that he understood these three vehicles to be insured under the three-vehicle policy, thereby implying that the 1981 Mercedes Benz had been replaced. However, when the court reopened the evidence after the Berry rested, he explained his earlier testimony — or charged it, depending on whether you believed him — stating that he and his wife used only two vehicles between September 30 and the date in November when the 1981 Mercedes Benz was stolen — the 1982 GMC pickup truck and the 1983 Volkswagen van — and that, as a result, the 1981 Mercedes Benz had not been replaced. Berry further averred that a 1986 GMC van, also acquired in late 1987, was not being used for the same purpose as the 1981 Mercedes Benz and thus did not replace it.
In conclusion, the jury heard Berry's testimony, found it credible in his favor, and thus apparently accorded it controlling weight on the questions of whether Berry replaced the 1979 Mercedes Benz with the 1981 Mercedes Benz and whether he replaced the 1981 Mercedes Benz with another vehicle. "[I]t is the function of the jury as the traditional finder of facts, and not the court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Watts v. Great Atlantic and Pacific Tea Co., 842 F.2d 307, 310 (11th Cir. 1988) (per curiam) ( quoting Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc)). In ruling on GEICO's motion for judgment notwithstanding the verdict, this court is not permitted to reweigh the evidence. Id. at 310 n. 5 (citations omitted). In light of Berry's testimony, GEICO's motion for judgment notwithstanding the verdict must be denied.
In contrast to the court's function in ruling on a motion for judgment notwithstanding the verdict, in a motion for new trial the court is free to weigh the evidence, but only to a limited extent. Although the court may employ its experience and its familiarity with, and direct exposure to, the evidence to place a different weight on the testimony of witnesses than did the jury, the court may not substitute its credibility choices and inferences for those of the jury. Ard v. Southwest Forest Industries, 849 F.2d 517, 520 (11th Cir. 1988) (per curiam); Bazile v. Bisso Marine Co., Inc., 606 F.2d 101, 105 (5th Cir. 1979), cert. denied, 449 U.S. 829, 101 S.Ct. 94, 66 L.Ed.2d 33 (1980). This more stringent standard is required when a movant seeks a new trial based on the weight of the evidence, because of the due regard the court must give to the litigant's right to a jury. Ard, 849 F.2d at 520. To assist trial courts in applying this difficult and strict standard, this circuit has instructed that they should look to three factors: the presence of any pernicious or undesirable occurrence; the extent to which the evidence is in dispute; and the simplicity of the issues. Ard, supra; see also Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984).
First of all, this court is convinced that there was an undesirable occurrence at trial. At the end of his case-in-chief, Berry had given the impression with his testimony that, after he left the 1981 Mercedes Benz in Atlanta, he replaced it with another vehicle; he and his wife, according to him, used three other vehicles which he understood were all insured under the three-vehicle policy. However, after Berry rested, there was much discussion between the court and the attorneys regarding Berry's testimony, with the court expressing deep concern about the strength of Berry's case in light of his testimony. The court eventually allowed the evidence to be reopened. When Berry testified again, he gave the impression that, after the 1981 Mercedes Benz was left in Atlanta, he and his wife used only two cars and that thus the 1981 Mercedes Benz had not been replaced. The court is convinced that Berry changed his testimony to meet the factual concern raised by the court after he rested his case-in-chief. The court believes that it unwittingly, but nonetheless unjustly and unfairly, helped Berry by telling him how to change his testimony to win his case.
Secondly, the substantial self-contradictory nature of Berry's testimony, by itself, deeply troubles the court. The conflict is not over a minor or inconsequential detail, but over the central issue in the case. The court therefore seriously questions Berry's overall credibility. Berry correctly points out that the court cannot simply reweigh conflicting evidence, when there is sufficient reliable testimony to support different outcomes. Cf. Hewitt, supra (trial court improperly reweighed conflicting evidence from different witnesses). But here the court is not choosing between different versions of the facts. Instead, the court is saying that it has serious concerns about Berry's credibility as to all events related by him; and, it follows that, if Berry's testimony is not believable, then there is no evidence at all to support a verdict in his favor.
Finally, the above two factors are of critical significance in light of, in the court's view, the lopsided nature of the evidence before the court reopened the evidence. The court is convinced that, if it had not reopened the case and allowed Berry to change his testimony, the jury verdict would have been for GEICO. The evidence strongly suggested that Berry, through his license to sell used vehicles, maintained a constant stream of vehicles at his disposal during the years the policy was in effect. Berry testified that he operated his used-car business as a hobby. This hobby allowed him to drive a variety of cars and to change vehicles virtually whenever he desired. The record viewed broadly establishes Berry's practice of maintaining at least three cars as means of transportation for any given period of time. When he disposed of one vehicle, he usually replaced it with one or more vehicles chosen from the available pool of vehicles purchased through the used-car business. Indeed, during his case-in-chief, Berry verified that he followed this same course of conduct after he left the 1981 Mercedes Benz in Atlanta to be sold.
The court would grant a new trial on the presence of just one of the two factors discussed in the text.
The court, therefore, believes that the great weight of the evidence established that Berry replaced the 1981 Mercedes Benz after September 30 and before December 1987 in intent and in actual use, with another vehicle. Although Berry denied that this was the case after the court reopened the evidence, the court accords his testimony little weight in light of the inconsistencies in his position and in light of the persuasive evidence relating to his typical course of conduct.
In conclusion, although the jury had substantial evidence on which to base its verdict as that term is used regarding judgment notwithstanding the verdict, the court finds that verdict contrary to the great weight of the evidence presented. See Ard, 849 F.2d at 521 (evidence overbore testimony of one witness, and district court in its discretion accorded little weight to that witness's statements).
An appropriate order will therefore be entered granting a new trial and denying all other relief sought by GEICO.
In accordance with the memorandum opinion entered this date, it is the ORDER of the court:
(1) That the motion for judgment notwithstanding the verdict or in the alternative for a new trial, filed on June 2, 1989, by plaintiff Government Employees Insurance Company, be and it is hereby granted to the extent that a new trial of this cause will be held;
(2) That the judgment entered in this case on May 30, 1989, be and it is hereby vacated; and
(3) That the alternative motion to alter or amend the judgment, filed on June 2, 1989, by plaintiff be and it is hereby denied.