STATE FARM MUT. AUTO. INS. CO v. GRIMES

BANKS, Justice, for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn and these opinions are substituted therefor.

¶ 2. In this matter we have for review a judgment based upon a jury award of actual and punitive damages arising out of the failure to pay an insurance claim for theft. After careful review of the record we conclude that the evidence presented was sufficient such that we cannot say that the trial court erred in allowing the issue of punitive damages to go to the jury and to allow a fair minded fact finder to conclude as the jury did. Accordingly, we affirm.

¶ 3. Earl Grimes, an investigator with the Biloxi Police Department, owned a 1969 Corvette which he purchased in 1989 for $2,600.00 On the morning of July 21, 1991, Grimes noticed that the car was missing, and he reported the apparent theft to the Jackson County Sheriffs Office two hours later. Later that day, the Corvette was recovered from an apartment complex parking lot a few blocks from Grimes' home. Although the exterior of the vehicle was not damaged, the engine, transmission, drive shaft, front shock absorbers, radiator, stereo, and battery had been removed. Grimes made a theft claim to State Farm, his auto insurer, on July 22, 1991.

¶ 4. Over the next few weeks, State Farm inspected the car and interviewed Grimes and other witnesses. Estimator Dennis Laubmeir reviewed the claim and reached an early conclusion that "this claim stinks." The claim was sent to the State Farm Special Investigation Unit on July 30, 1991. On August 21, Grimes gave a statement under oath before State Farm counsel with his own counsel present. The statement under oath was adjourned until August 28, at which time Grimes was questioned once again. A third questioning under oath was conducted on September 11, 1991, at which time Grimes provided various authorizations and financial documents to State Farm.

¶ 5. Following this investigation, State Farm concluded that the circumstances of the loss and recovery of the car were inconsistent with a theft. State Farm points to information which it gathered which indicated that Grimes was tired of mechanical problems with the car, that he seldom drove it, and that he had filed prior claims for theft and vandalism. State Farm further notes that Grimes was a racing enthusiast and hobbyist mechanic who, it contend, possessed the skill and expertise needed to remove the parts stolen from the Corvette.

¶ 6. From this information, State Farm concluded that Grimes had the motive and opportunity to steal the parts himself in order to defraud State Farm and it denied his theft claim. State Farm supports its decision by noting that Grimes was not awakened by the theft of the car, although Grimes testified that he had taken sleeping pills the night before the theft. State Farm also notes that there was no physical indication that the car was towed from its parked location outside of Grimes' residence. State Farm also asserts that the physical condition of the car following the alleged theft was not typical of cars following theft.

¶ 7. Based on these and other factors, State Farm formally notified Grimes that his claim was being denied on November 11, 1991. On December 30, 1991, Grimes filed suit in the Circuit Court of Hinds County against State Farm, seeking both compensatory and punitive damages as well as attorney's fees. A trial was held on July 17-20, 1995, following which the jury returned a verdict of $1,900.00 in contractual damages and $1,250,000.00 in punitive damages against State Farm. State Farm's post trial motions were denied, and State Farm timely filed an appeal before this Court, raising a number of issues with which we deal ad seriatum.

A. THE VERDICT ON THE THEFT CLAIM IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 8. The standard for deciding upon a motion for judgment notwithstanding the verdict requires this Court to consider the evidence in the light most favorable to the non-moving party and to give the non-moving party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts are nevertheless so overwhelmingly in favor of the moving party that reasonable and fair-minded jurors could not have arrived at a contrary verdict, then this Court must reverse and render in favor of the moving party. Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So.2d 324, 326 (Miss. 1988).

¶ 9. This Court concludes that the facts of the present case are not so strongly in favor of State Farm as to warrant the imposition of a judgment notwithstanding the verdict. State Farm's evidence which points to possible fraud on the part of Grimes does raise a slight degree of suspicion that Grimes may have removed the engine and transmission himself. However, granting all reasonable inferences to Grimes, this evidence is clearly not so overwhelmingly in favor of State Farm that impartial and fair jurors could not have validly concluded that State Farm wrongfully denied coverage under the theft policy. The jury's verdict regarding the denial of the theft claim is affirmed.

B. THE PUNITIVE DAMAGES VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

C. THE AMOUNT OF THE PUNITIVE DAMAGES IS EXCESSIVE.

¶ 10. A closer issue is presented by the jury's award of $1,250,000.00 in punitive damages. The trial judge refused to grant Grimes a directed verdict with regard to the denial of the theft claim, and State Farm argues that this fact indicates that it did in fact have an arguable basis for denying the claim. This Court has held that the fact that a trial judge denied a motion for directed verdict on the underlying contract claim generally indicates that a punitive damages instruction should not have been submitted to the jury. Blue Cross Blue Shield of Mississippi, Inc. v. Campbell, 466 So.2d 833, 843 (Miss. 1984). However, this Court has, in recent cases, backed away from a blanket holding that a punitive damages instruction should not be submitted to the jury if a directed verdict was denied on the underlying contract issue. This Court noted in Dixie Insurance Co. v. Mooneyhan, 684 So.2d 574 (Miss. 1996) that:

Where the trial judge determines there was no arguable reason to deny the claim and the insurer may be deemed to have acted unfairly and in bad faith, the issue of punitive damages should be submitted to the jury regardless of whether or not a directed verdict was granted to the insured.

¶ 11. This Court in Mooneyhan thus noted that a judge may validly conclude that an insurer lacked an arguable reason to deny the claim and that it acted in bad faith notwithstanding the fact that he refused a directed verdict on the underlying contract claim. There are subtle yet important differences in the applicable standards for deciding upon a directed verdict on the underlying contract claim and in deciding whether a punitive damages instruction should be submitted to the jury. It is also true that there is a natural tendency on the part of many trial judges to allow an empaneled jury, which has given up its time and diligently viewed the evidence, to reach a decision on the merits of the case rather than rendering judgment himself. A strict rule of law which held the denial of a directed verdict motion to be inconsistent with the submission of a punitive damages instruction to the jury, while containing a certain logic and appeal, would therefore be unsound.

¶ 12. The law of this State does not impose punitive damages in cases in which a carrier is determined to have merely reached an incorrect decision in denying a given claim. The issue of punitive damages should not be submitted to the jury unless the trial court determines that there are jury issues with regard to whether:

1. The insurer lacked an arguable or legitimate basis for denying the claim, and

2. The insurer committed a wilful or malicious wrong, or acted with gross and reckless disregard for the insured's rights.

¶ 13. In determining whether State Farm had an arguable basis for denying the claim in the present case, the Court should consider the facts that were available to State Farm at the time the claim was denied. In this regard, State Farm submits that:

State Farm had the following information at the time of denial of the claim. The disappearance of the car was suspicious because there were no signs of forced entry to the car or steering column and the car could not be steered without the key. Grimes had the only set of keys. . . . The physical facts were inconsistent with theft because the condition of the vehicle was much neater than the typical vehicle recovered after theft. Hard-to-remove parts were taken while easily-removed parts were not. . . . The car was recovered in front of the apartment manager's office, so it would be discovered, and not stripped further. There was no damage to fiber-glass, which negated the possibility of this low-slung body having been towed by a standard wrecker The behavior of Grimes was inconsistent with theft beginning with his two-hour delay in reporting Grimes had a financial motive to stage the loss because he had tried unsuccessfully to sell the car. He had frequent mechanical problems with the car and was, in his own words, "tired of messing with it.". . . He was adept at trading engines and parts between vehicles, gave three different versions of where the engine came from, and could not recall the serial number of the engine although he ran it on the NCIC when he bought the car. He collected on a prior vandalism loss to the Corvette and had the car totally repainted, and changed the color. . . . Other matters tending to implicate Grimes included the "word on the street" that the theft was an inside job and that the parts were at Joe's Garage.

¶ 14. In the view of this Court, most of the "evidence" which State Farm cites in support of its denial of the claim is rather weak. State Farm's vague reference to the "word on the street" is less than convincing, as is the assertion that Grimes' financial problems gave him a motive to commit fraud. Grimes' financial problems, as evidenced by his "maxed out" credit cards, were no different than those faced by many, and there should not be a different standard for the payment of claims of wealthy claimants than those with financial difficulties.

¶ 15. Slightly more persuasive is State Farm's evidence indicating that the theft of the Corvette was not typical of auto thefts. The day after the theft was reported, Grimes met with Jackson County Deputy Sheriff Hartwell Lott in order to look at the car. Lott eventually testified on behalf of State Farm at trial that the car's condition was not typical of any thefts he had investigated before. In particular, Lott testified that he was surprised by the neatness and precision with which the various parts of the automobile had been taken apart. Lott specifically referred to the fact that the thief had taken the time to replace the hood of the automobile after being forced to remove it in order to take out the engine. Lott also found it unusual that the wires had been removed with electrical tools instead of being cut.

¶ 16. Virgle Luke, a retired auto theft investigator with the Mississippi Highway Patrol, testified on behalf of State Farm at trial that "the location and manner in which the vehicle was found . . . the physical damage or what was missing of the vehicle is not consistent with actual theft." Luke further testified that he had never seen the front shocks taken off of a stolen car, nor had he seen a stolen car in which the thief took the time to put the hood of the car back on. Luke also testified that "normally there is some type of forced entry and some method to use to make ignition and remove the car." In addition to the evidence of the unusual nature of the theft, State Farm points to the fact that Grimes was a former mechanic who possessed the skill and expertise to remove the engine and transmission if he had been so inclined.

¶ 17. Although the present issue is a very close one, this Court concludes that a jury could have validly found that State Farm lacked an arguable basis for denying the claim. State Farm's case is based largely on innuendo and testimony that the crime was atypical of auto thefts in this State. Most conspicuous in its absence is any direct evidence whatsoever that Grimes committed the fraud, such as testimony by witnesses who saw Grimes stripping the Corvette or to whom Grimes admitted to having committed the fraud. The thief left the stripped car outside an apartment complex on the night of the theft, but State Farm introduced no testimony that Grimes was spotted outside the complex on the night of the crime. State Farm submits that the "word on the street" indicated that "this was an inside job and that the parts were at Joe's Garage." However, State Farm did not introduce any testimony from employees or customers of Joe's Garage indicating that Grimes had taken the parts to the garage.

¶ 18. State Farm's "evidence" as to the unusual nature of the theft was, in the view of this Court, sufficient to submit the case for further review and investigation, and State Farm did just that, referring the case to their Special Investigations Unit. However, a jury could have validly concluded that, absent some direct evidence that Grimes had committed the fraud in question, a denial of the claim was not sufficiently supported by credible evidence as to lead a reasonable insurer to deny the claim. This Court thus affirms the jury's finding that the claim was denied without arguable basis.

¶ 19. This is not a case in which the insurance company was found to have had an arguable reason to deny a claim. Nor is it a case in which the claim was denied because of some clerical error or other inadvertence for which the imposition of punitive damages would simply be unfair. See Universal Life Ins. Co. v. Veasley, 610 So.2d 290 (Miss. 1992). On the contrary, here the jury could conclude that the insurer deliberately refused to pay in the face of knowledge that it could not reasonably expect to succeed on any claimed defense based upon the insured's suspected involvement in the theft of his automobile. This was not inadvertence promptly corrected; the evidence was amenable to the conclusion that there was deliberate indifference if not hostility to the right of the insured which was never corrected. After an investigation over a period which was clearly reasonable in duration from the standpoint of the insurance company, the company simply had no proof that a theft had not occurred to refute the insured's sworn claim that there was a theft supported by the fact that a motor and transmission was indubitably missing. It should have paid, and, because it did not, the issue of punitive damages was properly put before the jury.

¶ 20. There are other possible interpretations of the impact and import of the words "this claim stinks," used at the onset of the investigation conducted by State Farm, which would differ from that which we must assume was arrived at by the jury. The inference possibly drawn by this jury, however, is also within the range of possible inferences. The jury had the benefit of seeing the witnesses testify in person. It is for the jury to assess whether State Farm conducted a good faith investigation as opposed to one designed to reach a desired result, the denial of the claim. Theft cases are difficult. Because there is an opportunity for financial gain, a motive to fabricate is always present. The owner/insured usually has the opportunity and capability to dispose of the property. Thieves behave differently in terms of method

¶ 21. The issue, then, is to determine when an insurer is justified in refusing to pay a theft claim based upon suspicion. That is, under what circumstances is it reasonable as a matter of law for an insurance company to refuse payment and put the insured to the expense of litigation? And, what risk does the insurer take when it is found to have acted unreasonably in refusing payments? The suggestion that consequential damages should be awarded has some merit. It is a half-measure, however.

¶ 22. The question remains whether any court, when faced with a knowing deliberate action as opposed to an isolated clerical error, can further distinguish those cases in which the insurer has no reasonable basis to deny and is therefore liable for consequential damages, from those in which the insurer has no reasonable basis to deny and may be liable for punitive damages. We conclude that this Court, as an appellate court, has no basis for making such a distinction. Where the trial court allows the question of reasonableness to be put to the conscience of the community, the civil jury, that decision should stand absent compelling grounds for reversal. We find no compelling grounds here.

D. CONSTITUTIONAL CHALLENGES TO THE PUNITIVE DAMAGES PROCEDURE.

¶ 23. State Farm briefly urges that this Court reconsider our holding in Mooneyhan that this State's punitive damages scheme is constitutional. State Farm raises no new issues in this regard, but merely notes once again the concerns expressed by the United States Supreme Court in Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). Given that State Farm provides no new argumentsn this regard, this Court declines State Farm's invitation to reverse our holding in Mooneyhan and hold our punitive damages scheme un-constitutional.

E. THE TRIAL COURT ERRED ON KEY EVIDENTIARY RULINGS, WHICH SUBSTANTIALLY AFFECTED THE OUTCOME OF THE CASE.

¶ 24. State Farm argues that the trial judge erred in disallowing evidence that Grimes had been suspended from his police work pending a review of a shooting incident. State Farm argues that the prejudicial value of this evidence did not substantially outweigh its probative value pursuant to Miss. R. Evid. 403. The trial judge can not be said to have abused his discretion in excluding this evidence, given that the evidence had a great potential to unduly prejudice the jury while having little probative value. This point of error is not well taken.

¶ 25. State Farm also asserts that the trial court erred in admitting an estimate of the cost of repairs made by Lee's Auto Shop as an adoptive admission pursuant to Miss. R. Evid. 801(d)(2). It cannot be said that the trial judge abused his discretion in admitting the estimate as an adoptive admission, given that, as noted by Grimes, State Farm "solicited the estimate, incorporated it into their records, and used it in its conclusion that the claim should be paid as a total loss." In addition, State Farm had the opportunity to elicit testimony from Lee Paramenter, who prepared the estimate, in order to clarify aspects in which the estimate might have been "a little high." This point of error has no merit.

¶ 26. Finally, State Farm argues that the trial judge erred in allowing Grimes to impeach John Bartlett, who provided expert testimony for State Farm, with a pamphlet which State Farm sent to its policyholders. The pamphlet informed the policyholders that 10% of all auto thefts occurred by towing, and Grimes impeached Bartlett with this pamphlet after he denied knowing that 10% of all auto thefts were in fact were carried out by means of towing. State Farm argues that the pamphlet was improperly admitted, given that it was not disclosed to the defense prior to trial. This Court concludes that, even assuming that the pamphlet should not have been admitted, the admission of this evidence was of very minor importance and did not substantially affect the outcome of the trial.

F. JURY INSTRUCTION 12, 13 AND 14 WERE ERRONEOUSLY GRANTED.

¶ 27. State Farm argues that Jury Instructions 12 and 13 were misleading. Jury Instruction 12 instructed the jury to not consider any evidence obtained by State Farm after the claim was denied, given that this State's bad faith law considers the denial of claims based on the information that the insurer had at the time the denial was made. Bankers Life Cos. Co. v. Crenshaw, 483 So.2d 254, 273 (Miss. 1985). State Farm argues, however, that the instruction had the potential to confuse the jury with regard to the separate issue of whether State Farm conducted a reasonable investigation (discussed in Instruction 13) in that it might preclude its consideration of post-denial expert testimony on which State Farm relied.

¶ 28. Instructions 12 and 13 deal with separate issues, and this Court concludes that any possible confusion that may have resulted on the part of the jury is speculative. Instruction 12 provides that the jury is to limit its consideration to the issue of whether State Farm had an "arguable reason for denying the claim," while Instruction 13 deals with the different issue of the reasonableness of State Farm's investigation. State Farm also argues that Instruction 13 does not advise the jury that grossly negligent or similar conduct must be demonstrated in order to justify an award of punitive damages. It is clear, however, that this information was provided in Instructions 15 and 16.

¶ 29. State Farm argues that Instruction 14 was also in error, in that this instruction, while noting that an arguable reason exists when the denial of the claim is a result of "mere forgetfulness, oversight, or simple negligence" does not allow the jury to consider a "deliberate decision to deny a claim based on evidence sufficient to create a jury issue, but insufficient to persuade the jury." Our conclusion above is that the fact that the existence of an arguable reason is presented to the jury does not preclude jury consideration of the issue of punitive damages. The issue of punitive damages is presented to the discretion of the jury and never required of it. Thus, this jury was free to decide both whether there was an arguable reason and whether punitive damages were warranted pursuant to Instruction 15, 16, 17 and 18.

¶ 30. AFFIRMED.

SULLIVAN and PITTMAN, P.JJ., and McRAE, J., concur.

PRATHER, C.J., dissents with separate written opinion joined by MILLS, J.

WALLER, J., concurs in part and dissents in part with separate written opinion joined by JAMES L. ROBERTS, Jr., J.

SMITH, J., not participating.