Something old, something new, and something silly about additur/remittitur.

Hanscome died in hospital. His wife and two-year-old son sued for elder abuse and wrongful death. The jury awarded the son $1.8 million, the estate $200,000, and the wife $0. The trial court remitted the son’s award to $500,000 and added $200,000 to the wife’s award (even though her counsel had refused to ask for an additur, presumably trying not to upset his two-million-dollar applecart). Both sides rejected the changes; the court ordered a new trial on damages; both sides appealed.

The Court of Appeals remands the remittitur for reconsideration because it can’t figure out whether the trial court used the right standard. The minute entry indicated that the jury didn’t follow the instructions but at oral argument the court had talked about how it had to use its good conscience and sense of fairness. The judge not only wrote about the right standard but voiced the wrong one, he also implied that the jury should have awarded punitive damages (the instruction had been given) and should have awarded the wife more, so he would have upheld an award totaling $2 million, even though the result of his remittitur/additur was a $900,000 judgment. This last was perhaps the straw of confusion that broke the camel’s back, since one would normally expect appellate courts to act by reading a court’s rulings rather than by interpreting the phraseology of selected comments from the bench.

But this does give us a chance to point out once again that the modern fashion among trial judges to be garrulous and verbose does no one much good. There was a time when good judges knew that they should say nothing and write little; that wisdom has been lost, replaced with the silliness of long conversations and even longer minute entries.

As to the additur, it’s not encouraging to see a court trip over a long-settled point of law that should be at the fingertips (mixing metaphors a bit) of lawyers and judges who try civil cases: you can’t add to a zero. Even the mother agreed to this; you wonder why, since her counsel didn’t want the additur anyway, he hadn’t pointed that out to the trial court.

What he did want now was a new trial but since he hadn’t asked for one below that raised a problem on appeal. He came up with the argument that the trial court could grant her one because the defendants had asked for one, since the court can grant new trial for reasons not raised in the motion. The court holds that a new trial can’t be granted to a party who didn’t timely request one.

Since each party won part of this one, the court awards no costs to either. Defendants asked for fees; the court summarily denies the request because they hadn’t stated a basis for them. This happens all the time. Folks, if you don’t know the law on appeal fees and can’t be bothered to look it up then you’re not exactly wowing the court with your intellect.

The court spends about three pages restating black-letter law on the standards for remittitur/additur, so this may be a useful recent source for citations.

(link to opinion)

The court holds that the duty to licensees on your property does not survive their leaving.

Mr. and Mrs. Hopkins went on vacation, asking a friend to house-sit and look after their 14-year-old daughter. But on Friday night the friend went out instead, the daughter started inviting people over, and a large party ensued.  Two of the guests had an argument in the kitchen, then went out into the street and had a fight. Wickham was injured; he and his parents sued, among others, the Hopkins.

The Hopkins moved for summary judgment, arguing that they had no duty toward a person not on their premises. The trial court agreed, as does this opinion.

First, though, we get a definition of “negligence,” a statement of the elements of negligence, and definitions of elements of negligence. Just in case you’d forgotten.

As a social guest Wickham was a licensee. The Hopkins did not owe him a licensee duty because he wasn’t on the property and, even if he were, the Hopkins did not violate the duty owed licensees, viz., protecting from hidden perils and not willfully or wantonly causing harm.

As to whether the Hopkins owed Wickham a general duty after he left their premises the court cites the Gipson analysis: duty is a matter of relationships and public policy. Wickham and the Hopkins had no duty-creating relationship after he left the premises because . . . well, just because. (We don’t disagree; the problem is that we-know-it-when-we-see-it analyses like Gipson’s not infrequently produce arbitrary-looking results.) The Wickhams point to invitee cases requiring safe ingress and egress but the court declines their invitation (as it has approximately 2.3 zillion times before) to abolish the distinction between licensees and invitees.

The Wickhams also argue that the Hopkins voluntarily assumed a duty to prevent the daughter from having a party by asking the friend to mind her. But by doing so they didn’t voluntarily assume a duty to young Wickham after he left. The court goes out of its way to say that it can’t consider the dangers foreseeably raised by drunken, partying teenagers because Gipson says foreseeability isn’t a factor.

In its public policy analysis the court notes that no statute suggests that there should be liability here (the Hopkins did not supply the alcohol), that it makes no sense to impose a greater duty toward guests after they leave, and that merely having a party doesn’t “implicate” a policy requiring protecting people after they’ve left it. (“Implicate” apparently means “there isn’t any such policy and if there were it would be a bad one.”)

(link to opinion)

[EDIT: On 7/5/11 the court issued an opinion superseding this one, apparently in response to the insurers’ Motion for Reconsideration. It differs subtly from the original discussed in this blog but not in any way the import of which is obvious or which makes it a better opinion.]

The question is whether an insurer had a reasonable basis for denying coverage just because a court ruled that it had no coverage.

When Lennar was sued by a bunch of its homebuyers it tendered the defense to its insurers, who filed for declaratory judgment to determine coverage; Lennar counterclaimed for breach of contract and bad faith. The insurers won summary judgment on the coverage claim in 2003 but CA1 reversed in 2007. The insurers then moved for summary judgment on the bad faith claim, arguing that the trial court’s ruling on summary judgment established that they at least had a reasonable basis for denying coverage. The trial court granted it. The Court of Appeals reverses.

“Whether the reasonableness of an insurer’s coverage position may be determined as a matter of law depends on the nature of the dispute and other factors, including whether extraneous evidence bears on the meaning of the contested policy language,” the court tells us. In other words, whether it’s a matter of law is a question of fact. Among the things to be considered are what the trial court ruled, what the Court of Appeals ruled (four years later), and – when, as here, the policy is a standard form – whatever any other court in the country has ruled, on the theory that other rulings create an “industry standard” or affect what other companies thought about the language. (Shades of the old debate in products cases; if anybody loses any case anywhere for any reason, that may now be the standard.)

(The court then helpfully goes on to point out to Lennar several more bad-faith issues that it can argue on remand.)

Returning to earth, the court holds that good-faith duties regarding investigation and claims-handling apply until the DJ action is resolved. This is not quite so bad since the law is already clear that the insurer denies at its own risk. The insurers had tried to argue that they also had causation defenses that they basically never tried to investigate.

But the court just can’t bring itself to end without lamenting how this “saga” illustrates, apparently, the evil that insurers do and, impliedly, that taking years to resolve an insured’s appeals is the insurers’ fault. We prefer that opinions at least make a pretense of impartiality.

(link to opinion)