United States: Nickerson v. Stonebridge Life Insurance Company - Update

In Nickerson v. Stonebridge Life Insurance Company, 5 Cal. App. 5th 1 (November 3, 2016), the Second District Court of Appeal held that an award of Brandt fees should be included as compensatory damages when assessing what constitutes a punitive damages award in compliance with constitutional limitations.

Stonebridge Life Insurance Company ("Stonebridge") insured Nickerson under a policy "providing coverage for hospital confinement, intensive care unit confinement, and emergency room visits," with specified indemnity amounts per day. As quoted by the Court of Appeal, the policy provided, in pertinent part:

"We will pay the Daily Hospital Confinement Benefit stated on the Schedule Page for each day of Confinement due to a covered injury, beginning with the first day of Confinement. A Covered Person must be under the professional care of a Physician, and such Confinement must begin within 90 days of the accident causing the injury." (Some capitalization omitted.)

"HOSPITAL CONFINEMENT/CONFINEMENT/CONFINED means being an inpatient in a Hospital for the necessary care and treatment of an Injury. Such confinement must be prescribed by a Physician.

"Confinement does not include outpatient care and treatment, including outpatient surgery or outpatient observation received in a Hospital. [¶] ... [¶]

"NECESSARY TREATMENT means medical treatment which is consistent with currently accepted medical practice. Any confinement, operation, treatment, or service not a valid course of treatment recognized by an established medical society in the United States is not considered 'Necessary Treatment.' No treatment or service or expense in connection therewith, which is experimental in nature, is considered 'Necessary Treatment.'

"We may use Peer Review Organizations or other professional medical opinions to determine if health care services are:

"1. medically necessary; and

"2. consistent with professionally recognized standards of care with respect to quality, frequency, and duration; and

"3. provided in the most economical and medically appropriate site for treatment.

"If services do not meet these criteria, expenses related to those services will not be deemed 'Necessary Treatment.'"

The policy defined a "Hospital" as an institution that, among other things, is engaged primarily in providing "medical, diagnostic, and major surgery facilities for medical care and treatment of sick and injured persons on an inpatient basis," excluding any institution or any part of an institution operated primarily as a "convalescent home, convalescent, rest, or nursing facility."

Nickerson, who had served in the United States Marines, was entitled to medical care at Veterans Administration ("VA") hospitals at no cost. In 1997, he became paralyzed from his chest down as a result of a snowmobile accident. He relies on a wheelchair, is single, and works as a live-in caretaker for other veterans in exchange for free rent. A "very small military pension" is his only income.

On February 11, 2009, Nickerson fell from his wheelchair while on the lift from his van, suffering a broken leg. He was taken to a VA hospital in Long Beach, where he was treated in the emergency room, then to a spinal cord unit. Dr. Hung Nguyen, his primary care physician, treated him, along with other orthopedic physicians.

Nickerson suffered a comminuted, displaced fracture of his right tibia and fibula, meaning that the leg was broken, splintered, and out of place. A full-leg splint, a so-called Long Beach splint, was put in place extending from his upper thigh to the beginning of his toes. He soon experienced complications from the injury, including heterotopic ossification (formation of bone in a joint), bruising, swelling, blistering, infection, and a risk of gangrene. He remained at risk for blood clots. Nickerson was confined to a hospital bed and received intravenous fluids until around February 29, 2008, although he continued to have some blisters from an infection.

An orthopedic physician approved Nickerson's sitting in a wheelchair again on March 24, 2008. He could tolerate two hours at a time in a wheelchair by May 9, 2008, and an orthopedic physician determined that he would be ready for discharge when he could tolerate three hours at a time in a wheelchair. Dr. Nguyen decided that Nickerson was stable and ready to return home on May 19, 2008, except that he was unable to maneuver into his bathroom without a particular part needed for his wheelchair. After obtaining the needed part, Dr. Nguyen discharged Nickerson from the hospital on May 30, 2008. In all, Nickerson was hospitalized under Dr. Nguyen's care from February 11 until May 30, 2008, a total of 109 days.

Nickerson submitted a claim to Stonebridge on June 2, 20081, which included an authorization for the release of his medical records. Stonebridge contacted him on June 18, informing him the Long Beach VA hospital required him to complete and sign a different authorization form. Nickerson went to the hospital himself, obtained copies of his medical records, then submitted the records to Stonebridge. Stonebridge again contacted Nickerson, enclosing the same authorization form and "an explanation of benefits form stating that his file was closed until the information requested of him was received." Nickerson signed and submitted the authorization form.

Nickerson requested assistance from the Department of Insurance on July 22, explaining his injury, confinement, and communications with Stonebridge. On August 15, Stonebridge informed Nickerson it was ordering his records from the VA hospital. On August 28, Stonebridge informed Nickerson it had received the records from the hospital and was requesting information from a medical peer review organization. Stonebridge requested answers to three questions from the peer review organization: "Was the confinement medically necessary for inpatient treatment of the right tibia/fibula fracture? If so, for how many days?" (2) "Was treatment consistent with professionally recognized standards of care with respect to quality, frequency and duration?" and (3) "Was treatment provided in the most economical and medically appropriate site for treatment?" On the request form, Stonebridge did not check the box requesting the peer reviewer contact the treating physician. On September 9, Stonebridge received a peer review report, which concluded that "a more economical and medically appropriate facility could have been chosen" after February 29.

Stonebridge notified Nickerson in a letter dated September 10, 2008, that it had completed the processing of his claim for benefits. The letter stated that an independent medical reviewer had determined that acute care hospitalization was medically necessary only from February 11 until February 29, 2008, and that his treatment after February 29 could have been done in a less acute care environment or at home with a caregiver. It stated that his hospitalization therefore was "Necessary Treatment," as defined in the policy, only from February 11 until February 29, 2008, and that he was entitled to benefits only for that period. Stonebridge sent Nickerson a check for $6,450 shortly thereafter.

Nickerson requested assistance from Dr. Nguyen, who contacted Stonebridge by letter dated September 30 to explain Nickerson's extended hospitalization, including that Nickerson could not have been discharged safely until March 24. Stonebridge responded on October 10 that Dr. Nguyen's explanation did not change its coverage decision "because Dr. Nguyen did not indicate that hospitalization in an 'acute care setting' was required as of March 1, 2008."

Amy Hammer, a technical claims specialist for Stonebridge, testified that when she received the reviewer's report, she had not known that care at a VA hospital was free for veterans and acknowledged that she did not believe the Long Beach VA hospital would have kept patients hospitalized unnecessarily. She also conceded the Long Beach VA hospital "was the most economical site for Nickerson's treatment" and that "she would handle Nickerson's claim the same way today."

Nickerson brought suit against Stonebridge for breach of contract and breach of the implied covenant of good faith and fair dealing. At the close of Nickerson's case, the trial court granted a directed verdict as to the breach of contract cause of action, "finding as a matter of law that the "Necessary Treatment" limitation was a limitation of coverage that was not conspicuous, plain and clear in the policy and therefore was unenforceable." The court awarded Nickerson $31,500 in unpaid benefits on this cause of action. "The jury returned a special verdict finding that Stonebridge's failure to pay policy benefits was unreasonable or without proper cause and that Nickerson suffered $35,000 in damages for emotional distress as a result. The jury also found Stonebridge had 'enagage[d] in the conduct with fraud.'" In the punitive damages phase of trial, the court instructed the jury that Stonebridge failed to comply with two orders to produce documents. "The jury awarded Nickerson $19 million in punitive damages, equaling approximately 5 percent of the company's net worth." According to the parties' stipulation that the trial court could determine Brandt fees, the court awarded the stipulated amount of $12,500 in attorney's fees."

Stonebridge moved for judgment notwithstanding the verdict, seeking reduction of the $19 million punitive damages award to $35,000. The trial court denied this motion. Stonebridge also moved for a new trial, seeking a reduction in the amount of punitive damages. The trial court reduced the punitive damage award to a 10:1 ratio, but considered only the $35,000 in compensatory damages in calculating this award. The trial court did not consider the $31,500 bad faith award or $12,500 in attorney's fees. "Accordingly, the court conditionally granted Stonebridge's new trial motion unless Nickerson consented to a remittitur of the punitive damage award to $350,000, in which event the new trial motion would be denied." Nickerson rejected the reduction, and filed an appeal from the order granting a new trial. Stonebridge also appealed form the judgment ("awarding Nickerson compensatory damages of $31,500 for breach of contract and $35,000 for breach of the implied covenant, plus $12,500 in attorney fees as economic damages, $30,603.45 in costs, and $19 million in punitive damages") and the denial of its judgment notwithstanding the verdict motion.

The contentions on appeal raise only the question of whether the remitted punitive damage award passes constitutional muster under the due process clause.

"Punitive damages may be imposed under state law to further a state's legitimate interests in punishing unlawful conduct and deterring its repetition. [Citation.] States have considerable flexibility in determining the appropriate level of punitive damages to allow in different classes of cases and in any particular case. [Citation.] The amount of punitive damages offends due process under the Fourteenth Amendment as arbitrary only if the award is '"grossly excessive"' in relation to the state's legitimate interests in punishment and deterrence. [Citations.]" (Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 558 [131 Cal. Rptr. 3d 382].)

In determining the constitutional maximum for a particular punitive damage award under the due process clause, we are directed to follow three guideposts: "(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 the civil penalties authorized or imposed in comparable cases. [Citation.]" (State Farm, supra, 538 U.S. at p. 418, citing BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 575 [134 L. Ed. 2d 809, 116 S. Ct. 1589] (Gore).)

In determining the degree of reprehensibility, the Court considered five factors:

[(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.

The parties disputed the application of all five factors.

First, at trial, Nickerson's counsel conceded the harm was solely economic. On appeal, Nickerson argued he did suffer physical harm, to his emotional and mental health. The Court rejected this argument: "The record contains no indication that Nickerson suffered any physical symptoms of his emotional distress and so this factor does not apply."

Second, the Court found Stonebridge did recklessly disregard Nickerson's health and safety:

Stonebridge (1) refused to provide Dr. Nguyen's letter to the peer reviewer and refused to recognize that Nickerson required hospitalization for 109 days; (2) declined coverage on the grounds the hospitalization at the Long Beach VA hospital was not the most economically and medically appropriate site for Nickerson's treatment which ignores the fact that hospital care was free of charge for Nickerson and, as Hammer acknowledged, that VA hospitals did not hospitalize patients unnecessarily; (3) required that Nickerson's care be "acute" to be covered, notwithstanding the policy did not specify this predicate to coverage; and (4) expected that Nickerson should have returned home despite his doctors' conclusion he could not be safely discharged. We reject Stonebridge's attempts to minimize its conduct by arguing that the only harm Nickerson suffered was his inability to purchase a new van. This argument ignores not only that Stonebridge's practice caused Nickerson to suffer personal injury, but also that the van, outfitted to meet his needs, is essential to Nickerson's safety and well-being.

In addition to its treatment of Nickerson, the record reveals Stonebridge's indifference to the health and safety of others through its practice of using the hidden "Necessary Treatment" limitation to deny other policyholders' claims and by preventing full communication between peer reviewers and treating physicians. Stonebridge's argument that it is not a health insurer does not alter our conclusion. Its practices affect insureds' hospitalization decisions. (Cf. Sarchett v. Blue Shield of California (1987) 43 Cal.3d 1, 11 [233 Cal. Rptr. 76, 729 P.2d 267] [dilemma faced by insured: follow recommendation of physician and risk later denial of coverage or reject doctor's advice and risk foregoing needed treatment].) This factor weighs in favor of a finding of reprehensibility.

Third, the Court found Nickerson was "clearly" financially vulnerable: "he is a permanently disabled 58-year-old paraplegic and a former marine whose only source of income is a paltry military pension." The Court rejected Stonebridge's argument that Nickerson did not "need the money to survive" as "trivializ[ing] Nickerson's plight."

Fourth, the Court found Stonebridge's conduct involved repeated actions, and was not just an isolated incident, finding "Stonebridge repeatedly relied on an unenforceable provision to deny coverage to its insureds [and] utilized the same bad faith claims-handling practice against others that it used against Nickerson." The Court also rejected Stonebridge's argument that it was not aware the "Necessary Treatment" definition was unenforceable – determining that Stonebridge had an obligation to follow California law, which requires that provisions limiting coverage must be "conspicuous, plain, and clear."

Fifth, the Court found "the harm Nickerson suffered as the result of Stonebridge's conduct was not accidental, but the result of a deceitful practice designed to deny him his policy benefits," based in part on the jury's finding that Stonebridge engaged in fraud. The Court rejected Stonebridge's argument that there was no evidence of fraud:

[T]he historical evidence shows first that Stonebridge limited the scope of its promise of coverage by burying it in the definition of "Necessary Treatment," which constitutes a concealment designed to increase Stonebridge's profits by depriving policy holders of their policy benefits. Second, 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. With particular reference to Nickerson, Stonebridge deliberately withheld Dr. Nguyen's letter from its peer reviewer. As Stonebridge requested his medical records, Nickerson would reasonably understand that his physician's treatment decisions would be considered by the peer reviewer. Stonebridge was required to fully inquire into possible bases that might support Nickerson's claim. (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 819 [157 Cal. Rptr. 482, 598 P.2d 452].) Instead, in withholding Dr. Nguyen's letter from the outside reviewer, Hammer screened the mail to be sent to the reviewer and made what is essentially a medical decision that the letter contained no new information. Insurers may not ignore the opinion of treating physicians absent a showing the physician's judgment is either "plainly unreasonable, or contrary to good medical practice." (Sarchett v. Blue Shield of California, supra, 43 Cal.3d at p. 13.) By obstructing unfettered communication between the treating physician and the reviewer, Stonebridge deprived Nickerson of his legal right to his policy proceeds.

"To summarize, four of the five aggravating factors of reprehensibility are present here. Based on Stonebridge's conduct, we conclude its culpability is sufficiently reprehensible as to warrant the imposition of sanctions to punish and deter."

The Court then turned to "the third guidepost," comparable civil penalties. The Court determined not to utilize the guidepost, as the cited civil penalties were not sufficiently analogous.

The Court considered the ratio of punitive damages to actual or potential harm: "Nickerson contends that the punitive damage award should be fixed at greater than the 10 to one ratio the trial court employed. Stonebridge contends in its briefs that a ratio of 10 to one was excessive under the State Farm guidelines and the facts of this case." After reviewing prior California case law regarding what ratio is acceptable, the Court determined "the due process analysis is flexible and depends on the circumstances in determining proportionality."

Based on our application of the Gore guideposts to the facts and circumstances of this case, Stonebridge's reprehensible conduct that resulted in only a relatively small economic damage award, and Stonebridge's $368 million net worth, a significant ratio of punitive to compensatory damages comports with due process. We hold the trial court properly remitted the jury's award to the outside constitutional limit of a 10 to one ratio of punitive to compensatory damages.

Nickerson and amicus curiae, United Policyholders, argue that in view of the small size of the compensatory damages awarded Nickerson, a ratio of something larger than the 10 to one in the remittitur is called for. They point to the trial court's concern that where Stonebridge's conduct was highly reprehensible, a multiplier of 10 to one may function simply as a cost of doing business. Thus, they argue, the court should have fixed a larger ratio to achieve a more effective deterrent. While we agree with Nickerson and amicus curiae that Stonebridge may fold this award into its cost of doing business, we also agree with the trial court that we are constrained by case law and the Constitution. The nature and size of Nickerson's compensatory damage award does not justify a punitive damage award beyond the constitutional maximum. While Stonebridge's financial condition is an essential consideration to be factored into our analysis, it alone cannot justify exceeding what due process will allow. We have considered these facts in our analysis. We conclude that 10 to one is the maximum constitutionally defensible ratio.

After the trial court set the amount for the punitive damages award, the California Supreme Court held that Brandt fees, awarded by the trial court after a jury verdict, are properly included as compensatory damages in determining the ratio of compensatory damages to punitive damages under the due process clause. "Accordingly, pursuant to the Supreme Court's decision [citation], we conclude that the Brandt fees should be included as compensatory damages in the denominator of the ratio under the due process clause of the Fourteenth Amendment."

The Court rejected Nickerson's argument that "the trial court erred in failing to measure the punitive damage award against additional categories of compensatory damages, i.e., uncompensated potential harm and the policy benefits," finding Nickerson was fully compensated for his emotional distress injuries, and he did not demonstrate any potential harm that was uncompensated.

The Court also addressed Stonebridge's argument that its net worth could not be used to justify an "otherwise unconstitutionally permissible ratio," determining "Stonebridge's net worth of $368 million does not justify an impermissible ratio, but it certainly factors into the determination of the maximum ratio tolerated by the Constitution."

The Court affirmed the denial of the motion for judgment notwithstanding the verdict; vacated the order granting new trial; directed the trial court to modify the judgment by reducing the punitive damage award to $475,000; and affirmed the judgment, as modified. The Court also awarded Nickerson costs.


1 All dates are 2008, except where otherwise noted.

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