                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2006-CA-01105-SCT

THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA AND PRUCO LIFE INSURANCE
COMPANY

v.

PATTY STEWART, SALLY STEWART HESTER,
GILES STEWART, LARRY STEWART,
INDIVIDUALLY, AS CO-EXECUTORS OF THE
ESTATE OF EDSEL STEWART; AND LARRY
STEWART AND GILES STEWART AS CO-
TRUSTEES OF THE STEWART FAMILY LIFE
INSURANCE TRUST


DATE OF JUDGMENT:               02/28/2006
TRIAL JUDGE:                    HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:      HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:       ROY H. LIDDELL
                                WALTER D. WILLSON
                                RICHARD GERALD NORRIS, II
ATTORNEYS FOR APPELLEES:        ALEX A. ALSTON, JR.
                                SHELDON G. ALSTON
                                SHARON F. BRIDGES
                                ELIZABETH LEE DECOUX
NATURE OF THE CASE:             CIVIL - INSURANCE
DISPOSITION:                    REVERSED AND RENDERED - 09/27/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     EN BANC.

     EASLEY, JUSTICE, FOR THE COURT:
¶1.    This action was instituted in the Circuit Court for the First Judicial District of Hinds

County against Defendants Prudential Insurance Company of America, Pruco Life Insurance,

James Bateman, and JMB Financial Group to recover proceeds from a life insurance policy

allegedly due to the Plaintiffs, Patty Stewart, Sally Stewart Hester, Giles Stewart, and Larry

Stewart, individually and as co-executors of the Estate of Edsel Stewart; and Larry Stewart

and Giles Stewart as co-trustees of the Stewart Life Insurance Trust. The jury awarded

compensatory and punitive damages to the Plaintiffs. The Plaintiffs filed a motion for

attorneys’ fees and costs, which the trial court granted. The trial court entered a judgment

against the Defendants, Prudential and Pruco (collectively “the Defendants,” or “Prudential”)

in the amount of $1,400,000 in compensatory damages, $35,000,000 in punitive damages,

and $501,638.02 in attorneys’ fees, for a final judgment of $36,901,638.02, at an 8% annual

interest rate.1 The Defendants filed a motion for judgment notwithstanding the verdict

(J.N.O.V.), or in the alternative, motion to alter, amend and vacate the judgment, or for

remittitur, which the court denied. The Defendants now appeal to this Court.

                                           FACTS

¶2.    Dr. Edsel Stewart (Dr. Stewart) retained James Bateman (Bateman), an independent

broker, to handle estate planning and to procure a life insurance policy in the amount of

$1,000,000 to cover the expected tax liabilities of approximately $1,000,000.2 Several


       1
           The Prudential Insurance Company of America and Pruco Life Insurance Company
were the only two defendants who appealed the judgment to this Court.
       2
           Dr. Stewart was 73 years old at the time he died.

                                              2
companies declined to cover Dr. Stewart due to his advanced age or agreed to consider

providing coverage at a premium rate that Dr. Stewart deemed too high. Dr. Stewart’s son,

Dr. Larry Stewart (Larry), was the trustee of Dr. Stewart’s trust and was involved with his

father’s procurement of life insurance.       The “beneficiaries/ownership” listed in the

application was The Stewart Family Life Insurance Trust (Trust), Lawrence Edsel Stewart,

Trustee. Larry, as the trustee, signed the application as the “applicant” on the policy. Dr.

Stewart was not listed as the applicant on the application. Dr. Stewart signed the application

as the “proposed insured.”

¶3.    The Plaintiffs contend that by August 19, 1999, Prudential communicated an offer to

Dr. Stewart, the insured, and Larry, the trustee of the trust established to receive the

insurance proceeds on Dr. Stewart’s death. The Plaintiffs assert that on August 31, 1999, the

offer had been accepted and $20,000 was paid as the first payment on the annual premium.

Bateman testified that the $20,000 check issued to Bateman’s company, JMB Financial

Group, was for two years of estate planning provided to Dr. Stewart, and it was not a

premium payment on any insurance coverage. Only Dr. Stewart and Bateman were present

when the $20,000 check, dated August 31, 1999, from the bank account of Dr. or Mrs. Edsel

Stewart, indicating for a “fee,” was tendered to JMB Financial Group. The check stated that

it was payable to the order of “JMB Financial Group.”

¶4.    On September 1, 1999, Dr. Stewart had a stroke and fell into a coma. On September

9, 1999, Larry received a faxed document from Bateman that needed his signature. Larry

signed and approved the “Supplement to the Application” form. The document stated that

                                              3
it was, “A Supplement to the Application for a variable contract in which Edsel Ford Stewart

is named as the proposed insured.” It directed, “Use this form to provide additional

information needed in connection with the purchase of a variable life insurance product.”

The “Supplement to the Application” was signed by Larry, as the applicant, was dated

September 10, 1999, and contained the application number V1016075.3 Larry did not inform

Bateman that Dr. Stewart had had a stroke and was now in a coma and had been in a coma

since September 1, 1999.       Larry established a conservatorship over Dr. Stewart on

September 9, 1999.

¶5.    According to the Defendants, on September 17, 1999, Pruco issued a policy that

differed from the policy face amount of $1,000,000 applied for by Dr. Stewart.4 The policy

required an annual premium of $105,000, not $100,000 as requested in the Trust’s

application. Prudential and Bateman maintain that they were never notified of any change

in Dr. Stewart’s health before the policy was issued on September 17, 1999. The policy was




       3
        The document was signed on September 10, 1999, by Lawrence E. Stewart, as the
applicant.
       4
          Prudential considered the changes in the policy issued as a counteroffer to Dr.
Stewart’s application. Prudential asserts that the Trust made an offer to Pruco on August 23,
1999, in the form of the application for a variable life policy with a face amount of
$1,000,000 at a premium of $100,000. On September 1, 1999, unbeknown to Prudential, Dr.
Stewart, the proposed insured, had a stroke and was comatose. On September 17, 1999,
Pruco issued a policy that would have been a counteroffer, if it had been communicated or
delivered, because it contained an annual premium $5,000 higher than that listed on the
application.

                                             4
delivered to Bateman with delivery instructions and restrictions. The instructions to the

agent stated:

       When delivering the policy you must personally see the proposed insured,
       verify that all answers to the questions on the application are unchanged,
       and collect the first full premium. If the answer to any question has
       changed, or if any person covered under the contract is ill, disabled, has died,
       or has been put in an institution or prison, do not deliver it.

(Emphasis added).

¶6.    The contract date of the policy provided, “Coverage is effective on ___________ (the

effective date), that is the date the initial premium was paid and the contract was delivered.”

On September 20, 1999, Prudential sent Bateman the policy, airborne, for Bateman to

attempt delivery and satisfaction of the outstanding placement requirements. On September

21, 1999, Bateman attempted to contact Dr. Stewart. When Bateman could not locate Dr.

Stewart, he contacted Larry and asked him to arrange a meeting with Dr. Stewart. Larry

asked Bateman to fax or mail the policy to him rather than have a meeting. Bateman

informed Larry that he was required personally to see Dr. Stewart and obtain a signed

statement from him that his health was unchanged since the application process. The call

ended with no meeting arranged.

¶7.    On September 22, 1999, Larry contacted Bateman and inquired again about the

delivery of the policy, informing him for the first time that Dr. Stewart was in a coma.

Bateman told Larry that he had the policy, but he could not, under the circumstances of the

changes in Dr. Stewart’s health, deliver the policy. He informed Larry that there would be

no insurance. On September 22, 1999, Bateman informed Prudential that Dr. Stewart was

                                              5
in a coma. Prudential requested Bateman return the policy with no attempt to place it. At

trial, Larry testified that neither he, nor anyone else to his knowledge, informed Prudential

before September 21, 1999, that Dr. Stewart was in a coma until he told Bateman. Larry

stated that he agreed that an insurance company considering issuing insurance on an

individual would be interested in knowing whether or not the individual was in a coma.

Larry testified that the written policy was not in the possession of the Trust when Dr. Stewart

went into a coma.

¶8.    Dr. Stewart died on October 19, 1999. The Plaintiffs contend that Larry, via an

attorney, sent a demand letter to Prudential on February 18, 2002, demanding that $1,000,000

be paid. The letter enclosed Dr. Stewart’s death certificate and contained Dr. Stewart’s

social security number and all the details of the claim. The Plaintiffs assert that Prudential

signed a return receipt. Receiving no response, Larry faxed another notice to the Claims

Department of Prudential on April 5, 2002.

¶9.    Prudential claims that on June 18, 2002, it received a letter from Larry demanding

policy benefits, claiming a premium had been paid for the policy, and attaching the February

and April 2002 correspondence, which Prudential contends it had never seen until that day.

Prudential asserts that it responded to the letter three days later and began its investigation.

Prudential also sent a request to Larry that he provide documentation that he represented the

legal interests of the decedent. Prudential received no response until August 28, 2002. The

Plaintiffs filed suit on September 24, 2002.

                                       DISCUSSION

                                               6
¶10.   A review of the record in this case reveals that a contract for insurance was never

formed, and therefore, no life insurance policy was in effect. Accordingly, we find that the

trial court’s denial of the Defendants’ motion for J.N.O.V. to be error. When considering a

trial court’s denial of a motion for judgment notwithstanding the verdict, the standard of

review is de novo. Poole v. Avara, 908 So. 2d 716, 726 (Miss. 2005). The trial court must

view the evidence in the light most favorable to the non-moving party and look only to the

sufficiency, and not the weight of the evidence. Id. at 727. When determining whether the

evidence was sufficient, the critical inquiry is whether the evidence is of such quality that

reasonable and fairminded jurors in the exercise of fair and impartial judgment might reach

different conclusions. Id. at 726.

¶11.   When evaluating the denial of a motion for new trial, this Court will overturn the trial

court only if it abused its discretion in that it denied a new trial though the verdict was

against the overwhelming weight of the evidence. Id. at 727. We will not order a new trial

unless we are convinced that the verdict was contrary to the substantial weight of the

evidence so that justice requires that a new trial be granted. Id.

¶12.   The issue before us is whether a contract was ever formed between the trust and

Prudential Life Insurance for life insurance on Dr. Stewart. This Court stated:

       [I]nsurance policies are matters of contract and the interpretation of insurance
       contracts is according to the same rules which govern other contracts. In
       order to have an enforceable insurance contract, the essential elements are
       an offer and an acceptance, supported by consideration.




                                              7
Krebs v. Strange, 419 So. 2d 178, 181 (Miss. 1982) (emphasis added). “[F]or an insurance

contract to exist the minds of the parties must meet as to the terms of the contract.” Scottish

Union & National Ins. Co. v. Warren Gee Lumber Co., 118 Miss. 740, 754-55, 80 So. 9

(1918).

¶13.   The parties dispute whether there was an offer and an acceptance, and if so, which

documents constituted the offer and the acceptance. The Plaintiffs assert that the application

was an acceptance of Prudential's offer to insure. Prudential contends that the policy was the

offer and that there can be no meeting of the minds because the policy was never delivered

to Larry or Dr. Stewart.

¶14.   The ability to make an offer for insurance lies with the potential insurer as well as the

potential insured. Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1177-78

(Miss. 1990). Generally, through bargaining transactions conducted between the insurer’s

agent and the potential insured, the agent invites the potential insured to make an offer by

submitting an application. Id. at 1177. In the alternative, the insurer may make the offer

through the agent’s express assent to the specific and definite terms of coverage. Id. at 1178.

Such terms include all of the essential terms as delineated in the application – the subject

matter of insurance, the period of coverage, the premium, and the amount of insurance. Id.

There must be a complete understanding between the parties as to these terms in order for

such assertions by the insurer or the agent to constitute an offer. Id.

¶15.   Larry asserts that the insurer made the offer in this case. He states that Dr. Stewart

already had been approved for Prudential’s “Class H.” He claims in his brief that this

                                               8
approval set the underwriting requirements before he submitted the application. However,

Larry’s trial testimony differs from the assertions in his brief. He testified that a decision had

not yet been made regarding underwriting of the policy. Larry answered affirmatively to the

question of whether an application is a request that the insurance company consider the

applicant for insurance coverage. Id. Moreover, the means by which he understood that a

contract would be formed in this case was that “[t]he company [had] to make the offer.”

Accordingly, his expectation was that “[t]he company issues the contract, I accept it, and then

we pay the premium.” He testified that the offer, which he conceded would come from

Prudential, was a document he signed on August 31, 1999. However, as Larry eventually

conceded, the document he signed on August 31, 1999, was a “Supplement to the

Application” and was clearly titled as such on the first page of the document. He also

understood that after the issuance of the policy, there was a process for acceptance, which

included delivery, to be completed before the policy would be effective.

¶16.   Prudential and Pruco, on the other hand, argue that the submission of the application

was the offer to provide insurance coverage. The terms of the application included a face

amount of $1,000,000 and a premium set at $100,000. Pruco contends that it issued a policy

which would have constituted a counteroffer since it contained a premium $5,000 higher than

that quoted in the application. However, when Bateman called Larry to arrange for delivery

of the policy, Larry told Bateman that Dr. Stewart was in a coma. Consequently, Bateman

told Larry that he would be unable to deliver the policy and there would be no insurance.




                                                9
¶17.   The treatment of the policy as a counteroffer in this case is consistent with precedent.

“To create a contract of insurance there must be an agreement between the insurer and the

insured. There must be a meeting of the minds. . . .” Nunley v. Merrill, 513 So. 2d 582, 586

(Miss. 1987). Thus, if the terms in the policy issued “differ materially” or are “at variance”

from those in the application, tender of such policy constitutes a counteroffer. Interstate Life

& Acc. Ins. Co. v. Flanagan, 284 So. 2d 33, 36-37 (Miss. 1973). The policy may set the

terms of acceptance for the proposed insured. Id. at 36. Upon acceptance according to the

policy terms and the tendering of consideration, a contract is formed between the proposed

insured and the insurance company. Id.; Krebs, 419 So. 2d at 181.

¶18.   The terms of acceptance of Prudential’s counteroffer required Dr. Stewart’s signature

on the COD endorsement, receipt of the initial premium, and delivery of the policy. Clearly,

Dr. Stewart was unable to accept Prudential’s counteroffer since he was in a coma. Without

an offer and acceptance, no contract was formed, and there is no need to address whether

consideration was tendered.

¶19.   The only possible conclusion from the evidence is that an initial offer was made when

the proposed insured submitted an application, and the proposed insurer produced in response

a policy, which differed in terms, and thus would have constituted a counteroffer. However,

as Prudential never presented the policy to the applicant for acceptance, there was no

possibility of the occurrence of both an offer and acceptance. For those reasons, the evidence

is not of such quality that reasonable and fairminded jurors in the exercise of fair and

impartial judgment might reach different conclusions with regard to the existence of a

                                              10
contract in this case. The evidence does not sufficiently support the establishment of the

requisites of offer, acceptance, and consideration.

¶20.   The evidence is insufficient to show a meeting of the minds as to whether an offer was

made and what the terms of insurance coverage were. Thus, a contract was never formed

between Larry, as representative of the Trust, and Prudential. Therefore, we reverse the jury

verdict and render judgment in favor of the Defendants.

                                      CONCLUSION

¶21.   For the foregoing reasons, we find that the trial court erred in denying the Defendants’

motion for J.N.O.V. Accordingly, the judgment of the Circuit Court of Hinds County,

Mississippi, is reversed and judgment rendered in favor of the Defendants, The Prudential

Insurance Company of America and Pruco Life Insurance Company, as the evidence does

not demonstrate that a contract for insurance was ever formed between the parties.

¶22.   REVERSED AND RENDERED.

     SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND LAMAR, JJ.,
CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT. CARLSON, J.,
SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ.
GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DIAZ, P.J.

       CARLSON, JUSTICE, SPECIALLY CONCURRING:

¶23.   While I wholeheartedly join today’s majority opinion, I am compelled to write

separately to address the dissent’s treatment of this Court’s recent decision in Bradfield v.

Schwartz, 936 So. 2d 931 (Miss. 2006).


                                             11
¶24.   In his dissent, Justice Graves finds, inter alia, that the $35 million punitive damage

award should be affirmed, and states that “[i]n accordance with the process outlined by this

Court in Bradfield, it appears that the trial court correctly submitted the [punitive damage]

issue to the jury for consideration.” (Emphasis added). However, notwithstanding this

statement, the dissent then launches into a six-page attack of this Court’s decision in

Bradfield.

¶25.   The dissent refers to the Legislature’s enactment of the statute requiring bifurcation

of trials in which punitive damages are sought as an “overreaching effort [by the Legislature]

to protect tortfeasors from punitive damages.” If, as opined by the dissent, this was the

legislative intent in enacting this statute, the Legislature failed miserably inasmuch as the

jury in the case sub judice awarded the sum of $35,000,000 in punitive damages after the trial

court, according to the dissent, “meticulously followed” the procedure prescribed in

Bradfield, which required that our trial courts follow the statutory procedure. As an aside,

I note that this “bifurcation statute,” which is Miss. Code Ann. § 11-1-65 (Supp. 2007), has

been on the books since 1993, though there have been recent amendments to the statute. The

dissent states that this “overreaching effort” by the Legislature evidences the Legislature’s

“lack of faith and confidence in the ability of jurors to properly resolve disputes,” and that

this legislative expression of lack of confidence in jurors was “justified” by this Court in

Bradfield. The dissent then quotes a portion of Bradfield as follows:

       [T]he detailed procedure which is outlined . . . [in the bifurcation statute] must
       be meticulously followed because without an evidentiary buffer at trial, juries
       will ultimately confuse the basic issue of fault or liability and

                                              12
       compensatory damages with the contingent issue of wanton and reckless
       conduct which may or may not ultimately justify an award of punitive
       damages.

Id. at 938. (Emphasis supplied by the author of the dissent). From the language in the

dissenting opinion, it is obvious that the dissent wishes to imply that we said in Bradfield that

our citizens who serve on juries in this state are not competent to sort through evidence

because they become too easily confused. A careful reading of Bradfield will cause an

objective, well-reasoned person to conclude that the dissent’s characterization of Bradfield

is not only unfounded, but untrue.

¶26.   By characterizing Bradfield in this way, am I to understand that the dissent would

likewise find fault with our Miss. R. Evid. 403, which allows a trial judge to exclude

otherwise relevant evidence if the probative value of such evidence “is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury?” (Emphasis added). See Palmer v. State, 939 So. 2d 792, 795 (Miss. 2006) (although

evidence was admissible under Miss. R. Evid. 404(b), “it still must be admissible under the

ultimate filter of Miss. R. Evid. 403"). Does the dissent find fault with the long-standing

practice in this state directing trial judges to give cautionary instructions to the jury to inform

the jury of the limited nature for which certain evidence was received? Does the dissent find

fault with our federal and state constitutional mandates permitting the accused in criminal

cases the right to remain silent and our case law finding reversible error when the prosecution

impermissibly puts before the jury evidence that the accused exercised his/her constitutional

right to remain silent? Does the dissent also find fault with Miss. Code Ann. § 11-1-55 (Rev.

                                                13
2002), which authorizes the trial judge to grant a remittitur or additur if the judge determines

that the jury verdict was a result of “bias, prejudice, or passion” on the part of the jury? After

all, according to the dissent’s approach, jurors are super-humans who are unmoved and

unaffected by society’s biases and prejudices, and who are able unemotionally to sort through

all the evidence, without becoming confused and without any unnecessary interference from

judges who might try to limit the evidence the jury receives by such procedures as exclusion,

cautionary instructions, or bifurcation of the issues.

¶27.   Also, the dissent asserts that this Court’s application of section 11-1-65 in Bradfield

“is infeasible and is likely to result in a gross inefficient use of judicial resources in those

instances where punitive damages are not warranted.”            I now quote further from the

dissenting opinion:

       This Court compounds the inefficiency by requiring that jurors listen to
       testimony and evidence before a determination as to whether or not the jurors
       will ever decide the issue relevant to the testimony. This procedure is akin to
       granting a motion for summary judgment after the trial.

       Although the punitive damages statute requiring bifurcation is unnecessary and
       this Court’s rationale in Bradfield is impractical, I find that the trial court in
       the instant case meticulously followed the Bradfield process. After the jury
       returned a verdict awarding compensatory damages, the evidentiary hearing
       was promptly commenced. Only two witnesses were called. That makes
       perfect sense inasmuch as the evidence regarding Prudential’s conduct was
       necessarily presented during the Plaintiffs’ and Defendants’ cases-in-chief.
       Both the judge and jury had already heard that testimony prior to the verdict
       on compensatory damages. Hence, it is much more logical that the judge
       would decide at that juncture whether or not the jury would be allowed to
       consider awarding punitive damages.

       However this Court has said that when the jury awards compensatory
       damages, the trial court should “automatically proceed to the punitive damage

                                               14
       phase of the trial.” At which time, the trial court must conduct an evidentiary
       hearing. This Court has indicated that the “evidentiary hearing” involves more
       than just a judicial evaluation of previously heard testimony.
....
       Consequently, the trial court was compelled to proceed with the punitive
       damage phase upon the return of a verdict for the Plaintiffs awarding
       compensatory damages.

       The “automatic” evidentiary hearing requirement set forth by this Court is
       infeasible and is likely to result in a grossly inefficient use of judicial resources
       in those instances where punitive damages are not warranted. If a judge is to
       serve as a gatekeeper, it is illogical to allow a jury to hear all the evidence and
       testimony on the issue of punitive damages prior to the judge’s determination
       of whether the jury should consider the issue. The process outlined by this
       Court in Bradfield takes away the judge’s discretion to make a preliminary
       determination, that as a matter of law, punitive damages should not be
       considered by the jury. Once that discretion is taken away, any prudent judge
       should be reluctant to deny the jury an opportunity to make a finding regarding
       a matter about which they have already heard all of the relevant testimony and
       evidence. That is why the directed verdict is so rarely granted and is
       disfavored by courts. The Bradfield process was followed in the instant case
       and the result was a jury award of punitive damages.

Dissenting Opinion, ¶¶ 58-61. (Citations omitted).

¶28.   Simply put, the dissent’s characterization of what this Court said in Bradfield is

wrong. Here is a portion of what we said in Bradfield:

       If the jury awards compensatory damages, then an evidentiary hearing is
       conducted in the presence of the jury. At the close of this second phase of the
       trial, via an appropriate motion for a directed verdict, the judge, as gatekeeper,
       then ultimately decides whether the issue of punitive damages should be
       submitted to the trier-of-fact (jury). If the judge, from the record, should
       determine, as a matter of law, that the jury should not be allowed to consider
       the issue of punitive damages, a directed verdict shall be entered in favor of the
       defendant on the issue of punitive damages, and the case will end. If, on the
       other hand, the judge should allow the issue of punitive damages to be
       considered by the jury, then the jury, upon being properly instructed by the
       judge on the punitive damages issue, may decide to award punitive damages,
       and if so, in what amount, or the jury may decide not to award punitive

                                                15
       damages. If the jury should award punitive damages, then, prior to entry of the
       final judgment on an award of punitive damages, the judge, pursuant to Miss.
       Code Ann. § 11-1-65(1)(f)(I), shall "ascertain that the award is reasonable in
       its amount and rationally related to the purpose to punish what occurred giving
       rise to the award and to deter its repetition by the defendant and others," by
       considering the factors set out in Miss. Code Ann. § 11-1-65(1)(f)(ii)(1-4).
       While the statute does not envision that the judge could increase the amount
       of the jury's punitive damages award, the judge could unquestionably,
       consistent with the statute, reduce the amount of the jury's punitive damages
       award. Finally, just as in any other case, the judge will ultimately decide, via
       the appropriate post-trial motions, whether it was error to submit the punitive
       damages issue to the jury.

Bradfield, 936 So. 2d at 939.

¶29.   Contrary to the perceived fears expressed by the dissent, the Bradfield procedure does

not create a “duplication” of the judicial process. After the conclusion of the first phase of

the trial where a verdict for compensatory damages has been returned by the jury, there is no

language in Bradfield which somehow now prohibits the attorneys for some of the parties,

or all of the parties, to inform the trial judge that for the second phase of the trial, they wish

to incorporate into the record by reference all evidence which was adduced by the parties in

the first phase of the trial. I would envision that this would be done in every case prior to

commencing the second phase of a bifurcated trial under Bradfield. I cannot imagine any

trial judge refusing such a reasonable and logical request. This procedure then permits the

jury, without hearing or receiving any repetitious testimony or evidence, to have before it all

the evidence presented during the first phase of the trial. After the trial judge has granted

“the incorporation of evidence” request, the parties may or may not elect to present additional




                                               16
evidence. Regardless of whether additional evidence is presented, the “evidentiary hearing”

requirement of section 11-1-65 and Bradfield has been met.

¶30.   It is obvious that the dissent also perceives that trial judges will be more reluctant to

seriously consider a motion for a directed verdict after the jury has been allowed to hear the

evidence presented in the punitive damages phase. Frankly, I am appalled at such a

suggestion. Trial judges are called upon daily to consider motions for directed verdict after

the plaintiff’s case-in-chief, after the defendant’s case-in-chief, and after the presentation of

all the evidence. Likewise our trial judges are called upon daily to consider motions for

judgment notwithstanding the verdict after a jury has returned its verdict. Evidently, I have

more faith than my dissenting colleagues that our trial judges will “do the right thing” and

grant such motions when the evidence, the law, and their oath of office requires that they do

so.

¶31.   Likewise, the dissent obviously opines that the procedure outlined in Bradfield is

impractical because the judge may have to grant a directed verdict for the defendant after the

parties have gone through the time and effort to present this punitive damage evidence to the

jury. As may be inferred from the dissenting opinion, the punitive damages phase of a

bifurcated trial may quite often take very little time. Indeed, the punitive damages phase of

a trial may be very brief, or it could conceivably last a day, two days, or even longer. What

is impractical to me is the dissent’s approach to this procedure. What could be more

impractical, as suggested by the dissent, than the trial judge, without the jury, having to spend

hours or days hearing the punitive damage evidence, only to determine that the jury will have

                                               17
the opportunity to hear this punitive damage evidence? Under this scenario, the judge would

have wasted the jurors’ time, whether they were in the jury room, or away from the

courthouse, as the jurors were awaiting word about their status; and the parties and their

witnesses would likewise have to re-present the same evidence before the jury.

¶32.   Finally, I address the statute itself. As noted in Bradfield, the statute which applied

in that case stated:

       If, but only if, an award of compensatory damages has been made against a
       party, the court shall promptly commence an evidentiary hearing before the
       same trier of fact to determine whether punitive damages may be considered.

Id. at 938 (quoting Miss. Code Ann. § 11-1-65(1)(c) (Rev. 2002)).5

¶33.   I am at a total loss as to how this clear and unambiguous legislative language could

be confused or misunderstood. I recognize that the dissent does not like what the statute

says. I also recognize that the dissent does not like this Court’s interpretation and application

of the statute in Bradfield inasmuch as the dissent states that our interpretation of the statute

in Bradfield is “infeasible, illogical, and impractical.”       In fact, the dissent somehow

mysteriously asserts that the six justices who joined the majority opinion in Bradfield

“cavalierly” made a substantive change in the law when we required, consistent with the

statute, bifurcation of civil trials involving punitive damage issues, in that the result is a



       5
           Section 11-1-65(1)(c) now states: “If, but only if, an award of compensatory damages
has been made against a party, the court shall promptly commence an evidentiary hearing to
determine whether punitive damages may be considered by the same trier of fact.” In my
opinion, even if Bradfield had been decided under this 2004 amendment to section 11-1-
65(1)(c), the outcome would have been the same.

                                               18
change in the appellate standard of review on punitive damage issues. We have done no such

thing.

¶34.     Finally, I note that Justice Graves attempts to assure the reader that he is not explicitly

stating, or even implying that “the bifurcation statute is unconstitutional.” There is good

reason for the dissent making this statement. No party raised the issue of the constitutionality

of this statute. If any party had wished to attack the constitutionality of this statute in today’s

case, that party was first required to comply with Miss. R. Civ. P. 24(d) by giving notice to

the Attorney General and then raising this issue before the trial court. Cockrell v. Pearl River

Valley Water Dist., 865 So. 2d 357, 360 (Miss. 2004).

¶35.     I see no effort by any party in this case to give such notice to the Attorney General.

I have checked the clerk’s docket in this case via the intranet, and I note attorneys for the

appellants, attorneys for the appellees, attorneys for friends of the court, and attorneys for

other parties, but I do not notice the Attorney General being listed in this case as an attorney-

of-record. Therefore the constitutionality of this statute is not before us today. On the other

hand, with the “advisory opinion” rendered by the author of today’s dissent, and those who

have joined him, as to how the dissent feels about the constitutionality of section 11-1-

65(1)(c), practitioners have been put on notice that there are at least some on this Court who

would look favorably upon such an argument.

¶36.     Again, having already fully joined the well-reasoned majority opinion authored by

Justice Easley, I could not in good conscience ignore the language in the dissent attacking




                                                 19
this Court’s decision in Bradfield, especially when, based on the disposition of today’s case,

such an attack is totally unnecessary.

     SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ.,
JOIN THIS OPINION.


       GRAVES, JUSTICE, DISSENTING:

¶37.   The majority finds that the evidence in this case was “not of such quality that

reasonable and fair minded jurors in the exercise of fair and impartial judgment might reach

different conclusions with regard to the existence of a contract in this case.” Moreover, the

majority finds that the evidence does not sufficiently support the establishment of the

requisite offer and acceptance to support the finding of a contract. I respectfully disagree.

I.     Whether the Jury’s Findings are Supported by the Evidence.

¶38.   In addressing Prudential’s contentions that the Stewarts failed to present sufficient

evidence to support their claims, and that the trial court erred in denying Prudential’s Motion

for Judgment Notwithstanding the Verdict, it is the responsibility of this Court to consider

the standard that the trial judge follows in denying or granting a J.N.O.V. Andrew Jackson

Life Ins. Co. v. Williams, 566 So. 2d 1172, 1177 (Miss. 1990). Deference is accorded to the

trial judge’s determination to deny the motion because legal issues were decided by the jury.

Id.

       Deference will also be accorded the jury’s fact-finding because of its position
       -- unlike this Court’s -- to evaluate and weigh the truthfulness of a witness’
       testimony. The demeanor or bearing of voice, the attitude and appearance of
       the witnesses, all are primarily for inspection and review by the jury. The jury
       not only has the right and duty to determine the truth or falsity of the

                                              20
       witnesses, but also has the right to evaluate and determine what portions of the
       testimony of any witness it will accept or reject.

Id. (citation omitted).

¶39.   It is not the place of this Court to determine what we, as individuals, would have done

had we been called as jurors in the instant case. It is the responsibility of this Court to

examine the evidence presented by both parties and determine “whether the evidence is of

such quality that reasonable and fairminded jurors in the exercise of fair and impartial

judgment might reach different conclusions.” Poole v. Avara, 908 So. 2d 716, 726 (Miss.

2005) (citation omitted). Evidence presented could support both the finding that a contract

was formed, or the finding that a contract was not formed. In the present case, substantial

evidence exists to support the establishment of all the requisites for formation of an insurance

contract and therefore, I would find that the jury’s findings should be upheld. The jury was

allowed to hear all of the relevant testimony and evidence offered by both the plaintiffs and

the defendants.6 Further, the jury had the advantage of assessing the credibility of all

witnesses. Having done that, the jury found that a contract had been formed.

       1.      Offer

¶40.   As discussed by the majority, this Court has explained two routes by which an offer

to enter an insurance contract may be presented. Andrew Jackson Life Ins. Co., 566 So. 2d



       6
        It is noteworthy that neither the appellants nor the appellee in this case raise any issue
about the exclusion of relevant evidence. Hence, it is reasonable to conclude that the jury
heard all of the relevant evidence and the arguments of both sides before reaching a verdict.


                                               21
at 1177-78. A potential insurer as well as potential insured may make an offer for insurance.

Id. In two previous decisions this Court has found that the insurer made an offer which the

potential insured accepted by submitting an application. In Andrew Jackson Life Insurance

Company, an offer by the insurance company was sufficiently shown through the affirmative

actions of the agents, who extended an offer of immediate coverage, gave assent on behalf

of the insurer to all essential terms and expressed the agreed upon terms in writing. Andrew

Jackson Life Ins. Co., 566 So. 2d at 1178-79.          Also, in Safety Drivers Insurance

Corporation v. Waggener, this Court found that the insurer made an offer. Safety Drivers

Ins. Corp., 219 Miss. 372, 380-81 (1953). The evidence presented included documents from

the insurer signed by the vice-president of the insurance company, soliciting the insured to

purchase insurance and declaring all of the essential terms and conditions precedent, which

the plaintiff was required to meet in order to consummate the contract. Id. at 379-80.

¶41.   The Stewarts assert that Prudential, through its agent, Bateman, made the offer in the

instant case.   At trial the Stewarts offered evidence in the form of documentation and

testimony that on August 19, 1999, Prudential’s underwriter offered to insure Dr. Stewart at

Select H coverage, which set the underwriting requirements. Larry testified and further

offered documentation that Prudential provided the Stewarts with an illustration, dated

August 19, 1999. The cover page of the illustration specifically stated:

                            Pruco Life Variable Universal Life
                            A Variable Life Insurance Contract
                               An Illustration Presented to:
                                    Dr. Edsel Stewart


                                             22
                  by Jim Bateman, CLU [Chartered Life Underwriter 7],
                Registered Representative for use in the state of Mississippi

The purpose of the illustration was to show “how premiums’ payments, loans and

withdrawals made on [the Contract] may result in or affect cash values and death benefits.”

The contract description page specifically states: “Proposed Insured: Dr. Edsel Stewart[,]

Male[,] age 73[,] Select Preferred with Ratings[,] 1,000,000 Variable Universal Life[,] Type

A Death Benefit. Initial Annual Premium Outlay $105,000.00.” (Emphasis added). The

illustration included all of the essential terms to constitute an offer by the insurer’s agent,

Bateman. The illustration expressly provided that: (1) Dr. Stewart was the proposed insured;

(2) the period of coverage was from his current age to his death, (3) the yearly premium was

$105,000; (4) and the amount of the policy was for $1,000,000 payable upon the death of Dr.

Stewart. Also, it is undisputed that the parties understood the terms contained within the

illustration.

¶42.   Prudential argues that Larry, as trustee of the Trust, merely submitted an application

to Pruco, and in doing so made an offer. Prudential offered evidence that on August 23,

1999, Larry, acting as trustee, applied for a variable life insurance policy with a face amount

of $1,000,000 at a premium of $100,000, which Pruco was free to accept, reject, or make a

counteroffer.   Moreover, Larry’s trial testimony revealed that he understood that the

application did not create coverage.



       7
        The term Chartered Life Underwriter (CLU) is an insurance agent designation, and
often goes with ChFC credential (Chartered Financial Consultant).

                                              23
       2.       Acceptance

¶43.   Determining whether the evidence is sufficient to demonstrate an acceptance begins

with the identification of what constitutes an acceptance. “To create a contract of insurance

there must be an agreement between the insurer and the insured. There must be a meeting of

the minds . . . [also known as acceptance].” Nunley v. Merrill, 513 So. 2d 582, 586 (Miss.

1987). Acceptance may be implied from the actions of the insured. Old Equity Life Ins. Co.,

v. Jones, 217 So. 2d 648, 650 (Miss. 1969). In Andrew Jackson Life Insurance Company,

this Court upheld the jury’s verdict against the insurer where an insurance agent offered to

insure the insured. Andrew Jackson Life Ins. Co., 566 So. 2d at 1180. In that case the court

found that “acceptance of the offer was manifested through the . . . [insured’s]: (1) remittance

of seven premiums deducted from his paycheck, and (2) completion of the application which

contained the essential terms.” Id. at 1179.

¶44.   The Stewarts contend that the offer to insure Dr. Stewart was accepted by the signing

of the Supplement to the Application on August 31, 1999, by both the Prudential agent,

Bateman, and Dr. Stewart. Furthermore, the record reflects that Larry signed another

document on August 31, 1999, certifying that “this contract meets my insurance needs and

financial objectives.” Lastly, in addition to signing the additional papers on August 31, 1999,

Dr. Stewart paid a sum of $20,000 to Bateman in the form of a check. The Stewarts assert

the check for $20,000 was the first premium payment, which exceeded the initial minimum

premium requirement in the amount of $10,308.15.



                                               24
¶45.   The record also reflects that on September 9, 1999, Batemen sent a fax to Larry

indicating that he would deliver the policy the following week. In further support of their

contention, the Stewarts produced a letter written by Prudential, dated on September 17,

1999, thanking Dr. Stewart “for purchasing this life insurance policy from Pruco Life.” In

a letter dated September 20, 1999, Prudential wrote to Dr. Stewart stating, “Thank you for

your application for life insurance with Prudential. We are pleased to issue you a contract.”

¶46.   Prudential argues that the submission of the application was the offer to provide

insurance coverage. Prudential offered evidence that on September 17, 1999, without

knowledge of Dr. Stewart’s comatose state, they issued a policy which constituted a

counteroffer because it (1) had a premium that was $5,000 per year higher than the policy

requested in the application, (2) was endorsed to require delivery, and (3) required that Dr.

Stewart have continued good health. In both applications, signed on August 23, 1999, and

on August 31, 1999, the Stewarts listed a premium of $100,000. The policy issued differed

from the Stewarts’ application in that the policy required a premium of $105,000, $5,000

higher than the application. However, the Illustration listed the premium as $105,000.

¶47.   Prudential contends that upon learning of Dr. Stewart’s comatose state, they decided

not to make the counteroffer of coverage because Dr. Stewart was unable to confirm that his

health remained as reported in the application and that Dr. Stewart failed to satisfy the

condition precedents outlined in the application.8 In particular, Dr. Stewart’s health had not


       8
       In the Terms and Conditions section of the application, under which Larry and Dr.
Stewart signed in agreement, Prudential stated the following: “When the Company gives a

                                             25
remained the same as stated in the application; he had been in a coma for more than two

weeks by the time that the policy was issued by Pruco on September 17, 1999.

¶48.   The policy was endorsed to provide that coverage did not start until “the contract was

delivered,” and to require the proposed insured to sign a good health statement at delivery.

Prudential asserts that the policy was never accepted as issued because it was never offered

or communicated to the policyowner, the Trust, by Bateman or Pruco. The Stewarts contend

that sending the policy to Bateman was tantamount to delivery to the Trust.

¶49.   Adhering to this Court’s rationale in Andrew Jackson Life Insurance Company, the

Stewarts presented sufficient evidence to the jury to support its findings of acceptance of the

insurance contract on August 31, 1999. The Stewarts introduced testimony to show that Dr.

Stewart’s health condition did not change until September 1, 1999. Additionally, this Court

in Thurman v. Farmers’ Mutual Fire Insurance Company, an action on an insurance

premium note, held that the question of whether the defendant with full knowledge made the

application and got the kind of policy for which he applied, was for the jury. Thurman v.

Farmers’ Mut. Fire Ins. Co., 102 Miss. 77, 81 (1912). Accordingly, the issue of whether

the policy was a counteroffer which was withdrawn or a contract was an issue that was

properly submitted to and resolved by the jury. Because the issue was properly considered




Limited Insurance Agreement form dated on the same date shown below, coverage will start
as written in that Agreement. Otherwise, coverage will start on the contract date, provided:
(1) The company issues a contract and I accept it; and (2) the first premium is paid in full
while all proposed insureds’ health remains as stated in the application.”

                                              26
by the jury, this Court must give deference to the jury’s findings of fact. Andrew Jackson

Life Ins. Co., 566 So. 2d at 1177.

       3.     Consideration

¶50.   Finding that there was no offer and acceptance, and therefore no contract was formed,

the majority finds no need to address whether consideration was tendered. However, because

I find that there was sufficient evidence of both offer and acceptance, I will examine the issue

of consideration. “All that is needed to constitute valid consideration to support a contract

is a benefit to the promisor or a detriment to the promisee.” Frierson v. Delta Outdoor, Inc.,

794 So. 2d 220, 224 (Miss. 2001) (citations omitted). In Andrew Jackson Life Insurance

Company, this Court held that the insurer received sufficient consideration in the form of the

seven premiums. Andrew Jackson Life Ins. Co., 566 So. 2d at 1178.

¶51.   The Stewarts assert that Dr. Stewart paid the first premium in the amount of $20,000

for the life insurance contract. Prudential contends that the payment of $20,000 was not a

premium for insurance, but rather a fee paid to Bateman for his estate planning services. The

record reflects that Dr. Stewart and Batemen met on August 31, 1999, to sign a Supplemental

Application for insurance, and it was at that time that Dr. Stewart gave Batemen the $20,000

check. At the request of Dr. Stewart, Bateman wrote out the check for him to sign, writing

on the “For” line the word “fee,” and making the check out to JMB Financial Group,

Bateman’s company. While Prudential contends that the $20,000 was a fee for Bateman’s

services to Dr. Stewart, there is no evidence on the record that Dr. Stewart had ever paid any

other fee or any other amount of money to Bateman at anytime for his estate planning

                                              27
services or for any other reason. Moreover, there exists no documentary evidence with

regard to the purpose of this payment.

¶52.   Further, Prudential offered evidence of the terms of the application, which indicated

that no premium could be submitted with the application because of Dr. Stewart’s medical

history, and therefore argues that the $20,000 check did not constitute consideration. It

alleges that Bateman did not have the authority to accept premiums on the company’s behalf

before delivery of the policy and satisfaction of delivery requirements.

¶53.   Again, considering the conflicting evidence, it is without question that a reasonable

and fair-minded juror could have found that sufficient consideration existed to form a

contract. More importantly, the jury heard all of the evidence from both parties and decided

that a contract existed. Moreover, Prudential makes no argument that substantial evidence

in support of its defense was not heard by the jury. Clearly, sufficient evidence was

presented to support the jury’s finding that a life insurance contract existed and that the

award of compensatory damages was appropriate.

II. Whether the Trial Court Erred in Submitting the Issue of Punitive Damages to the
Jury.

¶54.   In an overreaching effort to protect tortfeasors from punitive damages, the Legislature

passed Mississippi Code Annotated Section 11-1-65, bifurcating trials when punitive

damages are sought. In pertinent part, the statute reads:

       (c) If, but only if, an award of compensatory damages has been made against
       a party, the court shall promptly commence an evidentiary hearing to
       determine whether punitive damages may be considered by the same trier of
       fact.

                                             28
       (d) The court shall determine whether the issue of punitive damages may be
       submitted to the trier of fact; and, if so, the trier of fact shall determine whether
       to award punitive damages and in what amount.

Miss. Code Ann. § 11-1-65 (Supp. 2007).

¶55.   This Court has further interpreted the statute in Bradfield v. Schwartz, stating:

       If the jury awards compensatory damages, then an evidentiary hearing is
       conducted in the presence of the jury. At the close of this second phase of the
       trial, via an appropriate motion for a directed verdict, the judge, as gatekeeper,
       then ultimately decides whether the issue of punitive damages should be
       submitted to the trier-of-fact (jury). If the judge, from the record, should
       determine, as a matter of law, that the jury should not be allowed to consider
       the issue of punitive damages, a directed verdict shall be entered in favor of
       the defendant on the issue of punitive damages, and the case will end. If, on
       the other hand, the judge should allow the issue of punitive damages to be
       considered by the jury, then the jury, upon being properly instructed by the
       judge on the punitive damages issue, may decide to award punitive damages,
       and if so, in what amount, or the jury may decide not to award punitive
       damages.

Bradfield v. Schwartz, 936 So. 2d 931, 939 (Miss. 2006) (emphasis added).

¶56.   Prior to Bradfield, the initial determination by the trial court regarding punitive

damages would have been made immediately following the verdict on compensatory

damages. Bradfield, 936 So. 2d at 940. The trial court’s decision of whether to allow the

jury to consider the issue of punitive damages would be reviewed by the appellate court

under an abuse of discretion standard. Doe ex rel. Doe v. Salvation Army, 835 So. 2d 76,

81 (Miss. 2003) (citing Hurst v. Southwest Miss. Legal Servs. Corp., 708 So. 2d 1347, 1351

(Miss. 1998)). However, this Court in Bradfield said that “when the jury returned a verdict

which resulted in a compensatory damages award, a punitive damages phase of trial should

have automatically proceeded.” Bradfield, 936 So. 2d at 940. In accordance with the process

                                                29
outlined by this Court in Bradfield, it appears that the trial court correctly submitted the issue

to the jury for consideration. Id.

¶57.   After “automatically” proceeding to the punitive damages phase of the trial, the trial

judge may determine as matter of law whether the issue of punitive damages should be

submitted to the jury. Pursuant to Bradfield, the trial court’s decision is reviewed under the

standard for a directed verdict, as further discussed herein. Bradfield, 936 So. 2d at 939.

This Court reviews whether a directed verdict should have been granted de novo. Windmon

v. Marshall, 926 So. 2d 867, 872 (Miss. 2006). “All evidence is considered ‘in the light most

favorable to the non-movant, giving that party the benefit of all favorable inferences that may

be reasonably drawn from the evidence.’” Forbes v. GMC, 935 So. 2d 869, 872 (Miss.

2006). Furthermore, “[a] trial court should submit an issue to the jury only if the evidence

creates a question of fact concerning which reasonable jurors could disagree.” Vines v.

Windham, 606 So. 2d 128, 131 (Miss. 1992). Hence, Bradfield takes us from the abuse of

discretion standard of review to the totally different de novo review of a decision regarding

a directed verdict. That change is undeniably substantive, and the Bradfield majority

cavalierly declares that in order to follow the procedure set out in the statute, this substantive

change must occur.

¶58.   Mandatory bifurcation is an unwise and inefficient use of judicial resources and of

jurors’ time. Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 659 (Md. Ct. App. 1992)

(holding that mandatory bifurcation would result in the “same witness having to repeat their

testimony, . . . this duplication would burden both witnesses and jurors as well as waste

                                               30
judicial resources”).9 Moreover, the Legislature’s enactment of the bifurcation statute is

evidence of the Legislature’s lack of faith and confidence in the ability of jurors to properly

resolve disputes. That lack of confidence is unfounded. Despite the lack of empirical

evidence of jurors’ inability to resolve multiple issues, in Bradfield this Court justified that

lack of confidence by stating:

       . . . [T]he detailed procedure which is outlined . . . [in the bifurcation statute]
       must be meticulously followed because without an evidentiary buffer at trial,
       juries will ultimately confuse the basic issue of fault or liability and
       compensatory damages with the contingent issue of wanton and reckless
       conduct which may or may not ultimately justify an award of punitive
       damages.

Bradfield, 936 So. 2d at 938 (emphasis added). Again, there is simply no empirical evidence

to support such a finding. Weimer v. International Flavors & Fragrances, Inc., 2007 WL

1959103 (N.D. Iowa 2007) (citing Francis v. Franklin, 471 U.S. 307, 326, 105 S.Ct. 1965,

85 L.Ed.2d 344 (1985) (“To say that the jury might have been confused amounts to nothing

more than an unfounded speculation that the jurors disregarded clear instruction of the court

in arriving at their verdict”); see also, Jennifer M. Granholm & William J. Richards,

Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury’s Role, 26 U. Tol. L. Rev.

505, 537 (1995) (arguing that “mistrust of juries rests upon generalization and exaggeration,

and that empirical evidence provides a solid basis for trusting the objectivity and rationality


       9
         See also, Stephan Landman et al., Proposed Reforms And Their Effects: Be Careful
What You Wish For: The Paradoxical Effects of Bifurcating Claims For Punitive
Damages, 1998 Wis. L. Rev. 297, 335 (1998) (finding that the “incidence of punitive
liability increases . . . [and] the size of the award also increases substantially if the case is
bifurcated”).

                                               31
of juries”).10 It is as a result of the bifurcation statute that Mississippi state courts are

required to try certain cases in two phases, notwithstanding that practically all of the

evidence necessary to phase two will have been presented in phase one. This Court

compounds the inefficiency by requiring that jurors listen to testimony and evidence before

a determination as to whether or not the jurors will ever decide the issue relevant to the

testimony. This process is akin to granting a motion for summary judgment after the trial.

¶59.   Although the punitive damages statute requiring bifurcation is unnecessary and this

Court’s rationale in Bradfield is impractical, I find that the trial court in the instant case

meticulously followed the Bradfield process. After the jury returned a verdict awarding

compensatory damages, the evidentiary hearing was promptly commenced. Only two

witnesses were called. That makes perfect sense inasmuch as the evidence regarding

Prudential’s conduct was necessarily presented during the Plaintiffs’ and Defendants’ cases

in-chief. Both the judge and the jury had already heard that testimony prior to the verdict on

compensatory damages. Hence, it is much more logical that the judge would decide at that

juncture whether or not the jury would be allowed to consider awarding punitive damages.




       10
         (Citing Patrick E. Higginbotham, Continuing the Dialogue: Civil Juries and the
Allocation of Judicial Power, 56 Tex. L. Rev. 47, 53 (1977) (“Apart from the occasional
situation in which a judge possesses unique training. . . the assumption that a jury
collectively has less ability to comprehend complex material than does a single judge is an
unjustified conclusion.”); Jose S. Cecil, et al., Citizen Comprehension of Difficult Issues:
Lessons From Civil Jury Trials, 40 Am. U. L. Rev. 727, 745 (1991) (studies confirm the
general competence of the jury)).

                                             32
¶60.   However, this Court has said when the jury awards compensatory damages, the trial

court should “automatically proceed . . . to the punitive damages phase of the trial.”

Bradfield, 936 So. 2d at 939. At which time, the trial court must conduct an evidentiary

hearing. Id. This Court has indicated that the “evidentiary hearing” involves more than just

a judicial evaluation of previously heard testimony. See Bradfield, 936 So. 2d at 939

(holding that an evidentiary hearing would allow “both the judge and the jury to evaluate the

conduct of Schwartz & Associates in light of the standards of ethics and professionalism that

control a firm, and the lawyers within the firm, in the practice of law in this State”) (citations

omitted). Consequently, the trial court was compelled to proceed with the punitive damage

phase upon the return of a verdict for the Plaintiffs awarding compensatory damages.

¶61.   The “automatic” evidentiary hearing requirement set forth by this Court is infeasible

and is likely to result in a grossly inefficient use of judicial resources in those instances

where punitive damages are not warranted. If a judge is to serve as a gatekeeper, it is

illogical to allow a jury to hear all the evidence and testimony on the issue of punitive

damages prior to the judge’s determination of whether the jury should consider the issue.

The process outlined by this Court in Bradfield takes away the judge’s discretion to make

a preliminary determination that, as a matter of law, punitive damages should not be

considered by the jury. Once that discretion is taken away, any prudent judge should be

reluctant to deny the jury an opportunity to make a finding regarding a matter about which

they have already heard all of the relevant testimony and evidence. That is why the directed

verdict is so rarely granted and is disfavored by courts. Dangler v. Doherty, 777 F. Supp.

                                               33
1175, 1178 (1991) (stating directed verdicts are disfavored); see also Robinson v. Gailno,

275 Conn. 290, 297 (Conn. 2005); In re Oakey Custom Homes, 168 B.R. 232, 238 (Bankr.

D. Colo. 1994). The Bradfield process was followed in the instant case and the result was

a jury award of punitive damages.

¶62.   Explicitly, I do not find nor do I imply that the bifurcation statute is unconstitutional.

I simply point out that by determining that the judge should review the issue of punitive

damages and decide whether or not to grant a directed verdict, the standard of review on

appeal has been changed from an abuse of discretion standard to a standard of “whether or

not reasonable jurors could disagree.” Those are two totally different standards, and it is

impossible to reconcile those two standards in appellate review of the singular issue of

punitive damages. Moreover, to indicate that the statute compels such a result is to

acknowledge that a “procedural” requirement compels a “substantive” change. Hence, this

Court’s interpretation of the statute in Bradfield is infeasible, illogical, and impractical.

¶63.   In the instant case, upon application of the standard set out in Bradfield, I would

affirm the trial court’s decision to submit the issue of punitive damages to the jury.

Moreover, in light of the fact that the net worth of Defendant Prudential exceeded seven

billion dollars, the award of thirty-five million dollars in punitive damages was not excessive.

In fact, Prudential’s net worth was $7,469,076,983. The thirty-five million dollar award in

punitive damages was approximately .5% less than 1% of Prudential’s net-worth. This

calculation does not include Defendant Pruco’s net worth which was $514,870,597.



                                              34
¶64.   In sum, substantial evidence exists to support the establishment of all the requisites

for formation of an insurance contract – offer, acceptance, and consideration. Moreover, the

issue of punitive damages was properly submitted to and decided by the jury. Therefore, I

would affirm the trial court’s judgment granting compensatory damages in the amount of

$1,400,000; punitive damages in the amount of $35,000,000; and attorney fees and costs in

the amount $501,638,02. For the foregoing reasons, I respectfully dissent.

       DIAZ, P.J., JOINS THIS OPINION.




                                             35
