Mark STRAWN, on his own behalf and as representative of a class of similarly situated persons, Petitioner on Review / Respondent on Review, v. FARMERS INSURANCE COMPANY OF OREGON, an Oregon stock insurance company; Mid-Century Insurance Company, a foreign corporation; and Truck Insurance Exchange, a foreign corporation, Respondents on Review / Petitioners on Review, and FARMERS INSURANCE GROUP INC., a foreign corporation, Defendant.
CC 9908-09080; CA A131605; SC S057520 (Control), S057629
Supreme Court of Oregon
Argued and submitted March 2, 2010, at Lewis & Clark Law School, Portland, Oregon, decision of Court of Appeals affirmed in part and reversed in part; judgment of circuit court affirmed May 19, petition for reconsideration and motion regarding ex parte contacts filed June 9 allowed by opinion July 8, 2011
351 Or 521, 256 P3d 100 (2011); 258 P3d 1199
(CC 9908-09080; CA A131605; SC S057520 (Control), S057629)
258 P3d 1199
Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, California, argued the cause for respondents on review/petitioners on review Farmers Insurance Company of Oregon et al. James N. Westwood, Stoel Rives LLP, Portland, filed the brief for respondents on review/petitioners on review Farmers Insurance Company of Oregon et al. With him on the brief were P.K. Runkles-Pearson, Theodore J. Boutrous, Jr., and Thomas H. Dupree, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles; and David L. Yohai and Gregory Silbert, Weil Gotshal Manges LLP, New York.
Meagan A. Flynn, Portland, filed briefs in support of the petition for review on behalf of amicus curiae Oregon Trial Lawyers Association.
Brian S. Campf, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
Andrew M. Schlesinger, West Linn, filed a brief on behalf of amicus curiae United Policyholders.
Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.
Brian T. Hodges, Bellevue, Washington, filed a brief on behalf of amicus curiae Pacific Legal Foundation. With him on the brief were Deborah J. La Fetra and Timothy Sandefur, Sacramento, California.
Before De Muniz, Chief Justice, and Durham, Kistler, Balmer, Walters, and Linder, Justices.**
** Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case.
Balmer, J., dissented and filed an opinion.
Plaintiff Mark Strawn filed a class action against defendants Farmers Insurance Company of Oregon, Mid-Century Insurance Company, and Truck Insurance Exchange (collectively, Farmers).1 The complaint alleged that Farmers had breached its contractual obligations and committed fraud by instituting a claims handling process that arbitrarily reduced payments for reasonable medical benefits owed under its automobile insurance policies. A jury returned a verdict for plaintiffs. Based on that verdict and a post-verdict class claims administration process, the trial court entered a judgment against Farmers for approximately $900,000 in compensatory damages and $8 million in punitive damages. Farmers appealed. On appeal, the Court of Appeals concluded that the punitive damages award exceeded federal constitutional limits, but otherwise affirmed the judgment. Strawn v. Farmers Ins. Co., 228 Or App 454, 209 P3d 357 (2009).
Both parties petitioned for review. In its petition, Farmers presented three issues. The first two raise challenges to the liability verdict entered against Farmers. The third issue challenges the punitive damages award, arguing that the Court of Appeals should have reduced the punitive damages award further. In plaintiffs’ petition, they first contend that the Court of Appeals should not have reached the constitutionality of the punitive damages award for procedural reasons. Alternatively, plaintiffs contend that the full amount of punitive damages awarded by the jury was within constitutional limits.
We allowed both petitions for review. As we will explain, we reject Farmers‘s arguments that seek to set aside the jury‘s liability determinations on plaintiffs’ claims. On the punitive damages issues, we conclude that the Court of
I. FACTS AND PROCEDURAL BACKGROUND
This case involves personal injury protection (PIP) benefits offered by insurance policies written by Farmers. Both by statute and by contract, Farmers was obligated to pay “[a]ll reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the person‘s injury,” up to a certain limit.
“Before 1998, Farmers processed requests for PIP benefits by having its claims adjusters review each medical bill to determine whether the bill was reasonable—that is, whether it was both ‘usual and customary.’ In 1997, however, Farmers decided to change that process. In an effort to recover losses and regenerate its surplus after the 1994 Northridge, California earthquake, Farmers instituted its ‘Bring Back a Billion’ campaign. Farmers’ corporate headquarters in Los Angeles alerted its regional offices of the ‘increasing importance’ of generating money without raising premiums. In June 1997, Farmers instructed its
Portland office to reduce payment of PIP benefits to realize ‘PIP dollar savings * * *[,] an untouched area.’ “In an effort to reduce PIP payments, the Oregon PIP claims manager, Heatherington, contracted with Medical Management Online (MMO), a bill review vendor. MMO, in turn, licensed a ‘cost containment software program’ from Medata, a company that manages a database of roughly 100 million medical expenses. The software sorts those medical expenses by Current Procedural Terminology (CPT) codes, geographic region, and price. CPT codes, which are created by the American Medical Association, are used by medical providers to bill insurers. Geographic regions in the database are defined according to ‘PSRO’ areas, which are socio-demographic regions established by the federal government in 1980 for workers’ compensation purposes. For Oregon, the federal government identified two PSRO areas: (1) the Portland-metro area and (2) the rest of the state.
“The software allowed MMO‘s clients (mostly insurance companies and state agencies) to determine whether a bill from a medical provider was more expensive than a given percentage of the range of charges in other bills for the same CPT code in the provider‘s designated geographic area. Clients were able to select any percentile that they wished, and MMO then evaluated the bills that it received from the client to determine whether the bills exceeded that percentile. If a bill exceeded the preselected percentile, MMO generated an Explanation of Benefits (EOB) form that reduced payment with reference to ‘reason code’ ‘RC40.’ The EOB explained the code as follows:
“RC40: This procedure was reduced because the charges exceeded an amount that would appear reasonable when the charges are compared to the charges of other providers within the same geographic area.3
“The software was promoted as reducing medical provider payments by 26 percent.
“Beginning in January 1998, Farmers implemented its new PIP handling process through MMO—a process that, in Heatherington‘s words, represented ‘a significant change
in the way we handle our bills.’ Farmers selected the eightieth percentile as the cutoff point for ‘reasonable’ expenses. That is, Farmers determined that any bills that exceeded the eightieth percentile in the MMO database would be deemed to exceed the ‘reasonable’ charge and would be ‘reduced’ to that eightieth percentile. The program worked as follows: After Farmers’ insureds were treated for their injuries, their medical providers sent their bills directly to Farmers. Farmers then forwarded the bills to MMO, and MMO entered the bills into its database. If the bill was more than the charge that was at the eightieth percentile of the charges for that same CPT code in the designated region, MMO documented that fact on an EOB form with an RC40 code. “Although Farmers contended at trial (and still contends) that the EOB form constituted only a ‘recommendation’ from MMO as to reasonableness, claims adjusters were expected to follow the recommendation. The adjusters were downgraded if they departed from MMO‘s recommendations and were rewarded when they followed them. Thus, the ‘recommendation’ was, as a practical matter, the final determination of reasonableness.
“Between January 26, 1998 and July 21, 1999 (the class period), Farmers reduced more than 60,000 individual bills by a total of approximately $750,000. The majority of the individual reductions were small: 90 percent were for $25 or less; more than one quarter were for $3 or less. Although Farmers offered medical providers an opportunity to justify the charges that exceeded the established percentile, it was generally not cost-effective for medical providers to pursue those avenues. The medical providers who took advantage of the opportunity to justify their charges rarely secured any additional payment from Farmers. When the providers were unable to secure full payment from Farmers, the insureds became responsible for the unpaid amounts.
“As previously noted, Farmers selected the eightieth percentile as the cutoff point for payment of ‘reasonable’ charges. That cutoff point, though profitable for Farmers, also yielded an increase in customer complaints. The complaints were particularly problematic for Heatherington and Reinhardt, a regional claims manager, because customer service satisfaction was one of the components for measuring their performance and compensation. Together, Heatherington and Reinhardt decided that the percentile
should be raised to see whether customer relations would improve, and, on May 21, 1999, Farmers raised the cutoff point to the ninetieth percentile. Three weeks before this class action case was filed, Farmers increased the cap to the ninety-ninth percentile. Reinhart reported to corporate headquarters that this was the right tack to take ‘while the litigation is pending.‘”
Strawn, 228 Or App at 458-61 (footnotes omitted).
Plaintiff Strawn filed a class action against Farmers in August 1999. The trial court certified the class action in June 2000. Pursuant to the certification order, the class was declared to consist of “all persons who were entitled to PIP benefits from Farmers under Farmers‘s standard terms for PIP coverage, whose benefit payments were reduced by Farmers on the basis of codes RC40 or B2 during the period January 26, 1998 to July 21, 1999, and whose claims are not barred.” Plaintiffs, alleging a total of approximately 8,000 class members, asserted four claims for relief against Farmers: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) declaratory judgment, and (4) fraud.4 Plaintiffs sought punitive as well as compensatory damages.
In a stipulated statement of the case that the trial court read to the jury at the outset of the trial, the parties summarized the underlying nature of the action:
“Plaintiffs contend that Farmers failed to comply with the PIP law and Farmers’ policy contract provisions by failing to pay all reasonable medical expenses it was required to pay. * * * Plaintiffs contend that this practice of Farmers of applying these percentile reductions, and without conducting an adequate review or appeal process of these reductions, was arbitrary and unreasonable and resulted in Farmers failing to pay all reasonable medical expenses. Plaintiffs[‘] First Claim contends this practice of Farmers breached its insurance policy contract to its policyholders. Plaintiffs’ Second Claim contends that this practice of Farmers breached its implied duty of good faith and fair dealing with respect to performance of its insurance policy
contract. Plaintiffs[‘] [Fourth] Claim contends that Farmers engaged in fraud toward the class members with respect to this practice and related non-disclosures to class members.”
The jury returned a verdict for plaintiffs on their claims for breach of contract, breach of the implied duty of good faith and fair dealing, and fraud,5 awarding them $757,051.33 in compensatory damages and $742,948.67 in prejudgment interest.6 The jury also awarded $8 million in punitive damages on plaintiffs’ claim for fraud.
Ultimately, as noted, the trial court entered judgment against Farmers for approximately $900,000 in compensatory damages and $8 million in punitive damages. Farmers appealed to the Court of Appeals, raising multiple issues bearing on liability as well as challenging the amount of the jury‘s punitive damages award. The Court of Appeals rejected all but one of Farmers‘s claims of error, agreeing only that the punitive damages award exceeded constitutional limits. 228 Or App at 457. The Court of Appeals granted relief accordingly. Id. at 488. As already noted, both plaintiffs and Farmers sought review of the Court of Appeals decision, and this court allowed both petitions.
II. ISSUES ON REVIEW
On review, the issues before us divide into two categories. The first are challenges that Farmers raises in connection with the merits of plaintiffs’ various claims of
A. Whether Farmers was precluded from rebutting the reasonableness of plaintiffs’ medical expenses with individualized evidence
On review to this court, the first issue that Farmers raises is whether it was permitted to present a full defense to plaintiffs’ claims. Specifically, Farmers asserts that the trial court did not permit Farmers to present evidence to the jury that would have rebutted the reasonableness of the medical charges submitted by individual class members for PIP reimbursement and, conversely, that would have established the reasonableness of Farmers‘s investigation of those individual PIP claims.
Before turning more directly to that issue, it is helpful to describe, as context for our discussion, the relevant core theories on which the parties proceeded at trial. A key component of all of plaintiffs’ claims—including the fraud claim—was the allegation that Farmers, by using their percentile-reduction claims handling process, had failed to pay the class members’ “reasonable” medical charges. At trial, the parties took different positions on plaintiffs’ burden to establish the “reasonableness” of the class members’ medical charges. Farmers‘s position was that plaintiffs were required to present individualized proof as to the reasonableness of each class member‘s medical charges. Plaintiffs’ position was that, under the statutory scheme governing PIP benefits, the amounts charged by medical providers, as presented by their bills, were presumed “reasonable.” Thus, according to plaintiffs, once class members produced their medical bills, the burden shifted to Farmers to disprove the reasonableness of the billed medical charges.
The trial court resolved that central dispute through summary judgment proceedings, concluding that plaintiffs
After the trial court‘s summary judgment ruling, Farmers continued to preserve its position on that question, as reflected in certain procedural motions that Farmers raised. For example, at the end of plaintiffs’ case-in-chief, Farmers renewed its position by moving to decertify the class on that theory, among others, that plaintiffs’ claims (including the fraud claim) were not conducive to class treatment, because plaintiffs were required to present individualized proof of the reasonableness of their medical charges. Likewise, Farmers moved for a directed verdict at that point, urging, inter alia, that plaintiffs had the burden to prove the reasonableness of the individual medical charges submitted for PIP reimbursement and that they had failed to sustain that burden. At each juncture, the trial court adhered to its ruling that plaintiffs’ evidence of their medical bills presumptively established the reasonableness of the charges, and that the burden then shifted to Farmers to rebut reasonableness.
On appeal to the Court of Appeals, Farmers assigned error to the trial court‘s rulings on that issue, arguing, among other points, that the reasonableness of the class members’ medical expenses required individualized proof and should not be presumed based on their medical bills. Plaintiffs argued the converse. By the time the Court of Appeals issued its decision, this court had decided Ivanov v. Farmers Ins. Co., 344 Or 421, 185 P3d 417 (2008). Relying on Ivanov, the Court of Appeals rejected Farmers‘s position:
“In our view, Ivanov defeats Farmers’ contention that plaintiffs failed to offer sufficient proof of the reasonableness of their medical expenses. In this case, as in Ivanov, the ‘gravamen of plaintiffs’ complaint was that Farmers’ review methodology was an impermissible one.’ Id. at 430. Thus, plaintiffs were not required to offer any additional evidence that, at the time the bills were submitted, they were reasonable; the expenses were presumptively reasonable at that point. Instead, Farmers had the burden of
establishing that ‘the procedures it employed to deny plaintiffs’ claims satisfied its statutory and common-law duties.’ Id.”
On review to this court, Farmers no longer maintains that plaintiffs had the burden to present individualized proof of the reasonableness of their medical expenses. Rather, given the holding in Ivanov, Farmers now accepts that the amounts of plaintiffs’ medical bills presumptively established the reasonableness of their medical charges. Farmers further accepts that, once that presumption was in place, the burden shifted to Farmers to rebut that presumption by showing that its investigation and processing of the claims resulted in payment of plaintiffs’ reasonable and necessary medical expenses, thus satisfying Farmers‘s legal obligation.
What Farmers does dispute, however, is whether the trial court permitted Farmers to make that rebuttal showing. According to Farmers, the trial court cut off Farmers‘s ability to do so by excluding evidence relevant to whether Farmers reasonably investigated the individual claims and whether Farmers reimbursed plaintiffs in an amount that represented their reasonable medical expenses. Farmers urges that, by excluding such evidence, the trial court effectively made the presumption of the reasonableness of plaintiffs’ medical charges “irrebuttable,” which “was not the plan envisioned by Ivanov.” Farmers also argues that the excluded evidence had relevance beyond the narrow question of whether Farmers reimbursed the individual plaintiff class members for their reasonable medical charges. Withholding that evidence from the jury, Farmers urges, also skewed the case in favor of a classwide finding of liability and a damages award by not permitting the jury to consider evidence relevant to the reprehensibility of Farmers‘s conduct.
An essential problem with Farmers‘s arguments, however, is that they are not arguments that Farmers made to the trial court or to the Court of Appeals. To be sure, Farmers points to some items of evidence that the trial court ruled inadmissible before and during trial. But having reviewed the rulings that Farmers challenges, we agree with
Some specific rulings are illustrative.7 Before trial, plaintiffs filed a motion in limine to exclude evidence that medical providers had written off the balances of the bills that Farmers had not paid under its percentile reduction procedure. Plaintiffs also filed a motion in limine to exclude evidence that some class members either had a right to be paid, or actually had been paid, by third-party tortfeasors for the amounts that Farmers had refused to pay under the percentile reduction program. Plaintiffs argued (among other things) that those categories of evidence either were not relevant, or that, if relevant, were inadmissible under OEC 403 because the evidence would unduly prejudice or confuse the jury.
In response, Farmers argued a more narrow theory of relevancy than it now advances. With regard to provider write-offs, Farmers urged that the evidence showed that class members often did not become liable for the unpaid portions of the bills, which Farmers asserted was relevant both to damages and punitive damages. Similarly, Farmers urged that evidence of third-party tort liability was relevant to damages.8 The trial court granted the motions in limine, concluding that the challenged evidence was inadmissible under
Farmers also asserts to this court that the trial court denied it the ability to present “individualized evidence” through what Farmers characterizes as a “blanket exclusion” that effectively required Farmers to present only collective evidence as to how Farmers treated PIP benefit claims. The ruling that Farmers cites, however, was again more narrow. Before plaintiff Strawn brought this class action against Farmers, Farmers had reduced reimbursement for one of Strawn‘s medical bills, because that bill exceeded Farmers‘s percentile cutoff. At trial, Farmers sought to introduce evidence that the bill was for medical services that had been unnecessary, which, Farmers believed, would support a conclusion that Farmers lawfully could have refused to pay the bill in its entirety. See
As a final example, Farmers asserts that “the jury never learned that Farmers actually overrode RC40/B2 recommended reductions, paying submitted medical charges in full, in numerous individual cases.” Farmers‘s argument in that regard, however, is telling. Farmers acknowledges that “[t]he focus of the trial here was not on the investigation but on the reasonableness of the underlying charges.” (Emphasis in original.) In other words, the fight at trial was over whether plaintiffs’ medical bills established a rebuttable presumption of reasonableness, not over whether Farmers had rebutted that presumption by showing the reasonableness of its investigation. That was the focus because, as Farmers concedes, the law on the point had not yet been settled by Ivanov. Despite conceding that the trial was so focused, Farmers urges that, “had individualized evidence been admitted, Farmers could have shown—and did show during the claims administration process—that it had a reasonable investigation process.” In particular, Farmers urges that it “could have shown, for example,” that it overrode the recommended percentile reductions in many cases or had other reasons why reimbursement was reduced.
What Farmers now recognizes it could have shown with certain evidence is beside the point, however. The issue is whether the trial court prevented Farmers from placing evidence before the jury that was relevant to the reasonableness of its claims handling process and its PIP payments to plaintiffs. Farmers points to no place in the record where Farmers offered, and the trial court excluded, evidence that Farmers overrode the recommended reductions in individual cases. Farmers may appreciate now what it could have argued based on evidence that it either did not seek to place before the jury, or that it placed before the jury for other reasons.9 But that hindsight appreciation establishes no error on
B. Whether plaintiffs failed to present evidence of classwide reliance
The second question that Farmers presents on review is whether it was entitled to a directed verdict on plaintiffs’ fraud claim. Farmers argues that plaintiffs failed to present proof of reliance, as they were obligated to do, sufficient to support a conclusion that all members of the class detrimentally relied on Farmers‘s misrepresentation that they would pay reasonable medical expenses.
To provide context for our discussion of Farmers‘s arguments, we begin by describing plaintiffs’ fraud claim and the proof on which plaintiffs relied.11 The essential elements
“Plaintiffs’ deceit[, i.e., fraud] claims require proof that plaintiffs relied on a material misrepresentation or omission of defendants. Several class members testified about their expectations and understanding of the insurance policy and information received from Farmers about the claims process. However, there is no evidence common to the class which establishes that the absent class members relied upon any material misrepresentation or omission of the defendants.”
The trial court denied the motion, concluding that, viewed in the light most favorable to plaintiffs,12 the evidence created a jury question on classwide reliance. On appeal, the Court of Appeals agreed, explaining that evidence of reliance by the absent class members need not be direct, but could be inferred:
“[P]laintiffs offered evidence that, viewed in the light most favorable to plaintiffs, established that Farmers (1) promised to pay all reasonable and necessary medical expenses as part of its PIP coverage; (2) selected an arbitrary percentile cutoff that would increase its profits at the expense of insureds; and (3) continued to collect premiums from its insureds without informing them that it had decided not to pay all reasonable and necessary expenses. From that evidence, a reasonable trier of fact could conclude that the payment of reasonable and necessary PIP-related expenses was a material part (and, in fact, a statutorily required part) of the insurance policy and could therefore reasonably infer that plaintiffs relied on Farmers’ misrepresentation that it would pay reasonable and necessary PIP-related expenses when they continued to pay their premiums. That is, on this record, a reasonable trier of fact could conclude
that plaintiffs acted to their detriment in paying premiums for PIP coverage that Farmers never intended to provide.”
Strawn, 228 Or App at 470-71 (citations omitted).
On review, Farmers characterizes the Court of Appeals as having indulged a “presumption” of reliance, one that relieved plaintiffs of their burden to prove reliance on the part of each of the class members. Farmers argues that, as a matter of law, reliance in a fraud case “can never be presumed” and the obligation to prove reliance therefore poses a particular evidentiary challenge to a class action plaintiff. At a minimum, according to Farmers, a class action plaintiff must present “competent evidence from which a jury can conclude that class members were generally aware of a claimed misrepresentation and acted on the basis of that awareness.” Farmers thus asserts that, in the context of this case, plaintiffs had to come forward with proof that each class member knew of the representation at issue, interpreted it to mean that Farmers would pay full billed charges, and relied on that representation. Here, Farmers maintains, plaintiffs presented absolutely “no evidence,” either individualized by class member or common to the class, from which the jury could logically draw the necessary conclusion of reliance as to all class members.
Plaintiffs, for their part, agree that they had to prove reliance for the class as a whole, rather than reliance only by plaintiff Strawn or isolated members of the class. But classwide reliance, they urge, does not require direct evidence of reliance by every individual class member. Instead, plaintiffs urge, such reliance can be inferred in a proper case, and this is such a case. Here, the evidence showed that the class members received insurance policies in Farmers‘s standard form, containing the same promise to pay PIP benefits in the form of reimbursement for “reasonable medical expenses,” as defined by the policy and by statute. All class members, after being involved in an accident, made a claim for the contractually promised PIP benefits. All sought and received medical services, and all (subject to some variation shown during the individualized damages phase of the trial) received reduced payments based on Farmers‘s percentile reduction
In making their respective arguments, the parties debate at some length the significance of our decision in Newman v. Tualatin Development Co. Inc., 287 Or 47, 54, 597 P2d 800 (1979). We agree that Newman provides guidance for this case. We therefore turn to the issue presented in that case and what this court held in resolving it.
The plaintiffs in Newman were purchasers of townhouses built and sold by the defendant. They brought a class action on behalf of all such purchasers, seeking damages based on the defendant‘s use of galvanized, instead of copper, water pipes in the townhouses. The trial court had certified the class for purposes of the plaintiffs’ negligence and implied warranty claims, but declined to certify it for the express warranty claim. Based on the particular evidence presented at the class certification stage of the proceeding, this court agreed that individual determinations of reliance would be necessary, with the result that “common questions of fact would not predominate over questions affecting individual members of the class.” Id. The court explained:
“Plaintiffs contend individual determinations will not be required because direct evidence of reliance is not necessary. All that is required is proof that the seller‘s statements were of a kind which naturally would induce the buyer to purchase the goods and that he did purchase the goods.
“Plaintiffs contend that the warranty was made in a sales brochure given to all purchasers. Even if plaintiffs can prove the brochure was given to all members of the class in this case, that would not establish that every member of the class read, was aware of, and relied upon each of the representations in the brochure. The brochure made statements about many features of the townhouses, various floor plans, vaulted ceilings, color-matched kitchen appliances, brick-enclosed courtyards, etc. The water pipes and their composition is a relatively minor component.”
Citing Newman, Farmers asserts that reliance, whenever it is an element of a class action claim, must be established through direct evidence of each class member‘s individual reliance. But Newman, as the portion of the decision just quoted reveals, does not stand for that proposition. Newman expressly tied its holding to the weaknesses of the particular evidence submitted in support of class certification on the express warranty claim. Immediately after discussing those weaknesses, Newman expressly disavowed that individual evidence of reliance was required as a matter of law in all class actions:
“We do not hold that an express warranty is never an appropriate subject for a class action adjudication or that the issue of reliance always requires individual determination. However, here, the alleged express warranty is such a small part of the item purchased and the representation is interspersed with many other descriptive statements.”
Id. at 54. Newman thus turned on its particular facts, while leaving other class actions requiring proof of reliance to do the same. And although Newman did not declare when reliance can be determined through common, rather than individualized evidence, it at least suggested an answer—viz., when the same misrepresentation was made to all individual class members and was sufficiently material or central to the plaintiff‘s and the defendant‘s dealings that the individual class members naturally would have relied on the misrepresentation.13
Class certification does not foreclose issues over the adequacy of a class plaintiff‘s proof of reliance, however. Here, in certifying the class, the trial court did not list reliance as one of the issues of law and fact common to the class. On the other hand, the trial court did not treat the list of common issues as exclusive either, and did not declare in advance that reliance would be determined through individual
Such a standard for inferring classwide reliance from evidence common to the class accords with what we consider to be the better-considered authority in other jurisdictions. As many courts have concluded, whether classwide reliance can be inferred from evidence common to the class depends on the misrepresentation. A key consideration is whether the misrepresentation was uniformly made to all class members, as through standardized documents, or whether the evidence shows material variations in how the misrepresentation may have been communicated, as with oral representations made by different agents.14 A second key consideration is the nature of the misrepresentation itself: how likely it is that class members would have uniformly relied on it and, conversely, the likelihood that their reliance would vary significantly from one class member to the next.15
One particularly instructive case, with factual parallels to this one, is Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004), cert den, 541 U.S. 1081 (2005). Klay was a class action case brought by a large number of physicians against
“The alleged misrepresentations in the instant case are simply that the defendants repeatedly claimed that they would reimburse the plaintiffs for medically necessary services they provide to the defendants’ insureds[.] * * * It does not strain credulity to conclude that each plaintiff, in entering into contracts with the defendants, relied upon the defendants’ representations and assumed they would be paid the amounts they were due. A jury could quite reasonably infer that guarantees concerning physician pay—the very consideration upon which those agreements are based—go to the heart of these agreements, and that doctors based their assent upon them. *** Consequently, while each plaintiff must prove reliance, he or she may do so through common evidence (that is, through legitimate inferences based on the nature of the alleged misrepresentations at issue).”
Id.
The rule adopted by the authorities that we have cited, and implicitly suggested in this court‘s decision in Newman, is sound. To prevail in a class action for fraud, the class plaintiff must prove reliance on the part of all class members. Direct evidence of reliance by each of the individual class members is not always necessary, however. Rather, reliance can, in an appropriate case, be inferred from circumstantial evidence. For that inference to arise in this context,
Not all fraud claims will lend themselves to common evidence of reliance, rather than individualized proof. Newman is a good example of a case that did not. As the decision in Newman emphasized, the representation at issue there was one of myriad statements made in a sales brochure for the townhouses, a brochure that the evidence did not establish had been given to every putative class member. Equally important, whether individual purchasers cared about the kind of water pipes in the townhouses—which the court characterized as a “relatively minor component” (Newman, 287 Or at 54)—as opposed to other features, could readily vary from one purchaser to the next and, on the evidence before the court, simply was not established.
This case presents a more compelling basis for the inference of classwide reliance. The misrepresentation at issue here was in a uniform provision of a contract for motor vehicle insurance, not a sales brochure that may not even have ended up in the hands of all of the class members.16 The fact that the promise was in a written and binding contract of insurance, rather than in a sales brochure, provides a stronger basis than in Newman to infer classwide reliance. Even so, contracts are often complex documents, ones that can incorporate a wide array of terms, many of which contain provisions that would not—at least for purposes of a fraud claim—be uniformly understood or relied on by any person who might enter into the contract.
Persons insuring and driving motor vehicles licensed in Oregon have corresponding obligations. To register or renew a motor vehicle license in Oregon, the applicant must provide assurance of compliance with the financial responsibility laws.17
Against that extensive regulatory backdrop, a person who purchases a motor vehicle policy to meet the financial responsibility requirements of Oregon law does not need to read the policy to justifiably rely on its provisions. That person has no choice to buy a policy without PIP coverage. The insurer issuing the policy has no choice to issue it without PIP coverage. The entire scheme is structured to permit the purchasers of such insurance, as well as the state in its regulatory role, to have confidence that the policy provides all coverage, including PIP benefits, that is required to meet the financial responsibility laws. Given the statutory requirements for the contents of motor vehicle policies, and the responsibilities imposed on persons who are obligated to purchase such policies, an insured‘s reliance on the PIP coverage that the policy provides is inherent in the purchase of the insurance, or at least, a factfinder is entitled to infer as much.18
That permissible inference of reliance is not altered by the fact these policies, as motor vehicle liability policies commonly do, contained several types of coverage in addition to the PIP coverage at issue. See 350 Or at 375-76 (Balmer, J., dissenting) (noting that policies at issue also provided liability coverage, uninsured and underinsured motorist coverage, collision coverage, and comprehensive coverage). Some of the other coverage is likewise mandatory. See
C. Whether the Court of Appeals correctly resolved Farmers‘s challenge to the constitutionality of the punitive damages award
The final issue before us is one that both parties raise on review: whether the Court of Appeals correctly determined that the amount of punitive damages awarded by the jury in this case was constitutionally excessive. Relying on its understanding of the applicable federal due process standards, the Court of Appeals concluded that the jury‘s award of $8 million in punitive damages was excessive, and that the highest amount that the jury could constitutionally award was four times the combined amount of plaintiff‘s compensatory damages and prejudgment interest. Strawn, 228 Or App at 485. The court therefore vacated the judgment with instructions to grant Farmers a new trial on the issue of punitive damages, unless plaintiffs on remand were to agree to a remitittur of the punitive damages award. Id.
On review to this court, both parties assert that the Court of Appeals’ 4:1 ratio is legally in error. Farmers contends that the ratio should be lower; plaintiffs contend that the ratio should be higher. Preliminarily, however, plaintiffs also contend that Farmers‘s challenge to the punitive damages award was not properly before the Court of Appeals and, therefore, the Court of Appeals should not have reached it at all. We turn to plaintiffs’ argument in that regard because, as we will explain, it is dispositive.
As context for our discussion, we begin by describing the parties’ post-verdict positions on whether the trial court should have reduced the jury‘s punitive damages award, as advanced in the procedural motions and memoranda that the
What is important for our purposes is that Farmers‘s motions and plaintiffs’ opposition to them framed two broad issues on which the parties disagreed. The parties not only disagreed on the merits of Farmers‘s motion (viz., whether the jury‘s punitive damages award comported with constitutional standards), they also disagreed about what procedures a defendant must follow to preserve a constitutional objection to the excessiveness of a jury‘s punitive damages award.
Farmers responded to plaintiffs’ waiver and other procedural objections by arguing that a defendant cannot challenge a verdict for punitive damages as excessive until after the jury renders its verdict. Farmers urged that alternative motions for remittitur or new trial were the appropriate procedural means for raising its federal due process objection to the punitive damages award, citing Parrott v. Carr Chevrolet, Inc., 331 Or 537, 558-59 n 14, 17 P3d 473 (2001) (party cannot challenge verdict for punitive damages as constitutionally excessive until after jury renders verdict; motion for new trial is among appropriate procedures for
Ultimately, the trial court agreed with plaintiffs, both with their procedural position and with their position on the merits. In its oral ruling, the trial court found “at the outset” that “there‘s been waiver” by Farmers and that, in the court‘s view, “a finding of waiver is actually dispositive.” The trial court also considered the merits of Farmers‘s challenge, stating expressly that it was doing so in the alternative, because of the possibility that an appellate court would not agree with the court‘s waiver determination. On the merits, the trial court concluded that the jury‘s punitive damages award was not constitutionally excessive. The written findings of fact and conclusions of law that the trial court later issued were consistent with its oral declaration, although more detailed. In them, the trial court concluded that Farmers had waived its constitutional objections, that its motions were procedurally defective in other regards, and that, on the merits, Farmers‘s challenge that the punitive damages award was excessive failed.
On appeal to the Court of Appeals, Farmers‘s opening brief assigned error to the award of punitive damages, but did not specify the rulings being challenged.20 The sole argument that Farmers made in support of its claim of error was that the trial court had erred in resolving the merits of the motion against Farmers. That is, Farmers argued at length that the jury‘s punitive damages award exceeded federal due process standards, and that the trial court had erred in concluding otherwise. Farmers made no mention of the trial court‘s procedural ruling that Farmers had waived its
In response to Farmers‘s argument, plaintiffs first urged that the Court of Appeals could not reach the issue of whether the award was excessive, because Farmers had not challenged the waiver and other procedural grounds on which the trial court ruling also rested. Plaintiffs then argued, in the alternative, that the trial court‘s resolution of Farmers‘s excessiveness challenge to the punitive damages award was correct. In its decision, the Court of Appeals resolved the Farmers‘s excessiveness challenge without acknowledging or addressing the waiver and procedural grounds on which the trial court had alternatively based its ruling. Strawn, 228 Or App at 476-85.
On review, plaintiffs challenge the Court of Appeals’ failure to affirm the trial court on the alternative procedural grounds that Farmers did not challenge. Farmers, for its part, does not question the proposition that, when a court‘s decision or ruling is premised on alternative grounds, a party challenging that ruling generally must take issue with all independent and alternative grounds on which it is based to obtain relief. Cf. State ex rel Juv. Dept. v. Charles, 299 Or 341, 343, 701 P2d 1052 (1985) (dismissing petition as improvidently granted, because Court of Appeals decision rested on an independent ground and state petitioned for review on one ground only; thus, this court would be required to affirm the Court of Appeals on the issue for which review was not sought). Neither does Farmers disagree that the trial court in fact did conclude that Farmers had waived and procedurally defaulted in bringing its challenge to the punitive damages award, as alternative grounds for resolving that award. And finally, Farmers does not dispute that, to preserve an issue on appeal, a party must make the issue the object of a proper assignment of error and supporting argument in the party‘s opening brief. See ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error * * * is assigned as error in the opening brief ***” (Emphasis added.)).
That analysis, however, overlooks the legal effect of the trial court‘s ruling at the time of the hearing. During the hearing, the trial court stated that it was denying Farmers‘s motions and briefly explained its reasons on the record, including its waiver determination. The court then signed—in open court—an order denying Farmers‘s motions, and expressly declared that it was doing so: “At this time I‘m signing the order denying Farmers‘s motions which I‘ve already identified. So that order is signed.” Under
We find no merit to that contention. By its terms,
We therefore conclude that the Court of Appeals erred in reaching Farmers‘s challenge to the punitive damages award as excessive. The trial court articulated two alternative reasons for denying Farmers‘s motions (waiver and other procedural defects, as well as a conclusion on the merits that the award did not exceed constitutional limits). The trial court further expressly concluded that both bases on which it ruled were independently sufficient to support the trial court‘s ruling. Logically, that was true. On appeal, Farmers
In so concluding, we emphasize that we do not decide whether the trial court‘s alternative grounds for its ruling were sound. The correctness of the trial court‘s waiver and other procedural analyses are not before us, just as those issues were not before the Court of Appeals. Indeed, it is precisely because the trial court‘s alternative grounds for ruling were not challenged by Farmers that the issue of the excessiveness of the punitive damages award was not before the Court of Appeals for its determination. Likewise, whether that award was constitutionally excessive is not before us. For that reason, the punitive damages award must be affirmed.
III. CONCLUSION
We reject Farmers‘s arguments on review that the trial court either committed evidentiary error or erred in denying Farmers‘s motion for directed verdict. We agree with plaintiffs that the Court of Appeals should not have reached the merits of Farmers‘s assertion that the punitive damages award exceeded constitutional limits. The decision of the Court of Appeals is reversed in that respect only.
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed.
BALMER, J., dissenting.
The majority labors long and faithfully to bring this tortured case, filed in the last century, to a conclusion, and I
This was never a simple case, but it evolved into an unfortunately—and unnecessarily—complex proceeding. That complexity was, in part, the result of choices made by both parties (at trial and on appeal) and by the trial court, but it also arose from the statutory context of the claims (including the insurance code and the financial responsibility law), the overlay of class allegations, the shifting legal landscape created by appellate decisions issued during the decade that the case was pending (such as Ivanov v. Farmers Ins. Co., 207 Or App 305, 140 P3d 1189 (2006), rev‘d, 344 Or 421, 185 P3d 417 (2008)), and the ever-changing procedural and substantive rules involving punitive damages. At the end of the day, that complexity created a variety of traps for the unwary, which, in large part, form the basis for the Court of Appeals’ rejection of many of Farmers‘s arguments and this court‘s rejection of Farmers‘s argument regarding the amount of punitive damages.
Some of those traps (to continue the metaphor) may have been set by Farmers itself, either inadvertently or for reasons of trial strategy, and I agree with the majority that established rules of preservation prevent Farmers from raising a variety of otherwise potentially meritorious arguments on appeal. However, for the reasons set out below, I disagree with the majority‘s conclusion that evidence in the record supported the jury‘s finding that plaintiffs and the class
The gravamen of plaintiffs’ case was that Farmers had instituted a procedure for reviewing charges by medical providers that provided care to Farmers‘s insureds under the “personal injury protection” (PIP) coverage of their automobile insurance policies. Under the procedure, charges at or less than the eightieth percentile of charges for comparable procedures in the same geographic area would be considered by Farmers to be “reasonable” and paid.2 Charges in excess of the eightieth percentile were considered excessive and were paid only in exceptional circumstances. Plaintiffs alleged that Farmers‘s procedure violated
The majority rejects Farmers‘s argument that the trial court erred in denying its motion for a directed verdict on the fraud claim, holding that plaintiffs introduced sufficient evidence for the jury to find that the class representatives and the class as a whole relied on misrepresentations that Farmers made to them. To put it bluntly, even if Farmers‘s insurance policies (or the insurance code) could be construed to constitute a representation to policyholders that Farmers would pay all “reasonable” charges, which representation was false because Farmers in fact intended to base its “reasonableness” determination on (and only to pay) all charges at or below the eightieth percentile, there is scant evidence that any plaintiff relied, to his or her detriment, on that representation. And there is virtually no evidence from
I first discuss the majority‘s reliance holding and then consider other ways in which reliance might be proved here. “Reliance,” of course, is an element of fraud, and must be proved. See Gardner v. Meiling, 280 Or 665, 671, 572 P2d 1012 (1977) (“Implicit in the element of reliance is a requirement [that] the plaintiff prove a causal relationship between the representation and his entry into the bargain.“). The majority appears to accept plaintiffs’ argument that reliance need not be proved by “direct” evidence and that it can, instead, be “inferred,” 350 Or at 354, and in an appropriate case that might be true. But the majority goes on to hold that, because the class members were required by law to have insurance, bought policies from Farmers, “received” those policies (which included a statement that Farmers would pay “reasonable” PIP charges), and then made PIP claims, a jury could find that they “relied” on Farmers‘s misrepresentations. Id. at 360-62. The majority, without citation to any case or statute, then reaches the quite far-reaching conclusion that “an insured‘s reliance on the PIP coverage that the policy provides is inherent in the purchase of the insurance.” Id. at 361 (emphasis added). Based on that understanding, it is but a small step for the majority to conclude that “a jury could infer from evidence common to the class that the individual class members relied on Farmers‘s misrepresentation that it would pay its insureds’ reasonable medical expenses.” Id. at 362.
What is missing from the majority opinion, however, is a discussion of how the class representatives relied on Farmers‘s misrepresentations: what the plaintiffs did, or did not do, because of Farmers‘s misrepresentations. Ordinarily, in fraud cases, the plaintiff must prove that the misrepresentation “induced [the plaintiff] to make the agreement,” Gardner, 280 Or at 671. Even in the rare case where this court has allowed a fraud claim to proceed in the absence of a direct misrepresentation conveyed to the plaintiff, we always have insisted that the plaintiff allege and prove reliance. See Handy v. Beck, 282 Or 653, 656, 581 P2d 68 (1978) (permitting fraud claim based on false drilling report filed with state
The majority‘s position, in contrast, seems to be that it doesn‘t really matter whether any of the named plaintiffs (or the class members) either received or relied upon any representations about Farmers‘s PIP coverage, either before or after they bought the policies, or before or after they submitted PIP claims.3 That gap is bridged by the majority‘s assertion, quoted above, that reliance is “inherent in the purchase of the insurance.” Although the majority suggests at one point that it was important that the representations were “uniform” and that all class members received “written and binding contract[s] of insurance,” 350 Or at 359, the logic of the majority‘s position has nothing to do with those facts. Indeed, the majority‘s reasoning detaches “reliance” from any affirmative representation of any kind to a policyholder and from any action or omission by that policyholder, and makes it depend instead on the statutory requirements of the financial responsibility law and the insurance code. That analysis would seem to support including within the class any person who had a Farmers policy, whether or not they ever received a copy of it or had any idea of its terms.
Indeed, although the class here included only persons who had PIP charges that exceeded Farmers‘s payment level, one can easily imagine a fraud claim on behalf of a class of all Farmers policyholders who assert that they overpaid for their policies because they were paying for (and thought that they had) policies that complied with
One case that the majority does cite is Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004), cert den, 541 U.S. 1081 (2005), which the majority states is instructive because
Klay also reiterates the well-established rule that “each plaintiff must prove reliance” to make out a fraud claim, and also makes the point, with which I agree, that “‘he or she may do so through common evidence (that is, through legitimate inferences based on the nature of the alleged misrepresentations * * *).‘” 350 Or at 358, quoting Klay, 382 F.3d at 1259. But Klay also emphasizes—in a way that directly undercuts the majority‘s holding here—that “reliance may not be presumed in fraud-based RICO actions; instead the evidence must demonstrate that each individual plaintiff actually relied upon the misrepresentations at issue.” Klay, 382 F.3d at 1257-58 (emphasis added). And the case that Klay relies upon for that proposition, Sikes v. Teleline, Inc., 281 F.3d 1350, 1362 (11th Cir 2002), makes the point even more forcefully: A plaintiff must demonstrate that he or she “relied on a misrepresentation made in furtherance of [a] fraudulent scheme” because “[i]t would be unjust to employ a presumption to relieve a party of its burden of production when that party has all the evidence regarding that element of the claim.” (Emphasis added.) By holding that reliance, in this case, is inherent in the purchase of the insurance and thus that the jury could infer classwide reliance based on the existence of the insurance contracts, the majority creates the very presumption that Klay and Sikes caution against.
Klay contrasts with this case in another way that demonstrates why the majority errs in allowing reliance to be presumed in this case because it is inherent in the purchase of insurance. There, the representation by the HMOs that
In terms of the significance of the misrepresentation to any action that a plaintiff might take in reliance upon it, this case is far more like Newman v. Tualatin Development Co. Inc., 287 Or 47, 597 P2d 800 (1979), than Klay. In Newman this court rejected an effort by plaintiffs in a class action to prove reliance based on an express representation to class members. We did so, not because reliance always must be proved by individual evidence from each class member—as the majority notes, we expressly rejected that argument—but because, in that case, “the alleged express warranty is such a small part of the item purchased and the representation is interspersed with many other descriptive statements.” 287 Or at 54. “[R]eliance upon the express warranty,” we concluded, “is not proved merely by evidence that the warranty was contained in a sales brochure given to all class members.” Id. (emphasis added). For the same reasons, it is not appropriate in this case to permit the jury to infer that each class member, simply by buying a policy from Farmers, relied on Farmers‘s misrepresentations regarding “reasonable” medical expenses for PIP claims.
There are, of course, cases where courts allow reliance to be proved without actual evidence that the plaintiff
Having concluded that reliance on Farmers‘s representations cannot be presumed on these facts and is not “inherent” in the plaintiffs’ purchase of insurance, I consider briefly what evidence might be sufficient to show reliance here and whether the record contains such evidence. The fraud cases discussed above tell us what ordinarily is required to prove reliance: in Gardner, that the misrepresentation “induced [plaintiff] to make the agreement,” 280 Or at 671; in Handy, that plaintiffs “would not have purchased the property,” absent the misrepresentation, 282 Or at 656. And that is the way reliance ordinarily is proved in cases ranging from common-law fraud to statutory class actions.
Here, one would expect plaintiffs to prove reliance by testifying that, had they known the truth about Farmers‘s PIP reimbursement policy, they would not have bought the policy—and that they would bolster those assertions by showing that, after they learned that Farmers had misrepresented its practices, they changed insurance companies. At the very least, a plaintiff would offer credible testimony that he or she was induced to take some action, or intentionally declined to take some action, because of Farmers‘s misrepresentations and that the action or omission caused harm to the plaintiff.
The record contains virtually no such evidence. Most of the six plaintiffs who testified explained the representations that Farmers made to them in a way that was inconsistent with the allegations in the complaint (and with plaintiffs’ theory of the case). Strawn, for example, believed that
Strawn did testify that the PIP benefit amount actually stated in the policy looked like it would “not go very far.” But when asked what he did in reliance on that observation, Strawn said that if he had known about Farmer‘s reduction plan, he would have “gotten more coverage” because he knew medical bills can add up quickly. Plaintiffs’ theory in this case, however, was not that the total amount of PIP benefits was too low—that amount was clearly set out in the policy and met statutory requirements—but rather that Farmers promised to pay all reasonable and necessary expenses incurred, up to the amount stated in the policy, when in fact it did not intend to do so. So, even if the jury believed Strawn when he said he would have gotten “more coverage” than the basic PIP amount, that testimony supports no allegation in the complaint. Strawn‘s testimony simply does not show any reliance on Farmers‘s misrepresentation that it would pay “all reasonable and necessary” PIP expenses.
Moreover, hard as it is to believe, even after some of Strawn‘s medical charges were denied because they exceeded the eightieth percentile, Strawn continued to maintain his Farmers automobile insurance policy and still was insured by Farmers at the time of trial. Similarly, plaintiff Weiss continued to be insured by Farmers, despite the fact that Farmers paid less for his PIP-related medical expenses than he thought they should. (Although several plaintiffs testified
The six plaintiffs who testified expressed various degrees of dissatisfaction with Farmers‘s PIP reimbursement policy and some testified to efforts made by medical providers to recover unpaid fees from them. But there was virtually no testimony from any plaintiff that he or she received and read Farmers‘s misrepresentations or that he or she took any particular action (or failed to take any particular action) in reliance on those misrepresentations. Much less was there any evidence from which a jury could infer that the entire class of Farmers policyholders who made PIP claims relied on any misrepresentation.
Whatever the strength of plaintiffs’ nonfraud claims—and of the other elements of plaintiffs’ fraud claim—plaintiffs failed to offer sufficient evidence of reliance for the fraud claim to go to the jury.6
I dissent.
Notes
“(1) Personal injury protection benefits as required by
“(a) All reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the person‘s injury, but not more than $10,000 in the aggregate for all such expenses of the person. Expenses of medical, hospital, dental, surgical, ambulance and prosthetic services shall be presumed to be reasonable and necessary unless the provider is given notice of denial of the charges not more than 60 calendar days after the insurer receives from the provider notice of the claim for the services.”
The statute has since been amended to increase the policy limit to $15,000, a change that is inconsequential to this case. Or Laws 2003, ch 813, § 2. Other than that change, the quoted portions of the statute remain the same. All references to the statute in this opinion are to the 1997 version. Farmers later changed the eightieth percentile level to the ninetieth and then the ninety-ninth.The second step in assessing damages was a claims adjustment process to refine downward any compensatory damages awarded by the jury. Because of the class action posture of the case, before the trial court could enter final judgment, it first had to offer class members the opportunity to file individual claims for damages.