Case Information
*1 CASTILLO, Chief Judge.
{1}
In this claim dispute, insurer American National Property and Casualty Company (ANPAC) does not challenge the judgment against it finding breach of contract and requiring it to pay the insurance claim filed by Defendants. Rather, ANPAC seeks reversal of two awards based on the allegation of bad faith denial of the claim: $20,000 in compensatory damages and $50,000 in punitive damages. ANPAC argues that its motion for directed verdict on the bad faith claim should have been granted because the claim was not supported by substantial evidence and did not reach the legal threshold for bad faith under New Mexico law. ANPAC also challenges the admission of testimony offered by Defendants’ expert witness. We affirm.
I. BACKGROUND
{2} This case arises from an automobile collision that took place in the early morning hours of October 13, 2007. Albuquerque Police Officer Matthew McElroy was parked in his squad car in the median on southbound Jefferson Street Northeast, pointing his radar gun toward oncoming traffic when he saw two vehicles headed toward him. One of the vehicles, a 1986 Porsche 944 Turbo, was driven by Defendant Adam Hudson, who lost control at the curve and slammed into the back of Officer McElroy’s squad car. The other car, thought to be a black Lincoln LS, sped on southward, its driver never identified.
{3} There was a police investigation and report by Officer Compton after which Hudson was charged with drag racing and reckless driving. Hudson’s mother, Co-Defendant Tina Cleveland, co-signed on the loan for the Porsche and was a named insured on the ANPAC policy. After the accident, Defendants promptly filed a claim with ANPAC. Two days after the collision, the claim was assigned to adjuster Evan Williams, who reviewed the police report and recorded an interview with Hudson. The policy contained language excluding coverage for accidents “resulting from the use of your insured car in or in preparation for any race, speed contest, hill climbing exhibition, or any other contest or demonstration.” Williams contacted Defendants to let them know that additional investigation was needed regarding their claim because of the racing exclusion in the policy.
{4} Two weeks later, on October 30, 2007, Williams brought the claim before ANPAC’s claims committee. The committee requested further investigation, and Williams later obtained a recorded statement from investigating Officer Compton. On December 20, 2007, the claims committee met again, this time with a notarized statement from Hudson who denied drag racing and a recorded statement from Officer Compton who explained that Hudson had originally denied drag racing but then admitted it. The committee denied the claim on the basis of the racing exclusion. In early March 2008, Williams was informed that the racing charge against Hudson had been dismissed. Williams presented that new information to the claims committee later that month, and it determined that the denial of the claim “will stand based upon the exclusion for racing under your policy” and “Officer Compton’s statement that Adam did indeed admit to racing a black Lincoln LS.” Defendants brought suit against ANPAC in Metropolitan Court, and ANPAC filed *3 this action in district court seeking a declaratory judgment stating it had no duty to provide coverage under the language and terms of the policy. Defendants countersued for breach of contract, breach of the covenant of good faith and fair dealing, and three other claims that eventually were dismissed. After a three-day trial, a jury decided that Hudson was not racing and returned a verdict against ANPAC, finding that the insurer breached its contract with Defendants and awarding Defendants $8,260.08 in damages. The jury also found that ANPAC had acted in bad faith and awarded $20,000 in additional compensatory damages; it also found that the bad faith was the result of malicious and/or willful and wanton actions on the part of ANPAC and awarded $50,000 in punitive damages.
{6} ANPAC filed this appeal. It raises no issues as to the breach of contract claim and limits its challenge to the two awards based on bad faith. We first address ANPAC’s contention that it was error for the district court to deny its motion for directed verdict on the bad faith claim. Then we will address ANPAC’s second claim that the court abused its discretion in allowing the opinion evidence of Defendants’ expert witness. Finally we will address the award of attorney fees and costs.
II. DISCUSSION
A. Motion for Directed Verdict
1. Arguments of the Parties ANPAC argues that the district court should have granted its motion for directed
verdict on the bad faith claim as a matter of law. A motion for directed verdict, also referred
to as judgment as a matter of law, is governed by Rule 1-050 NMRA. Our Supreme Court
has cautioned that judgment as a matter of law “is a drastic measure that is generally
disfavored inasmuch as it may interfere with the jury function and intrude on a litigant’s
right to a trial by jury.”
Torres v. El Paso Elec. Co.
,
{9} We begin with the policy exclusion. For purposes of this Opinion, we will assume without deciding that ANPAC’s policy excluded coverage for drag racing. The jury instructions required the jury to determine whether Hudson was engaged in a race at the time of the collision. The jury answered no. In other words, whether there was an exclusion or not became a non-factor for this part of the case. While Defendants contend that ANPAC’s interpretation of the insurance contract to exclude coverage for drag racing was an example of bad faith, we need not reach this argument because we decide that there was sufficient evidence for the jury to find bad faith based on the manner in which the investigation was conducted. Consequently, we make our assumption that there was an exclusion because it does not affect the outcome of the case.
3. Bad Faith Claim
{10} The parties argue about two bases for bad faith. ANPAC focuses on the reasons for denial of coverage and argues that there is no evidence to support the finding that the reasons for denial were frivolous or unfounded. Defendants center their argument on events before the actual denial and contend that the bad faith claim flowed directly from ANPAC’s breach of duty to fairly investigate and evaluate the claim. We agree with ANPAC that in New Mexico, an insurer acts in bad faith when it
denies a first party claim for reasons that are frivolous or unfounded.
See Sloan v. State
Farm Mut. Auto. Ins. Co.
,
“Unfounded” in this context does not mean “erroneous” or “incorrect”; it means essentially the same thing as “reckless disregard,” in which the insurer “ utterly fail[s] to exercise care for the interests of the insured in denying or delaying payment on an insurance policy.” It means an utter or total lack of foundation for an assertion of nonliability—an arbitrary or baseless refusal to pay, lacking any arguable support in the wording of the insurance policy or the circumstances surrounding the claim.
Jackson Nat’l Life Ins. Co. v. Receconi , 113 N.M. 403, 419, 827 P.2d 118, 134 (1992) (citation omitted).
4. Fair Investigation and Evaluation of the Claim As we have discussed, an insurer has a right to refuse a claim without exposure to
a bad faith claim if it has reasonable grounds to deny coverage.
See Jessen v. Nat’l Excess
Ins. Co.
,
claim, a “fair investigation” theory, and unreasonableness in denying the claim based on
reasons that are frivolous or unfounded. Relying on a number of cases, ANPAC argues that
Defendants did not present the “fair investigation” theory to the jury, and because the jury
instructions become the law of the case, Defendants cannot prevail on the theory that was
never properly presented to the jury.
See Haaland v. Baltzley
,
facts of this case. Chapter 17 of New Mexico’s uniform jury instructions deals with insurance bad faith claims. Bad faith failure to pay a first party claim is governed by UJI 13- 1702. The following modified version of this instruction was tendered by ANPAC and given to the jury, marked as Jury Instruction No. 12:
An insurance company acts in bad faith when it refuses to pay a claim of the policyholder for reasons which are frivolous or unfounded. An insurance company does not act in bad faith by denying a claim for reasons which are reasonable under the terms of the policy.
In deciding whether to pay a claim, the insurance company must act reasonably under the circumstances to conduct a timely and fair investigation and evaluation of the claim.
The jury was also given UJI 13-1705 NMRA, marked as Jury Instruction No. 13:
Under the “bad faith” claim, what is customarily done by those engaged in the insurance industry is evidence of whether the insurance company acted in good faith. However, the good faith of the insurance company is determined by the reasonableness of its conduct, whether such conduct is customary in the industry or not. Industry standards are evidence of good or bad faith, but they are not conclusive. The special verdict form contained ten questions, five of which related to the bad
faith claim. The jury was asked if ANPAC’s refusal to pay their claim was based on “reasons which were frivolous and unfounded.” If the answer to that question was answered in the affirmative by the jury, it was directed to go on to the subsequent questions. The remaining questions dealt with cause of damages, amount of damages, if punitive damages should be awarded and, if so, the amount.
{17}
“[W]e must consider the instructions as a whole to determine whether all issues of
fact and law were fairly and accurately presented to the jury.”
O’Neel v. USAA Ins. Co.
,
{18} We now return to our first question: Was there evidence presented to support Defendants’ theory that ANPAC acted in bad faith by denying Defendants’ claim such that there was no error in the court’s denial of ANPAC’s motion for directed verdict? As a preliminary matter, we note that ANPAC’s motion made at the end of trial was for a directed verdict on all issues. As to the bad faith claim, ANPAC pointed to the expert’s testimony characterizing the case as borderline and explained that “on that basis alone, [ANPAC] would suggest [Defendants] have failed to carry their burden of proof with regard to the bad faith claim.” The remainder of the argument in support of the motion dealt with the issues of violation of the New Mexico Insurance Code, the Unfair Practices Act, and the breach of contract. ANPAC did not argue the meaning of “frivolous or unfounded” or make other arguments that are part of the briefing in their challenge to the verdict finding bad faith in this case. When the district court granted ANPAC’s motion as to all issues except breach of contract and bad faith, it explained its ruling as follows:
As far as the bad faith and breach of contract claims, I do find that those claims should go to the jury. I think reasonable minds could differ. I think that it’s possible, based upon the evidence that the jury has heard, they could certainly find, either way, that there was a breach of contract, but it wasn’t bad faith, or they could find that there was no breach of contract, or they could find that there was a breach of contract and there was bad faith. I think reasonable minds could certainly differ on those issues, based upon the testimony that has been brought to light.
{19} ANPAC argues that by ruling that reasonable minds could differ about whether the claim should have been denied, the court was really concluding that the matter was fairly debatable; and the insurer should have been entitled to judgment as a matter of law that any denial was not a result of bad faith. We do not read the court’s explanation to relate to a denial; rather, we understand the court to be saying that the evidence presented was sufficient to support both the breach of contract and bad faith claims and that reasonable minds could differ as to whether liability should be imposed on either based on that evidence. We now review the evidence presented. At trial, Defendants’ expert testified that an insurance company must be motivated
by “honesty, good faith, and fair dealing” and that in this case, ANPAC “favored their own interests over the interests of the insured, [and] paid little or no attention to what [Hudson] was telling them.” He went on to testify that ANPAC failed to ask Hudson “the obvious question, ‘Were you racing?’” The expert acknowledged that, up until the charges were dropped against Hudson,
a denial of the claim would not have been frivolous or unfounded, but that once the charges
were dropped, the claim committee should have given the case “a completely brand new
visitation”; instead the committee “continued with the [same] approach that they had taken.”
ANPAC argues that the dismissal of Hudson’s criminal drag racing charge is irrelevant to
the question of whether it acted in bad faith. Relying on
Suggs v. State Farm Fire &
Casualty Co.
,
{22} The expert also expressed concern that the file indicated that Hudson “was drag racing another vehicle” as opposed to “was accused of drag racing.” According to the expert, insurance companies are usually careful enough to say it is an accusation and that if “you say it as a fact, the investigation should be complete.” The expert noted that at that point the investigation was not complete, thus implying that the claim committee had made up its mind before collecting all of the evidence. The expert testified that the claim committee did not do a proper evaluation of the claim and looked “at one-sided evidence, one-sided information” and did not give “even-handed consideration of the rights and interests of the insured[.]” We view the facts and all reasonable inferences in the light most favorable to the
party resisting the motion for a directed verdict.
Gonzales v. Surgidev Corp
.,
5. Punitive Damages Now we turn to the punitive damages issue. ANPAC makes no separate argument
regarding the award of punitive damages and appears to rely on its primary argument that a directed verdict should have been granted as to bad faith and that would then subsume any issue regarding punitive damages. There was no separate argument regarding punitive damages when ANPAC made its motion for directed verdict. And ANPAC made no objection to the jury instructions regarding punitive damages. Additionally, at oral argument *9 ANPAC stated that it could not legally distinguish the bad faith claim from the punitive damages claim, that the evidence presented was insufficient to support the bad faith claim and, therefore, since the tort fails, all the other damages including punitive damages, attorney fees, and costs fail as well. We have affirmed the judgment as to the bad faith claim; accordingly, ANPAC provides us with no argument on which to reverse the punitive damages award.
B. Expert Testimony We now turn to ANPAC’s contention that the district court erred in allowing the testimony of Defendants’ expert. ANPAC argues that Defendants failed to comply with the district court’s scheduling order and failed to disclose the substance and grounds for the expert’s proposed testimony. ANPAC notes that Defendants never provided an expert report and only belatedly offered an affidavit and curriculum vitae from the expert attached to Defendants’ opposition to ANPAC’s motion for summary judgment.
{26} It is the district court’s role to “decide any preliminary question about whether a witness is qualified” to testify at trial. Rule 11-104 NMRA. Further, Rule 11-702 NMRA states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
See State v. Torres
,
testifying. ANPAC argued that Defendants submitted a witness list that did not include the expert’s professional qualifications or a summary of his anticipated testimony. When the information was provided after a court-imposed deadline had expired, ANPAC told the district court that it had been prejudiced by the delay. Further, ANPAC contended that the bases provided for the expert’s anticipated testimony were inadequate and filled with *10 conclusory statements. The expert’s affidavit recounted his background and experience and indicated that
he had reviewed the pleadings, documents, and depositions in the case. Among the contentions in his affidavit:
12. [ANPAC’s] denials of the claims . . . were unreasonable, contrary to generally accepted insurance industry practices, and meet the New Mexico test for bad faith conduct.
. . . .
17. Customary industry practices are relevant evidence of [a] bad faith claim.
. . . .
25. In order to meet its burden of proving that the exclusion applies, [ANPAC] must show that a race or speed contest existed at the time of the accident.
. . . .
34. Despite the fact that [ANPAC’s] assumption that a race was underway at the time of the accident deteriorated with the passage of time as evidenced by the fact that drag racing charges against . . . Hudson were dropped, [ANPAC] refused to alter its self-serving interpretation of . . . Hudson’s conduct.
ANPAC faults the district court for allowing the expert to testify when he had not properly
stated ANPAC’s own standards for the investigation and processing of claims, how ANPAC
failed to meet those standards, and how ANPAC’s actions differed from industry standards.
We disagree. ANPAC is expecting a level of specificity from the affidavit not required by
rule or our jurisprudence. Our Supreme Court has noted that under Rule 11-702, “[t]he
description of the kinds of testimony requiring expertise is broad, and so are the means to
qualify a witness as an expert: What is required is knowledge, skill, experience, training,
or education.”
Torres
,
{29}
ANPAC also relies on
Shamalon Bird Farm, Ltd. v. U.S. Fidelity & Guarantee Co.
,
{30} In the case before us, by contrast, the proffered expert did not exhibit a similar “total unfamiliarity of the record.” The expert swore in the affidavit that he had familiarized himself with the pleadings, documents, and depositions in the case. The expert’s affidavit did confuse the racing exclusion by calling it a “speeding exclusion.” And while the affidavit did state “it is impossible for a person to race against themselves” when the facts indicated a second driver was involved in the alleged drag race, a closer reading of the affidavit reveals that the expert was referring to the lack of another witness in the case, not the lack of another race participant in the event that gave rise to the claim. Otherwise, it was clear from the affidavit that the expert had decades of experience in examining insurance bad faith cases and had reviewed the pertinent pre-trial documents to familiarize himself with the case. The district court denied the motion in limine regarding the expert testimony and
concluded that the expert’s testimony would be limited to the issues addressed in his
affidavit. The court decided to confine the testimony to ultimate facts and to acceptable
industry practices. The court also ordered Defendants to make the expert available for a pre-
trial deposition and to bear the costs of a deposition. The district court gave proper
consideration to the expert’s affidavit in ruling on his qualifications to testify. We cannot
say that the district court’s decision was “clearly untenable or not justified by reason.”
Coates
,
C. Attorney Fees and Costs Section 39-2-1 provides the following:
In any action where an insured prevails against an insurer who has not paid a claim on any type of first party coverage, the insured person may be awarded reasonable attorney[] fees and costs of the action upon a finding by *12 the court that the insurer acted unreasonably in failing to pay the claim.
When an award of attorney fees is authorized by statute or otherwise permitted by appellate rules, Rule 12-403(B)(3) NMRA, allows this Court to award “reasonable attorney fees for services rendered on appeal in causes where the award of attorney fees is permitted by law, if requested in the briefs or by motion filed within ten (10) days of entry of disposition.” ANPAC asks that we exercise our discretion and deny attorney fees and costs for the appeal in this case because (1) we originally recommended summary reversal before placing the case on the general calendar and (2) this case presents issues of first impression. Because we affirm the judgment in this case, we conclude that Defendants are entitled to attorney fees and costs on appeal. However, the amount must be determined. Accordingly, we remand this matter to the district court to determine reasonable attorney fees and costs for Defendants on appeal. See id.
III. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court and remand
on the sole issue of attorney fees and costs of this appeal.
{35} IT IS SO ORDERED.
____________________________________ CELIA FOY CASTILLO, Chief Judge WE CONCUR:
____________________________________
MICHAEL E. VIGIL, Judge
____________________________________
J. MILES HANISEE, Judge
Topic Index for Am. Nat'l. Prop. & Cas. Co. v. Cleveland , No. 30, 164 APPEAL AND ERROR
Standard of Review
Substantial or Sufficient Evidence
CIVIL PROCEDURE
Directed Verdict
CONTRACTS
Breach
CIVIL PROCEDURE
Expert Witness
EVIDENCE
Expert Witness
INSURANCE
Attorney Fees
Bad Faith
Denial of Coverage
Motor Vehicle Insurance
REMEDIES
Punitive Damages