Strawn v. Farmers Ins. Co. of Oregon

BALMER, J.,

dissenting.

The majority labors long and faithfully to bring this tortured case, filed in the last century, to a conclusion, and I *371agree with important aspects of the majority’s opinion.1 However, because I believe the majority’s discussion of the reliance element of plaintiffs’ fraud claim is flawed, I must respectfully dissent.

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 *372members that they represented relied on Farmers’s alleged misrepresentations.

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 ORS 742.524(1)(a), which requires an insurer to pay all “reasonable and necessary” medical expenses for covered claims and that Farmers’s conduct in implementing the procedure also constituted breach of contract and fraud. Plaintiffs’ central argument on their fraud claim was that Farmers had falsely represented that they would pay “reasonable” medical expenses when they did not, in fact, intend to pay all reasonable charges. The jury found in favor of plaintiffs on the fraud claim; on the basis of that finding, the jury also was allowed to consider punitive damages, and it awarded substantial punitive damages to plaintiffs.

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 *373which a jury could infer that the class of Farmers policyholders who made PIP claims relied on that representation.

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 *374engineer; plaintiffs “testified that they would not have purchased the property had they known the well did not meet state standards”).

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 ORS 742.524(1)(a), when in fact those policies did not comply. It is difficult to see why “misrepresentation,” “reliance,” and “loss” all could not be inferred on a classwide basis for such a class, given the majority’s conclusion that “reliance * * * is inherent in the purchase of the insurance.” 350 Or at 361.

One case that the majority does cite is Klay v. Humana, 382 F3d 1241 (11th Cir 2004), cert den, 541 US 1081 (2005), which the majority states is instructive because *375it involved fraud claims by physicians against a group of HMOs alleging that the HMOs had agreed to reimburse the physicians for all medically necessary services when, in fact, the HMOs covertly underpaid the physicians by using undisclosed statistical criteria to calculate reimbursement amounts. Klay bears some similarities to this case, but does not support the majority on the issue where the majority and I part ways. Klay was only a case about class certification itself — it concluded that a class of physicians making the allegations described above could be certified. Klay says nothing about what evidence of reliance would be sufficient for a jury to render a fraud verdict in favor of plaintiffs.

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 F3d 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 F3d at 1257-58 (emphasis added). And the case thatifZay relies upon for that proposition, Sikes v. Teleline, Inc., 281 F3d 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 *376they would reimburse the physicians for all medically necessary services went to the entire purpose of the agreement between the physicians and the HMOs. If reliance can be presumed from the nature of the representation, Klay might be a case where that would be permitted — although, as noted, the court in Elay explicitly held that reliance could not be presumed. Here, in contrast, Farmers’s misrepresentation was about a small part of the PIP coverage, which was itself a small part of the policy as a whole, because the policy also provided liability coverage, uninsured motorist coverage, underinsured motorist coverage, collision coverage, and comprehensive coverage. The particular method of PIP reimbursement was not significant enough to allow the jury to conclude that reliance was “inherent” when a policyholder purchased a Farmers policy or made a PIP claim.4

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 Elay. 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 *377acted or failed to act based on the defendant’s misrepresentation. Some securities fraud cases, such as Affiliated Ute Citizens of Utah v. United States, 406 US 128, 152-53, 92 S Ct 1456, 31L Ed 2d 741 (1972), have permitted a presumption of reliance when the defendant had a specific duty to disclose information that it failed to disclose — a circumstance not present here. Other cases have presumed reliance under a “fraud on the market” theory, where the defendant’s misrepresentations affected the market price of the stock, even though the purchaser did not actually rely on the misstatements in purchasing the stock. See, e.g., Basic Inc. v. Levinson, 485 US 243, 247, 108 S Ct 978, 99 L Ed 2d 194 (1988). That doctrine, too, is unavailable to plaintiffs here.

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 *378the policy would “pay for all the bills up to a year” and would pay “all [medical and hospital] expenses,” even though a policy that complied with ORS 742.524(1)(a) — the policy the majority says plaintiffs thought they had, because of Farmers’s representations — would only cover all “reasonable and necessary” expenses, rather than “all” expenses.5 And Strawn certainly could not have relied upon those misrepresentations when he purchased his Farmers policy because he bought that policy in 1997, before Farmer instituted its eightieth percentile reimbursement plan.

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 *379that they changed insurers after finding out about Farmers’s reimbursement policy, the differing conduct of the named plaintiffs demonstrates that it was improper to allow the jury to infer reliance by all class members on the basis of that evidence.)

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.

In particular, I agree with the majority that Farmers failed to preserve objections to certain of the trial court’s evidentiary rulings, although the issue is a close one. See 350 Or at 346-51.1 also agree with the majority’s rejection of Farmers’s argument that reliance, when it is an element of a class action claim, always must be established through direct evidence of each class member’s individual reliance. See id. at 356. Rather, as the majority concludes, in an appropriate class action case, classwide reliance may be inferred from evidence common to the class; whether that evidence is sufficient in a particular case will depend on the nature of the misrepresentation, among other factors, and I disagree with the majority on whether the evidence was sufficient here. Finally, I agree with the majority’s interpretation of ORCP 64 F and the majority’s conclusion that the trial court order giving its reasons for denying defendant’s motion for a new trial was valid, even though that order was not issued within 55 days after entry of judgment. See id. at 367-69.

Farmers later changed the eightieth percentile level to the ninetieth and then the ninety-ninth.

The majority states that a policyholder “does not need to read the policy to justifiably rely on its provisions.” 350 Or at 361. It follows logically that it does not matter whether the policyholder ever received a copy of the policy.

Even PIP medical expenses that exceeded the eightieth percentile — those that Farmers declined to pay — did so by only a modest amount. Ninety percent were for $25 or less; more than 25 percent were for $3 or less.

Similarly, Weiss testified that “[i]f I had known that my bills would not have been paid, I would not have gone to this doctor. I would have waited to find out if they were going to be paid * * Weiss, like Strawn, believed incorrectly that Farmers had promised to pay all PIP expenses in full. Weiss provided no evidence of any reliance on Farmers’s misrepresentation as to how reasonable and necessary medical expenses would be calculated.

Presumably because of the paucity of evidence of reliance, the lower courts never discussed any actual reliance, but presumed that reliance could be found because there was evidence of misrepresentation. When Farmers moved for a directed verdict on the fraud claim, based in part on lack of proof of reliance, the trial court simply ignored that element of the claim. “[T]here are omissions and nondisclosures of material fact that are involved here,” the court stated, and “[L]ooking at plaintiffs’ evidence in the light most favorable to plaintiffs, there were half-truths involved here, again, using the same standard which the jury could choose to believe the evidence. So the defendant’s motion fails on that ground.” Similarly, the Court of Appeals stated that, based on evidence of Farmers’s misrepresentations, a jury could “reasonably infer that plaintiffs relied on Farmers’s misrepresentation that it would pay reasonable and necessary PIP-related expenses when they continued to pay their premiums.” Strawn v. Farmers Ins. Co., 228 Or App 454, 471, 209 P3d 357 (2009). But the Court of Appeals pointed to no testimony or other evidence that any named plaintiffs, in fact, relied on Farmers’s misrepresentation when they “continued to pay their premiums,” and the court’s holding— that reliance could be “inferred” — made such proof unnecessary. The majority’s legal analysis is more plausible than that of the lower courts, but, for the reasons set out above, ultimately is not persuasive.