Merlo v. Standard Life & Accident Insurance

TAMURA, Acting, P. J.

I concur and dissent. I would affirm the judgment below in all respects except as to the amount of the punitive award.

I dissent from the majority’s holding that the compensatory award is excessive as a matter of law. While the award is substantial, the record by no means justifies invocation of the presumption that the juiy must have acted from passion, prejudice or other improper motive. Nor is the majority’s articulation of the reasons for its conclusion persuasive. It merely observes that aside from the loss of the $7,470 equity in his house, the bulk of the compensatory award must have been for plaintiff’s emotional distress and concludes that an award of $250,000 for such harm is “so disproportionate to the injuries and losses suffered by plaintiff that it must be concluded that it was a result of passion or prejudice.”

In setting aside the award, the majority improperly invades the factfinding power and discretion reposed in the jury and fails to accord the trial judge’s determination on the motion for new trial the respect to which it is entitled. While nearly all of the compensatory award was for the injuries inflicted upon plaintiff’s emotional well-being, the assessment of damages for tortious harm to such “intangible interests” has “long been vested in the sound discretion of the trier of fact” subject only to the passion or prejudice standard of review. (Bertero v. National General Corp., 13 Cal.3d 43, 64 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878].) And where a claim of excessive damages has been rejected by the trial judge on a motion for a new trial, his determination must be accorded great weight because it is his province to judge the credibility of the witnesses and to weigh the evidence. (Bertero v. National General Corp., supra, 13 Cal.3d 43, 64.) In the case at bench the *22entire thrust of defendant’s motion for a new trial was grounded on the claim that the damages awarded were excessive and were the result of passion or prejudice on the part of the jury. The trial judge, after due deliberation, denied the motion unconditionally. A careful review of the record discloses no abuse of discretion by the jury or the judge.

Defendant’s tortious conduct continued over a period of approximately four years. With knowledge -of plaintiff’s failing health, defendant played a cat and mouse game with him by making some intermittent payments, by terminating them without justification, by underpaying, and finally by refusing to make any payments. As a consequence, defendant inflicted on plaintiff protracted fears and anxieties over the possible loss of his home and caused him to suffer the traumatic confirmation of his fear. As we said in a different but related context, such emotional harm can be “as real and disabling as a physical injury.” (Baker v. Workmen’s Comp. Appeals Bd., 18 Cal.App.3d 852, 863 [96 Cal.Rptr. 279].)

There is substantial evidence that defendant’s tortious breach of its obligation to its insured caused severe harm to his emotional health. Plaintiff’s wife testified that plaintiff was very proud of the home he had purchased for his family; plaintiff spent a great deal of his time working to improve the home; and “[h]is home was everything to him, his home and his work.” Dr. Lonergan, one of the many doctors who treated plaintiff, testified that defendant’s failure to make the house payments was of great concern to plaintiff, “not so much for himself but for his family”; “he was exceedingly concerned about his wife because he knew what a burden he was to her and this increased his guilt and his anxiety”; “he would come to the office with tears in his eyes and beg me to do something”; the foreclosure and eviction worsened plaintiff’s “frustration and lack of ability to think clearly”; and it was not too long thereafter that plaintiff required rehospitalization.

Mr. Byhower, plaintiff’s workers’ compensation attorney, testified that when plaintiff came to see him after the notice of sale was posted, plaintiff was in a “terrible state”; he was “sobbing and miserable and depressed.” Mr. Byhower testified that after the eviction plaintiff told him: “They drove that stake right through my heart... I can’t even keep a roof oyer my kids’ head .. . I’m a failure.”

When plaintiff and his family were evicted from their home as a result of the foreclosure sale, plaintiff had to distribute his children among *23relatives. At trial, despite his deteriorating mental condition, plaintiff attempted to describe the shame and humiliation he suffered as a result of his family’s eviction with these words: “All I know is that everybody moved me out and I felt real ashamed. So there is just no way, my words are limited and I can’t think of anything to say ... it is just dam right awful.”

The jury was presented with the difficult task of translating the traumatic experience of the eviction and almost four years of anxiety, fears, harassment, and humiliation suffered by plaintiff into a cash equivalent. There are no fixed or absolute standards by which we, as a reviewing court, can measure in monetary terms the extent of damages suffered by plaintiff as a result of defendant’s wrongful acts. That is why the law commits the determination of the amount of damages in the first instance to the discretion of the jury and next to the discretion of the trial judge on a motion for a new trial. It is therefore the duty of an appellate court to uphold the jury and the trial judge wherever possible. (Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498, 508 [15 Cal.Rptr. 161, 364 P.2d 337].) The inevitable wide differences of opinion in placing a dollar value on harm to plaintiff’s emotional health do not call for the intervention of a reviewing court. (Niles v. City of San Rafael, 42 Cal.App.3d 230, 241 [116 Cal.Rptr. 733].) Viewing the evidence most favorably to plaintiff, as we must, the award is not “so grossly excessive as to shock the moral sense” so as to give rise to a presumption that the compensatory award was the result of passion, prejudice or other improper motive on the part of the jury. (See Seffert v. Los Angeles Transit Lines, supra, 58 Cal.2d 498, 507.) On the contrary, we must presume that the award was the result of a conscientious effort on the part of the jury in the first instance and the trial judge on the new trial motion to discharge their responsibilities. In light of the current limited purchasing power of the dollar, the award, though substantial, was not excessive as a matter of law.

Defendant’s attempted comparison of the case at bench with Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376 [89 Cal.Rptr. 78, 47 A.L.R.3d 286], for the purpose of determining whether the instant award is excessive is inappropriate. In Bertero v. National General Corp., supra, 13 Cal.3d 43, at page 65, footnote 12, the court disapproved an attempt to show that an award was excessive by comparing it to awards in similar cases by saying: “For a reviewing court to upset a jury’s factual determination on the basis of what other juries awarded to other *24plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of fact-finding.”1

With respect to the punitive award, I agree that the amount is excessive as a matter of law. However, I dissent from the majority’s disposition requiring retrial not only as to the amount of the punitive award but on the question of liability for such award as well.

If I understand the majority correctly, it reverses the judgment on the issue of liability for punitive damages on the ground the court erred in giving the following instruction: “A corporation is subject to liability for an award of exemplary damages by the acts of those whom it has placed in charge of its affairs, and who constitute for the purpose of dealing with other parties the corporation itself.”

As the majority notes, the instruction is almost a verbatim quotation of the language used by the court in Lowe v. Yolo County etc. Water Co., 157 Cal. 503, 510-511, in reviewing and upholding the sufficiency of the evidence to support a punitive award. The statement is a correct expression of a general legal principle. (See Davis v. Local Union No. 11, Internat. etc. of Elec. Workers, 16 Cal.App.3d 686, 698 [94 Cal.Rptr. 562].) While the statement may lack the clarity and specificity preferable for use as a jury instruction, defendant did not offer an instruction spelling out with greater clarity or specificity the circumstances under which a corporation may be liable for punitive damages. Nor did defendant request amplification of the instruction given. Having failed in those respects, it may not now complain on appeal. “[I]f the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.” (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 194, pp. 3013-3014, original italics.) Defendant is therefore foreclosed from complaining about the instruction in question.

Furthermore, the jury could not have been misled by the instruction. The uncontradicted evidence shows that defendant vested Paine with the authority to determine whether or not claims should be paid. His determinations as well as the contents of the various letters he sent to plaintiff were left to his discretion. In my view, Paine acted in a *25“managerial capacity” within the meaning of the restatement rule on liability of a corporation for punitive damages. It must be remembered that we are here concerned with an insurance company dealing in disability insurance, not just any corporation. Manifestly, to plaintiff, Paine’s actions were actions of defendant. Paine personally managed the most crucial aspects of his employer’s relationship with its policyholders. Defendant should not be allowed to insulate itself from liability by giving an employee a nonmanagerial title and relegating to him crucial policy decisions. Insofar as guilt of oppression is concerned, the jury’s implied finding is supported by overwhelming evidence.

I would affirm the judgment below in all respects except as to the amount of punitive damages.

Petitions for a rehearing were denied July 7, 1976. Tamura, J. was of the opinion that the petition of the respondent should be granted. Respondent’s petition for a hearing by the Supreme Court denied August 12, 1976. Mosk, J., was of the opinion that the petition should be granted.

Respite some similarities in the facts, the evidence of the emotional distress suffered by plaintiff in the case at bench is far stronger than in Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d 376.