LINDER, J.
Plaintiff Mark Strawn filed a class action against defendants Farmers Insurance Company of Oregon, Mid-Century Insurance Company, and Truck Insurance Exchange (collectively, Farmers).
Both parties petitioned for review. In its petition, Farmers presented three issues. The first two raise challenges to the liability verdict entered against Farmers. The third issue challenges the punitive damages award, arguing that the Court of Appeals should have reduced the punitive damages award further. In plaintiffs' petition, they first contend that the Court of Appeals should not have reached the constitutionality of the punitive damages award for procedural reasons. Alternatively, plaintiffs contend that the full amount of punitive damages awarded by the jury was within constitutional limits.
We allowed both petitions for review. As we will explain, we reject Farmers's arguments that seek to set aside the jury's liability determinations on plaintiffs' claims. On the punitive damages issues, we conclude that the Court of Appeals should not have reached Farmers's constitutional challenge to the amount of the punitive damages award. Consequently, we affirm in part and reverse in part the decision of the Court of Appeals, and we affirm the judgment of the trial court.
This case involves personal injury protection (PIP) benefits offered by insurance policies written by Farmers. Both by statute and by contract, Farmers was obligated to pay "[a]ll reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the person's injury," up to a certain limit. ORS 742.524(1)(a).
Strawn, 228 Or.App. at 458-61, 209 P.3d 357 (footnotes omitted).
Plaintiff Strawn filed a class action against Farmers in August 1999. The trial court certified the class action in June 2000. Pursuant to the certification order, the class was declared to consist of "all persons who were entitled to PIP benefits from Farmers under Farmers's standard terms for PIP coverage, whose benefit payments were reduced by Farmers on the basis of codes RC40 or B2 during the period January 26, 1998 to July 21, 1999, and whose claims are not barred." Plaintiffs, alleging a total of approximately 8,000 class members, asserted four claims for relief against Farmers: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) declaratory judgment, and (4) fraud.
In a stipulated statement of the case that the trial court read to the jury at the outset of the trial, the parties summarized the underlying nature of the action:
The jury returned a verdict for plaintiffs on their claims for breach of contract, breach of the implied duty of good faith and fair dealing, and fraud,
Ultimately, as noted, the trial court entered judgment against Farmers for approximately $900,000 in compensatory damages and $8 million in punitive damages. Farmers appealed to the Court of Appeals, raising multiple issues bearing on liability as well as challenging the amount of the jury's punitive damages award. The Court of Appeals rejected all but one of Farmers's claims of error, agreeing only that the punitive damages award exceeded constitutional limits. 228 Or.App. at 457, 209 P.3d 357. The Court of Appeals granted relief accordingly. Id. at 488, 209 P.3d 357. As already noted, both plaintiffs and Farmers sought review of the Court of Appeals decision, and this court allowed both petitions.
On review, the issues before us divide into two categories. The first are challenges that Farmers raises in connection with the merits of plaintiffs' various claims of liability. The second are challenges that both parties raise to the Court of Appeals' determination of the amount of punitive damages that constitutionally could be awarded against Farmers. We begin with the issues bearing on liability, which would include plaintiffs' fraud claim on which the jury awarded punitive damages. If we were to reverse the verdict on the fraud claim, that disposition would obviate the need to reach the punitive damages issues that the parties present.
On review to this court, the first issue that Farmers raises is whether it was permitted to present a full defense to plaintiffs' claims. Specifically, Farmers asserts that the trial court did not permit Farmers to present evidence to the jury that would have rebutted the reasonableness of the medical charges submitted by individual class members for PIP reimbursement and, conversely, that would have established the reasonableness of Farmers's investigation of those individual PIP claims.
Before turning more directly to that issue, it is helpful to describe, as context for our discussion, the relevant core theories on which the parties proceeded at trial. A key component of all of plaintiffs' claims—including the fraud claim—was the allegation that Farmers, by using their percentile-reduction claims handling process, had failed to pay the class members' "reasonable" medical charges. At trial, the parties took different positions on plaintiffs' burden to establish the
The trial court resolved that central dispute through summary judgment proceedings, concluding that plaintiffs were legally entitled to a presumption of reasonableness, based on the amounts that their medical providers charged. Consequently, in the trial court's view, once plaintiffs produced evidence of the medical bills for the individual class members, the burden shifted to Farmers to rebut the presumption that the amounts charged were reasonable.
After the trial court's summary judgment ruling, Farmers continued to preserve its position on that question, as reflected in certain procedural motions that Farmers raised. For example, at the end of plaintiffs' case-in-chief, Farmers renewed its position by moving to decertify the class on that theory, among others, that plaintiffs' claims (including the fraud claim) were not conducive to class treatment, because plaintiffs were required to present individualized proof of the reasonableness of their medical charges. Likewise, Farmers moved for a directed verdict at that point, urging, inter alia, that plaintiffs had the burden to prove the reasonableness of the individual medical charges submitted for PIP reimbursement and that they had failed to sustain that burden. At each juncture, the trial court adhered to its ruling that plaintiffs' evidence of their medical bills presumptively established the reasonableness of the charges, and that the burden then shifted to Farmers to rebut reasonableness.
On appeal to the Court of Appeals, Farmers assigned error to the trial court's rulings on that issue, arguing, among other points, that the reasonableness of the class members' medical expenses required individualized proof and should not be presumed based on their medical bills. Plaintiffs argued the converse. By the time the Court of Appeals issued its decision, this court had decided Ivanov v. Farmers Ins. Co., 344 Or. 421, 185 P.3d 417 (2008). Relying on Ivanov, the Court of Appeals rejected Farmers's position:
Strawn, 228 Or.App. at 465, 209 P.3d 357.
On review to this court, Farmers no longer maintains that plaintiffs had the burden to present individualized proof of the reasonableness of their medical expenses. Rather, given the holding in Ivanov, Farmers now accepts that the amounts of plaintiffs' medical bills presumptively established the reasonableness of their medical charges. Farmers further accepts that, once that presumption was in place, the burden shifted to Farmers to rebut that presumption by showing that its investigation and processing of the claims resulted in payment of plaintiffs' reasonable and necessary medical expenses, thus satisfying Farmers's legal obligation.
What Farmers does dispute, however, is whether the trial court permitted Farmers to make that rebuttal showing. According to Farmers, the trial court cut off Farmers's ability to do so by excluding evidence relevant to whether Farmers reasonably investigated the individual claims and whether Farmers reimbursed plaintiffs in an amount that represented their reasonable medical expenses. Farmers urges that, by excluding
An essential problem with Farmers's arguments, however, is that they are not arguments that Farmers made to the trial court or to the Court of Appeals. To be sure, Farmers points to some items of evidence that the trial court ruled inadmissible before and during trial. But having reviewed the rulings that Farmers challenges, we agree with plaintiffs that the trial court did not foreclose Farmers from offering any evidence for the purpose that Farmers now asserts the evidence would have been relevant— viz., to establish the reasonableness of Farmers's investigation of the individual claims or to show that the payments that Farmers made to the individual class members met Farmers's obligation to pay their reasonable medical expenses. In other words, Farmers did not present to the trial court the theories of admissibility that it advances now.
Some specific rulings are illustrative.
In response, Farmers argued a more narrow theory of relevancy than it now advances. With regard to provider write-offs, Farmers urged that the evidence showed that class members often did not become liable for the unpaid portions of the bills, which Farmers asserted was relevant both to damages and punitive damages. Similarly, Farmers urged that evidence of third-party tort liability was relevant to damages.
Farmers also asserts to this court that the trial court denied it the ability to present "individualized evidence" through what Farmers characterizes as a "blanket exclusion" that effectively required Farmers to
As a final example, Farmers asserts that "the jury never learned that Farmers actually overrode RC40/B2 recommended reductions, paying submitted medical charges in full, in numerous individual cases." Farmers's argument in that regard, however, is telling. Farmers acknowledges that "[t]he focus of the trial here was not on the investigation but on the reasonableness of the underlying charges." (Emphasis in original.) In other words, the fight at trial was over whether plaintiffs' medical bills established a rebuttable presumption of reasonableness, not over whether Farmers had rebutted that presumption by showing the reasonableness of its investigation. That was the focus because, as Farmers concedes, the law on the point had not yet been settled by Ivanov. Despite conceding that the trial was so focused, Farmers urges that, "had individualized evidence been admitted, Farmers could have shown—and did show during the claims administration process—that it had a reasonable investigation process." In particular, Farmers urges that it "could have shown, for example," that it overrode the recommended percentile reductions in many cases or had other reasons why reimbursement was reduced.
What Farmers now recognizes it could have shown with certain evidence is beside the point, however. The issue is whether the trial court prevented Farmers from placing evidence before the jury that was relevant to the reasonableness of its claims handling process and its PIP payments to plaintiffs. Farmers points to no place in the record where Farmers offered, and the trial court excluded, evidence that Farmers overrode the recommended reductions in individual cases. Farmers may appreciate now what it could have argued based on evidence that it either did not seek to place before the jury, or that it placed before the jury for other reasons.
The second question that Farmers presents on review is whether it was entitled to a directed verdict on plaintiffs' fraud claim. Farmers argues that plaintiffs failed to present proof of reliance, as they were obligated to do, sufficient to support a conclusion that all members of the class detrimentally relied on Farmers's misrepresentation that they would pay reasonable medical expenses.
To provide context for our discussion of Farmers's arguments, we begin by describing plaintiffs' fraud claim and the proof on which plaintiffs relied.
Farmers's motion for directed verdict raised several challenges to the adequacy of plaintiffs' evidence on their various claims. As to plaintiffs' fraud claim, Farmers's argument was not extensive, but it did directly take issue with whether plaintiffs had adequately proved reliance on the part of the class as a whole. Specifically, Farmers argued:
The trial court denied the motion, concluding that, viewed in the light most favorable to plaintiffs,
Strawn, 228 Or.App. at 470-71, 209 P.3d 357(citations omitted).
On review, Farmers characterizes the Court of Appeals as having indulged a "presumption" of reliance, one that relieved plaintiffs of their burden to prove reliance on the part of each of the class members. Farmers argues that, as a matter of law, reliance in a fraud case "can never be presumed" and the obligation to prove reliance therefore poses a particular evidentiary challenge to a class action plaintiff. At a minimum, according to Farmers, a class action plaintiff must present "competent evidence from which a jury can conclude that class members were generally aware of a claimed misrepresentation and acted on the basis of that awareness." Farmers thus asserts that, in the context of this case, plaintiffs had to come forward with proof that each class member knew of the representation at issue, interpreted it to mean that Farmers would pay full billed charges, and relied on that representation. Here, Farmers maintains, plaintiffs presented absolutely "no evidence," either individualized by class member or common to the class, from which the jury could logically draw the necessary conclusion of reliance as to all class members.
Plaintiffs, for their part, agree that they had to prove reliance for the class as a whole, rather than reliance only by plaintiff Strawn or isolated members of the class. But classwide reliance, they urge, does not require direct evidence of reliance by every individual class member. Instead, plaintiffs urge, such reliance can be inferred in a proper case, and this is such a case. Here, the evidence showed that the class members received insurance policies in Farmers's standard
In making their respective arguments, the parties debate at some length the significance of our decision in Newman v. Tualatin Development Co. Inc., 287 Or. 47, 54, 597 P.2d 800 (1979). We agree that Newman provides guidance for this case. We therefore turn to the issue presented in that case and what this court held in resolving it.
The plaintiffs in Newman were purchasers of townhouses built and sold by the defendant. They brought a class action on behalf of all such purchasers, seeking damages based on the defendant's use of galvanized, instead of copper, water pipes in the townhouses. The trial court had certified the class for purposes of the plaintiffs' negligence and implied warranty claims, but declined to certify it for the express warranty claim. Based on the particular evidence presented at the class certification stage of the proceeding, this court agreed that individual determinations of reliance would be necessary, with the result that "common questions of fact would not predominate over questions affecting individual members of the class." Id. The court explained:
Id. (internal quotes and citations omitted).
Citing Newman, Farmers asserts that reliance, whenever it is an element of a class action claim, must be established through direct evidence of each class member's individual reliance. But Newman, as the portion of the decision just quoted reveals, does not stand for that proposition. Newman expressly tied its holding to the weaknesses of the particular evidence submitted in support of class certification on the express warranty claim. Immediately after discussing those weaknesses, Newman expressly disavowed that individual evidence of reliance was required as a matter of law in all class actions:
Newman, 287 Or. at 54, 597 P.2d 800. Newman thus turned on its particular facts, while leaving other class actions requiring proof of reliance to do the same. And although Newman did not declare when reliance can be determined through common, rather than individualized evidence, it at least suggested an answer—viz., when the same misrepresentation was made to all individual class members and was sufficiently material or central to the plaintiff's and the defendant's dealings
Such a standard for inferring classwide reliance from evidence common to the class accords with what we consider to be the better-considered authority in other jurisdictions. As many courts have concluded, whether classwide reliance can be inferred from evidence common to the class depends on the misrepresentation. A key consideration is whether the misrepresentation was uniformly made to all class members, as through standardized documents, or whether the evidence shows material variations in how the misrepresentation may have been communicated, as with oral representations made by different agents.
One particularly instructive case, with factual parallels to this one, is Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir.2004), cert. den., 543 U.S. 1081, 125 S.Ct. 877, 160 L.Ed.2d 825 (2005). Klay was a class action case brought by a large number of physicians against almost all major health maintenance organizations (HMOs) alleging, among other claims, fraud. The alleged misrepresentations that formed the basis for the fraud were that the HMOs agreed to reimburse physicians for all medically necessary services. The physicians alleged that the HMOs artificially and covertly underpaid them by using automated statistical and other criteria, rather than medical necessity, to calculate reimbursement amounts. Id. at 1247. In affirming the class certification on the fraud claim, the Eleventh Circuit agreed that the plaintiffs, to prove their case, had to establish reliance on the part of each class member. But the court concluded that,
Id.
The rule adopted by the authorities that we have cited, and implicitly suggested in this court's decision in Newman, is sound. To prevail in a class action for fraud, the class plaintiff must prove reliance on the part of all class members. Direct evidence of reliance by each of the individual class members is not always necessary, however. Rather, reliance can, in an appropriate case, be inferred from circumstantial evidence. For that inference to arise in this context, the same misrepresentation must have been without material variation to the members of the class. In addition, the misrepresentation must be of a nature that the class members logically would have had a common understanding of the misrepresentation, and naturally would have relied on it to the same degree and in the same way.
Not all fraud claims will lend themselves to common evidence of reliance, rather than individualized proof. Newman is a good example of a case that did not. As the decision in Newman emphasized, the representation at issue there was one of myriad statements made in a sales brochure for the townhouses, a brochure that the evidence did not establish had been given to every putative class member. Equally important, whether individual purchasers cared about the kind of water pipes in the townhouses—which the court characterized as a "relatively minor component" (Newman, 287 Or. at 54, 597 P.2d 800)—as opposed to other features, could readily vary from one purchaser to the next and, on the evidence before the court, simply was not established.
This case presents a more compelling basis for the inference of classwide reliance. The misrepresentation at issue here was in a uniform provision of a contract for motor vehicle insurance, not a sales brochure that may not even have ended up in the hands of all of the class members.
A motor vehicle liability policy, however, is distinctive, both in many of its terms and in the reasons for its purchase. As plaintiffs pleaded, and as was emphasized to the jury throughout the trial, PIP benefits are a statutorily mandated provision of motor vehicle insurance in Oregon. ORS 742.520(1) (mandating PIP coverage for "[e]very motor vehicle liability policy issued for delivery in this state" for private passenger motor vehicles).
Persons insuring and driving motor vehicles licensed in Oregon have corresponding obligations. To register or renew a motor vehicle license in Oregon, the applicant must provide assurance of compliance with the financial responsibility laws.
Against that extensive regulatory backdrop, a person who purchases a motor vehicle policy to meet the financial responsibility requirements of Oregon law does not need to read the policy to justifiably rely on its provisions. That person has no choice to buy a policy without PIP coverage. The insurer issuing the policy has no choice to issue it without PIP coverage. The entire scheme is structured to permit the purchasers of such insurance, as well as the state in its regulatory role, to have confidence that the policy provides all coverage, including PIP benefits, that is required to meet the financial responsibility laws. Given the statutory requirements for the contents of motor vehicle policies, and the responsibilities imposed on persons who are obligated to purchase such policies, an insured's reliance on the PIP coverage that the policy provides is inherent in the purchase of the insurance, or at least, a factfinder is entitled to infer as much.
The final issue before us is one that both parties raise on review: whether the Court of Appeals correctly determined that the amount of punitive damages awarded by the jury in this case was constitutionally excessive. Relying on its understanding of the applicable federal due process standards, the Court of Appeals concluded that the jury's award of $8 million in punitive damages was excessive, and that the highest amount that the jury could constitutionally award was four times the combined amount of plaintiff's compensatory damages and prejudgment interest. Strawn, 228 Or.App. at 485, 209 P.3d 357. The court therefore vacated the judgment with instructions to grant Farmers a new trial on the issue of punitive damages, unless plaintiffs on remand were to agree to a remitittur of the punitive damages award. Id.
On review to this court, both parties assert that the Court of Appeals' 4:1 ratio is legally in error. Farmers contends that the ratio should be lower; plaintiffs contend that the ratio should be higher. Preliminarily, however, plaintiffs also contend that Farmers's challenge to the punitive damages award was not properly before the Court of Appeals and, therefore, the Court of Appeals should not have reached it at all. We turn to plaintiffs' argument in that regard because, as we will explain, it is dispositive.
As context for our discussion, we begin by describing the parties' post-verdict positions on whether the trial court should have reduced the jury's punitive damages award, as advanced in the procedural motions and memoranda that the parties filed. After the jury returned its verdict, the parties filed a series of motions through which plaintiffs effectively asked the trial court to validate the amount of the jury's punitive damages award, while Farmers effectively asked the court to reduce that award. Plaintiffs filed the first of those motions, requesting that the trial court "affirm" the jury's punitive damages award under former ORS 18.537(2) (2001), renumbered as ORS 31.730 (2003) (requiring trial court to assess whether a punitive damages award is "within the range of damages that a rational juror would be entitled to award"). Farmers opposed that motion and also filed a motion for remittitur, urging in support of both motions that the punitive damages award exceeded federal due process standards as described in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), and BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).
What is important for our purposes is that Farmers's motions and plaintiffs' opposition to them framed two broad issues on which the parties disagreed. The parties not only disagreed on the merits of Farmers's motion (viz., whether the jury's punitive damages award comported with constitutional standards),
In arguing that Farmers had failed to present its constitutional objections in a procedurally proper way, plaintiffs advanced several theories. One was waiver. In particular, plaintiffs asserted that Farmers should have taken any or all of a series of procedural steps during trial to ensure that the jury returned a punitive damages award consistent with due process standards. One such step, plaintiffs urged, was that Farmers should have sought to have the jury instructed that any punitive damages award it might make could not exceed whatever upper limit Farmers believed was constitutionally imposed. Plaintiffs also argued that, after the jury returned its verdict, Farmers should have objected to the discharge of the jury and requested that the jury be reinstructed to "deliberate further" to make sure that the punitive damages award did not exceed constitutional limits, citing Building Structures, Inc. v. Young, 328 Or. 100, 968 P.2d 1287 (1998) (party who fails to object to defective jury verdict before jury is discharged waives objection to the defect). In addition to those waiver arguments, plaintiffs urged that Farmers's motions suffered from other procedural defects as well. They included Farmers's failure, through a motion for directed verdict or some other procedural means, to move to strike plaintiffs' prayer for punitive damages on the ground that it exceeded whatever amount that Farmers believed was the constitutional maximum; Farmers's failure to move against plaintiffs' complaint or challenge the sufficiency of plaintiffs' evidence on that same theory; and Farmers's failure to condition its motions on a waiver of its right to appeal as to all other alleged errors during the trial (which plaintiffs urged was required at common law).
Farmers responded to plaintiffs' waiver and other procedural objections by arguing that a defendant cannot challenge a verdict for punitive damages as excessive until after the jury renders its verdict. Farmers urged that alternative motions for remittitur or new trial were the appropriate procedural means for raising its federal due process objection to the punitive damages award, citing Parrott v. Carr Chevrolet, Inc., 331 Or. 537, 558-59 n. 14, 17 P.3d 473 (2001) (party cannot challenge verdict for punitive damages as constitutionally excessive until after jury renders verdict; motion for new trial is among appropriate procedures for raising such challenge). In oral argument on the motions, plaintiffs responded to Farmers's reliance on Parrott by asserting the statements in that case were dicta and by contending that there were many "big questions raised" by Farmers's procedural choices.
Ultimately, the trial court agreed with plaintiffs, both with their procedural position and with their position on the merits. In its oral ruling, the trial court found "at the outset" that "there's been waiver" by Farmers and that, in the court's view, "a finding of waiver is actually dispositive." The trial court also considered the merits of Farmers's challenge, stating expressly that it was doing so in the alternative, because of the possibility that an appellate court would not agree with the court's waiver determination. On the merits, the trial court concluded that the jury's punitive damages award was not constitutionally excessive. The written findings of fact and conclusions of law that the trial court later issued were consistent with its oral declaration, although more detailed. In them, the trial court concluded that Farmers had waived its constitutional objections, that its motions were procedurally defective in other regards, and that, on the merits, Farmers's challenge that the punitive damages award was excessive failed.
On appeal to the Court of Appeals, Farmers's opening brief assigned error to the award of punitive damages, but did not specify the rulings being challenged.
In response to Farmers's argument, plaintiffs first urged that the Court of Appeals could not reach the issue of whether the award was excessive, because Farmers had not challenged the waiver and other procedural grounds on which the trial court ruling also rested. Plaintiffs then argued, in the alternative, that the trial court's resolution of Farmers's excessiveness challenge to the punitive damages award was correct. In its decision, the Court of Appeals resolved the Farmers's excessiveness challenge without acknowledging or addressing the waiver and procedural grounds on which the trial court had alternatively based its ruling. Strawn, 228 Or.App. at 476-85, 209 P.3d 357.
On review, plaintiffs challenge the Court of Appeals' failure to affirm the trial court on the alternative procedural grounds that Farmers did not challenge. Farmers, for its part, does not question the proposition that, when a court's decision or ruling is premised on alternative grounds, a party challenging that ruling generally must take issue with all independent and alternative grounds on which it is based to obtain relief. Cf. State ex rel. Juv. Dept. v. Charles, 299 Or. 341, 343, 701 P.2d 1052 (1985) (dismissing petition as improvidently granted, because Court of Appeals decision rested on an independent ground and state petitioned for review on one ground only; thus, this court would be required to affirm the Court of Appeals on the issue for which review was not sought). Neither does Farmers disagree that the trial court in fact did conclude that Farmers had waived and procedurally defaulted in bringing its challenge to the punitive damages award, as alternative grounds for resolving that award. And finally, Farmers does not dispute that, to preserve an issue on appeal, a party must make the issue the object of a proper assignment of error and supporting argument in the party's opening brief. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error * * * is assigned as error in the opening brief * * *." (Emphasis added.)).
Farmers's principal response is that the trial court had lost its jurisdiction to articulate any reasons for denying the motion. Farmers contends that its motion for new trial was denied by operation of law before the trial court ruled on it, so the court's order was void. Under ORCP 64 F,
That analysis, however, overlooks the legal effect of the trial court's ruling at the time of the hearing. During the hearing, the trial
Farmers makes a second, alternative argument, as well. It contends that the trial court should be deemed to have denied the motion for new trial without any explanation of its reasoning. Farmers contends that the trial court's oral statements of its reasoning were ineffective, because they were not memorialized in writing. Farmers further reasons that the written findings of fact and conclusions of law were ineffective, because they were filed and entered after the trial court had denied the motion for new trial. Based on those alleged defects of form and timing, Farmers effectively urges that a reviewing court is required to ignore the trial court's stated reasons for its decision.
We find no merit to that contention. By its terms, ORCP 64 F requires a motion for new trial to be heard and determined within 55 days from entry of judgment, but it requires no written statement of reasons or other explanation in support of the ruling. Neither does it preclude a trial court from memorializing its reasoning after ruling on the motion in open court within the time allowed. Such written explanations and findings are generally very helpful to the appellate courts in meaningfully reviewing a trial court's ruling, and we are not inclined to foreclose their consideration unnecessarily. In this instance, the only mandate contained in ORCP 64 F is that the motion for new trial be resolved within the prescribed period. Here, it was. The trial court ruled in open court; it briefly stated its reasoning orally; the written order denying the motion for new trial was signed in open court and specifically stated that future findings would be issued; and the findings themselves were signed, filed, and entered within two weeks, and before the filing of any notice of appeal. Farmers advances no persuasive reason why the trial court's written explanation of its timely determination of the motion should not be given full consideration by the appellate courts.
In so concluding, we emphasize that we do not decide whether the trial court's alternative grounds for its ruling were sound. The correctness of the trial court's waiver and other procedural analyses are not before us, just as those issues were not before the Court of Appeals. Indeed, it is precisely because the trial court's alternative grounds for ruling were not challenged by Farmers that the issue of the excessiveness of the punitive damages award was not before the Court of Appeals for its determination. Likewise, whether that award was constitutionally excessive is not before us. For that reason, the punitive damages award must be affirmed.
We reject Farmers's arguments on review that the trial court either committed evidentiary error or erred in denying Farmers's motion for directed verdict. We agree with plaintiffs that the Court of Appeals should not have reached the merits of Farmers's assertion that the punitive damages award exceeded constitutional limits. The decision of the Court of Appeals is reversed in that respect only.
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed.
BALMER, J., dissented and filed an opinion.
BALMER, J., dissenting.
The majority labors long and faithfully to bring this tortured case, filed in the last century, to a conclusion, and I agree with important aspects of the majority's opinion.
This was never a simple case, but it evolved into an unfortunately—and unnecessarily—complex proceeding. That complexity was, in part, the result of choices made by both parties (at trial and on appeal) and by the trial court, but it also arose from the statutory context of the claims (including the insurance code and the financial responsibility law), the overlay of class allegations, the shifting legal landscape created by appellate decisions issued during the decade that the case was pending (such as Ivanov v. Farmers Ins. Co., 207 Or.App. 305, 140 P.3d 1189 (2006), rev'd, 344 Or. 421, 185 P.3d 417 (2008)), and the ever-changing procedural and substantive rules involving punitive damages. At the end of the day, that complexity created a variety of traps for the unwary, which, in large part, form the basis for the Court of Appeals' rejection of many of Farmers's arguments and this court's rejection of Farmers's argument regarding the amount of punitive damages.
Some of those traps (to continue the metaphor) may have been set by Farmers itself, either inadvertently or for reasons of trial strategy, and I agree with the majority that established rules of preservation prevent Farmers from raising a variety of otherwise potentially meritorious arguments on appeal. However, for the reasons set out below, I disagree with the majority's conclusion that evidence in the record supported the jury's finding that plaintiffs and the class members that they represented relied on Farmers's alleged misrepresentations.
The gravamen of plaintiffs' case was that Farmers had instituted a procedure for reviewing charges by medical providers that provided care to Farmers's insureds under the "personal injury protection" (PIP) coverage of their automobile insurance policies. Under the procedure, charges at or less than the eightieth percentile of charges for comparable procedures in the same geographic area would be considered by Farmers to be "reasonable" and paid.
The majority rejects Farmers's argument that the trial court erred in denying its motion for a directed verdict on the fraud claim, holding that plaintiffs introduced sufficient evidence for the jury to find that the class representatives and the class as a whole relied on misrepresentations that Farmers made to them. To put it bluntly, even if Farmers's insurance policies (or the insurance code) could be construed to constitute a representation to policyholders that Farmers would pay all "reasonable" charges, which representation was false because Farmers in fact intended to base its "reasonableness" determination on (and only to pay) all charges at or below the eightieth percentile, there is scant evidence that any plaintiff relied, to his or her detriment, on that representation. And there is virtually no evidence
I first discuss the majority's reliance holding and then consider other ways in which reliance might be proved here. "Reliance," of course, is an element of fraud, and must be proved. See Gardner v. Meiling, 280 Or. 665, 671, 572 P.2d 1012 (1977) ("Implicit in the element of reliance is a requirement [that] the plaintiff prove a causal relationship between the representation and his entry into the bargain."). The majority appears to accept plaintiffs' argument that reliance need not be proved by "direct" evidence and that it can, instead, be "inferred," 350 Or. at 354-55, 258 P.3d at 1210-11, and in an appropriate case that might be true. But the majority goes on to hold that, because the class members were required by law to have insurance, bought policies from Farmers, "received" those policies (which included a statement that Farmers would pay "reasonable" PIP charges), and then made PIP claims, a jury could find that they "relied" on Farmers's misrepresentations. Id. at 359-63, 258 P.3d at 1213-15. The majority, without citation to any case or statute, then reaches the quite far-reaching conclusion that "an insured's reliance on the PIP coverage that the policy provides is inherent in the purchase of the insurance." Id. at 361, 258 P.3d at 1214 (emphasis added). Based on that understanding, it is but a small step for the majority to conclude that "a jury could infer from evidence common to the class that the individual class members relied on Farmers's misrepresentation that it would pay its insureds' reasonable medical expenses." Id.
What is missing from the majority opinion, however, is a discussion of how the class representatives relied on Farmers's misrepresentations: what the plaintiffs did, or did not do, because of Farmers's misrepresentations. Ordinarily, in fraud cases, the plaintiff must prove that the misrepresentation "induced [the plaintiff] to make the agreement," Gardner, 280 Or. at 671, 572 P.2d 1012. Even in the rare case where this court has allowed a fraud claim to proceed in the absence of a direct misrepresentation conveyed to the plaintiff, we always have insisted that the plaintiff allege and prove reliance. See Handy v. Beck, 282 Or. 653, 656, 581 P.2d 68 (1978) (permitting fraud claim based on false drilling report filed with state engineer; plaintiffs "testified that they would not have purchased the property had they known the well did not meet state standards").
The majority's position, in contrast, seems to be that it doesn't really matter whether any of the named plaintiffs (or the class members) either received or relied upon any representations about Farmers's PIP coverage, either before or after they bought the policies, or before or after they submitted PIP claims.
Indeed, although the class here included only persons who had PIP charges that exceeded Farmers's payment level, one can easily imagine a fraud claim on behalf of a class of all Farmers policyholders who assert that they overpaid for their policies because they were paying for (and thought that they had) policies that complied with ORS 742.524(1)(a), when in fact those policies did not comply. It is difficult to see why "misrepresentation," "reliance," and "loss" all
One case that the majority does cite is Klay v. Humana, 382 F.3d 1241 (11th Cir. 2004), cert. den., 543 U.S. 1081, 125 S.Ct. 877, 160 L.Ed.2d 825 (2005), which the majority states is instructive because it involved fraud claims by physicians against a group of HMOs alleging that the HMOs had agreed to reimburse the physicians for all medically necessary services when, in fact, the HMOs covertly underpaid the physicians by using undisclosed statistical criteria to calculate reimbursement amounts. Klay bears some similarities to this case, but does not support the majority on the issue where the majority and I part ways. Klay was only a case about class certification itself—it concluded that a class of physicians making the allegations described above could be certified. Klay says nothing about what evidence of reliance would be sufficient for a jury to render a fraud verdict in favor of plaintiffs.
Klay also reiterates the well-established rule that "each plaintiff must prove reliance" to make out a fraud claim, and also makes the point, with which I agree, that "`he or she may do so through common evidence (that is, through legitimate inferences based on the nature of the alleged misrepresentations * * *).'" 350 Or. at 358, 258 P.3d at 1213, quoting Klay, 382 F.3d at 1259. But Klay also emphasizes—in a way that directly undercuts the majority's holding here—that "reliance may not be presumed in fraud-based RICO actions; instead the evidence must demonstrate that each individual plaintiff actually relied upon the misrepresentations at issue." Klay, 382 F.3d at 1257-58 (emphasis added). And the case that Klay relies upon for that proposition, Sikes v. Teleline, Inc., 281 F.3d 1350, 1362 (11th Cir.2002) (emphasis added), makes the point even more forcefully: A plaintiff must demonstrate that he or she "relied on a misrepresentation made in furtherance of [a] fraudulent scheme" because "[i]t would be unjust to employ a presumption to relieve a party of its burden of production when that party has all the evidence regarding that element of the claim." (Emphasis added.) By holding that reliance, in this case, is inherent in the purchase of the insurance and thus that the jury could infer classwide reliance based on the existence of the insurance contracts, the majority creates the very presumption that Klay and Sikes caution against.
Klay contrasts with this case in another way that demonstrates why the majority errs in allowing reliance to be presumed in this case because it is inherent in the purchase of insurance. There, the representation by the HMOs that they would reimburse the physicians for all medically necessary services went to the entire purpose of the agreement between the physicians and the HMOs. If reliance can be presumed from the nature of the representation, Klay might be a case where that would be permitted—although, as noted, the court in Klay explicitly held that reliance could not be presumed. Here, in contrast, Farmers's misrepresentation was about a small part of the PIP coverage, which was itself a small part of the policy as a whole, because the policy also provided liability coverage, uninsured motorist coverage, underinsured motorist coverage, collision coverage, and comprehensive coverage. The particular method of PIP reimbursement was not significant enough to allow the jury to conclude that reliance was "inherent" when a policyholder purchased a Farmers policy or made a PIP claim.
In terms of the significance of the misrepresentation to any action that a plaintiff might take in reliance upon it, this case is far more like Newman v. Tualatin Development Co. Inc., 287 Or. 47, 597 P.2d 800 (1979), than Klay. In Newman, this court rejected an effort by plaintiffs in a class action to prove reliance based on an express representation to class members. We did so, not because reliance always must be proved by individual evidence from each class member—as the majority notes, we expressly rejected that
There are, of course, cases where courts allow reliance to be proved without actual evidence that the plaintiff acted or failed to act based on the defendant's misrepresentation. Some securities fraud cases, such as Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 152-53, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), have permitted a presumption of reliance when the defendant had a specific duty to disclose information that it failed to disclose—a circumstance not present here. Other cases have presumed reliance under a "fraud on the market" theory, where the defendant's misrepresentations affected the market price of the stock, even though the purchaser did not actually rely on the misstatements in purchasing the stock. See, e.g., Basic Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). That doctrine, too, is unavailable to plaintiffs here.
Having concluded that reliance on Farmers's representations cannot be presumed on these facts and is not "inherent" in the plaintiffs' purchase of insurance, I consider briefly what evidence might be sufficient to show reliance here and whether the record contains such evidence. The fraud cases discussed above tell us what ordinarily is required to prove reliance: in Gardner, that the misrepresentation "induced [plaintiff] to make the agreement," 280 Or. at 671, 572 P.2d 1012; in Handy, that plaintiffs "would not have purchased the property," absent the misrepresentation, 282 Or. at 656, 581 P.2d 68. And that is the way reliance ordinarily is proved in cases ranging from common-law fraud to statutory class actions.
Here, one would expect plaintiffs to prove reliance by testifying that, had they known the truth about Farmers's PIP reimbursement policy, they would not have bought the policy—and that they would bolster those assertions by showing that, after they learned that Farmers had misrepresented its practices, they changed insurance companies. At the very least, a plaintiff would offer credible testimony that he or she was induced to take some action, or intentionally declined to take some action, because of Farmers's misrepresentations and that the action or omission caused harm to the plaintiff.
The record contains virtually no such evidence. Most of the six plaintiffs who testified explained the representations that Farmers made to them in a way that was inconsistent with the allegations in the complaint (and with plaintiffs' theory of the case). Strawn, for example, believed that the policy would "pay for all the bills up to a year" and would pay "all [medical and hospital] expenses," even though a policy that complied with ORS 742.524(1)(a)—the policy the majority says plaintiffs thought they had, because of Farmers's representations— would only cover all "reasonable and necessary" expenses, rather than "all" expenses.
Strawn did testify that the PIP benefit amount actually stated in the policy looked like it would "not go very far." But when asked what he did in reliance on that observation, Strawn said that if he had known about Farmer's reduction plan, he would
Moreover, hard as it is to believe, even after some of Strawn's medical charges were denied because they exceeded the eightieth percentile, Strawn continued to maintain his Farmers automobile insurance policy and still was insured by Farmers at the time of trial. Similarly, plaintiff Weiss continued to be insured by Farmers, despite the fact that Farmers paid less for his PIP-related medical expenses than he thought they should. (Although several plaintiffs testified that they changed insurers after finding out about Farmers's reimbursement policy, the differing conduct of the named plaintiffs demonstrates that it was improper to allow the jury to infer reliance by all class members on the basis of that evidence.)
The six plaintiffs who testified expressed various degrees of dissatisfaction with Farmers's PIP reimbursement policy and some testified to efforts made by medical providers to recover unpaid fees from them. But there was virtually no testimony from any plaintiff that he or she received and read Farmers's misrepresentations or that he or she took any particular action (or failed to take any particular action) in reliance on those misrepresentations. Much less was there any evidence from which a jury could infer that the entire class of Farmers policyholders who made PIP claims relied on any misrepresentation.
Whatever the strength of plaintiffs' nonfraud claims—and of the other elements of plaintiffs' fraud claim—plaintiffs failed to offer sufficient evidence of reliance for the fraud claim to go to the jury.
I dissent.
The statute has since been amended to increase the policy limit to $15,000, a change that is inconsequential to this case. Or. Laws 2003, ch. 813, § 2. Other than that change, the quoted portions of the statute remain the same. All references to the statute in this opinion are to the 1997 version.
The second step in assessing damages was a claims adjustment process to refine downward any compensatory damages awarded by the jury. Because of the class action posture of the case, before the trial court could enter final judgment, it first had to offer class members the opportunity to file individual claims for damages. ORCP 32 F(2) (2002) (requiring class members entitled to individual recoveries to be given opportunity to submit a statement requesting affirmative relief). For any class member who failed to file a claim, Farmers would not be required to pay, and the class member would not be entitled to recover, individual damages. ORCP 32 F(2), (3) (2002).
Class certification does not foreclose issues over the adequacy of a class plaintiff's proof of reliance, however. Here, in certifying the class, the trial court did not list reliance as one of the issues of law and fact common to the class. On the other hand, the trial court did not treat the list of common issues as exclusive either, and did not declare in advance that reliance would be determined through individual class member evidence. The issue was thus left to be determined based on plaintiffs' evidentiary showing at trial, which Farmers properly drew into question through its directed verdict motion. Although the parties spar to some extent over the significance of class certification in this case, whatever challenges Farmers may have raised to class certification have dropped from the case; none has been raised to this court on review. The only question is the adequacy of plaintiffs' proof, a question that certification, in and of itself, does not resolve.
That permissible inference of reliance is not altered by the fact these policies, as motor vehicle liability policies commonly do, contained several types of coverage in addition to the PIP coverage at issue. See 350 Or. at 344-45, 258 P.3d at 1205-06 (Balmer, J., dissenting) (noting that policies at issue also provided liability coverage, uninsured and underinsured motorist coverage, collision coverage, and comprehensive coverage). Some of the other coverage is likewise mandatory. See ORS 742.502 (required uninsured and underinsured motorist coverage); ORS 742.504 (similar). Whether one coverage provision is mandatory for purchasers to obtain and insurers to provide, or three such provisions are, does not change the analysis. Our reliance analysis in this case would not extend, however, to coverage (such as collision) that is not statutorily required.
Although ORS 3.070 does not explicitly address the effective date of orders made in open court, it does do so implicitly. Our cases involving orders signed outside of open court likewise have implicitly recognized that same proposition in the course of analyzing when those orders took effect. See, e.g., McCollum, 347 Or. at 712, 226 P.3d 703 (since 1991, an order not signed in open court becomes effective only upon entry in the register); Ryerse v. Haddock, 337 Or. 273, 281, 95 P.3d 1120 (2004) (order denying motion for new trial did not become effective until entered in the register, because it was signed "other than in open court").
In its reply brief, Farmers did summarily contend that the trial court's waiver and procedural rulings were erroneous after plaintiffs, in their responding argument, argued that the Court of Appeals could not reach the issue because Farmers did not challenge the procedural grounds on which the trial court had ruled. But advancing such a new and different argument for the first time in a reply brief is not the proper way to preserve an argument in the Court of Appeals. See ORAP 5.45(6) (supporting argument must follow assignment of error in opening brief); see generally Ailes v. Portland Meadows, Inc., 312 Or. 376, 379-80, 823 P.2d 956 (1991) (Court of Appeals should not have reached alternative waiver argument when that argument, in addition to not having been preserved in trial court, was not raised in opening brief on appeal and was instead presented for the first time in reply brief). Compare, e.g., Stanich v. Precision Body and Paint, Inc., 151 Or.App. 446, 456, 950 P.2d 328 (1997) (new claim in reply would not be considered) with Estate of Michelle Schwarz v. Philip Morris Inc., 348 Or. 442, 456-57, 235 P.3d 668 (2010) (challenge to giving uniform instruction adequately preserved where opening brief, although it did not discretely assign error to such, raised an issue that presented the same legal question, identified the error in preservation section, and argued the point sufficiently to prompt responsive argument by opposing party).
Second, Farmers asserts that the Court of Appeals necessarily considered and rejected the waiver and other procedural defects found by the trial court. We fail to see how that is so. Farmers had specifically argued to the Court of Appeals that the motion for new trial had been denied by operation of law, and so the trial court's reasoning was a nullity. The Court of Appeals may have simply accepted that argument.
