Defendant's Motion in the Alternative to Judgment

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, IN THE ALTERNATIVE, FOR NEW TRIAL, OR, IN THE ALTERNATIVE, FOR REMITTITUR

IN THE CIRCUIT COURT OF

COUNTY, MISSISSIPPI

VS.

DOCKET NO.

Comes now Defendant, by its Counsel, and moves the Court to set aside the verdict and judgment entered herein and to enter judgment in favor of Defendant notwithstanding the verdict, or, in the alternative to grant Defendant a new trial, or, in the alternative to grant remittitur in the sum of $ or, in the alternative, to grant remittitur in the sum of $ and in support hereof respectively cites the following grounds, to wit:

1. The Trial Court erred in the following respects:

a. Failing to grant Defendant's Motion for Summary Judgment;

b. Failing to grant Defendant's Motions for Directed Verdict;

c. Granting Plaintiff's Motion in Limine prohibiting Defendant from offering proof that the insured, Plaintiff's , materially misrepresented the state of his/her health in the insurance application;

d. Refusing Defendant's instructions D (3)-i, 5, SA, SB, SC, 7, 8 and 8A;

e. Granting Plaintiff's instructions P 4, 5, 7' 8, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19;

f. Granting Plaintiff 14 substantive instructions in violation of Rule 51(b), Mississippi Rules of Civil Procedure;

g. Overruling every objection made by Defendant which was overruled and sustaining every objection made by Plaintiff which was sustained;

h. Refusing to permit Defendant to introduce into evidence proof that Plaintiff's could read and write for the purpose of impeaching Plaintiff's testimony and statements of Plaintiff's counsel to the jury;

i. Assessing attorney's fees and expenses in favor of Plaintiff.

2. The verdict is contrary to the undisputed proof.

3. The verdict is contrary to the overwhelming proof.

4. Plaintiff had no standing to sue on the purported credit life insurance (he/she not being a named beneficiary) because he/she had no beneficial interest in the purported proceeds since no funds were ever disbursed either to Plaintiff, his/her or on their behalf; thus, there was no indebtedness to be repaid which could adversely affect Plaintiff.

5. Credit life insurance never came into existence because no loan proceeds were ever paid out by ; therefore, there was never an indebtedness to be repaid.

6. There was a failure of consideration for the purported credit life insurance, no premium having ever been paid to Defendant.

7. Defendant had a legitimate, arguable reason for denial of Plaintiff's claim; therefore, Plaintiff is not entitled to extra-contractual damages or attorney's fees and expenses.

8. Plaintiff was not entitled to extra contractual damages for mental anguish and emotional distress inasmuch as there was no evidence that Plaintiff suffered any illness or physical, mental or emotional condition requiring medical care or treatment.

9. The verdict was grossly excessive, evidencing bias and prejudice on the part of the jury.

10. Plaintiff's cancellation of the loan was not required to be in writing as erroneously instructed by the Court.

11. Plaintiff is equitably estopped from asserting that the loan in question had not been canceled by his/her verbal assertions.

12. Although the Court properly refused Plaintiff's request for a peremptory instruction in P-I, it contradictorily and erroneously granted peremptory instructions in favor of Plaintiff in instructions P-5, 14, 15 and 16.

13. The Court hastily attempted at the bar to remedy certain deficiencies in various instructions requested by the Plaintiff by making its own modifications, but in doing so left the modified instructions in a state of confusion, sometimes contradictory, sometimes irrelevant and sometimes merely abstract statements of the law, all to the confusion and misleading of the jury.

14. The Plaintiff's instructions as a whole directed the jury to find for the Plaintiff on a finding of facts which were clearly contrary to the undisputed proof.

15. Instructions granted on behalf of Plaintiff as to the measure of damages erroneously advised the jury as to the proper measure of damages.

Respectfully submitted,

CERTIFICATION

I, , hereby certify that I have this day mailed, postage prepaid, a true copy of the foregoing motion to, attorneys for Plaintiff, at their usual post office addresses.

This, the day of A. D