THOMAS NICKERSON, Plaintiff and Appellant, v. STONEBRIDGE LIFE INSURANCE COMPANY, Defendant and Respondent.
No. S213873
Supreme Court of California
June 9, 2016
363 | 63 Cal. 4th 363
Shernoff Bidart Echeverria Bentley, William M. Shernoff, Howard S. Shernoff, Travis M. Corby; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.
The Arkin Law Firm, Sharon J. Arkin; Amy Bach; Knapp & Roberts and David L. Abney for United Policyholders as Amicus Curiae on behalf of Plaintiff and Appellant.
Baute Crochetiere & Wang, Lee Tran Liang & Wang, David P. Crochetiere, Henry C. Wang; Reed Smith, Margaret M. Grignon and Zareh A. Jaltorossian for Defendant and Respondent.
Shook, Hardy & Bacon, Mark A. Behrens, Christopher E. Appel and Kevin Underhill for American Tort Reform Association, National Association of Mutual Insurance Cоmpanies and Property Casualty Insurers Association of America as Amici Curiae on behalf of Defendant and Respondent.
Mayer Brown and Donald M. Falk for the Chamber of Commerce of the United States of America as Amicus Curiae on behalf of Defendant and Respondent.
Fred J. Hiestand for the Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Respondent.
OPINION
KRUGER, J.-The due process clause of the
The question in this сase concerns the proper calculation of the punitive-compensatory ratio when the parties have agreed to have the trial court determine a component of the plaintiff‘s compensatory damages-here, the attorney fees plaintiff was compelled to expend to obtain the insurance benefits to which he was entitled (see Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796] (Brandt))-after, rather than before, the jury has rendered its punitive damages verdict. The Court of Appeal in this case held that Brandt fees awarded in this mannеr must be excluded from the calculation in determining whether, and to what extent, the jury‘s punitive damages award exceeds constitutional limits.
We conclude that the Court of Appeal erred. In determining whether a punitive damages award is unconstitutionally excessive, Brandt fees may be included in the calculation of the ratio of punitive to compensatory damages, regardless of whether the fees are awarded by the trier of fact as part of its verdict or are determined by the trial court after the verdict has been rendered. We therefore reverse the judgment of the Court of Appeal.
I.
On February 11, 2008, plaintiff Thomas Nickerson, who is paralyzed from the chest down, broke his leg when he fell from the wheelchair lift on his van. He was taken to the Department of Veterans Affairs hospital in Long Beach, where, as a veteran, he was entitled to medical care at no cost. After being treated in the emergency room, Nickerson was admitted to the hospital and placed in a unit equipped to treat paraplegics and quadriрlegics. Doctors applied a full-leg splint, having determined that Nickerson had suffered a comminuted displaced fracture of his right tibia and fibula, meaning that the bones had broken into several pieces that did not line up with one another. Nickerson thereafter experienced several complications from the injury.
After spending several weeks confined to a hospital bed, Nickerson was permitted to move to his wheelchair on March 24, 2008, but could tolerate sitting in the wheelchair for only limited periods of time. On Mаy 19, 2008, Nickerson‘s treating physician determined that he was stable and would have been ready to return home except that he was unable to maneuver through his home without a particular part needed for his wheelchair. Nickerson was ultimately discharged from the hospital on May 30, 2008, after obtaining the needed part. He had been hospitalized for 109 days total.
Following his discharge from the hospital, Nickerson sought benefits from defendant Stonebridge Life Insurance Company (Stonebridge) under an indemnity benefit policy that promisеd, as relevant here, to pay him $350 per day for each day he was confined in a hospital for the necessary care and
Nickerson filed the present suit. He alleged that Stonebridge breached the insurance contract by failing to pay him benefits for the full 109 days of his hospital stay and that Stonebridge breached the implied covenant of good faith and fair dealing by acting unreasonably and in bad faith in denying him his full policy benefits. The parties stipulated before trial that if Nickerson succeeded on his complaint, the trial court cоuld determine the amount of attorney fees to which Nickerson was entitled under Brandt, supra, 37 Cal.3d 813, as compensation for having to retain counsel to obtain the policy benefits. At trial, neither party presented to the jury evidence concerning the claim for, or amount of, Brandt fees.
At the close of Nickerson‘s case, the trial court granted Nickerson‘s motion for a directed verdict on the breach of contract cause of action and awarded him $31,500 in unpaid policy benefits. With respect to the bad faith cause of aсtion, the jury returned a special verdict finding that Stonebridge‘s failure to pay policy benefits was unreasonable and awarded Nickerson $35,000 in damages for emotional distress. The jury also found Stonebridge had “engage[d] in the conduct with fraud” and awarded $19 million in punitive damages. (See
Stonebridge moved for a new trial seeking a reduction in the punitive damages award, which it argued was constitutionally excessive. The trial court agreed and granted Stonebridge a new trial unless Nickerson consented to a reduction of the punitive damages award to $350,000.1 The trial court
Nickerson rejected the reduction in punitive damages and appealed the order granting a nеw trial. (See
The dissenting opinion, by contrast, took the view that the award of punitive damages did not satisfy the state law requirements for such an award. (See
We granted review, limited to the following question: “Is an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 [210 Cal.Rptr. 211, 693 P.2d 796], properly included as compensatory damages where the fees are awarded by the jury, but excluded from compensatory damages when they are awarded by the trial court after the jury has rendered its verdict?”
II.
A.
In our judicial system, “[a]lthough compensatory damages and punitive damages are typically awarded at the same time by the same decision-maker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant‘s wrongful conduct. [Citations.] The latter ... operate as ‘private fines’ intended to punish the defendаnt and to deter future wrongdoing.” (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 432 [149 L.Ed.2d 674, 121 S.Ct. 1678] (Cooper Industries).)
“‘Punitive damages have long been a part of traditional state tort law‘” (Pacific Mutual Life Insurance Co. v. Haslip (1991) 499 U.S. 1, 15 [113 L.Ed.2d 1, 111 S.Ct. 1032] (Haslip)), and the states have “broad discretion” with respect to their imposition (Cooper Industries, supra, 532 U.S. at p. 433). But because a state‘s system for awarding punitive damages may “deprive a defendant of ‘fair notice ... of the severity of the penalty that a State may impose‘” and “threaten ‘arbitrary punishments,‘” the United States Supreme Court “has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as ‘grossly excessive.‘” (Philip Morris USA v. Williams (2007) 549 U.S. 346, 352-353 [166 L.Ed.2d 940, 127 S.Ct. 1057] (Williams).)
The court has concluded that the due process clause of the
In a series of cases culminating in Gore, supra, 517 U.S. 559, the court developed a set of substantivе guideposts that reviewing courts must
Primarily at issue in this case is the second of the Gore guideposts, the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award. As the United States Supreme Court has explained, “[t]he principle that exemplary damages must bear a ‘reasonable relationship’ to compensatory damages has a long pedigree.” (Gore, supra, 517 U.S. at p. 580.) The court cited “a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish.” (State Farm, supra, 538 U.S. at p. 425, citing Gore, supra, 517 U.S. at p. 581.) Although it has declined to “impose a bright-line ratiо which a punitive damages award cannot exceed,” the court, guided by this history, has concluded that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” (Id. at p. 425.) Following the high court‘s guidance, we have explained that “ratios between the punitive damages award and the plaintiff‘s actual or potential compensatory damages significantly greater than 9 or 10 to 1 are suspect and, absent special justification ... cannot survive appellate scrutiny under the due process clause.” (Simon, supra, 35 Cal.4th at p. 1182.)
B.
The controversy between the parties in this case stems from a trial court‘s postverdict award of Brandt fees to the prevailing plaintiff. In Brandt, we held that when an insurance company withholds policy benefits in bad faith, attorney fees reasonably incurred to compel payment of the benefits are recoverable as an element of the plaintiff‘s damages. (Brandt, supra, 37 Cal.3d at p. 815.) We explained that when an insurer breaches the implied covenant of good faith and fair dealing by failing to compensate the insured for a loss covered by the policy, “‘the insurer is “liable for any damages which are the proximate result of that breach.” [Citation.]’ [Citation.]” (Id. at p. 817.) “When an insurer‘s tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney‘s fees are an economic loss-damages-proximately caused by the tort.” (Ibid.) We distinguished the recovery of these fees “from recovery of attorney‘s fees qua
Because “the attorney‘s fees are recoverable as damages, the determination of the recoverable fees must be made by the trier of fact unless the parties stipulate otherwise.” (Brandt, supra, 37 Cal.3d at p. 819, citing Dinkins v. American National Ins. Co. (1979) 92 Cal.App.3d 222, 234 [154 Cal.Rptr. 775].) But we noted that “[a] stipulation for a postjudgment allocation and award by the trial court would normally be preferable since the determination then would be made after completion of the legal services [citation], and proof that otherwise would have been presented to the jury could be simplified because of the court‘s expertise in evaluating legal services.” (Brandt, supra, 37 Cal.3d at pp. 819-820.) Consistent with that suggestion, the trial court in this case accepted the parties’ pretrial stipulation that if Nickerson were to succeed on his bаd faith claim against Stonebridge, the court would determine the amount of attorney fees to which Nickerson was entitled under Brandt. After trial, the parties stipulated that the amount of attorney fees to which Nickerson was entitled was $12,500, and the court awarded that amount. The question is whether this amount may be included in the calculation of the ratio of punitive damages to compensatory damages for the purpose of determining whether, and by what amount, the jury‘s $19 million punitive damages award exceeds constitutional limits.
III.
Nickerson argues, and Stonebridge does not dispute, that Brandt fees ordinarily qualify as compensatory damages for purposes of applying the second Gore guidepost. We agree. That conclusion follows from Brandt itself, which held that such fees are recoverable precisely because they “are an economic loss-damages-proximately caused by the tort ... in the same way that medical fees would be part of the damages in a personal injury action.” (Brandt, supra, 37 Cal.3d at p. 817; see Major v. Western Home Ins. Co., supra, 169 Cal.App.4th at p. 1224 [“[T]he amount of the jury‘s award of Brandt fees ... may be properly considered ... in determining if the ratio of punitive damages to the tort damages award is excessive.“].)
Stonebridge counters, however, that whеn a trial court determines Brandt fees after the jury has already rendered its punitive damages verdict, the fees may not be considered in calculating the punitive-compensatory ratio. Stonebridge reasons that the purpose of the three-factor analysis set out in Gore is to permit courts to identify punitive damages awards that are tainted by irrational or arbitrary jury decisionmaking, and “[o]nly evidence that was
To the extent Stonebridge is concerned about the jury‘s ability to render a rational punitive damages verdict without having heard evidence of the Brandt fees, the rule Stonebridge urges us to adopt seems a rather roundabout way of getting at the problem. But although Stonebridge does raise a more direct argument that the jury‘s verdict was invalid from the moment it was rendered because the jury was unawаre of a substantial component of the harm that plaintiff had suffered, Stonebridge gives this argument little more than a passing nod. That is presumably because Stonebridge itself invited this state of affairs when it stipulated to a postverdict determination of Brandt fees and raised no objection to the jury returning a punitive damages verdict in the absence of evidence about the fees. Having thus consented to, or at least acquiesced in, this procedure, Stonebridge has forfeited any argument that the procedure itself was legаlly impermissible. Stonebridge is now left in the position of arguing that the procedure nevertheless caused the jury to act irrationally, and that it is the duty of the reviewing courts to suss out that irrationality in applying the second Gore guidepost.
Whatever the merits of the underlying premise of the argument, the argument fails because it misconceives the nature of the Gore inquiry. As noted, the due process clause imposes both procedural and substantive limitations to curb arbitrary punitive damages awards. (Williams, supra, 549 U.S. at pp. 352-353.) Relevant procedural limitations include certain constraints on the jury‘s decisionmaking process. For example, the jury must be adequately informed of the nature and purposes of punitive damages in order to “reasonably accommodate[]” the defendant‘s “interest in rational decisionmaking.” (Haslip, supra, 499 U.S. at p. 20.) Stonebridge relies heavily on these and other similar references to rational jury decisionmaking in arguing that application of the second Gore guidepost must be limited to facts that were before the jury when it rendered its verdict. (See, e.g., Adams v. Murakami (1991) 54 Cal.3d 105, 109, 114 [284 Cal.Rptr. 318, 813 P.2d 1348] [holding, as a matter of state law, that evidence of a defendant‘s financial condition is a prerequisite to an award of punitive damages, and that such evidence must appear in the record on appellate review, because, among other things, “absent financial evidence, a jury will be encouraged (indeed, required) to speculate as to a defendant‘s net worth in seeking to return a verdict that will appropriately punish the defendant“].)
But Gore is a fundamentally different type of safeguard. Although the Gore inquiry, too, serves to prevent arbitrary punitivе damages awards, it
Although the Gore guideрosts overlap to some extent with questions juries are generally asked to consider in fixing punitive damages awards, the question for courts applying the guideposts is not whether the jury‘s “verdict is unreasonable based on the facts.” (Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 214 [40 Cal.Rptr.3d 92].) Rather, as in other contexts in which courts review civil and criminal sanctions for constitutional excessiveness, courts applying the Gore guideposts make an independent determination whether the amount of the award exceeds the state‘s power to punish. (Ibid.; see Cooper Industries, supra, 532 U.S. at pp. 433-440, citing cases.) Should a reviewing court conclude that the jury‘s punitive damages award is excessive, the remedy is not to set the award aside as the court would if it determined that the jury‘s decisionmaking process was tainted by bias or prejudice (see, e.g., Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110 [95 Cal.Rptr. 516, 485 P.2d 1132]) or by confusion about the question to be answered (see, e.g., Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 465 [113 Cal.Rptr. 416]) but to reduce the award to constitutional limits (Simon, supra, 35 Cal.4th at p. 1187).
Because the Gore guideposts are designed to govern postverdict judicial review of the amount of a jury‘s award, not the adequacy of the jury‘s deliberative process, there is no apparent reason why a court applying the second guidepost may not consider a postverdict compensatory damages award in its constitutional calculus. Indeed, in Gore itself, the United States Supreme Court‘s application of the guideposts touched on matters of which the jury could not have been aware when it rendered its punitive damages verdict. (See Gore, supra, 517 U.S. at p. 579, fn. 31 [noting the defendant‘s postverdict conduct in evaluating the reprehensibility of the defendant‘s actions under the first guidepost].) And as Stonebridge itself conceded in its brief, the third guidepost, concerning available sanctions for compаrable misconduct, is by its nature a question aimed at reviewing courts, rather than juries. (See Cooper Industries, supra, 532 U.S. at p. 440 [the third guidepost “calls for a broad legal comparison” suited to the expertise of appellate courts]; cf. Gore, supra, 517 U.S. at pp. 583-584 [reviewing the civil penalties available under the consumer protection laws of several states before concluding that the punitive damages award at issue was “substantially greater than the statutory fines available in Alabama and elsewhere for similar
It is true, as Stonebridge notes, that the comparison between compensatory and punitive damages requires evidence of those damages, whereas the legal comparison required under the third guidepost is not “an evidentiary matter.” It is also true, as Stonebridge notes, that appellate courts applying the Gore guideposts must defer to evidentiary findings made by the trier of fact. (See Cooper Industries, supra, 532 U.S. at p. 440, fn. 14.) Indeed, aрpellate courts performing any appellate function must defer to evidentiary findings made by the trier of fact; such is the nature of appellate review. (See, e.g., People v. Cromer (2001) 24 Cal.4th 889, 893-894 [103 Cal.Rptr.2d 23, 15 P.3d 243].) But it does not follow, as Stonebridge appears to reason, that Gore limits an appellate court to considering facts considered by juries in applying the second guidepost. Indeed, as Stonebridge acknowledges, our decision in Simon, supra, 35 Cal.4th at page 1173, recognized that a reviewing court applying the second Gore guidepost may consider not only the compensatory damages actually awarded by the jury, but also the “potential harm” suffered by the plaintiff, even though the jury was never asked to consider potential harm in rendering its verdict. It may be true, as Stonebridge says, that a reviewing court‘s consideration of potential harm will ordinarily be based on evidence presented to the jury at trial. But it is not clear why judicial review should be more constrained where, as here, the parties have agreed to submit an element of the plaintiff‘s harm to the trial court for resolution. An appellate court that takes the resulting trial court determinаtion into account does not transgress the normal appellate role; rather, it properly defers to findings made by the trier of fact designated by the parties to resolve the issue.
We acknowledge Stonebridge‘s concerns about the effect of the jury‘s ignorance of the Brandt fees on the course of the punitive damages proceedings. Of course, had the jury heard evidence that Nickerson suffered even more harm than it had previously thought, the jury might well have decided to punish Stonebridge even more harshly. On the other hand, as Stonebridge says, presentation of evidence concerning the Brandt fees could have enabled counsel to argue that the Brandt fees, too, would have a deterrent effect on future misconduct, and to make a pitch to reduce the punitive damages award accordingly. In the end, this is the bargain Stonebridge made when it stipulated to posttrial determination of the Brandt fees, then raised no objection to submitting the punitive damages issue to the jury in the absence of evidence relating to the fees. Stonebridge cannot now attempt to leverage that bargain into a truncated application of the Gore guideposts.
In sum, we find no reason to exclude the amount of Brandt fees from the constitutional calculus merely because they were determined, pursuant to the parties’ stipulation, by the trial court after the jury rendered its punitive damages verdict. On the contrary, to exclude the fees from consideration would mean overlooking a substantial and mutually acknowledged component of the insured‘s harm. The effect would be to skew the proper calculation of the punitive-compensatory ratio, and thus to impair reviewing courts’ full consideration of whether, and to what extent, the punitive damages award exceeds constitutional bounds.2
IV.
The judgment of the Court of Appeal is reversed and the matter is remanded to the Court of Appeal for further proceedings consistent with this decision.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., and Cuéllar, J., concurred.