Courts in the State of Washington always present interesting appellate issues in the bad faith context. One of those interesting issues can be seen in the Washington Court of Appeals decision of Miller v. Kenny, 325 P.3d 278 (Wash. Ct. App. 2014).
In Miller, three automobile accident victims (passengers) sued the insured driver. The parties executed a settlement agreement by which the insured agreed to pay $1.8 million in insurance proceeds to the passengers, to enter a reasonable covenant judgment, and to assign to one of the passengers, the insured driver’s rights to sue the insurer for bad faith and related claims. The automobile insurer intervened at which time the parties stipulated that $4.15 million was the reasonable total net amount of the covenant judgment that remained unpaid after the passengers received the $1.8 million insurance proceeds. The assignee passenger then dropped his claims against the insured driver and amended the complaint to allege bad faith against the insurer. Ultimately, a jury returned a verdict of $13 million.
The insurance company, Safeco Insurance Company (Safeco), as the intervener, argued on appeal that plaintiff’s counsel’s closing argument resulted in a verdict that was the product of passion and prejudice and that a new trial should be granted on that basis. Prior to trial, Safeco had moved in limine to preclude plaintiff’s counsel from making a “golden rule” argument or a “send-a-message” argument to the jury.
As the Court described it “A golden rule argument urges jurors to imagine themselves in the position of a party and to grant that party the relief they would wish to have for themselves.”
The Washington Appellate Court noted that a golden rule argument was improper. Citing Adkins v. Aluminum Co. of America, 110 Wash.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988). On the hearing regarding the motion in limine, the plaintiff’s attorney agreed to refrain from making any golden rule argument during closing argument. However, plaintiff’s counsel argued that a “send-a-message” argument was appropriate in a bad faith case. The trial court granted Safeco’s motion in limine only as to the golden rule argument.
Plaintiff’s counsel began closing argument by “explaining that a trial takes place in the locale where key events happen because the local jury reflects the ‘conscience of the community’ and serves as a protector and guardian of the community.” Plaintiff’s counsel asked the jury to consider whether Safeco’s conduct reflected “how we, as a community, want to be treated.” Plaintiff’s counsel continued in his argument to the jury as follows:
[D]id they do things the right way to reflect how we, as a community, want to be treated? And if so, side with Safeco. Side with Safeco. And then hope you don’t have an accident with someone with Safeco. Where the other insurance companies, who will all be seeing this, as we’ve heard, from the experts, they will all be publicizing this, and they will all be a race to the bottom then. But that’s your decision. That’s your values. That’s what you get to decide, how we all are going to be treated equally, what that means.
Safeco did not object to plaintiff’s counsel’s speech or any other portion of plaintiff’s closing argument. However, Safeco contended on appeal that the motion in limine had preserved error. Safeco argued that what plaintiff’s counsel did was to, in essence, make a golden rule argument.
The Washington Court of Appeals ruled that plaintiff’s counsel’s speech was not a golden rule argument. “Appeals for a jury to act as a conscience of the community are not impermissible, unless specifically designed to inflame the jury.” Citing State v. Finch, 137 Wash.2d 792, 842, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999).
The Court found that plaintiff’s counsel’s argument was not inflammatory and that it was not an appeal to parochial pride or prejudice. The trial court did permit a “send-a-message” argument and the argument about “how we, as a community, want to be treated” fell between a “golden rule” argument and a “send-a-message” argument. Because the argument straddled the two, Safeco should have made a more contemporaneous objection during trial.
The Court of Appeals stated that “[t]he vice of a golden rule argument is that it encourages the jury to ‘depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.’” Citing Adkins v. Aluminum Co. of America, 110 Wash.2d at 139, 750 P.2d 1257, 756 P.2d 142 (emphasis added), quoting Rojas v. Richardson, 703 F.2d 186 191 (5th Cir. 1983). According to the Washington Court, the plaintiff’s counsel did not appeal to juror self-interest; rather, plaintiff’s counsel appealed to the jurors’ interest as members of the public to “protect the public interest” and to enforce the public “compact” that insurance companies have to comply with their duties of reasonable care, good faith and fair dealing under the law. Therefore, it was not an improper argument to be used in a bad faith case.
The Court reiterated that Safeco did not make a timely objection. The challenge remarks, according to the Court, when read in the overall context of the trial, were more properly characterized as aggressive advocacy than as misconduct.
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