CARTWRIGHT v EQUITABLE LIFE ASSURA
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95-138 NO. IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 ROBERT CARTWRIGHT, FERRIS H. NESS and GRACE NESS, husband (BUSTER) and wife, Plaintiffs, Respondents, and Cross-Appellants, v. THE EQUITABLE OF THE UNITED LIFE ASSURANCE SOCIETY STATES and BLAINE LeSUER, Defendants, Appellants, and Cross-Respondents. APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable John Warner, Judge presiding. COUNSEL OF RECORD: For Appellants: Richard E. Gillespie, Keller, Johnson & Gillespie, Helena, (attorneys for The Equitable) Reynolds, Montana Drake, Theodore K. Thompson, Attorney at Law, Havre, Montana (attorney for Blaine LeSuer) For Respondents: Ward E. & Paul, Brian Martin Taleff, Great Alexander, Baucus, Falls, Montana Lilletvedt, & Kaze, Bosch, Kuhr, Havre, Montana Submitted on Briefs: Decided: Filed: Clerk Dugdale, October April 19, 15, 1995 1996 Justice Terry The Ness, commenced District Court County. They capacity as Assurance Society life of of affirmative Judicial District in the defendant, the to Blaine defendant, States, he sold their The to them, were The defendants denied they and that to the complaint in terms of relied on as a result compensatory material and allegations asserted and his Life the that entitled Hill Equitable misrepresented detriment, they LeSuer, in various defenses. verdict a jury in defendants favor were the liable the actual Grace Ness amount of in to of the damages were to of After arguments, the jury returned plaintiffs in the amount of amount of $6,127,845 against review of the punitive jury's for for in amount to considering $30,000 Equitable. damage 2 a that the damages misrepresentation, The punitive and returned found fraud. the $44,738, it jury compensatory negligent liable punitive the which and actual Cartwright amount County, in duty, fraud, $169,828. Hill plaintiffs fiduciary defendants the in plaintiffs constructive that awarded trial of on breach negligence, found Ness, Twelfth amended Following based (Buster) filed that plaintiffs' H. Court. complaint conduct, damages. Ferris the by amended for policies punitive of action of the United defendants' the Cartwright, that misrepresentations the opinion the agent an the this for alleged insurance those delivered Robert plaintiffs, and Grace the N. Trieweiler of awards, favor LeSuer, and the to in the evidence in Following They $144,025, Ness further against also damages. Buster damage awards jury its District and of the in the statutory Court reduced the the amount assessed amount assessed against LeSuer and Equitable them. Cartwright District Court's We affirm Court the which with Although we its entered Ness cross-appeal punitive the against damage order of for entry awards. the of and remand the District judgment verdict. issues the and reduced judgment jury's verdict, jury's the reverse $18,000, $4,000,000. Buster the verdict, the that and of to to from Grace numerous conclude Equitable reduction jury's LeSuer appeal and reduced consistent against are following raised by LeSuer issues are claims barred and Equitable, dispositive of their appeals: 1. statutes Were of 2. of Court err which those to Was substantial Did to in by the applicable jury's had against discretion similarly not, of the Equitable that when misrepresented If evidence finding jury's its individuals? by substantial the abuse the did the specific were it the District manner in resolved? defendants committed evidence? award of actual damages supported by evidence? 5. refused claims the supported LeSuer further person's Was Court other by precluding 4. they District that policies 3. fraud the evidence terms fraud plaintiffs' limitations? Did admitted the the instruct light of District the their Court jury failure abuse that plaintiffs to purchased? 3 examine its discretion could the not insurance when recover policies it for 6. Was there punitive damages reduced that each Did issue District District the those degree Court err § 27-l-221, by the jury's of awards be when, by pursuant punitive damage to which its plaintiffs' erred an award the jury found negligent? to raised Court to review to the was contributorily the support compensatory equal made pursuant The to defendant? plaintiffs' plaintiff damages of the evidence each by a percentage 8. the against Should 7. substantial award of punitive MCA? cross-appeal to its is statutory damage awards, it whether obligation reduced the amounts awards. FACTUAL AND PROCEDURAL BACKGROUND Buster Company life Ness since purchasing in policy his Buster first met old him. policy from crop ended in 1950, from occasionally he had questions regarding the out state with two his working LeSuer license he became applied to sell an insurance of for life and Buster employment was a 21, he when them he business that for use business stayed contact began in LeSuer touch when business. other with he continued 4 of would and disability agent purchased he Although chemical After 1962 supply business. the Assurance father when in chemical 196Os, Life Equitable. LeSuer LeSuer's spraying Equitable when his In Blaine the by other years, each years for chemicals relationship insured own retirement Buster's with been he was eleven insurance purchased had firms for Equitable a period and of received insurance in 1980. After to at Ness's place stop of business periodically occasionally to inquire discuss about the Buster's chemical or business Grace's life and insurance needs. In April on behalf sell the 1982, of Equitable, life of of the Grace policy years and Ness the that to pay premiums for policy would policy through they to bookkeeping care of error premium, they to operate their banker person of them to in policy had similar were that before to given repayment was of the repaid. 5 he advised that it was he would received and, take had previous LeSuer a similar loans the been year's according assurances. applied for $150,000 loan an SBA loan They were business. need that an and that with similar for the in them pay conversations would it told that value time notice Nesses, they products they the have had received they indicated then that a premium why Grace only premiums years, and Bob Cartwright agricultural the home office thirty-five would after got to He subsequent the guarantee died out it." by 1982 Buster their find at Equitable's testimony, In about paid they According which against their and that when insuring However, they to Page three was $541.25. years to policy period that They notice. When, notices advanced was agreed $25,000. by LeSuer or five LeSuer of premium premium However, worry it. premium the and LeSuer insurance amount be self-sustaining. 1985. life face told four premium "not the that contacted additional them for were to purchase a whole annual they 1986, agreed indicated that testified Buster of in After life the advised insurance event discussing to that by per either the loan requirements with and Equitable amount are of not subject the life lives policies also of new was in but 1986 subject amount and June 1988 the face 1982. were They converted which purchased to are the $100,000 their to assure each policies are However, which of payment Neither claims. life term insuring farm. plaintiffs' whole convertible and Equitable of by of the to also LeSuer secured LeSuer to LeSuer in how many LeSuer that only to Buster are they the of those were subject 1983, 1984, in and he should not or be five that on the worry about premium they policy payments it, and that accumulated made for premium some confusion to had under fourth According there that told were was to payments were from the it testified When the due. that replace up coverage apparently advised 6 also paid 1985. there would was four Premium and 1986, premiums Grace testified earned. could 1950 by converting purchase be paid policy was received contacted that he in coverage. eventually the that had purchased greater policy. which notice Buster be made by them would policy Buster by 1993 dividends advised with told premiums mixup, face policy have about from the policy were that policies 1983 a better the in and Grace converted retirement would issued for him claims. In they policy from claims. the their to purchase claims, policies which later were plaintiffs' for debt agreed insurance policies plaintiffs' insurance their them life 1982 Buster During the of insurance of of term Those $150,000. life subject each a convertible the whole LeSuer, Buster, been that he a computer LeSuer would take care showed of that previous him, it. The next a loan year's similar 1986 and for had been premium. was given In the assurances policies. According would face $150,000 whole policy to Grace Equitable whole life years. policy The Buster Buster third page in Grace testified However, he did them. place not 1986. the that bother they of that that ever after 1986. An $100,000 of were was issued Buster's due policies for thirty due for life. by that they put them in he would that by delivered or suggest to 1983 purchased were terms, on in were said Based the policies he simply and for premiums the had a question that policies page life when the to explain life them life premiums that whole payments. of third whole He to Equitable amount The 1986 indicated She stated and if face indicated and Grace LeSuer in from LeSuer. be self-sustaining whole $100,000 the with premium purchased and in future policy, had increased he told would to years. life policies converted and Grace, the according term alternatives policies pay and subsequent term be to and, 1987 and policy $150,000 $100,000 to make the of the that Buster's Buster in LeSuer during policies the representations, amount read to have was received against discussed three payments not additional by the premium those for and so they that they taken and Grace's suggested notice He recontacted premium Buster's substantially three premium a safe help them with it. The purchased premium Nesses in notices paid premiums 1986 during in 1989, for the whole 1986, 1987, and 1988. they testified that life 7 policies When they they contacted they received LeSuer and received the same assurances that they their previous policies. They testified there had been a mistake, that they it. Finally, that in he would take February their 1990 that again to a gentleman by the any more premiums until satisfaction. They February such 1990 thing as problems with Buster them the policies their to pay him policy taking premiums to they checked, testified LeSuer and that signed her application completed forms he by LeSuer. they bookkeeping never face third year and that the portion of one authorize application forms were Grace testified During in blank discovery, 8 and had with of their they or previously never more that to produced that do filled they of loan" known LeSuer Equitable self- premium ever forms was no was value automatic them. or discussed had not signed their errors. they then pay actually they his to to to which that LeSuer entitled not there that did that that the the talked January against Although testified Buster that after do so. nor than loans application was checked, was of in policy and testified them time Shaffer other they first life advised and were be resolved with payments, were could the whole policies Grace option authorized their three and for against Equitable There and notices taken but that it, received who told questions Equitable after supporting Schaffer told about being Billings. conversations an when they with Brad learned during worry were regarding were LeSuer in their not employment office name of should they to contact from Equitable's that loans tried he had been terminated referred it of indicating they policies, that care had received so. in that were by she later executed forms entitled submitted "policy to owner request Equitable for purpose of policies Nesses' the for payment of premiums However, the request the stopped making premium payments. executed by Blaine executed any such forms nor authorized on their behalf against from without there their would a loan against received time dividends 1. against their after that they requests their insureds for Officials insureds the forms and that to know about year's testified policies the neither the forms execute following assumption premium that every the notice time a loan to pay a premium, it in the so that Grace's were LeSuer due for would be self-sustaining paying premiums by the time of trial a from for the status all of by the Nesses was as follows: life face policy purchased amount in the amount of $4,391, payable premiums the Nesses stopped policies purchased life that which the policies The whole benefit 2. the also the Nesses' and earnings, the policies life of whole life Grace's the were a commission. Because limited until they forms could from have been no way for after even been made. agents authorization The same witnesses was taken were unaware that that a loan LeSuer to execute had ever acknowledged for arrived. they had been authorizing The Nesses testified policies any written request five LeSuer. and that Equitable which for against loans service" pursuant $100,000 of $25,000 which will to that policy Buster in to 9 insure 1982 had be deducted policy. whole life by was cancelled. loans from any 3. with Buster's a face of $50,000, whole life whole of $100,000 Robert had policy 1988 that and testified that which two later because "three it pay" entitled set benefit annual of a whole net life I am changing "x three another pay" "x." language then the returned with premium, net for a on in that January that a week he rejected that it was a a new document 50" which appears cash value, Robert so purchase policy effect life doing Based him which whole life policy term He testified to to his he could term statement you to." Cartwright policy. a policy However, and under his an in 1986, LeSuer about payments. Ness After policy convert by LeSuer that three LeSuer ledger to a loan, Buster 1982. his own whole life to convert include amount of $150,000. "what a face for that in He contacted brought not policy Equitable insurance policy. the and only life "standard forth a face in 1986 with as a requirement insurance he was told LeSuer did purchased that policy. he applied 1988 to a variable or in 1986 with in the amount of $29,888. he had a right required representation, it policy to.purchase to a whole life policy life LeSuer effort in purchased against testified from unsuccessful he learned policy the same term life purchased 1993 was cancelled. Cartwright he purchased in was cancelled. had loans Buster's 5. which was purchased policy, value of $150,000 value life Buster's 4. value whole and net Cartwright in the to death face on the top of the form LeSuer wrote Under the annual the net death testified that 10 benefit loan column he put column he accepted he entered the document as his policy and document placed was given Cartwright the policy to him, to 1990, he contacted he did not the time, Blaine notices premiums, they checked any authorization without it simply the when the the policy Nesses to in their the do notices or they for loans with carrying out the LeSuer Cartwright. first policy that rejection had been testified sold to that However, that terms was which which the the premium paid their he arrange to pay He denied he sent that he forms in that without service requests when the him and ask him when he did Nesses take to pay had been own the agreed to care premiums to at "take of he was the time Nesses. had he presented was health. that he acknowledged he presented 1990 call he testified applying time At his applrcation would However, of they that He agreed it." policies which in first received policies. that so. premiums Therefore, of Nesses and requested against the fall because of arrived policy. the terms three for pay" in the had been terminated. to those of asked premium of by that loans from no other notice him and policy him only premium uninsurable subsequent portions being received is testified by taking that third discuss who advised his contacted premiums that not state payment, Cartwright years to did as a "three third that LeSuer for Ness thing by Equitable present LeSuer than Buster make He stated safe. When the was no such notified care that be paid. have his him. other with there in testified would that it to the a that him, computer 11 similar agreement Cartwright and that printout rejected in response on which with the to the handwritten notations the notations by stating to make more than pay" notation preferred that three Cartwright payments. he sold payments future premiums dividends earned by the policy LeSuer that would the they plaintiffs to a special owed to the interrogatory, defendants punitive damages should actual and Based on its affirmed forth forth at be awarded. punitive damages statutorily discussed. in the context the policy of which its the plaintiffs, amounts fraud. Further of the issues In response the conduct for the facts, raised of an award of punitive jury returned previously stated. the District but a committed MCA, and that review, 12 breached negligently, verdicts, Blaine made negligent predicate damages, that principal, § 27-l-221, in by the parties' also found that factual In premium combination found of actual required the awards of punitive amounts previously set the three raised acted the jury satisfied damages set have to the policies a against as his and were guilty fraud, by when it to the plaintiffs, constructive "three he would after paid issues and Equitable that the benefit. favor duty referred and loans the factual misrepresentations both be from the death agent, and that meant that resolved as the fiduciary that of that and the Nesses as "self-supporting," he explained in about having as "self-supporting." LeSuer repeatedly however, The jury He explained was concerned terminology to Cartwright would be deducted were made. He testified the policy testimony, testimony described was Cartwright's to describe In his which previously reduced Court then them by the as necessary, will by the parties. be ISSUE 1 Were the plaintiffs' claims barred by the applicable statutes of limitations? Buster October and Grace 28, original Nesses' 1991. The amended complaint, claim, Cartwright's was first and Equitable contend judgment, and then plaintiffs' claims They contend to that they a directed of fiduciary duty limitations found three-year plaintiffs' of 1983, to run that that notice their all statutes statute claims accrued, that that policies and in Cartwright's case, March of limitations for unless the date by the nature not have been discovered in this case plaintiffs of any fraud policies on which perpetrated were delivered, all continues the when all of the were delivered elements in fraud of the conduct 1988. fraud is However, are charged as a matter they 13 begins of, to it contend of law with by LeSuer from the dates and no later They alleged complained later. until for occurred when their from claims began to run when the and that statute of argument existed the two-year found statute the claims 1986, existed, to Their the for breach the two-year of limitations of of limitations MCA, applies and fraud. summary of limitations. their two years have occurred could to dismissing and that § 27-2-203, statute first claims plaintiffs' contend entitled to the plaintiffs' causes of action elements 1982, at misrepresentation the LeSuer verdict and negligence, that Robert the three-year MCA, applies on included were which based on the applicable that was filed on November 12, 1991. filed at § 27-2-204(l), negligent complaint than the dates on which on which they received a notice they had been led to believe The District therefore, they Court that received premiums were due in addition they agreed their policies would that tort would have to pay. that plaintiffs causes of The District had an obligation action to read Court their also insurance they they alleged had been made, for fraud also analysis, would complaints were that have expired prior dates However, when the other to fraud held tort Nesses were continuing (1991), 248 Mont. constituting fact in forth Court concluded 1988 and that LeSuer's ever been delivered by this 310, that 316, him. he was not Instead, 14 on which their went not to worry concealment. The to the plaintiffs' by the Court doctrine tort 1279. claims on notice because of in NorthernMontana 811 P.2d 1276, put on to of limitations Cartwright's misrepresentation to by all the statute tolled the claims by LeSuer pertaining was of Court by fraudulent action set The District accrue of statue on which all District told the statute relationship Hospitalv.Knight not that the they received, was tolled causes the if of the District for Court District the part of limitations filed. and that that that to plaintiffs the misrepresentations and therefore, Eased on just about the premium notices pertaining and when they that the statutes plaintiffs conclude held began to run on the dates were delivered. Court's accrued contracts had done so they would have discovered policies were damaged, which were not what they had been led to believe receive. limitations to those of no policy the court concluded did facts had in that Cartwright received, computer generated handwritten denied for District 852 P.2d 533, these reasons, for summary judgment Court's plaintiffs' Section correct, the Cartwright's District Court and the defendants' affirm the result even though (1993), Normanv. CityofWhitefsh for the other the reasons fraud basis regarding if We will by included of arrived at for 258 Mont. 26, for that was filed the jury's conclusion follow on time. verdict, that 30, Since we will or the issues raised limitations that statute of tort the plaintiffs' that claim was not address the by the defendants claims. 27-2-203, MCA, provides applied to that: The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within the cause of action in such case not to be 2 years, deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. Section the 535. alleging a sufficient verdict. decision, We conclude District For a directed the wrong reasons. complaint cancelled motion Court's an ambiguous document which information notations. Equitable's motions at most, 27-2-102, MCA, provides in relevant part that: The period of limitation does not begin on any (3) claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if: (a) the facts constituting the claim are by their nature concealed or self-concealing; or or after the act causing the (b) before, during, injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause. 15 the Reading statute these statutes of limitations fraud occurs are, even after acts which action statute of of "[ulnder facts when the for the conclude that an allegation the injured of fraud defendant party the basis the if that begins We also tolled analysis from were are takes discovering determine The Without question which would toll within the allowable a District Court's 459, 469, issue, then, Carbon 898 P.2d 680, stated when should as a matter the another plaintiffs "self-sustaining" 16 time. directly challenges as a matter by the applicable that the the statute that are barred of of whether contend contend filed was not law." 1200, has been running party are correct. policy of the there Neither they or 773 P.2d of law. whether plaintiffs, start the related 271 Mont. (1995), 203, The defendants We review agreed. that a question Plaintiffs complaints to concealment claims limitations. 198, MCA, whether a question held on appeal. of law plaintiffs' 5 27-2-203, is has been fraudulent is also 237 Mont. sufficient limitations of limitations their for the (19891, so, we impliedly saying Court may be to prevent Hansen 'discovery' this form concealed. form the basis statute 1203, we held that there based on fraud which nature, we conclude he or she has been injured. In Holmanv. a facts by their affirmative that an action the allegation the combination for unless discovered, in statutes of law of their The District conclusions of law to County v. Union Reserve Oil Co. 686. way, is have when did discovered as represented, the that and was there fraudulent concealment from discovering Citing alleged that fact of fraud will In that limitations. during defendants Holman, act by the defendant which prevented the normal contend that of events. failure to discover an postpone not necessarily case we held course them the statute of that: The party asserting fraud is put on inquiry notice of the other party's misdeeds, and must exercise ordinary diligence to discover the facts constituting the fraud. Yellowstone Conference of United Methodist Church v. D.A. Davidson ( 1987) , [228 Mont. 288,] 741 P.2d 794; Gregoryx CityofForsyth (1980), 187 Mont. 132, 609 P.2d 248. Mere ignorance of the facts will not suffice to toll the statute of limitations. "He must show that the acts of fraud were committed under such circumstances that he would not be presumed to have knowledge of them, it being the rule that if he has 'notice or information of circumstances which would put him on inquiry which if followed would lead to knowledge, were presumptively within that the facts his or knowledge, he will be deemed to have actual knowledge of the facts."' (1983), 202 Mont. 227, 232, 657 P.2d 604, 607 (quoting Kerrigan V. O Meara (1924), 71 Mont. 1, 8, 227 P. 819, 822). Mobleyv.Hall Holman , 237 Mont. Defendants at 202, contend 773 P.2d at 1203. that allegedmisrepresentations were delivered provided to indicates were on notice because of language to the Nesses and the computer that substantially plaintiffs Cartwright. premiums The specific were due for in excess of three life years. of LeSuer's in the policies printout language They also contend that that were due in that they assumed were due and that 17 on of from those rely periods statements premiums was or for by the annual indicating which they Nesses were put on notice Equitable that loans they the received addition were being time to charged against not their policies to pay for with the Court's conclusion plaintiffs on notice incorrect. The only notice policies or premiums the that defendants' that due which they had the by the premiums would would after their 1982 and dividends plaintiffs not be paid. jury first he told them paid policy. the three of resolved or policies that them conflict in the that for the sufficient contended premiums loans premiums them earn no future payments LeSuer and that assured five future was how those would payments plaintiffs' There told premiums. dividends the LeSuer a taken that could against testimony in be the favor plaintiffs. If, that as the dividends sufficient years) the after The jury (four to pay future a combination by that that payments policies) and income ever or contradicted true. was over contended three 1983 LeSuer The dispute Plaintiffs years, misconstrues that be due. thirty be their was that information to the were Cartwright years, found placed by either to that District representations provided that the have to the plaintiffs twenty suggest and should alleged misrepresentations which allegation given for alleged contentions LeSuer's be to argument language printout However, LeSuer's policy computer would lifetime. to premiums paid. We disagree of previous to jury found, LeSuer represented and other earnings from pay , we conclude suggest otherwise. premiums that after there In fact, three the 18 three in (or the of the policy years was nothing page to plaintiffs would four policy each policy, or be five language upon which defendants tables five principally listed "do provides the not rely, reflect following specifically dividend credits information OPTIONS. one of CASH: Your you. . PREMIUMS: Your dividends will pay any premium then due. added.) There indicated to the Nesses, be sufficient year of to the pay policy's had they premiums we conclude jury found LeSuer that the they aware of have put them plaintiffs Furthermore, suggested their due due, that limitations would from on not notice Nesses was premiums but that beyond following was tolled the have the that to which third, to helo would dividends have would fourth, or that that misrepresentations made under known language that we conclude policies options: directly policy the has made were facts to the these be used it, after Page dividends: be paid in the read loans." not fifth existence. Therefore, that will was nothing the if any, of our be payable as a year if the policy is duly paid. We do not your policy before the . (Emphasis that share, will You may choose dividends or regarding We will determine your policy's divisible surplus annually. It dividend at the end of each policy then in effect with all premiums expect any dividend to be paid on end of the second policy year. DIVIDEND states in the the they notice that they those they had been receipt of those by LeSuer's 19 were should were false. which should the received led nor which had misrepresented the annually false, policy fact the circumstances representations first LeSuer such were their which to fraudulent terms of indicating believe notices, have the would period concealment be of when he made statements inquiry or disclosed the his to them which acquisition of were planned information misrepresentations which to prevent would have to them. Fraudulent concealment consists of "the employment of planned to prevent artifice, inquiry or escape and mislead or hinder acquisition of investigation, information disclosing a cause of action." E.W. [v. D.C.H., 231 Mont. 4811, 754 P.2d at 821 (quoting Monroev. Harper, 164 Mont. 23, 28, 518 P.2d 788, 790 (1974)). To invoke this conduct by doctrine, plaintiffs must show "affirmative the defendant calculated to obscure the existence of the Holman , 773 P.2d at 1203 (citing cause of action." Yellowstone Conference of United Methodist Church v. D.A. Davidson, Inc. , 22 8 Mont. 288, [2941, 741 P.2d 794, 798 (1987)). (D. Mont. Shupakv.NewYorkLifIns.Co. Citing contend that consist of However, the the facts complained fraudulent to rely cases the facts that would the concealment of acknowledging defendants original relied in this In all case. for defects Under Court, resolution did not occur. defects of cannot fraud or three are cases had discovered circumstances, held that of their those case, in the policy that by performance inadequate those the but were assured In this 20 law, on by the defendants claims District 237, misrepresentation. plaintiffs be cured. on informal 481 P.2d the to their and the Federal elected accused of the Carlsonv.Ray as a matter an defendants, which gave rise defendants concealment, in from on by the Court, 1335. 773 P.2d 1203, 450, reaffirming merely 198, 156 Mont. fraudulent distinguishable 237 Mont. Holman, (1971), GeophysicalDivision facts 780 F. Supp. 1328, Falls Sand and Gravel Co. v. WesternConcrete Co., Inc. ( D . Mont . 19 67 ) , 270 F. Supp. 495, relied 1991), claims this plaintiffs and that LeSuer was not he sold to the plaintiffs He and then was accused plaintiffs' from representing of denying policies making squarely further within Since which for neither led the the in amended nor to fraudulent and policies complaint filed provided in at of first been conclude 27-2-203, since actual LeSuer the the MCA, notices knowledge misrepresented that within facts alleged of the premium had 1991 were 5 aware language, plaintiffs' We therefore conduct LeSuer's the the concealment. were significance their alleged discover policy with the plaintiffs his Cartwright true 1990. limitation of be cured. existed brings of terms the would problem received, Nesses that on defects of discouraging That them based that any purpose Nesses concealed the description the misrepresentations acquired the prior have fraudulently that inquiry. our would that was complaint and two-year period were, therefore, and of timely. ISSUE Did the District evidence that policies to by LeSuer other precluding those During sales the practices Insurance Equitable's discretion against of plaintiffs not, of did the Equitable their learned the were home office Complaints in New York 21 and Court err in which resolved? and pretrial about others its of manner complaints had admitted terms District investigation that it the specific had been made by twenty-seven Commissioner. when misrepresented If evidence course its similarly individuals? claims the abuse had further person's discovery, Court 2 to also been regional LeSuer's the Montana made office to in Fresno, California. he would without four not have applied their other Since L&Suer testified for authorization, customers loans during against the plaintiffs to prove that discovery that a customer's offered policy testimony from he had done so as a routine practice. Audrey Mills all Kaercher, testified by Equitable the that in that that existing obtain greater the in time additional period continued were the being premiums, taken but that cash value from a policy of time. receiving against LeSuer who told care would that their them not to worry the policy four to it be pay they and that the loans with people situation, about to indicating him or Equitable All at new policy LeSuer had never discussed of be self- testified premiumnotices authorized they to loan testified contacted he would take of it. Lyle to premiums which their testified of the value of They also expected existing They all number the payment of premiums. notified issued their by a combination them money for were policies of policies. they when they and Elsie by LeSuer in the 1980s with them and that that had never Berger, insurance and a minimal when they self-supporting they loans use coverage in a short that owned life to them that policy supporting point Richard newer and better LeSuer represented could they they to purchase their Richards, when they were approached suggestion policies Lyle contact Richards and Elsie Equitable's Mills telephone testified number 22 that listed when they on their tried annual premium reach notice, the only person either of them was ever able to was the janitor. The defendants on the grounds Rules 401 Rule 403; qualify objected that and it 402, testimony it complaints lacked 404(b) 249 Mont. of other acts. of these from these four and inadmissible M.R.Evid.; to Rule Siajev. Mutt (1991), evidence was irrelevant and their pursuant to testimony 136, witnesses a district court's pursuant sufficient Court, pursuant to to similarity 52, to established standards 814 P.2d The District four pursuant was prejudicial and the witnesses in for admission however, admitted to Rules 404(b) of the and 406, M.R.Evid. We review whether there 1995), 52 St. Passama (1993), district will rulings has been an abuse of discretion. Rep. 1063, 1065, 261 Mont. court admissible. evidentiary 338, has broad Accordingly, not overturn 905 P.2d at 152, 341, discretion absent the district 52 St. 905 P.2d In re $23,691.00 (Mont. 148, 152 863 P.2d to to determine determine (citing 378, if an abuse of discretion court's determination. 380). M.R.Evid. this All otherwise or other added). except as relevant evidence is admissible, provided by constitution, statute, these rules, rules applicable in the courts of this state. 23 is Court Inre$23,691.00, Rep. at 1065. (emphasis The evidence Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence bearins upon the evidence mav include credibilitv of a witness or hearsay declarant. Rule 401, S&&v. Rule 402, M.R.Evid. Buster they Ness, were Grace told insurance by policies of a against the policy of few benefit bargain. receive notice LeSuer told they could of of policy that request that actually their LeSuer, recollection However, should premiums deal attorneys policy's not part when they did not against the or computer it, and that worry about could and all three Equitable for only for to three be paid policies, and that request that by which because they after a combination of the He against loans additional years plaintiffs against loans requested with additional of that from policies premiums him to who the loans bookkeeping he explained authorizations, calling pay a after that and were testified been they he never he by LeSuer taken earnings, plaintiffs' reducing being life it. cash time of also whole testified effect that be supporting They had purchase period the testified purchase would suggested that to pay testified to care could were that testified dividends, the loans Cartwright which and Grace there have that been Buster take LeSuer would had mistake, he would they premiums. which them programming that annual that and Robert Equitable had never the that LeSuer from payment death Ness, policies when they premium he secure policy. without called him notices, they the to necessary loans were premiums. testified exact for by video conversations the defendants 24 deposition, had no with and Grace Buster refreshed his specific Ness. recollection regarding his company's possession. After showed conversations being loans that the shown premium taken notice, money for the loan which that Buster or have filled out assumed plaintiffs forms the among the of of asked she out by have requested Based to loan did have to filled on it not on have paid show payments that of other approval by that sent LeSuer or by were in pay of he would not which existence, customer the service premiums which did customers a testified testimony, similar customer were him, LeSuer's to payment a loan that records establish him which policy. documents entitled notices and said Ness the based authorizing form. in testified, form been must were or had because LeSuer him Grace service Grace facts policy, her a customer on documents to and against based issued had called premium a loan them notices her Grace When shown premium against that authorizing with automatically for not loans existed against their policies. If notices similar customer service without any LeSuer's forms request were by pertaining to conclude that the the Mills was relevant Rules of Evidence filled them reconstruction out that of Nesses' to events, less Kaercher, and admissible, absent excluding it. and of other do so, based of for customers on behalf LeSuer policies, testimony other those on credible. Richards, some other the similar customers facts made documents Therefore, we Berger, and basis in the The defendants M.R.Evid., was the contend evidence inadmissible that of prior character pursuant acts to Rule 404(b), and representations evidence. Rule by LeSuer 404(b) provides as follows: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, knowledge, plan, identity, or absence or mistake or accident. We have not context of the applied action, however, a civil that previously is not it was misapplied, stated in the considered Rule Rule its context before 404(b). 56, we held acts must not of (4) the probative the danger is alleged the of not other unfair of (3) the the that the satisfied in representations the representations they had existing us. We have criteria must without 136, 142, be similar; other 814 P.2d may be offending (2) acts that the 52, other be admitted provided in Rule act other this alleged rather not be outweighed must 404(b); and by prejudice. contends his certain must purposes value before 249 Mont. in time; permissible not in the contention but can be admitted acts 404(b) defendants' law that (1991), (1) the Rule been applied, is bad acts be remote one have of criminal In statev.hfatt for above not because applicability prior that: LeSuer should or discussed to representations to policies first case these to the of the four criteria because the nature four the witnesses plaintiffs. other four which were 26 of forth LeSuer's was different than He distinguishes witnesses being set used on the basis to partially that fund premiums for new distinction conduct which four witnesses claimed purchase a better that the policies few years policy would funds. contacted for owe no When instead LeSuer should of they received In all described and identical to those which to the which that of the which acts complained complained plan they for conduct a own of additional they were a mistake, loans they Therefore, complained conclude that occurred during of of their the were conduct that the plaintiffs' about which these time were probative policies not afford they sufficiently the approximate they and further 27 were the acts by selling could had of we conclude subject the were they against and the pattern were to them, their the misrepresentations of by the plaintiffs; explained after pay premiums testified to earn commissions from them and that witnesses would have known they been honestly to with misrepresentations four they the policies, notices loans respects, pattern We furthermore witnesses LeSuer's the told and that notices to LeSuer to apply significant those complaint. four is he would take care of the problem. of by the plaintiffs. to similar to prove number of premiums, against the to them or discussed policies. acts the were premiums them that testified authorization complained they a minimal further and that witnesses explained not given who told be ignored, the never that was offered that premiums which were being paid by loans All conclude would become self-supporting, they personal they we the testimony All same. could However, is insignificant. The basic the policies. of of to customers had the policies probative of the fact that the result problems complained of a mistake we conclude by the or miscommunication that substantially of the probative outweighed therefore, that Rule 404(b), on LeSuer's value of danger the testimony District Court examination handled part. the of unfair not the Finally, offered evidence prejudice, that were not allowed and for the stated of this allowed which LeSuer information to explore claims purpose plaintiffs impeach conduct. conduct the on resolved. cross- defendants details of cross-examination other LeSuer They all However, specific of avoiding complains completely LeSuer's that in four each to that trials within the testimony The defendants was brought the problems was left he should however, that was resolved corroborate by were entitled with have been were resolved 28 the However, manner irrelevant. LeSuer's it and pattern of when LeSuer's took measures the particular had no bearing in The own testimony to show that attention, he created. is their establishing to Equitable's that jury the manner in which each of the four claims to the fairness, We conclude, were entitled cure the problems in which the limited and that was resolved. each of ask case. On appeal, incomplete explore Court the about the way in which had been resolved. to further to to had been satisfactorily claims pursuant was admitted, witnesses counsel complaints The District resolution. trial their admissible four defendants' their policies answered was of these allowed whether their extent evidence were M.R.Evid. After the the plaintiffs to manner on any issue in this Therefore, case. abuse four its we conclude discretion witnesses in by the that limiting manner the supported jury's finding by substantial Defendant LeSuer evidence to the did cross-examination of not these that 3 the defendants committed fraud argues a jury's on appeal is substantial Hoganv. the findings in record FIatheadHealthCtu.,Inc. As we stated 520, 525, 52 St. verdict factual evidence 337. jury's that there was insufficient plaintiffs We review Court evidence? sustain defrauded District described. ISSUE Was the the the (19921, 255 that to determine to Mont. in Cechovicv.Hardin&Associates Rep. 854, the support 388, defendants whether those 390, (Mont. there findings. 842 P.2d 1995), 335, 902 P.2d 848: This Court's role is not to agree or disagree with a jury's verdict. Once we conclude that substantial evidence supports the verdict, our inquiry is complete. Substantial evidence has been defined as evidence a reasonable mind might accept as true and can be based on When we determine whether weak and conflicting evidence. substantial evidence supports the jury's verdict, we review the evidence in a light most favorable to the If the evidence at the party who prevailed at trial. the jury's role is to determine the trial conflicts, weight and credibility of the evidence. (Citations omitted.) We have necessary to The nine 1. previously held establish the elements of that in a civil following fraud are: A representation; 29 nine action elements: for fraud it is 2. Falsity 3. Materiality 4. The speaker's representation 5. The speaker's intent be relied upon; 6. The hearer's representation; 7. The hearer's reliance 8. The hearer's right 9. injury Consequent and proximate reliance on the representation. NorthwestTruck& of the of 262 (quoting P.2d 292, jury representation; that the the on the to rely of representation of ignorance the shall falsity of the representation; upon (1994), Dvorak falsity truth; the representation; caused by 150, 154, 887 P.2d 490, 496, 269 Mont. plaintiffs properly was What were policies he does provided which plaintiffs to to not misrepresentations three, four, or stated in the case sold by would was not LeSuer, have five or is number of about to be paid. because of would payments. policies in were those due, alleged be self-supporting after of premiums 30 claim LeSuer's number The dispute the which However, of not language on 1, we repeat length of premiums Issue the does 788 that elements LeSuer relying the policies the that the and the in premium about fraud. plaintiffs, the discussion this establish justified that our on contend indicated were 241 Mont. instructed I7Bar, had to prove otherwise. which Wibergv. Inc. (1990), the 295). The the knowledge of the or ignorance of its TrailerSalesv. 260, representation; time was whether for that the due for over the dispute the which LeSuer reasons in policies premiums represented that premiums after the few would be paid by dividends whether he advised plaintiffs that policy earnings, future premiums would have to be paid by them personally loans taken against was nothing in plaintiffs about or first the policy one way or the policy a matter other. reasons, evidence for fraud. defendants Cartwright, in support there plaintiffs as representations. of Buster we conclude affirm the was nothing that the jury's Ness, there of each of the elements We therefore committed Therefore, on LeSuer's there have informed and based on the testimony and Robert substantial would noted, which would have precluded of law from relying Ness, claim the which fact or paid by As we have previously language language For these Grace the policy. in and was of a civil verdict that the supported by fraud. ISSUE 4 Was the substantial jury's to sustain actual damages that there was insufficient that the plaintiffs LeSuer contends the jury's damage as a result a jury's to evidence. of Leev.Kane policies that limited and LeSuer's determine alleged to they that as whether (1995), LeSuer contends afford verdict damage award liability, could of evidence? Defendant review award that is 270 Mont. continue making in 1982, that the thing 31 they actual 893 P.2d 854, 857. nor the Nesses payments have of by substantial Cartwright their We determination supported premium purchased only its 505, 510, because neither incurred misrepresentations. we do it evidence on options lost the term were very based on any misrepresentation made by him made toward were the whole life policies of the record damage awards were Minnick is the premium to payments which their that term they policies converted. Our review compensatory Minnick. Mr. Mutual Life in and had purchases from Equitable Minnick based face his value after damages $150,000 policy two what premium and he is premium of coverage Cartwright's term life plaintiffs' three payments that Equitable damage whole premium is the loss his health Cartwright to plaintiffs' on opinions their regarding damages life coverage payments that only to pay provide, he That Grace purchased Cartwright life After agreed policy deducting from the amount calculated was the amount not and his is and age. a that he had he has no whole $144,025. fact payments, not were with and the making that but fifteen based he discovered coverage, for Cartwright's stopped agreed Northwestern business Darby sustained. that payments with following purchase due to the jury's of reviewing He testified uninsurable the the he had purchased, his in the testimony agent economic opinion to for was terminated. now without the the agreement of making received that that on the after and gave expressed upon been suffered they of has opinion that extent based insurance the policies the establishes a life Bozeman He expressed years. the are that awarded by jury. He testified amount of $25,000 should have provided that in Ness 1982 and that coverage as of April worth 32 $27,114, coverage 13, but in 1994, that the the loans face policy against that policy reduced her damage her related to also testified that there would the currently premiums from benefit not point testified purchased been in the much coverage for a person of her was self-supporting, Grace Ness in Minnick amount life $29,888 policy coverage told amount testified of which he would but to has and premiums, without the to policy purchased amount of coverage $57,166 loans of $50,000 for that in to and $81,848, life pay policy 18, 1994, buying of that premiums rate of until the return, was damage trial, loans Buster's to or the extent price he had been of with would have in failure coverage back to 1983 to pay represented premiums, would cost Buster's the depending 33 be paid the future $100,000 whole life a policy at to he purchased for of whole provide payments cancelled the would have which in $150,000 which premium replace represented of would policy payment 1986 cost to him at the worth for time a policy terminated necessity to compensatory against those provide the of the taken pay, the He added $34,313. at purchase $10,632 been policy, on November on a given had been represented To replace which between to have He $44,738. had been and an additional be made. of whole age and paying a verdict that and that that accumulated $100,000 and that based returned the against 1986 was terminated premium jury taken that was $4,391. dividends that pay the The He stated forward. to $40,384. $22,723. therefore, be sufficient failure policy to 1982 policy, loans also Grace due to had this Minnick which death that cost would provide the represented, would cost on the rate of return that the policy earned. The jury returned a verdict for Buster in the amount of $144,025. We conclude there that based was substantial on the evidence testimony to support of Darby the jury's Minnick, compensatory damage award. ISSUE 5 Did the District instruct light the of jury their Court abuse its that plaintiffs failure to discretion could examine when it not the recover refused to fraud in for insurance policies they purchased? Defendant "A person who fails form before rejected LeSuer's it applications the that LightjTeld (19891, his is that the instructions it will absent jury instructions 527, was instruction was supported claimed that filled by our decision they by signed in by LeSuer and in MontanaBankv. 41, 771 P.2d 571. a district gives 52 St. court or refuses court an abuse of discretion. 902 P.2d 520, a written That instruction which were later a district not reverse to examine fraud." plaintiffs justified 237 Mont. We have held the opportunity proposed the insurance instruction No. I7 was as follows: Court. because for Instruction cannot claim by the District evidence that to take executing LeSuer claims the proposed to give on the basis regarding to a jury and that of its we instructions Cechovic v. Hardin & Assoc. (Mont . I9 95 ) , Rep. 854, were properly has discretion given 34 860. When we examine or refused, whether we consider the instructions in their other instructions Bozeman (1993), LeSuer's portion as well and the 259 Mont. our incomplete which given proposed of entirety, 207, discussion and taken the instruction No. in out evidence 222, Instruction of as in connection 856 P.2d 211. While paraphrased a instruction The entire context. is 202, the Bank, the Story v. City of 17 accurately Montana was drafted at trial. with was paragraph from as follows: Typically, a person who fails to take the opportunity to examine a written form before executing it cannot claim fraud. Jenkinsv.Hillard (1982)) 199 Mont. 1, 6, Hjermstadv. Bark&o (1954), 128 Mont. 88, 647 P.2d 354, 357; 270 P.2d 1112, 1117. As noted by the Bank, however, 98, a person may claim fraud to a document he signs "where he is prevented from reading it or having it read to him by some fraud, trick, artifice, or devise by the other 17 Am. Jur. 2d Contracts § 152 (1964). party." 237 Mont. MontanaBank, In this Buster case, asked to sign that as they by instruction the instructed they obligation the other representations Nesses. insurance jury they If obligation should did not apply party, the where, did not also when the appeared on was the documents were testimony the jury given, statement of the to be the documents have been instructed have an opportunity the was going to examine because of artifice 35 were The inference by LeSuer was an incomplete have been misleading. the which to Equitable. on they at a time or requests Based on the plaintiffs' signed, for that was added by LeSuer after proposed law and would forms were submitted the information executed 771 P.2d at 576. and Grace Ness testified application forms did not include the forms at 47-48, that on the part to observe the of the objectionable that part the of the District therefore, did Instruction No. Court not For document. did err not when abuse it substantial against each 27-l-220, MCA, for sake of punishing awards of punitive defendant The been has LeSuer's support an award and proposed same statute to of punitive defendant? to compensatory limits discretion, 6 evidence addition the its we conclude 17. Was there Section reasons, refused ISSUE damages these found defines provides damages, that be awarded may a defendant. damages to guilty of actual punitive by a judge Section those actual malice damages, fraud or jury 27-l-221, situations or in actual in MCA, which malice. as follows: A defendant is guilty of actual malice if he (2) has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and: (a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or (b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff. Section 27-1-221, Section support MCA. 27-l-221, an award of MCA, punitive defines damages the type of fraud which as follows: A defendant is guilty of actual fraud if he: makes a representation with knowledge of its falsity; or conceals a material fact with the purpose of (b) depriving the plaintiff of property or legal rights or otherwise causing injury. Actual fraud exists only when the plaintiff has (4) a right to rely upon the representation of the defendant and suffers injury as a result of that reliance. (3) (a) 36 wi ,ll a Subparagraph elements of a claim and convincing as "more support those the burden. Rep. 930, In 935-36. criminal be proven However, we have damages where by something clear evidence than beyond a upheld those 149. jury verdicts to terminate and convincing standard 869 P.2d 266, parental evidence, of 268; review. InreF.M must is specific 541, whether to 52 St. actions should credible evidence. awarded supported by 54, 64, which we have also See, e.g., In reSC. substantial 431, reviewed be punitive 878 P.2d 260 Mont. when we have be proven 532, which Co. (1993), 37 the evidence 266 Mont. (19911, to review convincing rights, 337. by a preponderance substantial (1994), at analyzed were to applied 902 P.2d verdicts civil 842 P.2d guilt of previously than Furthermore, where in evidence 390, satisfied 1995), and findings normally standard clear Deesv. AmericanNat lFireIns. evidence 28, not more Kingv.Zimmerman evidence. 141, is cases, our at is of proof We have by clear less substantial 255 Mont. however, doubt, reviewed 901-02; was SeeStatev. Gould (Mont. must decisions but all by be proven a jury's there Hogan, burden a reasonable that P.2d that and convincing evidence we review review, evidence. which provides must clear of whether of where beyond MCA, damages and defines findings. standard the punitive previously, determine situation of 27-l-221, a preponderance stated to That for 5 doubt." As cases of evidence than reasonable (5) 895, 444, district 861 court must also be based applied the substantial (1994) , 264 Mont. 248 Mont. 358, 363, on 24, 811 P.2d 1263, 1266. determine We therefore whether determination review there was the jury's verdict that plaintiffs were instructed on the to support entitled was this evidence substantial in law to case recover to its punitive damages. The jury neither defendant was instructed objects on that responded jury in interrogatory each reasons, that of the have contends admitted claim for there punitive therefore, the convincing. LeSuer, three insurance them advise as was offered against on appeal, evidence to review that from premium people support the for support record, they plaintiffs' since testimony, not and clear and we disagree. testimony them they that the and that would funds he described He agreed 38 the plaintiffs' personal notices of was the that than credibility, the he told not other their LeSuer of should plaintiffs' about their He agreed Court own testimony; against He agreed the the special District in in raised "self-supporting." of jury by contend by corroborated policies. him the was their on our premiums the be awarded should complaints evidence himself, many particulars. pay of damages Based asked was insufficient because evidence doubt in which and instructions, when defendants inconsistencies were substantial to that only manner damages verdict. evidence the plaintiffs, there punitive on those damages both jury's the Based punitive that to affirmative However, different LeSuer subject. the whether defendant. part on appeal of for whole the have policies when they had received, only in called he told life to him to them he would the take care plaintiffs only supporting" care care of of did not their that premiums as to other them to testified that had not expected notices Gunning sold 1978, agency and has been since 1986. responsible 1990, that Wyoming and complaints misrepresenting course same the agency Montana that the of his assumed as well. LeSuer the entire actual had cost their of of state sold that life of those investigation policies to them Great in agency he Falls Billings Equitable's Denver in 1986 it However, in states of the began insurance of those 39 in for time, notices error. Colorado. responsibility These conveyed Denver of obtain premium same company for he policies. Equitable the not LeSuer not a clerical manager At did the over does when for for office and clearly result the "self-supporting" complained insurance When he took for as LeSuer He worked take opinion, that premiums when they life he would evidence, money against the the he would this testified future were 1976. in substantial to pay, them a Equitable. he described pay against was that previously to borrow premium until from individuals which loans 1969 until In the loans loans when he told understanding although Lyn was the that discussed the from by respect discuss they paid and authorization which be earnings, Four same people "self- policy testimony, policies him the alone. sold to dividends, further from that would Furthermore, stand differs testified premiums by obtaining plaintiffs' he testimony future the them LeSuer's that of and in take problem. because meant combination policy, of the to his complaints, reviewing policies customers. he prepared by a number of memos February 24, 1992, referred to (another Great "they Don setting related Blumer Falls his to are all part (LeSuer's of he that referred findings. was by former a a note Janet series of Joe LeSuer Montana." dated Breedan, supervisor), and Blaine mess up in to In a complaint salesperson), mess the forth by he Wanago stating, He explained complaints that involving LeSuer. In Lloyd a July 26, Kaercher, complaints after about correspondence Blaine LeSuer testified complaint had been involved for several months to another policy claims that he developed that any evidence he had received to suggest complaints LeSuer's that filed holder by number in a high he stated, worry opinion it that value LeSuer of there against because of "attached being he life would is raped by would in the he have refuting that concluded that loans notified to care in did for a regular insurance of He testified he take any Neither unauthorized were investigations refute was any basis Nesses. to take of his LeSuer. LeSuer had engaged people's which about and when they policies, about the course and the common practice holders during no evidence made by Cartwright reviewing life LeSuer the LeSuer." complaints the memo regarding Gunning relating Gunning of 1990, against order it. It to was policy them practice after it tell of the not was to his of destroying sell them more insurance. We fraudulent conclude that and malicious the conduct evidence within 40 that the LeSuer meaning engaged of § 27-1-221, in MCA, was evidence supported was effect is clear undisputed based rules not a evidence The proof in jury's and that verdict the to that is liable for contends that the dishonestly, and that case, of in this it is not it agent who broke as a matter vicariously the of law, liable for conduct. the damages proven It was a rogue that (Second) that basis. on his argues finding LeSuer this based jury's different was that punitive Restatement the by acting Equitable of on evidence damages award credible convincing. challenges on the punitive were and damages company's substantial affirmed. Equitable punitive by circumstances against Torts a principle 5 909, case. which are and that Section will those 909 provides support an forth in set circumstances as follows: Punitive damages can properly be awarded against a master or other principle because of an act by an agent if, but only if, (a) The principle or a managerial agent authorized the doing and the manner of the act, or (b) The agent was unfit and the principle or a managerial agent was reckless in employing or retaining him, or (c) The agent was employed in a managerial capacity and was acting in the scope of employment, or (d) The principle or a managerial agent of the principle ratified or approved the act. Restatement With which in (Second) the to opinion that 5 909 of increased the burden 5 is the that objected Torts exception fact instructed of this 909 a minor does change on the law in to or does 41 not subparagraph plaintiff, Montana. Therefore, instruction. § 909 (1979). state the cd), jury Neither while we the law party express in was no Montana regarding the liability on the acts the evidence country, four included insurance for Billings, but his various district manager testified that complained the Falls against office their Fresno to resolve Wanago explained that policies Blumer, were purchasing without the their new district 1961 to from 1962 until manager in Falls. broker He was the about position about located insurance 1987. 1975. He in 1975 after he exploitation the LeSuer's about inquire He testified it, of customers why they that they disagreed had calling the loans taken when he advised with them He recalled regional to Equitable's him. office in problems. that LeSuer was misleading they from to ten such people their in own business. they must have authorized five in Great he is a retired the managerial policies. referring an agency office he recalled to home When LeSuer began selling to mind his that a geographical was located Falls new office of a smaller that Great consisted covering Equitable and was told He testified Great in relates locations office he resigned to customers for as it at various he worked for district policies damages based offices districts. Joseph Wanago testified who sold structure offices Equitable, punitive to the jury. regional and agency which review administrative in New York, areas we will was given Equitable's the for of an agent, to the law as it office of a principle and when he first customers then became alerted about borrowing authorization, manager, 42 the nature money he reported who told to the fact of coverage their against the fact him to mind to Don his own business. Eventually agency manager telling him theory by in it as they sales practices Billings, they actually became worthless, like the was value served on that handled with of additional similar LeSuer the approval were of those telling when against what in people they which the and that in addition to regional were eventually new policy the to the regional which process agents that relations in who Fresno, officials beginning department about their he and to first received the complaints 1985 she testified and that of in 1986, he also two 43 1975 she worked in New York which where She investigated complaints this case about in and a final no disciplinary any of in complaints. committee as a result customers company. testified in the office She to complaints However, that He described policy resolution complaints. were existing policy, customers sales nothing money the customer a him, commissions. Ann Matthew corresponded an complaints Equitable's against for to presidents Carol 1990. agents that referred which and other testified different beware." LeSuer made huge made "buyer the mad at explaining tacit of LeSuer personally getting and Blumer's tapping Wanago for and or borrowing personally by business, was to Bud Partridge, and unethical." life doing diminished his operated that buy problem insurance "wrong could of practices He explained the who responded was none which LeSuer's he reported these 1984, complaints. also and LeSuer handled complaint action she in was taken Ken Tarrant testified regional office Fresno responsibilities, By LeSuer involved nothing in the that an without time would until the John Doherty in in who not 1979. owned concluded out or written year's premium appointed was not notice worth feasible of for was informed policy that during case that occurred a loan manager for was made the Wyoming to his was added policy life the there was received. Montana had 22,000 this them customer their and in notice agency for Equitable $400,000,000 it of of which against his filed the involved insureds loans complained Responsibility time the be provided was signed the sales complaints authorization, even Although 1985. take the to and each LeSuer during to conduct following agency that twenty at Among related policies, which could the customers for provided approval that least manager 1990. complaints against loan policies agent their at staff in customer loans He admitted the Equitable were involving form. them there an unauthorized request the then he became for he handled practices. against that duties holders in insurance, state to the have its Montana company own agency manager. Doherty from but testified Montana, he did he was aware LeSuer advised until they the not from was selling of that because have the complaints were brought frequent agency's "leveraged of the policies." to his attorneys. 44 he was located communication records made against distance that attention LeSuer, 1985 to 1987 he had not been from However, LeSuer with with by other the offices plaintiffs' He stated not that because of "fraudulent." of LeSuer sales LeSuer practices was Equitable were nothing to avoiding this which was finally additional aware in Doherty terminated prevent evidence of LeSuer's them repetition, 1989, but described by Equitable that as for lack agents managerial dishonest from being we will for not sales practices, repeated. but did In interest of of all the the evidence in set forth is sufficient evidence the evidence in opinion. In determining jury's also whether verdict, favorable to we the entitled there review party any to which reasonable the facts which 824 P.2d 1013, 1015; 493, 504, prevailed. are proven. the 649 P.2d evidence clear both and that has convincing by which unethical, and his reported repeatedly of by the company. LeSuer's described, and LeSuer, officers Applying evidence (b) by that can Silvisv. Hobbs (1992), been (d) his that described it or of those his 45 in own as and reports, agents Mont. there find to was that this case. coworkers fraudulent, to 411, review could proven can be inferred managerial of that a jury by 199 is from 407, (1982) , standard personnel supervisors In spite be drawn we conclude which most party 251 Mont. 5 909 were managerial Furthermore, supervisors of was to Equitable. from light The prevailing inference 1325. to support the see Jacques V. Montana Nat 1 Guard 1319, subparagraphs Conduct that as an agent production. There a was terminated high as was executive he was retained from the approved testimony of his conduct. LeSuer Blumer, Blumer such similar not on He also 'em." sales to practice of policies and when he was supervised worry about financing money when agent, Finally, new policies about that by another it. borrowing remarks testified practices by Equitable criticized that made disparaging dishonest Blumer himself frequently "piss as testified he on behalf officials of he reported he was told by that of the in Billings, customers, testified by a combination by his dumping client was Cheyenne, old never Fresno, or New York. For these plaintiffs reasons, were and Equitable that the that effect entitled was evidence is conclude we to recover supported by was clear the substantial LeSuer evidence The jury's and verdict to the entry to the degree damages their awarded contributory court to damage which in favor of to amend the to awards the the found plaintiffs, judgment the plaintiffs by That fault. jury be reduced that negligent? of judgment moved the actual 7 compensatory was contributorily and Equitable that against credible and convincing. plaintiffs' equal plaintiff After damages evidence affirmed. by a percentage each the punitive ISSUE Should that the motion was denied LeSuer by reducing the percentages of by the District Court. As should authority be reduced for their by the contention percentage 46 that of plaintiffs' their damages contributory negligence, the defendants rely on § 27-l-702, MCA, which provides as follows: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for neqliqence resulting in death or injury to person or property if such negligence was not greater than the neslisence of the person or the combined negligence of all persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. (Emphasis added.) plaintiffs The authorizes respond reduction negligence only to of the damage extent also all of defendants' fraud, pursuant there defendants negligence based the defendants' that decisions of for negligence reducing in Martelv. 140, Drilcon, reasons, defendants (1987), are inapplicable Evans, uninhabitable the home as a that 47 their of the pursuant by the recovery plaintiffs' 166, conduct to Mont. 231 the alleged result case, our 96, cases prior 752 P.2d 749 P.2d 1058, 363, 736 P.2d 472. to the facts plaintiffs in this fraudulent 230 Mont. 226 Mont. we conclude is caused that (1988), (1988), contributory statute. recovery Power Co. Inc. v.RoilEnergyCorp. and Evansv.TeakettleReaI~ following Montana clearly liability since, reducing however, their on independently no basis contend, that can be compared to the defendants' purposes In is MCA, 27-l-702, awards damages were to the comparative The for actual § They contend based on negligence. their that relied For the on by the established in this that purchased the they defendant case. realtor's an negligence (55 and violation 30-14-101 a jury Protection Act, negligence found that did not specify the violation parties' the was fifty at 364-65, the of Consumer damages by contended that negligence P.2d of at on the reducing 473. way for us awarded for Act negligence, 226 Mont. noted the have that special been their but were at jury, than on the amount of the record, 366, the P.2d instructions verdict, retried. 736 action. at 226 Mont. the plaintiffs compared for their violation for at 736 365, that based violation the damages verdict of recoverable there total the was no damages based were on the district court. Evans, dissent, Justice Sheehy the so confusing, Evans, of In to were 48 it the the 473-74. given the Therefore, we affirmed to reduction we noted the to opposed 226 Mont. jury's what were The verdict Act damages different of as court, based cause 473. on was attributable when that each of at Evans, based damages allowed determine to at fault Protection district to the Consumer Act, erred recovery. the the On appeal Consumer given Protection for inadequacy court In affirming instructions Consumer district violated Protection percent. to the defendant's purposes the fifty damages. damages court the own 736 P.2d The district that plaintiffs' those Act their percent the Protection alleged defendant that amount negligence. plaintiffs' caused and what of defendant each party 226 Mont. Evans, Consumer The that principles, $26,000. Montana negligence contributory trial, the MCA). -142, plaintiffs' After of jury, as that at the 367, 736 P.2d interpreted entire case at 474. by should has Evans plaintiffs in causes of no application this case action of court to reduce which damages to the the could intentional conduct. was whether a jury defendant's of the fraudulent was defendant defendant Since there reversal Mont. the was not based at issue 173, 749 raised In Martel, electrocuted on the P.2d by the at that the as jury unduly the jury to form of clearly in held special of found the that plaintiff that the verdict. was no cause verdict Drilcon cause and the there by third parties' actually the consider confusing third we or on appeal conduct negligent court's defendants form. Drilcon for , has no relevance 23 0 to on appeal. the plaintiff suffered permanent after in proximity coming defendant and superseding we concluded 1062. about fraudulent the was by the district district contributory defendant's negligent, was no prejudice, the each negligence, as fraudulent percent prejudiced for a plaintiff's allowed since contributorily independent on confusion by the was an intervening was ninety-five The same for defendant's contention However, the based liability, defendant's percent a which as well apportioned damages. five raised form on five necessary whether to verdict case. conduct. The issue conduct plaintiff's the it the compared negligence, when light to this was damages was not be based was not fraudulent issue negligence parties it attributable the in instruction defendant's III Drilcon, the damage plaintiffs' were facts damages and the action. the recovered Therefore, cause opposed to close 49 injuries to the when he was defendant's electric at power transmission He alleged, 142. proven willful which and and to court negligent conduct the wanton contributed district line. apportioning the cause the the willful the decisions and wanton plaintiff Montana and P.2d 142-43. at reversed that We held part conduct the enactment rule. the of the the purposes of contended not the that be compared rule comparative relied to on by negligence 231 Mont. Martel, defendant plaintiff's the plaintiff that he had However, for could 752 P.2d that of compare We noted the 98, injuries. negligence misconduct. preceded the to jury at concluded, his On appeal, prior on our on of Mont. 231 court defendant's liability. based trial conduct allowed to Martel, in 99-100, 752 at that: [~I11 forms of conduct amounting to negligence in any form including but not limited to ordinary negligence, willful negligence, wanton misconduct, gross negligence, reckless conduct, and heedless conduct, are to be compared with any conduct that falls short of conduct intended to cause injury or damase. 231 Mont. Ma&l, As is that evident 100, which plaintiff's they of causing finding, was intended find the jury and based on added). of Martel, we did be compared to cause harm for to purposes § 27-l-702, plaintiffs were were Therefore, 50 by a MCA. on instructions plain hold of reducing that plaintiff. not conduct to found based the (emphasis could misrepresentations damage to the 143 portion pursuant damages that at quoted negligence case, punitive first the recovery In this recover 752 P.2d from a plaintiff's defendant the at language entitled to which required made for the purpose based on the jury's of the that comparative negligence statute conclude that negligence the and our the defendants' to which purpose of application the of that fraudulent plaintiffs' diminishing statute conduct negligence the in Martel, is not we a form of can be compared plaintiffs' recovery of for actual damages. For these denying the the reasons, we defendants' affirm the to amend motion Did the District made pursuant to Although determined and Court § 27-l-221, judgment in order favor of for of fact the jury has the the the district court the punitive damage review, criteria, to increase be supported which fact by the are which are on this in to damages this case of findings the jury statutorily prescribed by substantial inconsistent with 51 (c), applied to those or affirm unlimited. its has the broad If decision criteria, findings first Following not evidence, jury, damages, court verdict, be MCA, review district is the punitive decrease, the discretion in criteria. as may increase, first was the for, on specified its must § 27-l-221(7) or decrease not punitive damages amount process, its supported of responsibility based court However, discretion. award which pursuant based In its appropriate award district verdict. decides must, and the jury's by punitive trier determining 8 MCA? liability although that err by the instance, of its Court's plaintiffs. ISSUE fact District it must by findings and by findings that are implicit of in the jury's Mont. 294, verdict. 300, We will Production 880 P.Zd review 5 27-I-221, Credit Association 1287), to will review the the jury's affirm whether the of by the process of his financial on our we recently _ P.2d that _, _, out clearly 82 0 P .2d erroneous. We reduce, increase, to or determine See Dees v. American 861 P.2d that it to Interstate damages 141, the awarded that that 152. District Court pursuant to its was none, complaint 78, In Gurnseyv.ConklinCo.,Inc. (1988), 151, 158, we stated a plaintiff proof that a defendant's net 52 discretion by MCA, be considered he produced Rep. (a), there Maurerv. its assessed there LeSuer's St. amount and that However, in abused 5 27-l-221(7) damages out Court condition because 53 District aside holdings, pointed 449, in 3 23, discretion. damages the condition. previous 266 review. financial condition forth 3 2 0, to on appeal of punitive of punitive financial its 431, contend He points amount ( 19 94 ) , made pursuant set punitive abused setting a defendant's are decision Mont. 260 test they regarding court contends him. at the whether findings 25 0 Mont. ( 19 91) , court's statutory completely against three-part parties amount LeSuer by not on the verdict Nat l Ins. Co. 822. court's district the v. Guarantee district determine (1993), All 819, v. DeSaye district Nat lFireImCo. that the MCA, based 1285, erred See DeBruycker the jury requires when arriving was no evidence no evidence of and therefore, is Clausen Distributing without Co. his based merit. (Mont. of As 1996), 80: 230 Mont. 42, 55, 751 P.2d is not required to show worth supports an award of punitive damages. If the defendant's net worth does not support an award of punitive damages, the defendant must produce evidence to that fact. Gurnsey , 751 P.2d at 158. Tucker [defendant] should not gain an advantage from failing to produce evidence of his net worth. Accordingly, there was no evidence that Tucker's net worth could not support a punitive damage award of the District Court erred in vacating the $75,000, and so, jury's award of punitive damages against Tucker. For vacate these the reasons, punitive Equitable against it aside the The jury our decision P.2d the Court's to LeSuer. punitive have refusal damage been award further assessed reduced or set reasons: verdict to District against should jury following on appeal the award that the 1. based damage contends by for we affirm local was a result bias of and should passion be set aside pursuant 2. The Co. Y. Ellinghouse District § 27-l-221(7), MCA, court either 's 223 Mont. to 217. Safeco Insurance (1986), and prejudice findings favored made Equitable 239, 725 pursuant or were to clearly erroneous. BY cross-appeal decision in its Equitable, net worth, on passion for district that of the and LeSuer's there contend court jury; is that not and that failure was no evidence to that the free based produce jury's pursuant to our substitute on the any evidence verdict to net worth of his was based and prejudice. Resolution plaintiffs plaintiffs the DeBruycker judgment of the is of more the raised issues problematic than 53 by the issue Equitable raised and the by LeSuer and requires scrutiny criteria the of District statute. The 221(7) (b) (i)-(ix), regarding the each Court following are MCA, as it District and applied Court's findings was required the to criteria a summary to each in consider set of forth the court's light of pursuant at § 27-P findings defendant: (i, The nature and reprehensibility of the defendanis wrongdoing. LeSuer IV. The nature of LeSuer's wrong Was that he deliberately deceived plaintiffs and others concerning the policies they had purchased in order to secure their He wrongly advised these, business and earn commissions. concerning the manner of and other insurance clients, which resulted in loans payment of policy premiums, reduced the amount of insurance, against the policies, and in some instances terminated coverage. He acted He first gained the trust of purposely and knowingly. his clients, and then defrauded them. The nature and reprehensibility of LeSuer's acts iustifv the amount of punitive damaces awarded aqainst him. Ecruitable V. Equitable hired LeSuer to sell its policies. LeSuer was assigned to another agent for training. The evidence showed that the training agent was engaged in highly questionable practices, andwas essentiallyunsupervised. . . VI. . . When another agent, with more seniority, and whose integrity was proven, complained about LeSuer's treatment of customers, such complaint was ignored. . VII. Equitable had notice that something was amiss. At least five times before he left the company complaints were received from customers. NO actions were taken to prevent serious harm to insureds, or to find out if other irregularities existed. 54 the to VIII. Even after Equitable had more than adequate notice of the problems with LeSuer, nothing was done. . . Even though the amount of business Equitable conducted in Montana was substantial, policies here were a very small percentage of the total business, and the territory was substantially ignored by management. IX. . [Its] policy of urging customers to trust and rely on agents, combined with lack of supervision of the and failure to make any serious attempt at agents, investigation of known complaints, is truly reprehensible conduct. Such conduct, in conjunction with the remaininq facts found bv the Court, iustifies the amount of punitive damacres awarded bv the iurv. (Emphasis added.) (ii) The extent of the defendants wrongdoing. LeSuer X. LeSuer not only others, as evidenced have come to light. did, or was willing LeSuer's wrongdoing his service area. defrauded plaintiffs here, but many by the number of complaints that It is very probable that he either to, lie to all of his customers. was as widespread and extensive as Equitable XI. apparent that Equitable handled . . It is also complaints from insureds all over the United States in its New York office. These complaints were not looked at with protection of an insured in mind, but rather from the standpoint of how to protect the company. The evidence at trial was clear and convincing that while Equitable courted the public by posing as a caring, even paternal, company, it put its own interests above the interests of its insureds. that it would be next to The Court recognizes to examine the impossible for these, or any, plaintiffs records of a substantial portion of Equitable's thousands 55 of agents to find such fraud. such evidence the culpability mitigated. HOWeVer, with of Equitable the lack of is somewhat (iii) The intent of the defendants in committing the wrong. LeSuer XII. LeSuer's intent in committing the wrong was not directly to harm the plaintiffs, or the others he lied His intent was to switch insurance policies, or sell to. new policies, so that he could earn commissions. He obviously did not care what the effect on the insured's would be, he just wanted his commissions. He obviously knew what he was doing, and cared not about his clients. Euuitable XIII. Equitable's intent, as it affected plaintiffs' claims, was to concentrate it resources in those areas of sales and investments which generated profit, and to pay insufficient attention to internal controls that protected its insureds. . insureds' justifies (Emphasis . Equitable's willingness to sacrifice its best interests to increase profits easilv the amount of punitive damases. added.) (iv) The projitabirity of the defendants wrongdoing, if applicable. LeSuer XIV. LeSuer profited from the fraudulent sales to He earned greater plaintiffs and to other customers. and earned commissions on the sale of new policies, renewal commissions. . Equitable xv. Equitable profited from the sales of the policies to profited the plaintiffs. It also from other misrepresentations by LeSuer. . 56 (v) The amount of actual damages awarded by the jury. LeSuer and Equitable XVI. The amount of actual damages awarded, $358,591.00, AlSO, it is everything that plaintiffs is substantial. prayed for. It is doubtful that LeSuer will be able to make a substantial contribution to satisfaction of the judgment for actual damages. Based on the evidence, it is just as doubtful that payment of the full amount of such damages would begin to be enough to impress upon Equitable the extent of its wrongdoing. (vi) The defendants net worth. LeSuer XVII. LeSuer's net worth is unknown. He chose not to give It is known that he is evidence concerning his assets. physically ill and that he is retired. His actions, leadinq to the award of actual damaqes, iustifv the award of punitive damases. Euuitable XVIII. Equitable's networthin1993 was $1,832,462,923.00. Equitable introduced no evidence of a change. The jury's while substantial, is hopefully enough to make award, Equitable examine its policies, but will not affect the or endanger its ability to solvency of the company, Reserves are shown by perform its insurance contracts. Equitable's financial statement to be sufficient, after to protect policy holders. payment of the verdict here, The net worth award of punitive effective. (Emphasis (vii) of Equitable makes damages must be it apparent substantial that to an be added.) Previous awards of punitive damages against the defendants based on the same wrongfiil act. 57 LeSuer and Equitable XIX. The evidence does not reveal any previous awards of exemplary or punitive damages against either LeSuer or Thus, Equitable. there is no showing that either defendant would be punished more than once for conduct such as that proved in this case. (viii) Potential or prior criminal sanctions against the defendants based on the same wrongful act. LeSuer xx. While it might be possible to prosecute LeSuer for criminal fraud, it is very unlikely that such will and the statute of limitations has probably run happen, if criminal proceedings were contemplated. Equitable XXI. Criminal action against Equitable is not a viable remedy. Its corporate nature would make punishment via the criminal statutes virtually impossible. Punitive damages are the only practical way of making an example of Equitable and deterring the conduct found malicious and fraudulent here. (k) Any other circumstances. XXII. The jury in this case was conservative by nature, listened carefully to the evidence, and gave no indication that they acted out of passion or prejudice. The jury did not act out of ignorance. They considered the evidence and coolly decided that punishment should be lx% of Equitable's net profit for 1993. [$408,523,0111 The jury was convinced, as is the Court, that a sizable award of punitive damages against both defendants is both warranted and necessary. 58 The District insurance lack it was necessary others of from knowledge was concerned, attention, the jury's increase or because the after practices is full not the worth he retired, damage award assessed the the amount of the punitive tended to as far and reduce the as Equitable to get Equitable's size was not the of the punitive that LeSuer's to decided wrongdoing because District damage award operates The court discovery, against retirement based, either though was not efforts that known some changes those in the amount of punitive reasons, to was rationally and that that his found that amount." of fraudulent of him in order that a circumstance magnitude these further sold was necessary very were made after For also verdict "[t]he reduce some reduction net and prejudice, Equitable LeSuer no longer from but his The court and that against similarly, concerning of passion until while to make an example acting amount of the award. result also found that and did not need to be deterred conduct, deter Court in its justified damages awarded. Court reduced the punitive LeSuer to the amount of $18,000, damage award assessed against and Equitable to $4,000,000. We conclude, previous portions findings, with substantial Finding of that that opinion, of of the record that and are not clearly to, LeSuer directly the Finding LeSuer did not intend he lied IV that this exception the evidence to the effect others based on our review XII, 59 District are erroneous. supported Finding deceived the District the plaintiffs in Court's to harm the plaintiffs contradicts deliberately as set forth by XII, or Court's and others for his own profit, amount of their knowing insurance, coverage. credible and in We conclude substantial For abuse this its dollars very size of On the Court's the other statutory punitive it is to cannot the jury hold the the the jury's the in this that while the must be exercised and not of that the We conclude, on appeal to the on which that the District that role award of court process would is court consistent or affirm has broad the upon given a (a), jury's MCA, determine, to are in the To discretion assigned to we conclude Therefore, greater is be awarded. function discretion, it damages and unbridled the broad significance punitive damages meaningless. 60 without proceeding, mean that with not whether has complete based is 5 27-l-221(7) punitive District damages. court is to the awards punitive decrease, a separate amount damage at determine in examine district jury's first to punitive arriving award district did of millions attention necessary Pursuant district to ignore is the and then, that by erroneous. Court an award findings their supported District that and the increase, must the the Equitable's for be ignored. which that jury's true award, instance, jury it either recoverable, clearly the merit. of damage and is objections framework discretion not damage award was justified. hand, reduction While first without terminated is damage award, are was based, he reduced finding concluded Equitable's punitive that get punitive that therefore, Court's the to so, and therefore, when it necessary by doing some instances we conclude discretion was that evidence, reason, that that weight discretion of those factors the district § 27-l-221(7) (b) (i)-(ix), That simply does not to engage the majority any given heavily set factor For to this pertained to directed LeSuer's net considered that discretion based action was abuses which For of he on taken these Court entered damage awards by caused Equitable the damage done reasons, we reverse December 23, were reduced. findings 1994, We affirm 61 the not Court extensive fact be jury's We abused awards that remedial and prolonged case. judgment the of amount. the the which was could District the by Court that and that supported worth of this its exception the and reducing the those award. District net the in in if the evidence after award, decision with retirement has its Court's which aside worth weighs or by inference no setting net more damage damage circumstances LeSuer's weighted of LeSuer's offered these be why one factor legislature, award. Under However, District explicitly damage other. may punitive the either the articulate the whether or a substantial factors by to determine support jury's by then simply is consideration. in specific under function when a defendant's other all because to court's factor precludes the consider punitive one must the worth, pursuant one disposition court those to its district case, consider calculation primary alter to district example, and simply than In conclude favor may merit is the circumstances heavily jury's that of the decision mean factors established that required MCA. others. been situations is in a mathematical of than more court the verdict of the jury's of District punitive the jury and order verdict, that on remand plus statutory judgment costs for the and interest, We cone ((7-79, Justices 62 full amount of be entered. the jury's
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