Nationwide Mutual Insurance v. St. John

Present:    All the Justices

NATIONWIDE MUTUAL INSURANCE COMPANY

v.   Record No. 990161      OPINION BY JUSTICE ELIZABETH B. LACY
                                       January 14, 2000
JOEL ST. JOHN

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Theodore J. Markow, Judge

        In this appeal we consider whether the trial court

properly determined that an insurance company did not act in

good faith under Code § 8.01-66.1(A).

                                 I.

        Joel St. John, a twelve-year-old boy, had his nose, knee,

neck, and back injured in an automobile accident on May 17,

1994.    His mother scheduled an appointment with his family

physician and with a chiropractor who had treated Joel's

father.    On May 24, 1994, Joel was treated by his family

physician for his knee and nose injuries.    The next day Joel

was examined by Dr. David M. deBarros, the chiropractor.     Dr.

deBarros' examination disclosed objective findings of

fixations of the spine, positive findings of a shoulder

depression indicating either a muscle tear or nerve

compression or stretching, a positive Schepelmann's test which

showed pain while flexing the head to the right, and a

vertebra that had moved out of position, called a T-12
subluxation.   According to Dr. deBarros, all these injuries

were caused by the automobile accident.

     Initially Joel was treated for these conditions three

times a week, and then twice a week for four weeks.      Following

reevaluation on August 8, 1994, his treatments were reduced to

once a week.   Joel was periodically reevaluated and his

treatment continued at a frequency consistent with his

condition at the time of reevaluation.       Joel was dismissed

from Dr. deBarros' care on April 5, 1995.

     Joel was an insured under an automobile liability

insurance policy issued to his father by Nationwide Mutual

Insurance Company (Nationwide).       A medical expense claim of

$1,960 for Joel's treatment was submitted to Nationwide.

Nationwide referred the claim to Dr. James W. Walker, a

chiropractor, for review and evaluation of Joel's medical

records.   Based on Dr. Walker's review, Nationwide paid

$378.50 for medical expenses incurred prior to June 15, 1994,

and disallowed all expenses incurred after that date.

     Joel, by his mother as next friend, filed suit against

Nationwide in the General District Court of the City of

Richmond seeking recovery of the medical costs for the ten

months of chiropractic care disallowed by Nationwide.

Nationwide removed the case to the Circuit Court of the City

of Richmond.   The jury returned a verdict in favor of Joel for


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$1,581.50, approximately the amount of the unpaid balance of

the chiropractic medical bills.       Citing Code § 8.01-66.1(A),

Joel asked the trial court to double the amount of the damages

and award attorneys' fees because Nationwide acted in bad

faith when it refused to pay for chiropractic care incurred

after June 15, 1994. *   The trial court determined that

Nationwide's refusal was not made in good faith and entered

judgment against Nationwide for $3,162.00 in damages plus

attorneys' fees of $1,500.    Nationwide filed an appeal

asserting that the trial court erred in holding that

Nationwide did not act in good faith under § 8.01-66.1(A).


     *
       Code § 8.01-66.1(A) provides:
          Whenever any insurance company licensed in
     this Commonwealth to write insurance as defined in
     § 38.2-124 denies, refuses or fails to pay to its
     insured a claim of $2,500 or less in excess of the
     deductible, if any, under the provisions of a
     policy of motor vehicle insurance issued by such
     company to the insured and it is subsequently
     found by the judge of a court of proper
     jurisdiction that such denial, refusal or failure
     to pay was not made in good faith, the company
     shall be liable to the insured in an amount double
     the amount otherwise due and payable under the
     provisions of the insured's policy of motor
     vehicle insurance, together with reasonable
     attorney's fees and expenses.
          The provisions of this subsection shall be
     construed to include an insurance company's
     refusal or failure to pay medical expenses to
     persons covered under the terms of any medical
     payments coverage extended under a policy of motor
     vehicle insurance, when the amount of the claim
     therefor is $2,500 or less and the refusal was not
     made in good faith.

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                                 II.

        We begin by addressing the legal principles relevant to

our review of the trial court's judgment in this case.     First,

although we have not previously considered the principles to

be applied by a trial judge when considering whether an

insurer acted in bad faith within the meaning of § 8.01-

66.1(A), we have addressed that issue in the context of

§ 38.2-209.    That section allows an insured to recover costs

and reasonable attorneys' fees in a declaratory judgment

action brought by the insured against the insurer, if the

trial court determines that the insurer was not acting in good

faith when it denied coverage or refused payment under the

policy.    In CUNA Mutual Insurance Co. v. Norman, 237 Va. 33,

38, 375 S.E.2d 724, 726-27 (1989), we observed that § 38.2-209

was intended to be both remedial and punitive and concluded

that a standard of reasonableness should be applied in

evaluating the conduct of the insurer.     See also Scottsdale

Ins. Co. v. Glick, 240 Va. 283, 397 S.E.2d 105 (1990).     The

parties suggest that this standard should be applied in this

case.    We agree.

        Section 8.01-66.1(A), like § 38.2-209, is a remedial

statute.    It is limited to claims of $2,500 or less.   Without

the statutory authorization for recovery of multiplied

damages, together with attorneys' fees and expenses, the


                                  4
expense of litigation to recover such claims would preclude

that course of action in many cases.   Section 8.01-66.1(A)

operates as a punitive statute in the same manner as § 38.2-

209 because both punish an insurer whose bad faith dealings

force an insured to incur the expense of litigation.

Considering the similar purposes of the two statutes, we

conclude that the standard of reasonableness enunciated in

CUNA should be utilized when applying § 8.01-66.1(A).

     The standard of reasonableness requires the consideration

of the following issues when determining whether an insurer

acted in bad faith under § 8.01-66.1(A):

     whether reasonable minds could differ in the
     interpretation of policy provisions defining
     coverage and exclusions; whether the insurer had
     made a reasonable investigation of the facts and
     circumstances underlying the insured's claim;
     whether the evidence discovered reasonably supports
     a denial of liability; whether it appears that the
     insurer's refusal to pay was used merely as a tool
     in settlement negotiations; and whether the defense
     the insurer asserts at trial raises an issue of
     first impression or a reasonably debatable question
     of law or fact.

CUNA, 237 Va. at 38, 375 S.E.2d at 727.

     Next, while the parties agreed on the reasonableness

standard, they disagreed on the quantum of proof required to

prevail under this standard.   Nationwide asserts that State

Farm Mutual Automobile Insurance v. Floyd, 235 Va. 136, 366

S.E.2d 93 (1988), imposes a clear and convincing evidentiary



                                5
standard on the insured in this case.    We disagree with

Nationwide.

        Nothing in Floyd suggests that the principles established

in that case are appropriate for application in this case.     In

Floyd, an insured was required to show by clear and convincing

evidence that its insurer acted in bad faith when it failed to

settle a previous tort action resulting in a judgment in

excess of the policy limits against the insured.     Id. at 144,

366 S.E.2d at 98.    However, the action in Floyd was a common

law breach of contract action, not a claim under a remedial

statute allowing recovery of additional damages for refusal to

pay claims based on the bad faith of the insurer.

Furthermore, to recover in the breach of contract action, the

insured had to show that the insurer "acted in furtherance of

its own interest, with intentional disregard of the financial

interest of the insured."     Id. at 144, 366 S.E.2d at 97.   Such

a showing is significantly different than the reasonableness

analysis to be applied to determinations of bad faith in this

case.

        The higher evidentiary standard of clear and convincing

evidence applied in Floyd is inconsistent with the remedial

purpose of § 8.01-66.1(A) and, absent legislative directive

otherwise, an insured's evidentiary burden under this remedial

statute is the preponderance of the evidence standard.


                                  6
     A third principle relevant to our review is that the

facts are reviewed in the light most favorable to the party

prevailing below.   The trial court's judgment will be upheld

unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it. § 8.01-680;

RF&P Corporation v. Little, 247 Va. 309, 319, 440 S.E.2d 908,

915 (1994).   We now apply these principles to the issue in

this case.

                              III.

     Nationwide asserts that its decision to deny payment of

Joel's medical expenses incurred after June 15, 1994 was

reasonable.   Nationwide contends that it conducted a

reasonable investigation by engaging Dr. Walker to review the

medical records connected with Joel's claim and that it was

reasonably debatable whether Joel suffered any back or neck

injury as a result of the accident.

     Dr. Walker, after reviewing Joel's medical records

concluded that "it was difficult to draw any direct causal

relationship between the vehicle accident and the diagnosis

[of subluxation of T-12 alone]," that other objective findings

were made by Dr. deBarros indicating a "sprain/strain" and

that "since the doctor didn't keep very good records . . . it

was legitimate to consider chiropractic care through June 15th

of '94, but not care beyond that time."   Even though Dr.


                                7
Walker expressed some hesitation at this point concerning the

relationship between the accident and the T-12 subluxation

diagnosed by Dr. deBarros, Dr. Walker did not question Dr.

deBarros' diagnosis that Joel had been injured and recommended

payment for treatment Joel had received for those injuries.

     Dr. Walker's recommended limitation on the length of time

for which payment should be made does not alter his conclusion

that the payment by Nationwide for some treatment was

appropriate.   Nationwide paid for at least a portion of the

medical treatment bills, thereby acknowledging that Joel was

injured in the accident.   Therefore, Nationwide's own actions

contradict its assertion that whether Joel's injuries were

caused by the May 14, 1994 accident was fairly debatable.

     Nationwide also argues that even if Joel was injured in

the May 14, 1994 accident, his injuries were so minor that

treatment after three weeks was medically unnecessary.

However, Dr. Walker's recommended limitation on payment of

post-June 15, 1994 medical bills was not based on his opinion

that the treatment beyond June 15 was not medically necessary.

Instead, it was based on the fact that Dr. Walker couldn't

tell whether or not the treatment was required because Dr.

deBarros "didn't keep very good records."

     The medical necessity of continued treatment was

addressed in the pre-trial depositions of Dr. Walker and Dr.


                                8
deBarros which were admitted in evidence at trial.   Dr. Walker

maintained his position that the lack of good record keeping

was the basis for his decision not to recommend payment for

treatment after June 15.   Dr. deBarros testified to a

reasonable degree of medical certainty that Joel's injuries

were caused by the May 14, 1994 accident, and that all the

treatment administered to Joel for those injuries was

reasonably necessary.   Dr. deBarros testified in detail

regarding the periodic evaluations of Joel's condition, the

conditions requiring treatment, and the necessity for that

treatment until Joel was discharged from Dr. deBarros' care.

This testimony was not contradicted by Dr. Walker.

     Thus, prior to trial, Nationwide had no medical evidence

that the injuries were not caused by the May 14, 1994

accident, no medical opinion that the medical treatment

received by Joel after June 15, 1994 did not relate to

injuries received in the accident, and no medical opinion that

the post-June 15 treatment was not medically necessary and

reasonable.   Nevertheless, Nationwide refused to pay the

remaining balance of Joel's medical bills and thus forced the

matter to proceed to a trial.

     Based on this review, we conclude that there is support

in the record for the trial court's determination that

Nationwide acted in bad faith in refusing to pay Joel's claim


                                9
for medical expenses incurred after June 15, 1994, and the

trial court's judgment was not clearly erroneous.    We,

therefore, will affirm the judgment of the trial court.

                                                           Affirmed.

JUSTICE COMPTON, concurring in the result.

     On May 17, 1994, the 12-year-old plaintiff was injured

while riding in a vehicle operated by his mother that collided

with another vehicle.   In the collision, the plaintiff

sustained a blow to his nose and one knee.   As a result of the

accident, he developed tenderness in his neck and back.

     The plaintiff was entitled to medical payments coverage

under a policy of automobile liability insurance issued by

defendant Nationwide Mutual Insurance Company.   The policy

contract provided that defendant would pay all reasonable and

necessary expenses for, among other things, medical and

chiropractic expenses resulting from the accident.

     A week after the accident, the plaintiff was treated by

his "family doctor."    The next day, the plaintiff was examined

by a chiropractor, who found the plaintiff had sustained

muscular and soft-tissue injuries to his neck and back in the

accident.   The plaintiff was treated by the chiropractor until

he was released from treatment about 11 months following the

accident.   The chiropractor was of the opinion, within a

reasonable degree of medical certainty, that his treatment and


                                10
services rendered to the plaintiff were medically necessary as

a result of the injuries plaintiff sustained in the accident.

     When the plaintiff's parents submitted a claim to

defendant for reimbursement of medical expenses under the

medical payments provision of the policy, defendant referred

the claim to another chiropractor to review the plaintiff's

medical records and to render an opinion on the medical

necessity of the plaintiff's treatment as it related to the

accident.   Following this review, the chiropractor opined that

based on the medical records he "couldn't draw a direct causal

relationship between the accident" and the diagnosis made by

plaintiff's chiropractor of "T-12 subluxation."   Preferring to

err on the side of the plaintiff, even though he felt the

medical records were unclear, the defendant's chiropractor

advised that the medical care rendered for only about one

month after the accident "could be considered" as related to

the accident.

     The defendant's refusal to pay the full amount of medical

expenses claimed generated this lawsuit.   In January 1998,

plaintiff, through his mother as next friend, filed this

action seeking recovery of $1,960, alleging breach of contract

and "breach of the defendant's duty to deal with the plaintiff

fairly and in good faith."




                               11
     In an October 1998 jury trial, the breach of contract

claim was litigated.   At that time, defendant had paid $378.50

of the plaintiff's claim.

     The sole issue presented to the jury was whether

defendant had breached its contract with plaintiff.    More

specifically, the jury had to determine whether the treatment

and services rendered by the plaintiff's chiropractor were

medically necessary as a result of the injuries plaintiff

sustained in the accident.

     The jury found in favor of the plaintiff and fixed the

contract damages at $1,581.50, the amount claimed reduced by

the sum defendant had paid.

     Following discharge of the jury, the plaintiff moved the

trial court to "award double damages and reasonable attorney's

fees and cost," relying on Code § 8.01-66.1(A).    Without

taking additional evidence and following oral argument, the

court granted the motion, finding "that defendant's denial of

payment was not in good faith."     The defendant appeals that

portion of the October 1998 judgment order which found

defendant failed to act in good faith.

     When an insurer under these circumstances "denies,

refuses or fails to pay its insured a claim of $2,500 or

less," Code § 8.01-66.1(A) authorizes the trial court, upon a

finding "that such denial, refusal or failure to pay was not


                               12
made in good faith," to find the insurer liable for "double

the amount otherwise due and payable" under the policy's

provisions, "together with reasonable attorney's fees and

expenses."

     In evaluating the performance of an insurer when there is

a claim that it acted in bad faith in withholding payment to

an insured, courts should apply a "reasonableness standard."

CUNA Mut. Ins. Co. v. Norman, 237 Va. 33, 38, 375 S.E.2d 724,

726-27 (1989).

     In actions against insurers based upon breach of contract

for failure to use good faith, we have held "that bad faith

must be proved by clear and convincing evidence in cases of

this kind."   State Farm Mut. Auto. Ins. Co. v. Floyd, 235 Va.

136, 144, 366 S.E.2d 93, 98 (1988).   This is because the

concept of "'bad faith' runs counter to the presumption that

contracting parties have acted in good faith."   Id.

     Contrary to the plaintiff's contention, it makes no sense

in this insurance contract action alleging bad faith to adopt

a preponderance-of-the-evidence standard of proof.     Bad faith

means the same in any insurance contract context, no matter

under what circumstances the lack of good faith is sought to

be proved.

     Applying the foregoing principles, I would hold, however,

that the trial court did not err in finding bad faith in this


                               13
case, given the record with which it was presented.    The two

chiropractors testified by video deposition.    The deposition

of the defendant's chiropractor was taken about three weeks

before trial.   The deposition of plaintiff's chiropractor was

taken two weeks prior to trial.     Thus, well in advance of

trial, defendant was armed with the information that the

plaintiff's witness would give an unqualified opinion of

medical necessity while its own witness would give an

inconclusive opinion on the subject.    In effect, prior to

trial defendant's representatives knew, or should have known,

that it had no evidence to rebut the plaintiff's evidence on

the only issue in the case.

     Additionally, when the plaintiff made his post-verdict

motion, there was no request from the insurer to offer

evidence on the charge of bad faith, an allegation that had

been made when the action was filed.    The court was not

presented with any testimony on the subject of reasonableness

from a claims supervisor or claims adjuster upon how the

insurer finally evaluated the claim, given the medical

testimony, or upon the insurer's reasoning to support its

decision to deny the claim and to force the plaintiff to

trial.

     Therefore, I would affirm the judgment of the trial

court.


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