Bad Faith Court Cases

IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT_____________
OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA_______________ 11:15 P.
M.

CINDY ROBINSON,Plaintiff,

VS.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant.

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Case No.
CV OC 94-98099D
MEMORANDUM DECISION

This matter is before the court on defendant’s motions for judgment notwithstanding the verdict under IRCP 50(b), for new trial under IRCP 59(0), and (alternatively) for remittitur under IRCP 59.1. For the reasons set forth herein, the motions are denied.

Background

Plaintiff Cindy Robinson claimed she was injured when the left rear wheel of her car fell off as she was driving at highway speed on the interstate. She was insured by defendant State Farm Mutual Automobile Insurance Company [State Farm], under a standard form automobile policy which included medical payment coverage with limits of $25,000.

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The accident occurred on January 17, 1992. She complained of back pain and sought medical attention within a few days. She was treated conservatively during January and early February, and was eventually operated on for a herniated disk on February 26, 1992.

Robinson reported the occurrence to State Farm on April 8, 1992, and requested payment of the ongoing medical bills. State Farm paid $1,662 of pre-surgery medical bills in July of 1992, but initially declined to pay any bills related to the surgery or any of the bills incurred thereafter. Robinson filed this suit on August 23, 1994. State Farm paid the remaining limits of Robinson’s medical expense insurance coverage to certain medical providers on March 15, 1995.

The case was tried before a jury, which returned a verdict for the plaintiff. Damages were assessed in the amount of approximately $2,500 damages under the policy, $100,000 consequential damages for intentional infliction of emotional distress and $9,500,000 for punitive damages. Judgment was entered on the jury verdict, and the instant post trial motions followed.

Motion for Judgment Notwithstanding the Verdict

Judgment notwithstanding the verdict under IRCP 50 (b) is likened to a motion for directed verdict made after the trial. The moving party must accept as true all of the evidence submitted. The court is not obligated or permitted to construe the evidence or weigh the value of it. The court must accept all of the admissible evidence in the light most favorable to the plaintiff’s position,

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and if there is sufficient evidence to support the jury verdict, it may not be reversed. Lanham v. Idaho Power Co., 130 Idaho 486 (1997); Quick V. Crane, 111 Idaho 759 (1986).
In this case, there was substantial, competent evidence to support the jury verdict. There is no dispute that the auto accident happened as plaintiff claimed. Robinson obtained medical assistance, was diagnosed eventually as having a herniated disk, and two treating doctors reported that, in their medical opinion, the disk problem was proximately caused by the accident. This advice was transmitted to the claims examiner of State Farm. There is no dispute that the resultant surgery was necessary to the medical condition, and that the expenses and medical treatments that followed were all necessary and reasonably incurred as a result of that medical condition. All of this information was transmitted to the claims examiner of State Farm.
The evidence was overwhelming that the claims examiner did not treat the claim as a first party claim for medical benefits as he was obligated to do under the policy and under the duties owed under Idaho law but rather as a third party, adverse claim. The claims examiner testified that he did not even know the difference between a first party claim and a third party claim, and had never beer, trained by State Farm as to the different requirements of each.
He conducted no objective examination of the facts of.’ the occurrence, or of the medical condition which plaintiff’s doctors advised were the result. He made no effort to contact the

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plaintiff’s treating physicians. Instead, and based only on his own intuition that the occurrence could not have caused the injury as plaintiff contended, he determined that claim was not well founded. He allowed a small portion of the initial medical expenses incurred, for the diagnostic work up and conservative treatments, but declined to allow any of the claimed expenses for the surgery and all resulting care thereafter. He did not deny the claim, as he was obligated to do under the policy. Instead he advised the insured on numerous occasions only that there was insufficient information to support payment at that time. He did not, however, advise what additional information he expected.

Plaintiff and her counsel pressed the adjuster for a reason why he was not allowing the claim. To bolster his determination not to pay the claim, he referred the medical information and records on plaintiff’s case to an outside utilization review company for evaluation. He advised plaintiff and her counsel that the outside utilization review would constitute an independent and objective evaluation of the medical causation issues. During the next year or more, this company returned several reports, ostensibly signed by physicians, advising that in their opinion and based upon the medical records, there was no proximate cause linkage between the surgery and the accident.

The evidence was overwhelming that the utilization review company selected by the claim examiner was a completely bogus operation. The company did not objectively review medical records, but rather prepared “cookie cutter” reports of stock phrases,

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assembled on a computer,supporting the denial of claims by insurance companies. The insured’s medical records were not examined and reports were not prepared by doctors, or even reviewed by doctors.
The evidence was that the machinery was set up within State Farm for the utilization of this paper review organization with the knowledge that the reports were not objective, but slanted to favor the denial or reduction of claims, that State Farm management knew of the fact that the reports from the review agency utilized in this case were false, that they were not signed by physicians as represented, and that, nevertheless, State Farm permitted and directed the use of such agencies anyway.
When Robinson still continued to press her claim, the State Farm claims examiner next arranged for a medical examination by a local physician. The evidence established that the physician selected for this examination is closely connected to insurance defense cases. Before the physician conducted his examination, he was provided with the medical review reports from the paper review agency, he talked on the telephone with the claims examiner and he met privately with State Farm’s in?house counsel. This physician prepared a report supporting denial of the claim.
It may be appropriate in a third party claim situation, where the company was entitled to be adverse to the claimant since it is charged under its policy with the duty of defending claims against its insured, for the insurance company to obtain an evaluation from a physician it knows to clearly favor the insurance company’s

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interests. However, the reference of their own insured to such a captive physician in connection with the evaluation of a first party claim cannot be said to be an attempt to obtain an objective assessment. The company cannot place its own interests ahead of its own insured in evaluating a first party claim, which is what the evidence clearly demonstrates occurred in this case.

The inferences from the evidence were inescapable that the claims examiner in this case did not use the paper review process and referral to the captive physician with any intent of obtaining an independent, objective review of the plaintiff’s medical circumstance. Rather, he did so with the expectation that the reports issued would support his denial of the claim. The evidence was further clear that the procedures which enabled the claims examiner to utilize these slanted and biased reviews and examinations were set up by State Farm management, included in the training given to claims examiners, and encouraged by management as cost cutting devices.

Competent evidence was offered that State Farm management was aware of the tainted reports being generated by the paper review organizations and use of captive physicians for independent medical examinations, but was deliberately indifferent to the deficiencies because the reports were leading to reduced claim expenses. The evidence was sufficient to support the conclusion that the decision to delay and stall the medical claims of Robinson was not based on a fair debate. The only debate that existed was the debate engineered by the claims examiner, predicated on his unfounded

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intuition and supported only by the phony reports from the paper review organization and the scripted advice of the captive doctor. The insurance company cannot create a dispute against the claim out of thin air, and then claim it is entitled to debate the dispute it created as a defense to its delay in evaluating and paying the amounts justly due.

The proof indicated that the phony processes and improper claims handling procedures by the line adjuster in this case permeated from the local office to regional management, and that the procedures enabling the use of paper review companies with the expectation of false and misleading reports permeated to the very top levels of State Farm at the national level.

There is no basis for consideration of a motion for judgment notwithstanding the verdict.

Motion for New Trial

Defendant moves for new trial upon a variety of grounds, and under a variety of subsections of IRCP 59, or in the alternative for a remittitur under IRCP 59.1. The alternative motion for new trial under IRCP 59(a) or remittitur under Rule 59.1 requires an entirely different analysis than that required for j.n.o.v. under Rule 50 (b) .

Insufficiency of the Evidence Under Rule 59(a)(6)

Considering first a motion for new trial under IRCP 59 (a)'(6), according to the requirements of Quick v. Crane, supra, Robertson v. Richards, 115 Idaho 628 (1989), and Blaine v. Byers, 91 Idaho

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665 (1967), a motion for new trial requires me to weigh the evidence, and to determine myself whether the result should stand. I need not view the evidence most favorably towards the plaintiff, but am to make my own assessment, based upon all of the evidence. Hinman v. Morrison?Knudsen Co., Inc., 115 Idaho 869 (1989). The overriding concern is whether or not justice was served

The analysis is in two parts. In the first part, I am to determine whether the verdict was against the clear weight of the evidence, and whether justice would be served by granting a new trial. Roberts v. Richardson, supra; Blaine v. Byers, supra. I am directed to weigh the evidence and draw my own conclusions on the credibility of the witnesses and the inferences to be drawn. This is not a completely free review of the evidence, nor am I free to substitute my views for that of the jury at will. I am directed to give due respect to the collective wisdom of the jury and to the function entrusted to it under our constitution.

Under the instructions articulated in Quick v. Crane, supra, giving full respect to the jury’s findings and based on all of the evidence in the case, I am not left with the deffinite and firm conviction that a mistake has been committed in this case. To the contrary, I find that the jury verdict, as to all counts, was fully in conformity with the overwhelming weight of the evidence.

The plaintiff, as well as the defendant, has a constitutional right to a determination of issues by a jury, and that deter mina ought not to be disturbed unless the considerations for doing so. are compelling. In order to interfere, the law requires that

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the trial judge be satisfied that the clear weight of the evidence mandates a different result and that he be firmly and definitely convinced that an injustice has occurred. I am not so convinced here, and I therefore decline to interject a different conclusion. Quick v. Crane, supra; U.S.. v. U.S. Gypsum Co., 333 U.S. 364 (1948) .
While I am concluding, under the first part of the analysis required by Quick v. Crane, supra, Robertson v Richards, supra, and Blaine v. Byers, supra, that a new trial is not justified, I further find and conclude that, in my view, it would be pure conjecture to predict that a different result would be reached if tried again, which is the second part of the analysis required.
I decline to grant a new trial based upon a claim of insufficient evidence under Rule 59(a)(6).

Errors in Law under Rule 59(a)(7)
In addition to the contentions that there was insufficient evidence to support the verdict, State Farm also contends that the trial court erred in granting the motion to dismiss its affirmative defense, and in failing to instruct the jury that the plaintiff had to prove a breach of contract, rendering the verdict against the law.
I address first the contention that State Farm has a viable defense of misrepresentation, by which it could avoid liability under the policy. I would observe first that Idaho Code § 4111811 does not create a statutory defense to recovery under an insurance

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policy. Rather, the statute defines what is a “representation” (or misrepresentation) as opposed to a warranty; and places certain restrictions and conditions upon common law defenses pertaining to avoidance. The statute codifies the common law, with the statutory enhancements. If anything, the statute limits the right of an insurance company to avoid liability under a policy.

Under the common law defense of misrepresentation, the contractual obligation might be avoidable, but was not void, and if the party sought to avoid the contract on this ground, the party claiming the misrepresentation was obligated to tender back the consideration received. One could not claim the benefit of the bargain and avoid its obligation. As stated at the time of the ruling during trial, to my mind Idaho Code § 41?1811 does not change this requirement for tender of consideration paid when the remedy sought is a rescission or avoidance of contract. See, e.g, Crowley v. Lafayette Life Ins. Co., 106 Idaho 818 (1984).

In this case, the issue was not raised until well after the bad faith complaint was filed by the plaintiff. Well into the litigation, the answer was amended to include the affirmative defense of misrepresentation as a basis to avoid liability under the policy. No tender back of the consideration was made at or prior to the advancement of the claim of rescission-1

‘Defense counsel made a tender of refund of premiums during trial, after the court had ruled and granted the plaintiff’s motion to dismiss the affirmative defense. He concluded then-that the tender was untimely, and continue to so conclude.

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In addition, plaintiff’s counsel makes the compelling argument that even where an insurance contract might be avoidable upon some grounds, nevertheless the insurance company is still obligated to act fairly and in good faith toward its insured during the existence of the contract and until it is, in fact, avoided. The acts under consideration in plaintiff’s claim of bad faith consist of the actions of the company in denying the claim and continuing to do so until the claim was eventually paid some three plus years later. All of these actions took place before the company made any assertion that the policy should be declared void. The contention of misrepresentation to avoid the claim did not come until well after the claim had finally been paid. Therefore, argues the plaintiff, the rescission claim comes too late to avoid the consequences of the bad faith in any event. I conclude there is merit to this argument.

For these reasons, I continue to adhere to the decision dismissing the thirteenth affirmative defense. Turning to the contention that the court erred in instructing the jury on the burden of proof on the elements of the plaintiff’s case, both sides have misconstrued my ruling. State Farm argues that the plaintiff was obligated to prove a predicate breach of contract by offering evidence through competent medical testimony that her injuries were the result of the auto accident. Robinson argues that the actual contract was not even material to her action in tort for bad faith. To my mind, both are wrong.

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In this case, the duty in tort is founded upon contract and the existence of a breach of the contractual duty is essential to the cause of action in tort. The duty is in contract, the damages are measured in tort. The test here is in determining and defining what duty is involved in the case.

The insured has a duty to be honest and forthright in the submission of claims. The insured’s duty under the policy is to report claims promptly, provide medical information requested, and cooperate with the efforts of the insurer in the investigation of the claim. There is no evidence here that the plaintiff was not honest and forthright in making her claim for payment in this instance. There is no evidence that the claim was exaggerated or falsified by the plaintiff in any way. The evidence was generally undisputed that the plaintiff turned over all of the medical information and details concerning the accident to the adjuster for State Farm, and otherwise cooperated with the insurance company during its investigation of the claim.

State Farm took forever to adjust the claim, and eventually paid it. The issue, their, becomes whether the delay was justified. Was there a reasonable basis for State Farm to delay its decision to pay the claim. The plaintiff’s prima facie case is made when she establishes that the accident happened, that she made a timely report of the accident, delivered medical reports from her physicians indicating a causal link between the accident and the medical conditions and otherwise cooperated with the insurance company investigation, and that the company delayed for an

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unreasonable length of time in making its decision to pay. The jury was so instructed, and I continue to conclude there was no error.

The issue would have perhaps been different if State Farm had denied the claim to the end,which would have framed the issue of whether the claim itself was within the policy or not. In this case, however, since State Farm paid the claim, the issue over the breach under the policy was in the delay of payment, not the outright denial of it, and the elements of proof were changed accordingly. There was no error in the jury instructions on point. Also under this rule, State Farm advanced a number of claimed errors in the admission of evidence. None, however, are merited.

a. The letter in the claim file, exhibit 2: The claim file was admitted by stipulation; there was no objection to admission of the exhibit or any part of it, and no request was made to redact or withdraw any allegedly privileged materials.

b. The testimony of Dr. Juola: This issue was explored in detail during the trial. I did allow the witness’s summary calculations on those aspects which were revealed in detail. However, with respect to other calculations, State Farm refused to reveal the underlying details behind Dr. Juola’s summaries. Without this foundation being offered for examination during discovery, the rules of evidence say the summary is not admissible. Idaho Rule of Evidence 1006; State v. Barlow, 113 Idaho 573 (Ct. App. 1987). I declined to allow testimony of the summary calculations in these areas.

c. The Mediclaim publication: This issue was explored at length during trial, and I continue to adhere to my reasons at trial for the admission of and use of this exhibit.

d. Alleged hearsay conversations: The witness Mathis’s testimony concerning his conversations with Stacy (the State Farm executive) about what he learned from Gots (fro ‘ the paper review organization) was not hearsay. It was admissible to prove that State Farm, through Stacy, was made aware of the deficiencies in the paper review process, and to prove State Farm’s reaction to the information.

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e. Evidence of interest on the delayed payment made. The argument that no interest is due plaintiff, since the money did not go to her but to her medical providers, is without merit. Clearly, it was the plaintiff’s obligation that was being satisfied by payment of the medical expenses to the providers. Even though the payment was to the provider, it was on behalf of the plaintiff, and due under a contract. Interest is included as an implied obligation under Idaho Code § 28?22?104.

I conclude there is no basis for a new trial under Rule

59 (a) (7) .

Excessive Damages Under Rule 59(a)(5)

Under this part of the Rule, and according to the instructions of Dinneen v. Finch, 100 Idaho 620 (1979) and Quick v. Crane, supra, I must weight the evidence and make my own determination of what an appropriate award would be, and to test the jury verdict against my own assessment.

My determinations are not of equal parity with the determinations of the jury. Even if my assessment is different from that of the jury, I may not disturb their
determinations unless the disparity is so great as to “shock” my conscience or constitute an “unconscionable” result; the essential element necessary to a determination that the jury erred is a conclusion that the verdict appears to have been the result of passion or prejudice. Sanchez v. Galey, 112 Idaho 609 (1987); Soria v. Sierra Pacific Airlines, Inc., 111 Idaho 594 (1986). While actual passion or prejudice need not be shown, but may be presumed if the disparity is great enough, it is clear that there must be a significant difference between the trial judge’s assessment and that of the jury to justify intervention.

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In this case, the challenge to the amount of damages as being excessive in the motion for new trial is addressed only to the punitive damage aspect. Punitive damages are intended to punish and deter; they are not compensation to the victim, although the victim will receive the monetary benefit. Punitive damages should be proportionate not only to the act and the losses suffered by the victim, but proportionate to the risk of further injury to others, or the public generally, if any. Punitive damages will be ineffective to accomplish the intent of the law if the assessment is not significant enough to demand attention; where the acts have permeated the top management of the corporation, the significance of the damage award must reach the top management.

I recognize that the law views with disfavor punitive damage awards, and that circumstances justifying their award are rare. Cheney v. Palos Verdes Investment Corp., 104 Idaho 897 (1983). In this case, however, I find that punitive damages are fully justified. The conduct of the defendant meets not just some but every one of the criteria set forth in the law. The defendant’s conduct in this case was outrageous, intentional, harmful, and an extreme deviation from reasonable conduct. The practice of manufacturing evidence to use in defeating a claim being made by the insurance company’s own insured is reprehensible. The machinery which permitted the line adjuster to access this phony evidence was established and condoned by the top management of the company. The training and supervision which fostered his actions to avoid payment of the claim were sponsored by top management of

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the company. As such, the culpability cannot be assigned to a single actor, or an isolated office, but must be attributed to the entire company.

I find that the evidence was clear and overwhelming that State Farm, beginning with its claims adjuster and running up through its management, participated in the egregious process of manufacturing fictitious reports and obtaining biased opinions under the guise of obtaining independent and objective medical reviews. State Farm knew these evaluation processes were tainted and not objective. The only conclusion to be drawn from this was that State Farm intended by these processes to reduce the amount of money it would have to pay on legitimate claims submitted by its insured. This clearly was in deliberate disregard for the interests of its insured, and in deliberate disregard for their expectations under their insurance policies. One buys and pays for first party insurance protection to avoid the very series of hassles and confrontations that State Farm put its insured through in this case. State Farm cannot be said to claim that it was unaware of the consequences of its actions would have upon its insured.
I do not mean to suggest that this conduct is the only conduct which merits an award of punitive damages. The overall handling of this claim by the line adjuster, under the direction of the local supervisor, was replete with instances of oppressive conduct. While these circumstances, which are enumerated in plaintiff’s brief, are sufficient to justify an award of punitive damage, it is the actions of the defendant at the corporate level in creating the

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machinery to deliberately drive benefit payments down through the use of the bogus evaluations from biased independent review entities and partisan physicians, and in specifically directing the training of its claims adjusters toward this end which, to my mind, is the egregious conduct which transcends the level of damage which might be assigned to the conduct of the individual claims adjuster and his local office, and justifies an award intended to reach the home office.

Based on my own assessment of the evidence, I conclude that punitive damages were fully warranted in this case. Further, I conclude that the practice of encouraging and permitting the use fictitious or slanted medical reports, under the guise that such constituted and could be presented to their insureds as independent and objective medical reviews, was, and is, a reprehensible practice, justifying substantial punitive damages intended to reach the top level of management.

The jury award of $9.5 million in punitive damages appears, on first impression, to be exorbitantly high. However, after examination of the award against the principles of law under which punitive damages are to be awarded and measured, I conclude the award is not excessive.

The award meets the criteria of Davis v. Gage, 106 Idaho 735 (Ct. App., 1984) in that it is imposed for conduct which, if not deterred, is likely to occur in the future. The jury was correctly instructed on the deterrence import of punitive damages, and heard testimony from expert witnesses on the impact of punitive damages

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as they affect the insurance industry. As is stated in Davis v. Gage, supra: 
Punitive damages are not to take the place of future compensatory damages. Rather, the primary purpose is to eliminate the financial incentive that otherwise would exist for continued of future bad conduct if the defendant were required only to compensate the aggrieved party for his probable losses while retaining any net benefits from the prohibited acts.
In this case, the jury had before it certain financial information on the defendant. It was aware of its net worth, and of its recent net profit. The defendant is a multi-billion dollar corporation, reporting multi-billion dollars in profits. To accomplish the objective of deterrence to any meaningful degree, any punitive damage award must take into account the financial size and strength of the defendant. With a defendant as large as the defendant in this case, and with conduct as egregious and harmful to it insureds as was the case here, a substantial punitive damage award is necessary to create the intended disincentive to continue these practices into the future. While an award of $9.5 million dollars may seem high in the abstract, I do not find the award to be disproportionate when assured against the financial incentives involved, the conduct to be deterred, and the wealth of the defendant.
There is no question that this enormous sum is disproportionate to the specific dollar damages which eventually resulted to the plaintiff. Further, there is no question that these damages will constitute a windfall to the plaintiff. However, this is not a relevant inquiry in this case. Punitive

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damages are not to compensate the plaintiff, but to punish and deter the defendant. Where the conduct to be deterred constitutes a deceptive business practice which may expose the general public to danger, the punitive damage award may well exceed any particular harm to the particular plaintiff. See, e.g., Umphry v. Sprinkel, 106 Idaho 700 _(1983) and cases cited at p. 710. Where the circumstance of protection of others exists, it is not only the plaintiff’s circumstance that is examined in evaluating the amount of punitive damages to be awarded, but also the risk to others if the conduct is not deterred and the circumstances of the defendant. That the plaintiff may be the recipient of the damages in the instant case is a serendipitous consequence of an award of punitive damages intended to deter and protect others, but this fact is otherwise irrelevant to the analysis. That the plaintiff may be considered unworthy or undeserving does not offer any reason to reduce an award of punitive damages which is otherwise justified against a given defendant because of the conduct of that defendant.

Defendant objects that the court’s instructions to the jury failed to take into account the relationship between the punitive damage to be awarded and the actual amount of compensatory damage awarded. Defendant maintains that the punitive damage award is substantially disproportionate to the actual dollar amount of the damages, and that this alone mandates intervention by the trial court.

The recent decision of Walston v. Monumental Life Ins. CO. 129

Idaho 211 (1996) is instructive. There, the Idaho court analyzed

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the distinction between evaluating the damage sustained by the particular plaintiff and the probability of general harm to others that was likely to occur in the future if the conduct was not deterred in determining the measure of punitive damages. The Idaho court noted the United States Supreme Court decision of TXO Prod. Corp v. Alliance Resource Corp., 509 U.S. 443 (1993) refining what had been a line of cases holding that any award of punitive damage had to be proportionate to the compensatory damage, and clarifying that the relationship that should exist between any award of punitive damage and the predicate harm upon which such damage was founded included not only the relationship between the punitive damage and the compensatory damage for the harm that had already occurred, but also between the punitive damage and the harm that was likely to occur if the conduct was not deterred.

It is not correct, as defendant asserts, that the only relationship to examine is between the dollar amount of punitive damage and the dollar amount of compensatory damages awarded. The correct assessment is, as the jury was instructed in this case, that the exemplary damages awarded must bear some proportion to the harm that resulted and which is likely to result in the future. The jury was correctly instructed on this point, both in the initial instructions and in the response to the jury inquiry.

Defendant is correct that the wealth of the defendant cannot be the sole criteria in determining punitive damage. Plaintiff’s counsel did not so argue.. Rather, plaintiff’s counsel asked the jury to consider the wealth of the defendant in determining the

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amount of punitive damage, and to make the award significant enough to have an impact. This was a legitimate argument to the jury to make appropriate use of the evidence on the defendant’s financial condition.

On a comparison basis, I,Consider the, harm done in this case to be at least? as egregious as the harm done in Walston v. Monumental Life Insurance. Although not alleged as fraud, the actions of State Farm in creating the opportunity and encouraging the use of false and biased medical reports to defeat the claims of its own insureds is as fraudulent as the actions of Monumental Life. The trial judge there observed that a punitive damage of 5% of the company’s net profit was proportionate to the harm done and likely to be done, and the supreme court sustained his decision.

Here, the punitive damage award approximates something less than two days’ profit to State Farm. By my estimate, the punitive damages assessed by the Idaho jury in this case could recovered by lunchtime on the second day. Under this analysis, and under the rationale approved by the Idaho court in Monumental Life, the punitive damages were not excessive.

Independent Assessment of Damages

even though I am concluding that the jury has not erred, and that there is no indication that the jury’s assessment of damages was infected by passion or prejudice, Dinneen and Quick direct that the trial judge must still weigh the evidence and make his own assessment of damage. This is an onerous task, and one that is

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really not productive. 2 Where it appears that the jury has otherwise acted properly under adequate instructions, then unless the trial judge’s assessment is exactly the same as that of the jury, nothing but mischief can result from a requirement that he inject his opinion into what is properly a jury matter.

Imposing these requirements on the trial bench make the appellate work more difficult as well. It seems too often to result only in the appellate courts grading the papers of the trial judges rather than shaping or guiding the development of the law. In comparing the results of Sanchez v. Galey after remand at 115 Idaho 1064 (1989) with what the court directed in the remand at 112 Idaho 609 (1987), and the results of Soria v. Sierra Pacific Airlines, Inc. after remand at 114 Idaho 1 (1987) with what the court directed in the remand at 111 Idaho 594 (1986), it appears that the trial judges were required to do little more than confirm that they did understand the law the first time around. This accomplished little other than an unnecessary, expensive and time consuming loop through the trial court.

This requirement appears to stem from the legal fiction started in Dinneen and continuing through Quick that the trial judge has “the advantage of having heard and determined many hundreds of damage claims.” I suspect that there is no judge in Idaho who has considered “hundreds” of such cases. Most personal injury cases settle, and our trial time is taken up with other matters. Bad faith cases are even more rare. Further, no two of these claims are ever alike. Each always presents discrete elements of liability, causation, injury and loss, and any attempt at comparisons, other than as a gross overview, are excruciatingly difficult to construct. The trial judge must prevent injustice, and must intervene when warranted; but the trial judge should not become an omnipotent super-juror. The present mandate started in Dinneen and Quick invites just that.

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The effect of the directives of Dinneen and Quick require me to first make my own assessment of damages, and then decide whether the jury’s verdict is tainted. It would seem to me that the process should be reversed; if I determine that the jury verdict might be tainted, such as upon my determination that the verdict is so large that it shocks my conscience, or is unconscionable, or otherwise appears to have been influenced by passion or prejudice, then I should make my own, assessment in determining what the appropriate fix should be a new trial, new trial on damages or remittitur. If I determine that intervention is warranted, and if I am further able to make a satisfactory independent assessment of the damages sustained, then remittitur (or additur) may be appropriate. On the other hand, there well could be cases in which the damages, while provable, are so subjective, intangible or esoteric that the judge has no better grasp on the appropriate result than a properly deliberative jury. If the verdict is tainted necessitating intervention, and the judge cannot make a satisfactory independent analysis, he ought not be required to try; the result should be a review trial, either in the entirety or upon damages alone.

It would appear to be a better rule to direct that a full independent assessment of damages by the trial judge is not mandatory unless the trial judge has made the threshold determination that the jury has erred; that this determination should be made upon the judge’s assessment of the verdict as a whole, rather than on any hypothetical difference between the

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verdict and his own evaluations; and even then, it need not be made unless the judge determines that he can make his own determinations in some articulable way. On the other hand, if the judge is not shocked by the verdict, if it is not unconscionable, and if there is no other reason to suspect that it was improperly influenced, there should be no necessity for the judge to duplicate the jury’s work in any detailed way in every case. Both parties have a constitutional right to a jury assessment, and if the jury has not gone awry, its conclusion should be the end of it.
However, this is not the present law. Therefore, in making my own assessment of damage, I would observe as follows. For all of the reasons stated above, I conclude in my own analysis of the evidence that an award of punitive damages was indicated in this case. The award of the jury was different than an award I would have made. However, the award made by the jury does not shock my conscience, nor do I find it unconscionable. Rather, I conclude that the difference between the amount I would assess and the amount assessed by the jury is the product of the differing minds of a properly instructed and properly deliberative jury. The difference is readily explained as “the product of two separate entities valuing the proof of plaintiff’s injuries in two equally fair ways.” Quick v. Crane, supra, at p. 769.
There is no basis for judicial interference in this case. Since I am not persuaded to alter the determinations of the jury, I am reluctant to disclose the dollar amount of my own assessments on any of these elements. As noted, I see no constructive purpose,

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and much opportunity for mischief, in such exercise. I have followed the directive of Quick and Dinneen: I have weighed the evidence and conducted by own analysis of the damages assessed, and I have concluded, in accordance with the standards expressed in Dinneen and Quick, that there is no basis to interfere. As I read the appellate court’s ruling in Sheets v. Agro?West, Inc., 104 Idaho 880 (Ct.App., 1983) as adopted an approved in Soria v. Sierra Pacific Airlines, Inc., supra, the decision. is within my discretion. The reviewing court’s concern is with the process not the result. I have followed the process and am satisfied that the result should stand. For the above reasons, I decline to reduce any of the amounts awarded under I.R.C.P. 59(a)(5) or 59.1.

Misconduct by Jury Under Rule 59(a)(2)

The jury was instructed not to attempt to verify any information received during the trial or to check up on or look up or call someone with knowledge concerning any of the issues in the case. I specifically directed the jury not to “surf the internet” for any information about the issues in the case.

One juror checked the internet to determine the population of the United States, and then shared this information with his fellow jurors during the discussion of punitive damages. Defendant seeks a new trial on this basis, under Rule 59 (a) (2), misconduct of jury.

I am not persuaded. The juror was not seeking to verify or look up data on a disputed question of fact, or seeking information on an issue which was material to the case. The information sought

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by the juror was an item of information which could be expected to be within the general knowledge of the jury. Jurors are expected and entitled to bring with them all of the experience and general knowledge of their lives, and to use this general fund of knowledge in their deliberations. A general statistic such as the population of the country is just such an item of general knowledge. The fact that the juror verified this item of general knowledge is harmless and irrelevant. The juror might just easily have asked a handy seventh grader.

Therefore, I conclude that the circumstance did not breach my instruction. In any event, and even if construed to be a breach of my instruction, the breach in this case is harmless. The motion for new trial under Rule 59(a)(2) is denied.

Miscellaneous Allegations of Error

The defendant contends that the court erred in excluding State Farm policy holders from the prospective jury pool. The defendant is a mutual insurance company, and policy holders are somewhat akin to stockholders. Although there is authority both ways, I excluded policyholders on that basis. Even if error, the error was harmless. A fully qualified panel of prospective jurors was available from which the jury was selected in this case without difficulty.

The defendant contends that the court erred in instructing the jury that it was the defendant’s burden to prove that any dispute over the claim was “fairly debatable” as an affirmative defense to

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plaintiff’s claim of an unreasonable delay. It contends that the, court should have instructed the jury that it was the plaintiff’s burden to prove the dispute was not fairly debatable.
I recognize the line of cases in Idaho, ruling on trial court summary judgments, that define the cause of action and include as an element that any delay in payment was not caused by a fairly debatable issue. The defense has picked up on this language in the appellate opinions and twisted it out of context when applied in a trial to instructions to the jury.
The plaintiff’s burden is to prove as a fundamental element of the case and in the first instance, that the delay in payment was unreasonable. The jury was so instructed in this case. Part and parcel of this general burden is proof that the defendant did not properly consider the claim.
The defense of a fairly debatable issue only arises after the plaintiff has proved generally that the delay was unreasonable, under all circumstances. This specific defense entitles the defendant to explain that the unreasonable delay was excused by the presence of a fairly debatable problem, even if the jury concludes that the insurance company was wrong. The jury was so instructed in this case.
To require the plaintiff to disprove the defense theory as part of its case in chief, as is suggested by the defense, would require the plaintiff to prove a specific negative proposition which is already generally imbedded within the affirmative

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proposition of “unreasonable delay,” and create confusion not clarity in the evaluation of the burdens of proof upon the parties.

I am satisfied that the jury ,was correctly instructed in principle on this point, and that the instructions offered by the defendant were flawed. There is no basis to disturb the verdict on this ground.

Conclusion

Since I am not inclined to disturb the verdict?in this case, there is no necessity to address separately the alternative motion for remittitur under IRCP 59.1. The post trial motions filed by the defendant are denied in their entirety. Counsel for the plaintiff may submit appropriate orders.

Dated this 6th day of August, 1998.

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