*1 AUTOMOBILE FARM MUTUAL STATE COMPANY, a Mutual
INSURANCE (Defendant), Appellant Company, Shrader, Terry R. SHRADER Donna (Plaintiffs). Appellees Shrader, Terry R. Donna SHRADER (Plaintiffs), Appellants AUTOMOBILE FARM MUTUAL STATE COMPANY, Mutual INSURANCE (Defendant). Appellee Company, 93-26, 93-27. Nos. Wyoming. Supreme Court Sept. *3 support did not the ver-
ruled the evidence misconduct; there- of willful and wanton dict fore, punitive no were available. remand for a new trial on We reverse and all issues.
I.ISSUES 93-26, Appeal appellant, No. Compa-
Farm Mutual Automobile Insurance ny, numerous claims of error: states *4 reasonably an entitled to 1. Is insurer pursue respecting a the amount debate legally entitled to damages the insured is motorist, an when recover from uninsured damages amount of has not been deter- mined, exposure vio- without to a claim of and fair lation of the dealing?
2. Does the insured have the burden proving motorist was unin- sured, legally damage to the in- liable for sured, liability? of this and the amount Lynne and A. Lawrence A. Yonkee Collins motorist 3. Does a claim for uninsured Sheridan, Toner, for of Yonkee & become ex contractu and thus benefits Auto. Ins. Mut. Co. payable after the extent Hughes & Dum- Douglas R. Dumbrill of the uninsured motorist recoverable from brill, Sundance, R. and for Donna Shrader has been determined? Terry Shrader. Wyoming an insured 4. Under law can Powers, Cop- A. George E. and John Jr. bring against the insurer to a direct action Sundahl, Cheyenne, pede Godfrey & in- adjudicate the amount of Exchange. Ins. amicus curiae Farmers legally entitled to collect from sured vehicle? driver of an uninsured CARDINE,* MACY,** THOMAS, Before attorney 5. fees and interest be Can JJ., ROONEY, TAYLOR, and Ret.J. and 26-15-124(c) § recovered under W.S. pay fairly debata- TAYLOR, an insurer’s refusal Justice. ble claim? jury’s appeals These consolidated follow deny- 6. Did the District Court err a contract of verdict that an insurer breached ing Appellant’s motion under W.R.C.P. insurance, implied covenant breached 42(b) separate Appellee’s trial of Rule for a dealing and breached injuries arising of the auto- claim for out statutory jury found the duties. The also mobile accident? engaged insurer had and wanton willful ease is it delaying payment of the in- 7. In an uninsured motorist misconduct in litigate in the same following permissible an acci- sured’s claim for benefits insurer, trial, objection over the dent caused an uninsured motorist. respecting negligence errors of law and issues insurer contends numerous motorist; the amount insureds procedure require reversal. uninsured occurred which cross-appeal legally entitled to recover from brings The insured to chal- were motorist; alleged bad faith re- lenge granted in favor of uninsured directed verdict claims; motorist court fusal to settle uninsured the insurer on one issue. The district * ** argument. July Chief Justice at time of oral Retired 1994. pay question case with whether State Farm alleged refusal unreasonable claim; statutory duty by its unreason- elements breached motorist pay ably refusing and damages insureds sustained without cause and amount faith; and, alleged full of the loss covered as a result of bad amount justify would an award wrongdoing policy? which exemplary damages? punitive err 16. Did the District Court of this 8. the circumstances Under awarding prejudgment beginning interest case, the jury to instruct it error 1989? December dealing obligations good faith and fair Did Court err 17. the District decency hu- encompass qualities of awarding. attorney greater than the fees responsibilities in the of a
manity inherent Appellees agreed pay pursuant amount hold fiduciary; insurers themselves contingent agreement? to a fee fiduciaries, etc.? out as Appellees, Terry R. Donna Shrader defining No. 28 9. Instruction Was Shrader, Appeal summarize the issues No. inconsistent, dealing good faith and fair 93-26: confusing in misleading relation to oth- by the given 1.) court? er instructions public policy Wyoming Given 31-10-101, In- must insureds District Court err in Statute Did the *5 concerning under motorist reduce the role of uninsured No. 25 struction faith, they claim before can their to investigation in insurer because proceed against company their insurance that lack investi- principle it omitted the for its breach of contract and bad faith? gation more is not sufficient basis without had recovery for if the insurer a reason- 2.) Does of the tort of the commission deny delay payment; and able to or basis McCullough carry in recognized bad faith exists, if there is no faith? such bad basis generally responsibility as- give 11. it error to Instruction No. Was Wyoming? for conduct sessed tortuous duty of an concerning insurer 3.) Are uninsured motorist carriers enti- make of all benefits and cover- disclosure special procedural privileges tled bad age provided by applicable policy faith cases? the disclosure duties set reason 4.) given jury Did instructions too are broad and out in the instruction Farm prejudice rights of State contrary the rule contained in Darlow? the law? Appellant had re- 12. neither Where 5.) its discre- Did the trial court abuse nor made subse- pay fused to a claim attorney’s assessing fees tion costs quent it error to payment, was instruct against State Farm? jury: showing of an “Only a initial bad claim, showing pay refusal 93-27, Appeal appellants, Donna R. No. nonpayment, required of its ultimate Shrader, Terry one issue: state Shrader the breach element of of first bad jury verdict When faith?” evidence supported faith is substantial in- District Court err in 13. Did the intentional, was dishon- and that bad faith jury on the elements of loss structing the est, institutionalized, the trial should life, emotional enjoyment distress disregard that same court allowed anguish as recoverable mental jury’s and wanton miscon- verdict of willful bad faith? duct. er- 14. the District Court commit Did Appellee, Farm Mutual Automobile State jury on the by refusing ror to instruct Company, rephrases: Insurance concerning § 26-15-124 full W.S. text of failure 45-day rule and unreasonable jury’s finding that the Shraders Was the pay damages unsup- a claim? punitive were entitled to evidence, such ported substantial give special ver- it error Was correctly granted Appel- District Court the circumstances of this dict form under bodily in- ver- uninsured motor vehicle. motion for directed lee Farm’s State jury accident aris- punitive damages? [an] must be caused dict on the issue ing operation, maintenance or out 93-27, curiae, amicus Farm- Appeal No. use of an uninsured motor vehicle. Exchange, finds three issues: Insurance ers (Emphasis original.) limited properly court deter- the district 1. Did involving coverage for accidents an uninsured adduced at trial mine that the evidence $50,- $25,000.00 per person and motorist to finding of willful and [a] would not sustain per 000.00 accident. punitive an award of wanton misconduct or Representative Kevin Farm Claim damages. (Holt) investigated He Holt the accident. have a valid cause 2. Did the Plaintiffs youth sixteen-year-old determined that or should their of action for bad faith driving an vehicle. Holt also uninsured to an action for have been limited claims concluded that the uninsured motorist had benefits, thereby making any contractual Despite stop stop sign. at the his failed to damages moot as a mat- punitive claim for findings, initially assigned Holt between zero ter of law. percent fault for the accident to to ten court commit error 3. Did the district and her husband Shrader. Holt told Shrader that insurers when it instructed Shraders) Terry (collectively Shrader and does this error com- are “fiduciaries” policy provided their faith, finding promise jury’s of bad coverage, coverage pay- motorist for medical rendering jury’s finding of thereby towing charges. ments and for erroneous willful and wanton misconduct $5,326.39 eventually paid un- medical bills as well. payment provisions of the der the medical policy. II. FACTS 21,1989, On December State Farm offered 18, 1989, *6 September Donna Shrader On uninsured motorist to settle the Shraders’ (Shrader) through drove an intersection $9,400.00. claims for The settlement offer Newcastle, Wyoming as “thrill hill.” known payments. was in addition to the medical time, youth sixteen-year-old At the same a rejected the offer and demand- The Shraders through inter- driving a truck careened policy ed the limits. After the Shraders ignoring stop sign. a The truck hit section attorney, Farm hired an State increased car broadside. Shrader’s $3,500.00. In the revised settlement offer injuries pel- a included fractured Shrader’s offer, Faim admitted that while Shrad- State
vis, clavicle, a fractured abrasions and a he- injuries healing, er’s were she would suffer spent ten matoma on her forehead. She pelvic pain long on a term mild residual days hospital another seven weeks and again rejected basis. The Shraders the offer injuries. recovering from her on crutches rejected non-mandatory and arbitration to January returned to work of 1990. Shrader liability. determine the uninsured motorist’s However, job quit May her Shrader negotiations Septem- continued until Various partly pain the constant and because of ber of 1990 when the Shraders demanded injuries. fatigue from her $24,900.00 attorney’s support To and fees. youth sixteen-year-old The was an unin- claim, provided their the Shraders a detailed Shrader, however, in- sured motorist. was including: accounting damages, medical Automobile In- sured State Farm Mutual costs; earnings; past pain, future and loss (State Farm). Company surance Shrader’s distress; disability suffering and emotional provision policy with State Farm included a life; enjoyment and and loss of requiring coverage of claims for as a benefits $197,- to their car. The estimated total was mo- result of accident with uninsured $20,- for and 840.49 Shrader torist. damages for 000.00 in loss of consortium bodily responded pay damages Terry State Farm
[State Farm] will for Shrader. $13,- injury legally a counter-offer to settle the claim for an insured is entitled to collect from the or of an owner driver 000.00. result, sought a Farm filed a determined. As the Shraders October seeking damages separate liability trial to determine
complaint in district court
contract;
Farm
breach
the uninsured motorist. State Farm also
from State
that,
implied
argued
proceedings
were
covenant
unless
bifur-
breach
duty;
statutory
cated,
dealing;
prejudiced
liability
breach of
in the
and
would be
investi-
breach of the insurer’s
proceeding
the introduction
evidence of
alleged
gate the
The
also
claim.
Shraders
insurance and settlement
information. The
they
attorney’s
fees
had a
recover
A single
motion.
district court denied the
26-15-124(c)
Wyo.Stat.
under
interest
was
on all
trial
held
issues.
jury
special
finding
The
returned
verdict
answer,
In its
Farm admitted that
liability
that the uninsured motorist’s
for the
proximate
damages the
cause of the
$70,000.00.
damages caused to
was
Shrader
negligence
was
of an
suffered
jury
that
also found
the uninsured mo-
Farm also admit-
uninsured motorist. State
liability
torist’s
for loss of consortium dam-
insurer,
that
State Farm
ted
as the Shraders’
by Terry
ages
suffered
Shrader was
obligation
its
but
had a
$9,500.00.
jury
that State Farm
found
liabili-
that a determination
maintained
tortiously
implied covenant
had
breached the
ty
of the uninsured motorist was
“condition
result,
dealing.
As a
precedent” to
direct action
jury determined that the
Shraders should
no
Farm
insurer. State
averred
since
$25,000.00
receive
for the breach of the
each
lia-
determination of
uninsured motorist’s
implied
jury
covenant.
found that State
made,
bility had been
the Shraders’ direct
duty by
statutory
its
unrea-
Farm breached
premature.
action was
refusing
sonably
pay
without cause
full amount of covered loss under the
During discovery,
mo-
State Farm filed a
addition,
policy.
found that State
summary
arguing again
judgment
tion for
engaged
had
willful
wanton
motor-
determination
misconduct,
punitive damages
so
could
precedent” to
liability
a “condition
ist’s
be awarded.
insur-
maintaining a direct action
that until the
er. State Farm contended
verdict,
Following
renewed
made,
had been
determination
or a
a motion
a directed verdict
an action for
Shraders could
maintain
notwithstanding the verdict. State Farm ar-
implied
breach
contract
breach
insufficient
gued that there was
evidence
*7
dealing.
fair
covenant of
faith and
support
finding
a
of willful and wanton mis-
until
Farm also asserted that
the liabil-
agreed and
conduct. The district court
ity
deter-
of the uninsured motorist was
Therefore,
granted a directed verdict.
no
mined,
amount of
due to
damages were
punitive
awarded.
fairly
preclud-
remained
debatable
judgment,
the district court
In its final
recovery
implied
ing a
for
of the
breach
$25,-
damages of
awarded the Shraders:
mo-
covenant. The district court denied the
$2,016.00
minus
for breach of contract
000.00
summary judgment.
district
tion for
$50,000.00
totaling
paid; damages
previously
negligence
since
of the
court ruled that
implied
of the
covenant of
for breach
“so clear in this
uninsured motorist was
costs,
dealing;
attorney
fair
faith and
case,”
liability
argument
Farm’s
that
$49,779.48
totalling
fees and interest
prior to
ac-
must be
direct
determined
statutory
duties.
breach
against
“untenable.”
tion
the insurer was
The district court also denied State
.
III. DISCUSSION
to reconsider.
motion
appeals follow the en-
then
a motion to
These consolidated
State Farm
filed
bifurcate
special
judgment and a
again
try
main-
of a
verdict and
proceedings. State Farm
Farm does not chal-
bring a
directed verdict. State
tained that an insured could not
admissibility
lenge the
of the evidence or
insurer until the
direct action
support
sufficiency
of the evidence
liability
motorist had been
of the uninsured
820
cases).
(1967)
Therefore,
(collecting
judgment.
special verdict and Appeal summary judgment 93-26 are be- dispositive No. The denial of the issues comes, effect, in rul- challenge: except errors of law those which moot rare cases. court; Sears, Co., the fairness ings of the district Roebuck 839 F.2d E.E.O.C. v. & trial; (7th or the errors of law procedure Cir.1988); used at 302, 353 n. 55 Fleitz v. Van given instructions Westrienen, 246, 430, contained in the 114 Ariz. 560 P.2d jury. (1977). is- presentation of the numerous convincing policy sup- reasons to We find however, sues, parties generally have port this view: points law which are failed to discuss judgment in The final a case can be tested ,to court and the outcome of critical to this trial, upon not the the record made C.I.R., Fox v. 718 F.2d many appeals. See summary judg- record made at the time Cir.1983). (7th 251, standards Any rulings legal ment was denied. made proceed- utilized to test the appellate review judg- affecting the trial court that final disregarded. ings in district court were See light ment can be reviewed at that time 7.01(f). Therefore, we find nec-
W.R.A.P. prevent full record. This will in a different essary to address the issues ease, litigant after a full and who loses parties. progression than stated trial, having appellate go court litigant had back to the time when Summary Judgment A. Denial of summary judgment moved for to view the begin with the contention strengths relative and weaknesses of the denying district court erred State Farm’s litigants stage. at that earlier we to Were partial summary judg- pretrial motion otherwise, hold one who had sustained his argument. ment. We need not consider hearing position after a fair of the whole lose, might he summary case nevertheless because of a motion for The denial prove fully had failed to his case on an appealable is not an order. St. interlocutory Albany motion. Ins. Paul Fire and Marine Co. 1, 1255, County 763 P.2d School Dist. No. Jensen, Evans v. Idaho Kimbley City (Wyo.1988); Green (1982). 454, 459 Accord Home Indem. Co. v.
River,
(Wyo.1988); Boyles
Co.,
Reynolds
Ill.App.2d
&
Galvanizing
Plating
&
Co. v.
Acc.
Hartford
N.E.2d
(10th
& Indem.
372 F.2d
Cir
Against
B. Direct Action
The Insurer
.1967).
summary judg
a motion for
When
denied,
interlocutory
ment
order is
court
contends that the district
gen
court rules that
issued after the district
by permitting
committed an error of law
disputed
of material fact are
uine issues
prior
direct action
an insurer
to a
moving party
judg
is not entitled to
determination
the uninsured
56(c).
ment as a matter of law. W.R.C.P.
position
motorist. State Farm takes the
*8
Generally, interlocutory
ap
are not
orders
degree
until the
establish the
Shraders
54(b).
pealable. W.R.C.P.
The unresolved
damages
by
fault and the amount of
caused
presented
summary
in a motion for
issues
motorist,
the uninsured
the
are not
merge
judgment which is denied
with the
legally
damages
entitled to recover
under the
subject
appeal.
to
final
which is
policy. Accordingly,
argues
Farm
no
State
University,
Morgan v. American
534 A.2d
against
permitted
direct action
State Farm is
323,
However,
(D.C.App.1987).
in
even
precedent”
satisfied.
until this “condition
is
appeal
judgment,
pre-trial
a final
an
the
disagree.
We
summary judgment
of a
denial
motion
is
Leasing
to
generally
reviewed.
This court accords no deference
All-States
by
court’s rul
Empire
Corp.,
Co. v.
Land
31 Or.
and is not bound
the district
Pacific
(1977).
733,
192,
App.
ings
R.F.
on issues of law. True Oil Co. v. Sin
571 P.2d
See
Chase, Annotation,
Corp.,
(Wyo.
Reviewability
Order
clair Oil
771 P.2d
788-89
1989).
arguments required
Denying
Summary Judgment,
Farm’s
the
Motion For
State
insurance,
language
signed
protection, by
the
the
to furnish
interpret
court to
district
parties’ agreement,
policy.
the insurance
the victims of uninsured motorists.
Therefore,
Ass’n,
reviewing
district court’s
Grange
in
the
Ramsour
Ins.
541 P.2d
action, this
permit a
court
(Wyo.1975).
coverage
decision to
direct
Uninsured motorist
rules of contract
apply
will
our established
compliments
legisla
responsibility
financial
the
language
to
interpretation
the
tion,
§§
Wyo.Stat.
to 31-9-414
31-9-101
ap-
review of
policy.
complete
Farm
A
the
(1994),
coverage
by providing
to innocent
plicable
is
in Doctors’
rules
contained
Co.
persons
damages
who suffer
because
the
America)
Corp.
864 P.2d
Insurance
wrongful conduct of uninsured motorists who
1023-27
and,
financially responsible
therefore,
are not
respond
damages.
cannot
be made
considering
specific language
the
Before
Ratzlaff, 211 Kan.
Winner v.
however,
policy,
the
we must
This
court has determined
statutory requirements
examine
provisions
Wyoming
Unin
place
on
public
limitations
sured
Act are remedial
nature
that,
Motorist
argues
coverage.
motorist
language
liberally
ambiguous
should be
law,
Wyoming
fault of the unin-
under
in favor of
insured with strict
construed
and the amount of
sured motorist
given
to exclusions.
narrow construction
to collect cannot be
insured
entitled
Ramsour,
38;
12A Ronald A.
against
in a
action
direct
determined
Anderson,
Cyclopedia
disagree.
Insurance
Couch
insurer. We
of
1981).
(2nd
Law, § 45:625 at 39
ed.
Wyoming,
legislature
has man
availability
of uninsured motorist
dated
language Wyo.Stat.
find
do not
coverage:
prevent
31-10-101 which would
direct
resulting
policy insuring against loss
No
against an insurer
action
the insured
liability imposed by
bodily
law for
from
motorist bene
recover a claim for uninsured
by any
injury or death suffered
natural
language
Conversely,
fits.
we do not find
ownership,
arising
main-
person
out of the
require
Wyo.Stat. § 31-10-101 which would
vehicle
tenance or use
a motor
shall be
against the unin
a tort action
the insured
delivery
or issued for
in this
delivered
precedent”
as a “condition
sured motorist
respect
any motor
vehicle
state with
A funda
against
insurer.
direct action
garaged in
registered
principally
or
statutory construction states
mental rule of
coverage
provided
unless
therein
state
result,
apparent, is
“an
whenever
absurd
thereto, in limits-
supplemental
for bodi-
or
Cur
Chemical Co. v.
be avoided.” Stauffer
injury
provided
ly
or death as
W.S. 31-
1083, 1093(Wyo.1989). It
ry, 778
would
9-102(a)(xi),
approved by
provisions
insured,
if
result
denied
create an absurd
protec-
for the
insurance commissioner
motorist cover
protection of uninsured
thereunder
le-
persons
insured
or
tion
that man
age,
prohibited
the statute
from
gally entitled
recover
judicial
seeking
relief in
coverage
dates
operators
uninsured motor
or
owners
If
against
insurer.
a direct action
injury,
bodily
sickness
because of
vehicles
legislature
had intended to restrict
disease,
resulting
including death
there-
to con
of a
to the insurance contract
may reject the
The named insured
from.
by requiring a tort
test a claim for benefits
coverage.
named
re-
Unless the
insured
prior
motorist
action
the uninsured
writing,
quests
cover-
insurer,
instituting a direct
supplemen-
provided in or
age need not be
Wyoming
in the
explicit language
Uninsured
*9
the named
policy
to a renewal
where
tal
Winner,
required.
Motorist Act would
coverage
rejected
in con-
had
insured
v. Le
Insurer
Uninsured
are
uninsured motorist
determined. Govern
(1976
Supp.1994) (collecting
A.L.R.3d 632
&
(Geico) Lichte,
Employees
ment
Ins. Co.
eases).
presume
legisla
when
(Tex.App.1990).
792 S.W.2d
statute,
full
ture enacts a
is done with
knowledge
existing
condition of the
commentary
Authoritative
notes the
also
part
general
of a
and uniform general acceptance
right
law and
of the insured
system jurisprudence.
Parker Land and
bring
against
direct action
the insurer to
Wyoming
Co. v.
Game and Fish
Cattle
litigate
disputed
claim for
benefits
Com’n,
1040, 1044(Wyo.1993).
coverage:
uninsured motorist
Wyo.Stat. §
language of
31-10-101 is sub
states,
In a
an
few
whether
insured is
stantially
legislative
similar to
enactments of
entitled to secure indemnification under
states,
Kansas,
thirty-five
including:
other
the uninsured motorist insurance without
(1993); Oklahoma,
§ 40-284
Okla.
K.S.A.
bringing
against
first
an action
the unin-
(West
36, §
Cum.Supp.
Stat.Ann. tit.
sured motorist continues to be raised as an
1994);
Texas,
Ann. art.
Tex.Ins.Code
adju-
legislation requires
issue.
an
Unless
(West 1993).
Widiss,
5.06-1
See Alan I.
against
dication of the tort claim
the unin-
and Underinsured Motorist In
Uninsured
motorist,
right
sured
insured
(2nd
1992)
surance, §
(listing
2.2 n. 1
ed.
proceed with the uninsured motorist claim
states).
other
beyond dispute given
should be
the cover-
persuasive
comprehensive analy-
In a
age
developments
terms and the historical
jurisdictions,
Supreme
sis
Court
development
that led to the
of this cover-
majority
of Kansas concluded that
age.
reject
position urged by
states
State
(footnote
Widiss,
§
supra,
29.1 at 447
omit-
Farm
must
that an insured
first obtain a
ted).
damages
determination of the fault and
Despite
Wyo.Stat. §
the failure of
31-10-
filing
caused
an uninsured motorist before
expressly
101 to
exclude a direct action
Winner,
against
a direct action
the insurer.
require
the insurer or
an action
cases).
(collecting
Spe-
C.
of
dealing
good
and fair
duty
of
faith
1037.
Dealing
Fair
by
requirement
the terms
is
a
mandated
not
that the district court
Farm contends
policy.
in permitting
law
the
as a matter of
erred
imposed
to be
obligation,
deemed
It is
a
of
for breach
state
cause
Shraders to
law,
must
under which the insurer
good faith and fair
implied covenant of
good
discharging
in
fairly
in
faith
act
and
agree.
dealing.
do not
responsibilities.
in
its contractual
Where
good
of
implied
covenant
fairly
good
in
doing, it fails to deal
and
so
every
present
in
dealing
fair
is
faith and
by refusing,
insured
without
faith
its
contract:
cause,
compensate its
for
proper
insured
Faith
Fair Deal-
Duty
205
of Good
and
policy,
a
such conduct
loss covered
ing
a
of action in tort
may give rise to
cause
party
imposes upon each
Every contract
implied
good
of
breach of an
covenant
for
dealing in
duty
good faith and fair
a
of
dealing.
faith and fair
and its enforcement.
performance
its
original).
(emphasis
Supreme
in
Id.
(Second)
§ 205
of Contracts
Restatement
concluded that when an
Court of California
(1981).
recognized that a
Wyoming has
unreasonably and in bad faith with-
insurer
good
implied covenant
faith
of
breach
the claim for
made
payment
holds
of
benefits
dealing may
fair
be actionable
con-
and
insured,
subject
insurer is
to liabili-
its
damages.
compensatory
for
Arnold
tract
ty in tort.
Co.,
Bureau Mut. Ins.
West Farm
Mountain
McCullough, Wyoming adopted
In
Inc.,
161,
(Wyo.1985). Wyo-
164
707 P.2d
objective
of care as a
standard
measure
acknowledged
ming
that a breach of
has also
required
conduct
insurers
stated
implied
good faith and fair
covenant of
Co.,
Ins.
85
Anderson v. Continental
Wis.2d
of an
dealing
rises to the level
inde-
which
(1978).
675,
368
Under this
271 N.W.2d
compensatory
for
pendent tort is actionable
standard,
fairly
de
“where a claim was
punitive damages
proper
under
circum-
batable,
pay
faith
refusal to
would
bad
Rule
McCullough v. Golden
Ins.
stances.
facts,
and,
give rise
appropriate
could
under
Co.,
855,
(Wyo.1990). A
789 P.2d
860-61
action for tortious refusal
honor
recovery
duty
in tort for the breach of
(emphasis
N.W.2d at 374
claim.” Id. 271
dealing
premised upon
good
and fair
faith
added).
“fairly
a
A claim is
debatable” when
relationship
special
created
the existence of
de
would have denied or
reasonable insurer
unequal bargaining power that an
layed payment
the claim for benefits
McCullough,
insurer has over an insured.
McCullough,
and circumstances.
facts
Uninsured motorist
insurance
illustrate the
they
distinction
vides
coverage. Uptegraft,
first
present
contend is
in uninsured motorist cov-
684;
Anderson,
P.2d at
12A
supra, §
erage.
Quick
45:624
v. State Farm Mut. Auto.
at Co.,
The insured
involved
(Ala.1983),
accident
Ins.
W.R.E. 408 causes action of breach of contract and (1) implied breach of the furnishing offering covenant or or Evidence (2) furnish, dealing. and fair An promising accepting or sued State or insured accept, disputed Farm to offering promising or recover a claim for unin valuable compromising attempt- argued or sured motorist consideration benefits. State Farm ing compromise which dis- a claim introduction evidence of settle amount, puted validity during to either or as ment offers the breach of contract prove liability phase prejudicial. admissible to in- highly or the trial be would validity However, of the claim or its amount. Evi- State Farm in admitted dence of conduct or statements made troduction of evidence of settlement offers compromise negotiations is likewise not ad- during would be relevant and admissible require missible. This rule does not exclu- portion of dealing the trial with breach of the sion when evidence offered for an- implied agreed covenant. The court purpose, proving such or bias and held that the introduction of witness, prejudice negativing a conten- evidence of preju settlement offers would delay, tion proving of undue or an effort to dicial defense breach contract investigation prose- obstruct criminal Separate claim. Id. at 262. trials were or cution. . dered. Id. Accord U.S. Fire Ins. Co. v. Millard, (Tex.App.1993). S.W.2d purpose encourage W.R.E. is to settlement, courthouse, outside the disputes. Agency, Wigwam Separate Hursh Inc. v. automatically trials are not Homes, Inc., required brings when an insured an action negotia- reason evidence of settlement against an insurer for breach of contract and *17 in proceedings tions is irrelevant most that of implied good breach covenant of faith may the offer of settlement be motivated dealing. and fair Allstate Insurance Co. v. litigation a expenses, Hunter, desire to avoid time and 865 (Tex.App.1993). S.W.2d 193 by any rather than concession weakness. Prejudice found when the trial of all Id. unfairly causes of action forces insurer 1) “to choose between insisting right on its to
State Farm admits that evidence negotiations exclude evidence of settlement negotiations settlement was relevant to the (thereby losing determinations cause of action for implied breach advantage showing that it was at good dealing covenant of faith fair to tempting However, to be reasonable in delay. refute defense of the claims undue claims) 2) bad faith argues putting on prejudice State Farm that such it suffered risking prejudicial evidence and a the introduction inference of evidence of settle- negotiations ment that it has during admitted on the the breach of con- contract portion tract Id. of the trial action.” at when was deter- 193-94. The Hunter court mined that the determined “legally required Shraders were that severance was not enti- tled” to in indemnification under that instance because the insurer State had Farm policy. to State Farm asserts failed meet alleging specific its burden of jury’s negotiations verdict on the breach of contract claim settlement which offers would impermissibly was prejudice. influenced the settle- in result Id. at 194. The Hunter ment respond by offers. The upon holding court relied of the court in Parks, 163-64, trials heard the same separate County Co. v.
Progressive Mut. Ins. hardship. jury will not an undue (Tex.App.1993), which create S.W.2d Carlson, required P.2d at 306. separate trials were ruled that no evidence of in an action where there was court committed hold the district We offers. settlement therefore, and, its discre- error of law abused failing in bifurcation of the tion to order dispute that State There is no breach of contract and the cause action for with several the Shraders presented Farm implied of action for cause breach Un their claim for benefits. offers to settle good dealing. As covenant of right had Farm a der W.R.E. Carlson, fairness, logic and case we noted settlement offers to evidence of the exclude support a decision to remand the entire law seeming possible prejudice from avoid grant for retrial due the failure to case “legally were the Shraders admission Carlson, at separate 306-07. trials. un to at least some indemnification entitled” necessary retrial, find it To facilitate we policy. This the terms of der remaining some of the claims address claim. contract is the essence of breach of Corp., 863 P.2d error. Rhoades v. K-Mart hand, had State Farm On Brown, (Wyo.1993); Danculovich offers dur introduce evidence of settlement of unreason ing the to refute the claims trial delay of action for inherent in the cause able Jury To E. Instructions implied covenant breach challenges the content dealing. introduc and fair W.R.E. 408. jury. of instructions to the offers number of evidence of settlement tion challenged trial, therefore, preju primary contentions are that the sufficiently single contain errors of substantive require Farm to bifurcation instructions dicial to State 42(b). prej- hold, Wyo agree one instruction was law. We under W.R.C.P. law, of a udicial. ming a cause of action for breach and a cause of contract of insurance reviewing jury challenges instruc implied covenant of
for breach tions, procedural conducting both a we are dealing sounding in tort are faith and proce review. The review and substantive per sufficiently independent distinct component is stated W.R.C.P. dural proceedings when mit bifurcation requires, pertinent part: “No which negotia of settlement admission evidence may giving or the failure assign as error the Carlson, prejudicial. tions would be party ob give instruction unless that Hunter, 305; S.W.2d 408. See W.R.E. jury con jects retires to thereto before the Wilborn, at 262. at 194 and 835 S.W.2d verdict, distinctly matter stating sider its objec objected grounds to and the agree the Shraders’ con- We do not Therefore, con appeal, this court special tion.” on results tention that bifurcation instruction advantage a claim of error for the insurer. The siders procedural *18 Tri proper objection is raised. negotia- only where a of of settlement exclusion evidence Co., Producing, Inc. v. Mobil Coal operates prevent jury the from ton Coal also to tions Inc., 505, (Wyo.1990)(collecting 800 P.2d 510 that the making impermissible an inference cases). properly ob party fails to insured When a damages claimed the amount of ject, application to the our review is limited is excessive or that the for breach of contract 511. The plain Id. at the error doctrine. was excessive because claim for benefits objection under purpose requiring of an comparable amount. insurer did not offer a of is inform the district court agree that 51 to 408. also do not W.R.C.P. W.R.E. error and the the nature of the contended the of action for separate trials on cause objection dis so that the specific grounds the cause action for breach of contract and in may judicial discretion court exercise implied good trict the covenant breach of error. reconsidering instruction to avoid dealing hardship. a While and fair create Gas, Inc., 802 & objected single a Davis v. Consolidated Oil have not some insurers issues, Arnold, 840, (Wyo.1990). P.2d 843 707 at P.2d trial on all see 832 humanity responsi- law and
Errors of substantive
con
inherent
in
fiduciary.
language
an
bilities of a
hold
in
instruction re
Insurers
tained
fiduciaries,
is,
themselves out as
quire
prejudicial.
if the
is
reversal
error
Craven,
having
duty
primarily
892,
a
act
(Wyo.
entities
Bigley v.
769 P.2d
895
1989)
Graves,
they
v.
661
the benefit of those
undertake to
(quoting Cervelli
P.2d
1032,
public
go
(Wyo.1983)).
reviewing
In
serve. With that
trust
1036
must
instruction,
appropriate private responsibility.
challenged jury
content of a
charge
Kemper
a
is considered as whole.
added.)
(Emphasis
State Farm asserts that
Architects,
McFall,
v.
Konkel & Kimball
P.C.
giving
prej-
of Instruction No. 23 created
Inc.,
1178,
Engineers,
Consulting
843 P.2d
by stating
udicial error
a
State Farm had
(Wyo.1992).
degree
To measure the
fiduciary relationship to the Shraders.
prejudice, jury
are
in
instructions
viewed
argue
language
The Shraders
that the
trial, including
allega
light of the entire
24,
together
Instruction No.
when
read
complaint,
tions of the
conflict in the evi
23, “very clearly” expressed
Instruction No.
arguments
dence on
issues and the
critical
relationship
the exact
between insured and
City Cheyenne
Simpson,
counsel.
v.
insurer.
Instruction No. 24 stated:
(Wyo.1990) (quoting
P.2d
581-82
Con
implied
every
is
There
within
insurance
Whithead, Zunker, Gage,
duct
Davidson &
policy duty
good
dealing.
a
faith and fair
Shotwell,
P.C.,
(Wyo.1987)).
743 P.2d
nature,
fiduciary
duty
While this
is
it
goal
if
of our review is
determine
fiduciary relationship.
does not
create
charge presents
comprehensive,
balanced
context,
implied
the insurance
cove-
fundamentally
accurate
statement
dealing
nant of
requires
governing
jury. Kemper
law to the
Archi
party
prevented
that each
is
from interfer-
tects, P.C.,
1182;
843 P.2d at
Sims v. General
ing
with the other’s
to benefit from
(Wyo.1988)
Corp.,
Motors
751 P.2d
required
the contract. The insurer is not
State,
(quoting
Norman
P.2d
place
the insured’s
its
interest above
(Wyo.1987)).
charge
is deemed ade
* * *
own as would be the case
where
quate if
likely
not
to confuse or mislead
fiduciary.
insurer were a
jury. Bigley,
at
895. “The fact
The Shraders read
No.
Instructions
may
pre
instruction
have been more
stating
24 as
that State Farm did not have a
cisely
way
or
drafted
drafted
more fa
fiduciary relationship
Shraders,
but
vorable to a
does
warrant reversal
fiduciary
rather had some
duties which are
Inc.,
for a new trial.” Triton Coal
fiduciary.
nature
like
dutyA
“fiduciary”
that is
in nature arises
objected
giving
of when the insurer
exercises
element
Instruction No. 23 because the instruction
litigation.
control over the insured’s
See
misinformed the
about the nature of the
Fowler,
Casualty
Western
Surety
Co. v.
relationship between the
The court in
Farm.
Instruction No. 23 stated:
Craft,
properly
The
of
Rptr.
833 in a statement of the law side This is not correct of “control” of the insured’s of element company Wyoming. litigation the insurance “fiduciary” duty. give rise to a which would 861, at ac McCullough, 789 P.2d we necessarily that the in follow It does not recovery compensatory of knowledged any obligation of completely free surer is damages permitted for the breach in tort was insured, dealing its good and fair of faith dealing. duty good faith and fair of the of “ duty based on the rea the latter since necessary Damages ‘provide in com tort of the insured and the expectations sonable in pensation for and incentive for insureds ” con- bargaining positions of the unequal 859 claims.’ Id. at surers to settle valid tractants, com rather than the insurance 1018). White, (iquoting prop The 730 P.2d at litigation. See pany’s “control” compensatory damages “the er measure of Liability Employers Assur Richardson v. compensate a claimant for amount will which 232, Corp., Cal.App.3d 25 102 Cal. ance tort- proximately all detriment caused Rptr. 547 duty.” v. feasor’s of Atlas Const. Co. breach Co., Ins. Neb. 237 Accord Braesch Union Slater, 352, (Wyo.1987)(empha 746 P.2d 359 (1991) 44, 769, and MFA 464 N.W.2d 772-73 damages in original). scope of sis “ at 721. Mut. Ins. S.W.2d injury suffered ‘wheth cludes all direct ” 23 misled the We hold Instruction No. anticipated or not.’ er it could have been prejudicial The lan error. and resulted White, (quoting at Crisci guage Instruction No. 23 states that State Conn., Haven, Security Ins. New Co. of duty “fiduciary” to the Shraders. Farm had 13, 18, Cal.Rptr. Cal.2d statement of the law. This is an inaccurate (1967)) original). Re (emphasis duty good faith and Farm did have State (Second) (1979) de of Torts statement Shraders, dealing but not a “fidu fair “the dam compensatory fines as 569; ciary” duty. Craft, F.2d MFA at compensation, ages person awarded Co., 574 at 720-21. Mut. Ins. S.W.2d harm indemnity or restitution for sustained objected Farm also to Instruction Compensatory damages include by him.” No. which stated: pecuniary inter- damages for harm to those you
If
find for the Plaintiffs that
a tort
sustained when
ésts
duty
good
distress,
harm,
its
hu
bodily
Defendant has breached
causes
emotional
you
dealing,
fair
then
should miliation,
anxiety.
faith and
and fear and
Restatement
you
fairly
(Second)
Torts,
will
§§
award such sum as
believe
supra, at
903-905.
justly compensate
for the
the Plaintiffs
urges
unfair
position
would
they
as a
damages you believe
sustained
recovery
compensatory
ly
restrict
duty by
the Defen-
result of the breach
injured
damages by
insured.
dant.
scope of
com
hold the
available
damages,
determining
the Plaintiffs’
duty
pensatory damages for
breach
following
you
any of the
should consider
dealing
dam
and fair
includes
you
for each Plaintiff which
find
elements
interests and
ages
pecuniary
for harm to
resulted from the breach:
Crisci,
Cal.Rptr.
at
distress.
emotional
an-
a.
or mental
Emotional distress
limitation,
is a
c. Loss
damages for emotional
recover
breach.
allege
must
that as
result
insured
faith and
breach
argues
dam-
economic
dealing,
has suffered substantial
the insured
earnings,
ages,
as loss of
should be
such
loss,
damages,
as economic
such
im- other
for a breach
recoverable
tort
*20
distress. Gruen
dealing.
to the emotional
good
of
faith and fair
addition
plied covenant
berg,
Cal.Rptr. at
ceipt
proofs
part: upon holding State Farm relies our in Her- (a) life, rig argue attorney’s Claims for benefits under a acci- fees should not dent or health insurance shall be have been recoverable until the
rejected or accepted paid by the insur- the uninsured motorist was determined er agent designated or its litigation Herrig, receive settlement. third (45) forty-five claims within days after re- brought directly claimants an action *21 Arnold, 164-65, this 707 P.2d at court insurer the insured’s automobile seeking damages. that an insured attor- attorney’s determined seeking fees and 26-15-124(c) § ney’s Wyo.Stat. third under may award a fees We held that a court attorney’s Wyo. pay under if refusal to a claim for party fees could recover the claimant 15—124(c)only cir- under limited motorist was unreason- § benefits Stat. 26— or cause. We reaffirm that cumstances when: able without attorney’s may fees interest be recovera- (1) has third-party claimant reduced the 26-15-124(c) Wyo.Stat. § when ble under to his an insured claim cause unreasonably insurer or without re- or reached a settlement judgment has justifiable pay to claim for uninsured insurer; fuses agreement the insured motorist benefits. (2) subsequently has to insurer refused the or pay judgment the the settlement that the State Farm also contends by poli- to the covered amount extent the attorney’s amount of fees awarded (3) pay been cy; and the refusal to has was ex district court erroneous because or without to be unreasonable determined agreed to ceeded the amount Shraders judg- on in an action to collect cause pay contingent agreement. in a We need fee agree- ment or to enforce settlement argument. not Because all is address ment. being remanded for a sues this case are omitted). (footnote at 495 Herrig, 844 P.2d retrial, apply will free to the district court however, Herrig, appli- is holding The not any attorney’s to fees its discretion award for uninsured cable to the Shraders’ claim 26-15-124(c), § Wyo.Stat. should motorist benefits. again prevail. The existence of a Shraders coverage, as we have Uninsured motorist agreement merely contingent fee is one of determined, party As a is insurance. first to may which be considered as factors insured, paying public policy, matter of any sess the reasonableness of award under coverage mandat- for the uninsured motorist adopted test this court in the lodestar § to Wyo.Stat. ed 31-10-101 entitled Exploration Drilling, Inc. v. Teton UNC justifiable claims expect prompt payment of Peyton, 774 P.2d required resulting from an accident as 26-15-124(a). § Wyo.Stat. If insurer Judgment Or Not- G. Directed Verdict questions validity of claim for unin- withstanding The Verdict motorist or the amount sured benefits Finally, Appeal turn to No. 93-27. we sought, permitted the insurer argue that court erred the district reject the claim. Id. favor granting a verdict directed a claim for bene- Shraders submitted ruled, Farm. The district court as They Farm. fits the insureds of State law, evidence did not matter of party State Farm were not third claimants. finding jury’s of willful wan- support the following the during the months admits that Therefore, punitive no dam- ton misconduct. claim, “never denied Shraders’ ages the Shraders. We were awarded to In- pay or claim.” refused and re- district court’s decision reverse the stead, parties could contends for a new trial. mand on amount of the settle 50(a), trial, 818- Wyo.Stat. At the W.R.C.P. by the time suffered Shraders. Under (hereinafter (1992) 26-15-124(a), For- statutory period Wyo.Rptr. CXI 50) permitted Rule the district court mer payment of first insurance benefits grant a for a directed verdict either began insurer received motion payments when the or at opponent’s of an evidence proof supporting evidence. close of loss and Jackson, Darlow, Carey v. was the close of all evidence. at 824. (Wyo.1979). See 876-77 evidence of Shraders’ entitled receive 50(a) (effective 12, 1993 and Jan. payment de- and demand for W.R.C.P. submission grant as a permitting court pay if termine State Farm’s refusal law). precluded A directed verdict matter “unreasonable without cause.” *22 836 jury a
consideration
of cause of action
judgment
Motions for a
notwith
sufficiently
in which the facts were so
clear
standing the
“cautiously
verdict should be
required
particular
that
the law
result.
sparingly granted.”
and
Magill,
Erickson v.
Carey,
(quoting
rected verdict at the standard of review for made close of all the directed ver dicts). light evidence is denied or for We consider the reason is not evidence granted, most moving party may party against favorable to the move not whom the directed, days motion entry judg- giving later than 10 after the all reasonable and legitimate judgment ment to have the verdict inferences such evidence. Rhoades, 629; entered Carey, thereon set aside and to 863 P.2d at have 603 P.2d at judgment entered in 877. accordance with the
party’s
verdict;
motion for a directed
or if
party,
verdict was not returned such
argue
The Shraders
the evi
days
jury
within 10
after the
produced
has been
dence
at
lengthy
trial disclosed a
discharged, may
judgment
move for
in ac-
calculated course of conduct
State
party’s
cordance with the
motion for a Farm which
intentionally
was
directed to de
directed verdict.
prive the Shraders of the full amount due for
their claim for
sup
benefits. The evidence
50(b).
Former Rule
porting this course of conduct included: arbi
Farm
State
made a motion for a directed
trarily assigning percentage
of fault for the
presen-
verdict at the
close
Shraders’
accident to
during
Shrader
the initial investi
tation of evidence. The motion for a directed
gation despite proof that
the accident was
verdict was renewed at the close of all the
entirely
motorist;
the fault of the uninsured
However,
evidence.
the district court did
Terry
failure to disclose to
Shrader his
Instead,
not act on these motions.
the issue
potential damages
consortium;
for lack of
presented
jury.
to the
re-
practice
State
which evaluates
special
finding
turned
verdict
willful and
performance
adjusters
based on the
wanton misconduct. State Farm then filed a
average dollar amount of settlements and
seeking
motion
a “Directed Verdict on the
encourages
offers;
minimum
pattern
and the
punitive
issue
damages,
judgment
for
misrepresentations
State Farm’s
about the
punitive
defendant on Plaintiffs’ claim for
conduct of
investigation
the accident
and the
damages, notwithstanding the verdict.”
Overall,
value of the Shraders’ claim.
Sep
motion was filed on
argue
this evidence demon
8,
entry
tember
1992. The
judgment
of final
pattern
strates a
of misconduct
did not occur until December
1992. In Farm sufficient to sustain an
puni
award of
Lander,
Chopping v. First Nat. Bank
damages.
tive
responds
State Farm
that the
denied,
(Wyo.1966),
P.2d
cert.
387 evidence
support
finding
does not
of willful
U.S.
87 S.Ct.
Punitive
should
IV. CONCLUSION
resulting
inexperience,
“mere mistake
confusion,
or
and more than mere
excitement
presented
ap-
in
complex
this
issues
inadventure,
simple in-
thoughtlessness or
previously
peal
many
undecided
involved
attention.” Id. at 191.
parties
questions Wyoming
law.
during
legal questions
Conceptually,
punitive
present
these
an award
dam-
chose
declaratory
seeking a
represents
trial instead of
ages
response
circumstances
judgment
respective rights
present
interpret
their
aggravation
in the character
(Second)
insurance.
an actor. Restatement
duties under
conduct of
Torts,
b;
§
nature of the law made
supra, at
908 cmt.
Stuart M.
unsettled
proceedings
Alfred
more difficult because
Speiser,
F. Krause &
W.
below
Charles
jurisdictions
Torts,
Gans,
precedent
from other
8:45 at
the varied
The American Law Of
argument
from each
jurisdictions
extensive
Other
have
805-811
apply.
most
standard
language
ag-
over the
desirable
chosen different
define
of law contained
example,
principles
in
with the
For
accord
gravating circumstances.
opinion,
we
unavoidably interwoven,
must return this case to
trial were
and State
proceedings.
the district court
further
hardship
has demonstrated no
which
was caused
ruling.
the trial court’s
I
remanded for
Reversed and
a new trial.
majority’s
cannot reconcile
holding
with
opinion
our
Considering
Carlson.
the rule
MACY, Justice, dissenting
part
trials,
in Carlson which favors consolidated
I
concurring
part.
agree
majority
cannot
with the
that the trial
disagree
part
majority
I
opin-
court
majority’s
abused its discretion. The
disposition
ion and with the
of this
I
ease.
holding leaves an aftermath
uncertainty
judgment
would affirm the trial
court’s
all
judge
for a
who
presented
has been
with a
respects except
I
that would reverse the trial
separate
motion for
trials.
court’s
notwithstanding
puni-
*24
Second, the trial
cogni
court committed no
tive
verdict.
by
zable error
admitting the evidence of
trial,
Before
sepa-
State Farm moved for
State Farm’s settlement offers. “We adhere
because,
part,
rate trials
the evidence of
instruction,
limiting
to the rule that a
if
its offers to settle was not admissible to
desired,
clearly requested by
must be
coun
prove
the Shraders’ claim for
Service,
sel.” Carlson v. BMW Industrial
policy.
the uninsured motorist
W.R.C.P.
Inc.,
744 P.2d
(Wyo.1987).
See
42(b); W.R.E. 408. The trial court denied
W.R.E. 105.
strategy,
“As matter of trial
Although
the motion.
State Farm filed a
may
counsel
limiting
decide
instruc
detailed motion in limine to exclude twelve
tion to
emphasizing
avoid
unfavorable testi
evidence,
categories
it never moved
mony. ...
It is not the function of the trial
to exclude the
of its settlement of-
evidence
judge
second-guess
strategy
of coun
fers. Nor
request
did State Farm
that in-
State,
Sybert
sel.”
724 P.2d
given
jury
structions be
to the
which would
1986).
(Wyo.
caution it that the evidence was inadmissible
prove
one of the Shraders’
trial,
claims.
At
State Farm never moved to ex-
offers,
clude the evidence of its settlement
majority
holds that
the trial court
although it did file an extensive motion to
by
abused its
denying
discretion
the motion
exclude other evidence. Nor did State Farm
separate
trials because State Farm was
request,
during
either
trial or at the close of
thereby prejudiced by the introduction of the
case,
given
instructions be
to the
evidence of
disagree
its settlement offers.
I
jury which
jury
would inform the
that the
for several reasons.
evidence of its settlement offers was not to
First,
only
a district court has
limited dis-
be considered on the breach-of-contract
42(b)
cretion under W.R.C.P.
sepa-
to allow
Instead,
claim.
State Farm utilized an all-
multiple
rate trials of
claims. Carlson v.
or-nothing strategy
evidence;
toward the
If
Carlson,
(Wyo.1992).
836 P.2d
the trial court denied its
separate
motion for
may
have held: “A trial
only
bifurcated
trials,
permit
State Farm would
the introduc-
clearly
when the issues are
distinct and the
tion of the
making
objec-
evidence without
hardship
bifurcation will not work a
tion.
party.”
either
rarely,
Id. The issues are
if
court,
expect
We should not
ever,
a trial
when,
on its
clearly
here,
distinct
a case
motion,
own
jury
to caution the
when the
combines a tort claim for breach
an im-
attorneys
trial
have failed to alert the trial
plied
duty
contractual
court to the need
cautionary
for a
limiting
dealing
claim,
with a breach-of-contract
both
I
instruction. would hold that the trial court
of which arose from a breach of the same
committed no error
admitting the evi-
contract term.
Ames v. Sundance State
Cf.
Bank,
dence of State Farm’s settlement offers.
(Wyo.1993)
Case No. 93-27: Insureds’ recoverable from the uninsured motorist has Insureds been determined? appeal: word the issue this Wyoming 4. Under law can an insured jury party When verdict of first bad bring against a direct action the insurer to supported by faith is substantial evidence adjudicate damages the amount of an in- intentional, and that bad faith was dishon- legally est, sured is entitled to collect institutionalized, from the should the trial driver of an uninsured vehicle? disregard court be allowed to that same jury’s verdict willful and wanton miscon- The other issues concern “bad faith” or duct[?] “good dealing.” Insurer words it: issues, present including: Insureds five 1.) jury’s finding
Was the public policy Wyoming the Shraders Given the punitive 31-10-101, were damages unsup- entitled to Statute must the insureds ported evidence, such that substantial under uninsured motorist reduce the correctly granted District Appel- they Court their claim to before can the as company not collectible from uninsured motorist against insurance proceed their practical bad matter. of contract and faith? for its breach event, “legally the entitled amount properly not determined collect” was 4.) given as jury instructions Did fault, and therefor this case. The extent rights of State prejudice award, damage prop- the amount of was not the law? erly Wyoming comparative determined. 5.) abuse its discre- Did the trial court negligence properly state. attorney’s assessing fees tion in costs degree of the instructed to determine the Farm? against State negligence thus the of each the tort of bad other two issues concern “legally amount were Insureds faith. exactly may entitled Such more to collect.” inquired in a into direct action majority opinion, As stated Insurer, damages adjusted accord- and the fault question is whether or not the I with ingly. Consequently, specially concur amount of uninsured motorist and the dam- this majority result reached may ages be deter- suffered Insureds return of case to the Court for the Insurer. mined a direct court, I return it district but would they majority of holds that the Court compara- because the failure have the can, holdings referring to similar in other parties deter- negligence properly tive language states. It notes that in the mined and not for reason recited payment of that amount provides However, majority emphasize, I as opinion. “legally are entitled collect which Insureds my just supra, stated belief that a more owner or of an uninsured from the driver ” were result would be obtained if the issues requires the motor vehicle and that such through first determined an action between part ability to establish fault on the parties to the incident. gives rise dam- uninsured motorist which prove extent of those dam- ages and to properly to the With reference failure long issues ages. As as the factual as comparative negligence consider properly placed can be case, parties supra, in this noted finder, majority agree fact I special form made no reference verdict that a direct action would be Court allocating provision The verdict fault. However, *27 permissible. I it believe that ques- by form Insureds contained offered place properly be difficult to such is- would per- of the requiring tion a determination danger emphasis The of over on sues. centage each of’ the of fault “attributable to situation to the detriment consid- contractual vehicles, but it was refused. drivers of the just great. tort A eration of the thirty-four in- gave separate The court certain if would seem to be more result provided in Instruction No. 20 structions. in first an action tort issues were established comparable part pertinent fault: to Insureds the uninsured motor- between bodily damages by plaintiffs’ caused only I believe that such would be ist. injury must on in case be determined preferred. Something proper but be seems parties comparable fault of the the basis of wrong allowing to in the uninsured motor- accident.... involved in the depart penalty if he ist to without was applicable this ease Wyoming law to damages. In the event he is cause of dollars, a reduction in the amount of why require should in- would worth millions him, any party by damages to company, stranger to be re- awarded surance faulty any, if is attrib- damages by percentage of quired caused pay to party. percentage of just utable to that him? A more outcome would seem to fault, seeking re- parties mandating any, if of the in the establishment of lia- result compared damages to each of damages separate in a cover bility and amount of in an The dam- action, persons involved accident. “legally entitled to amount injured ages party are reduced being subject of an to collection but collect” percentage of fault found attributable Addendum recovering party. to that majority I concur with the of the Court nothing There was in the instruction direct- with reference to the other issues in this fault, ing apportion and there case. given no other instruction with reference to
it. THOMAS, Justice, dissenting. only emphasize Several other instructions opinion I find I also must dissent from the necessity to determine causation of the majority of the Court this case. accident Insureds without reference Essentially, my quite views are like those of percentages to the thereof attributable to Rooney, except I Justice for the fact that driver, e.g.: each approve would not the direct action ... 2. order to determine what is the insurer such an instance. insurance, you on the cont[r]act owed that, jurisdiction It is an anathema in a plaintiffs’ all will need to determine very which the in a mention of insurance trial damages bodily injury caused mistrial, between can in a individuals result Donna Shrader. justifying readily the evils that rule can be Instruction No. first-party avoided Damages you must If be reasonable. insurer. While insurance carriers are used should that the find Plaintiffs are entitled running uphill litigation, seem does verdict, you may to a them award oppressive require them to climb the wall. reasonably compen- such as will Furthermore, strong public policy con find, you sate them for such support siderations the denial of an insur preponderance from a of the evidence in application underlying er’s intervene case, they have sustained. litigation. “Clearly tort Instruction No. 13. keep law is to the issue of insurance out of personal injury litigation.” action, Cromer In this the Plaintiffs have the Sef ton, (Ind.App.1984) 471 N.E.2d proving by preponderance burden of (holding permitted insurer is not to inter following: the evidence the underlying vene in litigate tort action to negligence 1. That the unin- issues). W.R.E. reflects this proximate sured motorist was a cause of policy by generally prohibiting the intro Plaintiffs; injury damage to the duction of evidence of insurance. As the inju- 2. The nature and extent of the court noted in Allstate Insurance Co. v. suffered, ries claimed to have been so Atwood, 819 Md. 572 A.2d damage the elements of Plaintiffs’ (1990), permitting companies insurance the amount thereof. intervene and become a to a tort Instruction No. 15. proceeding multiple problems, leads to in *28 cluding forcing the insured to defend you If find that R. Donna Shrader is against plaintiff both the resources of the damages by entitled to from the accident and the insurer. instructions, you the evidence and then may spouse[,] Terry Shrader[,] award her Colley, State Farm Mut. Auto. Ins. Co. v. a sum which will constitute and rea- (Wyo.1994). 195 compensation sonable to him for the loss vernacular, In popular’ playing the the field impairment ability per- of his wife’s fact, hardly seems level in this instance. injuries. form services as a wife due to her it seems more vertical with the insurer at the Instruction No. 19. Truly, only way distinguish bottom. the only
Accordingly, specially I policy Colley concur in the the articulated is to note that by majority result reached the of the Court the insurance carrier cannot intervene when to, on the concerning propriety participate issue the of a it wants but it must as a direct against action Insurer. when it does not want to. by following directly against company. the the features insurance Our
I am troubled precedent McCullough justify opinion: is invoked the court’s bring right first-party the bad faith the Permitting the 1. direct justifies joinder tort action. It then the insurer, requiring rather tort lia- the than those two causes action. I cannot find in- bility the to be determined between among majority authorities the cited the alleged the tortfeasor. sured and any jurisdiction in which heretofore these majority opinion, A2. statement joined been claims have in one trial. fulcrum, to serve which seems as Permitting the action uninsured motor- holding as a that “the Shraders articulated they to be tried time as ‘legally entitled’ ist benefits at the same established were first-party puts faith the action bad tort to seek indemnification for truly position. insurer proximately negligence caused untenable forward, day (Emphasis add- this in the absence of uninsured motorist.” From ed.) relief, language policy “legally legislative an insurance carrier will be anything mo- collect.” unable to do about uninsured entitled to pay benefits than to torist language of The conclusion that 3. policy limits to its The result in this insured. policy attempts Farm to restrict is related to faith nor bad case neither right bring against the an action simply faith. It establishes uninsured motorist. The addresses and bad faith are both irrelevant. The risk question between resolution wrong in its being determination as to insured, and the it seems damages simply liability or the amount of Wyoming clear to me does not violate right of the carrier to test subsumes REGULATIONS, DEPARTMENT OF INSURANCE long its these either issue with insured as as (1989). 23, § 8 Ch. together. can be tried claims light authority regulatory 4. commissioner, prefer resorting think much rule the insurance I do not I would to the unequal bargaining power jurisdictions is a factor more in the conservative McCullough requires case as the court found in the resolution of the tort Co., pur arising prior Rule Ins. P.2d 855 to the v. Golden out accident of contract claims the insured suit E.g., Royal insurer. Baxter v. Indem. accounting I am not satisfied 5. that the Co., (Fla.Dist.Ct.App.1973), 285 So.2d damages provided by the Shraders (Fla.1975); discharged, 317 cert. So.2d 725 necessarily unchal- serves as Co., Kemper Craig Iowa Ins. Mut. lenged proof in the context of (Mo.Ct.App.1978); Pemberton v. S.W.2d good faith or bad faith. Exch., Farmers Ins. 109 Nev. illus- complexities, The number of (1993); Radlein Indus. Fire & Cas. majority opinion, arising trated Wis.2d 345 N.W.2d Ins. joinder of claims is from the the several Pemberton, judg pointed out in As very troublesome. against the motorist is not ment Perhaps, anything, as much as this case legally required to establish the insured is the wisdom the views es- demonstrates collect, but that can be es entitled poused by me in our Justice Golden and by a settlement the insurance tablished dissenting opinions McCullough. It dem- the uninsured company, a settlement with onstrates, ultimate, product almost to the motorist, com arbitration with the insurance *29 permitting an insured to assert the inde- against com pany, an action the insurance pendent bad faith tort cause of action recognize statutory provisions were pany. I his own insurer. decisions, it upon in some of but relied these open may the majority opinion error in be that recourse now The critical the juris- Wyoming carriers is to seek support the in other insurance starts with finds bring recognize If the right legislative relief. we are dictions for the insured bring insured to an action direct- right benefits the action uninsured motorist policy justification found in erage erases the uninsured motorist insurer for ly against the McCullough, in this instance. benefits, clearly require that we should then proceeding to resolved before claim to be justification joining I believe the I am satisfied claims. with the contract deal against the insurer for the uninsured out to be so unfair any approach turns claim for first- motorist benefits with the carriers as to be unreasonable. to insurance adequately justi- faith tort is not party bad majori- injected in precedents fied of the additional respect to some With gone opinion, to me we have ty and it seems majority opinion— concerns I have with attempt penalize too far in this case to policy language majority asserts that the While, us, in- like all of insurance carrier. right attempts of the Shraders to restrict faults, I companies may their surance have against the other motorist. bring an action they are bad citizens our do not think such rationally can be agree policy I cannot special create rules to society that we need to logical A much more con- given that effect. justice in our deprive them of fairness and policy language would is that the struction legal institutions. brought, as only apply if no such action were ruling joining the I reverse the would statutory language in this case. Given benefits with claim for uninsured motorist regulations of the insurance commis- and the first-party faith. tort claim for bad sioner, language possibly policy cannot separately must be tried Those claims restricting have the effect of any of fairness. achieve sort and, the tortfeasor conse- insureds to sue quently, I not declare the contractual would Instead, given
provision void. it should be possible. effect if lawful construction is suggested I I have a lawful construc- submit tion, language and the contractual does result precedent
in a condition to the action of the ignored that the It should not be Shraders. approves insurance commissioner EQUALIZA- BOARD OF STATE Wyoming language under statute. Wyo. Wyoming, for the State of TION § 31-10-101 Stat. Appellant (Respondent), majority upon provisions relies public policy § 31-10-101 to hold Wyo.Stat. LANDER, Municipal OF CITY requires Wyoming a direct action Corporation, Appellee clearly the insured. The statute is intended (Petitioner). any unequal bargaining power to eliminate coverage parties between the since the is No. 93-211. required, and the must be written Supreme Wyoming. Court of provisions approved by the insurance majority invokes commissioner. The McCul 3, 1994. Oct. lough, pointing “recovery that the in tort out faith and for the breach of dealing premised upon the existence of special relationship unequal created
bargaining power over an insurer has
insured.” Farm Mut. Auto. Ins. Co. v.
Shrader, 93-26, and No. Shrader
Farm Mut. Auto. Ins. major respectfully I submit instance, ity stacking public policies in this recognized regulato and it should that the ry power motorist cov- attached