Ainsworth v. Combined Ins. Co. of America

• Decision Date: 19 May 1989
• Docket Number: No. 17625,17625
• Citation: 774 P.2d 1003,105 Nev. 237
• Parties: Thomas AINSWORTH, Appellant, v. COMBINED INSURANCE COMPANY OF AMERICA, Respondent.
• Court: Nevada Supreme Court

Page 1003

774 P.2d 1003

105 Nev. 237

Thomas AINSWORTH, Appellant, v. COMBINED INSURANCE COMPANY OF AMERICA, Respondent.

No. 17625.

Supreme Court of Nevada.

May 19, 1989.

Peter Chase Neumann, Bradley & Drendel, Reno, for appellant.

Mortimer, Sourwine, Mousel, Sloane & Knobel, Reno, Lionel Sawyer & Collins, and M. Kristina Pickering and Steve Morris, Las Vegas, Geoffrey C. Hazard, Jr., New Haven, Conn., for respondent.

Laura FitzSimmons, Carson City, for amicus curiae.

OPINION

PER CURIAM:

On October 26, 1988, in an opinion authored by former Chief Justice E.M. Gunderson, ¹ this court unanimously concluded that substantial evidence supported the jury's assessment of $5,939,500 in punitive damages against respondent Combined Insurance Company of America (Combined). Accordingly, we reversed the district court's judgment notwithstanding the jury's verdict, reinstated the jury's assessment of punitive damages against Combined, and affirmed the district court's denial of Combined's motion for a new trial. See Ainsworth v. Combined Ins. Co., 104 Nev. 587, 763 P.2d 673 (1988).

Pursuant to NRAP 40, both parties to this appeal subsequently filed timely petitions for rehearing challenging different facets of this court's decision. Thereafter, on December 30, 1988, forty-six days after the time to file a petition for rehearing had expired under NRAP 40(a), and on the last judicial day preceding Chief Justice Gunderson's official retirement as an elected justice of this court, Combined filed a motion alleging that then Chief Justice Gunderson was disqualified from any participation in this appeal. Combined's motion, therefore, requests this court to issue an order (1) disqualifying former Chief Justice Gunderson from any future participation in this matter, (2) vacating the opinion, and (3) scheduling reargument on the merits of the appeal. On February 7, 1989, Combined also filed a "supplemental motion" seeking an evidentiary hearing and discovery on certain factual allegations relating to the On February 24, 1989, former Chief Justice Gunderson filed a personal response to Combined's allegations challenging his prior participation in this appeal. Among other things, his response expresses the view that Combined's allegations of ethical impropriety constitute procedurally improper, belated attempts to obfuscate the issues, delay the final resolution of this matter, and abuse the appellate processes of this court. ² Accordingly, former Chief Justice Gunderson's response suggests that Combined's allegations respecting his prior participation in this appeal warrant summary rejection.

issue of disqualification. Combined further supplemented its motions with papers asserting previously unraised allegations of impropriety on February 16, 1989. Appellant Ainsworth opposes both Combined's petition for rehearing and its motions respecting former Chief Justice Gunderson's participation in this appeal. In addition, Ainsworth has requested this court to impose sanctions upon Combined and its counsel pursuant to NRCP 11 and NRAP 38 for abusing the appellate processes of this court.

Having carefully considered all the papers and documents tendered in this matter, and for the reasons set forth below, we deny all the petitions and motions presently pending in this docket, with the above-noted exception of Combined's request for leave to file its latest proposed reply.

I. AINSWORTH'S PETITION FOR REHEARING

In his petition for rehearing, Ainsworth requests reconsideration and clarification of footnote 2 of the opinion so as to permit him to collect post-judgment interest on the jury's award of punitive damages. ³ See Ainsworth v. Combined Ins. Co., 104 Nev. 587, ----, n. 2, 763 P.2d 673, 677 (1988). The challenged footnote concluded that appellant was "not entitled to interest on the punitive damages award." See Ramada Inns v. Sharp, 101 Nev. 824, 711 P.2d 1 (1985). Further, it observed that Combined had previously tendered full Ainsworth contends, however, that this court may have overlooked or misapprehended case law which is arguably favorable to his position. See Buck v. Burton, 768 F.2d 285 (8th Cir.1985), citing Turner v. Japan Lines, Ltd., 702 F.2d 752 (9th Cir.1983) (purpose of awarding interest to a party recovering money judgment is to compensate the wronged person for being deprived of the monetary value of the loss from the time of the loss to the payment of the money judgment). Additionally, Ainsworth now proposes that awards of post-judgment interest on judgments assessing punitive damages would promote substantial justice and deter frivolous appeals and other dilatory tactics by defendants who can afford to litigate such judgments endlessly. We disagree.

payment of that portion of the judgment below awarding Ainsworth approximately $210,000 in policy benefits and compensatory damages. Thus, we held that Ainsworth was not entitled to the payment of any interest whatsoever on the judgment. The footnote clearly illustrates that we previously considered and rejected Ainsworth's contentions on appeal respecting his entitlement to interest. His similar contentions on rehearing, therefore, constitute improper reargument under NRAP 40(c)(1). ⁴

First, Ainsworth has raised these particular legal arguments for the first time on rehearing. Consequently, they constitute improper argument under NRAP 40(c)(1). Second, in Ramada Inns v. Sharp, 101 Nev. 824, 711 P.2d 1 (1985), we observed that the purposes underlying compensatory and punitive damages distinguish a plaintiff's entitlement to prejudgment interest on such awards. While compensatory damages are intended to compensate a wronged party, punitive damages are solely designed to punish and deter fraudulent, malicious or oppressive conduct. See also NRS 42.010. A plaintiff is therefore never entitled to punitive damages as a matter of right. Thus, in rejecting Ainsworth's arguments on appeal respecting his entitlement to interest, we applied our prior reasoning and holding in Ramada Inns to the question of post-judgment interest, and concluded that the purposes and policies underlying awards of punitive damages would not be furthered by an award of any interest in this case. The authorities Ainsworth has cited for the first time on rehearing do not alter our conclusion in this regard. Third, we have concluded that other more appropriate means are available to deter frivolous litigation and dilatory tactics. See NRCP 11; NRAP 38. In sum, this court did not misapprehend or overlook any material matters in this regard. Nor has Ainsworth presented any persuasive reasons demonstrating that a departure from our prior holding would "promote substantial justice." Accordingly, we deny Ainsworth's petition for rehearing. See NRAP 40(c).

II. COMBINED'S PETITION FOR REHEARING

First, Combined contends that this court's opinion assumes material facts not found in the record and misstates others that are. Specifically, Combined complains that the opinion unfairly and inaccurately represents that, at the time Combined denied Ainsworth's first claim for benefits, it had reason to know from its review of the initial claims form that a doctor's statement respecting the cause of Ainsworth's stroke was nothing more than an "hypothesis." See Ainsworth, 104 Nev. at ----, 763 P.2d at 674. Combined correctly notes that the initial doctor's report contained in the first claims form submitted by Mrs. Ainsworth simply stated that a disease of the arteries was the cause of Ainsworth's Combined further contends, however, that the opinion inaccurately states that "Combined sent [Mrs. Ainsworth] a third denial letter" prior to receiving the results of its medical consultant's second evaluation of the claim. See Ainsworth, 104 Nev. at ----, 763 P.2d at 674. We concede the opinion misstates this fact, and we hasten to correct our inaccurate summary of that sequence of events. As Combined observes, the undisputed testimony on this subject at trial indicates that, although Combined's adjuster prepared and dated the third denial letter prior to Combined's receipt of its medical consultant's second evaluation, the letter was apparently not mailed to Ainsworth until after Combined's medical consultant completed his second evaluation.

                stroke. 5  The claims form contained nothing to indicate that the doctor's initial report was merely an hypothesis.  Nonetheless, it is undisputed that evidence was presented to Combined, after it had denied the first claim, indicating that the doctor had since concluded the stroke was the result of an accident, not a disease.  Further, as Combined observed in its brief on appeal, the doctor himself later testified at trial that his initial report was pure speculation and an hypothesis.  Our reference to the initial doctor's report as an "hypothesis," therefore, was ultimately factually accurate. 6  Thus, this court was adequately and accurately informed, and no material matter was misapprehended or overlooked in this regard.  See NRAP 40(c).  Consequently, we conclude that this contention does not form a proper basis for rehearing
                

Although the opinion does misstate this sequence of events, we are not persuaded that this court thereby overlooked a material matter, or labored under a material misapprehension. See NRAP 40(c). The opinion otherwise accurately sets forth substantial evidence supporting the jury's verdict. Accordingly, this matter does not alter our consensus that the record as a whole provides substantial support for the jury's verdict, and we therefore conclude that rehearing is not warranted on this basis.

Second, Combined argues that, in the opinion, this court overlooked and omitted facts favoring Combined's position that it did not act in a manner deserving of punitive damages. In its latest reply, Combined further complains that this court did not give appropriate deference to the district court's view of the evidence. Specifically, Combined...