Daniel Veroff | Property Insurance Coverage Law Blog | June 10, 2019
Insurance policyholders who are considering suing their insurance companies for bad faith need to consider many pros and cons, including the potential for financial compensation. California juries can allocate the money they award policyholders to several categories, such as unpaid policy benefits, attorney fees, and punitive damages. This post addresses punitive damages and looks at three key issues that came up in a recent decision from California’s Second Appellate District.1 Keep in mind, there are many other factors to consider, and there is no substitute for a consultation with an experienced insurance law attorney.
What is the standard for awarding punitive damages?
California law states that punitive damages can only be awarded if “clear and convincing evidence” shows the insurance company engaged in “oppression, fraud or malice.”2 “Malice” is an intentional injury or “despicable conduct which is carried on the defendant with a willful and conscious disregard of the rights or safety of others.”3 “Oppression” is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”4And “fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant” with the intent to deprive the insured of their legal rights or to cause injury.5
In the recent appellate decision, the court stated that punitive damages were justified because the insurance company, there GEICO, egregiously relied “selectively on facts that support its position and ignore[d] those facts that support[ed the] claim.”6 This is an all-too-common scenario in the claims we see.
When is the insurance company responsible for the malice, fraud and oppression of its adjusters?
In many cases we see, there are bad acts by the adjusters. Insurance companies need to right the wrongs of their adjusters. But should an insurance company be responsible for additional, punitive damages for the acts of one bad apple? The law does not think so, unless there is proof that at least one of two scenarios exists.
First, a jury can award punitive damages against an insurance company for the fraud, malice or oppression of its adjusters if an “officer, director or managing agent” of the company knew in advance that the adjuster was unfit for the job.7
Second, a jury can award punitive damages against an insurance company if an “officer, director or managing agent” of the company authorized or ratified the wrongful conduct” of the adjuster.8
An officer or director is easy to identify, but a “managing agent” can take many forms. In general, the definition of “managing agent” for purposes of punitive damages is an employee who exercises “substantial discretionary authority over significant aspects” of the insurance company’s business.9 For example, in the recent California case, the court held that a regional claims manager was a “managing agent” because he set the standards for claim settlement in his region, viewed the claims process as an adversarial negotiation, and reviewed and approved the adjuster’s course of conduct based on biased summaries.10 Even though the manager never read the claim file, the fact he had access to it was sufficient to support the award for punitive damages.11
Is there a limit or range for the amount of punitive damages that can be awarded?
After the plaintiff and defendant rest their cases in trial, the jury decides whether there is clear and convincing evidence that the insurance company engaged in malice, fraud or oppression. If it finds that such evidence exists, then it determines the amount of punitive damages to award.
The jury’s award is not free from scrutiny however. Courts have the power to reduce punitive damages awarded if the amount is “grossly excessive” compared to the compensatory damages, or “arbitrary.”12 Where the amount of compensatory damages are high, punitive damages in a 1:1 ratio are typically accepted as the ceiling.13 Where the compensatory damages are middle of the road, the generally accepted ceiling for punitive damages is a 3:1 ratio.14 Where the compensatory damages are small but the fraud, malice or oppression was severe, awards have greatly exceeded 3:1.15
In deciding whether the amount chosen by the jury is “grossly excessive” or “arbitrary,” courts consider several “guideposts.”16
First, courts consider “the degree of reprehensibility of the defendant’s misconduct.”17 For this, the court looks at whether (1) the harm was physical as opposed to economic; (2) the insurance company was reckless or engaged in malice, trickery or deceit, as opposed to an accident; (3) the insured was financially vulnerable; and (4) the extent and duration of bad acts to the insured in the single claim, or to a large group of insureds.”18
Second, courts consider “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award.”19 In other words, the jury cannot make a mountain out of a molehill.
Third, courts consider “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Many courts find this factor unhelpful given the penalty laws in California.20
In the recent California appellate decision, the court held that the punitive damages award of less than 3:1 was justified based on the reprehensibility of the insurer’s conduct.21 Importantly, the court explained that evidence of several wrongful acts towards one insured is just as good as evidence of the same wrongful act towards many insureds.22
Bonus question: should I consult with an attorney?
The rules discussed in this post are just the beginning of the analysis. The body of law about punitive damages in California is complex and cases must be analyzed based on their own unique facts. You can contact our attorneys for a free case consultation and ask us how these questions apply to your case.
1 Mazik v. GEICO General Ins. Co., Case No. B281372 (Cal. 2nd. Dist. App. May 17, 2019).
2 Civil Code § 3294(a).
3 Civil Code § 3294(c)(1).
4 Civil Code § 3294(c)(2).
5 Civil Code § 3294(c)(2).
6 See footnote 1; see also Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 721; Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 821–822.
7 See Civil Code § 3294(b).
8 See footnote 1 and cases cited.