under insurance policy), citing Pacific Indemnity Co. v. McDonald, 107 F.2d 446, 448 (9th Cir.1939) (same). The right to a jury trial in a civil case is not absolute and can be waived if the request for a jury trial is not timely made. See Bums v. Lawther, 53 F.3d at 1240. “[B]ecause the right to a jury trial is fundamental, ‘courts must indulge every reasonable presumption against waiver.’ ” Id., citing LaMarca v. Turner, 995 F.2d 1526, 1544 (11th Cir.1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994). Here, appellants made a timely demand for a jury trial. See Fed.R.Civ.P. 38(b) (Timberland filed its answer on Apr. 7, 1997; the Chamberlains filed their answer, which included a demand for jury trial, within 10 days, on Apr. 10, 19 , 153, 155 (10th Cir.1965) (<HOLDING>). Under Rule 39(c), actions not triable of
holding that district court could not decide after jury returned verdict to treat jury verdict as advisory on issue not triable of right by jury but which was tried by consent of parties to nonadvisory jury holding district court could not declare jury advisory in action triable of right by a jury and even if no right to jury trial existed in case it would be abuse of discretion to declare jury advisory after both sides rested but before jury was instructed holding district court could not declare jury advisory in action triable of right by a jury and even if the district court had discretion to do so it would be abuse of discretion to declare on the eve of trial that case would be tried as nonjury case where district court had approved parties stipulation to try case to jury holding we would find an abuse of discretion if the district court had granted the downward adjustment holding that district court did not abuse its discretion in giving jury instructions that taken together fairly and adequately conveyed the issues to the jury