Slack v. Farmers Insurance Exchange

5 P.3d 280 (2000)

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Nature of the Case

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Facts

P suffered injuries in an automobile accident. P visited her chiropractor for treatment of her neck and back pain caused by the accident. Dr. Schuster submitted all charges for treatment to P's insurer, D. In accordance with her policy, and at the request of D, P signed and delivered to D an Application for Benefits and Proof of Loss requesting Personal Injury Protection (PIP) benefits under her automobile insurance policy. D elected to obtain a second opinion regarding the nature of P's injuries from an independent medical examiner (an IME). D sent P to Dr. Lloyd Lachow, a chiropractor. At that time, another one of D's insureds, Jodi Lynn Harvey, had claimed that Lachow sexually assaulted her during an examination. P testified that during her exam, Lachow touched her clothed breast and pushed his pelvis into her back. In addition, she testified that he pulled hard on her neck and shook her head violently from side-to-side, putting her in additional pain. P then contacted an attorney and reported the incident to the City of Aurora police department. Lachow's license was suspended. P filed suit against Lachow claiming assault, battery, negligence, extreme and outrageous conduct/intentional infliction of emotional distress, negligent infliction of emotional distress, and malpractice. P claimed negligence, breach of contract, bad faith breach of contract, and outrageous conduct against D. P settled with Lachow and D designated Lachow a nonparty whose fault should be considered in apportioning the resulting total liability and damages. The jury returned a verdict in favor of P on the negligence claim, bad faith breach of contract claim, and on P's husband's loss of consortium claim. The jury also found that D acted willfully and wantonly. The jury awarded P $40,000 for her injuries and $16,000 in exemplary damages. The husband got $6000 for his loss and $2400 in exemplary damages. The jury apportioned sixty percent of the fault for P's injuries to Lachow and forty percent to D. The trial court reduced P's award to $16,000 in compensatory damages and $16,000 in exemplary damages. The trial court did not reduce the compensatory portion of the husband's damage award. P appealed, and D cross-appealed the trial court's refusal to apportion the damages awarded to the husband. The court of appeals held in favor of D on both issues. P appealed.