Egan v. Mutual of Omaha Insurance

598 P.2d 452, 24 Cal. 3d 809, 157 Cal. Rptr. 482, 1979 Cal. LEXIS 286

• Court: California Supreme Court
• Decided: August 14, 1979
• Docket: L.A. 30747
• Status: Published

Opinions

Opinion

MOSK, J,.

— Defendants appeal from a judgment awarding compensatory and punitive damages for breach of an insurance contract. We conclude the judgment should be affirmed insofar as it awards compensatory damages against defendant Mutual of Omaha Insurance Company (Mutual) but reversed in all other respects.

In 1962, plaintiff purchased a health and disability insurance policy from defendant Mutual through its Los Angeles representative, the Hall-Worthing Agency (agency). The policy provided for lifetime benefits of $200 per month in event the insured became totally disabled as a result of either an accidental injury “independent of sickness and other causes” or sickness sufficiently severe to cause confinement of the insured to his residence. Benefits for a nonconfining illness were payable for a period not to exceed three months.

Between 1963 and 1970 plaintiff claimed and received payments for three separate back-related disabling injuries. In May 1970, he made a fourth claim for accidental back injury suffered during the course of his employment. Portions of the claim form were completed by both plaintiff and his physician. The physician estimated plaintiff would be able to return to work in August 1970. In September plaintiff visited the agency and discussed his claim. This discussion resulted in payment under the policy’s accident provisions for a three-month period following date of injury-

Plaintiff filed a supplemental claim in October 1970, stating he was unable to return to work. Because his physician indicated on the claim form that plaintiff could have returned to work on September 29, defendant McEachen, an agency claims manager, reviewed workers’ compensation and State Compensation Insurance Fund medical records. These records disclosed that plaintiff and the examining physician had agreed he would return to work on July 1, 1970.

On November 20, McEachen visited plaintiff at home. McEachen testified he merely discussed contradictions in the claim form and agreed to discuss the matter later after further investigation. Plaintiff testified that McEachen informed him no further benefits were due because he was not actually disabled but simply unable to find work, that he told McEachen employment was available through his labor union but because he still suffered from his injury he was unable to accept such employment, and that he was willing to be examined by any doctor of Mutual’s choice.

In February 1971, as a result of inquiry from Mutual’s home office, McEachen addressed a letter to plaintiff enclosing payment of benefits through September 29, 1970. The letter stated the check represented full payment of benefits due under the policy.

On February 26, 1971, surgery was performed on plaintiff’s back, and he submitted another claim to the agency. The physician’s portion of this claim form included an estimate by the surgeon that plaintiff could return to work “Possibly 3-6 months from date of surgery.” This claim was assigned to defendant Segal, an agency claims adjuster, who was aided in his field investigations by claims analyst Romano from Mutual’s home office. Although not entirely clear, it appears Romano was assigned to the agency to assist in a backlog of field investigations. Romano was not Segal’s superior; rather, he occupied a position equivalent to that of Segal in the agency.

Segal and Romano, in the course of their field investigations, reviewed records of Workers’ Compensation Appeals Board, State Compensation Insurance Fund, and the hospital where plaintiff’s surgery was performed. State Compensation Insurance Fund records contained letters from Dr. Carpenter, plaintiff’s surgeon, and Dr. Singelyn. Dr. Carpenter wrote in his letter: “[Plaintiff’s medical] history appears consistent with a man with probable discogenic disease with multiple aggravations over the last several years, finally culminating in a specific incident a little over seven months ago. . . .” Dr. Singelyn declared in his letter: “I would apportion 50% of his current subjective complaints to his industrial injury, and 50% to the natural progression of his preexisting pathology of degenerative wear and tear osteoarthritis of the spine.” Neither Segal nor Romano made any effort to contact plaintiff’s physicians. Trial testimony established that efforts to discuss the case with attending physicians would ordinarily have been made by a claims adjuster. Based on Segal’s review of medical records, plaintiff’s condition was reclassified from injury to nonconfining illness.

In May 1971 Segal visited plaintiff at home, telling him he suffered from an illness, not an injury. Segal handed plaintiff a check for medical costs and three months’ maximum disability payments. Plaintiff did not cash the check. He testified he refused Segal’s offer for a larger check if plaintiff would surrender his policy. He further testified that after discussing the matter with Dr. Carpenter, he wrote to Segal concerning his reclassification but received no answer.

Segal testified he was certain he acted at the direction of some higher authority during the May 1971 meeting, although he could not recall who directed him. Mutual’s files contained no written directive to Segal. Gustin, head of Mutual’s continuing disability claims division, attempted to explain the absence of any identifiable person in authority at Mutual’s home office to receive and review Segal’s reports. He testified plaintiff’s file had not been in his department after December 1970, and that it may have “fallen . . . into a crack.”

Subsequently, plaintiff received a 73 percent disability rating on his workers’ compensation claim. Not returning to work, he remained under medical care. In July 1972, at plaintiff’s request, the Department of Insurance asked Mutual to review plaintiff’s file and report to the department within 15 days. The nature of Mutual’s response, if any, is unclear; it was not produced at trial.

In 1973, plaintiff commenced the present action for compensatory and punitive damages against Mutual, Segal and McEachen. The trial court, in directing a verdict against defendants, ruled as a matter of law that defendants’ failure to have plaintiff examined by a doctor of their choice or to consult with plaintiff’s treating physicians and surgeon violated the covenant of good faith and fair dealing. The court submitted to the jury the issues of causation, compensatory and punitive damages. The jury returned verdicts against all defendants. General damages of $500 and punitive damages of $400 were assessed against Segal. General damages of $1,000 and punitive damages of $500 were assessed against McEachen. Mutual was held liable for $45,600 in general damages, $78,000 for emotional distress, and $5 million in punitive damages.

I

The directed verdict on the issue of breach of covenant of good faith and fair dealing rests on Mutual’s inadequate investigation of plaintiff’s claim. Mutual argues that an insurer violates this covenant in a disability insurance contract only if it wrongfully denies a claim knowing it has no reasonable basis for doing so, and that the ruling herein improperly subjects it to strict liability in tort for breach of contract. We disagree. For the reasons discussed below, we conclude that an insurer may breach the covenant of good faith and fair dealing when it fails to properly investigate its insured’s claim.

In addition to the duties imposed on contracting parties by the express terms of their agreement, the law implies in every contract a covenant of good faith and fair dealing. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658 [328 P.2d 198, 68 A.L.R.2d 883]; see also Comment, Extending the Insurer’s Duty of Good Faith and Fair Dealing to Third Parties Under Liability Insurance Policies (1978) 25 UCLA L.Rev. 1413, 1418-1424.) The implied promise requires each contracting party to refrain from doing anything to injure the right of the other to receive the benefits of the agreement. (Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 940 [132 Cal.Rptr. 424, 553 P.2d 584]; Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 429 [58 Cal.Rptr. 13, 426 P.2d 173]; Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d at p. 658.) The precise nature and extent of the duty imposed by such an implied promise will depend on the contractual purposes.

This court has previously addressed the extent of the duties imposed by the implied covenant in liability insurance policies. (Johansen v. California State Auto Assn. Inter-Ins. Bureau (1975) 15 Cal.3d 9 [123 Cal.Rptr. 288, 538 P.2d 744]; Crisci v. Security Ins. Co., supra, 66 Cal.2d 425; Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d 654.) We there held that the insurer, when determining whether to settle a claim, must give at least as much consideration to the welfare of its insured as it gives to its own interests. The governing standard is whether a prudent insurer would have accepted the settlement offer if it alone were to be liable for the entire judgment. (Johansen, at p. 16 of 15 Cal.3d; Crisci, at p. 429 of 66 Cal.2d.) The standard is premised on the insurer’s obligation to protect the insured’s interests in defending the latter against claims by an injured third party.

The implied covenant imposes obligations not only as to claims by a third party but also as to those by the insured. (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452 [113 Cal.Rptr. 711, 521 P.2d 1103]; Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566 [108 Cal.Rptr. 480, 510 P.2d 1032].) In both contexts the obligations of the insurer “are merely two different aspects of the same duty.” (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at p. 573; accord, Silberg v. California Life Ins. Co., supra, 11 Cal.3d 452; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376 [89 Cal.Rptr. 78, 47 A.L.R.3d 286].) “[W]hen the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort.” (Gruenberg, at p. 575 of 9 Cal.3d; accord, Silberg, at p. 461 of 11 Cal.3d; Fletcher, at pp. 401-402 of 10 Cal.App.3d.) For the insurer to fulfill its obligation not to impair the right of the insured to receive the benefits of the agreement, it again must give at least as much consideration to the latter’s interests as it does to its own. (Silberg, at p. 460 of 11 Cal.3d.)

The insured in a contract like the one before us does not seek to obtain a commercial advantage by purchasing the policy — rather, he seeks protection against calamity. As insurers are well aware, the major motivation for obtaining disability insurance is to provide funds during periods when the ordinary source of the insured’s income — his earnings —has stopped. The purchase of such insurance provides peace of mind and security in the event the insured is unable to work. (See Crisci v. Security Ins. Co., supra, 66 Cal.2d at p. 434.) To protect these interests it is essential that an insurer fully inquire into possible bases that might support the insured’s claim. Although we recognize that distinguishing fraudulent from legitimate claims may occasionally be difficult for insurers, especially in the context of disability policies, an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial.

Here the evidence is undisputed that Mutual failed to properly investigate plaintiff’s claim; hence the trial court correctly instructed the jury that a breach of the implied covenant Of good faith and fair dealing was established.

II

. Civil Code section 3294 provides: “In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Section 3294 was originally enacted in 1872, a minor amendment was adopted in 1905, and the statute has remained intact ever since. It is true that the concept of punitive damages has been criticized;¹ but unless at this late date we were to hold the section unconstitutional — a proposition that has been frequently rejected (see, e.g., Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at pp. 404-405; Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 719 [60 Cal.Rptr. 398, 29 A.L.R.3d 988]; United States v. Regan (1914) 232 U.S. 37, 46-49 [58 L.Ed. 494, 497-499, 34 S.Ct. 213]) — we cannot usurp the Legislature’s determination that such damages should be recoverable in cases in which the statutory prerequisites are fulfilled. (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 19-20 [130 Cal.Rptr. 416]; Ferraro v. Pacific Fin. Corp. (1970) 8 Cal.App.3d 339, 355 [87 Cal.Rptr. 226].)

In the present context, the principal purpose of section 3294 is to deter acts deemed socially unacceptable and, consequently, to discourage the perpetuation of objectionable corporate policies. (See Ferraro v. Pacific Fin. Corp., supra, 8 Cal.App.3d at p. 353 [punitive award to deter corporate policy of repossessing automobiles despite bona fide claims of ownership by third parties].) Traditional arguments challenging the validity of exemplary damages lose force when a punitive award is based on this justification. The special relationship between the insurer and the insured illustrates the public policy considerations that may support exemplary damages in cases such as this.

As one commentary has noted, “The insurers’ obligations are . . . rooted in their status as purveyors of a vital service labeled quasi-public in nature. Suppliers of services affected with a public interest must take the public’s interest seriously, where necessary placing it before their interest in maximizing gains and limiting disbursements . . . [A]s a supplier of a public service rather than a manufactured product, the obligations of insurers go beyond meeting reasonable expectations of coverage. The obligations of good faith and fair dealing encompass qualities of decency and humanity inherent in the responsibilities of a fiduciary. Insurers hold themselves out as fiduciaries, and with the public’s trust must go private responsibility consonant with that trust.” (Goodman & Seaton, Foreword: Ripe for Decision, Internal Workings and Current Concerns of the California Supreme Court (1974) 62 Cal.L.Rev. 309, 346-347.) Furthermore, the relationship of insurer and insured is inherently unbalanced; the adhesive nature of insurance contracts places the insurer in a superior bargaining position. The availability of punitive damages is thus compatible with recognition of insurers’ underlying public obligations and reflects an attempt to restore balance in the contractual relationship. (Hirsch et al., Strict Liability: A Response to the Gruenberg-Silberg Conflict Regarding Insurance Litigation Awards (1975) 7 Sw.U.L.Rev. 310, 326; Comment, Egan v. Mutual of Omaha Insurance Co.: The Expanding Use of Punitive Damages in Breach of Insurance Contract Actions (1978) 15 San Diego L.Rev. 287, 298-301; Note, Contracting for Punitive Damages: Fletcher v. Western National Life Insurance Company (1971) 4 Loyola L.A. L.Rev. 208, 219-224.)

On this appeal, of course, we are governed by the familiar substantial evidence test of Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183], Determinations related to assessment of punitive damages have traditionally been left to the discretion of the jury; Davis v. Hearst (1911) 160 Cal. 143, 173 [116 P. 530], declares them to be “wholly within the control of the jury.” (See also Ferraro v. Pacific Fin. Corp., supra, 8 Cal.App.3d at p. 351; Sullivan v. Matt (1955) 130 Cal.App.2d 134, 143-144 [278 P.2d 499].)² Here the propriety of punitive damages was also reviewed by the trial court when it rejected both defendants’ motion for new trial and their motion for judgment notwithstanding the verdict. A brief analysis of the record convinces us that substantial evidence supports the jury’s decision to assess punitive damages.

Plaintiff received his first payment from Mutual on the claim in issue herein only after a long delay and a personal visit to the claims office. When he requested additional payments as a result of his continuing inability to work, McEachen visited him at his home. Testimony was introduced that McEachen, although aware of plaintiff’s good faith efforts to work, called plaintiff a fraud and told him that he sought benefits only because he did not want to return to work. McEachen advised plaintiff he was not entitled to any further payments and that past benefits received were also unwarranted, despite plaintiff’s bona fide claim of accidental injury.³ When plaintiff expressed his concern regarding the need for money during the approaching Christmas season and offered to submit to examination by a physician of Mutual’s choice, McEachen only laughed, reducing plaintiff to tears in the presence of his wife and child.

After plaintiff received what Mutual designated his “final” payment, he was compelled to undergo back surgery. Segal visited plaintiff after he made further requests for total disability payments because he was confined to his home for medical reasons. Segal told him that he was not incapacitated from an accidental injury but had a “sickness” that could not qualify under the policy’s total disability provision. Despite the lack of support for denying plaintiff’s disability claim, Segal offered a “final” check under the policy’s sickness provision, or a larger check if plaintiff would surrender the policy.⁴ Other evidence reflected both Segal’s and McEachen’s knowledge that plaintiff had a 12-year-old child and a totally disabled wife. In short, the record as a whole contains substantial evidence from which the jury might reasonably find that defendant “acted maliciously, with an intent to oppress, and in conscious disregard of the rights of its insured.” (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 923 [148 Cal.Rptr. 389, 582 P.2d 980].)

Mutual advances an alternate ground for reversal on the issue of punitive damages, i.e., that the actions of McEachen and Segal cannot be imputed to Mutual for this purpose. In a broad sense, it is correct to state that California follows the Restatement rule regarding assessment of punitive damages against a principal; “Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act.” (Rest.2d Torts (Tent. Draft No. 19, 1973) § 909.) However, prior cases have not ascribed to the Restatement the narrow interpretation proposed by Mutual.⁵

Mutual argues that neither McEachen nor Segal can be considered “managerial employees” because neither was involved in “high-level policy making.” The determination whether employees act in a managerial capacity, however, does not necessarily hinge on their “level” in the corporate hierarchy. Rather, the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy. When employees dispose of insureds’ claims with little if any supervision, they possess sufficient discretion for the law to impute their actions concerning those claims to the corporation.

We are satisfied that with respect to plaintiff’s claim herein, the authority vested in McEachen and Segal was sufficient to justify the imposition of punitive damages against Mutual. The record demonstrates they exercised broad discretion in the disposition of plaintiff’s claim. Moreover, McEachen’s own description of his responsibilities at Mutual reflect his exercise of policy-making authority as a “managerial employee.” He testified that his business card displayed to policyholders identified him as “Manager, Benefits Department, Mutual of Omaha.” He further explained he was manager of the Los Angeles claims department for Mutual, and in that capacity had ultimate supervisory and decisional authority regarding the disposition of all claims, like that of plaintiff, processed through the Los Angeles office. Although Segal testified that he acted with directions from above, the record provides little support for this testimony; it appears, therefore, that with respect to plaintiff’s claim he also possessed broad discretion. The authority exercised by McEachen and Segal necessarily results in the ad hoc formulation of policy.

In concluding that McEachen and Segal were managerial employees, we subscribe to the views of Justice Tamura in his concurring and dissenting opinion in Merlo v. Standard Life & Acc. Ins. Co., supra, 59 Cal.App.3d at page 25:⁶ “It must be remembered that we are here concerned with an insurance company dealing in disability insurance, not just any corporation. Manifestly, to plaintiff, [the claims representative’s] actions were actions of defendant. [The claims representative] 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.”

Ill

We turn to the question whether the amount of the punitive damage award herein — $5 million — is excessive as a matter of law. We have recently reviewed the considerations governing appellate determinatian of such questions, and need not reiterate them at this time. (Neal v. Farmers Ins. Exchange (1978) supra, 21 Cal.3d 910, 927-928, and cases cited.) Applying those considerations to the case at bar, we observe first that the award of punitive damages is more than 40 times larger than the not-insubstantial assessment of $123,600 in compensatory damages against Mutual. In addition, the punitive damage figure herein represents two and one-half months of Mutual’s entire net income in 1973, and more than seven months of such income in 1974. Viewing the record as a whole and in the light most favorable to the judgments, we conclude that in these circumstances the punitive damage award against Mutual must be deemed the result of passion and prejudice on the part of the jurors and excessive as a matter of law.

IV

Segal and McEachen acted as Mutual’s agents. As such, they are not parties to the insurance contract and not subject to the implied covenant. Because the only ground for imposing liability on either Segal or McEachen is breach of that promise, the judgments against them as individuals cannot stand. (Gruenberg v. Aetna Ins. Co. (1973) supra, 9 Cal.3d at p. 576.)

The judgment against Segal and McEachen is I reversed. The judgment against Mutual is affirmed as to the award of compensatory damages⁷ and reversed as to the award of punitive damages. Segal and McEachen shall recover their costs on appeal from plaintiff. Plaintiff and Mutual shall bear their own costs on appeal.

Bird, C. X, Tobriner, X, and Manuel, X, concurred.

1 See, e.g.; Long, Punitive Damages: An Unsettled Doctrine (1976) 25 Drake L.Rev. 870; Carsey, The Case Against Punitive Damages (1975.) 11 The Forum 57; Ghiardi, The Case Against Punitive Damages (1972) 8 The Forum 411; Note, The Imposition of Punishment by Civil Courts: A Reappraisal of Punitive Damages (1966) 41 N.Y.U.L.Rev. 1158.

2 Restatement Second of Torts, section 908, comment (d), includes the statement, “Whether to award punitive damages and the determination of the amount are within the sound discretion of the trier of fact, whether judge or jury.”

3 McEachen substantiated this assertion by claiming to have contacted plaintiff’s treating physician, a claim not supported by the record.

4 Of course, if there had been a reasonable and carefully investigated foundation for believing that plaintiff’s injury did not fall within the scope of the policy coverage, the proposed settlement could not have been considered inappropriate and, accordingly, could not have entered into the jury’s decision to award punitive damages.

5 Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 549-550 [98 Cal.Rptr. 588], and Davis v. Local Union No. 11, Internat. etc. of Elec. Workers (1971) 16 Cal.App.3d 686 [94 Cal.Rptr. 562], support the conclusion that McEachen was a “managerial employee” in a “policy-making position.” In Kuchta, the actions of a franchisee with managerial authority comparable to that of McEachen were imputed to the principal for the purpose of fixing liability for punitive damages. The court in Davis similarly rejected defendant labor union’s contention that the actions of its agent, merely an assistant business manager, could not be imputed to the union. These cases focus on the responsibilities of the agent, rather than merely his title, in assessing whether punitive damages are appropriate. To the extent that Hale v. Farmers Ins. Exch. (1974) 42 Cal.App.3d 681 [117 Cal.Rptr. 146], conflicts with the views expressed herein, we disapprove it.

6 The majority in Merlo did not decide the question of the managerial status of the defendant insurer’s claims representative.

7 Mutual also contends that the compensatory damage award should be reversed because the trial court permitted the jury to award future policy benefits. It is true that in Erreca v. Western States Life Ins. Co. (1942) 19 Cal.2d 388, 402 [121 P.2d 689, 141 A.L.R. 68], this court allowed the recovery of only accrued benefits in an action for breach of a contract for disability insurance. We have never held, however, that future policy benefits may not be recovered in a valid tort cause of action for breach of the implied covenant of good faith and fair dealing, nor does defendant offer any compelling reason for extending Erreca to such actions. Thus, in applying to these facts the general rule for fixing tort damages (Civ. Code, § 3333), the jury may include in the compensatory damage award future policy benefits that they reasonably conclude, after examination of the policy’s provisions and other evidence, the policy holder would have been entitled to receive had tlie contract been honored by the insurer. To the extent it is inconsistent herewith, Austero v. National Cas. Co. (1978) 84 Cal.App.3d 1, 24-25 [148 Cal.Rptr. 653], is disapproved.