*1 Dist., No. Fourth Div. 13895. Two. June [Civ. 1976.] MERLO, Person, etc., C.
FRANK Incompetent Plaintiff and Respondent,
STANDARD LIFE AND ACCIDENT OF INSURANCE COMPANY CALIFORNIA, Defendant and Appellant.
Counsel Defendant and
Edward L. Lascher for Appellant. Munoz, Gerald Hews, Robinson, Hews and Arthur N. Hews & Munoz & Jr., Kane, Plaintiff and H. B. Respondent.
Opinion Insurance and Accident KAUFMAN, J. Standard Life Defendant *6 a from “Standard”) judg of (hereinafter California appeals Company for of verdicts in favor based on ment plaintiff $500,000. $267,294.52 Facts Pertinent In he Plaintiff, nine'children. is the father of an incompetent, 1967, in $16,000. In to secure a home for payments mortgage purchased disabled, an insurance event he should become plaintiff purchased Standard, assumed another but issued by providing by company policy, become $130.63 should totally for plaintiff monthly payments was so as were to continue totally disabled. long plaintiff Payments or until home wаs on disabled until plaintiff paid mortgage plaintiff’s been had until monthly payments attained his 63d birthday first. made, whichever occurred as result and welder. ironworker was an
Plaintiff Apparently was ill. His ailment became his fumes on job, plaintiff inhaling aluminum several poisoning. by physicians diagnosed subsequently 24, date he has Since that 1967. until Plaintiff continued May working led to Indeed, the aluminum at poisoning worked not any occupation. that he has been deterioration and nervous extensive such physical rendered incompetent. 25, 1967, on learned of condition
Standard first August plaintiff’s defendant, Paine, received a a claims when one Jerry representative It would serve no useful claim form submitted purpose by plaintiff. and defendant and the conduct of detail plaintiff respective Standard, them. Suffice it to that between acting say correspondence Paine, Mr. was recalcitrant making monthly payments through disablement, and the which was entitled virtue of his total plaintiff evidence was sufficient support jury’s implied finding had with Standard breached its covenant of fair faith dealing good Standard did Grudgingly intermittently eventually pay plaintiff." 29, 1967, most of what was from October of 1969. No owing May through that, further were made. Standard took the while payments position not be able to return to normal he his could might plaintiff occupation, in some useful engage employment. to the
As a result of Standard’s refusal to make payments pursuant home was sold in foreclosure insurance disability policy, plaintiff’s 1970, $17,030. at Its market value was on December for proceedings $24,500. worried about evidence that was that time There was plaintiff him the letters of default sent shortly mortgage company, home, his the notice had been after of sale posted he himself failure and that miserable and thought sobbing, depressed, head kids’ a roof over . even [sic].” because he not “. . [his] could keep sale, had to take a wife At the time of the notice of job came to evict the life. When the marshal time in her married first *7 and their their it was to store from home necessary possessions family moved the relatives. The divide the children family eventually among in the where the were forced to into a two-bedroom home boys sleep unheated, There and the shared one bedroom. which was girls garage, no and for the children to no yard play. place 12 complaint declaratory the first for
Plaintiff’s consisted of two counts: disability policy; relief for fraudulent under insurance second At misrepresentation. plaintiff the time of trial to that stated court that liability policy defendant had conceded its under the to date and plaintiff pursue that therefore would not the first count. Counsel stated plaintiff go jury that intended to the on two of the theories: breach good dealing implied of faith and fair and intentional infliction covenant jury only distress. The instructions reflect the former. emotional against favor Standard in the jury returned verdict in $500,000 $267,294.52 and amount of $1,607,721.01. Stan- damages. Standard’s net worth was shown be others, ground, among that the dard’s for new trial made on the motion denied the trial were excessivewas court. Discussion Contentions and Liability must, concedes, it that there is substantial evidence
Standard
as
and
good
faith
support
liability for tortious breach of
covenant
its
v. Western
dealing
principles
fair
under the
laid down in Fletcher
78,
47
A.L.R.3d
Co.,
Cal.Rptr.
[89
376
National
Ins.
Life
480,
Cal.Rptr.
Co.,
Cal.3d 566
286],
[108
Aetna Ins.
Gruenberg
P.2d
Having been advised.that that “when the not faith” and finding good that “the defendant did act in payment of unreasonably faith withholds bad insuror- [s/c] every insured, liability,” jury was told: “In subject it claim its is fair good faith and implied covenant of insurance contract there is law a correct statement of dealing.” this was Standard concedes litigation. We do bearing any issue in this that it no contends has but was that to the agree. theory upon which the case went not The sole good implied-in-law covenant tortiously had breached the Standard of a covenant of dealing. Obviously, a tortious brеach faith and fair if claim, it is gravamen fair good dealing faith and a duty to instruct that such exists. improper not court *8 insufficiently the define or Standard contends that instructions duty good breach the describe the that will constitute a of of conduct noted, dealing. and fair the told: the previously faith As was “When unreasonably payment the insurer and bad faith withholds of [sic] insured, subject liability.” claim of its it is This instruction was request rendered at the At plaintiff. request the of Standard court the determining also instructed: “In whether the is entitled to instructions, consequential damage you in these described should company determine whether or not the insurance acted in individuals faith, good yourself ordinary one test is to an [sic] ask whether prudent cоmpany desiring and insurance or individual to treat its fairly reasonably, and policyholders they would have acted as did.” In Perhaps come it pretty combination these instructions close to the mark. have slightly would been more also an informative to instruct that when pay insurer refuses to claim its insured without a reasonable belief claim, that it has a legitimate defense to the of such such payment good conduct constitutes breach the covenant of faith and fair dealing. But request only Standard did not such instruction. The above, instruction requested point Standard on this is that quoted given. instruction was If Standard was not satisfied with the instruction on this point, it was upon incumbent it to request more complete, appropriate instructions its own. v. Barrett Mobile (Downing 519; Inc., Home 277]; 4 Transport, ed.) Witkin, (2d cited.) Cal. Procedure p. 3013and cases there “In case, a civil each of the parties must propose complete and comprehen sive instructions in theory accordance with litigation; his if the so, parties do not do the court has no duty to instruct its own motion.” Inc., Barrett Mobile Home 38 Cal.App.3d (Downing Transport, supra, cited.) at 523 p. there cases agree We do ambiguous provision that inasmuch as no policy case, insurance was at in the it improper issue was to instruct: “Doubts as to meaning policy of terms used anin insurance must be against resolved exception any performance [¿vc], insuror clearly of the basic underlying obligation stated so as to apprise must be insured of its effect.” The standard effect that all instruction to ed.) 15.22) (BAJI (5th necessarily applicable instructions are not No. was however, given, erroneously and we cannot conclude the instruction given prejudicial.
Standard also complains of the instruction: “Under the terms of Accident, Standard policy, as a law, matter of was obligated to *9 commence as of Frank Merlo’s first off work.” The payments day that had to await argument payments necessárily filing claim. instruction did not inform the processing plaintiff’s jury that should have commenced on first off work payments day ’ but, rather, Thus, “as that a reasonable day. interpretation that, instruсtion is would come to although payment actually date, at a later the benefits should be as of his first off computed day work. A court .“. . will the construction of an reviewing adopt which instruction will rather than defeat the if it is support judgment to such reasonably susceptible interpretation.” (Rupp Summerfield, 657, 667 P.2d “We should and 912].) must Cal.App.2d assume [326 women, is constituted of reasonable men and and that they construed the instructions as would reasonable men and women. So construed, Gordon, there was error in the instruction.” (Taylor no. 233, 237 P.2d 64].) conclude, therefore,
We that there was no error in instructing reversal of the jury sufficiently judgment prejudicial require insofar as it establishes liability damages. compensatory Compensatory Damages $267,294.52 awarded as
Plaintiff was damages. compensatory is not award of this Standard contends that magnitude evidence, of misinstruction the result was probably supported and, law, and so the trial as a is excessive court matter grossly as to raise a that it is disproportionate plaintiff’s injury presumption the result or we find no reversible error in of passion prejudice. Although we the award is excessive and so agree instructing jury, to indicate that it was the as result disproportionate plaintiff’s injury passion prejudice.
Plaintiff and the court rendered the instruction requested following causation: “There be more than one cause of concurring may proximate an When conduct of two оr more contributes injury. wrongful persons causes of the conduct of each of concurrently proximate injury, said is a cause of the extent to persons proximate injury regardless A which each to the if it . contributes cause is concurrent injury. at the moment of or acted with another cause operative injury produce that the of a not is no conduct wrongful person defense injury. *10 a cause of the as was also injury.”1 party proximate joined there evidence Standard contends that is no to the rendition of support this it instruction and that was intended to and to likely permit juiy to hold Standard for liable all losses and whether plaintiff’s suffering, his caused industrial disease (aluminum Standard’s by poisoning) by conduсt. While it is conceivable that the understood this instruction jury contends, as Standard we do not believe that Standard probable. ain examination of workers’ engaged prolonged plaintiff’s compensation Mr. Mr. aas to attorney, Byhower. Byhower, primarily courtesy plaintiff, to undertook communicate with Standard and forward to to Standard a number of medical that were also workers’ reports germane plaintiff’s claim. Standard that show Mr. compensation attempted Byhower to these activities and that some negligent respect injury plaintiff’s Thus, resulted from Mr. there was a Byhower’s negligence. legitimate basis for and court’s a concurrent plaintiff’s requesting rendering cause instruction. In his trial counsel related the argument, plaintiff’s concurrent cause instruction to on the any possible negligence part Mr. thus that the understood the Byhower, minimizing any danger jury instruction as from Standard of permitting recovery damages resulting from industrial injury. event,
In if Standard was dissatisfied with concurrent cause any was, circumstances, it instruction under requested by plaintiff, incumbent Standard to instructions of its own. upon request appropriate v. Barrett Mobile Home (Downing Transport, Inc., supra, Cal.App.3d at 523 and cases there cited.) p.
In the court instructed the that if it instructing damages, jury verdict, should find the entitled ato it should award plaintiff plaintiff such amount as would him for all detriment compensate reasonably suffered him and of which defendant’s conduсt was a proximate cause. The instruction continued: “In at amount of the arriving award, shall consider actual which the has you any damage plaintiff and also such as sum will him proved, compensate reasonably any fears, distress, and other mental emotional if suffered him anxiety any, 3.77, ed.) (5th 1 Thisinstruction is an of BAJI No. an instruction adaptation designed for use in cases when there is evidence of causation. negligence concurrent Standard contends that this instruction correct. As is goes liability. Technically, matter, however, error in this instruction would serve practical any only giving enhance We consider this compensatory damages. heading. therefore under problem added.) the conduct in (Italiсs from .question.” proximately resulting 406), at this instruction As we out in Fletcher (10 p. pointed It a distinction between actual is incorrect. draws damage technically actual that while distress and informs emotional seemingly On the emotional distress need not be. must be contrary, damage proved, and must be distress is a form of actual emotional any damage proved that, true, course, in an action for tortious other actual is damage. faith and fair breach of covenant of good dealing, entitled to recover for all detriment compensatory damages proximately *11 covenant, from the tortious breach of the economic resulting including well as loss as emotional distress. v. National Ins. (Fletcher Western Life Co., 10 at It 401-402.) is that the so supra, Cal.App.3d pp. possible jury out, understood criticized instruction. As we have previously pointed a court will the construction of an instruction which will reviewing adopt rather than defeat the if it is to support judgment reasonably susceptible such v. 161 at interpretation. (Rupp Summerfield, supra, Cal.App.2d Thus, erroneous, 667.) while the criticized instruction was we p. technically that, alone, cannot conclude it warrants reversal of the standing award. compensatory damage
However, we with Standard that the agree compensatory damage $267,294.52 award of is so to and losses disproportionate injuries suffered that it must be concluded that it was result of by plaintiff or bе borne in mind that the must passion prejudice. compensatory. due award did not include or to properly any past payments payments become due under the Plaintiff’s cause of action for disability policy. relief abandoned based on the insurance was declaratory by policy at the commencement of trial because defendant had conceded Thus, its under the to that date.2 economic loss of liability only policy home, was the in his loss any proved plaintiff’s equity consequence $7,470 to the evidence. The bulk of the remainder of the according award, $250,000,3 in excess of must have awarded been compensatory sufficient, for emotional distress. evidence is plаintiff’s award could not include any 2 Notwithstanding compensatory properly at oral due under the which fact was counsel amounts policy, acknowledged plaintiff’s included several minor counsel did to the argue plaintiff’s damages argument, amounts claimed due under the jury wit, $4.35 at four days disability payments policy, and ten months of allegedly unpaid disability compensation per day allegedly unpaid the $3.14 fact that the a month. It is from the compensatory amount quite apparent include that the did erroneously award was in an exact amount down to jury pennies these sums in the award. that, in his informed the opinion, plaintiff’s 3 In attorney argument, plaintiff’s $250,000. emotional distress worth
17
distress,
course,
but
a sizable award for
еmotional
support
award
emotional
support
not find the evidence sufficient to
we do
$250,000.
anything
distress in an amount
like
course,
recognize,
that there
no fixed or absolute
We
compute monetary
which to
value of emotional distress
standard
reviewing
give
must
considerable deference in matters
and that
court
jury in the
relating
to the
first instance
trial court
Co.,
secondarily.
v.
10
Ins.
Western National
(Fletcher
supra,
Life
408-409;
at
v.
Cal.App.3d pp.
accord: Bertero National General
13
Corp.,
43,
184,
608,
P.2d
Cal.Rptr.
[118
Cal.3d
65 A.L.R.3d
v.
878]; Forte
455].)
656,
Nevertheless,
Cal.Rptr.
[102
Nolfi,
“
excessive,
award as a matter of law appears
‘[w]hen
or where the
recovery
grossly
is so
disproportionate as to raise a presumрtion that it is
the result of passion
prejudice,
the duty is
imposed upon
then
”
reviewing court to act.’
301,
1 Cal.3d
308-309
(Cunningham Simpson,
Standard- contends that the punitive damage award and, event, was based on an any erroneous instruction in is so disproportionate to Standard’s net worth that it must have been the result passion prejudice. or Again, we are persuaded that Standard’s contentions are correct.
Standard
that it
trial
instruct: “A
contends
was error for the
court to
subject
corporation
liability
exemplary damages by
is
for an award of
affairs,
the
placed
charge
acts of those whom it has
in
of its
аnd who
constitute for the purpose
dealing
parties
corporation
with other
the
authority
itself.” The
cited
supporting
the rendition
this instruction
was Lowe v. Yolo
Standard was informed complains jury quoted instruction Standard could be held liable for for damages punitive conduct of under the doctrine of As any employee respondeat superior. out, Standard this is not the law in California. correctly points “While an liable an tort under be for employer may employee’s he is not the doctrine superior, responsible respondeat he directed nor ratified the act. where neither [Citations California follows the rule laid down in Restate omitted.] [If] Torts, 909, ment of section which can provides punitive if, be awarded because of an act against properly principal agent but if authorized ‘(a) manner of the only principal doing act, or unfit and (b) was was reckless in agent principal him, (c) or in a employing agent employed managerial capacity and was in the or a (d) acting scope employment, employer ” ratified or the act.’ manager (Hale employer approved Exch., Farmers Ins. 690-691 146].) Standard is correct that the rendition of this instruction was error. The did instruction not inform the of the California law. accurately *13 Moreover, we that the award was agree punitive damage excessive as a matter of law. The of is primary purpose punitive damagеs to the Code, defendant and make an punish of him. (Civ. example 3294; see § Bertero v. National General 13 Cal.3.d at 65.) “It Corp., supra, p. defendant, follows that the wealthier the the the wrongdoing larger award of need be in order the exemplary damages accomplish (Bertero v. National General 13 Cal.3d statutory objective.” Corp., supra, at cited.) 65 and cases there also follows that the the p. poorer defendant the smaller the award of need wrongdoing punitive damages Here, be in order to the uncontradict accomplish statutory objective. Thus, $1,607,721.01. ed evidence discloses that net Standard’s worth was the award of a half million dollars in damages, punitive disregarding award, constitutеs almost one-third of defendant’s compensatory damage net worth. The award is so punitive damage greatly disproportionate Standard’s net worth that it is based presumptively upon passion prejudice. However, of since our
The
is
this
foregoing
dispositive
appeal.
issues,
trial on limited
it
will be to remand
case for a new
disposition
deal
of Standard’s contentions
is
with another
relating
necessary
which
to arise on the
retrial.
is likely
damages
partial
punitive
that,
Standard contends
because of
matrix of the
punitive
action,
cause
constitutes
present
superadding
damages
punitive
contention,
In
its
double
Standard
prohibited
punishment.
support
cases,
Izzo, 22
two
refers us to
out-of-state
Knierim
Ill.2d
N.E.2d
and Eckenrode v.
America Insurance
(1972)
Company
157]
Life of
Both
Ins. at 404. We stated: “Defendants also supra, p. that, inasmuch as the basis the tort of intentional infliction of urge conduct, emotional distress is outrageous assuage be should not allowed in addition outrage punitive damages thereto. This contention is not meritorious. Assn. v. (State Rubbish etc. 330; Codе, 38 Cal.2d Civ. We 3294.)” § Siliznoff, supra, recognize there was no discussion of this issue in that that case is Siliznoff *14 therefore for the we cited it. for which authority questionable proposition Nevertheless, the court affirmed a for both compensa judgment Siliznoff in an of and action for intentional infliction tory punitive damages Moreover, emotional our Code 3294 was distress. citation of Civil section not So far based on inadvertent. as the Knierim decision was appears, law, court-made California bound act of the whereas in we are an Code, Civil 3294 without “In an section Legislature.' provides exception: contract, action breach for the of an from where not obligation arising 20 fraud, malice, or of оr defendant has been express guilty oppression, addition to the actual recover in may damages,
implied, plaintiff, of and of for the sake example way punishing damages are two to defendant.” punitive damages ry damages Compensa are different with two different damages Compensatory things purposes. for his awarded injured party injury; punitive compensate him. and make an of When are awarded a punish wrongdoer example awarded, there is no are both compensatory punitive' but, unless and until There be double double recovery, may punishment. a alter Code section it is sees fit to Civil permissible Legislature double recovery.
The resolution this in the at bench is somewhat easier of case question noted, Here, went to the than in Fletcher. case previously of faith and fair on of breach of the covenant solely good theory that tort is conduct as is basis of not necessarily outrageous dealing. distress. The case with the of intentional infliction of emotional tort the tort faith and fair basis of covenant of good dealing breach either be unreasonable conduct v. Ins. (see may Silberg Life California Co., Co., 460-462; 11 at v. Cal.3d Aetna Ins. Gruenberg supra, supra, pp. 575; Co., v. Cal.3d Beck State Mut. Auto. Ins. Farm at. p. Cal.App.3d 347, 354-355 malicious 602]) or conduct Fletcher v. (see Co., Indeed, 401). Western National Ins. at Cal.App.3d p. supra, Life our has most Court held that the establishment of Supremе recently case of breach of the faith and fair does not duty good dealing result automatically damages. liability punitive (Silberg Califor Co., 462-463; nia Ins. 11 Cal.3d at accord: Beck State supra, pp. Life Co., Farm Mut. Auto. at 355-356.) Ins. supra, pp. we contention both Accordingly, reject be in an not recovered action for breach damages may where faith and fair there is substantial covenant good dealing or fraud malice. evidence oppression,
We need not treat Standard’s that there was no substantial contentions of its or of Mr. conduct or that evidence authorization ratification Paine’s Mr. Paine it was reckless in Mr. Paine employing will It is that the evidence on these be likely points managerial employee. limited more retrial. fully developed
Disposition insofar as it awards The is reversed compensatory plaintiff judgment $500,000. $267,294.52 all In other damages damages punitive the is affirmed. The case is remanded for new trial of respects judgment the issues amount of following only: compensatory damages, liability and, Standard for if there is the amount of punitive damages liability, such shall their own bear costs damages. punitive respective parties on appeal.
McDaniel, J., concurred. TAMURA, P. J.I concur and I Acting, dissent. would affirm the below in all as to the amount of the judgment respects except award. from the
I dissent that the award is majority’s holding compensatory substantial, excessive as a matter of While law. the award is record no means invocation that the must justifies presumption juiy have acted from or other Nor motive. is the passion, prejudice improper articulation of the reasons for its conclusion majority’s persuasive. $7,470 house, observes that aside from the loss of the his merely equity the bulk of award must have been for compensatory emotional $250,000 distress and concludes that an award of for such harm is “so to the and losses suffered disproportionate injuries it that must be concluded that it was a result of or passion prejudice.” award,
In aside the invades the setting majority improperly and discretion in the fails accord factfinding power reposed the trial determination on the new motion for trial the judge’s respect which it is entitled. While all of the award was for nearly inflicted emotional the assess injuries upon plaintiff’s well-being, ment of tortious harm such interests” has “intangible vested been in the sound discretion of trier of fact” “long subject to the standard (Bertero of review. v. National only passion prejudice 43, 608, 184, General 13 Cal.3d 529 P.2d Corp., [118 Cal.Rptr. A.L.R.3d And a claim 878].) where of excessive has been trial, the trial a motion for new his determination rejected by judge must be because it his accorded great weight province judge and to evidence. (Bertero witnesses credibility weigh bench the In the case at 64.) National General Cal.3d Corp., supra, *16 thrust of defendant’s motiоn for a new trial entire was grounded awarded and claim that were excessive were the result of or on the The trial due after prejudice part jury. judge, passion deliberation, denied the motion A careful review of the unconditionally. discloses no abuse of discretion record judge. over a Defendant’s tortious conduct continued period approximate health, With -of defendant four ly years. knowledge plaintiff’s failing a cat and mouse with him some intermittent game by making played them without justification, by underpaying, payments, terminating and to make As a finally by any refusing payments. consequence, defendant inflicted on and over the fears anxieties plaintiff protracted and loss his home caused him to suffer the traumatic possible context, confirmation of his fear. As we said in a different but related such emotional harm can be “as real and as a disabling physical injury.” Bd., Workmen’s (Baker Comp. Appeals 279].) There is substantial evidence that defendant’s tortious breach of its to its insured caused severe harm to his emotional health. obligation wife Plaintiff’s testified that of the home he had plaintiff very proud for his deal of his time purchased family; plaintiff spent great working home; him, and home was his home improve everything “[h]is and his work.” Dr. one of the doctors who treated Lonergan, many testified defendant’s failure to make the house plaintiff, payments was of concern to “not so much for himself but for his great plaintiff, “he was concerned about his wife because he family”; knew exceedingly what a burden he was to her and this increased his and his guilt anxiety”; “he would come to the office with tears in his me to do eyes beg the foreclosure and eviction worsened something”; “frustra- tion lack of to think and it was not too ability clearly”; long thereafter that plaintiff required rehospitalization.
Mr. workers’ testified Byhower, plaintiff’s compensation attorney, when came to see him after the notice of sale was plaintiff posted, state”; was in a “terrible he was and miserable and plaintiff “sobbing Mr. that after the testified eviction told depressed.” Byhower plaintiff him: drove that stake heart... I can’t even “They through my right keep oyer a roof kids’ head .. . I’m a failure.” my When were evicted his from their home as result family plaintiff sale, of the foreclosure had to distribute his children among *17 trial, At condition, relatives. his mental despite deteriorating to the describe shame humiliation he suffered as a result attempted of his eviction with these “All I words: know is that family’s everybody felt moved me out and I real ashamed. So there is no words just way, my are limited and I can’t think of to ... it is dam anything say just right awful.”
The the with difficult task the of jury presented translating traumatic of the eviction and almost four of experience years anxiety, fears, harassment, and humiliation suffered cash into a by plaintiff There we, are no fixed or absolute which a standards equivalent. сourt, can measure in terms the extent of reviewing monetary suffered as a result of defendant’s acts. That by plaintiff is wrongful why the law commits the determination of the amount of in first the instance to the discretion of the next the discretion of the trial jury aon a motion for new trial. is therefore judge the an duty appellate court to the and the trial wherever uphold v. jury judge possible. (Seffert Lines, 498, Los 161, Transit 56 Cal.2d 508 364 P.2d Angeles Cal.Rptr. [15 337].) inevitable wide differences of a dollar opinion placing value on harm to emotional health do call not for the intervention of a court. v. 42 (Niles San reviewing City Rafael, 230, 241 733].) the evidence most Cal.App.3d Cal.Rptr. [116 Viewing must, as we the award is not “so favorably excessive plaintiff, grossly аs to shock moral sense” as to so to a rise that give presumption award was the result of or other passion, prejudice motive on (See Los improper part jury. Angeles Seffert Lines, 498, Transit 58 On 507.) Cal.2d we must supra, contrary, that the award was the result of effort a conscientious on the presume of the in the first trial instance the new trial part judge motion to their In of the current limited discharge light responsibilities. dollar, award, substantial, of the was not purchasing power though a excessive as of law. matter
Defendant’s at bench with of the case Fletcher attempted comparison 78, Co., Western National Ins. Life 286], A.L.R.3d for the the instant whether award purpose determining is excessive is In Bertero v. Natiоnal General inappropriate. Corp., supra, 43, 65, 13 Cal.3d at footnote the court page disapproved attempt to show an award was it excessive to awards in similar by comparing cases “For court factual by saying: reviewing upset jury’s determination on the basis of what other awarded to other juries evidence in other cases based different for other injuries upon
plaintiffs invasion into the realm of constitute a serious would fact-finding.”1 award, the amount I With agree respect punitive However, I dissent from matter of law. excessive as a majority’s as to the amount retrial not only disposition requiring as well. for such award award but on the liability question *18 on the it reverses the If I the understand judgment correctly, majority the court erred in on the issue of for ground liability punitive for “A is to the instruction: liability following corporation subject giving whom it has of the acts of those an award placed exemplary damages by affairs, and who the of with in of its constitute for purpose dealing charge other the itself.” parties corporation notes,
As the the instruction is almost a verbatim of majority quotation Co., the used the court in Lowe v. Yolo etc. Water language by County 503, 510-511, 157 Cal. in the of the sufficiency reviewing upholding evidence to a award. The statement is a correct support punitive 11, of a Davis Local Union No. (See expression general legal principle. Workers, 686, etc. Internat. Eleс. of While the statement lack the 562].) may clarity specificity preferable instruction, use as a defendant did not offer an instruction for jury out with the circumstances under greater clarity specificity spelling Nor did which a be liable for damages. corporation may punitive the failed in defendant instruction given. Having request amplification it on the court those not now gives may complain appeal. respects, “[I]f law, that it is too an instruction correct in but party complains the additional or lacks or is he must request general, clarity, incomplete, Witkin, (4 order to have the error reviewed.” instruction in qualifying 3013-3014, Trial, 194, italics.) Cal. ed. 1971) Procedure (2d § original pp. Defendant is therefore foreclosed from about the instruc complaining tion in question.
Furthermore, not have been misled could instruction. shows that defendant vested Paine with the evidence The uncontradicted to whether or not claims should be His determine paid. authority he sent as well as contents various letters determinations view, discretion. In Paine acted a were left his in my facts, the evidence distress suffered some similarities in emotional 1 Respite in the case at bench is far than in Fletcher Western National stronger by plaintiff Life Co., 376. 10 Cal.App.3d Ins. supra, rule within the restatement meaning capacity” “managerial remembered must be a damages. liability corporation with an insurance here concerned that we are company dealing insurance, not Manifestly, plaintiff, any corporation. just disability defendant. Paine were actions of Paine’s actions managed personally with its of his crucial policyholders. most relationship aspects employer’s itself from not allowed to insulate Defendant should be liability him crucial title nonmanagerial employee giving relegating concerned, is jury’s decisions. Insofar guilt oppression policy evidence. overwhelming supported by finding implied I would affirm the below in all as to the judgment respects except amount of punitive damages. Tamura, were denied J. was of
Petitions for 1976. rehearing July *19 should be opinion granted. petition respondent for a Court denied petition hearing Respondent’s Supreme Mosk, J., that the should be 1976. August opinion petition granted.