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Biegler v. American Family Mutual Insurance Company1/24/2001
t as we deem required by the record.á Finally, SDCL 15-30-2 allows this court to "direct the entry of such judgment or order as the court deems required by the record."
[ .] The first option, reversal and remand for a new trial on the issue of compensatory damages, is not justified given the record and Biegler's attorney's concession at oral argument that he only had proof of $25,000 for the same.
An appellate court generally will not exercise its discretionary power to grant a new trial unless it is satisfied that the second trial will produce different results; if it appears that no purpose may be served by ordering a new trial, the entry of judgment by the appellate court, rather than the ordering of a new trial, may be appropriate.á Where it is obvious that the grounds for prejudgment relief exist, remand is unnecessary and the appellate court may use facts found by the trial court to support its disposition. 5 AmJur2d Appellate Review §809 (1995).
[ .] This Court has in the past both modified money judgments, Griebel v. Ruden, 61 SD 507, 249 NW 810 (1933), aff'd on rehearing, 62 SD 469, 253 NW 447 (1934), and ordered a conditional affirmance if a party remitted a portion of the award, First Nat'l Bank of Custer City v. Calkins, 16 SD 445, 93 NW 646 (1903).ááá We have particularly utilized the conditional affirmance upon remittitur in those cases where we determined that a punitive damage award was excessive.á Shippen v. Parrott, 1996 SD 105, 553 NW2d 503 (Shippen II); Grynberg v. Citation Oil & Gas, 1997 SD 121, 573 NW2d 493; Hannahs v. Noah, 83 SD 296, 158 NW2d 678 (1968); Stene v. Hillgren, 78 SD 1, 98 NW2d 156 (1959).á While either disposition is appropriate here, we must determine which of the two is the most appropriate under the circumstances.á Given the concessions made by Biegler's counsel, we fail to see where the result would be any different upon retrial of this case and, therefore, we elect to modify the compensatory damage verdict by reducing the amount of the award to $25,000.á In doing so we emphasize that modification of a judgment, especially a money judgment, is to be used sparingly and only "when the record and evidence is such that such judgment may be rendered with confidence in the reasonableness, fairness, and accuracy of the decision."á 5 AmJur2d Appellate Review §836.
[ .] Did the trial court err in denying American Family's motion for new trial on the jury's award of punitive damages?
[ .] American Family challenges the appropriateness of the punitive damage award on three grounds: 1) that Biegler failed to prove a tort independent of breach of contract; 2) that even if there is an independent tort, there is no sustainable recovery of compensatory damages; and 3) even if there is an independent tort and sustainable compensatory damages, Biegler failed to prove that it acted with malice.á
[ .] American Family has failed to challenge on appeal the jury's finding that it was guilty of the tort of bad faith breach of insurance contract and we have already upheld the finding of deceit.á It also fails to recognize our holding in Grynberg, supra, that while our punitive damages statute (SDCL 21-3-2) does not allow punitive damages for breach of contract, it does permit them in the case of a tort arising independent of the contract obligation including an action for deceit.á Finally, it fails to recognize our holding in Harter v. Plains Ins. Co., 1998 SD 59, 579 NW2d 625, where we held that an insured could seek punitive damages from her insurer when prosecuting a bad faith action.á Thus, we reject its first argument.á
[ .] As to the compensatory damages argument, we have found that Biegler did establ
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