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Badillo v. Mid Century Insurance Co.6/21/2005
at a minimum, there is competent evidence of a reckless disregard by the defendant of the plaintiff's rights from which malice and evil intent may be inferred (see Payne v. DeWitt, 1999 OK 93, n. 17, 995 P.2d 1088), it is not error for a trial court to direct a verdict in favor of a defendant on the punitive damage issue when the court concludes there is no evidence upon which a reasonable jury could find the defendant to have engaged in conduct exhibiting such a reckless disregard.
This Court has recognized that the availability of punitive damages in a case by an insured against his/her insurer for breach of the implied duty of good faith and fair dealing is not automatic, but rather is governed by the standard applicable in other tort cases. Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 824 P.2d 1105, 1115. Even where there is evidence to support recovery of actual damages in this type of case, submission of the issue of punitive damages to a jury may be improper. Willis v. Midland Risk Ins. Co., 42 F.3d 607, 614-615 (10th Cir. 1994), citing McLaughlin v. National Benefit Life Ins. Co., 1988 OK 41, 772 P.2d 383, 385, 387 and 389; Davis v. National Pioneer Ins. Co., 1973 OK CIV APP 9, 515 P.2d 580, 583. Such is the import of Christian v. American Home Assurance Co., 1977 OK 141, 577 P.2d 899, where it was held that breach by an insurer of the implied duty to deal fairly and to act in good faith with the insured, "gives rise to an action in tort for which consequential and, in a proper case, punitive, damages may be sought." Id. at 904.
Although the current punitive damage statute contains language specifically referencing insurers when they are sued for breach of the duty of good faith and fair dealing, our recognition in Buzzard that such an award is not automatic and is governed by the standard applicable in other tort cases still stands and nothing in § 9.1 has altered this principle. Under § 9.1, for punitive damages to be allowed there must be evidence, at a minimum, of reckless disregard toward another's rights from which malice and evil intent may be inferred. Payne, 1999 OK 93, n. 17, 995 P.2d 1088. Whether that showing has been made remains an issue of law for the trial court in its role as gatekeeper to determine, upon a defendant's challenge to the sufficiency of the evidence via a motion for directed verdict, whether there is competent evidence upon which a reasonable jury could find reckless disregard, from which malice and evil intent may be inferred. The trial court determined the requisite showing was not made in this matter. Our review of the record convinces us the trial court was correct to withhold the issue of punitive damages from jury consideration and that the trial record does not contain competent evidence from which a reasonable jury could find reckless disregard, sufficient to support an inference of evil intent and malice, on the part of insurers toward insured.
PART VIII. THE TRIAL COURT DID NOT ERR IN DENYING INSURED ATTORNEY FEES
Insured sought attorney fees in the trial court under two theories, 1) statute-based under 36 O. S. 2001, § 3629(B), and 2) common law-based as an element of his damages. The trial court denied his quest for fees. We deal with § 3629(B) first.
Where the core element of the damages sought and awarded in a suit by an insured against his/her insurer for breach of the implied duty of good faith and fair dealing is composed of the insured loss, § 3629(B) allows recovery of reasonable attorney fees to the prevailing insured for time spent preparing and prosecuting the tort suit. See Taylor v. State Farm Fire and Casualty Co., 1999 OK 44, 11, 981 P.2d 1253, 1258-1259; see also Barnes v. Oklaho
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