Mazik v. GEICO General Ins. Co. ( 2019 )

Filed 5/17/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MICHAEL MAZIK, B281372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC544968)
v.
GEICO GENERAL INSURANCE
COMPANY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Richard E. Rico, Judge. Affirmed.
Sheppard, Mullin, Richter & Hampton, John T. Brooks and
Karin Dougan Vogel for Defendant and Appellant.
Pine Tillett Pine, Norman Pine, Chaya M. Citrin; Alder
Law, Michael Alder, Lauri L. Brenner; and Michael H. Silvers for
Plaintiff and Respondent.
_________________________________
GEICO General Insurance Company (GEICO) appeals from
a judgment against it awarding punitive damages to respondent
Michael Mazik for GEICO’s bad faith breach of an insurance
contract. A jury concluded that GEICO unreasonably delayed
paying its policyholder Mazik the policy limits of $50,000 on an
underinsured motorist policy after Mazik was injured in a serious
automobile accident. The jury awarded compensatory damages of
$313,508 and punitive damages in the amount of $4 million. The
trial court subsequently reduced the punitive damages to
$1 million.
GEICO appeals only the punitive damages award. It
argues that (1) the evidence is insufficient to show that any
“officer, director, or managing agent” was involved in any act of
bad faith (Civ. Code, § 3294, subd. (b));1 (2) even if a managing
agent was involved, the evidence is insufficient to show that such
an agent personally engaged in “oppression, fraud, or malice,” or
authorized or ratified such conduct by other employees, as
required to support a punitive damages award (ibid.); and (3) the
punitive damages award was excessive, even as reduced by the
trial court.
We reject GEICO’s arguments and affirm. There is
sufficient evidence in the record to show that GEICO’s managing
agent ratified conduct warranting punitive damages. In
concluding that Mazik’s claim was worth far less than the policy
limits, GEICO disregarded information provided by Mazik
showing that he had a permanent, painful injury, and instead
1 Subsequent undesignated statutory references are to the
Civil Code.
2
selectively relied on portions of medical records that supported
GEICO’s position that Mazik had fully recovered. As reduced by
the trial court, the $1 million in punitive damages (approximately
three times the amount of compensatory damages) is within the
constitutionally permitted range in view of the degree of
reprehensibility of GEICO’s conduct.
BACKGROUND
1. Mazik’s Accident and Treatment
On August 11, 2008, Mazik was involved in a serious
automobile accident on a highway in Riverside County. While
driving about 45 to 50 miles per hour, he collided head-on with
another car that was in his lane driving about the same speed.
The other driver, who had crossed over double yellow lines in his
attempt to pass slower traffic, was killed.
Mazik received initial treatment at the Riverside County
Regional Medical Center. Along with lacerations and abrasions,
he was diagnosed with a “[g]rossly comminuted fracture of the
left calcaneus,” i.e., heel bone.
Mazik sought subsequent treatment at the Idyllwild Health
Center and from Dr. Barry Grames with the San Bernardino
Medical Orthopedics Group. He also received physical therapy.
Dr. Grames confirmed the diagnosis of a severely
comminuted fracture to the left calcaneus. Dr. Grames treated
the fracture as “nonoperative” due to the “severe soft tissue
swelling and severe comminution” of the fracture. In early
December 2008, nearly eight months after the accident, Dr.
Grames concluded that Mazik “may have chronic pain and
discomfort and may require a subtalar fusion.” Dr. Grames saw
Mazik periodically from August 20, 2008, through June 30, 2009.
Dr. Grames’s final report stated that Mazik “is overall
doing quite well.” However, he also reported that Mazik still had
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pain of “3–4 on a pain scale of 1 to 10,” and had “very limited
range of motion of the hind foot and subtalar joint.” With respect
to work status, Mazik was still “temporarily totally disabled.” Dr.
Grames concluded that, if Mazik has “increasing pain or
discomfort, he may be a candidate for a subtalar joint effusion in
the future.”
Mazik again sought medical treatment in January 2012
from Dr. Bobby Yee. The treatment was prompted by “problems
walking and working due to the pain” in his left heel. Dr. Yee
reported that Mazik had a severely restricted range of motion and
arthritis in his ankle.
2. Mazik’s Injuries
Mazik’s medical expert at trial, Dr. Jacob Tauber, described
the injury to Mazik’s heel as “devastating.” He explained that the
“reason it hurts so much, is you not only have the deformity of the
bone, but you’ve destroyed the joint between the ankle bone, the
talus, and the heel bone, the calcaneus.” Dr. Tauber testified that
he had reviewed X-rays and CAT scan records of Mazik’s injury,
and they showed that Mazik’s bone had “literally exploded.” He
testified that the severe nature of Mazik’s injury was apparent
from his doctors’ diagnoses “right from the beginning.” He
explained that the diagnosis of a “comminuted” fracture was a
“fancy orthopedic word for many pieces.”
Dr. Tauber further explained that surgery was not a good
option for Mazik because Mazik’s bone had “burst into too many
pieces.” The best option was the treatment that Mazik had
received, which was to splint him until the fracture healed in
“whatever deformed state” and consider a fusion in the future if
“you can’t take the pain.” He testified it was his opinion that
Mazik would “have a lifetime of chronic pain and issues related
to” his heel injury.
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3. Mazik’s Demand
Mazik received $50,000 from Mercury Insurance Company
(Mercury), the insurer for the driver of the other car who was at
fault in the accident. That sum amounted to the full value of the
driver’s policy.
On December 31, 2009, Mazik’s attorney submitted a claim
to GEICO under Mazik’s underinsured motorist policy, which had
a policy limit of $100,000. The letter included medical records of
Mazik’s treatment to date along with other supporting
documentation. In light of the “severity of the damages” and the
residual effects of the injuries, the letter requested compensation
of $50,000, representing the full policy amount offset by the
$50,000 payment Mazik had already received.
4. GEICO’s Response
After receiving Mazik’s December 31, 2009 demand, a
GEICO claims adjuster prepared a written “Claim Evaluation
Summary” (Evaluation). The Evaluation summarized the
medical records included with Mazik’s demand and assessed
values for medical expenses, lost income, and “pain and
suffering.” It calculated a “negotiation range” for the full value of
the claim (including the $50,000 that Mercury had already paid)
from $47,047.86 to $52,597.86. As discussed further below,
Richard Burton, a GEICO claims adjuster who later worked on
Mazik’s file, testified at trial that the summary of the medical
reports in the Evaluation omitted important information from the
medical records that Mazik had provided.
After preparing the Evaluation, the adjuster obtained
approval from GEICO’s regional liability administrator, Lon
Grothen, to reject Mazik’s $50,000 claim. Accordingly, on
January 22, 2010, GEICO offered Mazik a settlement of $1,000.
5
In September 2010, after a new claims adjuster began to
work on the file but without receiving any additional information,
GEICO increased its settlement offer to $13,800. Four months
later, on January 22, 2011, GEICO increased its offer to $18,000.
A note from Grothen approving the offer stated that he had
“Increased The General Damage Range To Increase The
Possibility of Settlement.”
GEICO requested an independent medical evaluation of
Mazik, which occurred on May 23, 2011. The examiner, Dr. Don
Williams, summarized Mazik’s prior medical records and then
stated his brief conclusions. Dr. Williams reported that Mazik
was “doing well two years after” the accident, and there was “no
indication that he needs surgery.” He concluded that Mazik’s
injury “does not restrict his occupation as a teacher” and that
“[n]o further medical care is indicated.” He opined that Mazik’s
“prognosis is good.”
On February 16, 2012, GEICO served a statutory offer to
compromise Mazik’s claim for $18,887. Mazik rejected the offer
and reasserted his demand for the policy limits.
GEICO did not make any additional settlement offers.
Grothen explained that GEICO declined to do so, even though he
had authorized payment of more money, because “there was no
negotiation from the other side. So they never came off their
policy limit. We call that throwing good money after bad. If we
can’t get them to negotiate, he would have been—it’s bidding
against yourself.”
On August 31, 2012, even after GEICO had received copies
of Dr. Yee’s treatment records reporting continuing medical
issues three years after the accident, Grothen gave his “Ok To
Move This Toward Arbitration. I Do Not See This As A Policy
Limits Case.”
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5. The Arbitration
The arbitration took place in April 2013. The arbitrator
issued an award for the full policy limits, and GEICO provided
Mazik with a check for $50,000 in June 2013, 30 months after the
jury in this case concluded that GEICO should have paid the
policy limits.
6. Mazik’s Bad Faith Action
Mazik filed this action for bad faith against GEICO on
May 7, 2014. The case was tried to a jury in July 2016. The jury
returned a verdict in favor of Mazik and awarded compensatory
damages of $313,508. The compensatory damages consisted of
$300,000 for “[m]ental suffering, anxiety, and emotional distress”
and $13,508 for “attorney’s fees and costs to recover the insured
policy benefits.”
The jury also awarded punitive damages of $4 million.
Following a motion for a new trial, the trial court found that the
punitive damages award was excessive in light of the ratio of
punitive to compensatory damages and the fact that Mazik’s
claim “relates to financial damages” rather than personal injury.
The court reduced the amount of punitive damages to $1 million.
DISCUSSION
1. Standard of Review
A. Oppression, fraud, or malice
Punitive damages may be awarded only on proof by “clear
and convincing evidence” that the defendant “has been guilty of
oppression, fraud, or malice.” (§ 3294, subd. (a).) A finding that
the defendant engaged in such conduct is reviewed under the
substantial evidence standard. (Kelly v. Haag (2006) 145
Cal. App. 4th 910, 916.) In applying that standard, we “view the
evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference and resolving
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all conflicts in its favor.” (Bickel v. City of Piedmont (1997) 16
Cal. 4th 1040, 1053.)
The parties agree that the substantial evidence standard
applies to the jury’s finding that punitive damages are
appropriate, but differ as to how to apply that standard in light of
the requirement that a plaintiff prove oppression, fraud, or malice
by clear and convincing evidence. GEICO argues that the clear
and convincing burden is “incorporated into the substantial
evidence standard of review.” Citing Crail v. Blakely (1973) 8
Cal. 3d 744, 750 (Blakely), Mazik argues that, on appeal, the
“substantial evidence standard remains the same whether the
‘preponderance of the evidence’ or ‘clear and convincing evidence’
standard applied in the trial court.”
The dispute is not material. While some cases have
described the appropriate inquiry as “whether the record contains
‘substantial evidence to support a determination by clear and
convincing evidence’ ” (Shade Foods, Inc. v. Innovative Products
Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891;
Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal. App. 4th 1269,
1287), the “clear and convincing evidence” component of this
formulation is not of great significance on appeal. As our
Supreme Court has explained, the “ ‘clear and convincing’ ”
standard was adopted “for the edification and guidance of the
trial court, and was not intended as a standard for appellate
review.” (Blakely, supra, 8 Cal.3d at p. 750.) The clear and
convincing requirement in the trial court does not change the rule
on appeal that we consider “conflicting evidence in a light
favorable to the judgment, with the presumption the trier of fact
drew all reasonable inferences in support of the verdict.” (Hoch v.
Allied-Signal, Inc. (1994) 24 Cal. App. 4th 48, 60.) The practical
8
effect of this rule is that the quantum, or weight, of the evidence
before the jury is not a factor for appellate review.2
B. Amount of punitive damages
We review de novo whether an award of punitive damages
is constitutionally excessive. (Simon v. San Paolo U.S. Holding
Co., Inc. (2005) 35 Cal. 4th 1159, 1172 (Simon).)
2. The Evidence Was Sufficient to Show That
Grothen Was a “Managing Agent”
Mazik does not contend that any of the claims adjustors
who worked on his file were managing agents of GEICO. Rather,
he claims that Grothen was a managing agent based upon
Grothen’s authority over claims exceeding $35,000. Mazik
explains that his “position rests solely on the fact that Grothen
had broad regional powers over adjusters and managers in cases
up to $100,000 and used that broad discretion to enforce his
‘negotiation’ regime.”3 Thus, the question of whether the record
2 For example, under the substantial evidence standard the
testimony of one witness may be sufficient to support the verdict,
even if there is other evidence that would support contrary
findings. (In re Marriage of Mix (1975) 14 Cal. 3d 604, 614; Pope
v. Babick (2014) 229 Cal. App. 4th 1238, 1245–1246.) In the
context of the dispute in this case, if there was evidence sufficient
for the jury to conclude that GEICO’s managing agent was aware
of and approved oppressive, malicious, or fraudulent conduct, we
must affirm even if there was also substantial evidence that the
agent was not aware of such conduct.
3 GEICO argues that there is no evidence to support the
claim that Grothen had settlement authority up to $100,000 and
that the record supports only a conclusion that Grothen had
settlement authority for claims between $35,000 and $50,000. As
9
contains substantial evidence of culpable conduct by a managing
agent must be answered by evaluating Grothen’s role.
Section 3294 establishes the legal standard for punitive
damages. Section 3294, subdivision (a) requires proof that a
“defendant has been guilty of oppression, fraud, or malice.”
Section 3294, subdivision (b) then describes the proof necessary
when the defendant is an employer whose employee allegedly
engaged in such conduct. An employer may not be liable for
punitive damages based upon the acts of an employee unless the
employer (1) “had advance knowledge of the unfitness of the
employee and employed him or her with a conscious disregard of
the rights or safety of others”; or (2) “authorized or ratified the
wrongful conduct for which the damages are awarded”; or (3)
“was personally guilty of oppression, fraud, or malice.” (Ibid.)
And, with respect to a corporate employer, “the advance
knowledge and conscious disregard, authorization, ratification or
act of oppression, fraud, or malice must be on the part of an
officer, director, or managing agent of the corporation.” (Ibid.)
In White v. Ultramar, Inc. (1999) 21 Cal. 4th 563 (White),
our Supreme Court explained that managing agents are
employees who “exercise substantial independent authority and
judgment in their corporate decisionmaking so that their
decisions ultimately determine corporate policy.” (Id. at pp. 566–
567.) The court further explained that, under section 3294,
subdivision (b), a “plaintiff seeking punitive damages would have
discussed below, the issue is not material, as the record shows
that Grothen had substantial regional authority over a large
number of claims.
10
to show that the employee exercised substantial discretionary
authority over significant aspects of a corporation’s business.”
(White, at p. 577.) The court disapproved two prior cases holding
or suggesting that a supervisor may be a managing agent merely
because he or she has the ability to hire and fire workers. (Id. at
p. 574, fn. 4.)
GEICO argues that the court further restricted the
definition of a managing agent in Roby v. McKesson Corp. (2009)
47 Cal. 4th 686 (Roby). The court in that case held that a
supervisor who harassed and discriminated against an employee
on account of a medical condition was not a managing agent of
the defendant company. The supervisor supervised only four
employees in a local distribution center for a company that had
over 20,000 employees. (Id. at p. 714.) The court explained that,
“[w]hen we spoke in White about persons having ‘discretionary
authority over . . . corporate policy’ (White, supra, 21 Cal.4th at
p. 577), we were referring to formal policies that affect a
substantial portion of the company and that are the type likely to
come to the attention of corporate leadership.” (Roby, at pp. 714–
715, italics added.)
GEICO claims that, based upon this definition, a managing
agent must have responsibility over “formal” policies, which
GEICO interprets as policies that are not simply “ad hoc.” Thus,
GEICO argues that Mazik must show substantial evidence that
“Grothen established policies (i) intended to be applied across a
broad scope of situations, (ii) that affected a substantial portion of
GEICO, and (iii) that were likely to come to the attention of
GEICO’s corporate leadership.”
We need not consider this claim because GEICO did not
request a jury instruction containing such a definition of
managing agent. Rather, Mazik and GEICO jointly requested,
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and the trial court gave, the standard instruction on the
definition of managing agent contained in CACI No. 3946. That
instruction tracks the language in White in explaining simply
that “[a]n employee is a ‘managing agent’ if he or she exercises
substantial independent authority and judgment in his or her
corporate decision making such that his or her decisions
ultimately determine corporate policy.” (CACI No. 3946; White,
supra, 21 Cal.4th at pp. 566–567.) GEICO does not assert any
error in this or any other jury instruction on appeal.
As the court explained in Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal. App. 4th 655, “We review the sufficiency of the
evidence to support a verdict under the law stated in the
instructions given, rather than under some other law on which
the jury was not instructed.” (Id. at pp. 674–675; see Null v. City
of Los Angeles (1988) 206 Cal. App. 3d 1528, 1535 [“We therefore
conclude that where a party to a civil lawsuit claims a jury
verdict is not supported by the evidence, but asserts no error in
the jury instructions, the adequacy of the evidence must be
measured against the instructions given the jury”].) A trial court
in a civil case generally “has no duty to instruct on its own
motion.” (Bullock, at p. 675.) Thus, assessing the evidence based
upon a standard that was not presented to the jury or the trial
court below “would allow reversal of a judgment on a jury verdict,
requiring a retrial, even though neither the jury nor the court
committed error.” (Ibid.)4
4 Pursuant to Government Code section 68081, we invited
the parties to submit letter briefs addressing the issue whether
GEICO forfeited the right to argue that the evidence was
insufficient based upon a definition of “managing agent” that was
12
There is ample evidence in the record that Grothen met the
definition of managing agent that the jury was given.5 Grothen
had wide regional authority over the settlement of claims. He
testified that he was a regional liability administrator for Orange
County, Los Angeles, San Bernardino, and Alaska. Over 100
claims adjusters are “funneled up” to him for approval of
settlements within the range of his authority, which included
claims up to at least $50,000. This responsibility affects a large
not given to the jury. In its letter brief, GEICO argues that the
definition of “formal” policy that it urges in its brief is simply the
“common meaning of the term ‘corporate policy’ that is already
embraced in the words of the instruction” included in CACI
No. 3946. But GEICO proposes a very specific definition of a
formal policy that a jury would not necessarily glean from the
standard instruction. GEICO forfeited the right to argue that the
evidence is insufficient to meet that specific definition by failing
to request an instruction that included it. To the extent that
GEICO argues that a “formal” policy simply means something
other than a decision “ ‘for the particular case at hand without
consideration of wider application’ ” (i.e., its definition of “ad
hoc”), as discussed below the evidence of Grothen’s role was
sufficient to meet that definition.
5 It is likely that the evidence would support Grothen’s
status as a managing agent even under the specific definition
that GEICO urges. An employee’s authority over the systematic
application of policies in a claims manual or other formal
corporate document might “determine corporate policy” as
effectively as the formulation of the policies themselves. (White,
supra, 21 Cal.4th at pp. 566–567.) It is doubtful that the court in
Roby intended its reference to “formal” policies to exclude persons
with such authority from its definition of a managing agent.
Nevertheless, we need not address that question here.
13
number of claims. Grothen testified that he typically has 18 to 20
meetings per day with claims adjusters seeking his approval or
direction for handling particular claims.
Grothen’s own testimony established that an important
part of his job was to establish settlement standards within his
region. He testified that it is “an extremely important part of
[his] role” to “maintain consistency in settlement valuations.” He
further explained that “consistency is also important so we can be
profitable.” The jury reasonably could have concluded that this
type of broad decisionmaking responsibility for establishing
GEICO’s settlement standards “ultimately determine[d] corporate
policy.” (White, supra, 21 Cal.4th at pp. 566–567.)
3. The Evidence Was Sufficient To Show That
Grothen Ratified Conduct Warranting Punitive
Damages
As the trial court concluded in denying GEICO’s motion for
judgment notwithstanding the verdict, Mazik provided evidence
at trial that GEICO “deliberately ‘cherry-picked’ medical
information and disregarded unfavorable findings.” The evidence
supports this conclusion.
As mentioned, Burton (the GEICO claims adjuster who
testified at trial) admitted that GEICO’s initial claim evaluation
summary omitted important information that appeared in
Mazik’s medical records. The omitted information included that
(1) Mazik was still on crutches and had a cast several weeks after
his accident; (2) Mazik had back pain despite no history of back
problems; (3) the fracture to Mazik’s calcaneus (i.e., heel bone)
was “severe”; (4) as of January 20, 2009, over five months after
the accident, Mazik’s symptoms were worse with walking and he
had significant discomfort in his cast and was medicating with
Vicodin and ibuprofen; (5) Mazik had limited joint motion nearly
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three months after the accident; (6) Mazik’s pain level had
decreased by November only when he was not using his foot, not
in general as the summary implied; and (7) as of the end of
December 2008, Mazik still had current pain complaints and
functional limitations and was continuing physical therapy.
GEICO’s claims adjusters also prepared summaries in
advance of the arbitration that were misleading and omitted
significant information. A summary prepared on February 14,
2012, incorrectly stated that Mazik had not submitted any
documentation in support of his request for reimbursement of
expenses that Mazik’s mother and a friend had incurred in
assisting him after the accident. In fact, Mazik had submitted
such documentation with his initial demand.
Another prearbitration summary dated June 12, 2012,
noted as “strengths of case” that there had been “no medical
treatment since May 2009, then went back to a Dr. Yee for
5 visits between 1/10/12 and 3/23/12. This appears to be for
fitting of shoes.” This summary grossly trivialized Dr. Yee’s
diagnosis and treatment. Dr. Yee’s records showed that special
shoes were not simply a convenience, but were necessary because
of ongoing “problems walking and working due to the pain.” They
noted that Mazik has “undergone significant trauma to the left
heel and foot which has resulted in a rearfoot deformity.” While a
New Balance shoe helped to solve this problem to a “great
degree,” Mazik was “still having problems due to a sensation that
he is inverted.” Orthotics were necessary for a “persistent
sensation of falling to the outside” that “appears to be
overwhelming him.”
GEICO concedes that “[i]t is possible” a reasonable jury
could conclude that the claims adjusters responsible for Mazik’s
file “intentionally disregarded” facts in the medical records when
15
preparing their summaries. However, GEICO argues that the
claims adjusters’ conduct cannot support a punitive damages
award because Grothen himself was “not personally involved in
reviewing Mazik’s medical records or otherwise personally
involved in investigating his claim.”
We reject the argument. There was sufficient evidence for
the jury to conclude that Grothen engaged in oppressive conduct
by ignoring information concerning the serious and permanent
nature of Mazik’s injuries for the purpose of saving the company
money.
First, the jury reasonably could have concluded that
Grothen was aware the claims adjusters had reported only
selected information. Grothen testified that because of his
limited contact with individual claims, he relies on claims
examiners to provide him with accurate summaries. However, he
also testified that in reviewing proposed settlement offers, he has
access to the entire claims file and spot checks the information
the examiner provides. If he concludes that the examiner has not
done a thorough job, he investigates further.
Grothen had sufficient contact with Mazik’s file for the jury
to find that he knew the adjusters’ summaries were misleading.
GEICO maintains an electronic claims diary that records all the
pertinent events concerning its handling of claims. That diary
reflects that Grothen provided direction and/or approval for
claims decisions on numerous occasions:
(1) On January 19, 2010, Grothen gave his approval to
reject Mazik’s initial demand for payment of the policy limits on
his claim.
(2) On January 25, 2010, Grothen instructed the claims
adjuster that “We Need To Confirm What The Attorney Alleges
In The Letter. He Says There Is A Permanent Limp. Ask For An
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[independent medical examination (IME)]. Send A Wage Loss
Auth So We Can Get His Records From His Employer. Advise
The Attorney We Will Re Evaluate The Claim Once This
Information Is Received.”
(3) On February 22, 2011, Grothen approved an offer of
up to $18,000 and directed the adjuster to “Get The [IME] Asap.”
He also directed the adjuster to bring the file back to him when it
is completed, stating that “We Can Re Evaluate Our Offer At
That Time.”
(4) On February 14, 2012, Grothen directed a note to the
claims adjuster stating that “We Met This Morning. I Agree That
This Does Not Appear To Be A Policy Limits Case. Unless They
Move Off That Demand I Would Let The Case Be Arbitrated.”6
(5) On March 6, 2012, Grothen directed a note to the
claims adjuster stating that “We Met. We Have A Very Positive
[IME] That Indicate [sic] There Will Be No Restrictions In Terms
Of The Insured’s Employment. There Has Been No Additional
Treatment In Nearly 3 Years. I Suggest That We Let This Go
Forward. Please Contact Defense Counsel.”
(6) On August 31, 2012, Grothen gave his approval to
move the case toward arbitration, stating that “I Do Not See This
As A Policy Limits Case.”
6The evidence showed that Grothen signed a prearbitration
summary on February 14, 2012, after discussing the summary
with Burton. Thus, GEICO’s assertion that the evidence shows
only that Grothen reviewed the initial Evaluation is incorrect.
Moreover, it was reasonable for the jury to infer that Grothen saw
the other summaries as well.
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(7) On February 22, 2013, Grothen gave his
authorization to let the statutory settlement offer expire.
Thus, Grothen had far more than a passing familiarity with
Mazik’s claim. The jury reasonably could have concluded that
Grothen understood the claims adjusters’ summaries told only
part of the story.
Second, the jury also could have reasonably concluded that
Grothen himself was fully aware of the serious nature of Mazik’s
injuries. The summaries that Grothen reviewed, although
misleading, did contain information that the jury could have
concluded would have alerted an experienced reviewer like
Grothen to the serious nature of Mazik’s injuries. For example,
the claims adjuster’s initial Evaluation in January 2010 stated
that Mazik had a “grossly comminuted fracture.” Grothen
understood that a comminuted fracture means that the bone is
“kind of split apart” and fragmented. He admitted that it was a
serious injury. The Evaluation also mentioned that Mazik had
osteoporosis, which Burton admitted was “not” “a good thing to
have.”
Mazik’s original treating doctor, Dr. Grames, also stated in
one of his reports that Mazik was likely to have chronic aching
pain. Grothen admitted that this was important information, and
testified that he could not say he “didn’t know it.”
Burton’s testimony also suggested that Grothen received
more information than was included in the summaries. Burton
explained that, when meeting with a supervisor for approval of a
settlement offer, claims adjusters typically expand on the
information included in the summaries. For example, while the
January 2010 Evaluation referred to Mazik’s injury as a “left
fractured foot,” when meeting with a supervisor the claims
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adjuster would expound on that description by explaining that it
was a “comminuted fracture of the calcaneus.”
Third, the jury could have reasonably concluded that
Grothen adopted an improper adversary approach to resolving
Mazik’s claim. Grothen testified that he approved GEICO’s
settlement offer of $18,800 even though the adjuster, with
Grothen’s approval, had estimated a claim value of up to $23,000.
Grothen explained that offering the low end of the evaluated
settlement range was part of a negotiation strategy. While
Grothen’s explanation of this negotiating strategy concerned an
offer that Grothen claimed was within the range of
reasonableness, the jury reasonably could have rejected that
explanation and concluded that Grothen was simply attempting
to negotiate as low a payment as possible regardless of Mazik’s
injuries.
In explaining why GEICO did not provide Dr. Tauber’s
report to the independent medical examiner, Dr. Williams,
Grothen also testified that GEICO was “going into an arbitration
proceeding,” which was an adversary process similar to Mazik’s
lawsuit. Although he admitted that GEICO had a duty to
constantly evaluate Mazik’s claim based on new information,
Grothen testified it was “up to the lawyers” whether to share Dr.
Tauber’s report with Dr. Williams based on their legal strategy.
The jury could have concluded that this adversary approach
placed GEICO’s interests above Mazik’s and led GEICO to ignore
information that supported Mazik’s claim.7
7
Mazik’s bad faith expert testified, without objection, that
Grothen’s tactic of offering the low end of a range within which
GEICO was prepared to settle was itself inconsistent with
19
In light of this evidence, the jury had a sufficient basis to
conclude that Grothen approved unreasonably low offers to Mazik
that ignored medical records showing the serious and permanent
nature of his injuries. Mazik’s bad faith expert evaluated Mazik’s
claim at $400,000 to $450,000 based only on Mazik’s initial
demand letter and the documentation provided in support of that
demand. Dr. Tauber described Mazik’s injury as “devastating”
and testified that the severity of the injury was obvious from the
beginning. GEICO’s own claims adjuster, Burton, admitted that
he understood why Mazik considered GEICO’s initial $1,000 offer
“insulting,” and said that he would have handled it differently
than the adjuster who made that offer.8 Burton also agreed that
Mazik has a deformity in his left foot and that such a permanent
deformity is something that should be taken into consideration in
determining compensation for pain and suffering.
Thus, the record supports the jury’s conclusion that
GEICO’s conduct amounted to oppression or malice warranting
punitive damages. Section 3294 defines “malice” as intentional
injury or “despicable conduct which is carried on the defendant
with a willful and conscious disregard of the rights or safety of
others.” (§ 3294, subd. (c)(1).) “Oppression” is “despicable
conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights.” (§ 3294, subd. (c)(2).)
GEICO’s obligation to its insured and amounted to bad faith. He
also testified that GEICO should have sent Dr. Tauber’s report to
Dr. Williams and that its failure to do so amounted to
intentionally selecting information to defeat Mazik’s claim.
8 As discussed, this initial offer was approved by Grothen.
20
An insurer is not permitted to rely selectively on facts that
support its position and ignore those facts that support a claim.
Doing so may constitute bad faith. (Wilson v. 21st Century Ins.
Co. (2007) 42 Cal. 4th 713, 721; Maslo v. Ameriprise Auto & Home
Ins. (2014) 227 Cal. App. 4th 626, 634.) When sufficiently
egregious, an insurer’s intentional disregard of facts supporting a
claim also meets the standard for punitive damages. (Egan v.
Mutual of Omaha Ins. Co. (1979) 24 Cal. 3d 809, 821–822 (Egan).)
Viewing the record in light of the substantial evidence standard,
the jury reasonably could have found that Grothen ratified such
egregious conduct in approving settlement offers that ignored
Mazik’s serious and permanent injuries.
4. The Amount of Punitive Damages Is Within the
Range Permitted By Due Process
The due process clause of the Fourteenth Amendment to
the United States Constitution “places constraints on state court
awards of punitive damages.” (Roby, supra, 47 Cal.4th at p. 712,
citing State Farm Mut. Automobile Ins. Co. v. Campbell (2003)
538 U.S. 408, 416–418 (State Farm).) Grossly excessive or
arbitrary punitive damages awards are constitutionally
prohibited because “ ‘due process entitles a tortfeasor to “ ‘fair
notice not only of the conduct that will subject him to
punishment, but also of the severity of the penalty that a State
may impose.’ ” ’ ” (Roby, at p. 712, quoting Simon, supra, 35
Cal.4th at p. 1171.)
Three “guideposts” govern the analysis of whether the
amount of punitive damages is constitutionally permissible:
“ ‘(1) the degree of reprehensibility of the defendant’s misconduct;
(2) the disparity between the actual or potential harm suffered by
the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and
21
the civil penalties authorized or imposed in comparable cases.’ ”
(Roby, supra, 47 Cal.4th at p. 712, quoting State Farm, supra, 538
U.S. at p. 418.) Of these, the most important is the degree of
reprehensibility of the defendant’s conduct. (Roby, at p. 713.)
A. Degree of Reprehensibility
In analyzing the reprehensibility of the defendant’s
conduct, we consider whether “ ‘[1] the harm caused was physical
as opposed to economic; [2] the tortious conduct evinced an
indifference to or a reckless disregard of the health or safety of
others; [3] the target of the conduct had financial vulnerability;
[4] the conduct involved repeated actions or was an isolated
incident; and [5] the harm was the result of intentional malice,
trickery, or deceit, or mere accident.’ ” (Roby, supra, 47 Cal.4th at
p. 713, quoting State Farm, supra, 538 U.S. at p. 419.)
The first two factors do not apply here. As the trial court
found in ordering the reduction of the punitive damages award
from $4 million to $1 million, “this is a bad faith case premised on
delay rather than a suit for personal injury. As such, the claim
relates to financial damages.”
However, the last three factors are present:
Financial vulnerability
Mazik was financially vulnerable. Both he and his mother
testified that GEICO’s failure to pay the full $50,000 of the policy
on his claim caused him financial hardship. He went into debt to
pay bills, including a fee for testing that he required to obtain
more time to complete the test for entrance to graduate school.
The accident caused him to lose the free room and board that he
previously received as part of his compensation for his
employment at a space camp for children. And he had to turn
down social invitations for lack of money.
22
Repeated Conduct
GEICO’s oppressive conduct was repeated. As discussed
above, on numerous occasions Grothen either authorized
unreasonably low settlement offers or approved decisions not to
increase those offers. Those decisions began with the $1,000 offer
to Mazik in response to his initial demand, and extended through
decisions to go to arbitration rather than pay the full value of the
claim. Grothen declined to pay policy limits on the claim even
after receiving Dr. Tauber’s report in advance of the arbitration.
Grothen minimized Dr. Tauber’s opinion by characterizing his
reputation as “an expert that testifies in litigation.”
Citing Amerigraphics, Inc. v. Mercury Casualty Co. (2010)
182 Cal. App. 4th 1538 (Amerigraphics), GEICO argues that its
conduct was not repeated because it concerned only one claim. In
Amerigraphics, this court observed that the defendant insurer’s
conduct “could be characterized as more than a single isolated
incident, as the evidence showed several discrete acts of
misconduct involving Amerigraphic’s claim for coverage under
various policy provisions.” (Id. at p. 1563.) However, we
concluded that there was no evidence that the insurer was a
“ ‘repeat offender’ ” because the “conduct at issue ultimately
involved only one insured and one claim.” (Ibid.)
In contrast, there is evidence here suggesting that GEICO’s
approach to Mazik’s claim was not isolated. As mentioned,
Grothen testified that an important part of his job was to
establish consistent approaches to settlement valuations within
his region. Thus, there is reason to believe from Grothen’s own
characterization of his responsibilities that he has adopted the
same approach in other cases that he employed here of selective
reliance on helpful facts and acting as an adversary rather than a
fiduciary. (See Egan, supra, 24 Cal.3d at p. 820 [“ ‘The
23
obligations of good faith and fair dealing encompass qualities of
decency and humanity inherent in the responsibilities of a
fiduciary’ ”], quoting Goodman & Seaton, Foreward: Ripe for
Decision, Internal Workings and Current Concerns of the
California Supreme Court (1974) 62 Cal.L.Rev. 309, 346–347.)
Other courts have concluded that repeated bad faith actions
with respect to a single insured over a long period of time
enhances the reprehensibility of an insurer’s conduct. (See
Century Surety Co. v. Polisso (2006) 139 Cal. App. 4th 922, 965
(Polisso); Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003)
109 Cal. App. 4th 1020, 1054–1055.) In light of the extent and
duration of GEICO’s bad faith conduct toward Mazik and
Grothen’s own description of his role in establishing settlement
practices, we conclude that the same approach is appropriate
here.
Intentional malice, trickery, or deceit rather than
accident
There is evidence that GEICO intentionally manipulated
the facts to create a favorable record justifying its offers to Mazik
below policy limits. As mentioned, the trial court found that
GEICO “ ‘cherry picked’ medical information and disregarded
unfavorable findings.” While we review the amount of punitive
damages under the de novo standard, “findings of historical fact
made in the trial court are still entitled to the ordinary measure
of appellate deference.” (Simon, supra, 35 Cal.4th at p. 1172.)
The trial court’s assessment is supported by the evidence.
Grothen acknowledged that Dr. Tauber’s report prior to the
arbitration suggested that Mazik was “going to have ongoing
problems.” For strategic reasons, GEICO did not provide that
report to its own expert, Dr. Williams, on whom GEICO relied for
its claim valuation. While this strategic manipulation is perhaps
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less egregious than outright fraud, it nevertheless indicates
intentional conduct rather than “mere accident.” (Cf. Nickerson
v. Stonebridge Life Ins. Co. (2016) 5 Cal.App.5th 1, 22
[“Stonebridge’s practice was never to authorize peer reviewers to
communicate with treating physicians, thus intentionally
concealing material information from the claims’ functional
decision maker so as to limit the amount Stonebridge would have
to pay out on its policies”].)
B. Disparity between the harm and the
punitive damages award
As reduced by the trial court, the punitive damages award
of $1 million is approximately three times the compensatory
damages the jury awarded. In State Farm, the Supreme Court
declined to “impose a bright-line ratio which a punitive damages
award cannot exceed.” (State Farm, supra, 538 U.S. at p. 425.)
However, the court cited as “instructive” the “long legislative
history, dating back over 700 years and going forward to today,
providing for sanctions of double, treble, or quadruple damages to
deter and punish.” (Ibid.) As Mazik points out, this court has
previously approved a punitive damages award with a punitive to
compensatory damages ratio of more than three-to-one even
where only one of the reprehensibility factors was present. (See
Amerigraphics, supra, 182 Cal.App.4th at pp. 1562, 1566.)
GEICO relies on our Supreme Court’s decision in Roby in
arguing that the punitive damages award here should be reduced
to equal the amount of compensatory damages. In Roby, the
court reduced a punitive damages award to equal the amount of
compensatory damages. (Roby, supra, 47 Cal.4th at p. 719.) The
court relied in particular on the “relatively low degree of
reprehensibility” and the “substantial compensatory damages
verdict,” which “included a substantial award of noneconomic
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damages.” (Ibid.) The court cited the suggestion of the United
States Supreme Court in State Farm that “ ‘[w]hen compensatory
damages are substantial, then a lesser ratio, perhaps only equal
to compensatory damages, can reach the outermost limit of the
due process guarantee.’ ” (Roby, at p. 718, quoting State Farm,
supra, 538 U.S. at p. 425, italics added by Roby.)
However, the reprehensibility of the conduct by the
defendant’s managing agent in Roby was significantly more
limited than the conduct at issue here. In that case, managing
agents of the defendant company were involved only in a “one-
time failure” to take action on a report of harassment. (Roby,
supra, 47 Cal.4th at pp. 715–716.) In contrast, here, GEICO’s
managing agent repeatedly approved bad faith settlement offers
and on numerous occasions ignored information supporting
Mazik’s claim.
C. Comparable civil penalties
GEICO cites Insurance Code section 790.035 in arguing
that the punitive damages award here is far greater than the
$10,000 penalty per act that the Legislature has established for
unfair or deceptive insurance practices. Like the courts in
Amerigraphics and Polisso, we do not find this comparison
particularly useful as a measure of an insurer’s culpability where
the conduct at issue involved repeated acts of bad faith over a
lengthy period of time. (See Amerigraphics, supra, 182
Cal.App.4th at p. 1566; Polisso, supra, 139 Cal.App.4th at p. 967.)
The jury here found that GEICO delayed payment for 30 months.
As discussed above, the evidence showed that GEICO’s managing
agent repeatedly approved unreasonable settlement decisions
over that time period.
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D. Conclusion
In light of the factors indicating significant reprehensible
conduct and the three-to-one ratio of punitive to compensatory
damages, we cannot say that the trial court’s decision approving
punitive damages of $1 million exceeds constitutional restraints.
We therefore affirm the punitive damages award.
DISPOSITION
The judgment is affirmed. Mazik is entitled to his costs on
appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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