*1 retrospective Inasmuch as given prius effect that is judge; but in today's zigzag jurispru today's pronouncement destroys rights pro roadmap provided dence no to a safe har - 54, by §§ tected I 52 and would hold that the bor for party either the insured or the change in substantive norms the state's insurer. Happy hunting, gentle ladies and of applied common law cannot be to claims men! "proceedings "accrued" begun" before the date mandate in this case will have is
sued.
118 Aside distorting the American
Rule, today's pronouncement magically tran-
smogrifies the
justice's
ashes of one
lifeless
post-Christian
dissent from his mere after-
legal damages in an action for an insurer's
Christian tort.44 The solution I propose is
vastly superior to that by chosen the court.
The latter sends the suit back explora for an seas,
tion uncharted filled with waters
known inhospitable to be court-spon fishing expedition.
sored Handed to the vie- by today's
tor disposition postremand is a
license to search for some statute which
would prevailed authorize one who in tort to
seek a postjudgment counsel-fee award
against
vanquished
enemy.
Invited to
come along for
fantasy
ride is the nisi
regime
gives
does
necessary
not mean it
protec
are inconsistent with the basic values
our con
property
forms");
tion to all
in its
heritage"
mine)).
modern
(emphasis
stitutional
Shaf
Heitner,
186, 212,
v.
433 U.S.
97 S.Ct.
fer
(1977) (where
said,
perpetuation ancient longer Schumacher, that are no v. 1958 OK forms Hallford justified adoption as procedures new
192
194 *4 (USAA) and an uninsured motorist. On
Thanksgiving Day, 28, 19983, November Bob Newport driving was home a sleet storm. The roads County Pontotoc visibly were icy and slick. Terry, age Donovan traveling on an intersecting road. When Terry stop was unable to his stop car at a sign, he slid into the intersection and into the path of Mr. Terry's car. car was hit on the driver's side the front of Mr. Newport's car. Terry Once get able to out of side, his car on passenger he fault, exclaimed: "It my wasn't just I couldn't stop. I stop just tried to kept sliding." Mr. was taken ambulance hospital. There, to a local he was deter- mined to have spinal suffered a cervical cord injury. worsened, When his condition *5 he was hospital transferred to a in Oklahoma City on December 6" He died there on Janu- 3, ary 1994, age at the of 59. He left behind wife, his emancipated children, and a new business. Newport
T3 Mr. Sammie, and his wife were insured with Terry USAA. was unin- Newports sured. The maintained uninsured (UM) motorist Lynn Babb, coverage D. Tobias, with Pierce, policy Haven stacked Couch, totaling limits Hendrickson, 1.5 million dollars. Baysinger Green, The New- & ports L.L.P., elected no medical City, Oklahoma, Oklahoma benefits coverage Appel- for lant. (med-pay). plan Their health with CHAM- specifically PUS payment exeluded of medi- Alexander, Linda G. Phillips, Harris A. cal claims covered a policy UM until the Niemeyer, Alexander, Phillips, Austin & UM carrier "has issued payment its toward P.C., City, Oklahoma, Oklahoma Appel- for [the] medical bills." lant. T4 Within a days collision, few after Smith, Shew, Michael G. Craig D. Laura J. one of Corbin, examiners, USAA's senior Smith, claims Shew, John Corbin, Serivner & Folgate, assigned P.C., Ada, Oklahoma, Newport handle the Appellee. claim, Newports hired a local attorney, Clyde Muchmore, A. Gordon, Kevin D. Davison, Denver and USAA hired Lee Lan- Dunlevy, Crowe & City, Oklahoma Okla- caster of Adjustment General Ada, Bureau in homa, Curiae, for Amicus State Farm Mutual Oklahoma, to investigate the matter. In ear- Automobile Company. Insurance December, ly 1998, USAA made the UM Travis, Rex K. City, Oklahoma, Oklahoma portion policy "available" Curiae, for Amicus Lawyers Oklahoma Trial payment for the of medical bills and other Association. pocket out of expenses incurred as a result of December, collision. In late USAA made HODGES, J. $5,000 a help advance to cover additional litigation 1 This arose from an living expenses automo- while the family icy bile collision on roads between an insured was in City. Oklahoma But when the New- of United Services Automobile port's lawyer Association repeatedly requested payment
195 under the cir- reasonable understandable funeral ex- expenses and specific medical of no forthcoming and cumstances. payment penses, no given. why was as to explanation "implied-in- has an 19 An insurer the value set May, USAA T5 In fairly and deal good faith duty to act law $900,000, $750,000 to at Newport claim policy ensure that insured to with the liabil- determination its taking into account v. Ameri Christian are received." benefits 20% on Terry and part of ity 80% on as Co., 901 5T7iP.2d Assurance can Home an hired Newport. USAA part of Mr. (Okla.1977). ac a bad-faith The essence of $750,000authority to gave him attorney and unreasonable, bad-faith "is the insurer's tion offers below Three a settlement. negotiate withholding conduct, unjustified including the were amount at that authority and one policy." McCorkle under payment due a Newport. rejected by Mrs. and were made Co., P.2d 587 Ins. 687 Atl. v. Great October, 11, was filed on action This (Ok1a.1981). this action Newport brought Mrs.
T6 limits faith does not to recover tort of bad against USAA 110 The claim, the insurance deny a provisions right to the UM the insurer's under foreclose brought a "bad-faith" "to any claim litigate also payment, She contract. resist legitimate defense." has a deal which the insurer failure to upon USAA's based claim Co., handling in the P.2d good Ins. fairly and v. Farmers Buzzard unin- Terry, IM). (Buzzard added (Okla.1991) claim. USAA UM "A [bad motorist, third-party defendant. a lie where there as action will not cause of faith] sured Trial of appeal. party this Manis v. dispute." legitimate He is not is a Hartford (Okla.1984). Co., Fire Ins. in a unanimous resulted these claims for However, on the claim its million dollars with a claim presented of 1.5 when verdict in actual dollars investi insured, 7.5 million conduct an policy proceeds, insurer "must *6 faith, and 7.5 under the cir reasonably appropriate claim for bad damages on the gation damages. paid must be punitive in "the claim million dollars and cumstances" has a reasonable the insurer promptly unless asserting appeal brought this T7 USAA factually legally or is that the claim belief this matter. trial of in the errors several is question The decisive Id. insufficient." trial Appeals affirmed The Court of Civil belief, "good a insurer had whether the acci- "unavoidable give to refusal court's requested, performance was its at the time trial reversed instruction dent" withholding for justifiable reason it had that to a claim of the bad-faith submission court's (quoting policy." Id. under payment error were of other assertions jury. USAA's 157, McDamel, 159 P.2d 736 v. Buzzard Appeals. of Civil by the Court not addressed I).) (Buzzard (Okla.1987) knowledge "The review and granted certiorari Court This time during the insurer belief and opinion of Court part in now vacates is the being reviewed is period the claim part and affirms Appeals and Civil of (citing Buz Id. claim." of a bad-faith focus trial judgment of the part reverses 159). I, 786,P.2d at zard with di- is remanded cause The court. with the appear facts Additional rections. to have entitled An insurer is 111 they relate. to which the issues analysis of concurring the reasonableness any dispute is jury. there by "[If a actions settled its BAD FAITH I. in which different from conflicting evidence the reason regarding drawn may be ferences Newport failed argues that Ms. T8 USAA conduct, what is then claim on her of insurer's case ableness prima out a to make facie deter question to be always a fair reasonable and duty good faith for breach by consideration fact a by trier of mined Thus, in the trial urges error it dealing. McCor- case." in each of the cireumstances jury. to a of the claim court's submission Thus, question kle, 586-87. P.2d at 637 judgment as to was entitled asserts it USAA reason jury could a is whether matter this actions were its of law because a matter ably infer that acting USAA was unreason have tried several cases in which the ably bad faith. found for the defendant under similar weath- er and road unexpected conditions due to an
A. - Low-Ball Offers ice and snow storm." This was the first indication that USAA believed it had an un- 16, 1994, By May USAA'sinves avoidable accident defense. USAA's attor- tigation had established that Terry was an ney also asserted that "USAA not re- ha[d] any uninsured motorist who lacked assets to vealed the actual cost of the annuities offered satisfy judgment, Terry a that was at least [present value] because to do possi- so would 80% negligent, and that the value of the bly subject the entire settlement to taxation." Newport claim, taking into consideration the At trial Mrs. attorney former tes- comparative evaluation of negligence 80/20 tified simply this was not true. On $750,000 $900,000. was between A liti 7, 1994, October Newport rejected Mrs. gation supervision at USAA given au offer and previous withdrew all settlement thority $900,000. to up settle the claim for to later, offers she had days made. Four this However, lawyer hired USAA was suit was filed. given authority to settle the up claim for to $750,000. Mrs. maintains that she es- prima tablished a case of bad faith 27, with May 1183 On respond USAA facie undisputed evidence of "low balling," an in- Newports Mrs. March 11%"demand letter for surer's intentional offer of a sum less than limits offering a a structured settle- its own valuation of the claim. USAA contends ment present with a value later estimated to that an offer less than the $500,000. be proposal rejected. insurer's own On internal estimated value is not bad faith. It June responded USAA with a see- reported notes that no juris- case any proposed settlement, ond May also dated diction so holds. present with a value of approximately $600,000. Newport rejected Mrs. the second 115 Authority on this issue is indeed offer and offered to settle the matter seant. appears It appellate no state $1,825.000. attorney Her would testify later court has addressed this issue directly in a trial at that she was beginning to feel harried published opinion.1 However, duty "caving and was in." A third settlement promptly pay a valid claim has clearly been proposal from USAA was made on June 27" recognized by this jurisprudence Court's present with a $700,- value of approximately since an duty insurer's good faith and fair *7 000. In proposal this began USAA to assert dealing was Christian, in articulated 577 "the possibility and extent of negligence" in P.2d 899. An may insurer not treat its own assessing trial, the amount of loss. At Mrs. insured in the manner in which an insurer Newport would assert that this was for the may treat third-party claimants to whom no purpose of instilling fear. The offer was duty good of faith and fair dealing is owed. rejected and counter offer was made for $1,175,000. response, In that Mrs. New- 116 This Court holds that follow port's lawyer complained that USAA contin- ing "an investigation reasonably appropriate ued to make its in offers the form of a circumstances," II, under the Buzzard 824 structured settlement without disclosing 1109, the P.2d at an insurer promptly must settle present value August offers. On the claim for the value or within range the of 1994, USAA made a "once and for all" offer assigned value to the claim as a result of its present with a value latter estimated to be investigation. An insurer's failure to do so $750,000. it, lawyer USAA's "I may subject stated: it to a claim for bad faith from only Research reveals two federal payment decisions payment or an insufficient can form the which have addressed the issue of insufficient grounds claim."); for a breach-of-contract Ko payment or insufficient offer in the context of a sierowski v. Allstate Co., Ins. 51 F.Supp.2d claim for bad faith. Integon (E.D.Pa.1999) See (offer v. 592 of adjus half of amount Shufford Indemnity Corp., F.Supp.2d 73 1302 tor was authorized to offer did not constitute bad. (M.D.Ala.1999) ("Not only outright Pennsylvania refusal to faith under law when value of pay, delay also either an unwarranted in uncertain). claim was expenses such as them for available to policy insurer say an not to This is its insured. followed conversation was The the medical bills. litigate the value negotiate may not dated December from Lancaster by a letter fair deal- faith and duty good The claim. "we are 16, 1998, which stated: offering to Davison insurer prevents an merely ing portion of the motorist making uninsured our investigation reveals its own than what less hopes Newport to Mr. policy available value. the claim's to be might arise problems which alleviating any Appeals of Civil Court T17 The A similar condition." concerning his medical bad was no that there matter held in this and place Davison took between conversation actually de claim was not the because faith 15, 1998. On Decem- December Folgate on Howev ongoing. were negotiations and nied $5,000 help 23rd, advanced USAA ber payment insufficient er, make an an offer to expenses while the living additional cover the portion of of that a denial equivalent to City. Fol- family was in Oklahoma and offer the insurer's between lying claim January Newport's death on lowing Mr. the insurer value which range of value or the stating: letter a second Lancaster sent below Offers assigned to the claim. has family to the any assistance "again, we offer value of calculation own insurer's immediate basis." a more is needed on withholding justification for not a valid claim are policy that the UM intent was Lancaster's It paym ent.2 funeral pay and medical be available would pre-litiga- {18 three USAA's The first expenses. assigned to value it fell below tion offers 11, 1994, made a Davison March On reasonably juryA could Newport claim. payment of the for demand written negotiating was not that USAA conclude and limits, payment of the medical including portion of its insured. faith with good $5,000 bills, As advance. less the funeral Appeals of Civil the Court opinion of re- were filed and bills liens were medical was no bad there holds that opinion which made Davison providers, from medical ceived is vacated. despite payment. But demand a second request Lancaster's Davison's demands Bills Funeral B. Medical bills, Newport's medical pay it to USAA examiner, claims senior 119 USAA's or funeral paid the medical never USAA investigator, claims Folgate, instructed bills. any way Lancaster, Newports in to assist its inaction defends USAA out-of-pocket ex their minimize he could to con insurance nothing arguing that Further, directed to Lancaster penses. or funer pay any medical it to required tract coverage UM Newports that their inform "med-pay"3 cover that no It notes bills. al immediate needs. their available for Newports. by the purchased age was Davison, with contact made T20 Lancaster Lancaster's attributed expert at trial USAA's 9, 19983. lawyer, on December Newport's $5,000 and the assistance financial offers of accident, Mr. They discussed spirit." part to the "Christmas advance *8 paralysis, Newport's increased Mr. injuries, however, not, whether The issue T23 City. They also transfer to Oklahoma and his cov- provide medical to obligated was USAA of medical payment need for the discussed with in its contract provision erage under a Davison that USAA told Lancaster bills. medical and of the Newports. Payment Newport the portion of the making the UM was might insured that the accompanied a threat to offers every which an insurer cause in 2. Not faith dam- nothing it at trial-bad away at which with than that a value less come a claim at settle support award an a loss will originally evaluated ages recoverable. are present- damages. the facts Under of bad original was offer the insurer's ed-where coverage be- separate contractual "med-pay" is 3. - value estimated the lowest less than $250,000 to company and the insured insurance tween the claim, which tendered offers were where expenses in- for medical the insured reimburse value, and appraise at a current difficult to were accident. an automobile curred fell which first one [the offer where the final was claim] appraised value of within the expenses sought part funeral was as sought and obtained a writ from this Court Newport's for the claim losses incurred as a prohibiting bifureation. This Court held that Newport's result of Mr. collision with an the issue of whether the insureds legal had a motorist, med-pay uninsured not as coverage. right to recover from the uninsured motorist The issue is whether USAA dealt with the was not separable question from the Newports fairly good and in faith. whether good-faith insurer had a belief justifiable it had a reason for withhold- promised 124 USAA to make the unin- ing payment policy. under the Id. at 159. available, coverage sured motorist made a Therefore, trial court authority had "no end, small advance towards that and then ... require to [the to submit insureds] to a refused payment to make further on the separate trial comparative as to the fault of claim outside a settlement far below the dol- the [uninsured motorist]." Id. placed lar value on claim based on its own investigation. USAA's actions han- trial, 127 Following a the case again dling reasonably claim could Court, time, submitted to this this on the perceived be as unreasonable bad appeal insurer's jury's from the verdict for faith,. Therefore, it was for the to deter- punitive actual and damages upon based mine whether USAA's actions were reason- insurer's bad faith failure to honor its con- able under the cireumstances. II, tract. Bussard this
Court explained that "[tlo determine the va-
lidity
claim,
the insurer must conduct
II. BIFURCATION AND BUZZARDS
investigation
reasonably appropriate un-
RELEVANCE LIMITATION ON
der the cireumstances. The knowledge and
CERTAIN EVIDENCE
belief of the insurer during
period
the time
urges
125 USAA
that bifurcation of trial
being
the claim is
reviewed is the focus of a
Terry's
of the issues
responsibility for the
bad-faith claim." Id. at 1109(citing Buzzard
collision and USAA's bad faith
required.
I,
159).
at
P.2d
Mrs.
claims the trial court lacked
128 USAA does not ask this Court
discretion to order bifurcation in this case.
overrule these holdings.
attempts
Instead it
Curiae,
Amici
State Farm Mutual Automo-
distinguish
this case from Bussard.
It
Company
bile Insurance
and the Oklahoma
states that
only
claim,
Buzzard involved
one
Lawyers Association,
Trial
have briefed the
faith,
for bad
brought solely against
in
issues addressed in this section.
surer. USAA is correct
in noting that
brought
action was
solely against the insurer.
A. Bifurcation
The underinsured motorist had settled with
€26
controlling
law on bifur
prior
insureds
litigation.
to the
Buzzard
cation is found in this Court's
decision
I, 736 P.2d at
(concurring opinion).
I,
There,
Buzzard
199 Further, the issue of unavoidable acci- 33 An applicable. insurer any less furcation knowledge and not relevant to the dent was application of the Buz may not defeat time the at the belief USAA by adding the uninsured simply holding zard It was not until being was evaluated. claim holding is not litigation.5 The to the motorist August fourth offer of settlement on its the unin in which the situation limited to negotiations and into settlement well pres not motorist underinsured sured or May on long it evaluated the claim after ent the suit. intention to that intimated its USAA any men- The absence of assert the defense. Frame Time Buzszard's Relevance B. gives prior to that time tion of the defense next argument USAA 130 In a similar that its mention rise to an inference of the application to this case challenges the to coerce a settle- fourth offer was intended II, that refusing err in information holding ment. The trial court did not "[the in Buzzard upon instruction. [insur- which give an unavoidable accident at trial was that to relevant P.2d at refusing payment," 824 relied er} trial, requested Specifically,at USAA 1114. 2. Causation be "unavoidable accident" on an instruction complains that the trial 134 USAA deposition of jury that the given to the might "that have excluded evidence court the local treating physician at Newport's Mr. Terry not cause did convinced attempt to con- in an hospital be admitted death, alleged his 89- Newport's at least not cause jury that the collision did vince the suffering." wanted day long pain and USAA other issues Newport's death. Because Mr. Borne, deposition of Dr. Mr. to admit admission instruction and the surround the physician at the local hos Newport's treating will be ad- expert testimony, the two x-ray that no or CAT scan pital, to establish separately. dressed Mr. an actual fracture of had established argument Newport's was that neck. USAA's Accident Unavoidable Newport's was attributable to his Mr. death (2) condition, (1) "significant prior error in the a asserts medical 131 USAA therapy at the local during physical on unavoid refusal to instruct event" trial court's (8) Appeals paraplegia, hospital the Court of Civil which resulted able accident. As hospi held, developed have in the pneumonia, instruction would which he correctly (4) Thus, tal, arrest. ultimately this case. Use cardiac under the facts of been error 39-day Newport's argued that Mr. "should be restricted of the instruction USAA death, stay, indi with his hospital where the evidence which ended those cireumstances by the collision. was caused unfore not attributable to . was cates occurrence and not or conditions seen cireumstances prior med- Newport's 1 Evidence of Mr. Ankney v. party." negligence of either presented part as been ical condition had (Okla.1988); Hall, 153, 156 ah Okl it was rele- chief because Plaintiff's case in (Civil) No. Jury Instructions oma Uniform expectancy and Mr. life vant to 10.9. deposition, taken damages. Dr. Borne's five trial, following the excluded days before was in this matter the instruction 132 Use of intervening of the law of visibly trial court's review were The roads was not indicated. opinions, as cumula- addition, Buzzard cause and the during a sleet storm. icy attorney it was taken tive and because investigation and evaluation USAA's the claim. negotiate had hired negligence on the USAA always indicated claim had at trial. attorney be a witness was to parties. That part of or both one wrongful consequence death of Terry investigation fered as a early in its 5. USAA knew sixteen, uninsured, Newport. v. M.F.A. Insurance Under Keel no Mr. and that he had was (Okla.1976), satisfy subrogation claim. an insured from which to P.2d assets Co., responsibility may litigate the issue of sought payment Newport nor USAA Neither Mrs. or with against UM insurer alone Terry. instructed accident damages motorist. the uninsured damages the insurer and suf both only amount of to determine the *10 part proof, deposi- deposition As offer of was USAA's cumulative. Most of the de- part appeal. tion was made of the record for position Newport's centered on Mr. medical history. This included the fact that Mr. 136 The trial court did not abuse its dis Newport ankylosing spondyli- suffered from excluding deposition. in It cretion was tis, position, in spine fusion of the fixed as a of USAA's belief at not relative to the issue ejection result of an seat accident while he Newport In the time it evaluated claim. was in the Air Force the 1950's. The fact, nothing it was an issue this matter slumped condition left him forward and un- shortly investiga until before trial. USAA's lay able to flat. He also suffered from em- Newport tion revealed that Mr. had com physema plained problems. that he could not move and other health After at the seene par his neck and that he had suffered some Newport's extensive review of Mr. medical alysis.6 During negotiations, USAA never history, Dr. Borne was asked x- whether the disputed had Mr. that the collision caused rays hospital or CAT seans from the local Newport's injuries and death. In its answer spine. revealed a fracture in Dr. Borne Petition, Newport's to Mrs. USAA admitted stated that none could be seen and explained the accident on "the occurrence of November more sensitive MRI not be could 25, 19983, resulting injury and to Bobbie D. however, performed, due to the size of the Newport." ap No mention of the defense hospital MRI unit at the local and Mr. New- pears in Pretrial Conference Order en port's posture. agreed Dr. Borne with the prior tered less than two weeks to trial medical examiner's notation on the death cer- During period T37 "the time injury the claim tificate that was received in a reviewed," II, being Buzzard [was] 824 P.2d motor vehicle Newport collision and that Mr. at there is no indication that USAA sepsis pneumonia, died from complica- Newport's injuries believed Mr. were attrib- spine tions of a cervical fracture/dislocation. anything utable to other than the collision. Nothing deposition in Dr. Borne's attributed March, Despite authority given written the cause of death anything other than the 1994 to obtain Mr. medical rec- collision. ords, evaluate the USAA chose to claim with- May out those records on 1994. testimony %39 Nor does Dr. Borne's addition, present give 138 In the trial court facts which would rise to a correctly legitimate observed that the in Dr. information Borne's intervening assertion of cause.7 Newport 6. A talking witness to the collision states that even be- Mr. could die. with rela- car, fore he could be removed from his Mr. tives on December I was able to find out Newport "complained of his neck. He stated he that Mr. had recovered somewhat, Newport "Telephone couldn't move his neck." In a As- but was still in critical condition and in ICU in USAA, signment Confirmation" from the investi- City hospital. an Oklahoma He still had not gator perform liability is asked to a "full investi- down, regained any feeling upper in his chest gation," including paralysis "the condition of legs. and could not move his He was still able permanent may and how it be." The document to move his arms at that time. is dated 29, 1993, November more than a week physical therapy before the "event" which USAA intervening interrupts 7. An cause is one that Newport's paral- now claims to have caused Mr. breaks the connection between a defendant's act ysis. plaintiff's injury. [or omission] and a investigators's description of Mr. New- port's injury report appears in a first to USAA [Defendant's] [or act would omission] not be dated December 1993. It states: injury the direct cause of [Plaintiff's] if another Initially Newport paralysis received Mr. had event intervened between the two and that hospital from his neck down. While in the he event was: legs did recover the of his use of his arms 1. [Defendant's] [or act Independent approximately to a certain extent. On Decem- omission]; diagnosed having ber Mr. as Adequate by itself to cause [Plaintiff's] pneumonia and was in critical condition. He injury; and transported City hospital. Oklahoma reasonably 3. Not [Defen- foreseeable They also at that time that discovered he had dant]. feeling upper lost his from his chest down and (Civil) Jury Oklahoma Uniform Instructions No. Also, longer legs could no move at his all. he 9.8. hands, was still able to move his at that point they possibility were afraid of the
201 distinguish be- ed." The instruction did not event" to which "significant The result damages tween actual on the claim for UM Mr. to attribute wishes USAA benefits, punitive damages which no are actually the onset of paralysis was initial available, damages and actual on the bad- De physical therapy on paraplegia during jury faith claim. The returned a verdict of if When asked he had cember damages on the bad- 1.5 million dollars actual during the happened opinion about what punitive faith claim and 7.5 million dollars the therapy procedure that caused physical by complete pa damages. followed pain and numbness by saying he responded
ralysis, Dr. Borne polling jury the twice as to the 148 After Thus, trial court was cor no idea. had court, verdicts, objec- over the trial USAA's evidence of holding that there was no rect tion, jury puni- returned the to re-read jury. intervening to submit to the cause and, jury's damages at the tive instruction
request,
furnished new verdict forms on the
AND AWARD
III.
VERDICT
JURY
jury
compensatory damages. The
claims for
DAMAGES
OF PUNITIVE
1.5 million
returned with a verdict of
dollars
damages
as the
of
suffered as a
amount
Jury
A.
Verdict
Terry's
7.5 mil-
negligence,
result of Donovan
pres-
jury's
'
The
verdict in this matter
40
damages
on the bad-
lion dollars
actual
specifical-
not been
ents a situation which has
claim,
punitive
and 7.5 million dollars in
published opinion
in a
of an
ly addressed
damages.
judgment
The trial court entered
appellate
Did the trial
court
Oklahoma.
jury
despite
on the second
determination
by directing the
its discretion
court abuse
could
cor-
urging
USAA's
that
errors
be
rather
than
jury to reconsider
its verdict
a matter of law.
rected
the court as
of law?
correcting the verdict as a matter
rule,
general
144 As a
where the
aspects
applies to two
question
The
incomplete,
jury returns
a verdict
jury's verdict.
ambiguous,
disregard
or in
of the instrue-
¶41
jury was instructed to determine
The
tions,
jury
court should direct the
the trial
any damages
"full
sustained as
amount
jury
to the
room for further delibera
retire
The instruction
a result of the occurrence"
Draper,
P.2d
509
Stephens
tions.
v.
only
1.5 million dollars
failed to mention
(Okla.1960). Thus,
applied
this rule has been
limits,
damages,
would be
plaintiff
jurors signed a verdict for the
where
jury
The
fixed the
recoverable from USAA.
provided for
fill in the blanks
but failed to
damages resulting from the
dollar amount of
awarded,
Id. at
where
the amounts to be
in the sum of six million dollars.8
collision
by appor
jury violated its instructions
[
joint
fea-
tioning damages between two
tort
jury
on Mrs.
42 The
was also instructed
Marrow,
sors,
Ry.
punitive
City S.
Co. v.
Newport's claim for actual and
dam-
Kansas
(Okla 1958),
jury
and where the
in- P.2d 817
ages
on
bad faith. The
based
USAA's
plaintiffs
to fix the amount of
punitive damages
stated that
failed
struction on
Tully,
In Favor Of On the Issue of Amount of In the Negligence Plaintiff million $6 Terry] [of [damages collision] $1.5 million Bad Faith Plaintiff Damages $7.5 million Plaintiff Punitive following verdict: returned the returned deliberate and In Amount Favor Of On the Issue . $1.5 Negligence million Plaintiff Faith Plaintiff Bad million $7.5 Damages Punitive Plaintiff million $7.5 *12 er, jury a should not given. be directed to re- the instruction it was Under such circumstances, should not have been incomplete, deliberate unless verdict is directed to re-deliberate. The result- verdict ambiguous, disregard or in of the instruc- ing jury's from the could and instructions tions. by should have been corrected the trial court as a matter of law. The trial court abused Policy 1. Verdict on Claim for Benefits by doing not its discretion so. On remand Here, no there is indication that the trial court judgment shall enter in the jury misapprehended re instructions limits, dollars, policy amount of 1.5 million on garding damages resulting the amount of Newport's policy Mrs. claim for UM benefits. jury's from the collision or that verdict any way with it. inconsistent The 2. Verdict on Claim for Bad Faith explain policy instruction did not limits 1 46 The for damages verdict actual on the recovery against would limit USAA to 1.5 claim for bad faith should also have been nothing prevented million dollars. But punitive corrected as a matter of law. The trial giving policy court from effect to the damages instruction9 "[in stated that no judgment limits when he entered on the punitive damages event should the exceed jury's damages amount of actual verdict. The could not be reason awarded.1 ably expected legal insufficiency to cure the distinguish The did not between instruction so, punitive damages, 9. Instruction Number 43 you you to award and if do setting must use sound reason in the amount. EXEMPLARY OR PUNITIVE DAMAGES purpose punitive You should be aware that the Plaintiff, you grant If find in favor of and her damages punish, destroy, is to and not a defen- damages, you actual and if find the conduct of determining punitive dant. the amount of Defendant, United Services Automobile Associa- damages, you may following consider the factors: tion, [or amounted to}: 1. The harm that Defendant United Services Oppression; already Automobile Association's conduct has Malice; or , cause; likely caused to disregard Wanton or reckless of another's degree wrongfulness 2. The of Defendant > rights; United Services Automobile Association's con- you may, damages, then in addition to actual duct; grant punitive damages Plaintiff in such sum as long 3. How the conduct lasted and whether Defendant, you reasonably punish believe will continue; likely it is example and be an to others. 4. Whether there was other conduct, similar Oppression involves an act or failure to act so, occurred; and if how often it injures that is done in a manner which another 5. How aware Defendant United Services Au- person unnecessary by with harshness misuse or tomobile Association was of the conduct and authority power, by taking abuse of or or advan- its and whether there were at- consequences, tage of some weakness, or misfortune disability, to conceal the conduct; tempts person. of another 6. Whether Defendant United Services Auto- Malice involves hatred, ill-will, either spite, mobile Association benefitted from the con- doing wrongful intentionally or else the of a act duct, so, and it whether that benefit should be just without cause or excuse. away; taken The conduct of Defendant United Services Au- discourage 7. The need to others from similar tomobile Association was in wanton or reckless conduct; disregard rights of another's if Defendant was 8. The financial resources of Defendant Unit- aware, care, either or did not that there was a ed Services Automobile Association. unnecessary substantial and risk that its conduct punitive damages In no event should the exceed injury would cause serious to others. In order damages the amount of actual awarded. for the conduct to be in wanton or reckless disregard rights, of another's it must have been prior 10. This action was filed to the "Tort Re- unreasonable under circumstances, and also legislation August form" which took effect on high probability there must have been that the Therefore, proceeded the trial court under conduct would cause serious harm to another provides: section 9 of title 23 which person. any damages A. In for the breach of an obli- Punitive are not to be considered as action Plaintiff, compensation Newport, contract, gation Sammie arising Lou not from where the Representative as Personal guilty of the Estate of Bob- evincing defendant has been of conduct deceased, Newport, punishment D. disregard rights but as a wanton or reckless for the Defendant, another, malice, oppression, United Services Automobile Associa- fraud or actual or presumed, jury, in addition to the actual tion, and as an to others to deter them example require you may like conduct. The law damages, give damages does not for the sake of The trial its policy bene- of law. court abused discretion damages on the claim actual damages on the bad-faith and actual doing fits not so. On remand the trial court reasonably jury could not be claim. The judgment shall enter the amount of insufficiency in the expected legal to cure limits, dollars, 1.5 million on Mrs. given. it instructions was against contract claim for UM benefits USAA, dollars, jury's 1.5 million initial {47 resulting from the verdict determination, claim, on her bad-faith and 1.5 have jury's could and should instructions *13 punitive damages. million in by the trial court as a matter dollars been corrected insured, way good jury, sepa- example, by punishing the defen- faith with its the in a and of dant, exceeding proceeding jury an amount not the amount in rate conducted after- the has of Provided, however, damages finding awarded. actual made such and awarded actual dam- prior of the evidence and if at the conclusion ages, may exemplary damages award in an jury, of the case to the the to the submission greater the amount not to exceed of: find, the record and out of the court shall on ($100,- 1. One Hundred Thousand Dollars presence jury, there is clear and 000.00); or guilty convincing that the defendant is evidence damages 2. amount of the actual evincing a wanton or disre- of conduct reckless awarded. another, oppression, gard rights for the of by Category jury C. II. Where the finds clear malice, or actual or then the fraud presumed, convincing that; and evidence may give damages example, jury for the sake of intentionally 1. The has acted and defendant defendant, way by punishing the and the and of others; with malice towards damages percentage limitation on such set forth intentionally insurer and with mal- An bas - apply. in this section shall not duty fairly ice breached its to deal and act in matter, added). (emphasis In this there was no good insured, faith with its by the trial that there determination court jury, separate proceeding in a conducted the convincing "clear and evidence" of wanton or jury finding after the has made such and another, disregard rights op- for the of reckless damages, may exempla- awarded actual award malice, presumed." pression, actual or fraud or ry damages in an amount not to exceed the Thus, jury the was instructed that an award of greatest of: damages punitive exceed the amount could not ($500,- a. Five Hundred Thousand Dollars damages of actual awarded. 000.00), Legislature repealed the Oklahoma damages b. Twice the amount of actual 9 and enacted section 9.1 Subsection A section awarded, or provides following the award of the standard for by c. The financial benefit derived increased damages: punitive or insurer as a direct result the defendant obligation A. In an action for the breach of an - causing injury the conduct the to the of contract, arising jury, the in addition not from persons plaintiff and other or entities. damages, may, subject provi- to the to actual court, any shall reduce award for The trial C D B, sions and limitations in subsections and pursuant punitive damages to the awarded section, give damages for the sake of of this subparagraph paragraph provisions c of this of way example by punishing defen- and of by it finds the defendant or insurer the amount upon following factors: dant based previously paid punitive as a result of all bas public arising seriousness of the hazard to any damage verdicts entered in court misconduct; the defendant's profita- by the State of Oklahoma for the same conduct defendant; the misconduct to the bility defendant or insurer. any duration of the misconduct and conceal- jury Category D. III. Where the finds clear degree of the ment of defendant's it convincing and evidence that: and of its excessive- awareness of hazard intentionally has acted and 1. The defendant and of the defen- ness; the attitude conduct others; or with malice towards discovery upon the misconduct or haz- dant intentionally has and with mal- 2. An insurer a ard; in the case of a defendant which is duty fairly to deal and act in ice breached its corporation entity, the number and or other insured, finds, good with its and the court faith employees causing in con- level of involved or presence on the record and out of the cealing misconduct; and the financial con- beyond jury, a reason- that there is evidence the defendant. dition of that the defendant or insurer acted able doubt 9.1(A) (Supp.1995). § Okla. Stat. tit. Section engaged intentionally and with malice and specifically puni- addresses an award of 9.1 then humans, jury, B, life-threatening conduct damages against tive an insurer in subsections jury separate proceeding after the conducted C, D, and which provide: finding actual such and awarded has made Category I. Where the finds clear B. may exemplary damages damages, award convincing evidence that the defendant appropriate, any with- disregard amount the deems guilty for the has been of reckless regard to the limitations set forth in sub- out rights others, or an insurer has recklessly duty fairly disregarded sections B and C of this section. its to deal and act in Damages passion, prejudice, B. Award of Punitive the result of improper award, sympathy. The as corrected nei- puni- 48 USAA asserts that the award of unjustified ther nor excessive. unjustified. damages tive this matter was agree. This does not Court IV. ATTORNEY FEES
$49
long
This Court has
held
"(aln
implied
violation of the
insurer's
challenges
152 USAA
the trial court's
fairly
duty
good
'gives
to deal
and act in
$428,019.00 in attorney
award of
fees.
It
consequen
rise to an action in tort for which
(1)
asserts error because
the award did not
tial,
case,
proper
punitive damages
and in a
distinguish between a claim for which attor-
may
sought'" Mclaughlin
be
v. National
ney fees are recoverable and one for which
(Okla.
Co.,
Ins.
3
Benefit Life
(2)
not,
they
attorney
are
the amount of
1988)
904).
Christion,
(quoting
577 P.2d at
unjustified
fees is
and unreasonable. USAA
"[ellearly, punitive damages
ipso
But
not
do
objects
Newport's request
also
to Mrs.
*14
every
duty
facto follow from
breach of this
or
appeal-related attorney fees.
every
jury may
[in
case
a
render a
which]
wronged party."
verdict for the
Id. See also
by
158 This issue is controlled
to
Co.,
v.
42
Willis Midland Risk Ins.
F.3d
day's pronouncement
in Barnes v. Oklahoma
(10th
1994) ("Even
614-615
Cir.
where there
Co.,
Farm Bureou Mutual
Insurance
2000
support
recovery
is evidence to
of actual
(2000)
OK
151 The evidence at trial 4 55 The trial court did not err ting jury. the issue of faith to a bad There demonstrated USAA's bad faith in its han dling of the claim. Based on this was evidence of conduct USAA's from which transcripts, jury reasonably Court's review of the a exhibits could conclude that it had appeal, jury justified Newports' good and record on not handled the claim in malice, oppression, in finding fairly. or wanton or and had not dealt with them evidence, disregard Newport's rights. oppres- reckless of the From that an inference of Further, sion, malice, punitive damages, the amount disregard or wanton or reckless today which Newports' rights reasonably are limited to the amount of 1.5 could also USAA, million part justifying dollars the award of 1.5 million be found on the faith, damages punitive damages jury. dollars actual for is not submission of bad excessive, Also, grossly appear nor does it to be the trial court's refusal to bifurcate disposition attorney port's attorney appeal 11. This Court's fee motion to award fees for unnecessary issue makes it to rule on Mrs. New- related services. Co., 55, 11 Mut. Ins. 2000 OK P.3d 162 limitations it set on certain eau and the claims J., evidence, (Opala, dissenting). holdings, on the Buzzard based error. were not however, was, error in the trial
T 56 There accept the initial ver-
court's refusal it as- a matter of law. The
dict and correct on the second verdict
judgment entered remand,
is, therefore,
the trial
reversed. On
judgment
in the
to enter
court
is directed
PEALS COURT PART; AFFIRMED IN REVERSED July PART; REMANDED TO IN CAUSE TRIAL WITH COURT DIRECTIONS. HODGES, LAVENDER, KAUGER,
1 57 BOUDREAU, JJ.,
WATT, concur. WINCHESTER, J., part; in concurs part.
dissents OPALA, J. dissents.
[ SUMMERS, C.J., HARGRAVE,
V.C.J., disqualified. J.,
WINCHESTER, part; concurs part:
dissents judgment
4 1 I for UM concur
benefits, I must dissent to the award for undisputed faith. The facts of this case
bad support an award.
do not such
OPALA, J., dissenting. join pronouncement. today's
T1 I eannot unforeshadowed,
I must recede from the sua Brashier v. Farmers
sponte abandonment of Co., 1996 OK
Insurance retrospective given
whose death warrant is §§ Art 52 and OkL.
effect in violation of my explanation of For a
Const. detailed
views, Bur see Barnes v. Oklahoma Farm