Wagner v. Midwestern Indemnity Co. , 83 Ohio St. 3d 287 ( 1998 )

Francis E. Sweeney, Sr., J.

This appeal and cross-appeal presents a number of issues for our consideration. First, we must decide whether the judgment of the court of appeals to remand the issue of the Wagners’ bad faith claims was proper. Second, we must determine whether the appellate court’s decision to reverse the directed verdict in favor of Ruth Wagner on the breach of contract claim was appropriate, based on the application of the “innocent spouse” rule. Next, we must decide whether the court of appeals erred when it found that the trial court abused its discretion in awarding prejudgment interest. Finally, we must address Midwestern’s claim that it was entitled to a directed verdict on Verlin and Ruth Wagner’s bad faith claims as a matter of law. For the following reasons, we (1) affirm the court of appeals’ decision with respect to the directed verdict in favor of Ruth Wagner, (2) affirm the remittitur of contract damages to $197,701.98, (3) reverse the court of appeals’ decision to remand the issue of bad faith for a new trial pursuant to Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 644 N.E.2d 397, and reinstate the bad faith verdicts in favor of the Wagners, (4) reinstate the award of attorney fees and punitive damages, and (5) reinstate the trial court’s grant of prejudgment interest.

I. Remand of Bad Faith Issue Under Zoppo

The court of appeals reversed the jury’s verdict, finding that Midwestern had acted in bad faith, as the jury instructions had been based on the now-defunct bad-faith standard set forth in Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 590 N.E.2d 1228. In Said, we held that “[a]n insurer has a duty of good faith towards its insured implied by law. This duty may be breached by an intentional failure by the insurer to perform under its contract with the insured.” Id. at paragraph two of the syllabus. In the interim between the jury verdict and the court of appeals’ decision, we overruled the intent requirement in Said and returned to a reasonable-justification standard in deciding bad faith cases. In Zoppo, we held that “[a]n insurer fails to exercise good faith in the processing of a claim of its insured where its refusal to pay the claim is not predicated upon circumstances that furnish reasonable justification therefor.” Id. at paragraph one of the syllabus. We found it necessary to overrule Said on the intent issue because “[rjather than clarify the standard of proof required in the area of bad faith * * * [the Said decision] caused greater confusion by erroneously making intent an element of the tort of bad faith.” Zoppo, 71 Ohio St.3d at 554, 644 N.E.2d at 399.

The court of appeals in this case determined that a remand on the bad faith issue was necessary based on the doctrine set forth in Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 57 O.O. 411, 129 N.E.2d 467, that a decision of a court of supreme jurisdiction that overrules a former decision becomes retrospective in its operation, and the effect is not that the former decision was bad law, but that it never was the law. Id. at 210, 57 O.O. at 411, 129 N.E.2d at 468.

However, blind application of the Peerless doctrine has never been mandated by this court. In Roberts v. United States Fid. & Guar. Co. (1996), 75 Ohio St.3d 630, 665 N.E.2d 664, we refused to remand a case pursuant to Zoppo, where the trial court had applied the intent requirement of Said. As this court stated, “We decline to extend Zoppo to this particular case of bad faith failure to defend, as Zoppo was decided after the trial court’s and court of appeals’ decisions in this case. This case has been litigated for over ten years and should come to final resolution before this court.” Roberts at 633, 665 N.E.2d at 667.

Consideration should be given to the purpose of the new rule or standard and to whether a remand is necessary to effectuate that purpose. The reasonable-justification standard set forth in Zoppo lessened the standard of proof necessary to show that an insurer acted in bad faith, as proof of actual intent was no longer required. See Said, 63 Ohio St.3d at 702, 590 N.E.2d at 1237-1238 (Douglas, J., dissenting). It is axiomatic that a standard based on intent imposes a higher burden of proof than one based on reasonableness. See, generally, Van Fossen v. Babcock & Wilcox (1988), 36 Ohio St.3d 100, 115, 522 N.E.2d 489, 503; see, also, Prosser & Keeton, Law of Torts (5 Ed.1984) 37, Section 8. The jury in this case found that Midwestern intentionally acted in bad faith. Therefore, it stands to reason that they would have found Midwestern liable under the lesser standard of reasonable justification.

We have remanded other cases for a determination in accordance with Zoppo. See, e.g., State Farm Mut. Auto. Ins. Co. v. Reinhart (1995), 71 Ohio St.3d 654, 646 N.E.2d 1110. However, such cases involved situations where the lower courts failed to find that the insurer had acted with intentional bad faith. In this case, the jury found Midwestern liable under the stricter standard of intent under Said. Midwestern suffered no prejudice, and, as in Roberts, judicial economy dictates that this case proceed to a final resolution. We conclude that the court of appeals’ rigid application of Peerless was inappropriate in this situation. Therefore, we reverse the judgment of the court of appeals on this issue and reinstate the jury’s verdict in favor of Ruth and Verlin Wagner on their claims of bad faith. Accordingly, we also reinstate the verdicts awarding them attorney fees of $85,193.12 and punitive damages in the amount of $800,000.

II. The Innocent Spouse Rule

After opening statements, the Wagners moved for a directed verdict in favor of Ruth Wagner based on the “innocent spouse” rule. The trial court granted her a directed verdict on her breach of contract claim, holding as a matter of law that Ruth Wagner was an innocent spouse and was entitled to one-half of any contractual damages. The court of appeals, however, reversed the trial court’s directed verdict and held that the innocent spouse rule can be contractually nullified by the terms of the insurance contract and, in this case, the wording of the contract specifically negated the innocent spouse rule.

Different theories have emerged concerning whether the fraudulent behavior of one spouse should be automatically imputed to the other coinsured spouse without proof of the latter’s misconduct. See Vance v. Pekin Ins. Co. (Iowa 1990), 457 N.W.2d 589, and cases cited therein. Traditionally, older cases automatically denied an innocent spouse the right to recover under an insurance policy if the other spouse had committed misconduct, as the rights and obligations of the parties under the contract were presumed to be joint. These older cases were based on the property ideal of the unseverability of estates, the notion that a husband and wife were a single entity, and concern that the guilty party would indirectly benefit through the innocent spouse because of the complicity of the marital relationship. See, e.g., Matyuf v. Phoenix Ins. Co. (1933), 27 Pa.D & C.2d 351; Kosior v. Continental Ins. Co. (1938), 299 Mass. 601, 13 N.E.2d 423; Watkins Schoenig, Property Insurance and the Innocent Co-Insured: Was it All Pay and No Gain for the Innocent Co-Insured? (1995), 43 Drake L.Rev. 893, 896-897. However, modern cases have properly rejected this reasoning and instead have adopted an approach based on contract principles to determine whether the parties intended joint or several coverage. Vance v. Pekin Ins. Co., 457 N.W.2d at 592; Watson v. United Serv. Auto. Assn. (Minn.1997), 566 N.W.2d 683, 688-689; Buckeye Union Ins. Co. v. Phillips (Aug. 7, 1986), Defiance App. No. 4-84-7, unreported, 1986 WL 8684. In determining whether the parties contemplated joint or several coverage, the terms of the contract are to be considered, Vance, 457 N.W.2d at 592, and “[wjhere provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured.” King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 519 N.E.2d 1380, syllabus.

In this case, the insurance contract stated that along with the named insured:

“The term ‘You’ or Your’ in this policy means:

(( * * *

“2. Your spouse if you are an individual proprietor.”

We find that the contract language clearly and unambiguously contemplated that Ruth and Verlin Wagner were jointly covered under the insurance policy and, therefore, she was not entitled to a separate recovery. See, e.g., Hall v. State Farm Fire & Cas. Co. (C.A.5, 1991), 937 F.2d 210, 213-214; Vance, 457 N.W.2d at 592-593. Accordingly, we affirm the judgment of the court of appeals and hold that Ruth Wagner was not entitled to a directed verdict as an innocent spouse.

We reject Midwestern’s claim that Ruth was precluded from suing in contract, regardless of whether she was an innocent spouse, since she had never separately and. individually filed a proof-of-loss claim. When filing a statement of proof of loss, “if there are several insured, any one may act. It is not necessary to join all.” 3 Freedman’s Richards on Insurance (6 Ed.1990) 229, Section 17:30. Moreover, the contract language specifically stated that “[i]f more than one insured is named in this policy, the first one named shall act for all.” Ruth Wagner was defined as an insured under the policy. As such, it was unnecessary for her to file a separate proof-of-loss claim because Verlin had acted on behalf of all insureds under the policy.

Ruth was not entitled to a directed verdict, but the court of appeals properly found that Ruth’s breach of contract claim would have been successful based on the jury’s verdict in favor of her husband’s claim. Therefore, Ruth Wagner’s breach of contract claim is remanded and the trial court is instructed to enter judgment consistent therewith. The court of appeals found that the jury’s award of $1,000,000 in contract damages was excessive and properly reduced damages to $197,701.98, to which Ruth Wagner is jointly entitled.

III. Prejudgment Interest

The court of appeals determined that the trial court abused its discretion in awarding prejudgment interest based on the fact that the appellants never made a reasonable offer of settlement after initiation of their court action. Appellants urge that the filing of their proof-of-loss claim constituted their offer of settlement and that the law does not require that a formal settlement offer be made only after a lawsuit has commenced. The trial court had awarded prejudgment interest primarily based on the.criteria set forth in Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331, and Midwestern’s inordinate delay.

Ohio’s prejudgment interest statute, R.C. 1343.03(C), stated:

“Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case.” 139 Ohio Laws, Part I, 2034, 2035.

A trial court’s grant of prejudgment interest will be upheld absent an abuse of discretion. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159, 25 OBR 201, 203, 495 N.E.2d 572, 574.

In Moskovitz v. Mt. Sinai Med. Ctr., supra, we elaborated on the “good faith effort to settle” requirement originally set forth in Kalain. “The effect of Kalain is to place the burden of proof on a party seeking prejudgment interest. This is, to a degree, unfortunate since much of the information needed to make a case for prejudgment interest is in the possession of the party resisting an award. Accordingly, it is incumbent on a party seeking an award to present evidence of a written (or something equally persuasive) offer to settle that was reasonable considering such factors as the type of case, the injuries involved, applicable law, defenses available, and the nature, scope and frequency of efforts to settle. Other factors would include responses — or lack thereof — and a demand substantiated by facts and figures. Subjective claims of lack of good faith will generally not be sufficient. These factors, and others where appropriate, should be considered by a trial court in making a prejudgment interest determination.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d at 659, 635 N.E.2d at 348.

However, in Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644 N.E.2d 298, we found that a plaintiff is relieved of any obligation to continue efforts to negotiate where he or she is told that a settlement offer will never be made and any additional negotiation would be considered “a vain act.” Id. at 429, 644 N.E.2d at 304.

At the prejudgment interest hearing, Midwestern’s trial attorney testified that he had already told the Wagners, after they had filed the proof-of-loss claims, that “we’re not paying you one thin dime.” Based on Galayda, we conclude that the trial court did not abuse its discretion in determining that any further attempt by the Wagners to settle would have been in vain, since Midwestern had already announced that it would not pay anything. The court of appeals failed to address the effect of Galayda, and the fact that the trial judge properly considered the factors set forth in Moskovitz. In light of this, we reverse the judgment of the court of appeals on this point and reinstate the trial court’s decision awarding prejudgment interest on the Wagners’ compensatory damages. The issue is remanded to the trial court to calculate interest in accordance with the reduced amount of $197,701.98 for breach of contract, as well as the reinstated amount of $1,300,000 in damages awarded for bad faith.²

IV. Cross-Appeal of Midwestern

Midwestern, as cross-appellant, argues that an insurer who has a reasonable basis for denying coverage should not incur bad faith liability as a matter of law, and essentially submits that it was entitled to a directed verdict in its favor on the Wagners’ bad faith claims.

Midwestern asks this court to adopt the “good faith as a matter of law” rule. Pursuant to this rule, Midwestern would not be liable for bad faith unless the trial court could have properly entered a directed verdict for the claimant on his or her contract claim. However, Civ.R. 50(A)(4) provides, “When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.” In Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 671 N. E.2d 252, we stated further, “ ‘When a motion for a directed verdict is entered, what is being tested is a question of law, that is, the legal sufficiency of the evidence to take the case to the jury. This does not involve weighing the evidence or trying the credibility of witnesses.’ ” Id. at 119, 671 N.E.2d at 255, quoting Ruta v. Breckenridge-Remy Co. (1982), 69 . Ohio St.2d 66, 68-69, 23 O.O.3d 115, 116-117, 430 N.E.2d 935, 938. Clearly, the record in this case demonstrates that the Wagners presented sufficient evidence to create a jury question on the issue of bad faith. For instance, the evidence reveals that Mr. Wagner was cooperative and candid during the investigation of the claim, and there is no evidence that he was ever officially questioned or charged with arson. There was also expert testimony from which the jury could conclude that the fire could have been accidentally caused by an electrical spark that ignited the insecticide vapor. Finally, the jury could reasonably have found bad faith from the fact that Midwestern waited nearly a full year after its physical investigation had been completed before refusing the claim.

Accordingly, we affirm the judgment of the court of appeals with regard to the directed verdict in favor of Ruth Wagner and the remittitur of contract damages to $197,701.98. We reverse the judgment of the court of appeals and hold that a remand of the bad faith issue is unnecessary and reinstate the verdicts finding Midwestern liable for bad faith. We reinstate the jury’s award of punitive damages and attorney fees. We also reverse the judgment of the court of appeals and reinstate the trial court’s award of prejudgment interest. We remand the issue for a calculation of prejudgment interest due on the reinstated awards for bad faith, as well as on the contract damages as reduced by the remittitur.

Judgment affirmed in part, reversed in part and cause remanded.

Douglas, Resnick and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent in part.

2 . When this case was argued before this court, we had not yet announced our decision in Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339, 696 N.E.2d 1140. Pursuant to Landis, the trial court, on remand, is directed to calculate the interest due on the breach of contract award under R.C. 1343.03(A), while the interest due on the bad faith award will be calculated under R.C. 1343.03(C).