By Mike Abourezk

Often, insurers attempt to exclude evidence of similar bad acts in assessing punitive damages when acts occurred subsequent to denial of insurance claim. The insurer may file a motion in limine or propose jury instructions that would exclude subsequent bad acts evidence.

Subsequent Bad Acts or Statements Establish Intent.

S.D.C.L. § 19 12 5 makes no distinction between prior acts and subsequent acts. Instead, it refers only to "other acts." The South Dakota case law existing prior to enactment of S.D.C.L. § 19 12 5 supports the conclusion that, in appropriate instances, subsequent statements and conduct can be used to establish antecedent intent. See, e.g., Jorgensen v. Jorgensen, 51 N.W.2d 632 (SD 1952) (subsequent acts should be competent to aid in determining his intention in placing the deed with the depositary).

Other jurisdictions have reached a similar conclusion. See, e.g., Fielder v. Magnolia Beverage Company , 757 So.2d 925 (Miss.1999) (Rule 404(b) makes no distinctions between prior and subsequent acts); Bullock v. Virginia, 27 Va. App. 255, 498 S.E.2d 433, 437 (Va. App. 1998) (holding that the same principle of admission of prior bad acts "applies equally in cases of subsequent bad acts."); United States v. Whaley, 786 F.2d 1229, 1232 (4th Cir. 1986) ("The mere fact that the "other acts" at issue occurred after the events charged in the indictment does not render them irrelevant . . .. Subsequent conduct may be highly probative of prior intent."); United States v. Latney, 323 U.S. App. D.C. 417, 108 F.3d 1446, 1449 (D.C. Cir. 1997) (quoting United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995)) ("the principles governing what is commonly referred to as other crimes evidence are the same whether the conduct occurs before or after the offense charged"); United States v. Bibo Rodriguez , 922 F.2d 1398 (9th Cir. 1991)("By its very terms, 404(b) does not distinguish between "prior" and "subsequent" acts. We have specifically allowed prior act evidence to prove knowledge."); United States v. Mehrmanesh, 689 F.2d 822,832 33 (9th Cir. 1982)( subsequent act evidence allowed to prove intent).

Evidence of Subsequent Bad Acts Show Recidivism and Establishes Plaintiff's Right to Punitive Damages.

In reviewing punitive damages awards, the South Dakota Supreme Court has held that it is relevant to show that the defendant has a proclivity to repeat wrongful conduct. For instance, in Schaffer v. Edward D. Jones&Co.(Schaffer II), 552 N.W.2d. 801, 813 (S.D.1996), the Court held that a major purpose of punitive damages is to deter future misconduct of a similar nature. In that case, the Court said:

Punitive damages may properly be imposed to further a State's legitimate interests in not only punishing unlawful conduct but also to deter its repetition.

Schaffer II at 813 (citation omitted)(emphasis added) . See also Veeder v. Kennedy, 589 N.W.2d 610, 622 ("Punitive damages may properly be imposed to further a State's legitimate interests in not only punishing unlawful conduct but also to deter its repetition."); Grynberg v.Citation Oil&Gas Corp., 573 N.W.2d 493 (S.D. 1997)(proper punitive damage award must take into account not only the harm to the plaintiff, but also the harm that might result to other victims if similar misconduct is not deterred); Roth v. Farner Bocken Co., 667 N.W.2d 651 *48 (SD 2003)( In determining "degree of reprehensibility," one consideration is whether "the conduct involved repeated actions or was an isolated incident."

In Roth, the Court reversed and remanded a punitive damages award because there was no evidence that the conduct reflected a company policy or practice. (emphasis added). Id. at 52. In Friztmeier v. Krause Gentle Corp., 669 N.W.2d 699 (S.D. 2003), the South Dakota Court noted the importance of whether the conduct was an isolated instance or repeated conduct. Id. at 710. Relying on Roth, the court said:

We emphasized in Roth, (see conference opinion), that the defendant's action as it related to potential harm that may be inflicted on not only the present victim, but also other victims if it was not deterred was an appropriate consideration.

Id., citing Roth v. Farner Bocken Co., 667 N.W.2d at 668 (citing Pulla v. Amoco Oil Co., 72 F.3d 648, 659 60 (8th. Cir. 1995).

Moreover, as the California Supreme Court aptly noted in a recent decision Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 29 Cal. Rptr.3d 401 (Cal. 2005):

To consider the defendant's entire course of conduct in setting or reviewing a punitive damages award, even in an individual plaintiff's lawsuit, is not to punish the defendant for its conduct toward others. An enhanced punishment for recidivism does not directly punish the earlier offense; it is, rather, " ' "a stiffened penalty for the last crime, which is considered to be an aggravated offense because a repetitive one." '

Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 1206 n.6, 29 Cal. Rptr.3d 401, 413 n.6. (Cal. 2005),citing Ewing v. California (2003) 538 U.S. 11, 25-26, 123 S.Ct. 1179, 155 L.Ed.2d 108.

Continuing, the Court said:

In response to constitutional challenges to recidivist punishment, for example as ex post facto laws, "[t]he uniform answer has been that it is the second or subsequent offense which is punished, not the first."(People v. Biggs (1937) 9 Cal. 508,512, 71 P.2d 214.) By placing the defendant's conduct on one occasion into the context of a business practice or policy, an individual plaintiff can demonstrate that the conduct toward him or her was more blameworthy and warrants a stronger penalty to deter continued or repeated conduct of the same nature.

Id. (emphasis added).

Considering the prevailing view on this issue, including Roth, Fritzmeier, and other South Dakota decisions, a jury is entitled to consider an insurer's activities both before and after the conduct that harmed the plaintiff.

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