# Amicus Curiae Brief — Pacific Mutual Life Insurance v. Haslip

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 1

## Text

1}; Supreme Court, U.S,
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MAY Sh WO

SPANIO!, JR
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No. 89-1279

MCAT RY

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Supreme Court of the United States

OCTOBER TERM, 1989

PACIFIC MUTUAL LIFE INSURANCE COMPANY,
Petitioner,
Vv.
CLEOPATRA HASLIP, et al.,
Respondents.

On Writ of Certiorari to the Supreme Court of Alabama

BRIEF OF THE NATIONAL ASSOCIATION
OF MUTUAL INSURANCE COMPANIES
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

FORREST S. LATTA
(Counsel of Record)
BARKER & JANECKY, P.C.
Post Office Box 2987
Mobile, Alabama 36652
(205) 432-8786

GEOFFREY C. HAZARD, JR.

YALE LAW SCHOOL

401A Yale Station

New Haven, Connecticut 06520

(203) 432-4971

Attorneys for Amicus Curiae

National Association of

June 1, 1990 Mutual Insurance Companies

ea

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON. D.c. 20001

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QUESTION PRESENTED
Amicus Curiae will address the following question:

Whether Due Process requires, as a predicate to award-
ing substantial punitive damages against a principal,
an intelligible legal standard for attributing an agent’s
misconduct to the principal.

(i)

TABLE OF CONTENTS

sa
TABLE OF AUTHORITIES... ievtbbichnassbuns |
INTEREST OF THE AMICUS CURIAE ..............

SUMMARY OF ARGUMENT .........

ARGUMENT .

I. IMPOSITION OF SUBSTANTIAL PUNITIVE
DAMAGES BY ATTRIBUTION—FOR EXAM-
PLE ATTRIBUTION TO A CORPORATION
OF AN EMPLOYEE’S CONDUCT—IS A RE-
CENT PHENOMENON .......... eee .

Il. ATTRIBUTION OF SUBSTANTIAL PUNI-
TIVE DAMAGES ON THE BASIS OF UNIN-
TELLIGIBLE STANDARDS EXPOSES COR-
PORATIONS TO FUNDAMENTAL UNFAIR-

(iii)

Page

iv

TABLE OF AUTHORITIES

CASES Page
American Pioneer Life Ins. Co. v. Sandlin, 470
Se Ge Cis Picci en 7, 8,9
American Society of Mechanical Engineers v. Hy-
drolevel Corp., 456 U.S. 556 (1982) 6
The Amiable Nancy, 16 U.S. (3 Wheat.) 546
TEIIITIED ssntessbiecintanhiovommecessititers tithe marie A IVa teas 6
Avondale Mills v. Bryant, 10 Ala.App. 507, 63 So.
NE III ‘So sicsiceisutsivaciddsnnsscegnasidienasiitlabiucetnicis ac ian cea Ea 6
Bankers Life Ins. Co. v. Scurlock Oil Co., 447 F.2d
gf RE ATE et let ee 6
Case v. Hulsebush, 122 Ala. 212, 26 So. 155
EN spuioshatabiid laeadeiaaiadanddbialenedeises Gieinidadiaiahitete cass, 6
City of Newport v. Fact Concerts, Inc., 453 U.S.
SRST ESR Ps Ee 11
Continental Electric Co. v. American Employers
Insurance Co., 518 So.2d 83 (Ala. 19£7) ............. 9
Giac ‘9 v. Pennsylvania, 382 U.S. 399 (1966)... 10
HealtnAmerica et al. v. Menton, 551 So.2d 235
I III cid crinsscscacirestenenccnteieanchealaLelalen aii eta 7
Lake Shore & S.M. Ry. Co. v. Prentice, 147 U.S.
BEE MIIIIIITIED \shcnhcsuccnsissinasesi sinicvnsdiaaabiaeeeieneiinaieadieneetadtiinaa 5,8
Land & Assoc., Inc. v. Simmons, [1989 WL 162213]
So.2d EG SIIIINED ; 1
UTHORITIES—Continued <a Siren Coot of the United States
Parlee, Vicarious Liability for Punitive Damages: Seer Mae en
Suggested Changes in the Law Through Policy
Analysis, 68 Marq. L. Rev. 27 (1984). 4 :
Priest, Punitive Damages and Enterprise Liability, -
56 So. Cal. L. Rev. 123 (1982) 4 ; piiibeadad
Sykes, The Boundaries of Vicarious Liability: An
Eccnomic Analysis of the Scope of Employment
Rule and Related Legal Doctrines, 101 Harv. L. PACIFIC MUTUAL LIFE INSURANCE COMPANY,
en 0 Oa 4 Petitioner,
Wigmore, Responsibility for Tortious Acts: Its "
History, 7 Harv. L. Rev. 383 (1894)... 3 CLEOPATRA HASLIP, et al.
OTHER AUTHORITIES: aoe meets
42 U.S.C. § 1983 ......... Pe RSID OA ern ee RS POD 11
Model Penal Code § 2.07(1) (1985) 5 On Writ of Certiorari to the Supreme Court of Alabama
Restatement (Second) of Agency § 217 C (1958)... 5
Restatement (Second) of Torts § 909 (1977) ........ 5

BRIEF OF THE NATIONAL ASSOCIATION
OF MUTUAL INSURANCE COMPANIES
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE'

The National Association of Mutual Insurance Com-
panies (“NAMIC”) consists of more than 1,200 com-
panies that underwrite insurance of all types in every
jurisdiction in the United States. Founded in 1895,
NAMIC assists its members in providing a financiaily
stable, competitive private insurance market for the con-
suming public.

Insurance is marketed through widely various and
often remote business relationships. NAMIC members are
increasingly confronted with substantial punitive dam-

1 The parties’ letters of consent to this brief have been lodged
with the clerk.

2

ages claims based solely upon theories of vicarious attri-
bution, similar to the claim in this case. Amicus believes
there are valid constitutional objections where the nexus
between the active tortfeasor and a principal defendant is
too remote to justify imposition of substantial punitive
damages by attribution.

Amicus therefore asks that the Court in this case be
mindful of the serious problems resulting in unjustified
attribution of substantial punitive damages, and articu-
late a standard in this respect that is compatible with
notions of fundamental fairness embodied in the Due
Process Clause of the Fourteenth Amendment.

SUMMARY OF ARGUMENT

The unfairness of unconstrained jury discretion to
award punitive damages in a civil lawsuit is compounded
where such damages are imposed against a principal for
the wrongdoing of an agent in the absence of any intel-
ligible legal standards for attribution. The rule of attri-
bution applied in this case originated histcrically as an
extension of the respondeat superior doctrine from a
basis for compensatory damages to a predicate for puni-
tive damages. Unfortunately, no satisfactory rationale
for attribution of punitive damages has been articulated
in scholarly discussion or judicial decision, including the
Alabama decisions on the subject. Few courts have paused
to consider the fundamental differences between com-
pensatory and punitive damages. Until recently, the rule
of attribution resulted in few punitive damages awards
of any significance. The substantial increase in large
punitive damages awards during the last ten years,
however, warrants careful examination of this problem
and the articulation of intelligible standards for attribu-
tion that comport with Due Process.

3

ARGUMENT

Amicus adopts petitioner’s argument that Due Process
prohibits the imposition of substantial punitive damages
in the absence of standards or limits governing the dis-
cretion of the decisionmaker, judge or jury. This unfair-
ness is compounded where such damages are imposed
against a principal in the absence of any intelligible stand-
ards for attribution of an agent’s misconduct.

I. IMPOSITION OF SUBSTANTIAL PUNITIVE
DAMAGES BY ATTRIBUTION—FOR EXAMPLE
ATTRIBUTION TO A CORPORATION OF AN
EMPLOYEE’S CONDUCT—IS A RECENT PHE-
NOMENON.

While legal historians differ on the origins of vicarious
liability in Anglo-American law, see Harper, James &
Gray, The Law of Torts, § 26.2 (2nd ed. 1986); Laski,
The Basis of Vicarious Liability, 26 Yale L.J. 105 (1916) ;
Wigmore, Responsibility for Tortious Acts: Its History,
7 Harv. L. Rev. 383 (1894); Holmes, Agency, 4 Harv. L.
Rev. 345 (1891), it is generally accepted that until the
Sixteenth Century a master was not liable for a servant’s
tort unless the master authorized the wrongful act. Pros-
ser, Handbook of the Law of Torts, § 2 (4th ed. 1971).

By 1800, Lord Kenyon held that while a servant’s neg-
ligence within the course of employment could be attrib-
uted to the master for compensatory liability, the master
could not be liable for punitive damages (trespass) where
the servant wilfully disobeyed the master’s orders. Mc-
Manus v. Crickett, 1 East. 105, 102 Eng. Rep. 43 (1800).
Modern-day vicarious liability is rooted in the policy of
compensating victims for torts committed by servants in
the course of their masters’ employment. Although its
legal rationale is still arguable, see Ellis, Fairness and
Efficiency in the Law of Punitive Damages, 56 So.Cal.L.
Rev. 1 (1982), vicarious liability for compensatory dam-
ages is now uniformly accepted. Keeton, Dobbs, Keeton

4

& Owen, Prosser & Keeton on The Law of Torts, pp. 499-
508 (5th ed. 1984). See also, Sykes, The Boundaries of
Vicarious Liability: An Economic Analysis of the Scope
of Employment Rule and Related Legal Doctrines, 101
Harv. L.Rev. 563 (1988).

During the late Nineteenth Century, many American

jurisdictions extended the rule of attribution to impose
punitive damages upon principals for tortious misconduct
of agents or employees. Few courts paused to consider
the distinction between compensatory and punitive dam-
ages, or the policy considerations that could justify puni-
tive damages. No fully satisfactory rationale for vicari-
ous attribution of punitive damages has been articulated
in judicial or scholarly discussion. See, e.g., Ellis, Punitive
Damages, Due Process, and the Jury, 40 Ala.L.Rev. 975,
980 (1989) ; Elliott, Why Punitive Damages Don’t Deter
Corporate Misconduct Effectively, 40 Ala.L.Rev. 1053,
1068 (1989); Parlee, Vicarious Liability for Punitive
Damages: Suggested Changes in the Law Through Policy
Analysis, 68 Marq. L. Rev. 27, 28 (1984); Priest, Puni-
tive Damages and Enterprise Liability, 56 So.Cal. L.Rev.
123, 123-24 (1982): Owen, Punitive Damages in Prod-
ucts Liability Litigation, 74 Mich.L.Rev. 1257, 1299-1301
(1976) ; Comment, Corporate Vicarious Liability for Pu-
nitive Damages, 1985 B.Y.U.L.Rev. 317, 318 (1985). Cf.
Note, Developments in the Law—Corporate Crime: Regu-
lating Coiporate Behavior Through Criminal Sanction,
92 Harv.L.Rev. 1227, 1247-51 ( 1979).

The want of a satisfactory rationale may explain
the sharp division among American jurisdictions over the
proper standard for attribution. Some states have simply
extended the respondeat superior rule to encompass puni-
tive damages for tortious acts committed by employees in
the course of their employment, rfaking no distinction
between compensatory and punitive damages in attribut-
ing liability to the principal. The degree of a principal’s
involvement is immaterial, Other jurisdictions, now con-

5

stituting a majority,’ follow the “complicity” rule formu-
lated by the American Law Institute. See Restatement
(Second) of Torts § 909 (1977). Under that rule, attri-
bution of punitive damages is limited to torts committed,
authorized or ratified by a “managerial agent,” or torts
committed by an unfit employee who was recklessly em-
ployed or retained. Accord Restatement (Second) of
Agency § 217 C (1958); Model Penal Code § 2.07(1)
(1985).

In the federal sphere, this Court adopted the com-
plicity rule in Lake Shore & S.M. Ry. Co. v. Prentice, 147
U.S. 101 (1893), wherein it stated:

Exemplary or punitive dameges, being awarded, not
by way of compensation to the sufferer, but by way
of punishment of the offender, and as a warning to
others, can only be awarded against one who has
participated in the offense. A principal, therefore,
though of course liable to make compensation for in-
juries done by his agent within the scope of his em-
ployment, cannot be held liable for exemplary or
punitive damages, merely by reason of wantor op-
pressive or malicious intent on the part of the agent.
This is clearly shown by the judgment of this court

* See Comment, Corporate Vicarious Liability for Punitive Dam-
ages, 1985 B.Y.U.L.Rev. 317, 318 ( 1985) (showing the number of
states adhering to each rule). Accord, Ghiardi & Kircher, Puni-
tive Damages Law and Practice § 24.01 at 2 (1985).

* Section 909. Punitive Damages Against a Principal
Punitive damages may properly be awarded against a master or
other principal because of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the
doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial
agent was reckless in employing or retaining him, or
(ec) the agent was employed in a managerial capacity and
was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal
ratified or approved the act.

6

in the case of The Amiable Nancy, 16 U.S. (3
Wheat.) 546 (1818).

147 U.S. at 107. The Court in Lake Shore further noted
that a corporation may be punished for the acts of an
agent only where “criminal intent, necessary to warrant
the imposition of such damages, is brought home to the
corporation.” Jd. at 111.

The Court later explained its Lake Shore holding as
merely adopting the rule of attribution “which it thought
most appropriate” and not necessarily establishing a Due
Process limitation. Louis Pizitz Dry Goods Co. v. Yeldell,
274 U.S. 112, 115 (1927). The Court has questioned Lake
Shore in a footnote in American Society of Mechanical
Engineers v. Hydrolevel Corp., 456 U.S. 556, 575 n.14
(1982), but did not overrule it. In Hydrolevel the Court
upheld a statutory antitrust award of treble damages
attributed to a principal under a theory of “apparent
authority.” The Court recognized the treble damages as
having a remedial component designed to counterbalance
the “difficulty of maintaining a private suit,” and not
serving a solely punitive purpose. Jd. at 575. The deci-
sion in Hydrolevel therefore is consistent with the com-
plicity rule adopted in Lake Shore.*

In Alabama, the rule of respondeat superior was ju-
dicially enlarged near the turn of this century to allow
the recovery of punitive as well as compensatory dam-
ages. See Case v. Hulsebush, 122 Ala. 212, 26 So. 155
(1899); Avondale Mills v. Bryant, 10 Ala.App. 507, 63
So. 932 (1913). As in other states, the Alabama Supreme
Court appears never to have analyzed the differences
between compensatory and punitive damages in connec-

*The complicity rule likewise has been embraced by several
federal courts of appeals. See Williams v. City of New York, 508
F.2d 356 (2nd Cir. 1974); Bankers Life Ins. Co. v. Scurlock Oil
Co., 447 F.2d 997 (5th Cir. 1971); Parris v. St. Johnsbury Truck-
ing Co., 395 F.2d 543 (2nd Cir. 1968); Roginsky v. Richardson-
Merrill, 378 F.2d 832 (2nd Cir. 1967).

7

tion with a rule of attribution, nor has it defined any
standard of attribution except for the vague requirement
that the agent’s tort be committed “within the scope of
his employment.” 63 So. at 934. The most recent state-
ment is found in HealthAmerica et al. v. Menton, 551
So.2d 235 (Ala. 1988), where the court in affirming $1.8
million in punitive damages stated simply, “A corpora-
tion is responsible for the acts of its agent.” Id. at 245-
46. As will be shown below, the operative rule of attri-
bution in Alabama civil cases has become “let the jury
decide,” without sufficient instruction for the factfinder
in legal standards for determining whether the prin-
cipal should be punished.*

Until a decade ago, Alabama’s rule of attribution re-
sulted in a few punitive damages awards of any signifi-
cance. Since then, several substantial punitive damages
awards have been imposed sodiiet insurance companies
based solely on grounds of respondeat superior. See, e.g.
Land & Assoc., Inc. v. Simmons, [1989 WL 162213]
So.2d (Ala. 1989) ($2.5 million) ; HealthAmerica,
et al. v. Menton, 551 So.2d 235 (Ala. 1989) ($1.8 mil-
lion); American Pioneer Life Ins. Co. v. Sandlin, 470
So.2d 657 (Ala. 1985) ($3 million) ; National Sec. Fire
& Cas. Co. v. Bowen, 447 So.2d 133 (Ala. 1983) ($1.5
million). The recent proliferating phenomenon of sub-
stantial punitive damages awards, based upon an in-
definite rule of attribution, compels careful examination
of this question and the articulation of a rule of attribu-
tion that comports with Due Process.

° Alabama applies a much stricter standard of attribution under
its criminal law, requiring “either (1) authorization, procurement
incitation or moral encouragement, or (2) the knowledge plus
acquiescence of the principal in the acts of his agent” before
vicarious criminal liability may be imposed. See State v. Spurlock
393 So.2d 1052,-1059 (Ala.Crim.App. 1981), citing Perkins Crim-
inal Law pp. 812-13 (2nd ed. 1969).

8

Il. ATTRIBUTION OF SUBSTANTIAL PUNITIVE
DAMAGES ON THE BASIS OF UNINTELLIGIBLE
STANDARDS EXPOSES CORPORATIONS TO FUN-
DAMENTAL UNFAIRNESS.

Due Process prohibits punishment of persons not ade-
quately shown to be guilty. See Lake Shore & M.S. Ry.
Co. v. Prentice, 147 U.S. 101, 115 (1983). This protec-
tion extends to civil defendants hoping to protect their
property. Logan v. Zimmerman Brush Co., 455 U.S. 422,
429 (1982). Punitive damages implicates the defendant’s
right to fair punishment rather than plaintiff’s interest in
fair compensation. The unfairness of punishing a prin-
cipal for its agent’s misconduct is made more acute where,
as in this case, the wrong is committed solely for the
agent’s illicit benefit. A meaningful nexus must be re-
quired between the defendant principal and the actual
tortfeasor before the latter’s misconduct may serve as
the predicate for punishment, even under a liberal rule
of respondeat superior. The focus must be upon the
level of corporate involvement, not solely upon the act of
the “agent”.

The Alabama Supreme Court has failed to come to
grips with this problem. Instead of articulating intel-
ligible standards, it has broadly declared the issue of at-
tribution a “question .. . for the jury.” See American
Pioneer Life Ins. Co. v. Sandlin, 470 So.2d 657, 665 (Ala.
1985). As a result, several multi-million dollar punitive
damages verdicts have been imposed by juries against
insurance companies for the tortious misconduct of per-
sons who had only remote or indirect relationships with
the defendant insurer.

For example, in National Security Fire & Cas. Co. ».
Bowen, 447 So.2d 133 (Ala. 1983), the insurance com-

®Such a nexus is explicit in the “complicity” rule, which re-
quires that the punishable act be committed or authorized by a
managerial agent.

9

pany had an agency relationship with an insurance
brokerage, which independently hired two private inves-
tigators to determine the cause of a fire loss. There was
no evidence of any relationship or communication be-
tween the insurance company and the investigators. After
a serious of outrageous actions by the investigators, the
insured sued the insurance company on theories of fraud,
malicious prosecution and the tort of outrage. A jury
imposed punitive damages in the amount of $1.5 million.
On appeal, the Alabama Supreme Court held that the
existence of an agent relationship is simply “a question
of fact to be determined by the jury” and “it is quite
obvious that the jury believed that a principle-agent re-
lationship existed in this case.” 447 So.2d at 138. There
was no discussion of intelligible standards or whether the
insurance company was guilty of any complicity in the
tortious conduct.

Similarly, in American Pioneer Life Ins. Co. v. Sand-
lin, 470 So.2d 657 (Ala. 1985), a total stranger to de-
fendant American Pioneer fraudulently induced the
plaintiff to purchase an annuity from the company.
The “agent” actually was a registered agent of an en-
tirely different insurer at the time of the fraud, and it
was undisputed that he did not become licensed by Amer-
ican Pioneer until several months later. 470 So.2d at
665. The jury returned a general verdict against Amer-
ican Pioneer in the sum of $3 million in punitive dam-
ages. On appeal, the Alabama Supreme Court noted that
the trial court instructed the jury that it could have
found the agent was merely a “broker,” rather than an
agent. The court then dispensed with the agency ques-
tion by stating that “there was disputed evidence in
the case, so the question was for the jury.” Jd.

Again, in Continental Electric Co. v. American Em-
ployers’ Insurance Co., 518 So.2d 83 (Ala. 1987), the
Alabama Supreme Court reversed a summary judgment
which the trial court had granted in favor of the in-

10

surer on the absence of a sufficient agency relationship.
The active tortfeasor was an employee of an insurance
agent, hence one step removed from a direct agency
relationship. The court held there was sufficient evidence
(under a “scintilla” standard) that he was a “subagent”
to warrant submission to the jury of the issue cf punitive
damages against the insurer. The operative rule of at-
tribution was, again, ‘let the jury decide.’ Jd. at 89
(“summary judgment on this claim was improper”).

In opposition to granting the writ on this issue, re-
spondents have cited Louis Pizite Dry Goods Co. v. Yel-
dell, 274 U.S. 112 (1927), where the Court held that Ala-
bama’s imposition of liability through punitive damages

against an employer in a statutory wrongful death case

did not violate Due Process under the Fourteenth Amend-
ment. The Pizitz case, however, involved a direct master-
servant relationship rather than a questionable agency
relationship. More important, the Alabama wrongful
death statute, although cast as a punitive remedy, is in
substance a compensatcry one. See Richmond & D.R.R.
v. Freeman, 97 Ala. 289, 11 So. 800, 801 (1892) ; Nettles
& Latta, Alabama’s Wrongful Death Statute: A Prob-
lematic Existence, 40 Ala. L. Rev. 475, 485-90 (1989).
Where the statutory punitive damages effectuates a com-
pensatory purpose, as in Pizitz and Hydrolevel, different
considerations are involved in attribution than when
punitive damages are imposed solely as punishment.
Furthermore, Hydrolevel involved an express statutory
limit of three-foid the compensatory damages.’ In con-
trast, the Alabama law applicable in this case had
neither an articulated substantive standard of attribution
such as in the Restatement of Torts, nor a proportionate

* Plaintiff in Pizitz was represented by then-attorney Hugo L.
Black who, perhaps not so coincidentally, later authored Giaccio v.
Pennsylvania, 382 U.S. 399 (1966), holding that federal due process
prohibits standardless jury discretion in the imposition of damages.

11

limitation on punitive damages such 2s the three-fold
standard under the antitrust liability in Hydrolevel.

Under any rule of attribution, further unfairness re-
sults where the amount of punishment for an agent’s
misconduct is determined by reference (express or im-
plied) to the innocent principal’s size and wealth. More-
over, the financial burden of the punishment ultimately
falls primarily upon blameless shareholders, customers,
or the public at large. See Ellis, Fairness and E fficiency
in the Law of Punitive Damages, 56 So. Cal. L. Rev. 1, 66
(1982). In the case of mutual insurance companies, it
falls directly on the policyholders.* Compare City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981),
where the Court prohibited attribution of punitive dam-
ages against municipalities in claims under 42 U.S.C.
§ 1983 because of the financial burden placed upon tax-
payers.

* Mutual insurance companies, by definition, are owned by their
policyholders. See Union Ins. Co. v. Hoge, 62 U.S. 35, 64-65 (1859);
Couch on Insurance 2d (Rev.ed) § 19:14 (1984).

12

CONCLUSION

There appears to have been no intelligible standard of
attribution applied in the present case, judging from the
report of the opinion below. This Couit should require,
as a matter of Due Process, the articulation of an in-
telligible legal standard for attribution of an agent’s
misconduct as a predicate to awarding substantial puni-
tive damages against a principal.

Respectfully submitted,

FORREST S. LATTA
(Counsel of Record) )
BARKER & JANECKY, P.C. |
Post Office Box 2987 |
Mobile, Alabama 36652
(205) 432-8786 )

GEOFFREY C. HAZARD, JR.

YALE LAW SCHOOL

401A Yale Station

New Haven, Connecticut 06520
(203) 432-4971

Attorneys for Amicus Curiae
National Association of
June 1, 1990 Mutual Insurance Companies

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0717%3A11. Public record. Not legal advice.