Osgood v. State Farm Mut. Auto. Ins. Co.

Decision Date26 May 1988
Docket NumberNo. 86-1427,86-1427
Citation848 F.2d 141
PartiesPatricia M. OSGOOD, Administratrix With-Will-Annexed of the Estates of Delbert A. Stroud and Gertrude Evelyn Stroud, Deceased, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Kevin D. Buchanan (Denzil D. Garrison, with him on the brief), Garrison, Brown, Carlson & Buchanan, Bartlesville, Okl., for plaintiff-appellant.

Joseph F. Glass of Best, Sharp, Thomas, Glass & Atkinson (Joseph A. Sharp; and Jody R. Nathan of Thomas, Glass, Atkins, Haskins, Nellis & Boudreaux, with him on the brief), Tulsa, Okl., for defendant-appellee.

Before MOORE and BALDOCK, Circuit Judges, and O'CONNOR, District Judge. *

EARL E. O'CONNOR, District Judge.

Appellant, Patricia M. Osgood, appeals from a district court order granting a motion for partial summary judgment filed by the appellee, State Farm Mutual Automobile Insurance Company [hereinafter "State Farm"]. Count II of the appellant's complaint, which alleged fraud and requested punitive damages, was dismissed on the ground that it failed to state a cognizable claim under Kansas law. On appeal, the appellant contends that the fraud claim was an independent tort entitling her to seek punitive damages from State Farm.

The facts, viewed in the light most favorable to the appellant, are as follows. On October 3, 1982, Delbert A. and Gertrude Evelyn Stroud [hereinafter "the Strouds"] were killed in an automobile accident in Osage County, Oklahoma, as a result of the negligence of another driver, Eugene Wells. At the time of their deaths, the Strouds were insured by State Farm. During negotiations with Wells' liability insurance carrier, representatives of the estates contacted State Farm, inquiring about the limits of the underinsured motorist coverage contained in the Strouds' State Farm policy. Agents of State Farm allegedly indicated that the Strouds only had the minimum underinsured motorist coverage; in Kansas, the minimum coverage was $25,000.00 per person and $50,000.00 per accident. Based on this information, the Strouds' estates settled with Wells for the full amount of his liability coverage. State Farm received payment from the settlement through its subrogation rights. Since the Strouds' underinsured coverage purportedly equaled or was less than Wells' liability coverage, the estates made no claim on the State Farm policy.

In March of 1984, the heirs of the estates discovered information indicating that the Strouds' State Farm policy provided more underinsured motorist coverage than originally represented by the insurance company; the policy provided coverage of $100,000.00 per person and $300,000.00 per accident. The estates made a demand upon State Farm for proceeds under the underinsured provisions of the policy, which State Farm refused to pay. The appellant, as administratrix of the estates, filed the action which is the subject of this appeal. Her complaint first alleged a contract claim under the underinsured motorist provisions of the Strouds' policy for damages totaling $187,526.80. 1 In Count II, the appellant alleged that representatives of State Farm made "fraudulent, intentional, false and material misrepresentations" pertaining to the underinsured motorist coverage. Appellant further alleged that the misrepresentations were made to induce the estates to settle all their claims under Wells' liability coverage and to forego their rights under the underinsured motorist provision of the State Farm policy. The appellant claimed compensatory damages of $187,526.80, plus punitive damages.

State Farm filed a motion for partial summary judgment. In its motion, State Farm argued that Count II asserted a claim of "bad faith" and that Kansas law 2 did not recognize such a claim. The appellant responded, asserting that Count II alleged a claim of fraud or misrepresentation and that Kansas law permitted such actions against insurance companies. The trial court ruled in favor of State Farm and dismissed Count II of the complaint. After a jury trial commenced, the parties reached a settlement on the claim for proceeds under the policy. Appellant then filed a timely notice of appeal with respect to the dismissal of Count II and her claim for punitive damages.

In reviewing a summary judgment order, the appellate court applies the same standard employed by the trial court under Rule 56(c) of the Federal Rules of Civil Procedure. Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987). When a motion for summary judgment is granted, it is the appellate court's duty to examine the record to determine if any genuine issue of material fact was in dispute; if not, the court must decide if the substantive law was correctly applied. APC Operating Partnership v. Mackey, 841 F.2d 1031, 1033 (10th Cir.1988); Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986). During this review, the court must examine the record in the light most favorable to the party opposing the motion. Ewing v. Amoco Oil Co., 823 F.2d at 1437. In this case, the facts as alleged in Count II were strenuously disputed. However, the trial court determined that any factual disputes were not material, and that the allegations failed to state a claim under Kansas law. In this situation, we are left to determine if the district court correctly applied the substantive law.

The district court dismissed Count II of the complaint on the ground that Kansas law "does not permit plaintiff to bring an action sounding in fraud ... since all damages (save the punitive damages) flow from State Farm's alleged breach of its contractual duties and since plaintiff has alleged no independent or additional injury." In dismissing the claim on this ground, the trial judge implicitly determined that appellant's claims arose from the insurance contract between the Strouds and State Farm. Inasmuch as appellant does not dispute this assumption, her claim of fraud and request for punitive damages must be judged on the basis of Kansas law as it pertains to the availability of punitive damages for contract-based claims.

Kansas has long applied the rule that in actions for breach of contract, damages generally are limited to the pecuniary losses sustained; exemplary or punitive damages are not recoverable in the absence of an independent tort which causes additional injury to the complaining party. Plains Resources, Inc. v. Gable, 235 Kan. 580, 593-94, 682 P.2d 653, 664 (1984) (quoting Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 78, 652 P.2d 665, 667 (1982)). The Kansas Supreme Court discussed this "independent tort" exception in Guarantee Abstract: "Th[e] exception to the rule of unavailability of punitive damages in breach of contract actions is recognized when some independent tort or wrong results in additional injury which justifies the assessment of punitive damages by way of punishment of the wrongdoer. In such a case the proof of the independent tort must indicate the presence of malice, fraud or wanton disregard for the rights of others." Guarantee Abstract, 232 Kan. at 78-79, 652 P.2d at 667 (emphasis added). These general rules have been specifically applied to claims involving insurance contracts, where courts have required the presence of an independent tort causing additional injury before allowing the plaintiff to assert a claim for punitive damages. See, e.g., United of Omaha Life Ins. Co. v. Reed, 649 F.Supp. 837, 839-40 (D.Kan.1986); Guarantee Abstract, 232 Kan. at 79, 652 P.2d at 667; Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 57, 244 P.2d 228, 233 (1952). With these general rules in mind, we must determine whether or not the district court erred in ruling that Count II failed to state sufficient facts to support a claim for punitive damages.

The allegations of appellant's complaint parallel the elements of actionable fraud under Kansas law. 3 In its motion for summary judgment, State Farm asserted that these allegations constituted a claim based on the "tort of bad faith" which has not been recognized by Kansas courts. The tort of bad faith, recognized in some jurisdictions, permits a person covered by an insurance policy to sue their insurer when the company unreasonably refuses to pay a claim or otherwise carry out its contractual obligations. See, e.g., Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (1973).

State Farm is correct in asserting that Kansas law does not recognize the tort of bad faith in the context of "first party" litigation against insurance companies. In Spencer v. Aetna Life & Cas. Ins. Co., 227 Kan. 914, 611 P.2d 149 (1980), the parties raised the question of whether Kansas should recognize the tort of bad faith against insurance companies. Id. at 916, 611 P.2d at 150. Finding that state laws regulating insurance companies adequately protected policy-holders from abusive tactics by insurers, the court saw no reason to recognize a new cause of action in this situation. Id.

There is a clear distinction, however, between a claim of fraud and a claim of "bad faith." Both Spencer and Guarantee Abstract involved issues of whether a plaintiff could assert the tort of bad faith against a defendant-insurer who failed to pay under the terms of its insurance policy. See NL Indus., Inc. v. Gulf & Western Indus., Inc., 650 F.Supp. 1115, 1132 (D.Kan.1986). The failure to recognize the tort of bad faith, however, does not bar an insured from bringing other types of tort actions against his or her insurer. For instance, in one case the plaintiffs were permitted to bring an action for the tort of outrage when their insurer refused to pay a claim. State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120, 122-23, 689 P.2d 1187 (1984). In other cases, Kansas courts have allowed the insured to pursue claims based on fraud and misrepresentation. See, e.g., United of Omaha Life Ins. Co. v. Reed, ...

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