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Badillo v. Mid Century Insurance Co.6/21/2005
eneral verdict in this matter, as already mentioned, however, did not separately identify those damages awarded for personal injury or injury to personal rights, and those for financial loss. Accordingly, the matter appears to be placed squarely within the following pronouncement from Timmons II, " f damages 'by reason of personal injuries' are shown to have been intermixed with other elements of damage in one general verdict, the provisions of 12 O.S. 1971 § 727 (2) [as applicable here, 12 O. S. 2001, § 727 (E)] cannot be invoked for allowance of prejudgment interest." Timmons II, 713 P.2d at 593, n. 14.
We are not persuaded by insured's argument, in essence, that the amount of the general verdict against insurers represents financial loss in the form of the Smith judgment (with appropriate pre- and post-judgment interest, and presumably minus the $10,000.00 policy limits paid and accepted by Smith after that judgment), while the balance may be attributed to embarrassment, and mental pain and suffering. In our view, in the circumstances of this case, only a special jury finding splitting the damages awarded into separately identifiable components would be sufficient to provide a basis for prejudgment interest under § 727(E). To rule otherwise and to now attempt judicial division of the damages awarded (as insured would have us do), would involve speculative guesswork on our part, something that is neither warranted or proper.
Insured's final statutory alternative for prejudgment interest is 23 O. S. 2001, § 6, which in pertinent part allows prejudgment interest as to "damages [which are] certain or capable of being made certain by calculation, and the right to recover is vested . . . upon a particular day." Basically, insured's reliance on § 6 suffers from the same infirmity as does his reliance on § 727, to wit: he seeks to separate a general jury verdict into distinct components, that we do not believe may rightfully be so separated. In sum, we hold the trial court did not err in denying insured's quest for prejudgment interest.
PART X. CONCLUSION
The trial court did not err in submitting the issue of breach of the implied duty of good faith and fair dealing to the jury; nor in declining to direct a verdict in favor of FIE based on the assertion it was not the insurer; and no reversible error has been demonstrated in the trial of this matter that would warrant overturning the judgment in favor of insured for $2,200,000.00 in actual damages or that would warrant affording MCIC and/or FIE a new trial. Further, the trial court did not err in directing a verdict in favor of insurers as to the issue of punitive damages; nor did the trial court err in denying insured's quests for attorney fees and prejudgment interest.
The trial court judgment entered on the jury verdict and the trial court orders
denying insured attorney fees and prejudgment interest are AFFIRMED.
WATT, C. J., LAVENDER, EDMONDSON and COLBERT, JJ., and SUMMERS, S. J. (sitting by designation in lieu of KAUGER, J.), concur.
TAYLOR, J., concurring specially.
WINCHESTER, V. C. J., HARGRAVE and OPALA, JJ., dissent.
KAUGER, J., recused.
TAYLOR, J., with whom Watt, C.J., and Colbert, J., join, concurring specially:
I concur with all of the majority opinion but write specially to express my views. Trial and appellate courts must give "bad faith" claims very close, careful and, sometimes, skeptical scrutiny. Bad faith claims must be firmly and fairly considered based upon the law and evidence of the case. I am convinced that the trial judge was correct in submitting the issue of ba
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