dissenting.
I respectfully dissent. While the Majority pays lip service to our supreme court's enunciation of the standard of review for the challenge to a punitive damages award, it nonetheless disregards the standard and engages in a selective reweighing of the evidence.
The Majority relies upon Travelers Indem. Co. v. Armstrong (1982), Ind., 442 N.E.2d 349, where our supreme court adopted the clear and convincing evidence standard for proof of punitive damages. The court in Travelers stated:
[Plunitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness. Rather some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniquitous human failing.
Id. at 362.
This heightened evidentiary standard does not, however, permit this court to substitute its judgment for that of the jury in this case.
Whatever standard of proof is required at the trial level, if it can be said that either of two conclusions can be reasonably drawn from the evidence, it is immaterial, upon appeal, that one of such conclusions appears to be more likely than the other, and we are bound by the finding of the trier of fact.
Orkin Exterminating Co., Inc. v. Traina (1986), Ind., 486 N.E.2d 1019, 1022. Thus, our supreme court observed:
While both Traina and Travelers emphasize the need for "clear and convine-ing" proof tending to approach the certainty required in criminal convictions, the standard of appellate review for sufficiency on the issue of punitive damages should impose neither greater judicial scrutiny nor lesser deference to jury determinations than in review of other sufficiency questions.
Bud Wolf Chevrolet, Inc. v. Robertson (1988), Ind., 519 N.E.2d 135, 137.
The rule pronounced in Travelers "is nothing more than the rule applicable in criminal trials resting entirely upon cireum-stantial evidence, ie. the evidence must exclude every reasonable hypothesis of innocence." Orkin, supra, at 1023. However, the standard of review for determining sufficiency of the evidence in a criminal case is the same whether the conviction is supported by direct or circumstantial evidence; we do not reweigh evidence or judge the credibility of witnesses. Rather, we look to the evidence most favorable to the verdict and to all reasonable inferences to be drawn therefrom. Robey v. State (1990), Ind., 555 N.E.2d 145, 149. We must affirm the judgment if there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a *325reasonable doubt. Id. The sufficiency standard for punitive damages is no different.
The Majority concludes that the jury could not have inferred that the actions of Erie and its agents were inconsistent with noniniquitous human behavior. The evidence supports a contrary finding.
Could the jury have concluded from the evidence that a deceptive scheme was purposely employed to cover up a mistake of an Erie adjuster or fellow employee? Or, could the jury have concluded from the evidence that Erie had decided not to pay its insured's claim regardless since it had: 1) already paid $2,000.00 to Davis by mistake which was the reserve for the claim and 2) Smith's property damage claim was probably too small for her to bring a legal action against Erie? Since the subjective state of mind of Erie's agents is the real issue, it is the evidence introduced and admitted in evidence at trial that must be reviewed to answer these questions.
The jury heard this evidence: After the collision at the intersection, Smith contacted her insurance company, Erie Insurance, and gave them the information about the accident. Erie Insurance informed her that she only had uninsured motorist coverage. She was further informed by Erie that Davis, the other driver, was at fault and that she should contact his insurance company. After repeated attempts to contact Davis' insurance company, she finally contacted his insurance agent who advised her that Davis had not been insured since December, 1985. The accident occurred March 24, 1986. Later, Smith contacted Nola Nooe at Erie Insurance to advise her that Davis was uninsured. Nooe refused to accept Davis' uninsured status and insisted that Davis was insured. Smith received no cooperation from Erie Insurance regarding her claim. However, in the meantime, Erie had paid Davis $2,000.00 for the damage to his car.
Later, Smith was advised that a further investigation by Erie Insurance had indicated that she was at fault and that her claim was denied. Four months having passed since the accident, Smith had to obtain a loan to repair the damage to her car so that she would have transportation to and from work at Indiana Bell Telephone Company as a design installation engineer. She drove her car for three months without being insured even though she had paid her premiums to Erie Insurance Company for coverage. Though Erie Insurance Company cashed her premium checks, it concealed the cancellation of Smith's policy from Smith and her insurance agent.
Eventually, Smith had to obtain legal counsel to force Erie Insurance to act on her insurance claim. Arbitration was delayed for fourteen months, but Erie Insurance did not do anything to expedite the arbitration claim of its insured. Rather than dispose of the small pending claim, it closed the file without further inquiry. When the jury heard this evidence and the testimony regarding the secant investigation of the claim made by Erie Insurance, the jury could have concluded that there was clear and convincing evidence of the subjective state of mind to cover up a mistaken payment of $2,000.00 to Davis and to ignore Smith's valid but small insurance claim. The jury could have considered that four years later was too long and too late.
The Majority states:
While this evidence could, arguably, support a determination that Erie acted with malice, fraud, gross negligence or oppressiveness, the evidence is also consistent with a hypothesis that Erie's actions were the result of a mistake of fact, a negligent investigation and handling of Smith's claim, or that Erie's agents were merely overzealous in their actions.
At 323.
Thus, the Majority acknowledges that "either of two conclusions can be reasonably drawn from the evidence," but in refusing to be "bound by the finding of the trier of fact," has ignored the clear mandate of the supreme court. Orkin, supra, at 1022. I would affirm the judgment of the trial court.