Filed 9/28/16 Federici v. IDS Property Casualty Ins. Co. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

MICHAEL FEDERICI,                                                     B262009

                Plaintiff and Respondent,                             (Los Angeles County
                                                                      Super. Ct. No. BC502718)
         v.

IDS PROPERTY CASUALTY
INSURANCE COMPANY,

                Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michelle R. Rosenblatt, Judge. Affirmed.



         Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Allison A. Arabian;
Woolls & Peer and H. Douglas Galt for Defendant and Appellant.



         Reisman & Reisman and Daniel A. Reisman; Law Office of John J. Perlstein and
John J. Perlstein for Plaintiff and Respondent.
       In this first party insurance bad faith action, defendant and appellant IDS Property
Casualty Insurance Company (IDS) appeals from the judgment entered in favor of
plaintiff and respondent Michael Federici (Federici) after a jury awarded Federici
$335,000 in damages on his claim for unreasonable delay in payment of benefits under
his automobile insurance policy for underinsured motorist (UIM) coverage. We affirm
the judgment.
                                    BACKGROUND
The accident and claim history
       On August 10, 2011, Federici was injured in an automobile accident with an
underinsured driver. The front airbag in Federici’s vehicle did not deploy, and Federici
complained of mouth pain at the scene of the accident.
       Federici had a six-tooth dental bridge secured in his mouth by two of his own
teeth. Concerned about damage to the bridge, Federici went to his regular dentist,
Douglas Oswell, two days after the accident. Dr. Oswell examined Federici and found
that the bridge was not mobile.
       Two weeks later, Federici bit down on something and felt the bridge become
loose. He went to see a different dentist, who confirmed that the bridge was loose and
referred him to an oral surgeon. On September 29, 2011, the oral surgeon informed
Federici that the two teeth securing the dental bridge were fractured and had to be
removed. The oral surgeon advised Federici that he would need dental implants and a
bone graft to secure a new bridge. The process could take a year and Federici would
have to wear a temporary dental bridge in the interim. The oral surgeon removed the
existing bridge, extracted the two fractured teeth, and provided Federici with a temporary
bridge, which broke several times while Federici awaited IDS’s payment for the dental
implants.
       At the time of the accident, Federici was an insured under a policy issued by IDS
that provided a limit of $5,000 in medical payment coverage and a $250,000 per person
limit for bodily injury caused by an underinsured motor vehicle. Federici tendered a



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claim for his medical expenses, including approximately $50,000 in dental expenses. His
medical payment coverage was soon exhausted.
       The other driver’s insurer did not dispute liability and paid its policy limit of
$15,000. On October 31, 2011, Federici provided IDS with evidence he had received the
at-fault driver’s $15,000 policy limit. In December 2011, Federici informed IDS that his
medical expenses were increasing and demanded a settlement of $200,000.
       In February 2012, the IDS claims adjuster assigned to the case, Robert Cannon
(Cannon), informed Federici that IDS was investigating his claim and that an independent
medical examination (IME) would be necessary. IDS retained Dr. Richard Boudreau, an
oral and maxillo-facial surgeon, to determine whether Federici’s dental problems were
caused by the accident or were preexisting. Dr. Boudreau examined Federici in March
2012 and found that Federici had an exceedingly poor state of dental health that
predisposed his teeth to fracture with minimal impact, a condition Dr. Boudreau
described as “‘eggshell’ status.” Dr. Boudreau noted that Federici’s dentist had
submitted a claim to replace the dental bridge in 2008 because of recurrent decay, but the
work had never been performed. Dr. Boudreau was unable to determine whether the
factures in Federici’s teeth were preexisting or whether they were caused by the accident.
He concluded, however, that “[o]ptimum treatment involves dental implants to support
the bridge.”
       On April 5, 2012, Federici demanded $100,000 as a “last effort to settlement”
before retaining an attorney. IDS offered $37,000, which covered only one of Federici’s
two fractured teeth and did not include any allowance for dental implants. Federici
rejected the offer and retained counsel to represent him.
       In August 2012, Federici’s attorney demanded payment of the policy limit. IDS
responded by increasing its settlement offer to $40,000. IDS then transferred
responsibility for Federici’s claim from Cannon to litigation adjuster Dan Thompson.
Thompson’s initial review of the file on August 28, 2012, led him to conclude that an
arbitrator could award Federici in excess of $100,000, and he raised the reserve set for
the claim to $80,000. At the time, Thompson erroneously believed that the policy limit


                                              3
was $100,000. He subsequently learned that the per accident limit on Federici’s policy
was $250,000, and not $100,000. Thompson noted that Federici was missing his front
teeth, that the front airbag in Federici’s car did not deploy during the accident and that “it
is not inconceivable he hit his mouth in this impact.” Thompson then sent the file to
outside counsel for review.
       In early October 2012, IDS’s counsel advised IDS that Federici’s claim could be
valued at $170,000. On December 11, 2012, Thompson contacted Federici’s counsel and
offered $120,000. The claim settled for $140,000 shortly thereafter.
The instant bad faith action
       Federici commenced this action against IDS in March 2013 for breach of the
implied covenant of good faith and fair dealing. The matter proceeded to a jury trial.
       At the conclusion of the trial, the jury returned a special verdict finding that IDS
had unreasonably delayed payment of policy benefits and awarded Federici $35,000 in
economic damages and $300,000 in noneconomic damages. The trial court denied IDS’s
motion for a new trial, and this appeal followed.
                                  IDS’s CONTENTIONS
       IDS contends Federici’s settlement of his UIM claim precluded him from pursuing
a bad faith action; that it had no obligation to settle Federici’s claim until the value of the
claim was determined either by agreement or by the arbitrator; and that the existence of a
genuine dispute regarding the cause of Federici’s injury precluded any bad faith liability.
IDS further contends the trial court erred by excluding certain expert testimony and by
failing to instruct the jury on the applicable law and measure of damages. Finally, IDS
claims the damages award is excessive as a matter of law.
                                       DISCUSSION
I. Bad faith claim
       A. Applicable law and standard of review
       The law implies in every insurance contract a covenant of good faith and fair
dealing that “‘requires each contracting party to refrain from doing anything to injure the
right of the other to receive the agreement’s benefits. To fulfill its implied obligation, an


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insurer must give at least as much consideration to the interests of the insured as it gives
to its own interests.’” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720
(Wilson).) An insurer that unreasonably delays payment of benefits due under a policy
may be held liable in tort for breach of the implied covenant. (Maslo v. Ameriprise Auto
& Home Ins. (2014) 227 Cal.App.4th 626, 633 (Maslo); Brehm v. 21st Century Ins. Co.
(2008) 166 Cal.App.4th 1225, 1237 (Brehm).)
       “An insurer is said to act in ‘bad faith’ when it breaches its duty to deal ‘fairly’
and ‘in good faith’ with its insured. [Citation.] The term ‘bad faith’ does not connote
‘positive misconduct of a malicious or immoral nature’ [citation]; it simply means the
insurer acted deliberately.” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th
1197, 1209.) “[A]n insured plaintiff need only show, for example, that the insurer
unreasonably refused to pay benefits or failed to accept a reasonable settlement offer;
there is no requirement to establish subjective bad faith. [Citations.]” (Bosetti v. United
States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1236.) To prevail
on a bad faith claim, an insured must establish that benefits due under the policy were
withheld and that the reason for withholding the benefits was unreasonable or without
proper cause. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 949.)
       We review the jury’s finding that IDS’s handling of Federici’s UIM claim
constituted bad faith under the substantial evidence standard. (Fleming v. Safeco Ins. Co.
(1984) 160 Cal.App.3d 31, 37.) Under that standard, the power of a reviewing court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, that will support the jury’s verdict. All conflicts in the
evidence must be resolved in favor of the jury’s findings, and when two or more
inferences can be reasonably deduced from the facts, the reviewing court may not
substitute its deductions for those of the trier of fact. (Ibid.)
       B. Settlement with IDS did not preclude Federici’s bad faith claim
       IDS contends Federici’s settlement of his UIM claim precluded him from pursuing
a bad faith action, citing the California Supreme Court’s decision in Moradi-Shalal v.



                                                5
Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 (Moradi-Shalal) as support for
this argument. That case, however, is inapposite.
       Moradi-Shalal concerned a third-party statutory claim against the tortfeasor’s
insurer under Insurance Code section 790.03 for unfair settlement practices. Overruling
its prior decision in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, which
held that a private litigant could bring an action for civil liability against an insurer under
Insurance Code section 790.03 for engaging in unfair claims settlement practices, the
Supreme Court in Moradi-Shalal held that there is no private right of action under the
statute. (Moradi-Shalal, supra, 46 Cal.3d at p. 304.) The Supreme Court stated that its
ruling would not apply, however, to any statutory claim filed before its decision in
Moradi-Shalal became final. For these pending cases, the court determined that “there
must be a conclusive judicial determination of the insured’s liability before the third party
can succeed” in such an action and that “settlement is an insufficient conclusion of the
underlying action.” (Id. at p. 306.)
       The Supreme Court subsequently made clear that its decision in Moradi-Shalal
had no impact on “traditional common law theories of private recovery against insurers,”
including breach of the implied covenant of good faith and fair dealing, and that “first
party bad faith actions were unaffected by Moradi-Shalal.” (Zhang v. Superior Court
(2013) 57 Cal.4th 364, 373 (Zhang); see also Zephyr Park v. Superior Court (1989) 213
Cal.App.3d 833, 838 [insured retain common law cause of action for bad faith settlement
practices].)1
       The instant action does not involve a statutory claim under Insurance Code section
790.03, nor was this case pending at the time Moradi-Shalal was decided. Moradi-Shalal


1      IDS also cited Interinsurance Exchange v. Superior Court (1989) 213 Cal.App.3d
1439 as a case “on point” in which the court applied Moradi-Shalal’s requirement of a
conclusive determination of liability by a judge or an arbitrator to preclude an insured
from proceeding against an insurer to pursue a bad faith failure to settle a claim under a
UM policy. That case is inapposite, as it involved a statutory bad faith claim under
Insurance Code section 790.03 (Interinsurance Exchange, at p. 1441), and not a common
law cause of action for bad faith failure to settle.

                                               6
is inapplicable to the common law bad faith claim on which Federici prevailed at trial.
(Zhang, supra, 57 Cal.4th at p. 373.)
       C. IDS’s right to arbitrate did not relieve it from bad faith liability
       IDS argues that Insurance Code section 11580.2, subdivision (f), immunizes it
from liability for delay in settling Federici’s claim because that statute accords it the right
to have an arbitrator determine the value of the claim. Insurance Code section 11580.2,
subdivision (f), provides in relevant part: “The policy or an endorsement added thereto
shall provide that the determination as to whether the insured shall be legally entitled to
recover damages, and if so entitled, the amount thereof, shall be made by agreement
between the insured and the insurer, or in the event of disagreement, by arbitration.” The
IDS policy issued to Federici provided for such arbitration.
       Numerous courts have rejected the argument that an insurer’s statutory or
contractual right to arbitrate a UIM claim immunizes it from liability for bad faith in its
handling of the claim. (See, e.g., Maslo, supra, 227 Cal.App.4th at p. 637; Brehm, supra,
166 Cal.App.4th at pp. 1243-1244; Hightower v. Farmers Ins. Exchange (1995) 38
Cal.App.4th 853, 863.) In Hightower, the court concluded that “the mere availability of
an arbitration procedure does not insulate an insurer from liability for bad faith in its
handling of an uninsured motorist claim.” (Hightower, at p. 862.) The court in
Hightower noted that a contrary rule would allow an insurer to “‘stonewall’ uninsured
motorist claimants in every case but avoid bad faith liability through the simple act of
requesting arbitration and refusing to pay until ordered to do so by an arbitrator.” (Id. at
p. 863.)
       The court in Brehm reached a similar conclusion with respect to an insurer’s
contractual right to arbitrate a UIM claim: “The issue is not whether, having failed to
reach an agreement with [the insured] as to the extent of his injuries and, therefore, the
value of his UIM claim, [the insurer] had an absolute right to demand arbitration -- it did
-- but whether [the insurer] had an implied obligation to honestly assess [the insured’s]
claim and to make a reasonable effort to resolve any dispute with him as to the amount of
his damages before invoking that right. . . . [¶] Indeed, by making lack of agreement as


                                               7
to the value of the claim an express precondition to demanding arbitration, the policy
itself contemplates the parties will first make an affirmative effort to resolve their dispute,
in effect creating a contractual duty to discuss the claim to which the implied covenant of
good faith and fair dealing properly attaches.” (Brehm, supra, 166 Cal.App.4th at p.
1242.)
         The availability of a statutory and contractual right to arbitrate Federici’s claim did
not relieve IDS of its obligation to attempt in good faith to settle the claim within a
reasonable period of time.
         D. Substantial evidence supports the jury’s finding of bad faith
         IDS contends the evidence is insufficient to support the jury’s bad faith finding
because there was a genuine dispute regarding the merits and value of Federici’s claim.
An insurer can negate an insured’s bad faith claim by demonstrating the existence of a
“genuine dispute” regarding coverage. (Chateau Chamberay Homeowners Assn. v.
Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 347.) The existence of a
genuine dispute does not, however, relieve an insurer from its obligation to thoroughly
and fairly investigate, process, and evaluate an insured’s claim. (Wilson, supra, 42
Cal.4th at p. 723.) “A genuine dispute exists only where the insurer’s position is
maintained in good faith and on reasonable grounds. [Citations.]” (Ibid.)
         The genuine dispute rule is generally applied in the context of a motion for
summary adjudication of a bad faith claim when the insurer establishes by undisputed
facts that its withholding of policy benefits, even if ultimately erroneous and a breach of
contract, was due to a genuine dispute with its insured. (See, e.g., Wilson, supra, 42
Cal.4th 713; Bosetti v. United States Life Ins. Co. in City of New York (2009) 175
Cal.App.4th 1208, 1237.) The rule does not apply in instances where, viewing the facts
in the light most favorable to the plaintiff, a jury could conclude that the insurer acted
unreasonably. (Wilson, at p. 724.)
         IDS contends there was “undisputed” evidence that Federici’s teeth were
predisposed to fracture with minimal impact and that the IME dentist could not determine
whether or not the teeth were fractured before the accident. The trial court found these


                                                8
facts insufficient to establish the existence of a genuine dispute entitling IDS to judgment
as a matter of law, in light of key facts in IDS’s claim file that were available at the time
IDS valued Federici’s claim at $37,000. These facts, subsequently proven through
evidence presented at the trial, include the following: the front airbag in Federici’s
vehicle did not deploy during the accident; Federici complained of mouth pain at the
scene of the accident, and he expressed concern to both IDS’s claims adjuster and to his
dentist that his bridge was loose. A dentist subsequently confirmed that Federici’s teeth
were fractured and that dental implants were necessary to secure a new bridge. The IME
dentist confirmed that dental implants were the optimal treatment alternative. IDS’s
initial settlement offer, made eight months after the accident, did not include the cost of
dental implants and included only one of Federici’s two fractured teeth. IDS did not pay
Federici’s claim until more than a year after the accident. Substantial evidence supports
the jury’s determination that IDS unreasonably delayed payment of Federici’s claim. The
genuine dispute doctrine does not negate the jury’s finding. (Wilson, supra, 42 Cal.4th at
p. 724.)
II. Alleged evidentiary error
       IDS contends the trial court committed prejudicial error by precluding its expert
from testifying that a reasonable claims adjuster would have investigated causation.
Before the trial commenced, the trial court granted a motion in limine precluding IDS’s
claims handling expert, David Reilly (Reilly), from opining that Federici’s dental record
showed evidence of no tooth fracture following the accident. During the trial, IDS’s
counsel asked Reilly if he had an opinion as to whether it was proper for IDS’s claims
adjuster, Cannon, to be concerned about whether Federici’s fractured teeth were caused
by the accident. Referring to a note from Federici’s dentist, 2 counsel asked: “What is it
about this note that causes you to form the opinion that supports Mr. Cannon’s raising the
causation question?” Federici’s counsel objected, and following a sidebar conference,

2     The relevant portion of the dentist’s note states: “patient came in w/accident
trauma . . . visual done nothing was detected no mobility.”


                                              9
the trial court inquired whether Reilly had been questioned about the note during his
deposition and what the substance of his response had been. Federici’s counsel informed
the court that Reilly had testified during deposition that “‘[t]his note leads me to believe
that his teeth weren’t fractured.’” The trial court then ruled that Reilly could not testify
as to his belief regarding the content of the note because “The record doesn’t say one way
or the other whether or not the teeth were fractured.”
       Reilly was allowed to testify that the dentist’s note raised a causation issue. The
note was admitted into evidence, and the jury was able to read it. The record discloses no
abuse of discretion.
III. Alleged instructional error
       A. Modified CACI No. 2337
       IDS contends the trial court erred by instructing the jury pursuant to a modified
version of CACI No. 2337. The instruction given provided in relevant part as follows:
       “In determining whether IDS Property Casualty Insurance Company acted
       unreasonably or without proper cause, you may consider whether the
       defendant did any of the following: A, misrepresented to Mr. Federici
       relevant facts or insurance policy provision related to any coverage at issue;
       failed to acknowledge and act reasonably promptly after receiving
       communications about Mr. Federici’s claim under the insurance policy; did
       not attempt in good faith to reach a prompt, fair and equitable settlement of
       Mr. Federici’s claim after liability had become reasonably clear.”3

       IDS objects to the language of subdivision (d) of the modified version of CACI
No. 2337 as an incorrect statement of the law. It claims no benefits were due under the
policy until the value of Federici’s claim was fixed by agreement or arbitration. As
discussed previously, that argument has been rejected by numerous courts, as it would
allow insurers to “stonewall” UIM claimants but avoid bad faith liability simply by
requesting arbitration and refusing to pay policy benefits until ordered to do so by an
arbitrator. (See, e.g., Maslo, supra, 227 Cal.App.4th at p. 637; Brehm, supra, 166

3      The parties agreed to omit subdivision (c) of the proposed instruction, and the trial
court struck subdivision (e).


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Cal.App.4th at pp. 1243-1244; Hightower, supra, 38 Cal.App.4th at p. 866 [“the mere
availability of an arbitration procedure does not insulate an insurer from liability for bad
faith in its handling of an uninsured motorist claim”].) IDS fails to establish that the
language of subdivision (d) was an incorrect statement of the law.
       IDS next contends the language of subdivision (d) of CACI No. 2337, which
mirrors some of the language of Insurance Code section 790.03,4 “had the practical effect
of recognizing a private cause of action” for violation of that statute, in contravention of
the Supreme Court’s holding in Moradi-Shalal. A similar argument was rejected by the
court in Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78
Cal.App.4th 847 (Shade Foods). The insurer in that case argued that “the trial court erred
by using an elaborated version of BAJI No. 12.98, which borrowed from Insurance Code
section 790.03, subdivision (h), for the purpose of instructing the jury on factors relevant
to the determination of bad faith.” (Shade Foods, at p. 916.) The court in Shade Foods
held that while “it is true that Moradi-Shalal . . . bars private causes of action based on
section 790.03 . . . violations of the section ‘may evidence the insurer’s breach of duty to
its insured under the implied covenant’ of good faith and fair dealing with its insured.
[Citation.]” (Shade Foods, at pp. 916-917; see also Jordan v. Allstate Ins. Co. (2007) 148
Cal.App.4th 1062, 1078 [evidence of an insurer’s violation of Insurance Code section
790.03 properly admitted to prove insurer’s bad faith].) The trial court did not err by
instructing the jury that in evaluating IDS’s conduct, it could consider whether IDS “did
not attempt in good faith to reach a prompt, fair and equitable settlement of Mr.
Federici’s claim after liability had become reasonably clear.”
       B. Special instruction on damages
       IDS contends the trial court erred by refusing to give, without modification, the
following proposed special instruction on damages:


4       Subdivision (h)(5) of Insurance Code section 790.03 states that “[n]ot attempting
in good faith to effectuate prompt, fair, and equitable settlements of claims in which
liability has become reasonably clear” is an unfair and deceptive act or practice in the
business of insurance.

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              “In December 2012, Mr. Federici and IDS Property Casualty
       Insurance Company reached an agreement concerning the value of his
       underinsured motorist claim and IDS Property Casualty Insurance
       Company paid Mr. Federici that agreed value. Because of this, Mr.
       Federici cannot recover in this action any damages attributable to the
       injuries he suffered in the automobile accident caused by the underinsured
       motorist. This includes damages for economic loss such as medical
       expenses and loss of earnings. It also includes damages for noneconomic
       loss such as emotional distress and pain and suffering. Your verdict may
       not include any of these damages.”

       After discussing the proposed instruction with counsel and hearing argument from
both sides, the trial court modified the instruction and it was given to the jury as follows:
               “In December 2012, Mr. Federici and IDS Property Casualty
       Insurance Company reached an agreement concerning the value of his
       underinsured motorist claim and IDS Property Casualty Company paid Mr.
       Federici that agreed value. Because of this, Mr. Federici cannot recover in
       this action any damages attributable to the injuries he suffered in the
       automobile accident caused by the underinsured motorist. Your damages
       may only include damages caused by IDS.”

       IDS argues that the trial court’s deletion of the last two sentences of the proposed
instruction was an incorrect statement of the law because it did not inform the jury that
Federici could not recover damages for pain and suffering sustained in the automobile
accident. IDS maintains that the jury accordingly presumed it could award such damages
because Federici testified only that he suffered emotional distress as a result of the
accident, and not because the settlement was delayed.
       IDS’s assertion that Federici testified only as to emotional distress he suffered as
the result of the accident, and not as the result of the delayed settlement, is both incorrect
and unsupported by the record. Federici testified that IDS’s delay in settling his claim
caused him to suffer embarrassment and anxiety and that he found the delay to be
“devastating.”
       The modified instruction informed the jury that Federici could not recover any
damages attributable to his injuries in the automobile accident, and that their award could



                                              12
include only damages caused by IDS. A reviewing court presumes the jury followed the
trial court’s instructions and that its verdict reflects the legal limitations imposed by those
instructions. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.) The record
discloses no instructional error.
IV. Damages
       IDS contends the evidence is insufficient to support the jury’s award of damages.
An appellate court reviews a jury’s award of damages under the substantial evidence
standard and defers to the trial court’s denial of a new trial motion based on excessive
damages. (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720-721.) A
reviewing court “will interfere only when the award is so disproportionate to the injuries
suffered that it shocks the conscience and virtually compels the conclusion the award was
based on passion or prejudice. [Citation.]” (Ibid.)
       “There are no fixed or absolute standards by which an appellate court can measure
in monetary terms the extent of the damages suffered by a plaintiff as a result of the
wrongful act of the defendant. The duty of an appellate court is to uphold the jury and
trial judge whenever possible. [Citation.] The amount to be awarded is ‘a matter on
which there legitimately may be a wide difference of opinion’ [citation]. In considering
the contention that the damages are excessive the appellate court must determine every
conflict in the evidence in respondent’s favor, and must give him the benefit of every
inference reasonably to be drawn from the record [citation].” (Seffert v. Los Angeles
Transit Lines (1961) 56 Cal.2d 498, 508.)
       A. Economic damages
       The jury awarded economic damages consisting of attorney fees in the amount of
$35,000. Under California law, such fees are recoverable as economic damages for an
insurer’s bad faith. “When an insurer’s tortious conduct reasonably compels the insured
to retain an attorney to obtain the benefits due under a policy, it follows that the insurer
should be liable in a tort action for that expense. The attorney’s fees are an economic
loss -- damages -- proximately caused by the tort. [Citation.]” (Brandt v. Superior Court
(1985) 37 Cal.3d 813, 817.)


                                              13
       The parties in the instant case stipulated that Federici paid his attorney $35,000 for
representing him in his UIM claim against IDS. Substantial evidence accordingly
supports the jury’s award of economic damages.
       B. Noneconomic damages
       IDS contends the jury’s $300,000 noneconomic damages award is excessive,
focusing on the ratio between noneconomic damages and the $35,000 in economic
damages awarded. As support for its position, IDS cites Major v. Western Home Ins. Co.
(2009) 169 Cal.App.4th 1197 (Major), in which the court stated: “In determining
whether the noneconomic damages award is excessive, we compare the amount of that
award to the economic damages award, to see if there is a reasonable relationship
between the two.” (Id. at p. 1216.) The court in Major found that a two-to-one ratio
between the noneconomic damages and economic damages awarded in that case was
reasonable, and that the noneconomic damages award was therefore not excessive.
(Ibid.) IDS argues that the nearly ten-to-one ratio between noneconomic damages and
economic damages awarded to Federici in this case is excessive as a matter of law.
       We will not usurp the jury’s role in assessing damages by substituting a
mathematical formula to measure the reasonableness of the award. While we may
consider the ratio of noneconomic damages to economic damages, the verdict must be
withheld as long as “there is a reasonable relationship between the two.” (Major, supra,
169 Cal.App.4th at p. 1216.) Assessing the reasonableness of that relationship requires a
review of the evidence.
       There was evidence that Federici had no front teeth for a substantial period of time
while he awaited payment from IDS for the dental implants necessary to support a new
dental bridge and that he suffered embarrassment as a result. The temporary bridge he
wore in the interim broke several times, leaving him again toothless. With the temporary
bridge, Federici’s diet was limited to soft foods that he had to cut into little pieces and
chew on his remaining three natural teeth. Federici testified that he paid for a more
sturdy temporary bridge out of his own funds, that he was harassed by bill collectors, and
that he suffered anxiety and distress as a result.


                                              14
       To support its argument that the noneconomic damages award was excessive, IDS
cites evidence that Federici spent a portion of his vehicle settlement proceeds to purchase
a new car, and that he never sought medical treatment for the anxiety and distress he
allegedly suffered as a result of the delayed settlement. Under the standard applicable
here, however, we do not reweigh the evidence; rather, we consider the evidence in the
light most favorable to the judgment, accepting every reasonable inference and resolving
all conflicts in its favor. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071,
1078.) There is substantial evidence in the record to support the jury’s award of
noneconomic damages.
                                     DISPOSITION
       The judgment is affirmed. Federici is awarded his costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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